Holiday Inn of Providence-Downtown

National Labor Relations Board - Board Decisions

Oct 24, 1969

179 N.L.R.B. 337 (N.L.R.B. 1969)

HOLIDAY INN OF PROVIDENCE- DOWNTOWN
Allen & O 'Hara Investments , Inc. d/b/a Holiday Inn
of Providence-Downtown , Petitioner and Hotel,
Restaurant , Service Employees and Bartenders'
Union , Local 285, AFL-CIO. Case 1-RM-722
October 24, 1969
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On April 28, 1969, the Regional Director for
Region 1 issued a Decision and Order in the
above-entitled case, in which he found that no
question concerning representation existed because
the Employer had failed to show that the Union had
engaged in conduct inconsistent with its disclaimer.
Thereafter, pursuant to the National Labor
Relations Board Rules and Regulations, the
Employer filed a timely request for review of the
Regional Director's Decision and Order, in which it
contended that the Regional Director's Decision
departed from officially reported Board precedent
and was clearly erroneous on substantial factual
issues. The Union filed opposition thereto
On August 4, 1969, the Board by telegraphic
Order granted the request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has considered the entire record in this
case, including the request for review and the
Union's opposition, and makes the following
findings-
The Employer seeks an election among all its
employees, with the customary exclusions, at the
Holiday Inn of Providence-Downtown, located at 21
Atwells Avenue, Providence, Rhode Island The
Union denied ever requesting recognition and at the
hearing disclaimed interest in representing any of
the employees despite its continued picketing of the
Inn since it began operations in early January 1969
The Regional Director, in effect, found, even
assuming the Union had made a request for
recognition, that its disclaimer is unequivocal
because its picketing is informational in character
and not inconsistent therewith. The Employer, in its
request for review, contends that the timing of the
picketing and facts occurring subsequent to the
commencement of the picketing establish that the
Union's entire course of conduct is inconsistent with
its disclaimer and ineffective to withdraw its earlier
claim for recognition We find merit in these
contentions.
During early 1968, while* the Inn was under
construction, the Union made several unsuccessful
efforts to contact officials of the Employer. On, May
27, 1968, the Union's business manager, William
179 NLRB No. 58
337
Marrs, sent the following letter to Joseph Suter,
Manager of Inn Operations for the Employer's
parent, Allen & O'Hara Investments, Inc., at its
Memphis, Tennessee headquarters:
We, of the Hotel, Restaurant, Service
Employees & Bartenders Union, Local 285
AFL-CIO, Providence, R.I., are writing you this
letter, seeking your permission and requesting
clearance in order to establish proper procedure
with the operators of the Holiday Inn in this city,
for the sole purpose of signing a Union contract
with our union.
I have talked with Mr Noonan, Project
Manager, here in Providence, and was referred to
your office as the next step.
If we are granted permission and clearance
from you, I would appreciate an answer as soon
as possible, as this is of the utmost importance to
both the Union and the Holiday Inn.
The Employer did not respond to the letter.
Thereafter, in June, September, November, and
December, the Union made additional efforts to
contact Suter or some other representative of the
Employer, all without success Marrs stated he gave
up trying in December.
At 7 a.m., January 6, 1969, the Inn opened for
business. At 8:05 a.m. the Union began to picket
customer entrances with the signs reading as
follows
NOTICE TO PUBLIC ONLY
This employer does not employ members of the
Hotel and Restaurant Employees and Bartenders
Union, Local 285, AFL-CIO. Local 285 is not
attempting to organize the employees of this
establishment and is not requesting recognition
for this establishment.
Local 285 is not attempting to induce any
individual employed by any person in the course
of his or her employment to refuse to pick up,
deliver, or transport any goods, or not to perform
any service
Picketing with such signs has continued since that
time
On January 21, Andrew H. Jackson, general
manager for sales for the Inn, walked past Marrs
and another picketer. According to Jackson, Marrs
asked, "Are you ready to give up"" and Jackson
replied, "I never give up," and nothing more was
said. Marrs testified that he asked Jackson, "How's
business?" and Jackson replied, "You people are
really hurting us." Marrs denied Jackson's version
of the exchange, stating that "the only thing I said
was, `would you like to sign up with us?' meaning
Jackson." He explained that Jackson had told him
