Holiday Inn South

HOLIDAY INN SOUTH Holly's Inc., d/b/a Holiday Inn South and Local 235, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 7 CA 15716 March 20, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on October 31, 1978, by Local 235, Hotel and Restaurant Employees and Bartend- ers International Union, AFL CIO, herein called the Union, and duly served on Holly's Inc., d/b/a Holi- day Inn South, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a com- plaint on November 7, 1978, against Respondent, al- leging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on October 3, 1978, following a Board election in Case 7-RC-14971, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate' and that commencing on or about October 20, 1978, 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 and to furnish relevant and necessary bargaining information, al- though the Union has requested and is requesting it to do so. On November 17, 1978, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint. On December 27, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January I 1, 1979, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a response to Notice To Show Cause, and there- i Official notice is taken of the record in the representation proceeding, Case 7-RC- 14971, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the NLRB Rules and Regulations and Statements of Procedure, senes 8. as amended. See LTV Eleclrosyszems, Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968): Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. . Penello, 269 F.Supp. 573 (D.C.Va.. 1967); Follett Corp.. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA, as amended fore the allegations in the Motion for Summary Judg- ment stand uncontroverted. 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, Respondent, in sub- stance, denies the validity of the Union's certification, based on its contention that the Union was at no time the duly designated exclusive bargaining representa- tive of an appropriate unit of employees. Counsel for the General Counsel in his Motion for Summary Judgment argues that Respondent is attempting to relitigate issues which were or could have been liti- gated in the representation case. We agree with the General Counsel. A review of the record in Case 7-RC-14971 shows that the Union sought a unit limited to "all house- keeping persons" at Respondent's Wyoming, Michi- gan, establishment, while Respondent contended that only a unit including its front desk personnel and yardman with the housekeeping employees was ap- propriate. On the basis of the hearing record, the Re- gional Director, on August 10, 1978, issued his Deci- sion and Direction of Election in which he found appropriate the unit sought by the Union. Thereafter, on August 21, 1978, Respondent filed a timely request for review of the Regional Director's Decision and Direction of Election in which it reiterated to the Board its position taken before the Regional Director. On September 7, 1978, the Board denied the request as raising no substantial issues warranting review. In the election conducted on September 8, 1978, the tally of ballots disclosed seven votes for and six against the Union, leaving determinative the two challenged ballots.2 Thereafter, on September 15, 1978, the parties signed a Stipulation on Challenged Ballots which was approved by the Regional Director on September 22, 1978. The stipulation provided, in- ter alia, that the two challenged ballots be opened and counted as those of eligible employee voters. On September 22, 1978, after opening and counting the two challenged ballots, a revised tally of ballots was prepared and served on the parties. This final tally showed that there were eight votes for and seven votes against the Union, and no challenged ballots. Thereafter, on October 3, 1978, in view of the fact that the Union received a majority of the votes cast, 2 On September 15, 1978, the Union filed timely objections to the election, which were withdrawn on September 26, 1978. 241 NLRB No. 28 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Acting Regional Director certified the Union as the exclusive representative of the employees in the unit found appropriate.3 It is well settled that in the absence of newly dis- covered or previously unavailable 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 proceedings All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Michigan corporation, with its prin- cipal office and place of business in Wyoming, Michi- gan, is engaged in the operation of motels and restau- rants providing food, beverages, and lodging services to the general public at various locations. Its facility in Wyoming, Michigan, known as Holiday Inn South, is the only installation involved herein. During the calendar year ending December 31, 1977, a represent- ative period, Respondent, in the course and conduct of said business operations, sold food, beer, liquor, and related items and provided lodging services, the gross revenue of which exceeded $500,000. During this same period of time, Respondent purchased and received at its Holiday Inn South location in excess of $50,000 indirectly from points located outside the State of Michigan. We find, on the basis of the foregoing, that Respon- dent 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 assert jurisdiction herein. On November 30, 1978, the Regional Director issued an order correcting Certification of Representative in which an inadvertent and minor error in Respondent's address was corrected. 'See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941): Board's Rules and Regulations, Secs. 102.67(f) and 102.69(c). 11. THE LABOR ORGANIZATION INVOLVED Local 235, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR I.ABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time housekeeping employees including maids employed by the Em- ployer at its facility located at 250 28th Street, S.W., Wyoming, Michigan; but excluding res- taurant employees, bakery employees, yardman, front desk clerk-porters, front desk clerk-inn- keeper aides, front desk clerk-night auditors, of- fice clerical employees, guards, housekeeper, assistant housekeeper, head maintenance man, guards, other supervisors as defined in the Act, and all other employees. 