Columbus Hilton Inn

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbus HI, Inc., d/b/a Columbus Hilton Inn and Hotel, Motel Restaurant Employees and Bartenders Union, Local 505, AFL-CIO. Case 9-CA-13403-1 May 14, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on January 23, 1979, by Hotel, Motel Restaurant Employees and Bartenders Union, Local 505, AFL-CIO, herein called the Union, and duly served on Columbus HI, Inc., d/b/a Columbus Hilton Inn, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a com- plaint and notice of hearing on February 6, 1979, 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 Na- tional 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 com- plaint alleges in substance that on October 24, 1978, following a Board election in Case 9-RC-12496, 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 October 26, 1978, and at all times there- after, 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 February 22, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 2, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and memorandum in support thereof, with exhibits attached. The General Counsel requests that the Board take official notice of the record in the un- derlying representation proceeding, Case 9-RC- 12496. He submits, in effect, that Respondent, in its answer, is attempting to relitigate issues which were or could have been litigated in the prior representa- I Official notice is taken of the record in the representation proceeding. Case 9-RC-12496, 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 (4th Cir. 1968); Golden Age Beverage Co,, 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969): Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va, 1967): Follelr Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. tion proceeding, and that there are no unresolved is- sues requiring an evidentiary hearing. He therefore moves that all allegations of the complaint be deemed to be true and be so found, and that a decision, in- cluding findings of fact and conclusions of law and remedial order, be issued. Thereafter, on March 12, 1979, Respondent filed a "Memorandum Contra to Motion for Summary Judgment" opposing the Gen- eral Counsel's Motion for Summary Judgment pri- marily on the ground that there were and remain liti- gable issues which were timely raised in the representation proceeding and which were neither in- vestigated, heard, nor considered by the Regional Di- rector or the Board. Subsequently, on March 19, 1979, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a memorandum in response to the Notice To Show Cause, with exhibits attached. 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, its "Memorandum Contra to Motion for Summary Judgment" and its memorandum in response to the Notice To Show Cause, Respondent admits that the charge was duly filed and served on it; that the Union is a labor or- ganization as defined in Section 2(5) of the Act; that a majority of Respondent's employees in the unit de- scribed herein by secret ballot designated and se- lected the Union as their representative for the pur- pose of collective bargaining; that on or about October 24, 1978, the Regional Director for Region 9 issued a Certification of Representative (Case 9-RC- 12496) in the instant case; that commencing on or about October 26, 1978, the Union requested, and is requesting, Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive bargaining representative of all the employ- ees of Respondent in the unit set forth herein; and that Respondent has refused and maintained that it is under no obligation to bargain with the Union. Re- spondent denied all other allegations of the com- plaint. Respondent contends that there were and re- main litigable issues timely raised in the representation proceeding which were neither investi- gated, heard, nor considered by the Regional Director or by the Board, in issuing the decision relating to the 242 NLRB No. 38 224 COIA.tIMBIS HIlI'ON INN representation proceeding. The General Counsel con- tends, in substance, that. since the sole issue raised by Respondent is the validity of the certification in Case 9-RC-12496. Respondent is precluded from litigating in this case any issue which was or could have been raised in the representation proceeding. We agree with the General Counsel. Our review of the record herein, including that in the underlying representation proceeding, Case 9 RC-12496, shows that the election in this matter was held on August 25, 1978. pursuant to a Decision and Direction of Election dated July 20. 1978. and a ma- jority of Respondent's employees designated the Union as their exclusive representative. On August 31, 1978. Respondent filed objections to conduct af- fecting the results of the election. On October 24. 1978, following an investigation of the objections. the Regional Director issued a Supplemental Decision and Certification of Representative in which he over- ruled Respondent's objections and certified the Union as the bargaining representative for Respondent's em- ployees in the unit set forth herein. Respondent there- after filed a motion for reconsideration. On Novem- ber 28, 1978, after further investigation of the issues raised by Respondent's objections. the Regional Di- rector issued an Amended Supplemental Decision re- affirming the findings reached in his Supplemental Decision which overruled Respondent's objections and certified the Union. On December 28, 1978, the Board, by telegram, denied Respondent's request for review of the Regional Director's Amended Supple- mental Decision overruling its objections.2 The sole issue raised by Respondent in its answer to the com- plaint, its "Memorandum Contra to the Motion for Summary Judgment." and its memorandum in re- sponse to the Notice To Show Cause is the validity of the certification in Case 9-RC- 12496. It thus appears that Respondent is endeavoring to relitigate issues considered and determined in the representation pro- ceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.3 2 In denying the request for review, which alleged. inter liar, that during the campaign in the underlying representation proceeding the i:nion en- gaged in material misrepresentations. Chairman Fanning and Member Truesdale concluded that the alleged objections raised no substantial issues warranting resiew even under the standards set forth in the Board's Decision in General Knit ofCalifornia Inc. 239 NLRB 619 (1978). Member