he had been "president of the Pawtucket Newspaper
Guild or something," and that his appeal was to
Jackson "as a former union member."
On January 26, The Providence Journal contained
an ad for waitresses which instructed applicants to
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apply at the Downtown Inn between 2 p.m. and 4
p.m. Shortly before 2 p.m. on that day, between
20-50 persons appeared in picket lines at the Inn.
They patrolled three or four abreast around the
entire building and made efforts to block entry of
cars coming onto the property. The regular pickets
for Local 285 were supplemented by "volunteers,"
identified by Marrs as "members of the Laborers,"
who had been "duly notified by the AFL-CIO."
On February 17, the Employer simultaneously
filed the instant petition and Section 8(b)(7)(C)
unfair labor practice charges in Case 1-CP-151 with
respect to the picketing. The Regional Director
dismissed the charges on the basis of his
determination that the picketing was protected by
the second proviso to Section 8(b)(7)(C).
At the hearing herein the Union denied that it
had ever made a request for recognition. It contends
that its letter of May 27, 1968, to Suter, was a
request for permission or clearance to enter the
premises to talk with "operators," meaning
employees, in order to engage in organizational
activities. We find no merit in this contention
We construe the Union's letter of May 27, 1968,
to be a clear request that the Employer recognize it
as the representative of its future employees and for
a contract covering them. Moreover, we find that
Marrs conveyed the Union's continued interest in
immediate recognition in his exchange of words with
Jackson while the picketing was in progress, whether
Jackson's or Marrs' version of what was said be
credited In the context of the facts of this case, we
do not give weight to Marrs' selfserving testimony
that when he asked Jackson whether he would like
to sign up, he meant Jackson personally as a union
member. Finally, the Union's reaction on January
26 to the Employer's advertisement for waitresses
'We find the cases cited by the Regional Director clearly distinguishable
In Miratti s Inc , 132 NLRB 699, the picketing was accounted for by
uncontradicted testimony which showed that it had no recognitional
objective and was intended to correct a misrepresentation by the Employer
that he was operating under a union contract which he did not then have,
in Martino's Complete Home Furnishings , 145 NLRB 604, almost 2 years
had elapsed since the last communication with the Employer and there was
no claim , written or oral, that the union represented employees or desired
recognition , in Raymond F Schweitzer Inc t/a Old Angus Restaurant,
appears to belie its contention that by its picketing
it was simply trying to inform customers that the
hotel was nonunion and thus discourage patronage
Upon the entire record in this case, we conclude
that the Union's purported disclaimer of interest, in
the light of its recent demand for recognition, its
picketing, and its other inconsistent conduct, simply
cannot be accepted at face value.' Accordingly, we
find that the Union never abandoned its purpose to
press upon the Employer a demand for immediate
recognition, thereby establishing the existence of a
question affecting commerce concerning the
representation of employees of the Employer within
the meaning of Section 9(c)(l) and Section 2(6) and
(7) of the Act.'
We find that the following employees of the
Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
All employees of the Employer employed at its
Inn located at 21 Atwells Avenue, Providence,
Rhode Island, excluding office clerical employees,
guards, professional employees and supervisors as
defined in the Act.3
[Direction of Election 4 omitted from publication.]
165 NLRB No 84, unlike the present case , there had been request for
recognition prior to the commencement of picketing which requested the
public not to patronize the Employer because it paid substandard wages
and had substandard working conditions and the petition was not filed
until 14 months after the picketing commenced
'Capitol Market No 1, Capitol Market No 2, 145 NLRB 1430,
1431-32
'The unit is that alleged by the Employer and is in accord with the
Board 's unit policy in the hotel and motel industry The Union took no
position as to the appropriate unit but it is noted the unit found is
coextensive with the Union's demand for recognition
'in order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters , must be
filed by the Employer with the Regional Director for Region I within 7
days of the date of this Decision on Review and Direction of Election
The Regional Director shall make the list available to all parties to the
election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed