Gateway Motor Lodge

National Labor Relations Board - Board Decisions

Feb 11, 1976

222 N.L.R.B. 851 (N.L.R.B. 1976)

GATEWAY MOTOR LODGE
Travel Rest, Inc. d/b/a Gateway Motor Lodge and
Hotel, Motel, Bartenders , Restaurant, Cafeteria,
and Miscellaneous Workers Union Local 267,
AFL-CIO. Case 4-CA-7233
February 11, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
Upon a charge filed on February 3, 1975, by Ho-
tel, Motel, Bartenders, Restaurant, Cafeteria, and
Miscellaneous Workers Union Local 267, AFL-CIO,
herein called the Union, and duly_ served on Travel
Rest, Inc., d/b/a Gateway Motor Lodge, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 4, issued a complaint on May 30,
1975, 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
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing be-
fore 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 December 23,
1974, following a Board election in Case
4-RC-1 1154, the Union was duly certified as the ex-
clusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate; I and that, commencing on or about January 27,
1975, and at all times thereafter, Respondent has re-
fused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On June 10 and 23,
1975, respectively, Respondent filed its answer and
amended answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On September 22, 1975, counsel for the Acting
General Counsel,- herein called General Counsel,
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on October 6, 1975, the
Board issued an order transferring the proceeding to
1 Official notice is taken of the record in the representation proceeding,
Case 4-RC-11154, 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 (C.A.4,
1968); Golden Age Beverage Co 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A 5, 1969); Intertype Co v. Penello, 269 F.Supp 573 D.C Va., 1967);
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F 2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
851
the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter filed,
as a response to Notice To Show Cause, a motion for
judgment on the pleadings and for dismissal of the
complaint, and a memorandum in support of its mo-
tion and in opposition to the General Counsel's sum-
mary judgment motion.
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 Motions for Summary Judgment
Review of the record herein, including the record
in Case 4-RC-1 1154, reveals that, pursuant to an
agreement for consent election, an election was held
on September 23, 1974, which the Union won. There-
after, Respondent filed timely objections to the con-
duct of the election, but did not contest the Board's
assertion of jurisdiction. On December 23, 1974, the
Regional Director issued his Report on Objections to
Election and Certification of Bargaining Representa-
tive, in which he overruled Respondent's objections
in their entirety and certified the Union.
In the instant refusal-to-bargain proceeding, sub-
sequent to the execution of the consent election
agreement and subsequent to the election and certifi-
cation of the -Union, Respondent's answer to the
complaint and response to the Notice To - Show
Cause for the first time raise jurisdictional issues as
defenses to the 8(a)(5) allegation. Respondent admits
the statutory jurisdiction of the Board, but contends
that the General Counsel's motion must be denied
and the complaint must be dismissed herein on the
basis of lack of Board discretionary jurisdiction both
in the underlying representation case and over this
unfair labor practice proceeding.
We cannot accept Respondent's contentions in
this regard. It is uncontroverted that Respondent en-
tered into the agreement for consent election which
states that the Respondent "is engaged in commerce
within the meaning of Section 2(6)(7) of the National
Labor Relations Act," and that it did not contest
jurisdiction in the representation case . The General
Counsel alleges that, in connection with the consent
election agreement, Respondent "stated that its gross
volume of business during the previous year exceed-
ed $500,000." Respondent denies that it "knowingly
represented that its gross volume of business during
the previous year exceeded $500,000" (emphasis sup-
plied), and avers that its gross volume of business
222 NLRB No. 135
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not meet and never has met the Board's
$500,000 discretionary jurisdictional standard for ho-
tels and motels?
With respect to the issue of the Board's discretion-
ary jurisdiction in the underlying representation case,
we find it unnecessary to resolve this arguable con-
flict in the pleadings? In our view, while a question
concerning the Board's statutory jurisdiction may be
raised at any time, where a party contests the Board's
assertion of jurisdiction under one of its discretion-
ary standards, the issue must be timely raised. In the
present case, Respondent had the opportunity to
contest jurisdiction in the representation case and it
failed to do so. It is well settled that in the absence of
newly discovered or previously unavailable evidence
or special circumstances a respondent in a proceed-
ing alleging a violation of Section 8(a)(5) is not enti-
tled to relitigate issues which were or could have
been litigated in a prior representation proceeding.4
The representation case jurisdictional issue raised by
the Respondent in this proceeding was or could have
been litigated in the prior representation proceeding,
and the Respondent does not offer to adduce at a
hearing any newly discovered or previously unavail-
able evidence, nor does it allege that any special cir-
cumstances exist herein which would require the
Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that the rep-
resentation case jurisdictional issue is not properly
litigable in this unfair labor practice proceeding.5
With respect to Respondent's contention that the
Board lacks jurisdiction over the instant unfair labor
practice complaint because its gross volume of busi-
ness for the year ending September 30, 1974, was
$373,417.40, and at no time exceeded $500,000, we
find this contention to be similarly without merit. As
noted above, even accepting Respondent's represen-
tation of its gross volume of business to be true, it is
clear that Respondent is subject to the Board's statu-
tory jurisdiction 6 In reliance on the Board's assertion
2 Floridan Hotel of Tampa, 124 NLRB 261 (1959).
3 We also note in this regard that the denial in the Respondent 's answer
that it knowingly represented that its gross volume of business exceeded
$500,000 fails to specifically deny the General Counsel's allegation that, in
connection with the agreement for consent election, Respondent "stated
that its gross volume of business during the previous year exceeded
$500,000." As provided in Sec. 102.20 of our Rules and Regulations, "any
