Marriott International Inc.

328 NLRB No. 127 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Marriott International, Inc. (NJTS) and Teamsters Local Union 617, International Brotherhood of Teamsters, AFL–CIO. Case 22–CA–23232 July 8, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND BRAME Pursuant to a charge filed on March 25, 1999, the General Counsel of the National Labor Relations Board issued a complaint on April 26, 1999, 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 certification in Case 22–RC–11587. (Official notice is taken of the “re- cord” 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, with an affirmative defense, admitting in part and denying in part the allegations in the complaint. On June 1, 1999, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support of Motion for Summary Judgment. On June 3, 1999, 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 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 bar- gain, but attacks the validity of the certification on the basis of the Board’s disposition of a challenged ballot in the representation proceeding. The Respondent alleges as an affirmative defense that the unit was not properly certified. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.1 1 The Respondent’s request that the complaint be dismissed is there- fore denied. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration, with an office and place of business in Edison, New Jersey, is engaged in providing laundry services for its hotel operations at its Edison facility. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations, derived gross revenue in excess of $500,000 and purchased and received at its Edison facility goods and materials valued in excess of $50,000 directly from suppliers located outside the State of New Jersey. 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.2 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held July 31, 1998, the Union was certified on March 18, 1999, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time drivers employed by Respondent at its Edison, New Jersey facility, but ex- cluding all office clerical employees, guards and super- visors as defined in the Act and all other employees. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain By letter dated March 15, 1999, the Union requested the Respondent to recognize and bargain, and, on March 30, 1999, the Respondent refused. We find that this re- fusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after March 30, 1999, to recognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning 2 In its answers, the Respondent states that it is without knowledge or information sufficient to form a belief as to whether the Union is a labor organization within the meaning of Sec. 2(5) of the Act. By entering into a Stipulated Election Agreement in the underlying repre- sentation proceeding, the Respondent agreed that the Union was a labor organization. At no time during the underlying representation pro- ceeding did the Respondent raise a question concerning the Union’s status as a 2(5) labor organization. Its failure to raise this issue in the underlying representation proceeding precludes the Respondent from litigating the matter in this proceeding. See Biewer Wisconsin Sawmill, 306 NLRB 732 fn. 1 (1992). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 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 understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification 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, Marriott International, Inc. (NJTS), Edison, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Teamsters Local Union 617, International Brotherhood of Teamsters, AFL–CIO, as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, 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 exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time drivers employed by Respondent at its Edison, New Jersey facility, but ex- cluding all office clerical employees, guards and super- visors as defined in the Act and all other employees. (b) Within 14 days after service by the Region, post at its facility in Edison, New Jersey, copies of the attached notice marked “Appendix.” 3 Copies of the notice, on forms provided by the Regional Director for Region 22 after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 30, 1999. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. July 8, 1999 John C. Truesdale, Chairman Sarah M. Fox, Member J. Robert Brame III, 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail and refuse to recognize and bargain with Teamsters Local Union 617, International Brother- hood of Teamsters, AFL–CIO, as the exclusive repre- sentative of the employees in the bargaining. 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 employ- ees in the bargaining unit: All full-time and regular part-time drivers employed by us at our Edison, New Jersey facility, but excluding all office clerical employees, guards and supervisors as de- fined in the Act and all other employees. MARRIOTT INTERNATIONAL, INC. (NJTS)