Marco Polo Resort Motel

National Labor Relations Board - Board Decisions

Sep 15, 1981

257 N.L.R.B. 1293 (N.L.R.B. 1981)

MARCO POLO RESORT MOTEL
Marco Polo Resort Motel and Hotel, Motel, Restau-
rant & Hi-Rise Employees & Bartenders Union,
Local 355. Case 12-CA-8650
September 15, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On August 27, 1980, Administrative Law Judge
Robert A. Gritta issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated it au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(1) of the Act when
its motel manager, Charles Rosen, interrupted a
union meeting being held on its premises, with its
permission, to order some nonunion bargaining unit
employees to leave the meeting. Respondent con-
tends, however, that, in accordance with the
Union's request, it only granted permission for a
meeting limited to union members in the house-
keeping department and, thus, it was within its
rights to hold the Union to its request. In agree-
ment with the Administrative Law Judge we find
that the limited terms of the permission granted did
not, absent some more compelling business justifi-
cation than the one offered, license Respondent to
police the Union's meeting to ensure that attend-
ance was limited to union members.'
The purpose of the union meeting, which was
known to Respondent, was to elect a union ste-
ward for the housekeeping department. Thus, the
meeting involved an internal union matter and one
in which Respondent could not claim a legitimate
interest. The Board has long held that employers
have no right to interfere with or to seek to con-
trol the selection of employee representatives who
will deal with them for purposes of collective bar-
gaining. 2 Here, Rosen not only disrupted the meet-
' It is the Board's responsibility to seek an accommodation between
Sec. 7 rights and private property rights with as little destruction of one
as is consistent with the maintenance of the other, Hudgens v. N.L.R.B..
424 U.S. 507, 521 (1976), citing N.L.R.B. v. The Babcock & Wilcox Com-
pany, 351 U.S. 105, 112 (1956).
2 See, e.g., Chicago Magnesium Castings Company, 240 NLRB 400, 404
(1979).
257 NLRB No. 158
ing by appearing at it, 3 he interfered with the
Union's conduct of it by demanding that nonunion
unit employees leave the meeting. That demand in-
vaded a province which only the Union and its
members have the right to control. Thus, Respond-
ent's conduct, through Rosen, was unlawful unless
Respondent could show that Rosen, in disrupting
the meeting and making his demand, had a legiti-
mate business reason which would, on balance,
override the employees' interest in the conduct of
the meeting free from his interference.
We conclude that Respondent has not advanced
any such reason for Rosen's conduct. Respondent
does not contend that the attendance of the non-
union bargaining unit employees in any way ad-
versely affected its operations or even that it had
reason to believe its operations might be so affect-
ed by the attendance of these employees. Thus, it
does not, for example, contend that they should
have been on duty elsewhere or that their attend-
ance caused a disciplinary problem for Respondent.
Rather its sole justification for Rosen's actions is
that only limited permission to use its property had
been granted and it was insuring that the limits of
that permission were not exceeded. Absent any evi-
dence that the Union intended to use the meeting
for other than the stated purpose of electing a ste-
ward and inasmuch as the meeting did not impair
or threaten the efficiency of Respondent's oper-
ations, we find Respondent's asserted reason to be
insufficient as a basis for justifying Rosen's inter-
ruption of the meeting and his interference in its
conduct. Thus, in these circumstances, whatever
initial right Respondent had to limit the use of its
property, we find that, once it granted the Union
permission to hold the meeting on its premises, the
employees' right to have that meeting conducted
free of interference outweighed Respondent's inter-
est in insuring that there was strict adherence to
the limits of the permission it had granted for the
use of its property. 4
Accordingly, we shall adopt the Administrative
Law Judge's recommended Order, as modified
below.'
Clearly, Rosen's presence was unwelcome, as his request to attend
the meeting had earlier been denied by the Union.
I Since we find that even under the restricted permission requested and
received by the Union that Respondent did not have sufficient justifica-
tion for interfering with the Union's meeting, we need not pass in this
case on whether Respondent was entitled to impose those limitations
under the terms of the visitation clause of the collective-bargaining agree-
ment. Accordingly, we do not adopt the portion of the Administrative
Law Judge's Decision that discusses that clause and its application. (But
see Southern Florida Hotel & Motel Association and its employer-members.
