Holiday Inn of Oak Ridge, Tennessee

National Labor Relations Board - Board Decisions

Mar 4, 1970

181 N.L.R.B. 505 (N.L.R.B. 1970)

HOLIDAY INN OF OAK RIDGE , TENN. 505
Holiday Inns of America , Inc., d / b/a Holiday Inn of
Oak Ridge , Tennessee and Local 150-T, Building
Service Employees International Union , AFL-CIO.
Case 10-CA-7943
March 4, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH, AND MEMBERS
FANNING, BROWN, AND JENKINS
Upon a charge and an amended charge filed by
Local 150-T, Building Service Employees
International Union, AFL-CIO, herein called the
Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 10, issued a complaint, dated October 6,
1969, against Holiday Inns of America, Inc., d/b/a
Holiday Inn of Oak Ridge, Tennessee, herein called
the Respondent, alleging that the Respondent has
engaged in and is engaging in unfair labor practices
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 original
and amended charges and the complaint were duly
served on the Respondent.
The complaint alleges that on August 7, 1969, the
Union was certified, in Case 10-RM-500, as the
exclusive bargaining representative of all the
employees in an appropriate unit, and that, since on
or about August 25, 1969, the Respondent has
refused and is refusing to recognize and bargain
with the Union and to furnish the Union with a list
of employees in the unit together with their rates of
pay, although the Union has requested it to do so.
On October 20, 1969, the Respondent filed its
answer to the complaint, in which it admitted all the
allegations, including its refusal to recognize the
Union and to furnish to it a list of the names and
rates of pay of employees in the unit, but denying
that the Union was duly certified because new and
material facts occurred subsequent to the hearing on
challenged ballots in Case 10-RM-500, and alleging
that these facts, and the record in Case 10-RM-500,
establish that the certification was invalid. The
Respondent thus asserts that it has not committed
any unfair labor practices.
On October 31, 1969, the General Counsel filed
with the Board a Motion for Summary Judgment in
which he contends that the Respondent is merely
seeking to relitigate issues which were raised and
considered, or which it could have raised and had
considered, before the Board, in Case 10-RM-500;
that the Respondent's answer puts in issue no
disputed matters on which another hearing is
required; and that no issue of fact or law is in
dispute. The General Counsel, therefore, requests
the Board to grant its Motion for Summary
Judgment against the Respondent. On November
28, 1969, the Respondent -filed an Opposition to the
General Counsel's Motion with exhibits attached in
support thereof.
Ruling on the Motion for Summary Judgment
In its answer to the complaint, the Respondent
contends that it has committed no unfair labor
practices in refusing to bargain with the Union, and
that the complaint, therefore, should be dismissed.
We find this contention to be without merit for the
following reasons:
The record establishes that, upon a petition filed
in Case 10-RM-500 by the Respondent, the parties
entered into a Stipulation for Certification upon
Consent Election, which was duly approved by the
Regional Director for Region 10, with an eligibility
date of October 11, 1968; and that an election
thereafter was held under his supervision and
direction, on November 1, 1968. According to the
original tally of ballots, there were 64 valid ballots
cast, of which 30 were for, and 28 against, the
Union, and 6 were challenged. No objections to the
election were filed. The Regional Director
investigated the challenges and issued his Report on
Challenged Ballots. Thereafter, the Respondent and
the Union filed timely exceptions to the Report
except as it pertained to the challenge to the ballot
of Dorothy L. Jenkins, which the Regional Director
recommended be overruled. Thereafter, the Board
issued an Order Directing Hearing, in which it
adopted pro forma, the Regional Director's
recommendation as to Dorothy L. Jenkins, but
ordered a hearing to resolve the issues as to the
remaining five challenges. Following a hearing on
January 21 and 22, 1969, before Hearing Officer
Robert C. Batson, at which all parties were afforded
full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence
bearing on the issues, the Hearing Officer issued and
duly served upon the parties his Report and
Recommendation on Challenged Ballots.
Thereafter, the Respondent and the Union filed
timely exceptions with supporting arguments. On
June 23, 1969, the Board, having reviewed the entire
record in the case, including the transcript of the
hearing, the Hearing Officer's Report, and the
exceptions thereto, issued its Decision and Direction'
in which it adopted the Hearing Officer's
recommendations that the challenges to the ballots
of Ronald E. Jenkins, Julia Bray, and Diana Watts
be sustained; but, contrary to the Hearing Officer,
sustained the challenge to the ballot of Mary F.
Eatherly and overruled the challenge to the ballot of
Alce H. Rymer. Accordingly, the Board directed
that the ballots of Dorothy L. Jenkins and Alce H.