allegation in the complaint not specifically denied or explained in an answer
filed, unless the respondent shall state in the answer that he is without
knowledge, shall be deemed to be admitted to be true and shall be so found
by the Board, unless good cause to the contrary is shown."
4 See Pittsburg Plate Glass Co. v. N LR B, 313 U S 146, 162, (1941),
Rules and Regulations of the Board , Secs 102.67(f) and 102.69(c).
5 Jack L Williams, D D S, d/b/a Empire Dental Co, 211 NLRB No. 127
(1974); Hospice of Alverne, 195 NLRB 313 (1972)
6 In addition to the concession made in the consent election agreement,
the Respondent's amended answer admits that it "annually purchases from
other employers engaged in commerce , goods and services in an amount of
approximately $ 10,000."
of jurisdiction in the underlying representation case,
Respondent's employees have engaged in protected
concerted activity and have selected the Union as
their exclusive representative for collective-bargain-
ing purposes. In the circumstances of this case, where
the statutory jurisdiction of the Board is clear, and
where Respondent, its employees, and the Union
have relied on the Board's assertion of jurisdiction in
the representation case, and where these employees
and their certified Union justifiably expect to secure
the benefits of collective bargaining as a consequence
of such reliance, we believe it would effectuate the
policies of the Act to continue to assert jurisdiction
herein, notwithstanding the fact that Respondent
may not meet our discretionary jurisdictional stan-
dards?
On the basis of our disposition of Respondent's
jurisdictional defenses and Respondent's admission
as to its refusal to bargain, we shall, accordingly,
deny Respondent's motion for judgment on the
pleadings and for dismissal of the complaint and
grant the General Counsel's Motion for Summary
Judgment.8
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, is engaged
in providing motel and lodging services at its prem-
ises located on U.S. Route 13 in New Castle, Dela-
ware. Respondent provides services to persons travel-
ing in interstate commerce and annually purchases
from other employers engaged in commerce goods
and services in the amount of approximately $10,000.
During the 12-month period ending September 30,
1974, a representative period, Respondent's gross
volume of business was approximately $373,000.
We find, on the basis of the foregoing, and on the
basis of the agreement for consent election, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
7 See Children 's Baptist Home of Southern California, 215 NLRB No. 44
(1974). Seventeen-Fifty, Inc, d/b/a Marie Antoinette Hotel, 129 NLRB 1504
(1961), cited to us by Respondent , is distinguishable from the instant case in
that it involved a successor employer who had not been a party to the
repsresentation case jurisdictional stipulation
In view of our decision herein, we find without merit Respondent's de-
fense that the complaint fails to contain a clear and concise statement of the
facts upon which assertion of jurisdiction by the Board is predicated and,
therefore, fails to satisfy Sec 102 15 of our Rules and Regulations.
- GATEWAY MOTOR LODGE
II. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel, Bartenders, Restaurant, Cafeteria,
and Miscellaneous Workers Union Local 267, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act. .
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All maids and maintenance men, excluding of-
fice clericals, guards, truckdrivers, salesmen, su-
pervisors as defined in the Act, and all others
excluded by law.
2. The certification
On September 23, 1974, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 4, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on December 23, 1974, and the
Union continues 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 December 24, 1974, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about January 27, 1975, and continuing at all
times thereafter to date, the Respondent has refused,
and continues 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 the Respondent has,
since January 27, 1975, and at all times thereafter,
refused to-bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
853
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 opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce 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 commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Travel Rest, Inc., d/b/a Gateway Motor
Lodge, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Hotel, Motel, Bartenders, Restaurant, Cafete-
ria, and Miscellaneous Workers Union Local 267,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All maids and maintenance men, excluding of-
fice clericals, guards, truckdrivers, salesmen, supervi-
sors as defined in the Act, and all others excluded by
law, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since December 23, 1974, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aforesaid appropriate unit for the purpose, of-collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
- 5. By refusing on or about January 27, 1975, 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 to them in
Section 7 of the Act, and thereby has engaged in -and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) 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 Re-
lations Board hereby'orders that Respondent, Travel
Rest, Inc., d/b/a Gateway Motor Lodge, New Cas-
tle, Delaware, its officers, agents, successors, and as-
signs, 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, Barten-
ders, Restaurant, Cafeteria, and Miscellaneous
Workers Union Local 267, AFL-CIO, as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All maids and maintenance men, excluding of-
fice clericals, guards, truckdrivers, salesmen, su-
pervisors as defined in the Act, and all others
excluded by law.
(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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Dupont Highway, New Castle, Del-
aware, location, copies of the attached notice marked
"Appendix." 9 Copies of said notice, on-forms pro-
vided by the Regional Director for Region 4, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
9In the event that 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 "
APPENDIX
NOTICE To EMPLOYEES -
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Hotel,
Motel, Bartenders, Restaurant, Cafeteria, and
Miscellaneous Workers Union Local 267, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT 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.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 maids and maintenance men, excluding
office clericals, guards, truckdrivers , sales-
men, supervisors as defined in the Act, and all
others excluded by law.
TRAVEL REST, INC., d/b/a GATEWAY MOTOR
LODGE