Hotel Westward Ho

National Labor Relations Board - Board Decisions

Aug 7, 1969

178 N.L.R.B. 9 (N.L.R.B. 1969)

HOTEL WESTWARD HO
Hotel Westward Ho and Hotel and Restaurant
Employees and Bartenders Local Union 631,
AFL-CIO. Case 28-CA-1850
August 7, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a charge filed by Hotel and Restaurant
Employees and Bartenders Local Union 631,
AFL-CIO, herein called the Union, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 28, issued a
complaint, dated March 14, 1969,' against Hotel
Westward Ho, herein called Respondent, alleging
that Respondent had engaged in and was 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 charge, complaint, and notice of
hearing before a Trial Examiner were duly served
upon Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about
February 18, the Union was duly certified by the
Board' as the exclusive bargaining representative of
Respondent's employees in the unit found
appropriate,' and that since on or about March 7,
Respondent has refused and is refusing to bargain
collectively with the Union as such exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On April 4,
Respondent filed its answer, admitting in part and
denying in part the allegations of the complaint.
On April 11, the General Counsel filed with the
Regional Director for Region 28 a motion for
summary judgment and issuance of Board Decision
and Order. By Order, dated April 11, the Acting
Regional Director for Region 28 referred the
General Counsel's motion to the Board. In his
motion, the General Counsel requests that the Board
take official notice of the records and documents in
Case 28-RC-1699, and alleges that the pleadings
have not raised any factual issues not previously
determined by the Board in the representation
proceeding. The motion further requests that the
allegations of the complaint be deemed to be
admitted to be true and so found without a hearing
being held, and that the Board issue a Decision and
Order, containing findings of fact, conclusions of
law, and a remedial order. Thereafter, on April 16,
the Board issued an order transferring proceeding to
the Board and notice to show cause. On May 12,
Respondent filed its response to motion for
9
summary judgment and petition for reconsideration,
alleging that recent case precedent, not available at
the time of the representation proceeding,
demonstrates the inappropriateness of the unit
finding herein and raises material and substantial
issues of fact which can only be resolved by a
hearing. Respondent further requests that the Board
reconsider this unit determination, which it contends
is based upon extent of organization and is contrary
to applicable Board precedent. On May 26, the
General Counsel filed a counterstatement to
Respondent's response to motion for summary
judgment in which he contends that the Board's unit
determination is supported by the record and
applicable case precedent and urges that his motion
for summary judgment be granted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
RULINGS ON THE MOTION FOR SUMMARY
JUDGMENT AND RESPONDENT'S PETITION FOR
RECONSIDERATION
In its Response to the General Counsel's Motion
for Summary Judgment, Respondent contends, inter
alia , that a hearing is required to resolve material
and substantial issues of fact arising out of the
conflict between the unit determination, in Case
28-RC-1699, and recent case precedent involving
hotel and restaurant employees in the Phoenix area.
Respondent has also asked that the Board
reconsider its Decision in Case 28-RC-1699, alleging
that the Board's unit determination contravenes
Section 9(c)(5) of the Act and is also contrary to
applicable Board precedent. In our opinion, there is
no merit in Respondent's contentions.
The record before us establishes that on
September 5, 1967, the Union filed a petition in
Case 28-RC-1699, seeking a unit of all kitchen
department employees employed at Respondent's
Phoenix, Arizona hotel.' After. a hearing, the
Regional Director for Region 28 issued a Decision
and Direction of Election on October 26, 1967, in
which he found appropriate for bargaining the
following unit of employees:
All kitchen department employees, including
cooks, cooks' helpers, pantry workers, butchers,
bakers, kitchen helpers, dishwashers and kitchen
porters; excluding all employees of all other
departments, office clerical employees, watchmen,
guards, professional employees, the chef, and all
other supervisors as defined by the Act.
On or about November 18, 1967, Respondent
filed with the Board a Request for Review of the
'Unless otherwise noted , all dates are in 1969.
