Jessie Beck's Riverside Hotel

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 907 (N.L.R.B. 1977)

JESSIE BECK'S RIVERSIDE HOTEL
Beck Corporation, d/b/a Jessie Beck's Riverside
Hotel and Casino and Hotel-Motel-Restaurant
Employees and Bartenders Union, Local 86, Hotel
and Restaurant Employees and Bartenders Inter-
national Union, AFL-CIO. Case 20-CA-12107
August 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge and amended charges filed on
November 4, 11, and 19 and December 2, 7, and 9,
1976, respectively, by Hotel-Motel-Restaurant Em-
ployees and Bartenders Union, Local 86, Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, herein called the Union, and duly
served on Beck Corporation, d/b/a Jessie Beck's
Riverside Hotel and Casino, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 20, issued a complaint and
notice of hearing on December 22, 1976, against
Respondent, 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 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 July 6, 1976,
following a Board election in Case 20-RC-12952, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about July 8, 1976, and at all times
thereafter, 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.
On January 3, 1977, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On April 7, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. On April 13, 1977, the Charging Party
filed a "Brief in Support of Motion for Summary
Judgment." Subsequently, on April 19, 1977, the
Board issued an order transferring the proceeding to
I Official notice is taken of the record in the representation proceeding.
Case 20-RC-12952. as the term "record" is defined in Secs. 102.68 and
102.6 9 {g) of the Board's Rules and Regulations. Series 8, as amended. See
I TI Electrosirtems, Inc.. 166 NIRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4.
231 NLRB No. 125
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 entitled "Opposi-
tion to Motion for Summary Judgment and Motion
to Consolidate Proceedings" and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated 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 response to the
Notice To Show Cause, Respondent, in substance,
contests the Board's assertion of jurisdiction over its
operations and denies the appropriateness of the
bargaining unit and the validity of the Union's
certification because of certain objections to the
election and exceptions to rulings thereon. Counsel
for the General Counsel basically argues that
Respondent is attempting here to relitigate issues
which were raised and determined in the underlying
representation proceeding which it may not do. We
agree with the General Counsel.
Review of the entire record, including that in Case
20-RC-12952, discloses that on September 29, 1975,
the Regional Director issued her Decision and
Direction of Election in which she asserted jurisdic-
tion over the Respondent contrary to its contention
that the Board's assertion of jurisdiction over the
gaming industry was arbitrary and capricious and in
which she found appropriate a unit of all full- and
part-time employees, excluding certain classifications
of employees whom the Respondent would have
included. The Respondent filed a timely request for
review and/or motion to remand reiterating its
jurisdictional and unit inclusion contentions. On
October 31, 1975, the Board denied the request as
raising no substantial issues warranting review.
The Union won the election conducted on Novem-
ber 5, 1975. Respondent filed timely objections in
which it alleged, in substance, (I) its unit conten-
tions; (2) that the Union falsely informed employees
in the engineering department that if it won the
election they would be represented by another union;
(3) that employees did not receive sufficient notice of
the date and times of the election because the notices
of the election were not received by Respondent until
October 31, 1975, a legal holiday in Nevada; (4) that
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):
Follerr Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7. 1968); Sec.
9(d) of the NLRA. as amended.
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more than 26 employees were prevented from voting
by the Board's arbitrarily setting the election on a
date other than that designated by Respondent; (5)
that union representatives threatened and intimidat-
ed employees to vote for the Union; (6) that
Respondent's supervisors participated in the union
organization efforts; (7) that an employee who was
discharged prior to the election was allowed to vote;
(8) that the Board agent conducting the election
failed to void ballots where the "X" was placed in the
"YES" square which contained unusual markings
which could clearly identify the voters; and (9) that
the Board agent conducting the election voided the
ballot where the "X" was placed in the "NO" square.
After investigation, the Acting Regional Director
issued a supplemental decision and notice of hearing
on December 23, 1975, overruling all objections
except Objection 2, dealing with the misrepresenta-
tion, and Objection 5, dealing with threats to
employees, both of which raised substantial and
material issues of fact requiring a hearing.
