Imperial House

National Labor Relations Board - Board Decisions

Mar 2, 1970

181 N.L.R.B. 391 (N.L.R.B. 1970)

IMPERIAL APARTMENT HOTEL, INC. 391
Imperial Apartment Hotel , Inc. d /b/a Imperial
House and Highrise Employees Union , Local 255,
affiliated with Hotel and Restaurant Employees
and Bartenders International Union , AFL-CIO.
Case 12-CA-4577
March 2, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On September 17, 1969, Trial Examiner Charles
W. Schneider issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
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.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the entire record in this case
including the Employer's objections to the election,
the Regional Director's Supplemental Decision,
Order, and Certification of Representative, the Trial
Examiner's Decision, and the exceptions and brief,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(1) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Imperial Apartment Hotel, Inc., d/b/a Imperial
House, Miami Beach, Florida, its officer, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
Footnote 7 should be amended to read as follows:
"In the event this Order is enforced by a
Judgment of the 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
'The Board has reviewed the record in Case 12-RC-3253, and finds
contrary to the Respondent 's contention , that the Regional Director's
Supplemental Decision , Order, and Certification of Representative
overruling the Respondent 's objections to the election without a hearing,
and his denial of the Respondent 's request for subpoenas, were correct.
Court of Appeals Enforcing an Order of the
National Labor Relations Board.' "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES W. SCHNEIDER, Trial Examiner. The case
arises on a Motion of Counsel for the General Counsel to
Strike Portions of Answer, and his Motion for Summary
Judgment, upon an admitted refusal by the Respondent to
bargain with the certified Charging Union on the ground
that in the related representation case the Respondent's
Objections to the Election had been improperly overruled
and the Union invalidly certified as the bargaining
representative of the employees involved.
A The Representation Proceeding'
Upon petition filed on February 19, 1969, under
Section 9(c) of the Act by Highrise Employees Union,
Local 255, affiliated with Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, herein called the Union, a hearing was held
before a Hearing Officer of the National Labor Relations
Board on March 4, 1969 Upon such petition and hearing,
on April 1, 1969, the Regional Director for Region 12 of
the Board issued a Decision and Direction of Election in
an appropriate bargaining unit, described hereinafter, of
the employees of Imperial Apartment Hotel, d/b/a
Imperial House, herein called the Respondent.
Pursuant to the Decision and Direction of Election, an
election by secret ballot under the supervision and
direction of the Regional Director was conducted on May
2, 1969, among the employees in the appropriate unit to
determine the question concerning representation. Of
approximately 48 eligible voters 46 cast ballots, of which
34 were cast for the Union and 12 against.
On May 8, 1969, Counsel for the Respondent requested
the Regional Director to issue subpoenas to the
Respondent requiring the production of "numerous
documents, records, letters and other matters written
and/or disseminated by petitioner [the Union] herein,
during the most recent election campaign. . . . for the
purpose of assisting and aiding both employer and the
National Labor Relations Board in investigating
Employer's Objections to the Election." On the same or
the following day the Respondent filed Objections to the
Election, alleging in part as a basis therefor
misrepresentations made by the Union or its supporters
during the election campaign, captive campaign meetings
held on company premises by the Union or its supporters
within 24 hours of the election, and intimidation and
coercion of employees by the Union or its supporters. The
objections also alleged that the Board's notice of election
'Administrative or official notice is taken of the record in the
representation proceeding, Case 12-RC-3253, as the term "record" is
defined in Section 102 68 and 102 69( f) of the Board 's rules (Rules and
Regulations and Statements of Procedure , National Labor Relations
Board , Series 8, as amended ) See LTV Electrosvstems, Inc, 166 NLRB
No 81, enfd 388 F 2d 683 (C.A. 4), Golden Age Beverage Co , 167
NLRB No 24, enfd 415 F.2d 26 (C A 5); Intertype Co v. Penello, 269
F Supp. 513 (D.C Va.); Intertype Co v N L R B, 401 F 2d 41 (C A 4),
Follett Corp , 164 NLRB No. 47, enfd. 397 F 2d 91 (C A 7), Section 9(d)
of the National Labor Relations Act
181 NLRB No. 57
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was illegal and improper, and created impressions in the
minds of employees, (1) that the Board favors
unionization, and (2) that the Respondent was engaging in
improper conduct The objections further assert that the
notice of election generally tended to make a free choice
in the election impossible Finally, the Respondent moved
in the objections that the election be set aside and that a
re-run election be ordered. The objections contained no
request for a hearing
On May 13, 1969, the Respondent, by letter to the
Regional Director, submitted information in support of its
objections and a list of its witnesses. In the letter the
Respondent stated that the information was sufficient to
show that the Union engaged in conduct adversely
affecting the results of the election, and further, that as
soon as it received the investigative subpoenas previously
requested the Respondent would be in a better position to
furnish additional information to the Board concerning its
objections.
On June 13, 1969, the Regional Director replied by
letter to the Respondent's request for subpoenas and
denied them, terming the request one for the issuance of
investigative subpoenas. The Regional Director further
stated that neither the Act nor the Board's rules authorize
the issuance of such subpoenas to private parties in an
objections case, "at least where, as here, no hearing has
been scheduled." At the same time the Regional Director
assured the Respondent that all relevant information had
been obtained in the investigation and that, "Therefore,
there was no need for investigative subpoenas for the
production of the documents in question." The letter
further informed the Respondent that the Regional
Director had on the same day issued a Supplemental
Decision, Order and Certification of Representatives.
No formal hearing was held on the Respondent's
objections. As the Regional Director stated in his June 13,
1969, letter to the Respondent, the Regional Director on
June 13 issued his Supplemental Decision, Order and
Certification of Representative in which after detailing the
Respondent's objections, the Regional Director said that
he had conducted an investigation on the issues raised
thereby and had afforded the parties full opportunity to
submit and present evidence, and that he had considered
it. The Regional Director then discussed the objections
and the evidence, and concluded, for various reasons, that
the objections did not raise material or substantial issues
warranting setting aside the election. He thereupon
overruled the objections in their entirety and certified the
Union as the exclusive collective bargaining representative
in the appropriate unit.
On June 20, 1969, the Respondent filed with the Board
in Washington, D.C. a Request for Review of the
Regional Director's Supplemental Decision and
Certification of Representative, t!1_which the Respondent
asserted that the Regional Director had erroneously
decided the matter. Alternatively the Respondent
requested that the case be reopened for further evidence or
that a hearing be held. The request did not indicate what
further evidence would be produced. The Respondent also
asked for a hearing on its objections to the election.
On June 30, 1969, the Board denied the Respondent's
Request for Review.
B. The Unfair Labor Practice Case
Commencing on or about July 3, 1969, the Union
requested the Respondent to bargain collectively with it as
the representative of the employees in the appropriate
unit . On or about July 9, 1969, the Respondent, by letter
from its attorney, advised the Union that Respondent
considered the certification of the Union as bargaining
representative to be invalid and that the certification
would not be honored by Respondent until such time as
the Board and the United States Court of Appeals decided
the matter contrary to the position taken by the
Respondent.
On July 17, 1969, the Union filed the charge involved
in the instant case in which it alleged the Respondent's
refusal to bargain. On July 25, 1969, the General Counsel
issued his complaint charging the Respondent with refusal
to bargain in violation of Section 8(a)(1) and (5) and 2(6)
and (7) of the Act.
On or about August 5, 1969, the Respondent filed an
Answer and Defenses in which it admitted substantial
allegations of the complaint but denied the validity of the
certification and denied the commission of unfair labor
practices. The Answer further restated the Respondent's
objections to the election.
Under date of August 13, 1969, Counsel for the
General Counsel filed a Motion to Strike Portion of
Answer and Motion for Summary Judgment, on the
ground that the pleadings disclosed no matters requiring
hearing before a trial examiner In the motions the
General Counsel further urged the striking of the
Respondent's "Affirmative Defenses."
On August 19, 1969, 1 issued an Order to Show Cause
returnable September 2, 1969, directing the parties to
show cause, if cause they had, as to whether or not the
General Counsel's Motions should be granted. On
September 2, 1969, the Respondent filed a Response No
other responses to the Order to Show Cause have been
received.
C. Ruling on General Counsel's Motions
Respondent opposes the General Counsel's motions to
strike and for summary judgment and contends that
Section 10(b) of the Act entitles the Respondent to a
hearing on the complaint.
The Respondent's basic assertion is that the Regional
Director and the Board erroneously overruled the
Respondent's objections to the election, that the
Respondent was improperly refused a hearing on the
objections, and consequently that the certification is null
and void. The Respondent also raises a number of other
issues relating to the procedural validity of the
proceedings. These are, in sum, (1) that the Respondent's
request for investigative subpoenas in connection with its
objections to the election was invalidly denied, (2) that the
rule of the Excelsior Underwear Inc , case (156 NLRB
1236)2 was improperly applied to the Respondent during
the representation proceeding, and (3) that the Board's
notice of election was illegal, misleading and an
infringement on the rights of the Respondent and its
employees.
The Respondent therefore submits that it is entitled to
a hearing upon the complaint and its objections.
Alternatively it asks that, in the event the General
Counsel's motions are granted, the Trial Examiner make
a part of the record herein "all of the pleadings, briefs,
Request for Review, letters, Statements, and affidavits
'Requiring the Employer , prior to a representation election, to submit to
the Regional Director a list of eligible voters with their addresses, which
list the Regional Director shall make available to the parties
IMPERIAL APARTMENT HOTEL, INC.
contained in the official file in the 12th Regional Office in
the Representation matter herein." The Respondent also
asserts in its Answer and Defenses that the Union's
showing of interest was obtained or partially obtained
through supervisory participation and that the Regional
Director erroneously refused to conduct an administrative
investigation of this claim, after Respondent, under date
of April 11, 1969, had requested such an investigation
"and submitted evidence sufficient to warrant the same "
The Respondent asserts that it is entitled to a hearing
on the complaint because it had no hearing on its
objections to the election. To that extent the Respondent
thus seeks to relitigate those issues, since all such
contentions were necessarily (and, so far as the trial
examiner's authority is concerned, finally) disposed of in
the course of the representation proceeding The
Respondent may not relitigate such matters before the
Trial Examiner, though the Respondent may properly
request the Board for reconsideration of the representation
determination, and if the Board's decision is adverse the
Respondent may submit the issue to a Court of Appeals
in an action for enforcement or review of the Board's
order.
It is established Board policy in the absence of newly
discovered or previously unavailable evidence or special
circumstances, not to permit litigation before a Trial
Examiner in an unfair labor practice case of issues which
were or could have been litigated in a prior related
representation proceeding.' Such a hearing is not a matter
of right unless substantial and material issues are raised
by the pleadings and objections.' That there are no such
issues here has been decided by the Board, and the
Respondent offers no new evidence or proof of special
circumstances At this stage of the proceedings the
Board's determination is therefore the law of the case '
The cases cited by Respondent are not authority to the
contrary. Those cases hold that an evidentiary hearing is
required where there are substantial and material issues.
They are not to be construed as requiring such a hearing
where, as here, there are no such issues present.
This leaves for disposition two matters not contained in
the Respondent's objections to the election. There being
no contrary cause shown, I find that any error with
respect to either issue was waived by the Respondent in
the representation proceeding
The first such matter is the Respondent's contention in
its Answer and Defenses that the Union's showing of
interest was obtained through supervisory participation,
and that the Regional Director refused to conduct a
requested investigation of Respondent's claim after
Respondent had submitted sufficient evidence thereon.
The second matter is the Respondent's contention that the
Excelsior Underwear rule was improperly applied in the
representation proceeding.
'Howard Johnson Company. 164 NLRB No 121, Metropolitan Life
Insurance . 163 NLRB No 71 See Pittsburgh Plate Glass Co v N L R B.
313 U.S. 146, 162, National Labor Relations Board Rules and
Regulations , Section 102 67(f) and 102 69(c)
'o K Van and Storage Co. Inc. 127 NLRB 1537, 297 F 2d 74 (C A
5) See N L R B v. Air Control Window Products, Inc, 355 F 2d 245, 249
(C A. 5), "If there is nothing to hear, then a hearing is a senseless and
useless formality "
'See N L R B v. Bata Shoe Co. 377 F 2d 821, 826 (C A 4) " there
is no requirement , constitutional or otherwise , that there be a hearing in
the absence of substantial and material issues crucial to determination of
whether NLRB election results are to be accepted for purpose of
certification "
393
The Respondent's Answer and Defenses indicates that
the supervisory issue was raised by the Respondent
between the time of the Direction of Election and the time
the election was held. The record does not disclose that
the Respondent requested the Board to review either the
Direction of Election or the Regional Director's asserted
refusal to conduct an administrative investigation of the
Respondent's claim. Nor did the Respondent include the
matter in its objections to the election. No timely
objection having been filed the issue cannot now be
considered in the absence of a showing of cause In
addition, under Board rules 102.67(f) and 102.69(c) the
Respondent's failure to seek review of the Regional
Director's actions also constituted a waiver of review and
precludes litigation of that matter in this proceeding
The issue as to the application of the Excelsior
Underwear rule is also belated, being raised for the first
time in the Respondent's Answer and Defenses. There
being no showing of cause for the delay any error in that
regard was waived and may not now be pursued In
addition the Respondent does not make clear in what
manner the Excelsior Underwear case was
unconstitutionally or illegally applied to Respondent. The
Respondent has therefore shown no basis upon which to
sustain its assertions in this regard. In any event the rule
of the Excelsior Underwear case was recently approved by
the Supreme Court in the case of N L R B v
Wyman-Gordon Company, 394 U.S. 759
Since the Regional Director and the Board have held
that the Respondent is not entitled to a hearing on its
objections, and there being no other timely issues
requiring hearing, or proffer of additional evidence, it
necessarily follows that the Respondent is not entitled to a
hearing on the complaint.
The Respondent's request, referred to above, that
certain material be made a part of the record herein is
granted to the extent that the request is consistent with
the Board's decisions in the LTV Electrosystems case and
the Golden Age Beverage Co case, referred to in fn 1
above. Cf. Southwestern Portland Cement Co v.
N L R.B, 407 F.2d 131 (C.A. 5); International Union of
Electrical Workers v. N L R.B (Liberty Coach Co.. Inc ).
418 F.2d 1191 (C.A.D.C.)
There thus being no unresolved matters requiring an
evidentiary hearing the Motion of Counsel for the General
Counsel for Summary Judgment is granted. However, the
Motion to Strike the "Affirmative Defenses" is denied.
Those defenses raise the issue as to the legality of the
certification and are essential to consideration of the
Respondent's contentions in the event it wishes to pursue
the matter before the Circuit Court Without a denial of
the correctness of the representation determinations the
Respondent would have no issue to contest before the
Court Upon the record before me I make the following
further
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Florida corporation engaged in the
operation of the Imperial House, an apartment project
composed of 117 apartments and several motel rooms,
located at Miami Beach, Florida.
Respondent' s annual gross revenue exceeds $500,000
and it annually purchases fuel oil, supplies, and materials
valued in excess of $10,000 from suppliers within the State
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Florida, who have received these items from sources
outside the State.
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.
iI THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III THE UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute a
unit appropriate for the purposes of the collective
bargaining within the meaning of Section 9(b) of the Act:
All service and maintenance employees including
doormen, runners, elevator operators, delivery
employees, maids, porters, and pool tenders employed
by Respondent at its Imperial House, Miami Beach,
Florida, but excluding all office clerical employees,
restaurant employees, guards, and supervisors as
defined in the Act
On June 13, 1969, the Regional Director of the Board
certified the Union as the collective bargaining
representative of the employees in the appropriate unit for
the purposes of collective bargaining. By virtue of Section
9(a) of the Act the Union is the exclusive representative of
all the employees in the appropriate unit with respect to
rates of pay, wages, hours of employment and other terms
and conditions of employment.
Commencing on or about July 3, 1969, the Union
requested the Respondent to bargain collectively in the
appropriate unit . Commencing on July 9, 1969, and at all
times thereafter Respondent has refused to bargain with
the Union as such representative
By thus refusing to bargain collectively Respondent has
engaged in unfair labor practices in violation of Section
8(a)(5) of the Act and has interfered with, restrained and
coerced its employees in violation of Section 8(a)(1) of the
Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions, pursuant
to Section 10(c) of the Act, I recommend that the Board
issue the following:
ORDER
A. For the purpose of determining the duration of the
certification, the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
exclusive bargaining representative in the appropriate unit.6
B. Imperial Apartment Hotel, Inc., d/b/a Imperial
House, its officers, agents, successors and assigns shall.
1. Cease and desist from-
(a) Refusing to bargain collectively with Highrise
Employees Union, Local 255, affiliated with Hotel and
'The purpose of this provision is 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 See Mar-Jac Poultry Co . 136
NLRB 785, Commerce Co. dlbla Lamar Hotel , 140 NLRB 226, 229, 328
F.2d 600 (C A 5), cert denied 379 U S 817 Burnett Construction Co .
149 NLRB 1419, 1421, 350 F 2d 57 (C A. 10)
Restaurant Employees and Bartenders International
Union, AFL-CIO, as the exclusive collective-bargaining
representative of the employees in the following
appropriate bargaining unit,
All service and maintenance employees including
doormen, runners, elevator operators, delivery
employees, maids, porters, and pool tenders employed
by Respondent at its Imperial House, Miami Beach,
Florida, but excluding all office clerical employees,
restaurant employees, guards, and supervisors as
defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such exclusive
collective-bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Highrise
Employees Union, Local 255, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, as the exclusive representative of the
employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and embody in a signed
agreement any understanding reached. '
(b) Post at its place of business in Miami Beach,
Florida, copies of the attached notice marked
"Appendix."' Copies of said notice on forms provided by
the Regional Director for Region 12, shall, after being
duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately
upon receipt thereof and maintained by the Respondent
for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from receipt of this Recommended
Order what steps the Respondent has taken to comply
herewith.,
'In the event this Recommended Order is adopted by the Board the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order is enforced by a Decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that these recommendations are adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 12, in writing , within 10 days from the receipt of this order what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
WE WILL NOT refuse to bargain collectively with
Highrise Employees Union , Local 255, affiliated with
Hotel and Restaurant Employees and Bartenders
International Union , AFL-CIO , as the exclusive
collective- bargaining representative of all the following
employees:
All service and maintenance employees including
doormen, runners, elevator operators , delivery
employees , maids, porters, and pool tenders
IMPERIAL APARTMENT HOTEL, INC.
employed by us at Imperial House, Miami Beach,
Florida, but excluding all office clerical employees,
restaurant employees, guards, and supervisors as
defined in the Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective-bargaining representative
WE WILL bargain collectively with the Union as the
exclusive collective-bargaining representative of the
employees in the appropriate unit , and if an
understanding is reached we will sign a contract with
the Union.
Dated By
395
IMPERIAL APARTMENT
HOTEL, INC., D/B/A
IMPERIAL HOUSE
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice may be directed to
the Board ' s Regional Office, Room 706 Federal Office
Building, 500 Zack Street , Tampa , Florida 33602,
Telephone 813-228-7711.