Myrtle Beach Hilton

National Labor Relations Board - Board Decisions

May 19, 1977

229 N.L.R.B. 806 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arcadian Shores, Inc., d/b/a Myrtle Beach Hilton and
Hotel, Motel, Restaurant Employees and Bartend-
ers Union, Local 270, of the Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO. Case I 1-CA-6832
May 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on November 29, 1976, by
Hotel, Motel, Restaurant Employees and Bartenders
Union, Local 270, of the Hotel and Restaurant
Employees Bartenders International Union, AFL-
CIO, herein called the Union, and duly served on
Arcadian Shores, Inc., d/b/a Myrtle Beach Hilton,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region II11, issued a complaint
and notice of hearing on December 28, 1976, and an
amendment to complaint on December 29, 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 amendment thereto,
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 August 27,
1976, following a Board election in Case 11-RC-
4178 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about November 22, 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 represen-
tative, although the Union has requested and is
requesting it to do so. On January 11, 1977,
Respondent filed its answer to the amended com-
plaint admitting in part, and denying in part, the
allegations in the amended complaint.
On January 21, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Official notice is taken of the record in the representation proceeding,
Case II RC-4178, 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
LTV Electrosysrems, 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., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
229 NLRB No. 129
Summary Judgment. Subsequently, on February II1,
1977, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause, entitled "Respondent's Response to General
Counsel's Motion for Summary Judgment."
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, the Respondent contests the
Union's majority representative status and certifica-
tion and the appropriateness of the unit alleging that
(1) the Board departed from precedent and arbitrari-
ly and capriciously disregarded its prior unit determi-
nation involving the same parties and (2) the
bargaining unit is based solely on the basis of the
Union's extent of organization in violation of Section
9(c)(5) of the Act. Counsel for the General Counsel
argues that all material issues herein have been
previously decided in the underlying representation
case and may not be relitigated and that there are no
litigable issues of fact requiring a hearing. We agree
with counsel for the General Counsel.
Review of the record herein, including that in the
representation proceeding, Case I 1-RC-4178, establ-
ishes that, after a hearing at which the scope of the
appropriate unit was litigated, the Regional Director
issued a Decision and Direction of Election on June
23, 1976, in which he found, contrary to Respon-
dent's contention for a broader unit, that a unit
limited to all housekeeping, maintenance, and bell
employees was appropriate. Respondent filed a
timely request for review attacking the unit determi-
nation as a departure from officially reported Board
precedent, including that of a prior unit determina-
tion between the same parties, and as violative of
Section 9(c)(5) of the Act because the extent of
organization was deemed controlling.2 The Board on
July 19, 1976, denied the request for review on the
grounds that it raised no substantial issues warrant-
ing review. Thereafter, an election was held on July
2 The Act does not require that an election be conducted in the most
appropriate unit; only that the unit be an appropriate one. In the earlier
representation proceeding the composition of the unit was stipulated by the
parties; only that of the second unit was litigated and determined by the
Regional Director in a decision in which he fully articulated his reasons.
Thus there is no basis for any inference that the second unit determination
was based on the extent of the Union's organization.
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MYRTLE BEACH HILTON
22, 1976, in which the Union prevailed by a vote of
78 to 27 with challenged ballots insufficient to affect
the election results.
Respondent filed timely objections to the election
alleging, in substance, that the laboratory conditions
were destroyed (1) by the late opening of the polls by
the Board agent, (2) by two instances of comments
made by the Union's representatives "in the immedi-
ate vicinity of the polling area during the time the
polls were open," and (3) by the Union's injecting the
issue of race into the election campaign and certain
other acts. After investigation, the Acting Regional
Director on August 27, 1976, issued a Supplemental
Decision and Certification of Representative in
which he found that the objections did not raise
substantial issues of fact and law and were without
merit and, accordingly, he overruled them and
certified the Union. Thereafter, Respondent filed a
timely request for review with the Board reiterating
its objections, asserting that there were substantial
issues of fact, law, and policy and affirmatively
requesting a hearing thereon. On November 9, 1976,
the request for review was denied by the Board, as it
raised no substantial issues warranting review, and in
so doing the Board necessarily found that there were
no substantial and material issues warranting a
hearing. To be entitled to a hearing Respondent must
raise substantial or material issues which would
warrant setting aside the election.3 This qualified
right to a hearing satisfies all statutory and constitu-
tional requirements of due process. 4 Where, as here,
the Respondent failed to raise substantial or material
issues in the representation case below, it has not
been denied due process by the Board's failure to
grant a hearing on those issues. 5
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.6
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 therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
NL.R.B. v. Modine Manufacturing Co., 500 F.2d 914, 916 (C.A. 8,
1974). enfg. 203 NLRB 527 (1973),
4 Allied Meat Company, 220 NLRB 27 (1975); Amalgamated Clothing
Workers of America [Winfield Manufacturing Company] v. N. LR. B., 424
F.2d 818, 828 (C.A.D.C.. 1970).
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
1. THE BUSINESS OF THE RESPONDENT
Acardian Shores, Inc., d/b/a Myrtle Beach Hilton,
is now, and has been at all times material herein, a
South Carolina corporation with a place of business
in Myrtle Beach, South Carolina, where it is engaged
in the business of serving food and providing
lodgings and services to nonresident guests. During
the past 12 months, which period of time is
representative of all times material herein, such
establishment has produced gross revenue in excess
of $500,000, and during the same period has received
goods and materials valued in excess of $50,000,
from points outside the State of South Carolina.
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.
II. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel, Restaurant Employees and Bartend-
ers Union, Local 270, of the 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.
111. 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 housekeeping, maintenance and bell em-
ployees, including inspectresses, maids, linen
clerks, seamstress, porters, laundry employees, the
laundry supervisor, assistant chief engineer, bell-
hops, doormen, limousine and van drivers,
carpenters, electricians, painters and general
maintenance employees at the Employer's Myrtle
Beach, South Carolina, motel, but excluding
5 CSC Oil Company. 220 NLRB 19 (1975); Big Three Industries. Inc.,
formerly Big Three Industrial Gas & Equipment Co.. 214 NLRB 775 (1974);
Raub Supply Company, 215 NLRB 830 (1974).
6 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reservation clerks, desk clerks, telephone opera-
tors, head sanitation workers, ordinary room
service waiters, hostesses, cashiers, bus help, wine
stewards, storage clerks, comptroller, assistant
comptroller, accounts payable clerk, accounts
receivable clerk, general cashier, credit clerks,
sales employees, secretaries, personnel clerk,
storeroom clerks, guards and supervisors as
defined in the Act.
2. The certification
On July 22, 1976, 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 11 designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 27, 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 Respondent's
Refusal
Commencing on or about November 13, 1976, and
at all times thereafter, the Union requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about November 22, 1976, and continuing at all
times thereafter 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
November 22, 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 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 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(aX5) 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), 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. Arcadian Shores, Inc., d/b/a Myrtle Beach
Hilton, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Hotel, Motel, Restaurant, Employees and
Bartenders Union, Local 270, of the Hotel and
Restaurant Employees and Bartenders, International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All housekeeping, maintenance and bell em-
ployees, including inspectresses, maids, linen clerks,
seamstress, porters, laundry employees, the laundry
supervisor, assistant chief engineer, bellhops, door-
men, limousine and van drivers, carpenters, electri-
cians, painters and general maintenance employees,
at the Employer's Myrtle Beach, South Carolina,
motel, but excluding reservation clerks, desk clerks,
telephone operators, head sanitation workers, ordi-
nary room service waiters, hostesses, cashiers, bus
help, wine stewards, storage clerks, comptroller,
assistant comptroller, accounts payable clerk, ac-
counts receivable clerk, general cashier, credit clerks,
sales employees, secretaries, personnel clerk, store-
room clerks, 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 August 27, 1976, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
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MYRTLE BEACH HILTON
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 November 22, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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 the Respondent,
Arcadian Shores, Inc., d/b/a Myrtle Beach Hilton,
Myrtle Beach, South Carolina, 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 Hotel, Motel, Res-
taurant Employees and Bartenders Union, Local
270, of the Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All housekeeping, maintenance and bell em-
ployees, including inspectresses, maids, linen
clerks, seamstress, porters, laundry employees, the
laundry supervisor, assistant chief engineer, bell-
hops, doormen, limousine and van drivers,
carpenters, electricians, painters and general
maintenance employees at the Employer's Myrtle
Beach, South Carolina, motel, but excluding
reservation clerks, desk clerks, telephone opera-
tors, head sanitation workers, ordinary room
service waiters, hostesses, cashiers, bus help, wine
stewards, storage clerks, comptroller, assistant
comptroller, accounts payable clerk, accounts
receivable clerk, general cashier, credit clerks,
sales employees, secretaries, personnel clerk,
storeroom clerks, 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 Myrtle Beach, South Carolina,
facility copies of the attached notice marked "Ap-
endix." 7 Copies of said notice, on forms provided
by the Regional Director for Region I , 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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 270, of the Hotel and Restaurant
Employees 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
809
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All housekeeping, maintenance and bell
employees, including inspectresses, maids,
linen clerks, seamstress, porters, laundry
employees, the laundry supervisor, assistant
chief engineer, bellhops, doormen, limousine
and van drivers, carpenters, electricians,
painters and general maintenance employees
at the Employer's Myrtle Beach, South
Carolina, motel, but excluding reservation
clerks, desk clerks, telephone operators, head
sanitation workers, ordinary room service
waiters, hostesses, cashiers, bus help, wine
stewards, storage clerks, comptroller, assist-
ant comptroller, accounts payable clerk,
accounts receivable clerk, general cashier,
credit clerks, sales employees, secretaries,
personnel clerk, storeroom clerks, guards
and supervisors as defined in the Act.
ARCADIAN SHORES, INC.,
D/B/A MYRTLE BEACH
HILTON
810