Ramada Inns, Inc.

RAMADA INNS, INC. Ramada Inns, Inc. and Local 235, Hotel and Restau- rant Employees and Bartenders Union AFL-CIO. Case 7-CA-9627 November 14, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on June 22, 1972, by Local 235, Hotel and Restaurant Employees and Barten- ders Union, AFL-CIO, herein called the Union, and duly served on Ramada Inns, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on July 12, 1972, against Respondent, alleging that Respondent had engaged in and was engaging 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 Judge1 were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 30, 1972, following a Board election in Case 7-RC-11067, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commenc- ing on or about June 1, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On July 24, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 31, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 3, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, called Brief in Opposition. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 Official notice is taken of the record in the representation proceeding, Case 7-RC-11067, as the term "record" is defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystenis, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co v Penello, 269 283 National Labor Relations Board has delegated its authority 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 and response to the Notice To Show Cause, the Respondent contends that the unit found appropriate by the Regional Director in Case 7-RC-10053 is not appropriate and violates Section 9(c)(5) of the Act and that, therefore, the Union cannot be designated and certified as the exclusive representative of the unit employees within the meaning of the Act. Basically, the General Counsel argues that the Respondent is attempting to relitigate issues which were or could have been litigated in the representation case. We agree with the General Counsel. The record in Case 7-RC-10053 shows that the Union sought a unit limited to the "housekeeping department" at the Respondent's Lansing, Michigan, establishment, while the Respondent contended that only an overall unit of the employees working at the motel, restaurant, and bar was appropriate. On the basis of the hearing record, the Regional Director, on April 20, 1972, issued his Decision and Direction of Election in which he found appropriate the unit sought by the Union. Thereafter, the 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 May 12, 1972, the Board denied the request as raising no substantial issues warranting review. In the election conducted on May 19, 1972, the Union received a majority of the votes cast and accordingly, on May 30, 1972, was certified by the Regional Director as the exclusive representative of the employees in the unit found appropriate. It is well settled that in the absence of newly discovered 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 proceeding.3 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly F.Supp 573 (D.C Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. The Respondent's motion to have the record and transcript in the above representation case as part of the record in this case is thus granted. 3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941). Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 200 NLRB No. 19 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, 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 THE RESPONDENT Ramada Inns, Inc., a Delaware corporation, has its principal office and place of business at 3838 East Van Buren Street, Phoenix, Arizona, and maintains other installations in several States of the United States, including Michigan. The Respondent is engaged in the business of providing motel and restaurant services and its motel located at 1000 Ramada Drive, Lansing, Michigan, is the only facility involved in this proceeding. During 1971, a representative period, Respondent in the exercise and conduct of its Lansing, Michigan, motel operation had a gross revenue in excess of $500,000 and purchased and caused to be transport- ed and delivered to its Lansing, Michigan, facility goods and materials valued in excess of $50,000 which were transported and delivered to its Lansing, Michigan, facility directly from points located outside the State of Michigan. More than 50 percent of the Respondent's guests remain at the Lansing Motel less than a month. We find, on the basis of the foregoing, that Respondent 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. II. THE LABOR ORGANIZATION INVOLVED Local 235, Hotel and Restaurant Employees and Bartenders Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. IIL THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time housekeep- ing employees of the Employer at its 1000 Ramada Drive, Lansing, Michigan, establish- ment, including maids, janitors, housemen, paint- ers and maintenance men, but excluding office clerical employees, guards and supervisors as defined in the Act and all other employees. 2. The certification On May 19, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on May 30, 1972, and the Union continues 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 June 1, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 1, 1972, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 1, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent 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 opera- tions described in section I, above, have a close, intimate, and substantial relationship 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 com- merce. RAMADA INNS, INC. 285 V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Ramada Inns, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 235, Hotel and Restaurant Employees and Bartenders Union, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time housekeep- ing employees of the Employer at its 1000 Ramada Drive, Lansing, Michigan, establishment, including maids, janitors, housemen, painters and maintenance men, but excluding office clerical employees guards and supervisors as defined in the Act and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 30, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 1, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has 4 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 engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 meaning of Section 8(a)(1) of the Act. 7. 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 Relations Board hereby orders that Respondent, Ramada Inns, Inc., 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 conditions of employment with Local 235, Hotel and Restaurant Employees and Bartenders Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time housekeep- ing employees of the Employer at its 1000 Ramada Drive, Lansing, Michigan, establish- ment, including maids, janitors, housemen, paint- ers and maintenance men, but excluding office clerical employees, guards and supervisors as defined in the Act and all other employees. (b) 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at the Lansing, Michigan, Ramada Inn establishment, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. 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 described 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. The bargaining unit is: All full-time and regular part-time house- keeping employees of the Employer at its 1000 Ramada Drive, Lansing, Michigan, establishment, including maids, janitors, housemen, painters and maintenance men, but excluding office clerical employees, guards and supervisors as defined in the Act and all other employees. RAMADA INNS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.