The Estate of Alfred Kaskell d/b/a Carillion Hotel, et al., 245 NLRB 561
(1979), where the Board did pass on the clause at issue.)
s The Administrative Law Judge included a requirement in the pro-
posed order that the entire multiemployer association post the notice.
Continued
1293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Marco Polo Resort Motel, Miami Beach, Florida,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Delete from paragraph 2(b) the sentence "Ad-
ditionally, the agent Association shall be required
to distribute to its employer members copies of the
notice marked 'Appendix."'
2. Delete from paragraph 2(c) the sentence "The
Association shall also notify the Regional Director
that the required distribution has been effected as
ordered."
Such a broad notice requirement is not necessary in this case since there
is no indication that other employers in the association would engage in
similar conduct. Accordingly, we shall delete this provision from the rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge: This
case was heard on November 7, 1979, in Coral Gables,
Florida, based upon a charge filed by Hotel, Motel, Res-
taurant & Hi-Rise Employees & Bartenders Union, Local
355 (herein called the Union) on May 29, 1979, and a
complaint issued by the Regional Director of Region 12
of the National Labor Relations Board on June 18, 1979.'
The complaint alleged that Marco Polo Resort Motel
(herein Respondent) violated Section 8(a)(l) of the Na-
tional Labor Relations Act by maintaining and enforcing
a policy of denying the Union access to Respondent's
premises for the purpose of meeting or talking with non-
union employees in the bargaining unit on May 16. Re-
spondent's timely answer denied the commission of any
unfair labor practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence, and to argue orally. Briefs were submit-
ted by the General Counsel and Respondent. Both briefs
were duly considered.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor on the wit-
ness stand, and upon substantive, reliable evidence con-
sidered along with the consistency and inherent probabil-
ity of testimony, I make the following:
All dates herein are in 1979 unless otherwise specified.
FINDINGS
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS
OF LAW
The complaint alleges, Respondent admits, and I find
that Marco Polo Resort Motel is engaged in the oper-
ation of a motor hotel in Miami Beach, Florida. Jurisdic-
tion is not in issue. Respondent, in the past 12 months, in
the course and conduct of its business operations pur-
chased and received goods and materials valued in excess
of $50,000 directly from points located outside the State
of Florida. Respondent, during the same period of time,
had a gross volume of business in excess of $500,000. I
conclude and find that Marco Polo Resort Motel is an
employer engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE COLLECTIVE-BARGAINING HISTORY
Respondent is a member of the Southern Florida Hotel
and Motel Association (herein association). The associ-
ation, as bargaining agent for its member motels and
hotels, negotiates and executes collective-bargaining con-
tracts with the Union. The association thereafter adminis-
ters the contract on behalf of its member motels and
hotels. The Union has represented all of Respondent's
employees, excepting executives, department heads, man-
agerial employees, guards, and supervisors for a period
of years. During this period, several contracts have been
negotiated and executed between the Union and the As-
sociation. The latest of these contracts was executed in
1977.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The facts are not totally disputed, however, there are
discrepancies between witnessess on collateral matters.
Rosen, motel manager, testified that in May the young
lady who had been acting as steward for the housekeep-
ing department did not want to continue as steward.
Menditto, the union business agent, telephoned him re-
questing a meeting with the housekeeping employees to
elect a new steward. Menditto asked for a date and time
to meet with members of the Union in the housekeeping
department. Rosen granted the request and gave Men-
ditto a date, time, and room to use.
The meeting was set for May 16 at 4:30 p.m. in the
compass room. On that day, someone in the housekeep-
ing department informed Rosen that several nonunion
employees were planning to attend the meeting. Upon
hearing that nonunion employees planned to attend,
2 The current contract dated 1977 is in evidence. The several preced-
ing contracts between the Union and the association and a single contract
from the "Castaways Hotel" between the Union and Castaways were re-
jected upon offer and placed in the rejected exhibit file.
1294
MARCO POLO RESORT MOTEL
Rosen testified, "I went up to the meeting and made an
announcement, right then and there, that this meeting
was for the purpose of union employees only, and I
asked the non-union employees to leave the meeting."
