Frontier Hotel

National Labor Relations Board - Board Decisions

May 29, 1979

242 N.L.R.B. 590 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Summa Corporation d/b/a Frontier Hotel and Gen-
eral Sales Drivers, Delivery Drivers and Helpers,
Local # 14, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 31 CA-8382
May 29, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Upon a charge filed on September 20, 1978, by
General Sales Drivers, Delivery Drivers and Helpers,
Local # 14, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Summa
Corporation d/b/a Frontier Hotel, herein called Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
31, issued a complaint on September 25, 1978, and an
amended complaint on October 30, 1978, against Re-
spondent, 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,
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 as amended alleges in substance that on Au-
gust 25, 1978, following a Board election in Case 31
RC-3680, the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate' and
that, commencing on or about September 18, 1978,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining rep-
resentative, although the Union has requested and is
requesting it to do so. On October 6 and November
13, 1978, Respondent filed its respective answers to
I Official notice is taken of the record in the representation proceeding.
Case 31-RC-3680, 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 Electrosvysemrs, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968): Golden Age Beverage Co., 167 NLRE 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967):
Follen Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended. The amended complaint at par. 7 incorrectly
cited the representation proceeding as Case 31 -RC 7368. We note, however,
that the factual allegations contained in that paragraph, which Respondent
has admitted, clearly refer to the underlying representation proceeding
herein, Case 31-RC 3680. We note further that Respondent has moved to
reopen the proceeding in Case 31 RC-3680 and to rescind certification for
the reasons raised in defense to the Motion for Summary Judgment, herein,
discussed infra. The motion is hereby denied.
the complaint and amended complaint, admitting in
part, and denying in part, the allegations in the com-
plaint and the amended complaint.
On December 1. 1978. counsel fbr the General
Counsel filed directly with the Board a motion enti-
tled "Motion to Transfer Case To and Continue Pro-
ceedings Before the Board and Motion fr Summary
Judgment," with exhibits attached. Subsequently, on
December 11, 1978, the Board issued an order trans-
ferring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to the Notice To Show
Cause and moved to dismiss the complaint.
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 admits all the
operative factual allegations of the complaint but de-
nies the conclusionary averments on the basis that
applicable law relied on by the Board in ruling upon
objections to the election in the underlying represen-
tation proceeding has now been overruled. The Gen-
eral Counsel contends that Respondent is improperly
seeking to relitigate issues which were raised and de-
cided in the underlying representation case.
Review of the entire record herein, including that
in Case 31-RC 3680, discloses that following the
election on January 21, 1977, Respondent filed timely
objections thereto on January 28, 1977. The objec-
tions were considered by the Regional Director who,
on March 30, 1977, issued his Report on Objections
and recommended that 9 of 10 objections be over-
ruled and that a hearing be held with respect to I
objection.2 In considering, as part of the objections,
certain alleged misrepresentations made by the Union
during the course of the election campaign, the Re-
gional Director noted that they were not substantial
misrepresentations, if indeed they were misrepresen-
tations. and that the employees were in a position
capably to evaluate the issues. Therefore, applying
then-existing law, Hollywood Ceramics Compan, Inc.,
140 NLRB 221 (1962), the Regional Director recom-
mended that the objections based upon the alleged
misrepresentations be overruled.
Respondent filed timely exceptions to the Regional
Director's report, and on August 30, 1977, the Board
2 The Regional Director later issued an erratum on April 13. 1977. correct-
ing a portion of the Report on Objections.
242 NLRB No. 76
590
FRONTIER HOTEL
issued a Decision and Order Directing Hearing'
wherein it adopted the Regional Director's report. 4
Two Members (Member Murphy and then-Member
Walther) indicated in the Decision that they agreed
with the conclusion that the alleged misrepresenta-
tions did not warrant setting aside the election, but
also indicated that their agreement was based upon
the reasons set forth in their opinions in Shopping
Kart Food Market, Inc., 228 NLRB 1311 (1977). In
that case, issued after the Regional Director's report,
a Board majority had overruled Hollywood Ceramics,
supra.
