Holiday Inn of Providence-Downtown

HOLIDAY INN OF PROVIDENCE- DOWNTOWN Allen & O'Hara Investments, Inc. d/b/a Holiday Inn of Providence-Downtown, Petitioner and Hotel, Restaurant, Service Employees and Bartenders' Union, Local 285, AFL-CIO. Case 1-RM-722 October 24, 1969 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On April 28, 1969, the Regional Director for Region 1 issued a Decision and Order in the above-entitled case, in which he found that no question concerning representation existed because the Employer had failed to show that the Union had engaged in conduct inconsistent with its disclaimer. Thereafter, pursuant to the National Labor Relations Board Rules and Regulations, the Employer filed a timely request for review of the Regional Director's Decision and Order, in which it contended that the Regional Director's Decision departed from officially reported Board precedent and was clearly erroneous on substantial factual issues. The Union filed opposition thereto On August 4, 1969, the Board by telegraphic Order granted the request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has considered the entire record in this case, including the request for review and the Union's opposition, and makes the following findings- The Employer seeks an election among all its employees, with the customary exclusions, at the Holiday Inn of Providence-Downtown, located at 21 Atwells Avenue, Providence, Rhode Island The Union denied ever requesting recognition and at the hearing disclaimed interest in representing any of the employees despite its continued picketing of the Inn since it began operations in early January 1969 The Regional Director, in effect, found, even assuming the Union had made a request for recognition, that its disclaimer is unequivocal because its picketing is informational in character and not inconsistent therewith. The Employer, in its request for review, contends that the timing of the picketing and facts occurring subsequent to the commencement of the picketing establish that the Union's entire course of conduct is inconsistent with its disclaimer and ineffective to withdraw its earlier claim for recognition We find merit in these contentions. During early 1968, while* the Inn was under construction, the Union made several unsuccessful efforts to contact officials of the Employer. On, May 27, 1968, the Union's business manager, William 179 NLRB No. 58 337 Marrs, sent the following letter to Joseph Suter, Manager of Inn Operations for the Employer's parent, Allen & O'Hara Investments, Inc., at its Memphis, Tennessee headquarters: We, of the Hotel, Restaurant, Service Employees & Bartenders Union, Local 285 AFL-CIO, Providence, R.I., are writing you this letter, seeking your permission and requesting clearance in order to establish proper procedure with the operators of the Holiday Inn in this city, for the sole purpose of signing a Union contract with our union. I have talked with Mr Noonan, Project Manager, here in Providence, and was referred to your office as the next step. If we are granted permission and clearance from you, I would appreciate an answer as soon as possible, as this is of the utmost importance to both the Union and the Holiday Inn. The Employer did not respond to the letter. Thereafter, in June, September, November, and December, the Union made additional efforts to contact Suter or some other representative of the Employer, all without success Marrs stated he gave up trying in December. At 7 a.m., January 6, 1969, the Inn opened for business. At 8:05 a.m. the Union began to picket customer entrances with the signs reading as follows NOTICE TO PUBLIC ONLY This employer does not employ members of the Hotel and Restaurant Employees and Bartenders Union, Local 285, AFL-CIO. Local 285 is not attempting to organize the employees of this establishment and is not requesting recognition for this establishment. Local 285 is not attempting to induce any individual employed by any person in the course of his or her employment to refuse to pick up, deliver, or transport any goods, or not to perform any service Picketing with such signs has continued since that time On January 21, Andrew H. Jackson, general manager for sales for the Inn, walked past Marrs and another picketer. According to Jackson, Marrs asked, "Are you ready to give up"" and Jackson replied, "I never give up," and nothing more was said. Marrs testified that he asked Jackson, "How's business?" and Jackson replied, "You people are really hurting us." Marrs denied Jackson's version of the exchange, stating that "the only thing I said was, `would you like to sign up with us?' meaning Jackson." He explained that Jackson had told him he had been "president of the Pawtucket Newspaper Guild or something," and that his appeal was to Jackson "as a former union member." On January 26, The Providence Journal contained an ad for waitresses which instructed applicants to 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apply at the Downtown Inn between 2 p.m. and 4 p.m. Shortly before 2 p.m. on that day, between 20-50 persons appeared in picket lines at the Inn. They patrolled three or four abreast around the entire building and made efforts to block entry of cars coming onto the property. The regular pickets for Local 285 were supplemented by "volunteers," identified by Marrs as "members of the Laborers," who had been "duly notified by the AFL-CIO." On February 17, the Employer simultaneously filed the instant petition and Section 8(b)(7)(C) unfair labor practice charges in Case 1-CP-151 with respect to the picketing. The Regional Director dismissed the charges on the basis of his determination that the picketing was protected by the second proviso to Section 8(b)(7)(C). At the hearing herein the Union denied that it had ever made a request for recognition. It contends that its letter of May 27, 1968, to Suter, was a request for permission or clearance to enter the premises to talk with "operators," meaning employees, in order to engage in organizational activities. We find no merit in this contention We construe the Union's letter of May 27, 1968, to be a clear request that the Employer recognize it as the representative of its future employees and for a contract covering them. Moreover, we find that Marrs conveyed the Union's continued interest in immediate recognition in his exchange of words with Jackson while the picketing was in progress, whether Jackson's or Marrs' version of what was said be credited In the context of the facts of this case, we do not give weight to Marrs' selfserving testimony that when he asked Jackson whether he would like to sign up, he meant Jackson personally as a union member. Finally, the Union's reaction on January 26 to the Employer's advertisement for waitresses 'We find the cases cited by the Regional Director clearly distinguishable In Miratti s Inc , 132 NLRB 699, the picketing was accounted for by uncontradicted testimony which showed that it had no recognitional objective and was intended to correct a misrepresentation by the Employer that he was operating under a union contract which he did not then have, in Martino's Complete Home Furnishings , 145 NLRB 604, almost 2 years had elapsed since the last communication with the Employer and there was no claim , written or oral, that the union represented employees or desired recognition , in Raymond F Schweitzer Inc t/a Old Angus Restaurant, appears to belie its contention that by its picketing it was simply trying to inform customers that the hotel was nonunion and thus discourage patronage Upon the entire record in this case, we conclude that the Union's purported disclaimer of interest, in the light of its recent demand for recognition, its picketing, and its other inconsistent conduct, simply cannot be accepted at face value.' Accordingly, we find that the Union never abandoned its purpose to press upon the Employer a demand for immediate recognition, thereby establishing the existence of a question affecting commerce concerning the representation of employees of the Employer within the meaning of Section 9(c)(l) and Section 2(6) and (7) of the Act.' We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All employees of the Employer employed at its Inn located at 21 Atwells Avenue, Providence, Rhode Island, excluding office clerical employees, guards, professional employees and supervisors as defined in the Act.3 [Direction of Election 4 omitted from publication.] 165 NLRB No 84, unlike the present case , there had been request for recognition prior to the commencement of picketing which requested the public not to patronize the Employer because it paid substandard wages and had substandard working conditions and the petition was not filed until 14 months after the picketing commenced 'Capitol Market No 1, Capitol Market No 2, 145 NLRB 1430, 1431-32 'The unit is that alleged by the Employer and is in accord with the Board's unit policy in the hotel and motel industry The Union took no position as to the appropriate unit but it is noted the unit found is coextensive with the Union's demand for recognition 'in order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company, 394 U S 759 Accordingly , it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region I within 7 days of the date of this Decision on Review and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed