Lamar Hotel

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failure to duplicate it in Spanish was likely to have increased the possible impact of the misrepresentation. For, it was by virtue of this explanation that the apparent great difference between the rates might be evaluated. But it appears that approximately one-third of the employees were fluent in or could understand only Spanish. These employees received no explanation, because no translation was made of the explanatory sentence. Hence, these employees were very likely to have been confused and misled. Under all these circumstances, we find that the Petitioner exceeded the bounds of fair lawful electioneering and interfered with the free choice of the employees. Accordingly, we hereby overrule the deci- sion of the Regional Director and set aside the election, and we shall direct that a second election be conducted. [Text of Direction of Second Election omitted from publication. j MEMBERS RODGERS and LEEDOM, concurring : We concur in the result. Commerce Company d/b/a Lamar Hotel and Hotel & Restau- rant Employees & Bartenders International Union, AFL-CIO. Case No. 23-CA-1463. December 21, 1962 DECISION AND ORDER On October 30, 1962, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report.' Thereafter, the Respondent filed exceptions to the In- termediate Report 2 and the General Counsel filed limited exceptions.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 'We hereby correct the following inadvertent errors in the Intermediate Report: In the section entitled " C. The refusal to bargain," the date of the first letter to the Re- spondent should be July 14, 1962, instead of July 12, and the date of the third letter should be July 24 Instead of July 20. 2 As the record , including the exceptions , adequately presents the issues and the posi- tions of the parties , the Respondent 's request for oral argument is hereby denied. 3 The General Counsel excepted to the apparently inadvertent omission from the Find- ings of Fact in the Intermediate Report of the following jurisdictional fact: "During this same period less than 75 % of its guests remained for a month or longer." Inasmuch as this was alleged in the complaint and admitted by the Respondent in its answer, the Intermediate Report is amended accordingly. 140 NLRB No. 32. LAMAR HOTEL 227 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed on July 31, 1962, by Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board through the Acting Regional Di- rector for the Twenty-third Region issued a complaint, dated August 3, 1962, alleg- ing that Commerce Company d/b/a Lamar Hotel,' herein called the Respondent or the Company, has engaged in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Star. 519, herein called the Act. The Respondent's answer denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Houston, Texas, on September 24, 1962, before Trial Examiner Reeves R. Hilton. All parties were present and represented at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. When some question was raised regarding the proper name of the Respondent, the hearing, with the consent of all parties, was continued until October 9. On October 8, I received a stipulation and motion to close the record executed by all parties and on the same date I issued a telegraphic order receiving the stipulation in evidence and closing the record.2 In accordance with the terms of the stipulation the parties reserved the right to file briefs on or before October 22. On October 19, I received a brief from the General Counsel. Upon the entire record in the case, including the record in prior representation and decertification cases, I make the following: FINDINGS OF FACT I. THE CORRECT NAME AND BUSINESS OF THE RESPONDENT The complaint alleges that Lamar Hotel, a Texas corporation, maintains its principal office and place of business at Houston, Texas, where it is engaged in operat- ing a hotel. During the 12 months preceding the issuance of the complaint the gross revenue from its hotel operation exceeded $500,000, and in the same period it pur- chased goods and materials which were shipped to it directly from points outside the State of Texas, valued in excess of $5,000. The answer admits the jurisdictional fact allegations, but avers the Respondent, Lamar Hotel, is not a Texas corporation. In the above-mentioned stipulation the parties stipulated that: Respondent, LAMAR HOTEL, is a trade name of the Commerce Company, a Texas corporation, and has been at all times material herein. I, therefore, find and conclude that the correct and proper name of the Respondent is the one set forth in the caption of this case and the correction applies to all references to Lamar Hotel in the pleadings herein. 1 The correct name of the Respondent as stipulated by all parties. 2 The stipulation, motion, and order are received in evidence and marked "Trial Exam- iner's Exhibit No. 1." 681-492-63-vol. 140--16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to the Respondent's assertion that the admitted jurisdictional facts do not establish the requisite jurisdictional commerce, I find the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated that the Union is a labor organization within the meaning ,of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. The issue The question presented is whether the Company refused to bargain collectively -with the Union about July 14, 20, and 24, 1962, after it had been certified by the Board as the statutory representative of the Company's employees in a unit ap- propriate for the purpose of collective bargaining. The facts are not disputed and the issue here is a legal one. B. Proceedings leading to the Union 's certification On August 15, 1960, the Union filed a petition and after hearing the Board issued its Decision and Direction of Election and thereafter an election was conducted -among the employees as directed .3 Subsequently, the Board on September 12, 1960, pursuant to the Company's motion for