Novotel New York

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er­ rors so that corrections can be included in the bound volumes. 52nd Street Hotel Associates d/b/a Novotel New York Hotel and New York Hotel and Motel Trades Council, AFL–CIO. Case 2–CA–29660 December 16, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Pursuant to a charge filed on August 28, 1996, the General Counsel of the National Labor Relations Board issued a complaint on October 17, 1996, alleg­ ing that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus­ ing the Union’s request to bargain following the Union’s certification in Case 2–RC–21475. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu­ lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an an­ swer admitting in part and denying in part the allega­ tions in the complaint. On November 19, 1996, the General Counsel filed a Motion for Summary Judgment. On November 21, 1996, the Board issued an order transferring the pro­ ceeding to the Board and a Notice to Show Cause why the motion should not be granted. On December 3, 1996, the Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer, the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis of its objections to the election in the rep­ resentation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior represen­ tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre­ viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro­ ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with an office and place of business located at 226 West 52nd Street, New York, New York, has been en- gaged in the business of the operation of a hotel pro­ viding food and lodging. Annually, the Respondent in conducting its business operations described above, de- rives gross revenues in excess of $500,000 and pur­ chases and receives at its New York, New York facil­ ity, products, goods, and materials valued at more than $5000 directly from points outside the State of New York. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organi­ zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held December 9, 1994, the Union was certified on July 8, 1996,2 as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time employees of the Employer employed at its facility at 226 West 52nd Street, New York, New York, including housekeeping attendants, on-call housekeeping at­ tendants who worked an average of at least 4 hours per week during the preceding calendar quarter, lobby service agents, lead lobby service agents, guest service agents, guest service agent interns, lead guest service agent, front office coor­ dinator, guest relations coordinator, night auditor, night managers, commis de cuisine, first commis de cuisine, tournant, utility persons, cashier/host­ esses, buffet persons, banquet housemen, chef de rang, commis de rang, mini bar attendant, bar- tenders, general maintenance mechanics and lead engineers, but EXCLUDING all Accounting Depart­ ment employees, all Sales Department employees, all managerial employees (including General Manager, Director of Operations, Food and Bev­ erage Director, Human Resources Director, Engi­ neering and Housekeeping Director, Front Office and Guest Services Director, Chef de Cuisine, 1 Member Fox did not participate in the underlying representation proceeding. However, she agrees with her colleagues that the Re­ spondent has raised no new issues in this ‘‘technical’’ 8(a)(5) pro­ ceeding warranting a hearing. 2 321 NLRB No. 93. 322 NLRB No. 121 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International General Manager Trainee, Director of Sales, National Director of Sales, Store Room Manager, Executive Secretary), house officers, on- call housekeeping attendants who did not work an average of at least 4 hours per week during the preceding calendar quarter, all other interns, and guards, professional employees and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since July 18, 1996, the Union has requested the Respondent to bargain, and since August 26, 1996, the Respondent has refused. We find that this refusal con­ stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after August 26, 1996, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac­ tices affecting commerce within the meaning of Sec­ tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec­ tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the un­ derstanding in a signed agreement. To ensure that the employees are accorded the serv­ ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe­ riod of the certification as beginning the date the Re­ spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, 52nd Street Hotel Associates d/b/a Novotel New York Hotel, New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with New York Hotel and Motel Trades Council, AFL–CIO, as the exclusive bar- gaining representative of the employees in the bargain­ ing unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu­ sive representative of the employees in the following appropriate unit on terms and conditions of employ­ ment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time employees of the Employer employed at its facility at 226 West 52nd Street, New York, New York, including housekeeping attendants, on-call housekeeping at­ tendants who worked an average of at least 4 hours per week during the preceding calendar quarter, lobby service agents, lead lobby service agents, guest service agents, guest service agent interns, lead guest service agent, front office coor­ dinator, guest relations coordinator, night auditor, night managers, commis de cuisine, first commis de cuisine, tournant, utility persons, cashier/host­ esses, buffet persons, banquet housemen, chef de rang, commis de rang, mini bar attendant, bar- tenders, general maintenance mechanics and lead engineers, but EXCLUDING all Accounting Depart­ ment employees, all Sales Department employees, all managerial employees (including General Manager, Director of Operations, Food and Bev­ erage Director, Human Resources Director, Engi­ neering and Housekeeping Director, Front Office and Guest Services Director, Chef de Cuisine, International General Manager Trainee, Director of Sales, National Director of Sales, Store Room Manager, Executive Secretary), house officers, on- call housekeeping attendants who did not work an average of at least 4 hours per week during the preceding calendar quarter, all other interns, and guards, professional employees and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in New York, New York, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Regional Director for Region 2 after being signed by the Respondent’s au­ thorized representative, shall be posted by the Re­ spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no­ tices are not altered, defaced, or covered by any other 3 If 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.’’ NOVOTEL NEW YORK HOTEL 3 material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro­ ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re­ spondent at any time since August 28, 1996. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 16, 1996 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll Sarah M. Fox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or­ dered us to post and abide by this notice. WE WILL NOT refuse to bargain with New York Hotel and Motel Trades Council, AFL–CIO as the ex­ clusive representative of our employees in the bargain­ ing unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time employees em­ ployed at our facility at 226 West 52nd Street, New York, New York, including housekeeping at­ tendants, on-call housekeeping attendants who worked an average of at least 4 hours per week during the preceding calendar quarter, lobby serv­ ice agents, lead lobby service agents, guest serv­ ice agents, guest service agent interns, lead guest service agent, front office coordinator, guest rela­ tions coordinator, night auditor, night managers, commis de cuisine, first commis de cuisine, tournant, utility persons, cashier/host- esses, buffet persons, banquet housemen, chef de rang, commis de rang, mini bar attendant, bartenders, general maintenance mechanics and lead engineers, but EXCLUDING all Accounting Department employ­ ees, all Sales Department employees, all manage- rial employees (including General Manager, Di­ rector of Operations, Food and Beverage Director, Human Resources Director, Engineering and Housekeeping Director, Front Office and Guest Services Director, Chef de Cuisine, International General Manager Trainee, Director of Sales, Na­ tional Director of Sales, Store Room Manager, Executive Secretary), house officers, on-call housekeeping attendants who did not work an av­ erage of at least 4 hours per week during the pre- ceding calendar quarter, all other interns, and guards, professional employees and supervisors as defined in the Act. 52 STREET HOTEL ASSOCIATES D/B/A NOVOTEL NEW YORK HOTEL