Rosen stated that with reference to the "visitation
clause" in the contract, he has not been advised by any
negotiator that "union" meant "unit" in the 1968 or the
1977 collective-bargaining agreement. Further, he has
not permitted the Union to meet with nonunion employ-
ees on motel property, nor has the Union ever requested
to meet with nonunion employees on company time at
the motel. Rosen has been the motel manager for eight
years. The housekeeping department has three shifts
which end, respectively, at 3:30 p.m., 4:30 p.m., and
11:30 p.m.
Menditto testified that he telephoned Rosen on May
10. He requested a meeting with all employees in the
housekeeping department for the sole purpose of electing
a shop steward. Rosen said yes, it's okay, and gave me
May 16 in the compass room at 4:30 p.m. After the
phone call, Menditto prepared a notice of the meeting
and posted it in the motel next to the housekeeping de-
partment. Menditto recalled that the notice read, "A
meeting will be held for all housekeeping department-
May 16, 1979, at 4:30 p.m. in the compass room." There
is no contract provision for posting of union notices but
there is a bulletin board.
On May 16, Menditto arrived at the Motel about 4:20
p.m. and went directly to Rosen's office to deliver the
checkoff list. Rosen said he wanted to attend the meeting
but Menditto told him the meeting was only for the
housekeepers in the bargaining unit. Menditto stated he
would give Rosen the results of the election. Menditto
went to the compass room, and Victor Morales, another
business agent, and approximately 25 employees were al-
ready in the room. Menditto left for a short time and
while he was out he learned that three housekeeping em-
ployees had left the meeting. When he returned to the
meeting he heard Rosen tell the people present that any-
body who did not belong to the Union had to leave the
room. Menditto then told Rosen that the Union repre-
sented all the workers in the bargaining unit and they
had a right to representation. Rosen stated that he
wanted to cancel the meeting. Menditto responded that
Rosen was denying the right of representation to the
people. While they talked, three more employees walked
out. One of the employees, Orlando, asked a question
about insurance and Rosen interjected saying, "You
speak to me; I'm your boss; I'll answer all your questions
about insurance." Menditto asked Rosen to leave, and
Rosen stated once more that nonunion employees had to
leave the meeting then turned and walked out. The ste-
ward election was held and a steward was elected for
the housekeeping department. Menditto stated that he
had not been involved in a steward election before but
the union rules were that only members of the Union in
the bargaining unit could vote for shop stewards. The
General Counsel asked Menditto:
Q. Mr. Menditto, since you have been Business
Agent for the Union, have you held meetings with
employees, both union and non-union, at the Marco
Polo Motel?
A. No, when I had the meetings, only the union
people . . . .
Q. (Interrupting) Please answer my question, Mr.
Menditto, Have you held meetings with ....
A. (Interrupting) Yes; I have.
Morales testified that he arrived at the meeting room
on May 16 at approximately 4:30 p.m. About 25 employ-
ees were in the room. Rosen came in the room and told
the people present that if they were not in the Union
they had no place in the meeting. They were to get out.
Morales asked Rosen whether or not he gave Menditto
permission to hold the shop steward election in the
room. Rosen replied that he did give permission but only
for union members. Morales told Rosen that the Union
represented all employees in housekeeping and Rosen
stated that only the union members. Morales replied,
"The Union under law and under the contract, all the
employees, union and non-union, the Union has a right
to have a delegate to represent all of them." Rosen said
it has nothing to do with the law. He repeated to the em-
ployees, "anybody that's not in the Union, out, out."
Three employees got up and walked out. Morales stated
that he recognized them as housekeepers. Orlando asked
a question about insurance and Rosen said to ask him.
Menditto then engaged Rosen in conversation and Mo-
rales talked to Orlando. Rosen then left the room.
Sandra Tuli, a seamstress in the housekeeping depart-
ment for 11 years, testified that she attended the meeting
on May 16. She responded to the meeting notice which
said there was to be an employee meeting to elect a shop
steward. Before the meeting started, she and Morales
were discussing who should be elected shop steward.
