Chicago Health & Tennis Clubs, Inc.

National Labor Relations Board - Board DecisionsNov 29, 1976

226 N.L.R.B. 1202 (N.L.R.B. 1976)

1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chicago Health & Tennis Clubs , Inc. and Retail Clerks Union Local 1540, Retail Clerks Internation- al Association , AFL-CIO. Case 13-CA-15374 November 29, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a charge filed on April 27, 1976, and a first amended charge filed on May 20, 1976, by Retail Clerks Union Local 1540, Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Chicago Health and Tennis Clubs, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a com- plaint and notice of hearing on May 28, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on April 15, 1976, following a Board election in Case 13-RC-13864 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about April 19, 1976, and at all times there- after, 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. The complaint also alleges that Respondent made certain unilateral changes, as described below. On June 9, 1976, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. Specifically, Respondent admitted that it unilaterally made changes with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees in the certified unit, in that it unilaterally i Official notice is taken of the record in the representation proceeding, Case 13-RC-13864, as the term "record" is defined in Secs 102 68 and 102 69(g) of the Board's Rules and Regulations , Series 8 , as amended See LTV Electrosystems, 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 changed existing vacation benefits and instituted new vacation benefits, instituted sick days, and insti- tuted paid holidays. Respondent denied only that the unit as certified is an appropriate unit. On June 16, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. - Subsequently, on June 28, 1976, 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. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 its response to the Notice To Show Cause, Respondent attacks the Union's certification on the basis of the appropriate- ness of the unit. Review of the record herein reveals that, pursuant to a Decision and Direction of Election in Case 13- RC-13864,2 an election was held on April 7, 1976, which the Union won. Following a request by the Union that the Respondent bargain collectively in good faith with respect to the rates of pay, wages, hours of employment, and other terms and condi- tions of employment, the Respondent refused to rec- ognize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the certified bargaining unit, and the Respondent made unilateral changes in rates of pay, wages, hours of employment, and other terms and conditions of employment. Respondent admitted that its refusal to bargain was for the purpose of testing the Union's certification. Respondent admitted also that it insti- tuted unilateral changes in certain terms and condi- tions of employment. In response to a Motion for Summary Judgment, an adverse party may not rest upon denials in its pleadings, but must present specific facts which dem- onstrate that there are material facts in issue which require a hearing.; Respondent in the instant case presented no material issues or facts not admitted or previously determined. It is well settled that in the absence of newly discovered or previously unavail- 2 On April 5, 1976, by direction of the Board , the Respondent 's request for review of the Regional Director's Decision and Direction of Election was denied as it raised no substantial issues warranting review 3 Western Electric Company, Hawthorne Works, 198 NLRB 623 (1972) 226 NLRB No. 178 CHICAGO HEALTH & TENNIS CLUBS able 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 proceed- ing.' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair 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 The Respondent operates 13 health clubs in the Chicago metropolitan area, including the Schaum- burg facility, all of which are basically similar in their operations. Health & Tennis Corporation of America (HTCA) is the sole stockholder of Chicago Health Club Fair Lady, Inc. (Fair Lady), which operates three health clubs in the Chicago metropolitan area. In addition to the Respondent and Fair Lady, HTCA owns approximately 20 other similar subsid- iaries across the country, operating a total of 88 health clubs. The Respondent's central office is located at 230 West Monroe Street, Chicago, which is in Chicago's central business district. There are three other health clubs within the city of Chicago and one each in Schaumburg, Highland Park, Mount Prospect, Old Orchard (Skokie), Morton Grove, Park Ridge, Elm- hurst, Oak Park, Oak Brook, LaGrange, Evergreen Park, and Glenwood, all in Illinois and in the Metro- politan Chicago area. The Schaumburg facility is 28 miles from the Monroe Street office. We find, on the basis of the foregoing, that Re- spondent 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 assertjuris- diction herein. 'See Pittsburgh Plate Glass Co v N L R B. 313 US 146, 162 ( 1941). Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) Il. THE LABOR ORGANIZATION INVOLVED 1203 Retail Clerks Union Local 1540, Retail Clerks In- ternational Association , AFL-CIO , is a labor organi- zation within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9 (b) of the Act: All full-time and regular part-time employees, including sales trainees, floor supervisors, in- structors, instructresses, locker room attendants, hygiene maintenance employees, receptionists, masseurs and masseuses at the Employer's facil- ity, now located at 1020 Meacham Road, Schaumburg, Illinois; but excluding all club managers, assistant managers, area supervisors, assistant area supervisors, head tennis profes- sional, professional employees, guards and su- pervisors as defined in the Act. 2. The certification On April 7, 1976, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 13, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargain- ing representative of the employees in said unit on April 15, 1976, and the Union continues to be such exclusive representative within the meaning of Sec- tion 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about April 19, 1976, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about April 19, 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 representative for collective bargaining of all employees in said unit. Furthermore, Respondent unilaterally made changes 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment of employees in the certified unit. Accordingly, we find that the Respondent has, since April 19, 1976, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 Chicago Health & Tennis Clubs, Inc., set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. We shall order that it cease and desist from making unilateral changes in the terms and conditions of em- ployment, and that it, upon request, rescind any and all such unilateral changes made. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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); Bur- nett 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. Chicago Health and Tennis Clubs, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local 1540, Retail Clerks International Association, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees, including sales trainees , floor supervisors, instructors, instructresses, locker room attendants, hygiene main- tenance employees, receptionists, masseurs and mas- seuses at the Employer's facility, now located at 1020 Meacham Road, Schaumburg, Illinois; but excluding all club managers, assistant managers , area supervi- sors, assistant area supervisors, head tennis profes- sional, professional employees, guards and supervi- sors 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 April 15, 1976, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective- bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 19, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 mean- ing of Section 8(a)(1) of the Act. 7. By instituting unilateral changes with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment in the certified unit, without consultation with the Union, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act.' 5 Member Walther would deny the motion and dismiss the complaint herein on the ground that the single -store unit is inappropriate for collective bargaining CHICAGO HEALTH & TENNIS CLUBS 1205 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Chicago Health & Tennis Club, Inc., 1020 Mea- cham Road, Schaumburg, Illinois, 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 con- ditions of employment with Retail Clerks Union Lo- cal 1540, Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees, including sales trainees, floor supervisors, in- structors, instructresses, locker room attendants, hygiene maintenance employees, receptionists, masseurs and masseuses at the Employer's facil- ity, located at 1020 Meacham Road, Schaum- burg, Illinois; but excluding all club managers, assistant managers, area supervisors, assistant area supervisors, head tennis professional, pro- fessional employees, guards and supervisors as defined in the Act. (b) Unilaterally changing rates of pay, wages, hours of employment, and other terms and condi- tions of employment of the employees in the certified unit, without consultation with the above-named la- bor organization. (c) 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, rescind any and all unilateral changes made with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, and reinstate any and all such provisions with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as were in effect prior to Respondent's unilateral changes. (b) 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. (c) Post at 1020 Meacham Street, Schaumburg, Il- linois, copies of the attached notice marked "Appen- dix." 6 Copies of said notice, on forms provided by the Regional Director for Region 13 after being duly signed by Respondent's representative, shall be post- ed 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6In 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 Retail Clerks Union Local 1540, Retail Clerks Interna- tional Association, AFL-CIO, as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT institute unilateral changes with respect to rates of pay, wages, hours, and other terms and conditions of employment, without prior consultation with the above-named Union. 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, rescind such unilateral changes already made, specifically unilateral changes made with respect to vacation benefits, sick days, and paid holidays, and we will rein- state any and all provisions relating to vacation benefits, sick days, and paid holidays which were in effect at the time of the unilateral changes. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reached, embody such understanding in a signed agreement . The bargaining unit is: All full-time and regular part-time employ- ees, including sales trainees , floor supervisors, instructors , instructresses , locker room atten- dants, hygiene maintenance employees , recep- tionists , masseurs and masseuses at the Em- ployer's facility, located at 1020 Meacham Road, Schaumburg , Illinois; but excluding all club managers , assistant managers, area su- pervisors, assistant area supervisors , head ten- nis professional, professional employees, guards, and supervisors as defined in the Act. CHICAGO HEALTH & TENNIS CLUBS, INC.