Respondent filed with the Board a timely request
for review in which, inter alia, it specifically reiterat-
ed Objection 1, dealing with the unit; Objection 4,
dealing with the alleged voting deprivation of 26
employees; and Objections 7 and 8, dealing with the
marking of ballots. On February 10, 1976, the Board
denied the request as raising no substantial issues
warranting review. After hearing, the Hearing Officer
issued, on May 27, 1976, his report on objections in
which he recommended that Objections 2 and 5 be
overruled. The Respondent filed timely exceptions
and supporting brief with the Regional Director.2 On
July 6, 1976, the Regional Director issued a supple-
mental decision and Certification of Representative
adopting, with additional reasons, the Hearing
Officer's recommendations that Objections 2 and 5
be overruled and certifying the Union.
Respondent then timely filed a request for review
contending that its Objection 2 should have been
sustained on the basis of its offers of proof or
alternatively that a de novo hearing be held to receive
relevant evidence. This request was telegraphically
denied by the Board on September 16, 1976, as
raising no substantial issues warranting review.
It is well settled that in the absence of newly
discovered 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.3
The Hearing Officer had inadvertently directed that exceptions be filed
with the Board rather than with the Regional Director. After the Heanng
Officer corrected the error, the Respondent timely filed its exceptions with
the Regional Director, and the Board, on Respondent's motion and by
Order dated June 28, 1976, revoked its Second Supplemental Decision and
Except as hereinafter set forth, all issues raised by
the Respondent in this proceeding were or could
have been litigated in the prior representation
proceeding, and the Respondent does not offer 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, there-
fore, find that the Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding.
Respondent's answer to the complaint also denies
(1) the Union's request to bargain and its refusal to
do so, and (2) the filing and service of the charge and
the amended charges. With respect to (1), attached to
the Motion for Summary Judgment as Appendixes
19 and 20 are a letter dated September 22, 1976, from
the Union to the Respondent requesting bargaining,
and an affidavit by Howard Lawrence, administrator
of the Union, to which are attached receipts for
certified mail showing receipt of the letter by the
Respondent on September 24, 1976, as well as receipt
by the Respondent of the Union's earlier bargaining
request by letter dated July 8, 1976. The affidavits
attached to the Respondent's brief in opposition to
the Motion for Summary Judgment, as Exhibits C
and D, do not controvert the facts as to the Union's
September 22, 1976, request to bargain and the
Respondent's failure to respond thereto. According-
ly, we deem the allegations concerning a request and
refusal to bargain to be admitted and true. Thrift
Drug, a Division of J. C. Penney Company, Inc., 215
NLRB 259 (1974). With respect to (2), copies of the
filed charge and amended charges, affidavits of
service, and post office receipts are attached as
appendixes to the Motion for Summary Judgment
and stand uncontroverted. Accordingly, we deem the
allegations of the complaint concerning the filing and
service of the charge and amended charges to be
admitted and true.
Finally, in its response to the Notice To Show
Cause, Respondent contends that the Motion for
Summary Judgment should be denied and this
proceeding should be consolidated for hearing with
two other consolidated cases to avoid unnecessary
litigation, costs, or delay, citing Peyton Packing
Company, Inc., 129 NLRB 1358 (1961), and Jefferson
Chemical Company, Inc., 200 NLRB 992 (1972). We
find no merit in this contention. After the Regional
Director issued a consolidated complaint in Cases
Certification of Representative because the proceeding was properly
pending before the Regional Director and not before the Board.
3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
908
JESSIE BECK'S RIVERSIDE HOTEL
20-CA-12243 and 20-CA-12337 alleging violations
of Section 8(a)(1) and (3) of the Act, the Respondent
moved to consolidate the instant case which involves
violations of Section 8(a)(5). The Regional Director
denied the motion on March 14, 1977, but the next
day she revoked the denial and referred it to the
Board's Division of Judges. On March 18, 1977, the
Administrative Law Judge denied the motion after
considering it in the light of the oppositions filed by
the General Counsel and Union and in the light of
the General Counsel's discretion to determine mat-
ters of consolidation. Although the Respondent
failed to appeal this denial promptly as required by
Section 102.26 of the Board's Rules and Regulations,
we shall treat the Respondent's motion to consoli-
date as timely filed. The authority to consolidate
cases is vested in the General Counsel under Section
102.33 of the Board's Rules and Regulations. This
authority and its discretionary nature has long been
established. United Packinghouse Workers of Ameri-
ca, CIO, et al. (Wilson & Co., Inc.), 89 NLRB 310
(1950). In view of the Administrative Law Judge's
affirmance of the Regional Directors' refusal to
consolidate and as the alleged 8(a)(1) and (3)
violations involved conduct occurring after the
election and certification herein, which are the
underpinnings of the 8(a)(5) and (I) violations
alleged herein, we find that there was no abuse of
discretion in the refusal to consolidate and that the
Peyton Packing and Jefferson Chemical precedents
cited by the Respondent are distinguishable and
inapposite. Accordingly, we affirm the Administra-
tive Law Judge's denial of the Respondent's motion
to consolidate, and deny the Respondent's motion to
consolidate made herein. 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
At all times material herein, Respondent, a Nevada
corporation, has been engaged in the operation of a
resort hotel, restaurant, and casino at Reno, Nevada.
During the past calendar year, Respondent, in the
course and conduct of its business operations, has
received gross revenues in excess of $500,000 and has
purchased and received goods and materials valued
in excess of $10,000 from suppliers located outside
the State of Nevada.
We find, on the basis of the foregoing, that
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.
[I. THE LABOR ORGANIZATION INVOLVED
Hotel-Motel-Restaurant Employees and Barten-
ders Union, Local 86, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time employees of
the Employer's Reno, Nevada operation, includ-
ing engineering department employees, the stage-
hand, receiving clerk, and warehouse laborers;
but excluding front desk clerks, PBX operators,
reservations clerks, night auditor, booth atten-
dants in the coupon redemption center, employ-
ees in the casino, administration and security
departments, guards and supervisors as defined in
the Act.
2. The certification
On November 5, 1975, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 20 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on July 6, 1976, 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 Rtspondent's
Refusal
Commencing on or about July 8, 1976, 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. Com-
mencing on or about July 8, 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 representa-
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since July 8, 1976, 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, Respon-
dent 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 Respondent set forth in section
III, above, occurring in connection with its opera-
tions 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
obstructing commerce and the free flow of com-
merce.
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, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected 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);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfdi 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. Beck Corporation, d/b/a Jessie Beck's River-
side Hotel and Casino, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Hotel-Motel-Restaurant Employees and Bar-
tenders Union, Local 86, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time employees
of the Employer's Reno, Nevada, operation, includ-
ing engineering department employees, the stage-
hand, receiving clerk, and warehouse laborers; but
excluding front desk clerks, PBX operators, reserva-
tions clerks, night auditor, booth attendants in the
coupon redemption center, employees in the casino,
administration and security departments, 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 July 6, 1976, 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 refusing on or about July 8, 1976, 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
meaning 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
Relations Board hereby orders that Respondent,
Beck Corporation, d/b/a Jessie Beck's Riverside
Hotel and Casino, Reno, Nevada, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Hotel-Motel-Restau-
rant Employees and Bartenders Union, Local 86,
Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
910
JESSIE BECK'S RIVERSIDE HOTEL
All full-time and regular part-time employees of
the Employer's Reno, Nevada operation, includ-
ing engineering department employees, the stage-
hand, receiving clerk, and warehouse laborers;
but excluding front desk clerks, PBX operators,
reservations clerks, night auditor, booth atten-
dants in the coupon redemption center, employ-
ees in the casino, administration and security
departments, 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Reno, Nevada, facility copies of the
attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director
for Region 20, 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
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 20, 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 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 Hotel-
Motel-Restaurant Employees and Bartenders
Union, Local 86, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-
CIO, as the exclusive representative of the
employees in the bargaining unit described below.
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
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 understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time employ-
ees of the Employer's Reno, Nevada opera-
tion, including engineering department em-
ployees, the stagehand, receiving clerk, and
warehouse laborers; but excluding front
desk clerks, PBX operators, reservations
clerks, night auditor, booth attendants in the
coupon redemption center, employees in the
casino, administration and security depart-
ments, guards and supervisors as defined in
the Act.
BECK CORPORATION,
D/B/A JESSIE BECK'S
RIVERSIDE HOTEL AND
CASINO
911