Arlington Hotel Company, Inc.

National Labor Relations Board - Board Decisions

May 18, 1982

261 N.L.R.B. 967 (N.L.R.B. 1982)

ARI INGTON HOTEL COMPANY, INC.
Arlington Hotel Company, Inc. and Southern Mis-
souri-Arkansas District Council, International
Ladies' Garment Workers' Union, AFL-CIO.
Case 26-CA-9437
May 18, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on November 18, 1981, by
Southern Missouri-Arkansas District Council, In-
ternational Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union, and duly
served on the Arlington Hotel Company, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 26, issued a complaint
on December 2, 1981, against Respondent, alleging
that Respondent has 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 13,
1981, following a Board election in Case 26-RC-
6354,1 the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about July 16, 1981,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On December 28,
1981, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On February 5, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February
10, 1982, 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-
mary Judgment should not be granted. Respondent
I Official notice is taken of the record in the representation proceed-
ing, Case 26-RC-6354, 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 Electrosystems Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Ca, 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.
Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th
Cir. 1968); Sec. 9(d) of the NLRA, as amended.
261 NLRB No. 126
thereafter filed a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional ILabor Relations Board has delegated its au-
thority 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 in order to test the
Board's certification of the Union in a Federal
court proceeding. In the Motion for Summary
Judgment, counsel for the General Counsel alleges
that Respondent seeks to relitigate issues previously
considered in the underlying representation case,
and, also, that this case presents no factual issues
which warrant a hearing.
Our review of the record herein, including the
record in Case 26-RC-6354, discloses, inter alia,
that on March 19, 1981, the Union filed a petition
seeking to represent certain employees of Respond-
ent. The petition was amended on March 31, 1981.
On April 30, 1981, the Regional Director issued a
Decision and Direction of Election in which he de-
termined that the following employees constitute
an appropriate unit:
All full-time and regular part-time employees
of the Employer's Hot Springs, Arkansas,
hotel, including guest service hostesses, drug-
store and newsstand employees, excluding
room clerks, auditing clerks, and clerk/typists,
conference sales employees, convention sales
employees, publicity clerk, managerial employ-
ees, confidential employees, watchmen, guards
and supervisors as defined in the Act.
Respondent sought review of the decision on May
13, 1981; the request for review was denied on
May 27, 1981. Pursuant to a Decision and Direc-
tion of Election, an election was held on May 29,
1981. The tally of ballots furnished the parties
shows 141 votes cast for, and 126 votes cast
against, the Union. There were 19 challenged bal-
lots, a number sufficient to affect the results of the
election. On June 5, 1981, Respondent filed timely
objections to conduct affecting the election alleg-
ing that the Union misrepresented its relationship
with the government and inaccurately represented
Board procedures. Further, Respondent alleges that
the Union misrepresented material facts concerning
the recall of strikers, threatened employees, and ap-
pealed to racial and ethnic prejudices. It also con-
tends that the Board erred by excluding certain
groups of employees from the unit. Following in-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vestigation, the Regional Director issued his Sup-
plemental Decision and Certification of Representa-
tive in which he overruled Respondent's objec-
tions, and sustained challenges to six challenged
ballots, rendering the remaining challenged ballots
nondeterminative. On July 27, 1981, Respondent
filed a request for review of the Supplemental De-
cision which was denied on October 16, 1981.
On July 16, 1981, and again on November 3,
1981, the Union, by letter, requested that Respond-
ent recognize and bargain collectively with it. By
letter dated November 13, 1981, Respondent stated
that it refused to recognize or to bargain with the
Union.
In its answer to the complaint, and again in its
response to the Motion for Summary Judgment,
Respondent admits that it refused to bargain collec-
tively with the Union whose certification it dis-
putes. In its defense, Respondent reiterates its con-
tentions that the unit is inappropriate and that the
Union behavior which was the subject of its objec-
tions violated the laboratory conditions necessary
to a fair election.
As these issues were addressed in the underlying
representation case, Respondent is attempting to
raise issues herein which were previously litigated.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence. We there-
fore find that Respondent has not raised any issue
which is properly litigable in this unfiar labor prac-
tice proceeding. Accordingly, we grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation with an office and
place of business in Hot Springs, Arkansas, is en-
gaged in the operation of a hotel. In the course and
conduct of its business operations, Respondent an-
nually derives gross revenues in excess of $500,000,
and purchased and received at its Hot Springs, Ar-
kansas, facility, products, goods, and materials
2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f and 10
2
.69(c).
valued in excess of $50,000 directly from points
outside the State of Arkansas.
We find, on the basis of the foregoing, that Re-
spondent 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.
1l. THE LABOR ORGANIZATION INVOLVED
Southern Missouri-Arkansas District Council, In-
ternational Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees
of the Employer's Hot Springs, Arkansas,
hotel, including guest service hostesses, drug-
store and newsstand employees, excluding
room clerks, front desk cashiers, PBX opera-
tors, reservation clerks, auditing clerks, and
clerk/typists, conference sales employees, con-
vention sales employees, publicity clerk, man-
agerial employees, confidential employees,
watchmen, guards and supervisors as defined
in the Act.
2. The certification
On May 29, 1981, 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 26, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on July 13, 1981, 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 July 16, 1981, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the the above-described unit.
968
ARLINGTON HOTEL COMPANY, INC.
Commencing on or about November 13, 1981, and
continuing at all times thereafter to date, Respond-
ent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all em-
ployees in said unit.3
Accordingly, we find that Respondent has, since
November 13, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 activities of Arlington Hotel Company, Inc.,
set forth in section III, above, occurring in connec-
tion with its operations described in section I,
above, have a close, intimate, and substantial rela-
tionship 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
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial priod of certifi-
cation 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
3 Although the complaint alleges that Respondent has refused to bar-
gain with the Union since July 16, 1981, Respondent had not received the
demand for bargaining as of that date, and in its answer it denies refusing
to bargain as of that time. However, it admits that it has refused to bar-
gain since November 13, 1981, when it so advised the Union by letter of
that date. Accordingly, we find that Respondent has refused to bargain
with the Union as of November 13, 1981
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Arlington Hotel Company, Inc., is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Southern Missouri-Arkansas District Council,
International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time employees
of the Employer's Hot Springs, Arkansas, hotel, in-
cluding guest service hostesses, drugstore and new-
stand employees, excluding room clerks, front desk
cashiers, PBX operators, reservation clerks, audit-
ing clerks, and clerk/typists, conference sales em-
ployees, convention sales employees, publicity
clerk, managerial employees, confidential employ-
ees, watchmen, guards and supervisors as defined
in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since July 13, 1981, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about November 13, 1981,
and at all times thereafter to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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 Re-
lations Board hereby orders that the Respondent,
Arlington Hotel Company, Inc., Hot Springs, Ar-
kansas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Southern Missouri-
Arkansas District Council, International Ladies'
Garment Workers' Union, AFL-CIO, as the exclu-
sive bargaining representative of its employees in
the following appropriate unit:
All full-time and regular part-time employees
of the Employer's Hot Springs, Arkansas,
Hotel, including guest service hostesses, drug-
store and newsstand employees, excluding
room clerks, front desk clerk cashiers, PBX
operators, reservation clerks, auditing clerks,
and clerk/typists, conference sales employees,
convention sales employees, publicity clerk,
managerial employees, confidential 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 ex-
ercise 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 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 under-
standing in a signed agreement.
(b) Post at its Hot Springs, Arkansas, facility
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 26, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Southern Missouri-Arkansas District
Council, International Ladies' Garment Work-
ers' Union, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time employ-
ees of the Employer's Hot Springs, Arkan-
sas, hotel, including guest service hostesses,
drugstore and newsstand employees, exclud-
ing room clerks, front desk cashiers, PBX
operators, reservation clerks, auditing clerks,
and clerk/typists, conference sales employ-
ees, convention sales employees, publicity
clerk, managerial employees, confidential
employees, watchmen, guards and supervi-
sors as defined in the Act.
ARLINGTON HOTEI. COMPANY, INC.
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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
970