Anchor Inn Hotel of St. Croix

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 767 (N.L.R.B. 1980)

ANCHOR INN HOTEL. OF ST CROIX
Anchor Inns, Inc. d/b/a Anchor Inn Hotel of St.
Croix and Gastronomical Workers Union of
Puerto Rico, Local 610, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO. Case 24-CA-4250
July 18, 1980
DECISION AND ORDER
By' CHAIRMAN FANNING AND MEMBERS
PENFI IO AND TRUESDAI E
Upon a charge filed on December 10, 1979, by
Gastronomical Workers Union of Puerto Rico,
Local 610, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein
called the Union, and duly served on Anchor Inns,
Inc., d/b/a Anchor Inn Hotel of St. Croix, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 24, issued a complaint and notice
of hearing on February 6, 1980, against Respond-
ent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge and complaint and notice of hearing before
an administrative law judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 8, 1979,
following a Board election in Case 24-RC-6207,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about July 10, 1979, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On February 29, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On April 28, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, and thereafter, on May 8,
1980, an amendment thereto. Subsequently, on May
12, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
i Official notice is taken of the record in the representation proceed-
ing. Ca.e 24-RC 6207. as the term "record" is defined in Scs 102 68
and 102 69(g) of the Board', Rules and Regulation%, Series 8, as amiended
See LTI I hIctroEl vir eom, Inie. 166 NL.RB 938 (1967). enfd 88 F 2d 6.8
(4th Cir 1968): Golden Age Bc'rvege Co, 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969q) Inter/rypc Coz % Peneli, 269 F Supp 573
(DC Va 1967): bollhtt Corp., 64 NLRB 378 (1167). cnfd 317 F 2d 41
(7th Cir 1968): Sec 9(d) of the NLRA. a namrended
250 NLRB No. 108
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show
Cause, captioned as its response to the Motion for
Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to
the Notice To Show Cause, Respondent essentially
contests the validity of the Union's certification.
Respondent contends that the November 13, 1978,
election must be set aside and a new election di-
rected because (I) the unit certified included a su-
pervisor and thus did not constitute an appropriate
bargaining unit, and (2) threats against unit employ-
ees created a general atmosphere of intimidation
and fear of reprisal which prevented a fair election.
Respondent contends, in the alternative, that the
Board and the Regional Director erred in denying
Respondent a hearing in the underlying representa-
tion case, since Respondent presented material and
substantial evidence in support of its objections to
conduct affecting the results of the election. The
General Counsel maintains that Respondent is at-
tempting to relitigate the issues it raised in the re-
lated representation proceeding. We find merit in
the General Counsel's position.
Review of the record herein, including the
record in Case 24-RC-6207, reveals that, pursuant
to a Stipulation for Certification Upon Consent
Election, an election was conducted on December
15, 1978, which resulted in a vote of four to one in
favor of the Union, with one vote challenged.
Thereafter, Respondent filed timely objections to
conduct affecting the results of the election. The
objections alleged, in substance, that an agent of
the Petitioner threatened employees with loss of
their jobs if they did not vote for the Union. On
March 20, 1979, after an investigation, the Regional
Director issued his "Report and Recommendation
on Objection," in which he found the objection to
be without merit and recommended that it be over-
ruled, and that the Union be certified. Respondent
filed exceptions to the Regional Director's report
essentially reiterating its objections and requesting
that a new election be directed.
On May 8, 1979, the Board issued its Decision
and Certification of Representatie" 2 in which it
- N~,t reported in hound ..olunic, o[' Board 1)c %1.ionll
767
I)ECISIO)NS ()F NA TIONAl LABOR RELATIONS BOARD
ommendations, overruled Respondent's objections,
and certified the Union.
Subsequently, Respondent filed a motion for re-
consideration of the Board's Decision and Certifi-
cation, alleging new and previously unavailable
evidence establishing misconduct sufficient to war-
rant setting aside the election. The Board denied
the motion for reconsideration on September 20,
1979, on the grounds that there was insufficient
showing that the proffered evidence was previous-
ly unavailable and that, if considered, it would re-
quire a different result. It thus appears that Re-
spondent is attempting to raise herein issues which
were raised and determined in the underlying rep-
resentation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a United States Virgin Islands cor-
poration with its principal office and place of busi-
ness located in Christiansted, St. Croix, Virgin Is-
lands, where it is engaged in the operation of a
resort facility providing hotel, restaurant, entertain-
ment, and related services and facilities. During the
past 12 months, a representative period, Respond-
ent, in the course and conduct of its business, de-
rived gross revenues in excess of $500,000, and pur-
chased and received supplies and materials valued
in excess of $50,000, which originated from sources
located outside the United States Virgin Islands.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
:' See Pitshurgh PMI Glusc (;Ca \ V lR. H . 113 L S 146. 162 (HI41)
Rule's and Regulalions( of the Hoard. Sce, 1(12 67() aTld 102 69(c)
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
11. THE IABOR ORGANIZATION INVOLVED
Gastronomical Workers Union of Puerto Rico,
Local 610, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
Ili. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All service and maintenance employees em-
ployed by Respondent at its facility in St.
Croix, U.S. Virgin Islands, but excluding all
other employees, office clerical employees,
professional employees, guards and supervisors
as defined in the Act.
2. The certification
On December 15, 1978, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 24, designated
the Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on May 8,
1979, and the Union continues to be such exclusive
representative within the meaning of Section 9(a)
of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about June 12, 1979, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about July 10, 1979, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
July 10, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
768
ANCHt)R INN O()1EL. ()F ST' CROIX
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE FFFF-CT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Anchor Inns, Inc. d/b/a Anchor Inn Hotel of
St. Croix, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Gastronomical Workers Union of Puerto Rico,
Local 610, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All service and maintenance employees em-
ployed by Respondent at its facility in St. Croix,
U.S. Virgin Islands, but excluding all other em-
ployees, office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since May 8, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about July 10, 1979, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Anchor Inns, Inc. d/b/a Anchor Inn Hotel of St.
Croix, Christiansted, St. Croix, U.S. Virgin Islands,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Gastronomical
Workers Union of Puerto Rico, Local 610, Hotel
and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All service and maintenance employees em-
ployed by Respondent at its facility in St.
Croix, U.S. Virgin Islands, but excluding all
other employees, office clerical employees,
professional employees, guards and supervisors
as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
7h
I)ECISIONS OF NATIO)NAL. LABOR RELATIONS BO()ARD
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Christiansted, St. Croix, U.S.
Virgin Islands' facility copies of the attached notice
marked "Appendix." 3 Copies of said notice, on
forms provided by the Regional Director for
Region 24, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 24,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the rords in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgement of the United States Court of Appeals enforcing an
Order of the National Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOr refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Gastronomical Workers Union of Puerto
Rico, Local 610, Hotel and Restaurant Em-
ployees and Bartenders International Union,
AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WIl L NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All service and maintenance employees em-
ployed by the Employer at its facility in St.
Croix, U.S. Virgin Islands, but excluding all
other employees, office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
ANCHOR INNS, INC. D/B/A ANCHOR
INN HOTEL OF ST. CROIX
77)