Saipan Grand Hotel

National Labor Relations Board - Board Decisions

Apr 23, 2003

338 N.L.R.B. 992 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
Micro Pacific Development, Inc. d/b/a Saipan Grand
Hotel and Commonwealth Labor Federation
and Hotel Employees & Restaurant Employees,
Local 5, AFL–CIO. Cases 37–CA–4979 and 37–
RC–3720
April 23, 2003
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On August 18, 1998, the National Labor Relations
Board issued its Decision and Order in Case 37–CA–
4979.1 The Board found that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to recog-
nize and bargain with the employees’ certified represen-
tative and by refusing to provide the Union with re-
quested information necessary for collective bargaining.
The Board ordered the Respondent to bargain collec-
tively with the Union and to provide the requested in-
formation. The Respondent refused to comply with this
Order and, thereafter, petitioned for review of the
Board’s Order in the United States Court of Appeals for
the District of Columbia Circuit. The Respondent con-
tended, inter alia, that, in the underlying representation
decision, the Board erred in finding that housekeeping
supervisor, Edwin Melon, was not a supervisor within
the meaning of Section 2(11) of the Act.2 The General
Counsel filed a cross-application for enforcement.
On June 18, 1999, the court granted the Respondent’s
petition for review in part, reversing the Board’s finding
that Melon was not a statutory supervisor.3 The court
remanded the case for a determination of whether
Melon’s prounion conduct constituted objectionable
conduct warranting a second election.

1 326 NLRB 80.
2 Case 37–RC–3720. In one of its objections to the election, the Re-
spondent alleged that Melon was a statutory supervisor who engaged in
coercive prounion conduct during the election campaign, requiring that
the election be set aside. In its unpublished Decision and Certification
of Representative, the Board adopted the administrative law judge’s
finding that Melon was not a Sec. 2(11) supervisor. There were no
exceptions to the judge’s alternative finding that, in the event Melon
was found to be a statutory supervisor, his prounion conduct would
warrant setting aside the election.
3 178 F. 3d 1325, 1328–1332.
On September 20, 1999, the Board advised the parties
that it had accepted the court’s remand and invited the
parties to file statements of position. The Respondent
filed a statement that noted the court’s determination that
Melon was a statutory supervisor, and the judge’s unex-
cepted-to finding that if Melon was found to be a 2(11)
supervisor his prounion conduct was objectionable. The
Respondent contended that these two points required the
Board to dismiss the complaint in the unfair labor prac-
tice case, to revoke the certification, and to direct a sec-
ond election in the representation case.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having accepted the court’s remand, we regard its
opinion and determination that Melon was a statutory
supervisor as the law of the case. Inasmuch as no excep-
tions were filed to the judge’s alternative finding that, if
Melon was found to be a statutory supervisor, his proun-
ion conduct was objectionable, we adopt that finding and
conclude that Melon engaged in objectionable conduct
warranting the setting aside of the election.4 Accord-
ingly, we shall vacate the Board’s Decision and Order in
Case 37–CA–4979, deny the General Counsel’s Motion
for Summary Judgment in that case, and dismiss the
complaint. Further, we shall revoke the Certification of
Representative in Case 37–RC–3720 and remand that
case for the direction of a second election.
ORDER
The National Labor Relations Board orders that the
Decision and Order in Case 37–CA–4979 be vacated,
that the General Counsel’s Motion for Summary Judg-
ment in that case be denied, and that the complaint be
dismissed.
IT IS FURTHER ORDERED that its Decision and Certifica-
tion of Representative in Case 37–RC–3720 be revoked
and that the case be remanded to the Regional Director
for Region 20 for the purpose of conducting a second
election as directed below.
[Direction of Second Election omitted from publica-
tion.]
4 “It is the Board’s practice to adopt as a matter of course, find-
ings . . . to which no exceptions are filed.” Anniston Yarn Mills, 103
NLRB 1495 (1953). Findings adopted under such circumstances are
not considered a precedent for any other case.

338 NLRB No. 152