Hotel Sofitel San Francisco

311 303 NLRB No. 44 HOTEL SOFITEL SAN FRANCISCO French International Corporation d/b/a Hotel Sofitel San Francisco Bay at Redwood Shores and Hotel Employees and Restaurant Employ- ees Union, Local 340, AFL–CIO. Case 20–CA– 23232–1 June 10, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On May 1, 1990, the General Counsel of the Na- tional Labor Relations Board issued a complaint 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 20–RC–16418. (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 its an- swer admitting in part and denying in part the allega- tions in the complaint. On March 25, 1991, the General Counsel filed a Motion for Summary Judgment. On March 27, 1991, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. The Respondent filed a re- sponse. 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 the Board’s unit determination in the rep- resentation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. Although Respondent has submitted affidavits and other materials in support of its opposi- tion to the motion, much of the material concerns mat- ters not raised in Respondent’s request for review and not unavailable prior to certification. The Respondent cannot now properly seek to introduce such material. In addition, even accepting the submitted material as true, there is nothing 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. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, French International Corporation d/b/a Hotel Sofitel San Francisco Bay at Redwood Shores, a Delaware corporation, has been engaged in the operation of a luxury hotel, providing lodging, food, and beverages at its facility in Redwood City, California, where it annually derives gross revenues in excess of $500,000 and purchases and receives prod- ucts, goods, and materials valued in excess of $5000 which originated from points outside the State of Cali- fornia. 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. I. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following an election on January 5, 1990, the Union was certified on February 14, 1990, as the collective- bargaining representative of the employees in the fol- lowing appropriate unit: All full-time and regular part-time housekeeping department employees, including room attendants, housepersons, inspector/inspectresses, uniform room attendants, laundry room attendants, and lobby attendants employed by the Employer at its Redwood City, California location; 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. B. Refusal to Bargain Since February 20, 1990, the Union has requested the Respondent to bargain, and, since March 9, 1990, the Respondent has refused. We find that this refusal constitutes 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 March 9, 1990, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 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 Rela- tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ 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 law, we shall construe the initial period of the certification as beginning the date the Respondent 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, French International Corporation d/b/a Hotel Sofitel San Francisco Bay at Redwood Shores, Redwood City, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Hotel Employees and Restaurant Employees, Local 340, AFL–CIO as the ex- clusive bargaining representative 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, 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 housekeeping department employees, including room attendants, housepersons, inspector/inspectresses, uniform room attendants, laundry room attendants, and lobby attendants employed by the Employer at its Redwood City, California location; excluding all other employees, guards and supervisors as de- fined in the Act. (b) Post at its facility in Redwood City, California, copies of the attached notice marked ‘‘Appendix.’’1 Copies of the notice, on forms provided by the Re- gional Director for Region 20 after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained 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 notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent 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 bargain with Hotel Employ- ees and Restaurant Employees, Local 340, 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, 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 housekeeping department employees, including room attendants, housepersons, inspector/inspectresses, uniform room attendants, laundry room attendants, and lobby attendants employed by the Employer at its Redwood City, California location; excluding all other employees, guards and supervisors as de- fined in the Act. FRENCH INTERNATIONAL CORPORATION D/B/A HOTEL SOFITEL SAN FRANCISCO BAY AT REDWOOD SHORES