Bootlegger Trail, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1979

242 N.L.R.B. 1255 (N.L.R.B. 1979)

BOOTLEGGER TRAIL. INC.
Sheraton Great Falls Inn d/b/a Bootlegger Trail, Inc.
and Northwest Motor Inn and Fran Lewis and Ho-
tel, Motel, Restaurant Employees and Bartenders
International Union Local 101, AFL-CIO, Party to
the Contract. Case 19-CA-10991
June 18, 1979
DECISION AND ORDER
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment on the
Pleadings should not be granted. Respondent there-
after filed a response to the Notice To Show Cause.
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:
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Upon a charge filed on December 26, 1978, by
Fran Lewis, the Charging Party herein, and duly
served on Sheraton Great Falls Inn d/b/a Bootlegger
Trail, Inc. and Northwest Motor Inn, herein called
Respondent, the General Counsel of the National La-
bor Relation Board, by the Regional Director for Re-
gion 19, issued a complaint and notice of hearing on
February 16, 1979, alleging that Respondent had en-
gaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(2) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge, 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 com-
plaint alleges in substance that on or about Septem-
ber 1, 1978, Respondent and Hotel, Motel, Restau-
rant Employees and Bartenders International Union
Local 101, AFL-CIO, herein called the Union, en-
tered into collective-bargaining agreements covering
wages, hours, and other terms and conditions of em-
ployment for Respondent's employees working in the
classifications of bartenders and restaurant employ-
ees. The complaint further alleges that Respondent
had no employees in the bartender and restaurant
classifications on September 1, 1978, and commenced
operations about September 9, 1978. In the alterna-
tive, the complaint alleges, in substance, that, if Re-
spondent did have employees in bartender and res-
taurant employee classifications by September I,
1978, when it executed the collective-bargaining
agreements, those employees did not constitute a sub-
stantial and representative complement of the total
number of employees projected to be employed in
these classifications. On February 26, 1979, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the com-
plaint.
On March 26, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment on the Pleadings, with exhibits at-
tached. Subsequently, on April 3, 1979, the Board
issued an order transferring the proceeding to the
Ruling on the Motion for Summary Judgment on
the Pleadings
In its answer to the complaint, Respondent admits
that on or about September I, 1978. Respondent and
the Union entered into two collective-bargaining
agreements, which covered the wages, hours, and
other terms and conditions of employment for Re-
spondent's bartenders and cocktail waitresses, and
Respondent's restaurant employees, respectively. Re-
spondent also admits that it had only two employees
in the bartender and waitress classifications and only
three employees in the restaurant employee classifica-
tion on or about September 1, and that it commenced
operations about September 9, 1978. Respondent fur-
ther admits that [t]he employees hired in [these clas-
sifications] on or about September 1, 1978, were not
substantial and representative of the total employees
projected or actually employed in these classifica-
tions." Respondent, however, denies that it engaged
in unfair labor practices affecting commerce within
the meaning of Section 8(a)(2) and (1) of the Act. In
its response to the Notice To Show Cause, Respon-
dent reiterates its admission of all matters asserted in
the complaint, except the conclusionary allegation
that its conduct constituted a violation of the Act.
Respondent acknowledges that no issue of material
fact exists in this case and requests that the Board
issue an appropriate ruling on the General Counsel's
Motion for Summary Judgment on the Pleadings.
It is well established that an employer which recog-
nizes and executes a collective-bargaining agreement
with a union at a time when it does not employ a
substantial and representative complement of its pro-
jected work force in the relevant bargaining unit, and
at a time when it is not engaged in normal operations.
violates Section 8(a)(2) and (1) of the Act.' Respon-
dent has admitted that its complement of employees
on September 1, 1978, was not substantial and repre-
sentative of the total employees projected or actually
employed in the classifications covered by the collec-
tive-bargaining agreements. Respondent has admitted
I AIed Products (orporation aind ais uhstidlmln . ArailU Malnuctwirr ng &
Equipmern (,. Inc. 220 NRB 712, 735 I1975). and cases cited therein.
242 NLRB No. 199
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it did not commence operations until September
9, 1978, subsequent to its recognition of the Union
and the execution of the collective-bargaining agree-
ments. Under these circumstances, it is clear that the
employees covered by the collective-bargaining
agreements have not been accorded their right to se-
lect a bargaining representative, but have had a bar-
gaining representative imposed upon them. We there-
fore find that, by recognizing the Union and by
executing collective-bargaining agreements with the
Union at a time when Respondent did not employ a
substantial and representative work force and was not
engaged in normal operations, Respondent rendered
unlawful support and assistance to the Union and in-
terfered with, restrained, and coerced its employees in
the exercise of their Section 7 rights in violation of
Section 8(a)(2) and (1) of the Act. Accordingly, we
grant the General Counsel's Motion for Summary
Judgment on the Pleadings.
Upon the retire record in this proceeding, the
Board makes the following:
FINDINGS OF FA(cT
1. THE BUSINESS OF RESPONDENT
In its answer to the complaint, Respondent admits
the following: Bootlegger Trails, Inc., is a Montana
corporation, and Northwest Motor Inn is a limited
partnership, both of which have their office and place
of business in Great Falls, Montana, where they are
engaged in the operation of the Sheraton Great Falls,
Inn, including hotel, restaurant, and lounge facilities
and services. During the past 12 months, which pe-
riod is representative of all times material herein, in
the course and conduct of its business operations, Re-
spondent had gross sales of goods and services valued
at in excess of $500,000. During the same period, Re-
spondent sold and shipped goods or provided services
from its facilities within the State of Montana to cus-
tomers outside the said State. or sold and shipped
goods or provided services to customers within said
State, which customers were themselves engaged in
interstate commerce by other than indirect means, of
a total value of in excess of $50,000; and Respondent
purchased and caused to be transferred and delivered
to its facilities within the State of Montana goods and
materials valued at in excess of $50,000 directly from
sources outside said State, or from suppliers within
said State which in turn obtained such goods and ma-
terials directly from sources outside said State.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. Accordingly, we
find that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel, Restaurant Employees and Bartend-
ers International Union Local 101, AFL-CIO, is, and
has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
11. I II NIAIR I.ABOR PRA('I(IES
As set forth above, we find that, by recognizing and
executing collective-bargaining agreements with the
Union at a time when Respondent did not employ a
substantial and representative work force and was not
engaged in normal operations, Respondent violated
Section 8(a)(2) and (1) of' the Act.
