Columbus Hilton Inn

National Labor Relations Board - Board Decisions

May 14, 1979

242 N.L.R.B. 224 (N.L.R.B. 1979)

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
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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
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