Frontier Hotel

National Labor Relations Board - Board Decisions

Jun 12, 1984

270 N.L.R.B. 1142 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Summa Corporation d/b/a Frontier Hotel and Gen-
eral Sales Drivers, Delivery Drivers and Help-
ers, Local 14, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 31-CA-12921
12 June 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
Upon a charge filed 9 March 1983 and an
amended charge filed 11 April 1983 by General
Sales Drivers, Delivery Drivers and Helpers, Local
14, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, the
Union, and duly served on Summa Corporation
d/b/a Frontier Hotel, the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 31, issued a com-
plaint 14 June 1983, against the Respondent, alleg-
ing that the Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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,
amended charge, and complaint and notice of hear-
ing 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 9 November
1982, following a Board election in Case 31-RC-
3680, the Union was duly certified as the exclusive
collective-bargaining representative of the Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing about 19 November
1982, and at all times thereafter, the Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, by unilaterally changing
medical and dental insurance coverage for employ-
ees, without prior notice to or bargaining with the
Union, although the Union has requested and is re-
questing the Respondent to bargain. Thereafter, the
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On 29 July 1983 counsel for the General Counsel
filed directly with the Board a Motion for Summa-
Official notice is taken of the record in the representation proceed-
ing, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Ca v. Penello, 269 F.Supp. 573 (D.C.Va.
1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir.
1968); Sec. 9(d) of the NLRA, as amended.
270 NLRB No. 166
ry Judgment, with exhibits attached. Subsequently,
on 3 August 1983 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. The
Respondent thereafter filed a response to the
Notice to Show Cause.
The National Labor Relations Board has delegat-
ed its authority 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, the Respondent admits
the request to bargain and its unilateral changes of
insurance coverage, but attacks the Union's certifi-
cation on due process grounds, based on its conten-
tions previously made in the underlying representa-
tion proceeding. Specifically, the Respondent con-
tends that it was improperly denied a hearing with
respect to certain of its objections to conduct af-
fecting the results of the second election in Case
31-RC-3680, and by the Board's refusal to order
the Regional Director for Region 31 to transfer to
the Board the Region's investigatory file concern-
ing the Respondent's objections, prior to certifying
the Union in Frontier Hotel, 265 NLRB 343 (1982).
Review of the record herein, including the
record in Case 31-RC-3680, reveals that pursuant
to the Board's 31 December 1980 "Order Vacating
Decision and Order, Rescinding Certification and
Remanding Proceedings to the Regional Director
For Second Election and Direction of Second
Election," and a Stipulation for Certification Upon
Consent Election, a second election was held 7
February 1981 resulting in a vote of 160 for, and
68 against, the Union. 2 Thereafter, the Respondent
filed timely objections to conduct affecting the re-
sults of the election alleging, in substance, that (1)
during the election campaign the Union made mis-
representations of fact concerning job security and
'The first election, which the Union won, was conducted 21 January
1977 pursuant to the Stipulation for Certification Upon Consent Election.
Subsequently, on 25 August 1978 the Board certified the Union as the
exclusive bargaining representative of the employees in the unit stipulated
to be appropriate. Thereafter, in Frontier Hotel, 242 NLRB 590 (1979),
the Board issued a Decision and Order, in which it granted the General
Counsel's earlier Motion for Summary Judgment, finding that the Re-
spondent had violated Sec. 8(aXl) and (5) of the Act by refusing to rec-
ognize and bargain with the Union. The Respondent petitioned the
United States Court of Appeals for the Ninth Circuit for review of the
Board's bargaining order, and the Board cross-petitioned for enforce-
ment. In Frontier Hotel v. NLRB, 625 F.2d 293 (9th Cir. 1980), the court
denied enforcement of the Board's Order. Accordingly, on 31 December
1980 the Board issued its "Order Vacating Decision and Order, Rescind-
ing Certification and Remanding Proceedings to the Regional Director
for Second Election and Direction of Second Election."
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FRONTIER HOTEL
strike procedures in the event of a union victory in
the election; (2) union agents and organizers of the
Union represented to employees that, if the Union
did not win the election, there would be mass dis-
charges for retaliatory reasons, and made other co-
ercive statements to employees; and (3) a local
newspaper published articles attempting unfairly to
influence the outcome of the election by mischar-
acterizing the results of the first election and by re-
porting results of a statistically improbable poll of
employees prior to the second election.
