Holiday Inn of Dunkirk-Fredonia

DUNKIRK MOTOR INN 61 Dunkirk Motor Inn, Inc., d/b/a Holiday Inn of Dun- kirk-Fredonia and Amalgamated Meatcutters and Butcher Workmen of North America, Local 34, AFL-CIO. Case 3-CA-5747 November 22, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO sel. Subsequently, on August 28, 1974, 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. 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: Upon a charge filed on July 12, 1974, by Amal- gamated Meatcutters and Butcher Workmen of North America, Local 34, AFL-CIO, herein called the Union, and duly served on Dunkirk Motor Inn, Inc., d/b/a Holiday Inn of Dunkirk-Fredonia, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint on July 25, 1974, 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, com- plaint, 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 com- plaint alleges in substance that on June 12, 1974, fol- lowing a Board election in Case 3-RC-5678, 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 July 1, 1974, and at all times thereafter, Re- spondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, and to furnish information necessary and relevant for intelligent collective bar- gaining, although the Union has requested, and is re- questing, it to do so. On August 5, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 19, 1974, counsel for the General Coun- sel filed directly with the Board a motion to transfer proceeding to the Board, to strike Respondent's answer in part, to strike alleged affirmative defenses, and for summary judgment. Thereafter, the Charging Party joined in this motion of counsel for the General Coun- I Official notice is taken of the record in the representation proceeding, Case 3-RC-5678, as the term "record" is defined in Secs 102 68 and 102 69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (C A. 4, 1968), Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F 2d 26 (CA 5, 1969), Intertype Co v. Penello, 269 F Supp 573 (D C Va , 1967), Follett Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, the Respondent, in effect, at- tacks the validity of the Union's majority status and certification because the Board improperly found cer- tain voters to be supervisors and therefore ineligible to vote and because the Board failed to set aside the elec- tion on the Respondent's Objection 1, alleging the Union's offer to waive initiation fees. Our review of the record herein, including that in Case 3-RC=5678, reveals that, pursuant to a Stipula- tion for Certification Upon Consent Election, an elec- tion was conducted on May 11, 1973, among the em- ployees in the stipulated bargaining unit. The tally of ballots showed that, of the approximately 67 eligible voters, 20 voted for, and 18 against, the Union, with 5 challenged ballots.' Respondent filed two timely ob- jections to conduct affecting the results of the election, alleging, in substance, (1) that the Union's offer to waive initiation fees, if it won the election, and (2) that its threats of reprisal for failing to vote for it both constituted coercive conduct which interfered with the election. After an investigation, the Acting Regional Director issued, on June 8, 1973, a report on challenges and objections in which he recommended that the chal- lenges be sustained, the objections overruled, and the Union certified as the bargaining representative of the unit employees. The Respondent thereafter filed timely exceptions to the Acting Regional Director's findings (1) that Ni- chols, Straight, and Hancock were supervisors and therefore ineligible to vote, and (2) that there was no merit in Objection 1 which alleged that the Union's offer to waive initiation fees coercively interfered with the election. On August 22, 1973, the Board, after con- sidering the Acting Regional Director's report and ex- ceptions thereto, issued an unpublished Decision and Order Directing Hearing in which it adopted the recommendations as to the objections and as to two of 2 John Addabo, Fleury Richmond, Sandra Ann Nichols, John Leslie Straight, and Ruth Alice Hancock 215 NLRB No. 29 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the challenges and in which it directed a hearing on the three challenged ballots on Nichols, Straight, and Han- cock. On October 25, 1973, after a hearing in which the Respondent and Union participated, the Hearing Of- ficer issued a report in which he found that Straight was an employee and Nichols and Hancock were super- visors. Accordingly, he recommended that the chal- lenge to Straight's ballot be overruled, the challenges to the ballots of Nichols and Hancock be sustained, a revised tally be issued, and the Union certified. The Respondent filed exceptions to the report with a sup- porting brief in which it reasserted its Objection I and also argued that Nichols and Hancock were employees rather than supervisors. After considering the Hearing Officer's report, the exceptions, the briefs, and the entire record, the Board panel (Chairman Miller concurring and dissenting in part) issued a Supplemental Decision and Certification of Representative (211 NLRB 461 (1974)) in which it adopted, with minor modifications, the Hearing Of- ficer's findings and recommendations sustaining the challenges to the ballots of Nichols and Hancock on the ground that they were supervisors (Chairman Miller dissenting as to Hancock) and affirming the propriety of the Acting Regional Director's finding that the offer to waive initiation fees, alleged in Objection 1, did not fall within the proscription of the Supreme Court's decision in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973), and therefore did not interfere with the election. Accordingly, the Board certified the Union. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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 proceed- ing were or could have been litigated in the prior re- presentation 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 prop- erly litigable in this unfair labor practice proceeding.4 We shall, accordingly, grant the Motion 3 See Pittsburgh Plate Glass Co v. N.L.R.B., 313 U S 146, 162 (1941); Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 4 In view of the Respondent's failure to file an answer to the allegations of the complaint concerning the filing and service of the instant charge and concerning the Union's status as a labor organization within the meaning of Sec. 2(5) of the Act, these allegations are deemed to be admitted to be true and are so found (Sec. 102 20 of the Board's Rules and Regulations) The for Summary Judgment.' On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation, main- tains its principal office and place of business on Route 60, Dunkirk, New York, where it is engaged in the business of operating a motel and restaurant. During the past year, the Respondent had gross reve- nues in excess of $500,000 and purchased, transferred, and delivered to its Dunkirk motel and restaurant foods, supplies, and materials valued in excess of $50,- 000 of which in excess of $50,000 were transported to said motel and restaurant directly from States other than the State of New York. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED • Amalgamated Meatcutters and Butcher Workmen of North America, Local 34, 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 The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All waitresses, kitchen help, desk clerks, house- maids, busboys, cooks, dishwashers, maintenance, and bartenders, including regular part- time em- ployees and other housekeeping personnel; exclud- ing all office clerical employees, secretaries, sales personnel, professional employees, guards, and all Respondent also demanded strict proof (1) as to the Union's certification and representative status, and (2) as to the necessity and relevancy of the information requested by the Union As to (1), this has been established in the underlying representation case and may not be relitigated , as to (2), we agree with the counsel for the General Counsel's assertion that the informa- tion is presumptively necessary and relevant to intelligent bargaining, espe- cially since the Respondent's letter of July 1, 1974, questioned only the validity of the Union's certification and not the necessity and relevancy of the requested information 5 In view of our determination herein, we deem it unnecessary to rule on the General Counsel's motion to strike part of the Respondent 's answer DUNKIRK MOTOR INN other employees and supervisors as defined in the Act. 2. The certification On May 11, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 3, designated the Union as their representa- tive for the purpose of collective bargaining with the Respondent. The Union was certified as the collective- bargaining representative of the employees in said unit on July 12, 1974, 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 17, 1974, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit and to furnish information necessary and relevant to intelligent collective bargain- ing, regarding the employees in the bargaining unit, their addresses, starting dates, rates of pay, and classifi- cations; names and addresses of employees in the bar- gaining unit on layoff, sick leave, or other leave; a copy of any health and welfare, pension, savings, and/or disability plans the Respondent has; and a copy of Respondent's rules or practices in effect. Commencing on or about July 1, 1974, 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 representative for collective bar- gaining of all employees in said unit. Accordingly, we find that the Respondent has, since July 1, 1974, 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, 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 de- scribed 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 commerce. V THE REMEDY 63 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, bar- gain collectively with the Union as the exclusive re- presentative of all employees in the approrpiate unit, and, if an understanding is reached, embody such un- derstanding in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785(1962); Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Com- pany, 149 NLRB 1419, 1421 (1964), 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. Dunkirk Motor Inn, Inc., d/b/a Holiday Inn of Dunkirk-Fredonia, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meatcutters and Butcher Workmen of North America, Local 34, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All waitresses, kitchen help, desk clerks, house- maids, busboys, cooks, dishwashers, maintenance, and bartenders, including regular part-time employees and other housekeeping personnel; excluding all office clerical employees, secretaries, sales personnel, profes- sional employees, guards, and all other employees 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 June 12, 1974, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 17, 1974, 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 to furnish the necessary and relevant information requested, Respondent has en- 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged 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, Respondent has interfered with, restrained, and coerced, and is in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended , the National Labor Relations Board hereby orders that Respondent, Dunkirk Motor Inn, Inc., d/b/a Holiday Inn of Dunkirk-Fredonia, Dunkirk, New York, 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 Amalgamated Meatcutters and Butcher Workmen of North America, Local 34, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All waitresses, kitchen help, desk clerks, house- maids, busboys, cooks, dishwashers, maintenance, and bartenders, including regular part-time em- ployees and other housekeeping personnel ; exclud- ing all office clerical employees, secretaries, sales personnel, professional employees , guards, and all other employees and supervisors as defined in the Act. (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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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 provide the necessary and relevant informa- tion regarding employees in the bargaining unit, their addresses, starting dates, rates of pay, and classifica- tion; names and addresses of employees in the bargain- ing unit on layoff, sick leave, or other leave; a copy of any health and welfare, pension, savings, and/or disa- bility plan it has; and a copy of its rules or practices in effect. (b) Post at its motel and restaurant in Dunkirk, New York, copies of the attached notice marked "Appendix."' Copies of said notice, on forms pro- vided by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. CHAIRMAN MILLER, dissenting: In the Board's Supplemental Decision and Certifica- tion of Representative in Case 3-RC-5678, I dissented from my colleagues' finding that Hancock was a statu- tory supervisor because I could find nothing in the record which could support that finding. Accordingly, in my view, the election results were still in doubt and the Union's certification was therefore being prema- turely issued. In these circumstances, I would not find that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union or to furnish it information and, accordingly, I would deny the Motion for Summary Judgment. 6 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 " 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Amalgamated Meatcutters and Butcher Workmen of North America, Local 34, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. DUNKIRK MOTOR INN 65 WE WILL, upon request, bargain with the above- named Union, as the exclusive representative 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 under- standing in a signed agreement . The bargaining unit is: All waitresses, kitchen help, desk clerks, housemaids, busboys, cooks, dishwashers, maintenance, and bartenders, including regular part-time employees and other housekeeping personnel; excluding all office clerical em- ployees, secretaries, sales personnel, profes- sional employees, guards, and all other em- ployees and supervisors as defined in the Act. WE WILL provide the Union with necessary and relevant information regarding employees in the bargaining unit, their addresses, starting dates, rates of pay, and classifications; names and ad- dresses of employees in the bargaining unit on layoff, sick leave, or other leave; a copy of any health and welfare, pension, savings, and/or disa- bility plans we have; and a copy of our rules and practices in effect. DUNKIRK MOTOR INN, INC, d/b/a HOLIDAY INN OF DUNKIRK-FREDONIA