Tuli had been the acting shop steward. Something less
than 30 employees came to the meeting. While the em-
ployees present waited, Rosen came into the room and
said, "Anyone in the room that was not a union member
would have to leave; they would have to leave the
room." Nobody moved, so Rosen said it again. Morales
then said that the Union was representing all the mem-
bers, however, six or so walked out. Three the first time
and three or four the second time. Menditto told Rosen
that he would have to leave the room because he was
not supposed to be at the meeting. Rosen left the meet-
ing room.
Tuli further testified that the employees who left the
room in response to Rosen were new employees in the
laundry department who had not been employed long
enough to be eligible for union membership. The steward
waits until the employees have completed the probation-
ary period before asking them to join the Union.
B. Analysis and Conclusions
The issues to be decided, simply stated, are:
Did Respondent maintain and enforce a policy against
union visitation of nonunion employees on company
premises?
Did Respondent discriminate against nonunion em-
ployees in the bargaining unit by its actions of May 16?
1295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not have before me the validity of the visitation
clause as it appears in the contract. I am faced with a
defense offered by Respondent based upon that clause
and its intent. Although not pleaded as an avoidance of
defense, the General Counsel does argue both the valid-
ity of the clause on its face and the propriety of Re-
spondent's justification for its questioned conduct
through reliance upon the literal interpretation of the
language of the clause.
I must, it seems, deal with technically duplicitous ar-
guments to arrive at a final decision. Where union obli-
gations appear in the argument of the General Counsel
or Respondent, I have considered them only as they may
help to better understand the totality of circumstances
since the case before me involves only a Respondent em-
ployer.
The General Counsel amended the complaint during
the testimony of Rosen to add the additional allegation
of an 8(a)(1) violation. The General Counsel contends
that Rosen's statement that he never permitted the Union
to meet with nonunion employees on the motel property
is evidence that Respondent maintained and enforced a
policy which prohibited the representative of the em-
ployees from meeting with and/or talking with nonunion
employees on Respondent's premises. Rosen's following
statement in his testimony and the response of Menditto
to General Counsel's question of whether the Union ever
held meetings with both union and nonunion employees
in attendance negates any enforcement of the alleged
policy. 3 In my judgment both witnesses clearly show
that meetings with nonunion employees were never re-
quested of the motel management by Menditto. Addi-
tionally, the single statement of Rosen's is much too neb-
ulous to be considered as policy. There is no evidence of
any communication of a policy statement to the Union or
to the employees in the bargaining unit, either orally or
in writing. I therefore conclude and find that the Gener-
al Counsel has not proven by substantial evidence either
the existence or enforcement of the alleged policy. 4
The requested meeting of housekeeping employees to
elect a job steward and the visitation clause relied on by
both parties (albeit out of phase with each other) is a dif-
ferent matter.
I find, contrary to Menditto's direct testimony, in part,
that on May 10 he requested a meeting of union mem-
bers in the housekeeping department on company prem-
ises, for the sole purpose of electing a steward for the
housekeeping department. This finding is supported by
the undisputed facts that only union members can vote in
elections for shop stewards; the election was the sole
purpose of the meeting; a steward was in fact elected on
May 16; and Menditto did not deny he requested a meet-
ing for union members only, either in his testimony re-
3 I credit Menditto's initial response to the General Counsel's question
as shown in the facts and discredit his second solicited and contrary re-
sponse.
4 It was obvious to me that Tuli was the only witness in the case who
was new to the giving of testimony. This is partially explained by the fact
that this is not the first time the parties have met on the same or similar
issues. Further, Rosen's statement to assembled employees is not support-
ive of the allegation in that it was clearly shown to be founded upon the
Union's prior request for the meeting, not a company policy on union
visitation.
calling the events at the meeting or in the initial request
to Rosen for the meeting.
It is undisputed that the Union is the exclusive repre-
sentative of all employees in the established bargaining
unit and that not all employees in the bargaining unit are
members of the Union. Further, Rosen did appear at the
meeting on May 16 and ordered to all employees present
that were not members of the Union to leave the room
and at least 6 employees, of the 25 present, left the meet-
ing.
