Hotel Utah Co. v. Industrial Commission

209 P.2d 235, 116 Utah 225, 1949 Utah LEXIS 185, 24 L.R.R.M. (BNA) 2440

• Court: Utah Supreme Court
• Decided: August 17, 1949
• Docket: No. 7212.
• Status: Published

Opinions

WADE, Justice.

The Hotel Utah Company brings this matter to this court by writ of certiorari to determine whether it is guilty of an unfair labor practice in refusing to bargain collectively with the Hotel and Restaurant Employees Alliance, Local 815. It claims that the evidence presented to the board is not sufficient to sustain a finding of what constitutes and a designation of an appropriate unit of employees for collective bargaining purposes, and that the board failed to make sufficient findings of fact as required by law and that therefore its order to cease and desist is void.

On March 4, 1948, on the petition of the Hotel and Restaurant Employees Alliance, Local 815, a hearing before a commissioner of the Utah Labor Relations Board was held. At such hearing both the hotel and the local were represented and produced evidence and on March 8th the board ordered an election to be conducted during the week of March 10th and 17th to determine the collective bargaining agent among the following unit:

“All employees within the following classifications: Bellboys, porters, elevator operators, baggage checkroom attendants, doormen, page boys and valets, excluding front office employees, clerks, housekeeping department employees, culinary and banquet department employees, garage employees and all supervisory employees with authority to hire and fire such as superintendent of service, head porters, etc.”

Later at the request of the hotel the hoard clarified its order defining the word “etc.” as used therein as follows:

“It is the intent of the Board that ‘etc.’ means any other supervisory employee with related authority as is designated to the superintendent of service and the head porter by the above respondent.”

On March 10th, the election was held wherein 39 out of 42 employees within that unit voted for Local No. 815 to act as their bargaining agent and on March 18th the board so certified. On March 31, 1948, the hotel moved the board to set aside and vacate the certification, and petitioned the board to continue its investigation as to what constitutes an appropriate unit for collective bargaining purposes in which it offered to produce evidence on that question to assist the board therein. At the previous hearing the hotel had intentionally refrained from producing such evidence. On April 12th this motion and petition were denied. On May 12, 1948, Local No. 815 filed a charge with the board that the hotel had refused to bargain collectively with it, and a complaint to that effect was filed and the hotel answered claiming that no appropriate bargaining unit had been found and therefore it was not required to bargain with petitioner. On June 28, 1948, a hearing on this petition was had before an examiner at which hearing the hotel admitted it refused to bargain collectively for the reasons stated in its answer. The examiner made his report thereon in which he made findings of fact and recommended that the hotel be ordered to cease and desist; to this report the hotel filed its objections on July 23, 1948. On July 27, 1948, the board denied these objections, adopted the examiner’s findings of fact and report and ordered the hotel to cease and desist from refusing to bargain collectively with the petitioner. To reverse this order the hotel brings the matter to this court.

The hotel claims that the board has not made sufficient investigation and has not received sufficient evidence from which it could determine what constitutes an appropriate collective bargaining unit. It does not ask that the orders or findings be modified as it might have done under (e) and (f) Sec. 49-1-18, U. C. A. 1943. It placed its case squarely on its claim that the proceedings before the board are a nullity and must be set aside by this court.

Under Sec. 49-1-9, U. C. A. 1943, as amended by S. L. ’47 c. 66, sec. 1, p. 333, it is the declared policy of the state as to employment relations and collective bargaining that it

“recognizes that there are three major interests involved, namely: That of the public, the employee and the employer,”

and

“to protect and promote each of these interests with due regard to the situation and the rights of the others.”

Sec. 49-1-15, as amended by Session Laws 1947, Ch. 66, Sec. 1, p. 335 provides:

“Employees shall have the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; and such employees shall also have the right to refrain from any or all of such activities.”

Section 49-1-16 (d), U. C. A. 1943, as amended by Session Laws 1947, Ch. 66, Sec. 1, p. 335, declares it to be an unfair labor practice for an employer

“(d) To refuse to bargain collectively with the representative of a majority of his employees in any collective bargaining unit; * * * jy

Under Sec. 49-1-17, U. C. A. 1943,

“(a) Eepresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining * * *”

and that section further provides:

“Appropriate Unit, (b) The board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.

“Questions Affecting Intrastate Commerce, (c) Whenever a question affecting intrastate commerce or the orderly operation of industry arises concerning the representation of employees, the board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under section 11 or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.

“Id. Eeview — Transcript, (d) Whenever an order of the board made pursuant to section 11(c) is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of this section, and there is a petition for the enforcement or review of such order, such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under subsections 11(e) or 11(f), and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the board shall be made and entered upon the pleadings, testimony and proceedings set forth in such transcript.”