IV. 'IlE FIIE(I )1 IFtI UNFAIR ABOR PRACTICES
UPON (COMMEIR(CE
The activities of Respondent set forth above, occur-
ring in connection with the operations described in
section I, above, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and
the free flow of commerce.
V. REMEDY
Having found that Respondent had engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(2) and (1) of the Act, we shall
order that it cease and desist from recognizing or
dealing with the Union as the bargaining representa-
tive of its employees, unless and until the Union is
certified by the Board as the exclusive representative
of said employees. Additionally, we shall order Re-
spondent to cease giving effect to the collective-bar-
gaining agreements which Respondent and the Union
executed on September 9, 1978, or any extension, re-
newal, or modification thereof, provided, however,
that nothing herein shall be construed as requiring
variance in any wage, hour, or other term or condi-
tion of employment which Respondent has estab-
lished in the performance of these agreements, or to
prejudice the assertion by employees of any rights
they may have acquired thereunder.2
CON(.USIONS OF LAVW
I. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
The complaint does not allege hal the collectlie-hargaining agreements
between Respondent and he nion proided for deduction of union dues
from emnplosee earnings or that Respondent unlawfull 5 deducted such dues.
1256
BOOTLEGGER TRAIL. INC.
2. Hotel, Motel, Restaurant Employees and Bar-
tenders International Union Local 101, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
3. By recognizing the above-named labor organiza-
tion and executing collective-bargaining agreements
with said Union at a time when Respondent did not
employ a substantial and representative complement
of its projected work force and at a time when it was
not engaged in normal operations, Respondent ren-
dered unlawful support and assistance to the Union
and thereby violated Section 8(a)(2) of the Act.
4. By the foregoing, Respondent interfered with,
restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act and
thereby violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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 Rela-
tions Board hereby orders that the Respondent,
Sheraton Great Falls Inn d/b/a Bootlegger Trail,
Inc. and Northwest Motor Inn. Great Falls, Mon-
tana, its officers, agents, successors, and assigns. shall:
1. Cease and desist from:
(a) Recognizing or dealing with Hotel, Motel, Res-
taurant Employees and Bartenders International
Union Local 101, AFL-CIO, as the bargaining repre-
sentative of its employees unless and until said labor
organization is certified by the Board as the exclusive
bargaining representative of said employees.
(b) Giving effect to, performing, or in any manner
enforcing collective-bargaining agreements entered
into on September 1, 1978, between Respondent and
Hotel, Motel, Restaurant Employees and Bartenders
International Union Local 101, AFL-CIO, or to any
modification, renewal, or extension thereof, unless
and until said labor organization is certified by the
National Labor Relations Board as the exclusive bar-
gaining representative of its employees, provided,
however, that nothing herein shall require Respon-
dent to vary any wage, hour, or other term or condi-
tion of employment which Respondent has estab-
lished in the performance of these agreements, or to
prejudice the assertion by employees of any rights
they may have acquired thereunder.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their Section 7 rights.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Withdraw and withhold recognition from Ho-
tel, Motel, Restaurant Employees and Bartenders In-
ternational Union Local 101. AFL-CIO, as the repre-
sentative of its employees for the purposes of
collective bargaining, unless and until the said labor
organization has been duly certified by the National
Labor Relations Board as the exclusive bargaining
representative of such employees.
(b) Post at its premises in Great Falls. Montana,
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Re-
gional Director for Region 19, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous 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 19, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that 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
National 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 EM PLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, gives you, a.
employees, certain rights including the right:
To engage in seltf-organization
To form, join, or help a union
To bargain collectively through a represent-
ative of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT recognize or deal with Hotel,
Motel, Restaurant Employees and Bartenders
International Union Local 101, AFL-CIO as
the bargaining representative of our employees,
unless and until that Union has been certified as
the exclusive bargaining representative of our
employees by the National Labor Relations
Board.
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We WILL NOT give effect to, perform, or in any
manner enforce the collective-bargaining agree-
ments made with Hotel, Motel, Restaurant Em-
ployees and Bartenders International Union Lo-
cal 101, AFL CIO, dated September 1, 1978, or
any modification, renewal, or extension thereof,
unless and until the labor organization has been
certified by the Board as the exclusive bargaining
representative of our employees, provided, how-
ever that nothing herein shall require us to vary
any wage, hour, or other term or condition of
employment which we have established in the
performance of these agreements or to prejudice
the assertion by employees of any rights they
may have acquired thereunder.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
WE WILL withdraw and withhold recognition
from Hotel, Motel, Restaurant Employees and
Bartenders International Union Local 101,
AFL-CIO, as the representative of our employ-
ees for the purposes of collective bargaining, un-
less and until the said labor organization has
been duly certified by the National Labor Rela-
tions Board as the exclusive bargaining repre-
sentative of such employees.
SHERATON GREAT FALLS INN D/B/A BOOT-
LEGGER TRAIL, IN(C. AND NORIHWEST MO-
TOR INN
1258