I do not credit Morales' statement that he recognized
six employees and Menditto's statement that he recog-
nized three employees, who left the meeting, as employ-
ees in the housekeeping department. There is nothing in
their testimony to support their identification, otherwise
self-serving, nor was either's demeanor on this point con-
vincing to me. Neither Menditto nor Morales had met
with nonunion employees in the bargaining unit before
nor was any list of employees disclosed in the record
other than a checkoff list. I conclude that neither Men-
ditto nor Morales had any knowledge of the identity of
the nonunion employees in the housekeeping department.
The more convincing identification of the employees
who left the meeting is found in the testimony of the
acting shop steward of the housekeeping department,
Tuli, who had been in the department for 11 years. Tuli,
although called by the General Counsel, testified as
surely as a disinterested witness. She was forthright in
her response and displayed an intent to answer only
when based upon her personal knowledge. In addition,
her work station is adjacent to the laundry room. I credit
Tuli's testimony completely. I therefore find that the six
employees who left the meeting, as a result of Rosen's
statement, were nonunion employees in the bargaining
unit, employed in the laundry department rather than in
the housekeeping department.
The operative clause of the current contract is as fol-
lows:
Article 3. Authorized representatives of the
UNION shall be permitted to come upon the prem-
ises of the EMPLOYER at reasonable hours for the
purpose of visiting UNION members. Such visits
shall be prearranged with the EMPLOYER and
take place in designated areas and shall not occur
during the busy period of the day in a manner
which would interfere with the orderly and smooth
operation of the EMPLOYER'S business. Shop
stewards, except in emergencies, shall not be per-
mitted to conduct union business on work time.
Respondent bases its defense of Rosen's conduct upon
the Union's meeting request of May 10 and the visitation
clause in the contract. Albeit not specifically stated it is
inherent in Respondent's argument that the Union made
such a restricted request because of the language in the
visitation clause. Counsel relates that no union agent had
ever asked permission of Rosen to allow the Union to
talk to nonmembers on company time at the Marco Polo,
apparently through adherence to the visitation clause.
However, had the Union requested a meeting with non-
members, Rosen would have permitted such a meeting
1296
MARCO POLO RESORT MOTEL
apparently in spite of the language of the visitation
clause. Therefore, what Rosen did was simply to require
the Union to stand by its meeting request and alternative-
ly the clause in the contract, but if the clause in the con-
tract seems too harsh, Rosen would not have denied any
meeting request because of the clause. The substance of
such an argument is wholly pervious and intracontradic-
tory. Respondent cannot have its cake and eat it too.
Further, counsel states, "The Union, obviously has a
right not to talk to non-members if it so desires," appar-
ently without regard for contract visitation rights and
citing Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270
(1956). Such a generalization is of little help and the so-
called "right" is far from "obvious."5
The General Counsel argues that the May 10 meeting
request of the Union was unlawful (contrary to a union's
statutory obligation), therefore the Employer cannot rely
upon its agreement to the Union's request to shield its
conduct on May 16. Although I agree that Respondent
cannot rely upon its May 10 agreement to justify its con-
duct on May 16, I do so because of the particular cir-
cumstances of this case, not a statutory obligation of the
Charging Party. 6 The General Counsel points out that
Respondent presented no evidence of overriding business
reasons for interrupting the meeting of May 16 and de-
manding that nonunion employees leave. I deem the ab-
sence of such evidence as significant. At least some of
the employees present were on their own time whether
they were in the housekeeping department or not. Others
were present with management's approval. The meeting
clearly involved internal union matters not subject to
overview by management. Menditto had previously
turned down Rosen's request to attend the meeting offer-
ing instead to supply Rosen with the results of the meet-
ing. In this posture the interruption and demand by the
Employer constituted interference and restraint of em-
ployees in the bargaining unit. Accordingly, I find that
Respondent, through its manager Rosen violated Section
8(a)(1) on May 16, by removing nonunion employees
from the union meeting on company premises, independ-
ent of the visitation clause or the prior meeting request
of the union representative. In so finding, I note particu-
larly the absence of any evidence or contention from Re-
spondent that the removal of the nonunion employees
was based upon business reasons or any other reasons un-
related to their membership status in the Union. But the
case does not end here.
Respondent specifies that by the language of the visita-
tion clause the motel clearly limits the purpose for which
the Union could come upon the premises.
