Sheraton Inn-Airport

National Labor Relations Board - Board Decisions

Apr 24, 1978

235 N.L.R.B. 1124 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Exeter 1-A Limited Partnership, d/b/a Sheraton Inn-
Airport and Hotel, Motel and Restaurant Employ-
ees Union, Local 151, affiliated with the Hotel,
Restaurant Employees and Bartenders Union,
AFL-CIO. Case 10-CA-13265
April 24, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on November 21, 1977, an
amended charge filed on November 29, 1977, and a
second amended charge filed on December 12, 1977,
by Hotel, Motel and Restaurant Employees Union,
Local 151, affiliated with the Hotel, Restaurant
Employees and Bartenders Union, AFL-CIO, herein
called the Union, and duly served on Exeter I-A
Limited Partnership, d/b/a Sheraton Inn-Airport,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 10, issued a complaint and
notice of hearing on December 14, 1977, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices
affecting commerce 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 an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September 30,
1977, following a Board election in Case 10-RC-
10851, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about October 14, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On December 21, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On January 25, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 2,
1978, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
' Official notice is taken of the record in the representation proceeding,
Case I0-RC-10851, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystemns, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
235 NLRB No. 158
mary Judgment should not be granted. Respondent
thereafter filed a response opposing the General
Counsel's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent admits
its refusal to bargain but affirmatively attacks the
validity of both the election and the Union's certifi-
cation on grounds previously raised in its objections
in the underlying representation proceeding, Case
10-RC-10851. The General Counsel contends that
Respondent is attempting to relitigate issues decided
in the representation proceeding and that those
issues may not be relitigated here. We agree.
Review of the record herein, including the record
in the underlying representation proceeding, reveals
that pursuant to a Stipulation for Certification Upon
Consent Election an election was conducted on
November 12, 1976, which the Union won. On
November 18, 1976, Respondent timely filed seven
objections to conduct affecting the results of the
election, alleging in Objections I and 3 that agents of
the Union harassed, intimidated, and threatened
with physical harm both supervisors and employees,
and further alleging in the remaining objections that
the Union and/or its agents and the Board agents
conducting the election also engaged in certain
misconduct which interfered with the employees' free
election choice. On December 17, 1976, the Regional
Director issued his Report on Objections and Order
Directing Hearing wherein he recommended to the
Board that Objections 2, 4, 5, 6, and 7 be overruled,
and that the issues raised in Objections I and 3 be
resolved at a hearing. 2 Pursuant thereto, a hearing
was held before Hearing Officer Martha A. Youmans
who, on June 29, 1977, issued her Report and
Recommendations on Objections wherein she recom-
mended that Objections I and 3 be overruled and
that a Certification of Representative be issued.
Thereafter, Respondent filed exceptions and a brief
with the Board. On September 30, 1977, the Board
affirmed the Hearing Officer's findings and recom-
mendations and certified the Union. In its response
to the General Counsel's Motion for Summary
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 Respondent filed no exceptions to the Regional Director's report.
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SHERATON INN-AIRPORT
Judgment, Respondent again challenged the validity
of the Union's certification.
It thus appears that Respondent is attempting to
relitigate herein issues which were raised and deter-
mined adversely to it in the underlying representa-
tion case. It is well settled that in the absence of
newly discovered or previously unavailable evidence
or special circumstances a respondent in a proceed-
ing alleging a violation of Section 8(a)(5) is not
entitled to relitigate issues which were or could have
been litigated in a prior representation proceeding.3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence, nor does it allege
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding. Accordingly, we grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a limited partnership doing business
in the State of Georgia with an office and place of
business located at East Point, Georgia, where it is
engaged in the business of providing lodgings, food,
and related services. During the preceding calendar
year, a representative period, Respondent's gross
revenues exceeded $500,000, and during that time it
purchased and received goods, materials, and sup-
plies valued in excess of $50,000 directly from
suppliers located outside the State of Georgia.
We find, on the basis of the foregoing, that
Respondent 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 that
it will effectuate the policies of the Act to assert
jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel and Restaurant Employees Union,
Local 151, affiliated with the Hotel, Restaurant
Employees and Bartenders Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(f) and 102.6 9(c).
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time maids,
housemen, bellmen, utility employees, cooks,
pantry employees, dishwashers, hostesses, wait-
resses and waiters, bartenders, bus help, laundry
workers, receiving clerks, dock employees, main-
tenance employees, front desk clerks, reservation
clerks, and cashiers employed by the Employer at
the hotel at 1325 Virginia Avenue, East Point,
Georgia, but excluding all office clerical employ-
ees, sales employees, the sous chefs, managers,
guards, and supervisors as defined in the Act.
2. The certification
On November 12, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 10, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining representa-
tive of the employees in said unit on September 30,
1977, and the Union continues to be such exclusive
representative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 3, 1977, and all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about October 14, 1977, and continuing at all
times thereafter to date, as it admits, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that Respondent has, since
October 14, 1977, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade, traff-
ic, 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
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 period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Exeter I-A Limited Partnership, d/b/a Shera-
ton Inn-Airport, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Hotel, Motel and Restaurant Employees
Union, Local 151, affiliated with the Hotel, Restau-
rant Employees and Bartenders 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 maids,
housemen, bellmen, utility employees, cooks, pantry
employees, dishwashers, hostesses, waitresses and
waiters, bartenders, bus help, laundry workers, re-
ceiving clerks, dock employees, maintenance em-
ployees, front desk clerks, reservation clerks, and
cashiers employed by the Employer at the hotel at
1325 Virginia Avenue, East Point, Georgia, but
excluding all office clerical employees, sales employ-
ees, the sous chefs, managers, guards, and supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since September 30, 1977, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about October 14, 1977, 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) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed them in
Section 7 of the Act, and thereby has 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 mean-
ing 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,
Exeter I-A Limited Partnership, d/b/a Sheraton
Inn-Airport, East Point, Georgia, 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 and
Restaurant Employees Union, Local 151, affiliated
with the Hotel, Restaurant Employees and Bartend-
ers Union, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All full-time and regular part-time maids,
housemen, bellman, utility employees, cooks,
pantry employees, dishwashers, hostesses, wait-
resses and waiters, bartenders, bus help, laundry
workers, receiving clerks, dock employees, main-
tenance employees, front desk clerks, reservation
clerks, and cashiers employed by the Employer at
the hotel at 1325 Virginia Avenue, East Point,
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SHERATON INN-AIRPORT
Georgia, but excluding all office clerical employ-
ees, sales employees, the sous chefs, managers,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in 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 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its East Point, Georgia, facility copies of
the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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."
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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Hotel,
Motel and Restaurant Employees Union, Local
151, affiliated with the Hotel, Restaurant Em-
ployees and Bartenders 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 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 representa-
tive of all employees in the bargaining unit
described below, 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 agree-
ment. The bargaining unit is:
All full-time and regular part-time maids,
housemen, bellmen, utility employees,
cooks, pantry employees, dishwashers, host-
esses, waitresses and waiters, bartenders, bus
help, laundry workers, receiving clerks, dock
employees, maintenance employees, front
desk clerks, reservation clerks, and cashiers
employed by the Employer at the hotel at
1325 Virginia Avenue, East Point, Georgia,
but excluding all office clerical employees,
sales employees, the sous chefs, managers,
guards, and supervisors as defined in the
Act.
EXETER I-A LIMITED
PARTNERSHIP, D/B/A
SHERATON INN-AIRPORT
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