2. The certification On September 8, 1978, 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 7, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on October 3, 1978, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about October 5, 1978, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit and to furnish it with relevant and necessary bargaining information con- cerning the employees in the above-described unit, including, but not limited to, the employees' names, classifications, rates of pay, and dates of hire. Com- mencing on or about October 20, 1978, and continu- ing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bar- 236 HOLIDAY IN gain with the Union as the exclusive representative for collective bargaining of all employees in said unit and to furnish relevant and necessary bargaining in- formation. Accordingly, we find that Respondent has, since October 20, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit and to furnish relevant and necessary bar- gaining information, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices 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 Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening 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 and furnish relevant and necessary bargaining infor- mation concerning the appropriate unit, including, but not limited to, the employees' names, classifica- tions, rates of pay, and dates of hire. 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 commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: 237 CONCLUSIONS OF LAW 1. Holly's Inc., d/b/a Holiday Inn South, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 235, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time housekeeping employees, including maids, employed by the Em- ployer at its facility located at 250 28th Street, S.W., Wyoming, Michigan; but excluding restaurant em- ployees, bakery employees, yardman, front desk clerk-porters, front desk clerk-innkeeper aides, front desk clerk-night auditors, office clerical employees, guards, housekeeper, assistant housekeeper, head maintenance man, guards, other supervisors as de- fined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since October 3, 1978. 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 October 20, 1978, 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 refusing to furnish relevant and necessary in- formation concerning said employees, including, but not limited to, the employees' names, classifications, rates of pay, and dates of hire, Respondent has en- gaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) of the Act. 7. 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)(l) 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Board hereby orders that Respondent, Holly's Inc., d/b/a Holiday Inn South, Wyoming, Michigan, 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 Local 235, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appropri- ate unit: All full-time and regular part-time housekeeping employees including maids employed by the Em- ployer at its facility located at 250 28th Street, S.W., Wyoming, Michigan; but excluding res- taurant employees, bakery employees, yardman, front desk clerk-porters, front desk clerk-inn- keeper aides, front desk clerk-night auditors, of- fice clerical employees, guards, housekeeper, assistant housekeeper, head maintenance man, guards, other supervisors as defined in the Act, and all other employees. (b) Refusing to furnish relevant and necessary bar- gaining information concerning employees in the above-described unit, including, but not limited to. the employees' names, classifications, rates of pay, and dates of hire. (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, 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 understand- ing is reached, embody such understanding in a signed agreement and upon request furnish relevant and necessary bargaining information concerning em- ployees in the aforesaid appropriate unit, including, but not limited to, the employees' names, classifica- tions, rates of pay, and dates of hire. (b) Post at its Wyoming, Michigan, facility copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Re- spondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be main- '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 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." tained 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. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Local 235, Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT, upon request, refuse to furnish the above-named Union with relevant and neces- sary bargaining information concerning employ- ees in the bargaining unit described below, in- cluding, but not limited to, the employees' names, classifications, rates of pay, and dates of hire. 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, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment and upon request furnish the Union with relevant and necessary bargaining information concerning the employees in the bargaining unit described below, including, but not limited to, the employees' names, classifications, rates of pay, and dates of hire. The bargaining unit is: All full-time and regular part-time housekeep- ing employees including maids employed by the Employer at its facility located at 250 28th Street, S.W., Wyoming, Michigan; but exclud- ing restaurant employees, bakery employees, 238 HOLIDAY INN SOUTH yardman, front desk clerk-porters, front desk clerk-innkeeper aides, front desk clerk-night auditors, office clerical employees, guards, housekeeper, assistant housekeeper, head maintenance man, guards, other supervisors as defined in the Act, and all other employees. HOLLY'S INC., D/B/A HOLIDAY INN SOUTH 239