Rymer be opened and counted and a revised tally of
ballots served upon the parties.
On June 26, 1969, the Respondent filed with the
Board a Motion for Reconsideration of its foregoing
Decision and Direction. That motion was denied on
July 23, 1969, on the ground that it raised no
material issues of fact or law not previously
1176 NLRB No 124
181 NLRB No. 78
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered.
Thereafter, pursuant to the Board's direction,
supra, the Regional Director opened the ballots of
Dorothy L. Jenkins and of Rymer, issued to the
parties a revised tally of ballots on August 1, 1969,
showing 31 votes for, and 29 against, the Union,
and, on August 7, 1969, accordingly, certified the
Union.
On or about August 12, 1969, and since then, the
Union has requested the Respondent to bargain
collectively with it. On or about August 18, 1969,
and thereafter the Union has requested the
Respondent to furnish it with a list of employees in
the appropriate unit, together with the rates of pay
of such employees. On or about August 25, 1969,
and subsequent thereto the Respondent has refused
to furnish the Union with the requested information
and to recognize the Union as the exclusive
bargaining representative of all employees in the
appropriate unit.
In its answer to the complaint and Opposition to
the Motion for Summary Judgment, the Respondent
contends that the resolutions by the Board of the
five challenges in dispute are not supported by
substantial evidence in the record, and requests a
new hearing. No additional evidence is offered as to
four of the challenges. The remaining challenged
ballot was cast by Alce Rymer. In overruling the
challenge to his ballot, the Board found that he was
not ineligible because he was a social security
annuitant,' and, as he had not quit but was on leave
of absence on both the eligibility date and the date
of the election, November 1, 1968, he was eligible to
vote. The only purported new evidence offered by
the Respondent consists of a letter from the Office
of the General Counsel dated April 29, 1969,
referring to an "admission" by Rymer that he was
told "that his leave of absence would end in
December 1968, and he would be called back when
his Company needed him." It is clear that this
purported evidence was in the Respondent's
possession before the Board issued its Decision and
Direction in Case 10-RM-500, but was not brought
to the Board's attention until the Respondent filed
its Opposition herein. It, therefore, cannot be
considered newly discovered or previously
unavailable. Moreover, the so-called admission
contained in the letter would serve only to
strengthen Rymer's credited testimony at the
hearing, and the Board's finding based thereon, that
he was eligible. We find that the issues raised by the
Respondent were fully litigated in Case 10-RM-500,
and that no further hearing is required.3
Accordingly, we shall grant the General Counsel's
Motion for Summary Judgment, and find that the
'Members Brown and Jenkins dissented to the counting of Rymer's
ballot, as he is a social security annuitant , but since his vote is not crucial
to the Union ' s majority , agree that the certification of the Union was
valid
'See N LRB v . Brush -Moore Newspapers, Inc. 413 F 2d 809, 811
(C.A 6), and cases cited therein
Respondent's refusals on and after August 12, 1968,
to recognize the certified Union in the appropriate
unit and to furnish it with information, which the
Respondent does not dispute, and we find, was
relevant and necessary for collective bargaining,
constituted violations of Section 8(a)(5) and (1) of
the Act.
On the basis of the record before it, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Holiday Inns of America, Inc.,
d/b/a Holiday Inn of Oak Ridge, Tennessee, is, and
has been at all times material herein, engaged in the
operation of a chain of motor motels in various
states of the United States, and operates an inn and
restaurant at 420 South Illinois Avenue, Oak Ridge,
Tennessee. During the past year, the Respondent, in
the course and conduct of its business, received at
its Oak Ridge, Tennessee, operations, gross revenue
in excess of $500,000, more than 25 percent of
which was received from guests who remained less
than 1 month. During the same period of time, in
the course and conduct of its business operations,
the Respondent received goods valued in excess of
$20,000 at its Oak Ridge facility from outside the
State of Tennessee.
II. THE LABOR ORGANIZATION INVOLVED
Local 150-T, Building Service Employees
International Union, AFL-CIO, is, and has been at
all times material herein , 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
bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees of
the Respondent at its Oak Ridge, Tennessee,
establishment, including desk clerks, night auditor,
inspector, maids, laundry workers, maintenance
employees, porters, cashier-hostesses, waitresses, bus
boys, cooks, salad girls, kitchen porters, bartenders,
and secretary to the Innkeeper, but excluding casual
employees, professional employees, guards, the
Innkeeper, the Assistant Innkeeper, the
housekeeper, and all other supervisors as defined in
the Act.
