Holiday Inn Palo Alto-Stanford

National Labor Relations Board - Board Decisions

May 16, 1990

298 N.L.R.B. 521 (N.L.R.B. 1990)

HOLIDAY INN PALO ALTO-STANFORD 521
Pacific Hotel Development Venture, d/b/a Holiday
Inn Palo Alto-Stanford and Professional and
Clerical Employees Division, Teamsters Union
Local No. 856, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO.
Case 32-CA-10707
litigable in this unfair labor practice proceeding.'
See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 162 ( 1941). Accordingly, we grant the Motion
for Summary Judgment .2 On the entire record, the
Board makes the following
FINDINGS OF FACT
May 16, 1990
DECISION AND ORDER
BY MEMBERS CRACARFI, DEVANEY, AND
OVIATT
On November 17, 1989, the General Counsel of
the National Labor Relations Board issued a com-
plaint alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by refusing the Union's request to bar-
gain following the Union's certification in Case 32-
RC-2772. (Official notice is taken of the "record"
in the representation proceeding as defined in the
Board's Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).)
The Respondent filed its answer admitting in part
and denying, in part the allegations in the com-
plaint.
On December 21, 1989, the General Counsel
filed a Motion for Summary Judgment. On Decem-
ber 28, 1989, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain, but it attacks the validity of the certifica-
tion on the basis of its objections to the election. In
addition , the Respondent 's answer raises as an af-
firmative defense the claim that the Union has en-
gaged in certain harassment and intimidation of
bargaining unit employees that the Respondent
contends should result in the Board rescinding the
Union's certification. All representation issues
raised by the Respondent were or could have been
litigated in the prior representation proceeding.
The Respondent does not offer to adduce at a hear-
ing any newly discovered and previously unavail-
able evidence, nor does it allege any special cir-
cumstances that would require the Board to reex-
amine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has
not raised any representation issue that is properly
I. JURISDICTION
The Respondent, a California corporation, en-
gages in the operation of a hotel in Palo Alto,
where in the 12 months preceding issuance of the
complaint it derived gross revenues in excess of
$500,000 and it purchased and received goods or
services valued in excess of $5000 which originated
outside the State of California. We find that the
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
' In its answer , the Respondent has denied that the Union is a labor
organization within the meaning of See. 2 (5) and that the bargaining unit
described in the complaint is appropriate for collective bargaining within
the meaning of Sec. 9(b). The Respondent did not discuss these denials in
its response to the Notice to Show Cause. In the representation proceed-
ing, the Respondent did not raise the issue of the Union 's labor organiza-
tion status and it agreed to the appropriateness of the bargaining unit de-
scribed in the Stipulated Election Agreement, which is the same unit as is
described in the complaint . Accordingly, neither denial raises a material
issue of fact warranting a hearing.
2 As previously stated, the Respondent has raised an affirmative de-
fense that certain alleged union misconduct vitiates the validity of the
Union's certification , or in the alternative, warrants the holding of a hear-
ing. In making this argument , the Respondent relies on Laura Modes Co.,
144 NLRB 1592 (1963 ). We find, however, that even accepting as true
the evidence of alleged misconduct proffered by the Respondent in sup-
port of its defense , this evidence is insufficient to warrant rescission of
the Union's certification under Laura Modes and does not raise a material
issue of fact warranting a hearing . See also Employees Local 703 (Kenni-
cott Bros.), 284 NLRB 1125 (1987 ), and particularly the discussion at
1126, of Union Nacional de Trabajadores (Carborundum Co), 219 NLRB
862 (1975). The legality of the alleged misconduct is a matter to be liti-
gated and decided in the context of pending 8(b)(1)(A ) complaint allega-
tions in Case 32-CB-3360. We express no opinion about the merits of
those allegations . (The Board denied the Respondent 's motion to consoli-
date this case with Case 32-CB-3360 on April 27, 1990.) Our decision
should not be read to suggest , however, that we condone abusive and
physically threatening conduct by unions and their agents . Nevertheless,
even if the alleged misconduct in this case were both proven and unlaw-
ful, it is simply not conduct that would impinge significantly on the par-
ties' bargaining relationship and warrant the extraordinary remedy of va-
cating the Union's certification Compare Laura Modes Co., supra at 1596
Member Oviatt notes that the principal acts of alleged misconduct took
place on July 26, 1989, and that the Board did not certify the Union until
October 12, 1989, after the Respondent filed exceptions to the hearing of-
ficer's report The Respondent states in its opposition to the General
Counsel's Motion for Summary Judgment that on November 1, 1989, it
refused to bargain with the Union , basing its refusal "on the Union's post-
election conduct, as well as on pre-election conduct." (Emphasis added.)
The Respondent did not take the affidavits which it now relies on to sup-
port its allegations of serious and disqualifying postelection union miscon-
duct until more than 2 months after its refusal to bargain . The Respond-
ent only now argues before the Board that this misconduct warrants
withholding the certification In Member Oviatt's view, allegations of
"serious" misconduct should be expeditiously pursued
298 NLRB No. 71
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held on October 7, 1988,
the Union was certified on October 12, 1989, as the
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time employees,
including office clerical employees, employed
by Respondent at its 625 El Camino Real, Palo
Alto, California facility; excluding professional
employees, managerial employees, confidential
employees, guards, and supervisors as defined
in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since October 20, 1989, the Union has requested
the Respondent to bargain, and, since November 1,
1989, the Respondent has refused. We find that this
refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after November 1, 1989, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit, the Respondent has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with' the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, ^ 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB, 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Pacific Hotel Development Ven-
ture, d/b/a Holiday Inn Palo Alto-Stanford, Palo
Alto, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Professional and
Clerical Employees Division, Teamsters Union
Local No. 856, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO as the exclu-
sive bargaining representative of the employees in
the bargaining unit.
(b) In any like or related manner interfering
with, restraining,-or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time employees,
including office clerical employees, employed
by Respondent at its 625 El Camino Real, Palo
Alto, California facility; excluding professional
employees, managerial employees, confidential
employees, guards, and supervisors as defined
in the Act.
(b) Post at its facility in Palo Alto, California,
copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the,Respondent has taken to comply.
8 If 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 Nation-
al 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."
HOLIDAY INN PALO ALTO-STANFORD 523
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Profession-
al and Clerical Employees Division, Teamsters
Union Local No. 856, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO as the ex-
clusive representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All full-time and regular part-time employees,
including office clerical employees, employed
by us at our 625 El Camino Real, Palo Alto,
California facility; excluding professional em-
ployees, managerial employees, confidential
employees, guards, and supervisors as defined
in the Act.
PACIFIC HOTEL DEVELOPMENT VEN-
TURE, D/B/A HOLIDAY INN PALO
ALTO-STANFORD