Kutsher's Country Club, Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1971

192 N.L.R.B. 1270 (N.L.R.B. 1971)

1270 DECISIONS OF NATIONAL {LABOR RELATIONS BOARD
Iutsher's, Country Club, Corp. and Local 343,, Hotel
and Restaurant ,Employees and Bartenders Interna-
tional Union, AFL -CIO,= Petitioner. Case
3-RC-4788 - -
August 31, 1971
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF
SECOND ELECTION
BY CHAIRMAN MILLER AND ME ERs
FANNING AND JENKINS
Pursuant to a Supplemental Decision and Direc-
tion issued by the Regional Director for Region 3 on
August 25, 1970, a rerun election by secret ballot was
conducted under his direction and supervision on
December 12, 1970. A tally of the ballots showed
that of the approximately 207 eligible voters, 150
ballots were cast ; 22 for and 80 against the
Petitioner; 45 ballots were challenged; and 3 ballots
were void. The challenged ballots were not sufficient
in number to affect the results of the election.
Thereafter, the Petitioner filed timely objections to
conduct affecting the results of the election.
On May 14, 1971, the Regional Director issued a
Second Supplemental Decision and Direction of
Third Election in which he overruled Petitioner's
Objections 2, 3, and 4, but sustained Petitioner's
Objection 1, finding that the Employer's refusal to
permit Petitioner's representatives to come upon its
premises to discuss unionization with employees
constituted objectionable conduct which warranted
setting aside the results of the rerun election and
directing a third election. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Employer filed
a timely Request for Review of the Regional
Director's Second Supplemental Decision and Direc-
tion of Third Election, contending that the Regional
Director's findings with respect to the denial of
access issue were erroneous.
The Board by telegraphic order dated June 21,
1971, granted the Request for Review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
i The Petitioner submitted a document styled "Petitioner's Support"
urging, inter alia, that Petitioner's Objections 2, 3, and 4 be sustained. To
the extent that this document seeks to obtain review of the Regional
Director's findings on those objections , review is hereby denied since that
document was filed subsequent to the due date for a request for review
and, in any event , raises no substantial issues warranting review.
2 While we recognize that the criteria applied in determining whether
, The Board has considered the entire record in this
case with respect to the issues under review, and
makes-the following findings:
The sole issue to be-decided on review concerns the
validity of the Petitioner's, objection that the Employ-
er refused to permit the Petitioner access to its
premises.'
The Employer operates a resort hotel in the
Catskill Mountain area of New York, and, since its
location is rural and relatively isolated , most employ-
ees live, work, and spend a major portion of their free
time on the Employer's premises where they are
permitted free use of the hotel 's recreational facili-
ties. The Employer's security guards patrol the area
regularly to keep out unauthorized persons and, the
only public property in the area which would allow
the Petitioner access to employees is the public road
which bisects the Employer's property and separates
the employees ' living quarters from the guest and
recreational facilities.
The Regional Director, in finding that the employ-
ees' crossing of this public road afforded no real
opportunity for organizational communication and
that the other channels of communication available
to the Union were also inadequate , relied on the
Board's decision in Kutsher's Hotel and Country Club,
175 NLRB No. 76. In that case , which involved the
same parties and the same factual situation as the
instant case , the Board found that the Employer's
refusal to allow the Petitioner access to its premises
constituted a violation of Section 8(a)(1) of the Act.
However, in N.L.R.B. v. Kutsher's Hotel and Country
Club, Inc., 427 F.2d 200 (C.A. 2, 1970), the court took
a different view of the evidence and denied enforce-
ment of the Board's order . The Board has deter-
mined not to file a petition for certiorari to review
the court's decision.
Accordingly, for purposes of this proceeding only,
the Board acquiesces in the court's interpretation of
the evidence and deems its decision to be the law of
the case.2 Hence we shall, contrary to the Regional
Director, overrule the Petitioner's Objection I and
certify the results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for Local 343, Hotel and
Restaurant Employees and Bartenders International
certain conduct intefered with an election are not identical to the criteria
applied in determining whether an unfair labor practice has been
committed, we are of the opinion that , within the confines of the court's
decision in the related prior unfair labor practice case, the conduct
complained of in Petitioner's Objection I herein would be insufficient to
constitute a basis upon which to set aside the election.
192 NLRB No. 154
KUTSHER'S COUNTRY CLUB 1271
Union, AFL-CIO, and said organization is not the Section 9(a) of the National Labor Relations Act,, as
exclusive representative of the Employer 's employees amended.
in the appropriate unit, within the meaning of