Heavenly Valley Ski Area Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 734 (N.L.R.B. 1974)

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heavenly Valley Ski Area, a California Corporation,
and Heavenly Valley, a Partnership and Laborers
International Local 1276, affiliated with Laborers
International Union of North America , AFL-CIO.
Case 20-CA-9298
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on June 18, 1974, by Laborers
International Local 1276, affiliated with Laborers In-
ternational Union of North America, AFL-CIO,
herein called the Union, and duly served on Heavenly
Valley Ski Area, a California corporation, and Heav-
enly Valley, a partnership, herein collectively called the
Respondent, the General Counsel of the National La-
bor Relations Board, by the Acting Regional Director
for Region 20, issued a complaint and notice of hearing
on July 5, 1974, against Respondent, alleging that Re-
spondent 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 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 March 27, 1974,
following a Board election in Case 20-RC-11789 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about April 2, 1974, and at all times thereafter,
Respondent has refused, and continues to refuse, to
bargain collectively with the Union as the exclusive
bargaining representative, although the Union has re-
quested and is requesting it to do so. On July 16, 1974,
Respondent filed its answer to the complaint admitting
in part, and denying in part, the allegations in the
complaint. The Respondent denies substantially every
allegation in the complaint, including paragraph X
which alleges its refusal to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act.'
I Official notice is taken of the record in the representation proceeding,
Case 20-RC-11789 , as the term "record" is defined in Sees 102 68 and
102 69(g) of the Board's Rules and Regulations , Series 8 , as amended See
LTVElectrosystems, 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,
1957), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7,
1968), Sec 9 (d) of the NLRA
2 In its answer, the Respondent also denies pars I, II(a), (I), (g), and (h),
and III, IV, V, VI, VII, VIII, and IX of the complaint With respect to par
On August 9, 1974, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, with attachments, and on August 15, 1974,
an addendum to the motion.' The General Counsel
directs the Board's attention to certain documents at-
tached thereto and submits that there are no issues of
fact or law requiring a hearing, and moves the Board
to find that the Respondent violated Section 8(a)(5)
and (1) of the Act. Subsequently, on August 27, 1974,
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, with exhibits at-
tached.
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
The thrust of the Respondent's contentions in its
response to the Notice To Show Cause, with attached
exhibits,' is (1) that the Board's summary judgment
procedure is contrary to procedural due process, (2)
that the Respondent has a statutory right to a hearing,
(3) that Respondent's requests for review were not con-
I, attachments submitted with the General Counsel's Motion for Summary
Judgment are Appendixes 19(a) and 19(b), respectively, the latter of which
is an affidavit of service of the charge served on the Respondent, with post
office return receipt attached With respect to Respondent's denials of pars
11(a), (f), (g), and (h), and pars III and V, Appendix 22 shows that the
Respondent's answer, filed on March 6, 1974, Case 20-CA-8836, admits
the allegations which are now denied by the Respondent in the instant
proceeding The Respondent also denies pars IV, VI, and VII of the com-
plaint that the Union is a labor organization, that the unit is appropriate, and
that the Union's certification is valid Those allegations are supported by the
Regional Director's findings in his Supplemental Decision and Certification
of Representative (Appendix 8), and the Board's order denying Respon-
dent's Request for Review thereof As to par 8 of the complaint, Appen-
dixes 13, 15, and 17 all support the Union's request to bargain, and Appen-
dixes 14 and 16 show that no reply or offer to bargain was received from
the Respondent Accordingly, in view of the above, we find the Respon-
dent's denials to be frivolous, and we deem these allegations of the com-
plaint to be admitted Schwartz Brothers, Inc, 194 NLRB 150 (1971), The
May Department Stores Company, 186 NLRB 86 (1970), Carl Simpson
Buick, Inc., 161 NLRB 1389 (1966)
3 The addendum, Appendix 22(a), is a complaint and notice of hearing
issued against the Respondent on February 22, 1974, Case 20-CA-8836
Administrative or official notice is taken of the complaint and the Respon-
dent's answer filed with respect thereto, fn 2, supra, which involves the
same parties as the instant case (20-CA-9298)
° These exhibits are the same as those that the Respondent previously
submitted to the Regional Director in support of its objections to the elec-
tion The Regional Director overruled the objections in their entirety in his
Supplemental Decision and Certification of Representative dated March 27,
1974, and the Board, on May 2, 1974, by telegraphic order, denied Respon-
dent's request for review thereof, as it raised no substantial issues warranting
review Thus, the Respondent is attempting to rehtigate the same issues
which it raised in the representation proceeding, Case 20-RC-11789
215 NLRB No. 129
HEAVENLY VALLEY SKI AREA 735
sidered by a quorum of the Board, and (4) that due
process of law requires that a hearing be conducted
since there are substantial and material issues of fact
related to the validity of the election.
At the outset, we reject Respondent's contention (1)
that the Board's summary judgment procedure is con-
trary to procedural due process. We are cited to no case
in which a court has refused enforcement of a Board
order on the ground that the Board may not use sum-
mary judgment procedure. On the contrary, whenever
the issue has been raised, the courts have uniformly
upheld the Board's authority to utilize such procedure
where there were no issues requiring an evidentiary
hearing.' With respect to (2) and (4) above, it is well
established that parties do not have an absolute right to
a hearing on objections to an election. It is only when
the moving party presents a prima facie showing of
"substantial and material issues" which would warrant
setting aside the election that he is entitled to an eviden-
tiary hearing.' It is clear that, absent arbitrary action,
this qualified right to a hearing satisfies all statutory
and constitutional requirements.' Finally, we reject
'Respondent's contention (3) above, since the decisions
were approved by the Board and the Orders issued
pursuant to their direction.'
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent does not of-
fer to adduce at a hearing any newly discovered 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
the Respondent has not raised any issue which is prop-
erly 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
I THE BUSINESS OF THE RESPONDENT
Heavenly Valley Ski Area, a California corporation,
is, and at all times material herein has been, engaged in
the operation of a tramway and food and beverage
concession at Heavenly Valley.
Heavenly Valley, a partnership, with business offices
in California, is, and at all times material herein has
been, engaged in the operation of a ski resort spanning
the mountainous area from South Lake Tahoe, Cali-
fornia, to Stateline, Nevada.
The partnership memebers of Heavenly Valley are
directors of Heavenly Valley Ski Area.
Heavenly Valley sets the labor policies of Heavenly
Valley Ski Area.
Heavenly Valley has on its payroll employees of
Heavenly Valley Ski Area.
Heavenly Valley Ski Area and Heavenly Valley con-
stitute a single integrated operation.
During the past year, in the course and conduct of
its business operations, Heavenly Valley Ski Area had
gross revenues in excess of $500,000 and purchased in
excess of $5,000 worth of goods directly from outside
the State of California.
During the past year, in the course and conduct of
its business operations, Heavenly Valley sold in excess
of $1 million in lift tickets, of which 5 percent were sold
in Nevada.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
Laborers International Local 1276, affiliated with
Laborers International Union of North America,
AFL-CIO , is a labor organization within the meaning
of Section 2(5) of the Act.
5 See Lyman Printing and Finishing Company, 183 NLRB 1048 (1970),
and cases cited therein
6 Farah Manufacturing Company, Inc., 203 NLRB (1973), ModineManu-
factunng Company, 203 NLRB 543 (1973)
t Amalgamated Clothing Workers ofAmerrca [Winfield Manufacturing
Company, Inc] v N.L.R B, 424 F 2d 818, 828 (C A D C, 1970)
8 We find no merit in Respondent 's quorum contention as the decision
denying review of the Regional Director's decision in Case
20-RC- 11789 resulted from the personal participation of the Board Mem-
bers and was their decision See KFC National Management Company, 214
NLRB No 29 (1974), In 3, The Prudential Insurance Company ofAmerica,
215 NLRB No 30'(1974)
9 See Pittsburgh Plate Glass Co v NL.R B, 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
III THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All ski lift operators and attendants, tram opera-
tors and attendants, ski patrolmen, skiing and rac-
ing instructors, equipment operators and parking
lot attendants; excluding all other employees, of-
fice clerical employees, guards and supervisors as
defined in the Act.
2. The certification
On February 23, 1974, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Direc-
tor for Region 20, designated the Union as their repre-
sentative for the purpose of collective bargaining with
the Respondent. The Union was certified as the collec-
tive-bargaining representative of the employees in said
unit on March 27, 1974, 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 April 2, 1974, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit. Commencing on or about
April 2, 1974, 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.
Accordingly, we find that the Respondent has, since
April 2, 1974, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
and that, by such refusal, Respondent has engaged in
and is engaging 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 UPON COMMERCE
The activities of the 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 commerce
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 meaning
of Section 8(a)(5) and (1) of the Act, we shall order that
it cease and desist therefrom, and, upon request, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a 'signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962); Com-
merce 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); Burnett Construction Com-
pany, 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. Heavenly Valley Ski Area, a California corpora-
tion, and Heavenly Valley, a partnership, is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Laborers International Local 1276, affiliated with
Laborers International Union of North America,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All ski lift operators and attendants, tram opera-
tors and attendants, ski patrolmen, skiing and racing
instructors, equipment operators and parking lot at-
tendants; excluding all other employees, 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 March 27, 1974, 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 bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing on or about April 2, 1974, 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 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 in-
terfering with, restraining, and coercing, employees in
the exercise of the rights guaranteed to them in Section
HEAVENLY VALLEY SKI AREA 737
7 of the Act, and thereby has engaged in and is engag-
ing 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 Re-
lations Act , as amended , the National Labor Relations
Board hereby orders that Respondent , Heavenly Valley
Ski Area , a California corporation , and Heavenly Val-
ley, a partnership, 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 Laborers International Local
1276, affiliated with Laborers International Union of
North America , AFL-CIO, as the exclusive bargaining
representative of its employees in the following appro-
priate unit:
All ski lift operators and attendants, tram oper-
ators and attendants , ski patrolmen , skiing and
racing instructors , equipment operators and park-
ing lot attendants ; excluding all other employees,
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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its South Lake Tahoe, California, ski
resort copies of the attached notice marked
"Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, 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 in-
sure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 con-
cerning rates of pay, wages , hours , and other terms
and conditions of employment with Laborers In-
ternational Local 1267, affiliated with Laborers
International Union of North America,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner inter-
fere 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 representative of all
employees in the bargaining unit described below,
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. The bargaining
unit is:
All ski lift operators and attendants, tram
operators and attendants , ski patrolmen , skiing
and racing instructors, equipment operators
and parking lot attendants ; excluding all other
employees, office clerical employees , guards and
supervisors as defined in the Act.
HEAVENLY VALLEY SKI AREA, A
10 In the event that this Order is enforced by a Judgment of a United
CALIFORNIA CORPORATION, AND
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 HEAVENLY VALLEY, A PARTNERSHIP
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "