Atlas Hotels, Inc. v. National Labor Relations Board

519 F.2d 1330, 89 L.R.R.M. (BNA) 3057, 1975 U.S. App. LEXIS 13794
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 9, 1975
Docket74-2066
StatusPublished
Cited by9 cases

This text of 519 F.2d 1330 (Atlas Hotels, Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atlas Hotels, Inc. v. National Labor Relations Board, 519 F.2d 1330, 89 L.R.R.M. (BNA) 3057, 1975 U.S. App. LEXIS 13794 (9th Cir. 1975).

Opinions

OPINION

[1332]*1332PER CURIAM:

This case is before the Court on. the petition of Atlas Hotels, Inc. (hereinafter “Atlas”), to review and set aside an Order of the National Labor Relations Board (henceforth “Board”), directing it to bargain collectively with a union.1 The Board has filed a cross-petition for enforcement of an order finding petitioner in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (hereinafter “Act”). This petition is filed pursuant to Sections 10(e) and (f) of the Act, as amended (29 U.S.C.A. § 160(e) and (f)). The Board’s decision ánd orders are reported at 205 N.L.R.B. 47 and 210 N.L.R.B. 86.

Atlas operates five “motor-hotels” in San Diego, California, and these hotels are located within a two-mile radius of San Diego’s “Hotel Circle,” a cluster of motels, hotels, dining, recreation and convention facilities catering to transient visitors and conventions. Each of the five Atlas hotels is headed by a manager and divided in departments. Department" heads are in charge of the various departments and they are directly responsible to their respective hotel manager.

Employees at all the hotels are subject to common labor relations policies. Job classifications are established on a company-wide basis and the employees within each classification receive the same general wages and fringe benefits. Transfer of employees among the five hotels is limited to selected employees in management training programs. Apparently, employee interchange is minimal, never involves bakery or bakery sanitation personnel, and primarily occurs in unusual situations where extra help is needed at one of the other Atlas hotels to augment the regular work force. E. g., if a large banquet were planned, food-related employees from one hotel might assist food-related, employees at another hotel in serving the dinner.

The largest of the hotels, the Town & Country Hotel, contains 600 of Atlas’ 1300 guest rooms, a coffee shop, restaurant, cocktail lounge, supper club, 17 banquet rooms and a number of kitchens. An adjoining convention center provides meeting and dining facilities for upwards of 2,000 people. The Atlas bakery is housed in a separate area, adjacent to the kitchen, in this convention center, but location has little or no impact upon services. Excepting sandwich bread and hamburger rolls obtained from other sources, the bakery produces all the baked goods used at the five hotels and convention center; the Town & Country Hotel enjoys no special treatment due to proximity.

The bakery is open seven days a week and operates on two shifts, from about 10:00 p. m. to 6:00 a. m. and from 6:00 a. m. or 7:00 a. m. to mid-afternoon, under the supervision of a “director of baking.” The “director of baking” orders supplies, schedules production and keeps time for the bakery employees; his immediate supervisor is the food and beverage manager of the Town & Country Hotel, who also serves as “executive chef” for all five hotels.

Altogether, seven people are employed in the bakery, and they were hired specifically for bakery work either because of their prior experience or their interest in learning the trade. During the course of their work they perform the usual duties of bakers, and utilize specialized baking equipment in the large scale production of cakes, pies, pastries and other baked goods. With the exception of a bakery deliveryman, who spends an undisclosed portion of his time primarily delivering baked goods and the remainder assisting bakers, all bakery employees work exclusively in the bakery.

The Bakery and Confectionery Workers’ International Union of America, Local No. 315 (hereinafter “Union”), which has traditionally devoted itself to serving the interests of baking employees, sought to represent a unit of bakery and bakery sanitation workers employed at the Atlas bakery. Atlas objected, [1333]*1333contending that some other unit would be more appropriate, particularly a unit comprising all of the production and maintenance employees at its five San Diego hotels. Additionally, there is no history of collective bargaining in the respective units urged by the parties, and no union seeks representation on a broader hotel-wide or company-wide unit.

The Union petitioned the Board for an election pursuant to Section 9(c) of the Act. A hearing was held on the matter, evidence presented, and on the basis of this evidence the Board found that the bakery employees constituted a separate unit appropriate for collective bargaining. Accordingly, the election was ordered.

Thereafter, Atlas requested a review of the decision, contending, inter alia, that the unit established was inappropriate for bargaining; that it represented a departure from traditional Board policy of single unit representation of manual employees in highly integrated hotel operations; 2 and that the decision was based upon Board precedent overruled by this Court.3 However, the Board denied Atlas’ request on the ground that it raised no substantial issues warranting review.

After some initial dispute,4 the Union won the election and was certified as the collective bargaining representative of the bakers and bakery sanitation workers. In order to challenge the unit determination, Atlas refused to bargain and the Union filed an unfair labor practices charge with the Board. The Regional Director issued a complaint alleging that the refusal to bargain was unlawful, and Atlas answered asserting that the separate unit of bakers was inappropriate; that the unit was contrary to precedent; and that other units might also have been found appropriate and should therefore have been considered.

General Counsel for the Board moved for summary judgment on the ground that Atlas’ answer raised no issue which had not been litigated and determined in prior proceedings. The motion was granted, and the Board also found that, by refusing to recognize and bargain with the Union, Atlas had violated Section 8(a)(5) and (1) of the Act. 205 N.L. R.B. 47.

The Board filed an application for enforcement of its order and Atlas cross-petitioned for review. Shortly thereafter the Board moved to have the case remanded for reconsideration in light of a recent Ninth Circuit decision in which enforcement was denied a Board order under similar circumstances.5 The motion was granted, and in May, 1974, the Board filed a supplemental decision explicating and affirming its prior decision and order. 210 N.L.R.B. 86. Atlas then filed the petition at bar, and the essential issue before the Court on appeal is whether the bargaining unit established by the Board was appropriate under Section 9 of the Act.

The Act delegates to the Board the primary responsibility for determining the appropriate bargaining unit. N.L.R.A. § 9(b), 29 U.S.C.A. § 159(b); General Instrument Corporation v. N.L.R.B., 319 F.2d 420, 422 (4th Cir. 1963). And this Court has granted the Board great latitude in making these unit determinations. Gallenkamp Stores Co. v. N.L.R.B., 402 F.2d 525, 530 (9th Cir. [1334]*13341968); Foreman & Clark, Inc. v. National Labor Relations Board, 215 F.2d 396, 405 (9th Cir. 1954); N.L.R.B. v.

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519 F.2d 1330, 89 L.R.R.M. (BNA) 3057, 1975 U.S. App. LEXIS 13794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlas-hotels-inc-v-national-labor-relations-board-ca9-1975.