Hyatt Regency New Orleans

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hyatt Regency New Orleans and United Labor Unions, Local 100. Case 15-CA-835 -2 February 26, 1982 DECISION AND ORDER BY MF.MBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on October 13, 1981, by United Labor Unions, Local 100, herein called the Union, and duly served on Hyatt Regency New Orleans, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a com- plaint on November 16, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 and complaint and notice of hearing before an ad- ministrative 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 September 21, 1981, following a Board election in Case 15- RC-6771,' the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; and that, commencing on or about October 8, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. Further, since on or about October 8, 1981, Respondent has failed and refused to supply information to the Union regard- ing, inter alia, the names, addresses, telephone num- bers, dates of hire, job classifications and rates of pay of all bargaining unit employees; a breakdown of the bargaining unit by departments and job clas- sifications; descriptions of all fringe benefits includ- ing but not limited to vacations, holidays, leaves of absence, sick leave, bereavement pay, jury duty pay, sickness and accident insurance, and pensions; description of overtime policies including daily overtime pay, conditions for refusal of overtime, and division of overtime; description of layoff and recall policies; description of seniority policies, in- ' Official notice is taken of the record in the representation proceed- ing, Case 15-RC-6771, as the term "record" is defined in Sees 102 68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electroystems, Inc., 166 NL.RB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (Sth Cir. 1969); Intertypei Co. v Penello. 269 F Supp 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended 260 NLRB No. 66 cluding their application to benefits; description of disciplinary policies; and all work rules. On No- vember 27, 1981, Respondent filed its answer to the complaint denying all of the allegations in the com- plaint. On December 14, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 17, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed separate responses to the Motion for Summary Judgment and the Notice To Show Cause. The General Counsel also filed a supple- ment to his summary judgment motion. 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: Ruling on the Motion for Summary Judgment In its answer to the complaint and its responses, Respondent contests, inter alia, the appropriateness of the unit and the validity of the Union's certifica- tion. In his Motion for Summary Judgment, coun- sel for the General Counsel alleges that Respond- ent seeks to relitigate issues considered in the un- derlying representation case. We agree. Our review of the record in this case, including the record in Case 15-RC-6771, reveals that, after a hearing, the Regional Director issued a Decision and Direction of Election on May 26, 1981.2 At the hearing, Respondent's attorney stated that the jurisdictional stipulation entered into in 1977 at the representation hearing concerning the New Or- leans, Louisiana, facility was still true and accurate. Based on this stipulation, the Regional Director found that Respondent met the jurisdictional stand- ards of the Board. The Regional Director further found that the appropriate unit consisted of all full- time and regular part-time employees in the Em- ployer's housekeeping, laundry/valet, concierge, and bell staff departments; excluding all front office, pbx, reservations food and beverage, con- vention services, engineering, accounting, sales, personnel, public relations and security personnel, professional employees, guards, and supervisors as defined in the Act. On June 8, Respondent filed a petition for review of the Regional Director's Decision and Di- rection of Election arguing that the Board had vio- l All dates are in 1981, unless ,otherwics indicated 534 HYATT REGENCY NEW ORLEANS lated its own administrative procedures and rules, and had failed to set forth an hourly formula to de- termine whether certain employees shared a suffi- cient community of interest to warrant their inclu- sion in the unit. On June 19, the Board stayed the representation election and remanded the case to the Regional Di- rector with instructions to issue a supplemental de- cision setting forth an eligibility formula for regular part-time employees, casual employees, and on-call employees. On June 30, a second hearing was held to adduce further evidence and, on July 13, the Re- gional Director issued a Supplemental Decision and Direction of Election in which it was dete- mined that Respondent does not employ any part- time, casual, or on-call employees in the appropri- ate unit. In the Supplemental Decision, the Region- al Director found the appropriate unit consisted of all regular employees in the Employer's housekeep- ing, laundry/valet, concierge, and bell staff depart- ments; excluding all front office, pbx, reservations, food and beverage, convention services, engineer- ing, accounting sales, personnel, public relations and security personnel, professional employees, confidential employees, guards, and supervisors as defined in the Act. On July 28, Respondent filed a timely request for review of the Regional Director's Supplemental Decision and Direction of Election. The request for review was denied on August 4. In accordance with the Supplemental Decision and Direction of Election, an election was conducted on August 11, and the tally of ballots furnished the parties after the election showed 134 votes cast for, and 57 against, the Union. There were 17 challenged bal- lots, an insufficient number to affect the results. Re- spondent filed timely objections to the election ar- guing that certain employees who had been includ- ed in the unit in a 1977 representation case involv- ing the same parties should have been allowed to cast challenged ballots and that employees who had been terminated by it prior to the election were wrongfully permitted to vote. After an inves- tigation, the Regional Director on September 21 issued his Supplemental Decision and Certification of Representative in which he overruled the objec- tions in their entirety and certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. Respondent filed a timely request for review of the Regional Director's Supplemental Decision and Certification of