Following the Board's Order of August 30, 1977, a
hearing was held and the Hearing Officer thereafter
issued a report on January 9, 1978, in which he rec-
ommended that the objection heard be overruled.
The Board adopted his recommendation and certified
the Union on August 25, 1978. 5
Subsequently, in early September 1978, the Union
requested Respondent to bargain with it concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment affecting em-
ployees in the unit for which it had been certified.
In a letter to the Union, dated September 11, 1978,
and recieved September 18, 1978, Respondent stated:
We have discussed with counsel the questions
raised by the Board's certification of Local 14
as bargaining agent of our casino employees.
We have decided to take the Board's decision
before the Appellate Court for review. Regret-
ably [sic], the only way we may do this is to de-
cline your request for a meeting to commence
negotiations.
Following this, the instant proceeding was begun
when the Union filed its unfair labor practice charge
on September 20, 1978, with subsequent complaints
issued and with transfer of the proceeding to the
Board, as enumerated above.
We note at the outset of our consideration of this
summary judgment motion that, on December 6,
1978, the Board, with Members Penello and Murphy
dissenting, separately indicated in General Knit of
California, Inc., 239 NLRB 619 (1978), that it would
no longer follow Shopping Karl, supra, in considering
alleged misrepresentations, but insead would return
to the standards set forth in Hollywtood Ceramics, su-
pra. In its brief to the Board, Respondent states that
the alleged misrepresentations which it raised as ob-
jections to the election required resolution through
the hearing process: that since two members of the
Not reported in pnnted volumes of NLRB Decisions
4Member Murph) indicated therein that she would have additionall or-
dered a heanng on Objections III through VI
s237 NLRB 1264 (1978). Member Murphy dissented on the basis that
Objections III through VI should also have been set down for hearing.
Board panel in this proceeding indicated reliance on
Shopping Kart, supra, in overruling those objections
they were indicating that but for Shopping Kart, su-
pra, those objections would have been meritorious;
and, finally, that since Shopping Kart. supra, has been
overruled, the complaint should be dismissed and ap-
propriate action taken with respect to the alleged mis-
representations in the underlying representation pro-
ceeding.
We disagree with Respondent that any previous re-
liance by two panel members upon Shopping Kart in
the representation case proceeding demonstrates that,
but for Shopping Kart, the alleged misrepresentation
objections were meritorious. It is true, however, that a
majority of the panel, in contrast to the Regional Di-
rector, did not consider the alleged misrepresenta-
tions under Hollywood Ceramics standards in the un-
derlying representation proceeding. Therefore, we
have reviewed the merits of the alleged misrepresen-
tation objections under those standards in light of our
Decision in General Knit.6 In so reviewing these al-
leged misrepresentations, we find no basis for dis-
agreeing with the conclusions of the Regional Direc-
tor heretofore set forth, and we adopt his
recommendations on those alleged misrepresenta-
tions.
Respondent has indicated to the Union and to this
Board that it has refused to bargain for the express
purpose of testing the Board's certification of the
Union. Thus, aside from the issue posed by Shopping
Kart and General Knit, discussed above, it appears
that Respondent is seeking to relitigate herein the is-
sues which were fully litigated and decided adversely
to Respondent in the underlying representation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable 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 proceeding.7
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
6 Member Jenkins notes that in the underlying representation proceeding
he agreed with the Regional Director's recommendations concerning the
alleged misrepresentations based on the Regional Director's application of
the standards enunciated in Hollyiood Ceraimils, .upra
*See Pittsburgh Plate Glass Co v N L..RB. 313 U.S 146. 162 1941)
Rules and Regulations of the Board. Secs. 102.671f) and 102 69(c).
591
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we grant the Motion for Summary
Judgment and deny Respondent's motion to dismiss
the complaint.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and we
find that Respondent is now, and has been at all times
material herein, a corporation duly organized under
and existing by virtue of the laws of the State of Dela-
ware, with an office and principal place of business
located in Las Vegas, Nevada, where it is engaged in
the operation of a hotel and casino. In the course and
conduct of its business operations, Respondent annu-
ally purchases and receives goods or services valued
in excess of $50,000 directly from suppliers located
outside the State of Nevada and annually derives
gross revenues in excess of $500,000.
