Atlanta Cabana Motor Hotel

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlanta Cabana Motor Hotel and Hotel, Motel and Restaurant Employees Union, Local 151, AFL- CI-O. Case 10-CA-10059 November 7, 1973 DECISION AND ORDER BY MEMBERS JERKINS, KENNEDY, AND PENELLO Upon a charge filed on March 26, 1973, by Hotel, Motel and Restaurant Employees Union, Local 151, AFL-CIO, herein called the Union, and duly served on Atlanta Cabana Motor Hotel, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint on May 8, 1973, 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 Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on February 20, 1973, following a Board election in Case 10-RC-9345 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate; I and that, commencing on or about March 6, 1973, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On May 18, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 11, 1973, counsel for the General Counsel filed directly with the Board a motion for summary judgment. Subsequently, on June 20, 1973, 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. The Board has received no response to its notice to show cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 Official notice is taken of the record in the representation proceeding, Case 10-RC-9345, 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 Electrosystemr, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (C.A. 4, 1968); 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 admits its refusal to bargain with the certified bargaining agent and its grant of a unilateral wage increase after certification of the Union but contends that the certification was invalid because the Union's preelec- tion conduct had been so coercive as to render a free choice of representative impossible. It further con- tends, but does not support or particularize the contention, that the irregular conduct of the Board's election agent invalidated the election. We find that Respondent's contentions in its answer to the complaint were a reiteration of those it raised, and which were litigated and decided in the underlying representation proceeding and must, accordingly, be denied. The record in Case 10-RC-9345 indicates that pursuant to a stipulation for certification upon consent election, an election was conducted among the employees in the stipulated unit. The tally of ballots showed that of approximately 44 eligible voters, 36 cast ballots, of which 18 were for, and 11 against, the Union, while 2 were void and 5 were challenged. Thereafter, Respondent filed timely objections to the conduct of the election and to conduct affecting the results of the election. The objections alleged, in substance, that an unidentified person threatened an employee with some unspeci- fied retribution if the latter did not vote for the Union; that not all of the evidence submitted to the Board's investigator was considered by the Regional Director; that the ballot box and unmarked ballots were left unattended by the Board agent for 3 or 4 minutes during the voting period; and that the Board agent had been rude and abusive to the Respondent's election observer. After an investigation, the Regional Director issued his report on objections in which he recommended that the objections be overruled in their entirety. Respondent filed timely exceptions to the report on objections in which it reargued its objections and alleged that one of its objections presented a factual determination that deserved a hearing. The Board, on February 20, 1973, issued a decision and certification of representative in which it adopted the findings, conclusions, and recommendations of the Regional Director and certified the Union. In its answer to the complaint herein, Respondent reiter- ates the objections it had raised before the Regional Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Pencil a, 269 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. 207 NLRB No. 11 ATLANTA CABANA MOTOR HOTEL Director and the Board in the representation case but does not contend that it has new or previously unavailable evidence or that it is entitled to a hearing. 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.? 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 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 1. THE BUSINESS OF THE RESPONDENT Respondent, a Georgia corporation with an office and place of business in Atlanta, Georgia, received gross revenues during the past calendar year in excess of $500,000. During this same period Respon- dent purchased and received products valued in excess of $50,000 directly from suppliers within the State of Georgia, who, in turn, received such products directly from suppliers located outside the State of Georgia. 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 Hotel, Motel and Restaurant Employees Union, Local 151, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 9 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 employees, including meeting set-up men, employed by the Respondent at its motor hotel at 870 Peachtree Street, N.E., Atlanta, Georgia, but excluding all office clerical employees, front office employees, sales personnel, garage attend- ants, guards and supervisors as defined in the Act. 2. The certification On October 24, 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 10, 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 February 20, 1973, 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 March 6 , 1973, 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 March 6, 1973, 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. Subsequent to the Union's certification, the Respondent unilaterally granted a wage increase. Accordingly, we find that the Respondent has, since March 6, 1973, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and by granting its employees wage increases unilaterally and without notice to, or consultation with, the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 2 See Pittsburgh Plate Glass Co. v. NL.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c). 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 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. We shall also order that Respondent cease and desist from granting its employees unilateral wage increases without notice to, or consultation with, the Union. 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, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Atlanta Cabana Motor Hotel is an employer engaged in commerce within the meamng of Section 2(6) and (7) of the Act. 2. Hotel, Motel and Restaurant Employees Un- ion, Local 151, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees, including meeting set-up men employed by the Respondent at its motor hotel at 870 Peachtree Street, N.E., Atlanta, Georgia, but excluding all office clerical employees, front office employees, sales personnel, garage attendants, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 20, 1973, 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 March 6, 1973, 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, and by granting unilateral wage increases without notice to, or consultation with, the Union, Respondent has 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, Atlanta Cabana Motor Hotel, Atlanta, Georgia, 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 Hotel, Motel and Restaurant Employees, Local 151, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees, including meeting set-up men, employed by the Respondent at its motor hotel at 870 Peachtree Street, N.E., Atlanta, Georgia, but excluding all office clerical employees, front office employees, sales personnel, garage attend- ants, guards and supervisors as defined in the Act. (b) Granting its employees wage increases unilater- ally and without notice to, or consultation with, the Union. (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: ATLANTA CABANA MOTOR HOTEL 11 (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 its office and motor hotel at 870 Peachtree Street, N.E., Atlanta, Georgia, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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." the employees in the bargaining unit described below. WE WILL NOT grant our employees wage increases unilaterally and without notice to, or consultation with the Union. 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 employees, including meeting set-up men, employed by Respondent at its motor hotel at 870 Peachtree Street, N.E., Atlanta, Georgia, but excluding all office clerical employees, front office employees, sales personnel, garage attendants, guards and supervisors as defined in the Act. ATLANTA CABANA MOTOR HOTEL (Employer) 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 Hotel, Motel and Restaurant Employees Union, Local 151, AFL-CIO, as the exclusive representative of 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, Peachtree Building, Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.