Representative. The request for review was denied on December 18 by telegraphic order of the Board. On September 28, the Union, by letter, request- ed, and is continuing to request, Respondent to provide certain information regarding the unit em- ployees for purposes of bargaining including the names, addresses, telephone numbers, dates of hire, job classifications, and rates of pay of all bargain- ing unit employees; a breakdown of the bargaining unit by departments and job classifications; descrip- tions of all fringe benefits including but not limited to vacations, holidays, leaves of absence, sick leave, bereavement pay, jury duty pay, sickness and acci- dent insurance, and pensions; description of over- time policies including daily overtime pay, condi- tions for refusal of overtime, and division of over- time; description of layoff and recall policies; de- scription of seniority policies, including their appli- cation to benefits; description of disciplinary poli- cies; and all work rules. The Union further request- ed Respondent to bargain collectively with it as the collective-bargaining representative of the unit employees. In its answer to the complaint in this case, Re- spondent denies, inter alia, its jurisdictional stand- ing, the Union's status as a labor organization, and its unlawful refusal to bargain with the Union. However, Respondent admitted that it met the Board's jurisdictional requirements in the underly- ing representation proceeding. Further, the Union's status was contested in said representation proceed- ing and the Regional Director found that the Union is a labor organization within the meaning of the Act. Respondent offers nothing to controvert this finding. With respect to its denying that it has refused to bargain with the Union, attached to the General Counsel's Motion for Summary Judgment is a copy of Respondent's letter to the Union, dated October 8, 1981, stating that the Union's request for bargaining and for information relevant to bar- gaining was inappropriate because the issue of the Union's certification was still before the Board. Re- spondent has submitted nothing to controvert this document. Further, it is apparent from Respond- ent's response to the Motion for Summary Judg- ment and the Notice To Show Cause that it desires to test the appropriateness of the unit and the re- sulting representation case. Accordingly, we deem the allegations of the complaint concerning Re- spondent's refusal to bargain to be true. See Geor- gia, Florida, Alabama Transportation Company, 228 NLRB 1321 (1977). Thus, it appears that Respond- ent is attempting to raise issues in the present case which were, or could have been, raised in the un- derlying representation case. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled 535 I)ECISIONS OF NATIONAI LABOR RELATIONS BOARD to relitigate issues which were or could have been litigated in a prior representation proceeding.:' All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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.4 We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment.5 On the basis of the entire record, the Board makes the following: FINI)INGS 01 FACTI I. THI HBUSINESS OF: RESPONI)ENTI Respondent is and has been at all times material herein a California corporation which operates a hotel located in New Orleans, Louisiana, where it provides food, lodging, and related hotel services to transient guests. During the 12 months preced- ing November 16, 1981, a representative period, Respondent derived gross revenues in excess of $500,000, and purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Louisiana. We find, on the basis of the foregoing, that Re- spondent 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. 3 See Pittsburgh Plate Glass Co. v. \'L.R.R, 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). ' Respondent has requested oral argument This request is hereby denied as the record, the pleadings, and the briefs adequately present the issues and the positions of the parties. 6 In its response to the order transferring the proceeding to the Board and Notice To Show Cause, Respondent contends that the order transfer- ring the proceeding to the Board and Notice To Show Cause is void ab inirio because it issued on December 17, 1981, and the Board's denial of the Respondent's request for review of the Regional Director's Supple- mental Decision and Certification of Election in the underlying represen- tation case did not issue until December 18. We find this contention to be without merit The order and notice to which Respondent refers merely transferred and continued the proceeding before the Board. The Board did not consider this case until after Respondent's request for reviews was denied. We further note that Respondent presents no argument that it has been prejudiced by the fact that the Board denied its request for review I day after the order and notice issued in this case Respondent has also requested that the full Board reconsider the denial of Respondent's request for review of the Regional Director's Supple- mental Decision and Certification of Representative. This request is denied It is the policy of the Board for the same panel which decided a case to pass upon it for reconsideration and for the full Board to consider such a motion only if the panel refers it to the full Board. Florida Steel Corporation, 224 NLRB 1033 (1976); Enterprise Industrial Piping Company, 118 NLRB 1 (1957). II. THE I.ABOR ORGANIZATION INVOLVED United Labor Unions, Local 100, is a labor orga- nization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR I.ABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All regular employees in the Employer's housekeeping, laundry/valet, concierge, and bell staff departments; excluding all front office, pbx, reservations, food and beverage, convention services, engineering, accounting, sales, personnel, public relations and security personnel, professional employees, confidential employees, guards, and supervisors as defined in the Act. 2. The certification On August 11, 1981, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 15, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on September 21, 1981, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 28, 1981, and at all times thereafter, the Union has requested Respondent to provide certain requested informa- tion for purposes of bargaining including the names, addresses, telephone numbers, dates of hire, job classifications, and rates of pay of all bargain- ing unit employees; a breakdown of the bargaining unit by departments and job