The General Counsel in response attacks the validity
of the visitation clause, equating visitation rights to bene-
fits enjoyed, contending it restrains nonunion employees
in the bargaining unit of their right to refrain from be-
coming members of the Union, citing Schorr Stern Food
Corp., 227 NLRB 1650 (1977), and Gaynor News Compa-
ny, Inc., 347 U.S. 17 (1954), in which 8(a)(3) discrimina-
Even if the citation were specific, its purpose would escape me.
6 Assuming I was to consider the statutory obligation of the Union, it
is not altogether clear that the Union could not request such a restrictive
meeting for the purpose of electing a shop steward.
tions were found on the basis of disparity among union
members and nonunion members in the bargaining units.'
As I view the evidence herein, the record does not
show that only new employees serving the probationary
period are not members of the Union. Therefore, an em-
ployee in the bargaining unit, not a member of the
Union, could have legitimate questions about the con-
tract and his working conditions or a grievance he
wishes to pursue, but no right to call for an audience
with his union representative on company premises. That
right has been reserved, by contract, only to union mem-
bers, according to the General Counsel's argument and
Respondent's defense. A portion of the General Coun-
sel's argument is in error wherein he states, "The Union
has a legal obligation to meet with and represent all em-
ployees in the unit and it cannot waive that obligation."
It is true that a union must impartially represent all em-
ployees in the unit but whether or not it meets with em-
ployees, particularly on company premises, is a matter of
choice. Considering the language, it would appear that
the Union has waived the right of nonunion employees
in the bargaining unit to meet with union representatives
on company premises. The fact that the nonunion em-
ployees may meet with the union representative off com-
pany premises does not vitiate the preferential effect of
the clause. Section 7 rights of nonunion employees are
thereby subjected to qualifications with no correlative
qualification on rights of union employees. Cf. Ford
Motor Company (Rouge Complex), 233 NLRB 698 (1977),
wherein the Board held that the union could not waive
the right of employees to exercise their Section 7 rights
to distribute literature and the employer violates Section
8(a)(1) by enforcing a clause constituting such a waiver.
Continuing the consideration of the General Counsel's
argument that the clause as written is unlawful, I per-
ceive that once the property right of the Employer has
suffered encroachment, any modification thereof must be
nondiscriminatory, in intent and implementation.
The General Counsel argues, conversely, that a prior
decision of the Board places the visitation clause in the
instant case beyond Respondent's use as a justification
for Rosen's conduct. I assume that the General Counsel
is arguing for application of the judicial precedent
known as "the law of the case." As admitted by Re-
spondent and affirmed by the Union, Administrative
Law Judge Nachman had before him the "association"
which negotiates and administers contracts for Respond-
ent and other employer-members with the Union. Albeit,
Respondent was not directly involved in the prior pro-
ceeding, its association and the contract under considera-
tion here was directly involved. The association offered
before Judge Nachman the identical argument Respond-
ent makes here; i.e., that the visitation clause of the con-
tract permits Respondent to restrict the Union's visitation
on company premises to only members of the Union.
Administrative Law Judge Nachman, in finding an
'Although the General Counsel states in his brief . available only
to unit members, non-union employees .. ." he could only mean.
"available only to union members, non-union unit employees are re-
strained . . ."
'Southern Florida Hotel & Motel .4ssociation. 245 NLRB 561 (1979).
1297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(5) violation based upon a denial of visitation rights
to the union in spite of the visitation clause, considered
the language and intent of the visitation clause. He deter-
mined, from evidence in his record, that the intent of the
association and the union in drafting the clause originally
was not to restrict union visitation except to the extent
of certain times and places on the employer's premises.
His expressed finding was that although the contract uses
the words "union members," the parties meant "union
members," The parties quite clearly placed that construc-
tion on the 1968 contract, and the current contract
(1977) should be so construed.
The Board adopted Administrative Law Judge Nach-
man's decision, including the 8(a)(5) finding, with respect
to union visitation rights. Therefore, the contract re-
mained intact, clause for clause, and his findings thereby
become the Board's disposition of the case. The Board's
disposition of any controversy is the law of the case, par-
ticularly with regard to the same parties or their privies.
I conclude that not only is the subject matter identical in
the two cases but Respondent is privy to the association
and all other hotel and motel members of the association
with respect to the collective-bargaining contract.
Where, as here, the Board is faced with an attempt to re-
litigate a previously determined matter, it refuses to do
so and holds the litigant to the prior determination. The
Board's application of the law of the case as a judicial
precedent is proper and has been approved by the
Courts. The courts clearly hold that a matter having
been once determined by the Board is not open to reliti-
gation before the Board.9
Accordingly, I conclude and find that the construction
of the visitation clause in the prior case (see fn. 8) is
binding and forecloses relitigation by Respondent or con-
sideration by me. I therefore reject Respondent's defense
based upon a contrary interpretation of the visitation
clause along with its' evidence and argument that Ad-
ministrative Law Judge Nachman either had no evidence
in his record to support his finding or that his finding
was otherwise erroneous. In making this finding, I am
mindful that the association is composed of 32 hotel and
motel employers, all of whom do not attempt to restrict
the Union's visitation beyond the terms of the contract.
However, the presence of this Respondent before me,
subsequent to the association's prior case requires that
the association, as agent of Respondent, and all its mem-
bers, as principals, be put on notice that the Board's dis-
position in "245 NLRB 561" applies to all employer-
members of the association or any other employer signa-
tory to the same 1977 contract negotiated with the
Union. '°
I am constrained, in view of prior discussion and as-
suming arguendo, to further find that Respondent's reli-
ance upon a contrary interpretation of the clause would
be unavailing because a literal interpretation of the clause
would make the clause unlawful on its face.
Additionally, I reject Respondent's argument of "most
favored nations clause" as simply accumulative and with-
out efficacy to further justify Respondent's conduct. The
9 N.L.R.B. v. Deaton Truck Line, Inc., 389 F.2d 163 (5th Cir. 1968).
'° To hold otherwise is to invite a parade of hotel respondents seriatim,
each seeking a contrary interpretation of the clause.
reference to a "typographical error" is misplaced if di-
rected at Administrative Law Judge Nachman's decision,
in that his decision dealt with the parties' intent in draft-
ing not the mechanics of typing.
ADDITIONAL CONC.USIONS OF LAW
1. Respondent, by ordering nonunion employees to
leave the union meeting of May 16, interfered with and
restrained employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act. To adequately protect the Section 7 rights of
all employees in the bargaining units of member hotels
and motels of the association who are privy to the same
collective-bargaining contract and to constitute the
notice referred to in the text of this Decision, I shall rec-
ommend that the Southern Florida Hotel and Motel As-
sociation be required to post and distribute to its
member-employers the attached notice.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER't
The Respondent, Marco Polo Resort Motel, Miami
Beach, Florida, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrupting properly held union meetings in prog-
ress on company premises and ordering employees in the
bargaining unit in attendance at such meetings to leave
the meeting due to lack of membership in the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Allow authorized agents of the Union to meet with
employees in the bargaining unit on company premises
without regard for individual employees' membership
status in the Union pursuant to the visitation clause of
the contract.
(b) Post at its motor hotel in Miami Beach, Florida,
copies of the attached notice marked "Appendix."' 2
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
12 In 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
Continued
1298
MARCO POLO RESORT MOTEL
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being duly signed by Re-
spondent's authorized representative, shall be posted 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 ensure that the notices are
not altered, defaced, or covered by any other material.
Additionally, the agent association shall be required to
distribute to its employer members copies of the notice
marked "Appendix."
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Re-
spondent has taken to comply herewith. The association
shall also notify the Regional Director that the required
distribution has been effected as ordered.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleged violations of the Act not spe-
cifically found.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant 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
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT interrupt properly held union
meetings in progress on our premises for the pur-
pose of ordering employees in the bargaining unit in
attendance at such meetings to leave the meeting
due to lack of membership in the Union.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights guaranteed by the National
Labor Relations Act.
WE WILL permit authorized representatives of
Hotel, Motel, Restaurant & Hi-Rise Employees &
Bartenders Union, Local 355, to come on our prem-
ises for the purpose of conferring with our employ-
ees who are in the bargaining unit for which the
Union is the collective-bargaining representative
without regard for the membership status of indi-
vidual employees and pursuant to the visitation
clause in the contract.
MARCO POLO RESORT MOTEL
1299