HOLIDAY INN OF OAK RIDGE, TENN 507
2. The Certification
On November 1, 1968, a majority of employees in
the appropriate unit, by a secret ballot election
conducted under the direction and supervision of the
Regional Director for Region 10 of the National
Labor Relations Board, designated and selected the
Union as their representative for the purposes of
collective bargaining with the Respondent, and on
August 7, 1969, the Regional Director certified the
Union as the exclusive collective-bargaining
representative of the employees in that unit.
3. The Requests to Bargain and the
Respondent's Refusals
On or about August 12, 1969, and August 18,
1969, the Union has requested and is requesting the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described appropriate
unit and to furnish it with a list of employees in the
unit and their rates of pay. On or about August 25,
1969, and continuing to date, the Respondent did
refuse, and continues to refuse, to bargain
collectively with the Union as exclusive
collective-bargaining representative of all employees
in said unit or to furnish the information requested.
Accordingly, we find that the Respondent has,
since August 25, 1969, refused to bargain
collectively with the Union as the exclusive
bargaining representative of the employees in the
appropriate unit , and that, by such refusals, the
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 acts of the Respondent set forth in section
III, above, occurring in connection with the
operations described in section 1, above, have a
close, intimate, and substantial relation 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 the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order it to 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. We shall
also order the Respondent to furnish the requested
information to the Union.
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 year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative in the appropriate 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).
CONCLUSIONS OF LAW
1. Holiday Inns of America, Inc., d/b/a Holiday
Inn of Oak Ridge, Tennessee, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and it will effectuate the
purposes and policies of the Act to assert
jurisdiction in this proceeding
2. Local 150-T, Building Service Employees
International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time employees
of the Respondent at its Oak Ridge, Tennessee,
establishment, including desk clerks, night auditor,
inspector, maids, laundry workers, maintenance
employees, porters, cashier-hostesses, waitresses, bus
boys, cooks, salad girls, kitchen porters, bartenders,
and secretary to the Innkeeper, but excluding casual
employees, professional employees, guards, the
Innkeeper, the Assistant Innkeeper, the
housekeeper, and all other 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 August 7, 1969, the above-named labor
organization has been the exclusive representative of
all employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on August 25, 1969, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees in the
appropriate unit, including its refusal to furnish the
Union with a list of employees in the unit together
with their rates of pay, the 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 refusals to bargain, the
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 has
thereby engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 the Respondent,
Holiday Inns of America, Inc. d/b/a Holiday Inn of
Oak Ridge, Tennessee, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with Local 150-T, Building and Service
Employees International Union, AFL-CIO as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time employees of
the Respondent at its Oak Ridge, Tennessee,
establishment, including desk clerks, night auditor,
inspectors, maids, laundry workers, maintenance
employees, porters, cashier-hostesses, waitresses,
busboys, cooks, salad girls, kitchen porters,
bartenders and secretary to the Innkeeper, but
excluding casual employees, professional employees,
guards, the Innkeeper, the Assistant Innkeeper, the
housekeeper, and all other supervisors as defined in
the Act.
(b) Refusing to furnish the Union with a list of
names of employees in the unit , together with their
rates of pay.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the rights
guaranteed to them by 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 wages, hours, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
(b) Furnish the Union with a list of employees in
the unit together with their rates of pay.
(c) Post at its places of business in Oak Ridge,
Tennessee, copies of the attached notice marked
"Appendix."' Copies of said notice on forms
provided by the Regional Director for Region 10,
after being duly signed by the Respondent, shall be
posted immediately upon receipt thereof, and be
maintained by the Respondent for 60 consecutive
'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 "
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 10 days from the date of this
Decision and Order, what steps the Respondent has
taken to comply herewith.
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 with
Local 150-T, Building Service Employees International
Union, AFL-CIO, 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 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 representative of
all employees in the bargaining unit described below
with respect to wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement
WE WILL furnish the Union with a list of employees
together with their rates of pay The bargaining unit is.
All full-time and regular part-time employees at our
Oak Ridge, Tennessee, motel and restaurant,
including desk clerks, night auditor, inspector, maids,
laundry workers, maintenance employees, porters,
cashier-hostesses, waitresses, busboys, cooks, salad
girls, kitchen porters, bartenders, and secretary to the
Innkeeper, but excluding casual employees,
professional employees, guards, the Innkeeper, the
Assistant Innkeeper, the housekeeper, and all other
supervisors as defined in the Act.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization
HOLIDAY INNS OF
AMERICA, INC. D/B/A
HOLIDAY INN OF OAK
RIDGE, TENNESSEE
(Employer)
Dated By
(Representative) (Title)
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 compliance
with its provisions, may be directed to the Board's Office,
Room 701, Peachtree Building, 730 Peachtree Street, NE
Atlanta, Georgia 27101, Telephone 404-526-5760.