'Decision and Order in Hotel Westward Ho. Case 28-RC-1699
(unpublished).
'171 NLRB No. 173.
'The nion described the unit as follows : all cooks, cooks' helpers,
pantry workers , butchers , bakers, kitchen helpers, dishwashers , kitchen
porters, cafeteria workers; excluding all others, guards , watchmen, office
clericals, office supervisors as defined in the Act.
178 NLRB No. 4
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director's findings. The Board granted the
Request for Review and on June 13, 1968, the
Board issued its Decision on Review' affirming the
Regional Director's unit determination. Pursuant
thereto, an election by secret ballot was conducted
on August 7, 1968, among the employees in the
unit, described above, in which 16 votes were cast in
favor of the Union, 4 were cast against, and 1 ballot
was challenged. Thereafter, Respondent filed timely
objections to conduct affecting the results of the
election. On September 9, 1968, the Regional
Director for Region 28 issued a Supplemental
Decision on Objections and Certification of
Representative in which he overruled Respondent's
objections and issued a certification to the Union. A
Request for Review of the Regional Director's
Supplemental Decision was filed with the Board by
Respondent, and on October 23, 1968, the Board,
by telegraphic order, remanded the case to the
Regional Director for hearing on one of
Respondent's objections.` Pursuant thereto, a
hearing on Respondent's objection was conducted
before a Board Hearing Officer, and on November
25, 1968, the Hearing Officer issued his report on
objections to conduct affecting the results of election
with findings and recommendations in which he
recommended that the objection be overruled.
Respondent filed exceptions to the Hearing Officer's
report, and on February 18 the Board issued its
Decision and Order adopting the findings and
recommendations of the Hearing Officer.' In its
Decision, the Board also determined that the
Union's certification was to become effective as of
the date of the Decision.
On or about February 20, the Union requested
that Respondent commence bargaining on a
contract covering employees in the certified unit. By
letter dated March 7, Respondent advised the Union
that it considered the unit to be inappropriate, and
therefore, it was declining the request for
bargaining.
Respondent admits in its answer to the complaint
that the Union has been certified by the Board as
the exclusive bargaining representative of
Respondent's employees in a unit found appropriate
by the Board and that on or about February 20, and
thereafter, the Union, as the certified bargaining
representative of Respondent's kitchen department
employees, requested that Respondent bargain
collectively with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment for such employees.
Respondent further admits that in a letter to the
Union, dated March 7, it set forth reasons why it
considered the certified unit to be inappropriate, and
on the basis of these reasons, Respondent refused to
bargain with respect to such a unit.
1171 NLRB No. 173.
'As to the remaining three objections , the Board denied review as to two
and deferred ruling on the other.
'The Board also determined that the objection upon which it had
deferred ruling was properly overruled by the Regional Director.
In essence, Respondent's position is that the unit
found appropriate by the Board is in conflict with
Section 9(c)(5) of the Act and applicable Board
precedent. Respondent answers by arguing that its
contention is at least in part supported by case
precedent which was not in existence at the time of
the representation proceeding and that such
precedent has raised material and substantial issues
of fact which can only be resolved by a hearing.