redetermination , amended the bargaining unit as follows: All employees of the Employer at the Lamar Hotel , Houston, Texas, includ- ing regular part-time employees, office clerical employees, auditing department employees, but excluding temporary and irregular part-time employees, confi- dential empoyees, professional employees , guards, and supervisors as defined in the Act. ,On September 23, 1960 , the Regional Director issued a certification of representa- tive to the Union as the exclusive bargaining representative of the Company's em- ployees in the above-described unit. Thereafter the Union and the Company engaged in collective bargaining and a dispute arose with respect to the unit placement of 11 employees. As a result of this ,dispute the Union , on March 28 , 1961 , filed a charge alleging that the Company had ,refused to bargain in violation of Section 8(a) (5) of the Act.4 On May 18, 1961 , the Union withdrew its charge and filed a motion for clarifica- tion of the certified unit, and requested a hearing to determine the unit placement of the 11 employees named therein . On November 6, 1961 , the Board issued an order directing supplemental hearing for the purpose of taking testimony and other evidence as to the unit placement of the 11 employees in dispute. On November 13, 1961, after the certification year had expired , a decertification petition was filed by an employee asserting the Union was no longer the representa- tive of the employees in the above -described unit, as defined in Section 9(a) of the Act 5 The Regional Director thereupon consolidated the motion for clarification and the RD proceeding for the purpose of hearing. Following the hearing, the Board , on July 12, 1962, issued a Supplemental De- cision Clarifying Certification of Representatives and Order Dismissing Decertifica- tion Petition,6 herein referred to as the Supplemental Decision. In brief, the Board clarified the unit by specifically including therein and excluding therefrom the em- ployees in the dispute , granted the Union's motion to dismiss decertification petition because it was untimely, and, as the certification year had expired , granted the Union an additional period of 6 months from the resumption of negotiations to engage in collective bargaining. C. The refusal to bargain On July 12, 1962, the Union sent a letter to the Company wherein it stated that in accordance with the Supplemental Decision it was submitting two copies of a proposed contract and requested a reply within 5 days respecting the time, date, and place to commence negotiations. $Lamar Hotel, Case No. 23-RC-1561 (not published in NLRB volumes). 4 Case No 23-CA-1193. s Cage No 23-RD-100 4137 NLRB 1271 LAMAR HOTEL 229 On July 20, the Union addressed a second letter to the Company requesting a list of employees, the pay rate for each department included in the certified unit and changes, if any, in the pay schedule since the date of certification. On July 20, the Union sent a third letter to the Company wherein it pointed out the Company had failed to answer its request to commence contract negotiations and ad- vised the Company it was available and ready to confer at any time, date, and place, and requested a reply within 5 days regarding the commencement of bargaining negotiations. By letter dated July 27, the Company notified the Union it was refusing to bargain with it for the following reasons: (1) The Union no longer represents a majority of the hotel employees and the Hotel has a good faith doubt that the Union represents a majority of its employees. (2) The Board's erroneous refusal to order an election on the decertification petition does not alter the Union's loss of majority status; moreover, the Board's erroneous order does not impose on the Hotel any lawful obligation to bargain. (3) The filing of the Decertification Petition, the employees' signatures sub- mitted to the Board on the supporting petitions, and the demands of the Peti- tioner in the decertification case that the Hotel refuse to bargain plainly es- tablishes the Hotel's belief-the Union lost its majonty-is not only reasonable but plainly right. As appears above, the Union filed a charge on July 31, and the complaint issued on August 3. Concluding Findings The complaint in substance alleges that subsequent to the Union's demands for bargaining negotiations on July 14, 20, and 24, the Company since July 27 has unequivocally refused to meet or otherwise bargain with the Union as the exclusive representative of its employees in the unit described above. The answer of the Company admits the appropriateness of the unit and that it refused and is now refusing to bargain collectively with the Union. Affirmatively, the Company seeks to justify its refusal to bargain on the same grounds as set forth in its letter of July 27, to the Union, namely that the Union did not, and does not, represent a majority of the employees in the unit and that the Company and the employees supporting the decertification petition are entitled to an election to determine whether the Union represents a majority of the employees in the certified unit.? The answer further states that the Union's motion for clarification did not deprive the employees of their statutory right to renounce the Union, nor did the pro- tracted litigation of this motion operate to extend the certification year so as to preclude the employees from asserting their right to renounce the Union. Plainly, the Company's refusal to bargain with the Union stems from its dis- agreement with the findings and conclusions in the Board's Supplemental Decision for all issues and arguments advanced here were appropriately presented to and fully considered and determined by the Board in its Supplemental Decision .8 It is, of course, well settled that issues which have been fully litigated in a prior repre- sentation proceeding may not be relitigated thereafter in a complaint proceeding, unless it can be shown that facts not then known had subsequently become avail- able