After investigation, the Regional Director issued
his Report on Objections in which he recommend-
ed that the Respondent's objections be overruled in
their entirety. Thereafter, the Respondent filed
timely exceptions to the Regional Director's report,
contending, inter alia, that it was improperly
denied a hearing on its objections. At the same
time, the Respondent filed a "Motion For Order
Directing Regional Director To Transmit Record,"
requesting that the Board require that the Regional
Director transmit the investigatory case file on the
objections to the Board. On 9 November 1982 the
Board, in Frontier Hotel, 265 NLRB 343, having
considered the Regional Director's report, the Re-
spondent's exceptions thereto, and the entire
record, adopted the findings and recommendations
of the Regional Director and certified the Union as
the exclusive bargaining representative of the em-
ployees in the unit stipulated to be appropriate.
On 21 December 1982, pursuant to a charge filed
by the Union against the Respondent in Case 31-
CA-12665, the General Counsel issued a complaint
and notice of hearing against the Respondent, al-
leging that the Respondent had engaged in and was
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act by refusing to bargain with the
Union as the exclusive bargaining representative of
its employees. After the General Counsel filed a
Motion for Summary Judgment with the Board in
that case, the Board on 23 May 1983 issued its De-
cision and Order in Frontier Hotel, 266 NLRB No.
155 (not reported in bound volumes), finding that
the Respondent had violated Section 8(a)(5) and (1)
of the Act by refusing to bargain with the Union
since about 23 November 1982.
It appears that the Respondent is attempting in
this proceeding to relitigate issues fully litigated
and finally determined in the prior representation
proceeding.
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.s
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the
prior representation proceeding, and the Respond-
ent does not offer to adduce at a hearing any
newly discovered or previously unavailable evi-
dence, nor does it allege that any special circum-
stances exist herein which would require the Board
to reexamine the decision made in the representa-
tion proceeding. We therefore find that the Re-
spondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
In this proceeding, the Respondent contends that
due process entitled it to a hearing on its objections
to the election.4 This is precisely the same issue
raised by the Respondent in Frontier Hotel, 266
NLRB No. 155. 5 We reject the Respondent's con-
tention for the reasons stated in our decision in that
case. Accordingly, we conclude that the Respond-
ent, by unilaterally changing medical and dental in-
surance coverage for employees, without providing
the Union with prior notice or an opportunity to
bargain, has violated Section 8(a)(5) and (1) of the
Act, and we grant the Motion for Summary Judg-
ment.
On the basis of the entire record, the Board
makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation with
an office and principal place of business located in
Las Vegas, Nevada, where it is engaged in the op-
eration of a hotel and casino. In the course and
conduct of its business operations, the Respondent
annually derives gross revenues in excess of
$500,000, and annually purchases and receives
goods or services valued in excess of $50,000, di-
rectly from suppliers located outside the State of
Nevada.
s See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Rules
and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
' The Respondent also contends that the Board in the underlying rep-
resentation case improperly refused to order the Regional Director to
transmit to the Board the entire investigatory file respecting the objec-
tions to the election before certifying the Union as the exclusive bargain-
ing representative of certain of the Respondent's employees in Frontier
Hotel, 265 NLRB 343. We reject this contention for the reasons indicated
in Frontier Hotel, 266 NLRB No. 155.
I We note that the United States Court of Appeals for the Ninth Cir-
cuit, by memorandum issued 5 April 1984, enforced the Board's Order in
that prior proceeding.
Member Dennis finds that the Ninth Circuit's decision enforcing the
Board's previous order is dispositive of the Respondent's challenge to the
Union's certification, which the Respondent renews in the instant case.
Accordingly, she finds it unnecessary to consider the Respondent's asser-
tion that the Board should have reviewed the entire investigatory file in
the underlying representation case.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, on the basis of the foregoing, that the
Respondent 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
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
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 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.
2. The certification
On 7 February 1981 a majority of the employees
of the Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 31, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
9 November 1982, 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 the Respondent's
Refusal and Unilateral Changes
Commencing about 19 November 1982, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Coin-
mencing about 19 November 1982, and continuing
at all times thereafter to date, the Respondent has
refused, and continues to refuse, to bargain with
the Union as the exclusive representative for col-
lective bargaining of all employees in said unit, by
unilaterally changing its medical and dental insur-
ance coverage for employees in the bargaining
unit.
Accordingly, we find that the Respondent has,
since about 19 November 1982, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the em-
ployees in the appropriate unit, and that, by such
refusal, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES ON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with its
operations described in section 1, above, have a
close, intimate, and substantial relationship to trade,
traffic, 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 the 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 take certain affirmative action designed to ef-
fectuate the policies of the Act.
Having found that the Respondent unilaterally
changed its terms and conditions of employment by
changing medical and dental insurance coverage
for its employees without first notifying the Union
and affording it an opportunity to bargain, we shall
order the Respondent, upon request of the Union,
to rescind such changes, and to provide the Union
with notice and the opportunity to bargain before
implementing any changes in health insurance cov-
erage affecting employees in the certified bargain-
ing unit. Further, we shall order that the Respond-
ent make whole the unit employees for losses of
benefits, if any, suffered as a result of the Respond-
ent's unilateral changes in medical and dental insur-
ance coverage. In measuring actual damages, em-
ployees should be reimbursed for actual costs to
the extent, if any, that those costs would have been
paid under the health insurance coverage provided
by the Respondent prior to the change in coverage
effectuated by the Respondent about 19 November
1982, but were not covered by the health insurance
1144
FRONTIER HOTEL
coverage provided by the Respondent after that
change was made. We shall order that employees
be made whole for any loss of benefits after 19 No-
vember 1982, and continuing, with interest, until
the date on which the Respondent fully complies
with the terms of our Order. The amounts due
shall be computed in accordance with Ogle Protec-
tion Service, 183 NLRB 682 (1970). See generally
Isis Plumbing Co., 138 NLRB 716 (1962).
The Board, on 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
meaning of Section 2(5) of the Act.
3. All gaming casino dealers, shills, Keno writers
and Keno runners employed by the Employer at its
facility located at 3120 Las Vegas Boulevard
South; excluding all other employees 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 supervisors,
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 9 November 1982 the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By unilaterally changing terms and conditions
of employment about 19 November 1982 by chang-
ing medical and dental insurance coverage for em-
ployees in the bargaining unit without first notify-
ing the Union and affording it an opportunity to
bargain with respect to such changes, the Employ-
er failed and refused to bargain in good faith with
the Union and thereby has violated Section 8(a)(5)
of the Act.
6. By the aforesaid refusal to bargain, the Re-
spondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and co-
ercing, its employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and there-
by has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1).
ORDER
The National Labor Relations Board orders that
the Respondent, Summa Corporation d/b/a Fron-
tier Hotel, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing established terms and
conditions of employment of the employees in the
bargaining unit by changing medical and dental in-
surance coverage without first notifying the Union
of such changes and giving it an opportunity to
bargain with respect to such changes.
(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 which
the Board finds will effectuate the policies of the
Act.
(a) On request of the Union, rescind the changes
in medical and dental insurance coverage made
about 19 November 1982, and immediately reestab-
lish the previously existing coverage.
(b) Prior to effectuating any changes in medical
and dental insurance coverage for unit employees,
notify the Union and afford it an opportunity to
bargain with respect to such changes.
(c) Make whole any employees in the bargaining
unit for losses in benefits, if any, as a result of the
19 November 1982 changes in medical and dental
insurance coverage, in the manner set forth in the
section of our Decision and Order entitled "The
Remedy."
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Las Vegas, Nevada facility copies
of the attached notice marked "Appendix." e
Copies of the notice, on forms provided by the Re-
gional Director for Region 31, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
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
6 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
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 collectively con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with General Sales
Drivers, Delivery Drivers and Helpers, Local 14,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America as
the exclusive representative of the employees in the
bargaining unit described below by unilaterally
changing medical and dental insurance for such
employees.
.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 make whole any employees in the unit
for losses of benefits, if any, with interest suffered
as a result of our unilateral changes in medical and
dental coverage.
WE WILL, on request of the Union, rescind the
changes in medical and dental insurance coverage
for employees in the unit described below, which
we made about 19 November 1982, and immediate-
ly reestablish the previously existing coverage.
WE WILL, prior to making any changes in medi-
cal and dental insurance coverage affecting bar-
gaining unit employees, notify the Union of such
proposed changes and afford it an opportunity to
bargain with respect to such changes. The appro-
priate 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 FRON-
TIER HOTEL
1146