The Portman

THE PORTMAN 317 The Portman and International Union of Operating Engineers, Stationary Engineers, Local 39 Case 20-CA-21996 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 21 1988 1 the General Counsel of the National Labor Relations Board issued a complaint alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain following the Union s certifi cation in Case 20-RC-16191 (Official notice is taken of the record in the representation proceed ing as defined in the Board s Rules and Regula tions Secs 102 68 and 102 69(g) Frontier Hotel 265 NLRB 343 (1982)) The Respondent filed its answer admitting in part and denying in part the allegations of the complaint On July 11 the General Counsel filed a Motion for Summary Judgment with attachments and a memorandum in support On July 15 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted The Respondent and the Union filed responses The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel Ruling on the Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain but attacks the validity of the certification on the ground that the unit of engineering subdivi sion employees and maintenance attendants found appropriate by the Regional Director in the under lying representation proceeding is inappropriate All issues raised by the Respondent were or could have been litigated in the prior proceeding The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence nor does it allege any special circum stances that would require the Board to reexamine the decision made in the representation proceeding We therefore find that the Respondent has not raised any issue that is properly litigable in this unfair labor practice proceeding 2 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941) Accordingly we grant the Motion for Summary Judgment 3 On the entire record the Board makes the fol lowing FINDINGS OF FACT I JURISDICTION Respondent is a California corporation with an office and place of business in San Francisco Cali forma where it is engaged in the operation of a hotel providing food and lodging for guests Based on a projection of its operation since about Septem ber 2 1987 when it commenced operations the Respondent will annually derive gross revenues in excess of $500 000 Since the opening of its San Francisco facility the Respondent in the course and conduct of its operations has purchased and received at the facility products goods and materi als valued in excess of $1500 directly from points located outside the State of California We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organs zation within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICE A The Certification Following the election conducted on April 27 the Union was certified on May 10 as the collec tive bargaining representative of the employees in the following appropriate unit All engineering subdivision employees and maintenance attendants employed by the Re spondent at its San Francisco California facil ity excluding all other employees guards and supervisors as defined in the Act The Union continues to be the exclusive represent ative under Section 9(a) of the Act B Refusal to Bargain Since May 11 the Union has requested the Re spondent to bargain and since June 2 the Respond ent has refused We find that this refusal constitutes i All dates are in 1988 unless otherwise stated 2 In its answer the Respondent denies that portion of par 2(a) of the complaint that alleges that it is a California corporation Contrary to its denial however the Respondent stipulated in the underlying representa tion proceeding that it is a California corporation The Regional Director so found and the Respondent did not challenge this finding in its request for review of the Regional Director s Decision and Direction of Election Further the Respondents response to the show cause notice does not ad dress the issue and provides no clue about its state of incorporation if other than California As the Respondent previously entered a stipulation regarding its state of incorporation and admits the allegations of com plaint pars 2(a) (b) and (c) regarding its operations dollar volume of business and involvement in interstate commerce we find that the denial raises no material issue of fact warranting a hearing 3 Although Member Johansen dissented on the denial of review in the underlying representation case he considers that to be the law of the case and consequently joins his colleagues in the present decision 291 NLRB No 45 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By refusing on and after June 2, 1988 to bargain with the Union as the exclusive collective bargain ing representative of employees in the appropriate unit the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act we shall order it to cease and desist to bargain on request with the Union and if an understanding is reached to embody the understanding in a signed agreement To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law we shall construe the ini tial period of the certification as beginning the date that the Respondent begins to bargain in good faith with the Union Mar Jac Poultry Co 136 NLRB 785 (1962) Lamar Hotel 140 NLRB 226 229 (1962) enfd 328 F 2d 600 (5th Cir 1964) cert denied 379 US 817 (1964) Burnett Construction Co 149 NLRB 1419, 1421 (1964) enfd 350 F 2d 57 (10th Cir 1965) ORDER The National Labor Relations Board orders that the Respondent The Portman San Francisco Cali fornia its officers agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with International Union of Operating Engineers Stationary Engineers Local 39 as the exclusive bargaining representative of the employees in the bargaining unit (b) In any like or related manner interfering with restraining or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) On request bargain with the Union as the ex clusive representative of the employees in the fol lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement All engineering subdivision employees and maintenance attendants employed by the Em ployer at its San Francisco California facility excluding all other employees guards and su pervisors as defined in the Act (b) Post at its facility in San Francisco Califor nia copies of the attached notice marked Appen dix 4 Copies of the notice on forms provided by the Regional Director for Region 20 after being signed by the Respondents authorized represents tive shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 4 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to bargain with Internation al Union of Operating Engineers Stationary Engi neers Local 39 as the exclusive representative of the employees in the bargaining unit WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL on request bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit All engineering subdivision employees and maintenance attendants employed by the Em ployer at its San Francisco California facility excluding all other employees guards and su pervisors as defined in the Act THE PORTMAN