classifications; descrip- tions of all fringe benefits including but not limited to vacations, holidays, leaves of absence, sick leave, bereavement pay, jury duty pay, sickness and acci- dent insurance, and pensions; description of over- time policies including daily overtime pay, condi- tions for refusal to overtime, and division of over- time; description of layoff and recall policies; de- scription of seniority policies, including their appli- 536 HYATT REGENCY NEW ORLEANS cation to benefits; description disciplinary policies; and all work rules; and to bargain collectively with it as the exclusive collective-bargaining representa- tive of all the employees in the above-described unit. The requested information is necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining rep- resentative of the unit employees. Commencing on or about October 8, 1981, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to provide the requested information and to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 8, 1981, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR L ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (lOth Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Hyatt Regency New Orleans is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. United Labor Unions, Local 100, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All regular employees in the Employer's housekeeping, laundry/valet, concierge, and bell staff departments; excluding all front office, pbx, reservations, food and beverage, convention serv- ices, engineering, accounting, sales, personnel, public relations and security personnel, professional employees, confidential employees, guards, and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 21, 1981, 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 October 8, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By failing and refusing on or about October 8, 1981, and at all times thereafter, to supply informa- tion for the purposes of collective bargaining to the above-named labor organization regarding, inter alia, the names, addresses, telephone numbers, dates of hire, job classifications, and rates of pay of all bargaining unit employees; a breakdown of the bargaining unit by departments and job classifica- tions; descriptions of all fringe benefits including but not limited to vacations, holidays, leaves of ab- sence, sick leave, bereavement pay, jury duty pay, sickness and accident insurance, and pensions; de- scription of overtime policies including daily over- time pay, conditions for refusal of overtime, and di- vision of overtime; description of layoff and recall policies; description of seniority policies, including their application to benefits; description of disci- plinary policies; and all work rules, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 537 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. By the aforesaid refusals to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 8. 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 Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Hyatt Regency New Orleans, New Orleans, Lou- isiana, 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 United Labor Unions, Local 100, as the exclusive bargaining rep- resentative of its employees in the following appro- priate unit: All regular employees in the Employer's housekeeping, laundry/valet, concierge, and bell staff departments; excluding all front office, pbx, reservations, food and beverage, convention services, engineering, accounting, sales, personnel public relations and security personnel, professional employees, confidential employees, guards, and supervisors as defined in the Act. (b) Failing and refusing to supply requested in- formation for the purposes of collective bargaining to United Labor Unions, Local 100, regarding, inter alia, the names, addresses, telephone numbers, dates of hire, job classifications, and rates of pay of all bargaining unit employees; a breakdown of the bargaining unit by departments and job classifica- tions; descriptions of all fringe benefits including but not limited to vacations, holidays, leaves of ab- sence, sick leave, bereavement pay, jury duty pay, sickness and accident insurance, and pensions; de- scription of overtime policies including daily over- time pay, conditions for refusal of overtime, and di- vision of overtime; description of layoff and recall policies; description of seniority policies, including their application to benefits; description of disci- plinary policies; and all work rules. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Upon request, supply information to the above-named labor organization for the purposes of collective bargaining as the exclusive representative of all employees in the aforesaid appropriate unit. (c) Post at the Hyatt Regency New Orleans copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 15, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. t I1n Ihe event that this ()rder is enforced hy a Judgment of a United States Court of Appeals, the words ill the niotice reading "'Posted by Order v f the Nati onal I abohr Relations HBoard" shall read "PosIlcd I'ursu - lt to a Judgmenltt of Ihe U nited States Court of Appeals IEnforcing an ()rdcr of the Naitionaill I.labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OFr HE NATIONAI. LABOR RE IATIONS BOARD An Agency of the United States Government WE WIL . NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Labor Unions, Local 100, as the exclusive representative of the employees in the bargaining unit described below. WE WHi.i NOT fail and refuse to supply re- quested information for the purposes of collec- tive bargaining to United Labor Unions, Local 100, as the exclusive representative of the em- ployees in the bargaining unit described below. WFl Wil l NOT in any like or related manner interfere with, restrain, or coerce our employ- 538 HYATT REGENCY NEW ORLEANS ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All regular employees in the Employer's housekeeping, laundry/valet, concierge, and bell staff departments; excluding all front office, pbx, reservations, food and beverage, convention services, engineering, account- ing, sales, personnel, public relations and se- curity personnel, professional employees, confidential employees, guards and supervi- sors as defined in the Act. WE WIl L, upon request, supply information for the purposes of collective bargaining to the above-named Union, as the exclusive repre- sentative of the employees in the bargaining unit described above. HYArr REGEINCY NEW ORI.EANS 539