Hilton Inn of Tulsa

National Labor Relations Board - Board Decisions

Dec 21, 1972

200 N.L.R.B. 1027 (N.L.R.B. 1972)

HILTON INN OF TULSA 1027
Habana Inn of Tulsa, Inc, d/b/a Hilton Inn of Tulsa
and Hotel and Restaurant Employees ' and Barten-
ders' International Union, Local No 135, AFL-CI-
0 Case 16-CA-4879
December 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on August 3, 1972, by Hotel
and Restaurant Employees' and Bartenders' Interna-
tional Union, Local No 135, AFL-CIO, herein
called the Union, and duly served on Habana Inn of
Tulsa, Inc, d/b/a Hilton Inn of Tulsa, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 16, issued a complaint on August 14, 1972,
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
before an Administrative Law Judge' were duly
served on the parties to this proceeding
With respect to the unfair labor practices, the
complaint alleges in substance that on July 7, 1972,
following a Board election in Case 16-RC-5741, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate, 2 and that, commenc-
ing on or about July 28, 1972, and at all times
thereafter, 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
Subsequently, the Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint, submitting an affirma-
tive defense, and requesting that the complaint be
dismissed
On September 18, 1972, counsel for the General
Counsel filed directly with the Board a Motion to
Amend Complaint and for Summary Judgment, with
exhibits attached,3 submitting, in effect, that the
Respondent, in its answer, raises no issue not already
disposed of in the underlying representation proceed-
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 Official notice is taken of the record in the representation proceeding
Case 16-RC-5741 as the term record' is defined in Secs 102 68 and
102 69(f) of the Board s Rules and Regulations Series 8 as amended See
LTV Electrosystems Inc 166 NLRB 938 enfd 388 F 2d 683 (C A 4, 1968),
Golden Age Beverage Co 167 NLRB 151 Intertype Co v Penello 269
F Supp 573 (D C Va. 1967) Follett Corp 164 NLRB 378 enfd 397 F 2d
91 (C A 7 1968 ) Sec 9(d) of the NLRA
ing, Case 16-RC-5741, and praying the Board to
grant the Motion for Summary Judgment Subse-
quently, on September 26, 1972, the Board issued an
order transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel's
Motion for Summary Judgment should not be
granted Respondent thereafter filed a response to
Notice To Show Cause and brief in support thereof
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 response to the Notice To Show Cause and
brief in support thereof, as in the affirmative defense
alleged in its answer to the complaint, the Respon-
dent attacks the Regional Director's findings and
conclusions set forth in his second and third
supplemental decisions which were affirmed by the
Board in its Decision on Review and Certification of
Representative, issued on July 7, 1972 The Respon-
dent admits that the central issue of the instant
proceeding is whether the certification of representa-
tive issued to the Union is invalid because the
Regional Director and the Board erroneously sus-
tained the challenged ballot of Thomas Payne, and
erroneously considered a spoiled ballot as a "yes"
vote for the Union rather than a void ballot The
Respondent further admits that it declined to
bargain with the Union because of its intention to
test the Union's certification The record of the prior
representation proceeding, which is before us, shows
that the Board in its Decision on Review and
Certification of Representative issued on July 7,
1972, had considered the entire record in this case
with respect to the issues under review, including the
issue of Thomas Payne's eligibility to vote, and the
issue of the validity of the spoiled ballot, and
affirmed the Regional Director's second and third
supplemental decisions 4 Accordingly, the Board
certified the Union as the collective-bargaining
representative of the employees in the unit found
appropriate herein Thus, the Respondent, by attack-
ing the legal effect or validity of the Decision on
Review and Certification of Representative issued by
3 The General Counsels motion to amend complaint is granted to
conform to the exhibits submitted which show that the charge in the instant
proceeding was filed and served on the Respondent on August 3 and 4
1972 respectively rather than on August 8 1972 as set forth in the
complaint
4 The final tally of ballots reflected that 56 votes were cast for and 55
were cast against the Union, with no void ballots and no unresolved
challenged ballots
200 NLRB No 133
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board on July 7, 1972, is attempting to relitigate
the same issues which it raised and litigated in the
prior representation proceeding, Case 16-RC-5741
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding 5
All issues raised by the Respondent in this
proceeding were 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 unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding We shall, accordingly,
grant the Motion for Summary Judgment
On the basis of the entire record, the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
hereto, a corporation duly organized under and
existing by virtue of the laws of the State of
Oklahoma, having its principal office and place of
business at Tulsa, Oklahoma, and is now and has
been at all times material herein engaged at said
place of business as a hotel and less than 75 percent
of its guests remain on the premises for more than a
month at a time Respondent, during the past 12