and were of substantial materiality to the resolution of the issues involved.9 7 On August 7, 1962, Joe Melton and other employees filed a petition of intervention in this case, which the Regional Director referred to the Trial Examiners Division for ruling thereon The General Counsel filed his opposition to the petition and on August 21, Trial Examiner George A Downing issued an order denying the petition for leave to intervene. Neither Melton nor any other employee appeared at the hearing on September 24, 1962 i There is no merit to the Company's contentions that the Supplemental Order is not an "order to bargain," and that a new election should be held in the certified unit since the Union no longer represents a majority of the employees therein, as evidenced by the decertification proceeding. While an order certifying a union is not a final order within the meaning of Section 10(f) of the Act, the Supreme Court, in Ray Brooks v N L R B , 348 U S 96, held that an employer is under a statutory duty to bargain with the union certified by the Board, even though shortly after the election which resulted in the certifi- cation, the union lost its majority through no fault of the employer See also NLRB. v Clark & Lewis, 274 F 2d 817 (CA. 5) 6 Pittsburgh Plate Glass Company v N.L R.B , 313 U S. 146, 161-162; N L R B v West Kentucky Coal Company, 152 F 2d 198, 200-201 (CA 6), cert denied 328 U.S 866 ; Allis-Chalmers Manufacturing Company v. N L R B , 162 F 2d 435 (C.A 7) ; Quaker 'City Life Insurance Company, 138 NLRB 61 ; Continental Bus System, Inc d/b/a Con- tinental Rocky Mountain Lines, Inc , 138 NLRB 894 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company having declined the Union's request to bargain in the certified unit on July 27, 19'62, I find that on that date and at all times thereafter the Company has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit in violation of Section 8(a)(5) of the Act and has thereby interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a) (1) thereof.io IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce 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 the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that the Respondent cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Commerce Company d/b/a Lamar Hotel is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, is a labor organization as defined in Section 2(5) of the Act. 3. All employees of the Respondent at the Lamar Hotel, Houston, Texas, in- cluding regular part-time employees, office clerical employees, auditing department employees, but excluding temporary and irregular part-time employees, confidential employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining with the meaning of Section 9(b) of the Act. 4. The above-named labor organization was on September 23, 1960, and at all times thereafter, the exclusive representative of all employees in the aforesaid appro- priate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on and since July 27, 19'62, to bargain collectively with the above- named labor organization as the exclusive representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings and conclusions and the entire record , and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent , Commerce Company d/b/a Lamar Hotel, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours of employment, and other conditions of employment , with Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, as the exclusive representative of all its employees in the following appropriate unit: All employees of the Respondent at the Lamar Hotel, Houston, Texas, in- cluding regular part-time employees , office clerical employees, auditing depart- ment employees, but excluding temporary and irregular part-time employees, confidential employees, professional employees , guards, and supervisors as de- fined in the Act. 10 Quaker City Life Insurance Company and Continental Bus System, Inc d/b/a Con- tinental Rocky Mountain Lines, Inc, supra; Sam Belz Upholstered Products Company. Inc, 138 NLRB 433, Howard Rip pee, et al, d/b/a Pacific Multifarms Company, 138 NLRB 796 LAMAR HOTEL 231 (b) In any like or related manner, interfering with the efforts of Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, to bargain collectively for the employees in the said appropriate unit as the exclusive bargaining agent. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Hotel & Restaurant Employees & Bar- tenders International Union, AFL-CIO, as the exclusive bargaining agent in the appropriate unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at the Lamar Hotel, Houston, Texas, copies of the attached notice marked "Appendix." ii Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it 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 such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.12 u In the event that this Recommended Order be adopted by the Board the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 12 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain with Hotel & Restaurant Employees & Bar- tenders International Union, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of the Respondent at the Lamar Hotel, Houston, Texas, including regular part-time employees, office clerical employees, auditing department employees, but excluding temporary and irregular part-time employees, confidential employees, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with the efforts of Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, to bar- gain collectively for the employees in the appropriate unit as the exclusive bargaining agent. COMMERCE COMPANY D/B/A LAMAR HOTEL, Employer Dated------------------- By------------------------------------------- (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. Employees may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston 2, Texas. Telephone No. Capitol 8-0611, Extension 271, if they have any question concerning this notice or compliance with its provisions.