Chicago Health & Tennis Clubs, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1976

226 N.L.R.B. 1202 (N.L.R.B. 1976)

1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago Health & Tennis Clubs , Inc. and Retail
Clerks Union Local 1540, Retail Clerks Internation-
al Association , AFL-CIO. Case 13-CA-15374
November 29, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
Upon a charge filed on April 27, 1976, and a first
amended charge filed on May 20, 1976, by Retail
Clerks Union Local 1540, Retail Clerks International
Association, AFL-CIO, herein called the Union, and
duly served on Chicago Health and Tennis Clubs,
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 13, issued a com-
plaint and notice of hearing on May 28, 1976, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National La-
bor Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative 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 April 15, 1976,
following a Board election in Case 13-RC-13864 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about April 19, 1976, and at all times there-
after, Respondent has refused, and continues to date
to refuse, to bargain collectively with the Union as
the exclusive bargaining representative, although the
Union has requested and is requesting it to do so.
The complaint also alleges that Respondent made
certain unilateral changes, as described below. On
June 9, 1976, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations in the complaint. Specifically, Respondent
admitted that it unilaterally made changes with re-
spect to rates of pay, wages, hours of employment,
and other terms and conditions of employment of the
employees in the certified unit, in that it unilaterally
i Official notice is taken of the record in the representation proceeding,
Case 13-RC-13864, as the term "record" is defined in Secs 102 68 and
102 69(g) of the Board's Rules and Regulations , Series 8 , as amended See
LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C A 4,
1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26
(C A 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va , 1967),
Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 C A 7 , 1968), Sec
9(d) of the NLRA, as amended
changed existing vacation benefits and instituted
new vacation benefits, instituted sick days, and insti-
tuted paid holidays. Respondent denied only that the
unit as certified is an appropriate unit.
On June 16, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment.
- Subsequently, on June 28, 1976, the Board issued
an order transferring the proceeding to the Board
and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent attacks the
Union's certification on the basis of the appropriate-
ness of the unit.
Review of the record herein reveals that, pursuant
to a Decision and Direction of Election in Case 13-
RC-13864,2 an election was held on April 7, 1976,
which the Union won. Following a request by the
Union that the Respondent bargain collectively in
good faith with respect to the rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment, the Respondent refused to rec-
ognize and bargain with the Union as the exclusive
collective-bargaining representative of its employees
in the certified bargaining unit, and the Respondent
made unilateral changes in rates of pay, wages, hours
of employment, and other terms and conditions of
employment. Respondent admitted that its refusal to
bargain was for the purpose of testing the Union's
certification. Respondent admitted also that it insti-
tuted unilateral changes in certain terms and condi-
tions of employment.
In response to a Motion for Summary Judgment,
an adverse party may not rest upon denials in its
pleadings, but must present specific facts which dem-
onstrate that there are material facts in issue which
require a hearing.; Respondent in the instant case
presented no material issues or facts not admitted or
previously determined. It is well settled that in the
absence of newly discovered or previously unavail-
2 On April 5, 1976, by direction of the Board , the Respondent 's request
for review of the Regional Director's Decision and Direction of Election
was denied as it raised no substantial issues warranting review
3 Western Electric Company, Hawthorne Works, 198 NLRB 623 (1972)
226 NLRB No. 178
CHICAGO HEALTH & TENNIS CLUBS
able evidence or special circumstances a respondent
in a proceeding alleging a violation of Section 8(a)(5)
is not entitled to relitigate issues which were or could
have been litigated in a prior representation proceed-
ing.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent operates 13 health clubs in the
Chicago metropolitan area, including the Schaum-
burg facility, all of which are basically similar in their
operations. Health & Tennis Corporation of America
(HTCA) is the sole stockholder of Chicago Health
Club Fair Lady, Inc. (Fair Lady), which operates
three health clubs in the Chicago metropolitan area.
In addition to the Respondent and Fair Lady,
HTCA owns approximately 20 other similar subsid-
iaries across the country, operating a total of 88
health clubs.
The Respondent's central office is located at 230
West Monroe Street, Chicago, which is in Chicago's
central business district. There are three other health
clubs within the city of Chicago and one each in
Schaumburg, Highland Park, Mount Prospect, Old
Orchard (Skokie), Morton Grove, Park Ridge, Elm-
hurst, Oak Park, Oak Brook, LaGrange, Evergreen
Park, and Glenwood, all in Illinois and in the Metro-
politan Chicago area. The Schaumburg facility is 28
miles from the Monroe Street office.
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 the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assertjuris-
diction herein.
'See Pittsburgh Plate Glass Co v N L R B. 313 US 146, 162 ( 1941).
Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
Il. THE LABOR ORGANIZATION INVOLVED
1203
Retail Clerks Union Local 1540, Retail Clerks In-
ternational Association , AFL-CIO , is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All full-time and regular part-time employees,
including sales trainees, floor supervisors, in-
structors, instructresses, locker room attendants,
hygiene maintenance employees, receptionists,
masseurs and masseuses at the Employer's facil-
ity, now located at 1020 Meacham Road,
Schaumburg, Illinois; but excluding all club
managers, assistant managers, area supervisors,
assistant area supervisors, head tennis profes-
sional, professional employees, guards and su-
pervisors as defined in the Act.
2. The certification
On April 7, 1976, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 13, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent.
The Union was certified as the collective-bargain-
ing representative of the employees in said unit on
April 15, 1976, and the Union continues to be such
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about April 19, 1976, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about April 19, 1976, and continuing at all
times thereafter to date, the Respondent has refused,
and continues to refuse, to recognize and bargain
with the Union as the exclusive representative for
collective bargaining of all employees in said unit.
Furthermore, Respondent unilaterally made changes
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment
of employees in the certified unit.
Accordingly, we find that the Respondent has,
since April 19, 1976, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Chicago Health & Tennis Clubs,
Inc., set forth in section III, above, occurring in con-
nection with its operations described in section I,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
We shall order that it cease and desist from making
unilateral changes in the terms and conditions of em-
ployment, and that it, upon request, rescind any and
all such unilateral changes made.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Chicago Health and Tennis Clubs, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Clerks Union Local 1540, Retail Clerks
International Association, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time employees,
including sales trainees , floor supervisors, instructors,
instructresses, locker room attendants, hygiene main-
tenance employees, receptionists, masseurs and mas-
seuses at the Employer's facility, now located at 1020
Meacham Road, Schaumburg, Illinois; but excluding
all club managers, assistant managers , area supervi-
sors, assistant area supervisors, head tennis profes-
sional, professional employees, guards and supervi-
sors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since April 15, 1976, the above-named labor
organization has been and now is the certified and
exclusive 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 April 19, 1976, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. By instituting unilateral changes with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment in the certified
unit, without consultation with the Union, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.'
5 Member Walther would deny the motion and dismiss the complaint
herein on the ground that the single -store unit is inappropriate for collective
bargaining
CHICAGO HEALTH & TENNIS CLUBS 1205
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,
Chicago Health & Tennis Club, Inc., 1020 Mea-
cham Road, Schaumburg, Illinois, 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 con-
ditions of employment with Retail Clerks Union Lo-
cal 1540, Retail Clerks International Association,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time and regular part-time employees,
including sales trainees, floor supervisors, in-
structors, instructresses, locker room attendants,
hygiene maintenance employees, receptionists,
masseurs and masseuses at the Employer's facil-
ity, located at 1020 Meacham Road, Schaum-
burg, Illinois; but excluding all club managers,
assistant managers, area supervisors, assistant
area supervisors, head tennis professional, pro-
fessional employees, guards and supervisors as
defined in the Act.
(b) Unilaterally changing rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment of the employees in the certified
unit, without consultation with the above-named la-
bor organization.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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, rescind any and all unilateral
changes made with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment, and reinstate any and all such
provisions with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment as were in effect prior to Respondent's
unilateral changes.
(b) 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 under-
standing is reached, embody such understanding in a
signed agreement.
(c) Post at 1020 Meacham Street, Schaumburg, Il-
linois, copies of the attached notice marked "Appen-
dix." 6 Copies of said notice, on forms provided by
the Regional Director for Region 13 after being duly
signed by Respondent's representative, shall be post-
ed 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.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6In 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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Retail
Clerks Union Local 1540, Retail Clerks Interna-
tional Association, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT institute unilateral changes with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, without
prior consultation with the above-named Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, rescind such unilateral
changes already made, specifically unilateral
changes made with respect to vacation benefits,
sick days, and paid holidays, and we will rein-
state any and all provisions relating to vacation
benefits, sick days, and paid holidays which
were in effect at the time of the unilateral
changes.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached, embody such understanding in a signed
agreement . The bargaining unit is:
All full-time and regular part-time employ-
ees, including sales trainees , floor supervisors,
instructors , instructresses , locker room atten-
dants, hygiene maintenance employees , recep-
tionists , masseurs and masseuses at the Em-
ployer's facility, located at 1020 Meacham
Road, Schaumburg , Illinois; but excluding all
club managers , assistant managers, area su-
pervisors, assistant area supervisors , head ten-
nis professional, professional employees,
guards, and supervisors as defined in the Act.
CHICAGO HEALTH & TENNIS CLUBS, INC.