Section 49-1-18, U. C. A. 1943, provides:

“Unfair Practices — Powers of Board to Prevent, (a) The board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 9) affecting intrastate commerce or the orderly operation of industry. This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law or otherwise.”

Subdivision (b) provides for a hearing and the procedure thereunder and the section further provides:

“(c) * * * If upon all the testimony taken the board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the board shall state its findings of fact and shall issue and cause to be served on such preson an order to cease and desist from such unfair labor practice, * * *.

“Time in Which Board May Modify Order, (d) Until a transcript of the record in a case shall have been filed in a court, as herein after provided, the board may at any time, upon reasonable notice and in such manner as it may deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it.”

Under See. 49-1-17 (b), the board must in each case,

“in order to insure to employees the full benefit of their right to self organization and to collective bargaining and otherwise effectuate the policies of this act,”

decide what is the appropriate unit for collective bargaining purposes. But there is no express provision for any hearing or investigation in order to determine that question, nor does the act specify the facts which shall be necessary or controlling therein. Neither is there any provision in the statute for findings of fact or for a written decision. But (c) which deals with the determination of the collective bargaining agent expressly provides for an investigation and hearing and if necessary an election in order to select and certify in writing to the parties the names of the representatives of the employees for collective bargaining purposes where a controversy thereon arises; and under (d) the record of such investigation must be certified to this court if the matter is brought here for review. However, there is no provision under such investigation and hearing for the making of findings of fact by the board. But under See. 49-1-18, dealing with unfair labor practices the board is required to have a hearing with notice and pleadings, the testimony must be reduced to writing and if the board is of the opinion that the person charged therewith is engaging in unfair labor practices it must state its findings of fact and issue and serve on the offending party its order to cease and desist.

The hotel argues that the provisions of Sec. 49-1-18, dealing with unfair labor practices, and requiring formal pleadings, hearings and written findings of fact, apply equally to the proceedings of the board in determining what is an appropriate collective bargaining unit under (b) of Sec. 49-1-17, and for the formal hear ing provided for under (c) and (d) of that section in determining and certifying to the parties the names of the collective bargaining agents. These statutes do not expressly so provide nor are there any circumstances which indicate that such was the legislative intention. Under those provisions it is evident that in determining the appropriate bargaining unit and designating the bargaining agent the legislature did not intend to require the same formality in the hearings and pleadings that it did in whether an unfair labor practice had occurred, and did not intend to require on the former hearings written findings of fact. The hearing on the question of an unfair labor practice was before an examiner who made written findings of fact covering the whole matter in detail with recommendations. Later, after a hearing by the board, it adopted those findings and these findings are a part of the record in this case. All of the requirements of those statutes on these three hearings were fully complied with and we find no error therein. Otherwise we express no opinion on the kind, extent or formalities required in such hearings.

The hotel was given every opportunity at the hearings to determine the appropriate bargaining unit and to designate the bargaining agent. In those hearings it produced no substantial evidence but relied on the weakness of the opposition’s evidence. Under such circumstances all that we need determine is whether a prima facie case has been established. We have carefully reviewed the evidence and conclude that such case has been established. The objects of such hearings under (b) of sec. 49-1-17, are

“to insure to employees the full benefit of their right to self organization and to collective bargaining, and otherwise to effectuate the policies of this act, and in doing so it must determine whether the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”

The last provision of that quotation expressly authorizes the board to subdivide the employer’s craft or plant unit into an appropriate bargaining unit.

From a reading of the designation of the unit, it is clear that it does not include all of the employees of the hotel and that those who are included are persons performing a similar or related kind of service. It includes bellboys, porters, elevator operators, baggage checkroom attendants, doormen, page boys and valets. It excluded front office employees, clerks, housekeeping department employees, culinary and banquet department employees, garage employees, and all supervisory employees with authority to hire and fire. The petitioner’s evidence designated the unit as the service department or house service department. It was freely admitted that other departments rendered services but of a different nature. It is clear from the signed cards and the voting that the members of the designated unit almost unanimously desired to organize and to bargain collectively with the employer. The board might well infer from the evidence that a majority of the employees in other departments did not desire to so organize, but that the unit designated constitutes a homogeneous unit of employees rendering similar kinds of service, and that it was a convenient subdivision of the employees of the hotel and was a suitable and appropriate unit for collective bargaining purposes. Although the board might have required more detailed evidence on the surrounding conditions and labor relations history in this hotel and other similar institutions, the evidence was sufficient to make a primia facie case and sustain the decision of the board.

The decision of the board is sustained and affirmed, and the Hotel and Restaurant Employees’ Alliance Local No. 815, is awarded its costs.

McDonough, j., concurs. PRATT, C. J., dissents.