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 and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and we
find that General Sales Drivers, Delivery Drivers and
Helpers, Local #14, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All gaming casino dealers, shills, keno writers
and keno runners employed by Summa Corpora-
tion d/b/a Frontier Hotel at its facility located
at 3120 Las Vegas Boulevard South; excluding
all other employees including casino shift man-
agers, assistant shift managers, pit bosses, pit
floormen, boxmen, slot shift supervisors, floor-
men, slot mechanics, booth cashiers, change
girls, casino cage cashiers, slot cage cashiers, coin
counters and wrappers, pit clerks, credit clerks,
office clerical employees, guards and supervisors
as defined in the Act.
2. The certification
On January 21, 1977, 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 31, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. After consideration of objections to
the election, as fully discussed above, the Union was
certified as the collective-bargaining representative of
the employees in said unit on August 25, 1978, and
the Union continues to be such exclusive representa-
tive within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about September 6, 1978, and
more particularly on September 14, 1978, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
September 18, 1978, and continuing at all times there-
after to date, 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.
Accordingly, we find that Respondent has, since
September 18, 1978, 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 Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening 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-
592
FRONTIER HOTEL
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.
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 commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
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 Con-
struction 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. Summa Corporation d/b/a Frontier Hotel is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. General Sales Drivers, Delivery Drivers and
Helpers, Local # 14, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All gaming casino dealers, shills, keno writers,
and keno runners employed by Summa Corporation
d/b/a Frontier Hotel at its facility located at 3120
Las Vegas Boulevard South, excluding all other em-
ployees, including casino shift managers, assistant
shift managers, pit bosses, pit floormen, boxmen, slot
shift supervisors, floormen, slot mechanics, booth
cashiers, change girls, casino cage cashiers, slot cage
cashiers, coin counters and wrappers, pit clerks, credit
clerks, office clerical employees, guards, and supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collectively bargaining within
the meaning of Section 9(b) of the Act.
4. Since August 25, 1978, 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 September 18, 1978,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive 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. 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. 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.
Summa Corporation d/b/a Frontier Hotel. Las Ve-
gas, Nevada, its officers, agents. successors, and as-
signs, 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 General Sales Drivers,
Delivery Drivers and Helpers, Local -,14, Interna-
tional Brotherhood of Teamsters, Chauffeurs. WVare-
housemen and Helpers of America, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All gaming casino dealers, shills keno writings
and keno runners employed by Summa Corpora-
tion d/b/a Frontier Hotel at its facility located
at 3120 Las Vegas Boulevard South: excluding
all other employees including casino shift man-
agers, assistant shift managers, pit bosses, pit
floormen. boxmen, slot shift supervisors, floor-
men, slot mechanics, booth cashiers, change
girls, casino cage cashiers, slot cage cashiers, coin
counters and wrappers, pit clerks, credit clerks,
office clerical employees, guards and supervisors
as defined in the Act.
(b) 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, 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 understand-
ing is reached, embody such understanding in a
signed agreement.
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its Las Vegas, Nevada, facility copies of
the attached notice marked "Appendix."8 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 31, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places. including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 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 Gen-
eral Sales Drivers, Delivery Drivers and Helpers,
Local # 14, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the
employees in the bargaining unit described be-
low.
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, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All gaming casino dealers, shills, keno writers
and keno runners employed by the Employer
at its facility located at 3120 Las Vegas Boule-
vard South: excluding all other employees in-
cluding casino shift managers, assistant shift
managers, pit bosses, pit floormen, boxmen,
slot shift supervisors, floormen, slot mechanics,
booth cashiers, change girls, casino cage cash-
iers, slot cage cashiers, coin counters and
wrappers, pit clerks, credit clerks, office cleri-
cal employees, guards and supervisors as de-
fined in the Act.
SUMMA CORPORATION D/B/A FRONTIER Ho-
TEL
594