months, which period is representative of all times
material herein, has received in excess of $500,000
for the sale of goods and services and has made
purchases of goods valued in excess of $50,000 from
suppliers located in States other than the State of
Oklahoma
We find, on the basis of the foregoing, that
Respondent 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
II THE LABOR ORGANIZATION INVOLVED
Hotel and Restaurant Employees' and Bartenders'
International Union, Local No 135, 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act
All the regular full-time and all the regular part-
time employees of the Employer, including the
employees of Copa Hilton, Inc, but excluding all
other employees, office clerical employees, sales
department employees, convention coordinators,
secretaries, accounting department employees,
other administrative employees, front desk clerks,
reservation clerks, PBX operators, casual employ-
ees, watchmen, guards and supervisors as defined
in the Act
2 The certification
On August 19, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 16 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 July 7, 1972, 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 July 16, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaimng representative of all
the employees in the above-described unit Com-
mencing on or about July 28, 1972, 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 representa-
tive for collective bargaining of all employees in said
unit
Accordingly, we find that the Respondent has,
since July 28, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
5 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941)
Rules and Regulations of the Board Secs 102 67(f) and 102 69(c)
HILTON INN OF TULSA 1029
dent 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 the Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, 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 com-
merce
V THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning 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
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected 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, Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd 328 F 2d 600 (C A 5),
cert denied 379 U S 817, Burnett Construction
Company, 149 NLRB 1419, 1421, enfd 350 F 2d 57
(C A 10)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1 Habana Inn of Tulsa, Inc, d/b/a Hilton Inn of
Tulsa, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 Hotel and Restaurant Employees' and Barten-
ders' International Union, Local No 135, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act
3 All the regular full-time and all the regular
part-time employees of the Employer, including the
employees of Copa Hilton, Inc, but excluding all
other employees, office clerical employees, sales
department employees, convention coordinators,
secretaries, accounting department employees, other
administrative employees, front desk clerks, reserva-
tion clerks, PBX operators, casual employees, watch-
men, guards and supervisors as defined 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 July 7, 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
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 July 28, 1972, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
meaning 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
Relations Board hereby orders that Respondent,
Habana Inn of Tulsa, Inc, d/b/a Hilton Inn of
Tulsa, 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
conditions of employment with Hotel and Restau-
rant Employees' and Bartenders' International Un-
ion, Local No 135, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit
All the regular full-time and all the regular part-
time employees of the Employer, including the
employees of Copa Hilton, Inc, but excluding all
other employees, office clerical employees, sales
department employees, convention coordinators,
secretaries, accounting department employees,
other administrative employees, front desk clerks,
reservation clerks, PBX operators, casual employ-
ees, watchmen, guards and supervisors as defined
in the Act
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 Tulsa, Oklahoma, office copies of the
attached notice marked "Appendix "s Copies of said
notice, on forms provided by the Regional Director
for Region 16, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
6 In 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
as the exclusive representative of the employees 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 representa-
tive of all employees in the bargaining unit
described 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 agree-
ment The bargaining unit is
All the regular full-time and all the regular
part-time employees of the Employer, in-
cluding the employees of Copa Hilton, Inc,
but excluding all other employees, office
clerical employees , sales department em-
ployees, convention coordinators , secretar-
ies, accounting department employees, other
administrative employees, front desk clerks,
reservation clerks, PBX operators, casual
employees, watchmen, guards and supervi-
sors as defined in the Act
HABANA INN OF TULSA,
INC, D/B/A HILTON INN
OF TULSA
(Employer)
Dated By
(Representative ) (Title)
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
and Restaurant Employees' and Bartenders'
International Union, Local No 135, AFL-CIO,
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room
8-A-24, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 817-334-2921