Ritz-Carlton Hotel Co.

659 321 NLRB No. 92 RITZ-CARLTON HOTEL CO. 1 We note in this regard that the Respondent did not request re- view of the Regional Director’s February 21, 1996 Decision and Di- rection of Election in which the Regional Director determined the appropriate unit. In these circumstances, the Respondent is precluded under Sec. 102.67(f) of the Board’s Rules from raising the same issue in the instant proceeding. See A. Bonfatti & Co., 316 NLRB 623 fn. 1 (1995). The Ritz-Carlton Hotel Company and Teamsters Local 830, a/w International Brotherhood of Teamsters, AFL–CIO. Case 4–CA–24880 July 9, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN Pursuant to a charge filed on April 29, 1996, the General Counsel of the National Labor Relations Board issued a complaint on May 10, 1996, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s cer- tification in Case 4–RC–18779. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the com- plaint and asserting an affirmative defense. On June 3, 1996, the General Counsel filed a Mo- tion for Summary Judgment and Memorandum in Sup- port, with exhibits attached. On June 5, 1996, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file 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 that the Union was certified and has since requested bargaining, but attacks the validity of the certification on the ground that the unit is inappropriate, and denies that the Re- spondent has failed and refused to bargain with the Union as the exclusive collective-bargaining represent- ative of the unit. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding.1 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). We also find that no factual issues warranting a hearing are raised by the Respondent’s denial that it has refused to bargain with the Union as the exclusive bargaining representative of the unit. Although the Re- spondent denies this allegation, nowhere in its answer does the Respondent assert that it has offered or agreed to bargain with the Union. On the contrary, the Re- spondent’s only affirmative defense is that the Union’s certification was improper. Moreover, the Respondent has not responded to the General Counsel’s motion and thus has not contested the General Counsel’s as- sertion therein that the Respondent is refusing to bar- gain with the Union. In these circumstances, we find that the Respondent is in fact refusing to bargain with the Union as alleged. See Maple View Manor, 320 NLRB 1149 (1996), and Indeck Energy Services of Turner Falls, 318 NLRB 321 (1995). Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Pennsyl- vania corporation, has operated a hotel in Philadelphia, Pennsylvania. During the 12-month period preceding issuance of the complaint, the Respondent, in conduct- ing its business operations, received gross revenues in excess of $500,000, and purchased and received goods valued in excess of $50,000 directly from points out- side the Commonwealth of Pennsylvania. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held March 14, 1996, the Union was certified on March 25, 1996, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time employees in the Engineering Department at the Employer’s Philadelphia, Pennsylvania hotel, excluding all other employees, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. 660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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.’’ B. Refusal to Bargain About April 12, 1996, the Union, by letter, re- quested that the Respondent recognize and bargain and, since about April 17, 1996, the Respondent has refused. We find that this refusal constitutes an unlaw- ful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after April 17, 1996, to recog- nize and bargain with the Union as the exclusive col- lective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 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 recognize and bargain on request with the Union, and, if an understanding is reached, to embody the understanding 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); and 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, The Ritz-Carlton Hotel Company, Phila- delphia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Team- sters Local 830, a/w International Brotherhood of Teamsters, AFL–CIO as the exclusive bargaining rep- resentative of the employees in the bargaining 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, recognize and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and condi- tions of employment, and if an understanding is reached, embody the understanding in a signed agree- ment: All full-time and regular part-time employees in the Engineering Department at the Employer’s Philadelphia, Pennsylvania hotel, excluding all other employees, guards and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facility in Philadelphia, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized 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 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 April 29, 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. 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 recognize and bargain with Teamsters Local 830, a/w International Brotherhood of Teamsters, AFL–CIO, as the exclusive representative of the employees in the bargaining 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, recognize and 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: 661 RITZ-CARLTON HOTEL CO. All full-time and regular part-time employees in the Engineering Department at our Philadelphia, Pennsylvania hotel, excluding all other employees, guards and supervisors as defined in the Act. THE RITZ-CARLTON HOTEL COMPANY