We find no merit in Respondent's contentions. As
indicated, above, the appropriateness of the
petitioned for unit was fully litigated in the
underlying representation proceeding, and on the
basis of a complete record, the Board found in
agreement with the Regional Director that
Respondent's kitchen department employees possess
a separate community of interest sufficient to
warrant the conclusion that a unit confined to such
a grouping of employees was appropriate. In its
Decision,' the Board enumerated the unit factors
upon which the determination was made, and also
expressly pointed out that no reliance was placed
upon the extent of the Union's organization in
reaching this conclusion. In view of the foregoing,
we believe it is abundantly clear that the unit
determination herein in no way contravenes Section
9(c)(5) of the Act. It is likewise clear that this unit
determination does not conflict with applicable
Board precedent. It should be noted that in a
representation proceeding the Board's function is to
determine whether the petitioned for unit is an
appropriate grouping of employees. In such
circumstances, the Board does not deem it necessary
to determine what would constitute the most
appropriate unit. Nor does it pass upon whether
other groupings of employees might also be found to
be appropriate. Since in each case, the scope of the
Board's inquiry is limited to the request before it
and the determination is based upon the particular
record facts, it is not unusual that unit
determinations will vary even when involving
employees in the same basic industry. However, this
is not to say that because different groupings of
employees may be found to constitute appropriate
units, the Board is not applying uniform standards
in making its unit determinations. On the contrary,
in each instance the Board considers the request in
light of established unit factors and, on the basis of
these factors makes a determination as to whether
there is a separate community of interest among the
employees sought sufficient to warrant a finding of
appropriateness. In our judgment, Respondent has
failed to recognize this distinction in contending that
the unit finding in this proceeding is in conflict with
other unit findings involving employees in the hotel
and restaurant industry. In effect, Respondent is
arguing for the establishment of a rule which would
fix the type of units available in a particular
industry without regard to the conditions present in
the individual case. Such an approach has been
'See fn . 5, supra.
HOTEL WESTWARD HO
expressly rejected by the Board 9 In the cases" relied
upon by Respondent to establish the alleged
inconsistency, the same unit considerations were
applied in the same manner as were applied here,
and there is no evidence that the unit finding in this
proceeding represents a departure from established
Board precedent Therefore, on the basis of the
foregoing and the entire record, we find that
Respondent has not demonstrated the existence of
any newly discovered or previously unavailable
evidence raising material and substantial issues of
fact Nor has the Respondent offered to adduce any
evidence which would require that the Board
reexamine the Decision made in the representation
proceeding Accordingly, Respondent's Petition for
Reconsideration of the Decision is hereby denied
Further, inasmuch as Respondent has either fully
litigated or had the opportunity to litigate these
matters in the representation case, we find that
Respondent has not raised any issue which is
properly triable in this unfair labor practice
proceeding
All material issues having been either decided by
the Board or admitted in the answer to the
complaint, there are no matters requiring a hearing
before a Trial Examiner Accordingly, the General
Counsel's Motion for Summary Judgment and
Issuance of Board Decision and Order is granted
On the basis of the record before it, the Board
makes the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein
has been, an Arizona corporation having its
principal office and place of business in Phoenix,
Arizona, where it is engaged in the business of
operating a hotel, providing accommodations,
restaurant and related services During the past
year, Respondent, in the course and conduct of its
operations, sold goods and services the gross value
of which exceeded $500,000 and purchased and had
delivered goods and material valued in excess of
$50,000 at its place of business in Phoenix, Arizona,
directly from States of the United States other than
the State of Arizona During the same period in
excess of 25 percent of Respondent's guests
remained less than 1 month
Respondent admits, and we find, that it 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 it will effectuate the
'John Hammonds and Roy Winezardner Partners d/b/a 77 Operating
Company d/b/a Holiday Inn Restaurant 160 NLRB 927
"Contrary to Respondents contention and for the reasons heretofore
stated recent Decisions by the Regional Director for Region 28 have not
established a pattern of bargaining for hotel and restaurant employees in
the Phoenix area which can be construed as having an overriding effect
upon the validity of the original unit finding herein
purposes of the Act to assert jurisdiction herein
II THE LABOR ORGANIZATION INVOLVED
11
Hotel and Restaurant Employees and Bartenders
Local Union 631, AFL-CIO, is a labor organization
within the meaning of Section 2 (6) and (7) of the
Act
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
1 The unit
The following employees at Respondent's
Phoenix, Arizona, hotel, constitute a unit
appropriate for collective bargaining within the
meaning of the Act
All kitchen department employees, including
cooks, cooks' helpers, pantry workers, butchers,
bakers, kitchen helpers, dishwashers and kitchen
porters, excluding all employees of all other
