Marinor Inns, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1970

181 N.L.R.B. 467 (N.L.R.B. 1970)

MARINOR INNS , INC.. 467
Marinor Inns, Incorporated and Hotel , Motel,
Restaurant Employees and Bartenders
International Union , Local 481, AFL-CIO. Case
12-CA-4586
March 4, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
requesting the Board to dismiss the General
Counsel's motion for summary judgment, and
contending the Respondent is entitled to a hearing
before, and a ruling on its motion for a bill of
particulars by, a Trial Examiner.
Pursuant to Section 3(b) of the Act, the Board
has delegated its powers in connection with this case
to a three-member panel.
The Board has reviewed the entire record in this
proceeding, including the transcript of the hearing
held in the underlying representation case,
12-RC-3263, and makes the following:
Upon a charge duly filed on July 28, 1969, and
served upon Respondent Marinor Inns,
Incorporated, on or about August 5, 1969, by Hotel,
Motel, Restaurant Employees and Bartenders
International Union, Local 481, AFL-CIO, the
General Counsel for the National Labor Relations
Board, by the Regional Director for Region 12,
issued a complaint on August 26, 1969, against
Respondent, alleging that it had engaged in and was
engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) of the National Labor Relations Act, as
amended. Copies of the complaint were served upon
Respondent and the Charging Party.
The complaint alleges that on or about June 9,
1969, following a Board election, the Union was
certified by the Regional Director in Case
12-RC-3263 as the exclusive collective-bargaining
representative of Respondent's employees in the unit
found appropriate, and that, commencing on about
July 23, 1969, Respondent has refused and is
refusing to recognize or bargain with the Union as
such exclusive bargaining representative, although
the Union has requested and is requesting it to do
so. Respondent filed its answer on September 5,
1969, admitting its refusal to bargain; but denying
that it is engaged in commerce within the meaning
of the Act, and contending the Board never
independently reviewed the record before the
Regional Director to ascertain whether it supported
his conclusions that jurisdiction should be asserted.
Respondent contends, therefore, that the election
and certification were invalid. Respondent also filed
a motion for a bill of particulars with the Regional
Director "under Section 102.24 of the Board's Rules
and Regulations." In its motion it requested that the
General Counsel furnish it with the evidence relied
on in support of the jurisdictional allegations in the
complaint and the names of witnesses who would be
called in support of such allegations.
On October 7, 1969, the General Counsel filed
directly with the Board a motion for summary
judgment, opposing Respondent's motion for a bill
of particulars, and alleging that there were and are
no disputed facts which require a hearing. On the
same day the Regional Director issued an order
referring Respondent's motion for a bill of
particulars to the Board for ruling. Thereafter, on
October 17, 1969, Respondent filed a motion
RULING ON MOTION FOR SUMMARY JUDGMENT
The record establishes that, upon a petition filed
in Case 12-RC-3263, by Hotel, Motel, Restaurant
Employees and Bartenders International Union,
Local 481, AFL-CIO, a hearing was held before a
hearing officer of the Board. Thereafter, the
Regional Director issued his Decision and Direction
of Election in which he found, contrary to
Respondent's contention, that Respondent is
engaged in commerce and that it will effectuate the
policies of the Act to assert jurisdiction. Thereafter,
Respondent filed a request for review of the
aforesaid finding of the Regional Director, which
was denied by the Board.
In its answer to the complaint and response to the
motion for summary judgment, Respondent
contends that Board jurisdiction is not supported by
the facts or the law, and requests another hearing.
However, we find that the jurisdictional issue was
disposed of correctly by the Regional Director,' and,
as the issue has been fully litigated and no newly
discovered and previously unavailable evidence is
'In his Decision and Direction of Election , the Regional Director found,
and the record shows, that Carolina Motor Lodge of Orlando , Inc built
on its property a motel and restaurant under a license agreement with
Home's Enterprises, Inc Carolina then leased the restaurant to Home's,
and the motel to Respondent Marmot which operates it under the name of
Horne's Motor Lodge Respondent has obtained no franchise from
Horne's, although its lease agreement provides that it would Respondent
and Horne ' s pay rent to Carolina and share the expense of common
advertising billboards . The restaurant has an extension on the motel
switchboard , and motel guests can order food from the restaurant which is
delivered by a motel bellhop . Motel guests may charge their restaurant
purchases on their motel bill , and the motel pays the restaurant for these
charges, by monthly remittances, as provided in the franchise and leases,
patrons of either establishment may park in either of the separate parking
lots Upon consideration of these factors , and the entire record, the
Regional Director found that the motel and restaurant are held out to the
public as a single enterprise , serving many of the same customers , and each
complementing the other's operation He also found that the effect of each
upon commerce would be affected by a change in the operation of the
other, and that they should be treated as a single employer for
jurisdictional purposes Trade Winds Motor Hotel & Restaurant, 140
NLRB 567 Respondent contends that ( 1) certain of the Regional
Director' s factual findings were not supported by the record, (2) the
Regional Director failed to consider certain other facts established by the
record , and (3 ) the Regional Director's Decision constitutes an
unwarranted extension of the Trade Winds principle We rind no merit in
these contentions The record does show , as contended by Respondent, that
181 NLRB No. 71
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered, no further hearing is required. We shall,
therefore, grant the motion for summary judgment.'
On the basis of the entire record, including the
General Counsel's motion and Respondent's
motions, the Board makes the following:
FINDINGS OF FACT
II. THE LABOR ORGANIZATION INVOLVED
Hotel , Motel , Restaurant Employees and
Bartenders International Union , Local 481,
AFL-CIO, is now , and has been at all times
material herein , a labor organization within the
meaning of Section 2(5) of the Act.
1. THE BUSINESS OF RESPONDENT
Respondent, Marinor Inns, Incorporated, is, and
has been at all times material herein, a South
Carolina corporation engaged in the operation of a
motel under the name of Horne's Motor Lodge in
Orlando, Florida.
Horne's Enterprises, Inc., herein referred to as
Horne's, is, and has been at all times material
herein, a Florida corporation engaged in, inter alia,
the operation of a restaurant under the name of
Horne's Restaurant in Orlando, Florida.
The above motel and restaurant are located
together on property owned by Carolina Motor
Lodge of Orlando, Inc., herein referred to as
Carolina, which constructed the foregoing
establishments under a franchise agreement with
Horne's. Since on or about January 1969, the motel
has been operated by Respondent and the restaurant
by Horne's under lease from Carolina, and they are
conducted in such a manner as to supplement each
other and convey to the public the impression that
they both are integral parts of a single enterprise.'
The volume of business of Respondent's motel
operation, projected over a 12-month period, will
result in a gross income of about $400,000. The
volume of business of Horne's restaurant operation,
projected over a 12-month period, will result in a
gross income of about $350,000.
Respondent's yearly purchases of supplies and
material from outside Florida are expected to
exceed $1,900, and its yearly collections of credit
card charges from outside Florida are expected to
exceed $144,000.
Respondent is now, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, and it will effectuate the purposes of the Act to
assert jurisdiction herein.
the operation of Respondent 's motel was not in all respects in accord with
the Horne franchise , and that charges by motel guests did not amount to
$7,000 every month , but ranged from $2,500 to $7,000 a month However,
these facts do not affect the Regional Director's ultimate conclusion, which
is, in all other respects, fully supported factually and legally
'Pittsburgh Plate Glass Company v N L R B, 313 U S 146, N L R B
v Aerovox Corporation, 390 F 2d 653 (C A 4), enfg 171 NLRB No 105
We find no merit in Respondent 's contention that it is entitled to have its
motion for a bill of particulars ruled on by a Trial Examiner N L R B v
Red-More Corporation, 418 F 2d 890 (C A 9) As the bases for the
assertion of jurisdiction are fully set forth in the Regional Director's
Decision and Direction of Election , and as no further hearing is required
or contemplated , Respondent 's motion for a bill of particulars is denied
'See also the facts and conclusions set forth in fn 2, supra
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
At all times material herein the following
employees have constituted and now constitute a
unit appropriate for purposes of collective
bargaining within the meaning of the Act:
All maids, porters, bellmen, maintenance and
laundry employees of Respondent at Horne's Motor
Lodge, 33000 S. Orange Blossom Trail, Orlando,
Florida, excluding auditing employees, guest clerks,
PBX operators, reservation personnel, secretaries,
office-clerical employees, professional employees,
watchmen, guards and supervisors as defined in the
Act.
B. The Request to Bargain and Respondent's
Refusal
A majority of the employees of Respondent in the
above unit having designated the Union as their
representative for the purposes of collective
bargaining with Respondent, the Regional Director
duly certified it as the exclusive bargaining
representative of the employees in said unit, and the
Union continues to be such representative. We find
that the Union, at all times since May 28, 1969, has
been and now is the exclusive bargaining
representative of all the employees in the
appropriate unit; that Respondent has, since July 23,
1969, refused to bargain collectively with the Union
as such representative; 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.
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
MARINOR INNS, INC.
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 year of
certification as beginning on the date 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. Marinor Inns, Incorporated is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction over it
herein.
2. Hotel, Motel, Restaurant Employees and
Bartenders International Union, Local 481,
AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All maids, porters, bellmen, maintenance and
laundry employees at the Employer's Orlando,
Florida, motel, excluding auditing employees, guest
clerks, PBX operators, reservation personnel,
secretaries, office-clerical employees, professional
employees, watchmen, 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 May 29, 1969, the above-named labor
organization has been and is 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 or about July 23, 1969, and at
all times thereafter, to bargain collectively with the
above-named organization as the exclusive
representative of all its employees 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, 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.
ORDER
469
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Marinor Inns, Incorporated, Orlando, Florida, 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, Motel,
Restaurant Employees and Bartenders International
Union, Local 481, as the exclusive and duly certified
bargaining representative of its employees in the
following appropriate unit:
All maids, porters, bellmen, maintenance and
laundry employees at the Employer's Orlando,
Florida, motel, excluding auditing employees,
guest clerks, PBX operators, reservation
personnel, secretaries, office-clerical employees,
professional employees, watchmen, guards, and
supervisors as defined in the Act.
(b) 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 rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Orlando, Florida, motel copies of
the attached notice marked "Appendix."4 Copies of
said notice, on forms provided by the Regional
Director for Region 12, 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 by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
in the event this Order is enforced by a judgment of the 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 "
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Hotel , Motel , Restaurant Employees , and Bartenders
International Union, Local 481 , AFL-CIO, as the
exclusive bargaining 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 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 maids, porters, bellmen , maintenance and laundry
employees at the Employer ' s Orlando , Florida, motel,
excluding auditing employees , guest clerks, PBX
operators , reservation personnel, secretaries,
office-clerical employees , professional employees,
watchmen , guards, and supervisors as defined in the
Act.
Dated By
MARINOR INNS,
INCORPORATED
(Employer)
(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 706, Federal Office Building, 500 Zack Street,
Tampa , Florida 33602 , Telephone 813-228 -7711, Ext. 227.