The Portman

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 317 (N.L.R.B. 1988)

THE PORTMAN 317
The Portman and International Union of Operating
Engineers, Stationary Engineers , Local 39 Case
20-CA-21996
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 21 1988 1 the General Counsel of the
National Labor Relations Board issued a complaint
alleging that the Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act
by refusing to bargain following the Union s certifi
cation in Case 20-RC-16191 (Official notice is
taken of the record in the representation proceed
ing as defined in the Board s Rules and Regula
tions Secs 102 68 and 102 69(g) Frontier Hotel
265 NLRB 343 (1982)) The Respondent filed its
answer admitting in part and denying in part the
allegations of the complaint
On July 11 the General Counsel filed a Motion
for Summary Judgment with attachments and a
memorandum in support On July 15 the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the
motion should not be granted The Respondent and
the Union filed responses
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
Ruling on the Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain but attacks the validity of the certification
on the ground that the unit of engineering subdivi
sion employees and maintenance attendants found
appropriate by the Regional Director in the under
lying representation proceeding is inappropriate
All issues raised by the Respondent were or could
have been litigated in the prior proceeding The
Respondent does not offer to adduce at a hearing
any newly discovered and previously unavailable
evidence nor does it allege any special circum
stances that would require the Board to reexamine
the decision made in the representation proceeding
We therefore find that the Respondent has not
raised any issue that is properly litigable in this
unfair labor practice proceeding 2 See Pittsburgh
Plate Glass Co v NLRB 313 U S 146 162 (1941)
Accordingly we grant the Motion for Summary
Judgment 3
On the entire record the Board makes the fol
lowing
FINDINGS OF FACT
I JURISDICTION
Respondent is a California corporation with an
office and place of business in San Francisco Cali
forma where it is engaged in the operation of a
hotel providing food and lodging for guests Based
on a projection of its operation since about Septem
ber 2 1987 when it commenced operations the
Respondent will annually derive gross revenues in
excess of $500 000 Since the opening of its San
Francisco facility the Respondent in the course
and conduct of its operations has purchased and
received at the facility products goods and materi
als valued in excess of $1500 directly from points
located outside the State of California We find
that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organs
zation within the meaning of Section 2(5) of the
Act
II ALLEGED UNFAIR LABOR PRACTICE
A The Certification
Following the election conducted on April 27
the Union was certified on May 10 as the collec
tive bargaining representative of the employees in
the following appropriate unit
All engineering subdivision employees and
maintenance attendants employed by the Re
spondent at its San Francisco California facil
ity excluding all other employees guards and
supervisors as defined in the Act
The Union continues to be the exclusive represent
ative under Section 9(a) of the Act
B Refusal to Bargain
Since May 11 the Union has requested the Re
spondent to bargain and since June 2 the Respond
ent has refused We find that this refusal constitutes
i All dates are in 1988 unless otherwise stated
2 In its answer the Respondent denies that portion of par 2(a) of the
complaint that alleges that it is a California corporation Contrary to its
denial however the Respondent stipulated in the underlying representa
tion proceeding that it is a California corporation The Regional Director
so found and the Respondent did not challenge this finding in its request
for review of the Regional Director s Decision and Direction of Election
Further the Respondents response to the show cause notice does not ad
dress the issue and provides no clue about its state of incorporation if
other than California As the Respondent previously entered a stipulation
regarding its state of incorporation and admits the allegations of com
plaint pars 2(a) (b) and (c) regarding its operations dollar volume of
business and involvement in interstate commerce we find that the denial
raises no material issue of fact warranting a hearing
3 Although Member Johansen dissented on the denial of review in the
underlying representation case he considers that to be the law of the case
and consequently joins his colleagues in the present decision
291 NLRB No 45
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a refusal to bargain in violation of Section 8(a)(5)
and (1) of the Act
CONCLUSIONS OF LAW
By refusing on and after June 2, 1988 to bargain
with the Union as the exclusive collective bargain
ing representative of employees in the appropriate
unit the Respondent has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act we shall order it
to cease and desist to bargain on request with the
Union and if an understanding is reached to
embody the understanding in a signed agreement
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law we shall construe the ini
tial period of the certification as beginning the date
that the Respondent begins to bargain in good faith
with the Union Mar Jac Poultry Co 136 NLRB
785 (1962) Lamar Hotel 140 NLRB 226 229
(1962) enfd 328 F 2d 600 (5th Cir 1964) cert
denied 379 US 817 (1964) Burnett Construction
Co 149 NLRB 1419, 1421 (1964) enfd 350 F 2d
57 (10th Cir 1965)
ORDER
The National Labor Relations Board orders that
the Respondent The Portman San Francisco Cali
fornia its officers agents, successors, and assigns,
shall
1 Cease and desist from
(a) Refusing to bargain with International Union
of Operating Engineers Stationary Engineers
Local 39 as the exclusive bargaining representative
of the employees in the bargaining unit
(b) In any like or related manner interfering
with restraining or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) On request bargain with the Union as the ex
clusive representative of the employees in the fol
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement
All engineering subdivision employees and
maintenance attendants employed by the Em
ployer at its San Francisco California facility
excluding all other employees guards and su
pervisors as defined in the Act
(b) Post at its facility in San Francisco Califor
nia copies of the attached notice marked Appen
dix 4 Copies of the notice on forms provided by
the Regional Director for Region 20 after being
signed by the Respondents authorized represents
tive shall be posted by the Respondent immediate
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered defaced
or covered by any other material
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
4 If 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 Nation
al 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Internation
al Union of Operating Engineers Stationary Engi
neers Local 39 as the exclusive representative of
the employees in the bargaining unit
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL on request bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit
All engineering subdivision employees and
maintenance attendants employed by the Em
ployer at its San Francisco California facility
excluding all other employees guards and su
pervisors as defined in the Act
THE PORTMAN