departments, office clerical employees, watchmen,
guards, professional employees, the chef, and all
other supervisors as defined by the Act
2 The certification
On August 7, 1968, 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 28, designated the
Union as their representative for purposes of
collective bargaining with Respondent, the Board
certified the Union as the collective-bargaining
representative of the employees in said unit, and the
Union has continued to be the certified bargaining
representative at and since the refusal to bargain set
forth below
B The Request to Bargain and Respondent's
Refusal
Commencing on or about February 20, 1969, and
continuing to date, the Union has requested that
Respondent bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit
Commencing on or about March 7, 1969, and
continuing to date, Respondent did refuse, and
continues to refuse, to bargain collectively with the
Union as the exclusive collective-bargaining
representative of all employees in said unit
Accordingly, we find that the Union was duly
certified as the collective bargaining representative
of the employees of Respondent in the appropriate
unit described above, and that the Union at all
relevant times has been and now is the exclusive
bargaining representative of all the employees in the
aforesaid unit, within the meaning of Section 9(a) of
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act We further find that Respondent has, since
March 7, 1969, refused to bargain collectively with
the Union as the exclusive bargaining representative
of its employees in the appropriate unit, and that,
by such refusal, 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 Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, 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
THE REMEDY
Having found that Respondent has engaged 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 embody in a signed agreement any
understanding reached
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 Hotel Westward Ho is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act
2 Hotel and Restaurant Employees and
Bartenders Local Union 631, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act
3 All kitchen department employees employed at
Respondent ' s Phoenix , Arizona, hotel, including
cooks, cooks ' helpers, pantry workers, butchers,
bakers, kitchen helpers, dishwashers, and kitchen
porters, excluding all other employees of all other
departments, office clerical employees , watchmen,
guards, professional employees , the chef, and all
other supervisors as defined by the Act, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act
4 On February 18, 1969, and at all times
thereafter, the above-named labor organization has
been and is the certified and 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 or about March 7, 1969, 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) and (1) 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 has thereby
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
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 Respondent,
Hotel Westward Ho, Phoenix, Arizona, its officers,
agents, successors, and assigns, shall
I Cease and desist from
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with Hotel and Restaurant Employees
and Bartenders Local Union 631, AFL-CIO, as the
exclusive and duly certified bargaining representative
of its employees in the following appropriate unit
All kitchen department employees employed at
Respondent's Phoenix, Arizona, hotel, including
cooks, cooks' helpers, pantry workers, butchers,
bakers, kitchen helpers, dishwashers, and kitchen
porters, excluding all other employees of all other
departments, office clerical employees, watchmen,
guards, professional employees, the chef, and all
other supervisors as defined by the Act
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
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 rates of pay, wages, hours, and other
terms and conditions of employment, and if an
HOTEL WESTWARD HO
understanding is reached, embody such
understanding is a signed agreement
(b) Post at its Phoenix, Arizona, hotel, copies of
the attached notice marked "Appendix" ii Copies of
said Notice, on forms provided by the Regional
Director for Region 28, shall, after being duly
signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted
Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any
other material
(c) Notify said Regional Director for Region 28,
in writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith
"In the event that this Order is enforced by a decree of a United States
Court of Appeals there shall be substituted for the words a Decision and
Order the words a Decree of the United States Court of Appeals
Enforcing an Order
13
WE WILL NOT in any like or related manner intertere
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 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
The bargaining unit is
All kitchen department employees employed at our
Phoenix, Arizona, hotel, including cooks, cooks'
helpers, pantry workers, butchers, bakers, kitchen
helpers, dishwashers, and kitchen porters, excluding
all other employees of all other departments, office
clerical employees, watchmen, guards, professional
employees, the chef, and all other supervisors as
defined by the Act
(Representative ) (Title)
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that
WE WILL NOT refuse to bargain collectively with
Hotel and Restaurant Employees and Bartenders Local
Union 631, AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described below
Dated By
HOTEL WESTWARD HO
(Employer)
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
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 7011 Federal
Building & U S Courthouse, 500 Gold Avenue SW,
Albuquerque, New Mexico 87101, PO Box 2146,
Telephone 505-843-2508