Penella. in denying review, relied on the principles expressed in Shopping Karl Food Markets Inc.. 228 NLRB 1311 1977). to which he still adheres. See his dissent in General Knii. supra. t See Prishurgh Plate Glass Co v. N'L.R.B., 313 U.S. 146, 162 tl1941): Rules and Regulations of the Board, Secs 102 67(r) and 102,691cl All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding. and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence. nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which i prop- erly litigable in this unfair labor practice proceeding. Accordingly. we grant the Motion for Summary Judgment. On the basis of the entire record. the Board makes the following: FINDI)N(;S I- F Ai I. F'lli Blt'SINLSS )OF RI:SPONI)I N I At all times material herein, Respondent, an Ohio corporation with facilities located in Columbus. Ohio, has operated a motel tfor transient guests at Colum- bus. Ohio. During the past 12 months, a representa- tive period, Respondent received gross revenue in ex- cess of $500,000. During the same period, Respondent purchased and received goods and sup- plies valued in excess of $5,000 from nonretail enter- prises located in the State of Ohio, each of whom, in turn, purchased and received those goods and sup- plies at their respective Ohio facilities directly from points outside the State of' Ohio. We find on the basis of the foregoing that Respon- dent 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. 11. 1111 LABOR OR(i,l/.AZrION INVOLV.F Hotel. Motel Restaurant Employees and Bartend- ers Union, Local 505. AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 1ll. 11IH UNFAIR I.ABOR PRA(CTI('iS A. 7The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time housekeeping employees, inspectors, maids, housemen, laundry workers and maintenance employees employed 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent at its Columbus, Ohio, facility, excluding sales employees, front desk clerks, night auditors, professional employees, guards and supervisors as defined in the Act. 2. The certification On August 25, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 9, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on October 24, 1978, and the Union contin- ues 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 October 26, 1978, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about October 26, 1978, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, 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 26, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate 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 described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 138 NLRB 785 (1962); Commerce Company d/bla Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Columbus HI, Inc., d/b/a Columbus Hilton Inn, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Motel Restaurant Employees and Bar- tenders Union, Local 505, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time housekeeping employees, inspectors, maids, housemen, laundry workers, and maintenance employees employed by Respondent at its Columbus. Ohio, facility, excluding sales employees, front desk clerks, night auditors, pro- fessional employees, guards and supervisors an de- fined 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 October 24, 1978, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 26, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- 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 interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- 226 C(OLUMBUS HIlTON INN tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I ) 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 Rela- tions Board hereby orders that the Respondent. Co- lumbus HI. Inc., d/b/a Columbus Hilton Inn, ('o- lumbus, Ohio, 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 con- ditions of employment with Hotel, Motel Restaurant Employees and Bartenders Union, Local 505, AFt. CIO, as the exclusive bargaining representative of' its employees in the following appropriate unit: All full-time and regular part-time housekeeping employees. inspectors. maids. housemen. laundry workers and maintenance employees employed by Respondent at its Columbus. Ohio, facility, excluding sales employees, front desk clerks, night auditors, professional employees. guards 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 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 understand- ing is reached. embody such understanding in a signed agreement. (b) Post at its Columbus, Ohio, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on fiorms provided by the Regional Direc- 4 In the event that this Order is enforced hby a Judgment of a United States Court of Appeals. the Words in the notice reading "Posted bh Order of the National Labor Relations Board" shall read "Posted Pursuant Io a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" tor for Region 9. after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it ftr 60 consecutive da\s thereafter. in conspicu- ouIs places. including all places where notices to em- ployees are customaril\ posted. Reasonable steps shall be taken b Respondent to insure that said no- tices are not altered. defaced. or covered by an, other material. (c) Notify the Regional Director for Region 9, in writing. within 20 days from the date of this Order. what steps have been taken to comply herewith. APPENDIX Not[cF. To Epl.iloY:s PO()SI:I) BY ORIDER () IIi NA AI. I.AB()R RI.AII()NS BOARD An Agency of' the United States Government \'. W'rjI.I Not refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions oft' emplo\,ment with Hotel. Motel Restaurant Emploees and Bartenders Union. L.ocal 505. AFI CIO. as the exclusive representative of the employees in the bargaining unit described below. Wril AIe N 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. 'Wi' \II.. upon request. bargain with the above-named Union. as the exclusive representa- tive of all emplobees in the bargaining unit de- scribed 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 agreement. The bargaining unit is: All full-time and regular part-time housekeep- ing employees, inspectors, maids, housemen. laundry workers and maintenance employees employed by us at our Columbus, Ohio. facil- ity, excluding sales employees, front desk clerks, night auditors. professional employees. guards and supervisors as defined in the Act. C()OI.NsBt s HI, IN( ., I/B/A CO() lIMt:s I Hi- ION INN 227