Howard Johnson Co.

National Labor Relations Board - Board Decisions

Aug 6, 1980

250 N.L.R.B. 1412 (N.L.R.B. 1980)

DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Howard Johnson Company and Hotel, Motel and
Restaurant Employees Union, Local 151, affili-
ated with Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO.
Case 10-CA-13893
August 6, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On January 21, 1980, Administrative Law Judge
Thomas E. Bracken issued the attached Supple-
mental Decision' in this proceeding. Thereafter,
Respondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and brief and has decided to affirm the
rulings, findings, 2 and conclusions3 of the Adminis-
' Following issuance of the Administrative Law Judge's original Deci-
sion in this proceeding, the Board, on May 25, 1979, issued an unpub-
lished order remanding the proceeding to the Administrative Law Judge
for the purpose of conducting a further hearing at which all parties were
to be afforded the opportunity to participate, and, thereafter, to prepare
and issue a Supplemental Decision. Since the attached Supplemental De-
cision contains all the information necessary to our determination herein,
the Administrative Law Judge's original Decision is not attached hereto.
2 Respondent excepts to the Administrative Law Judge's rulings grant-
ing the petitions to revoke Respondent's subpoenas duces tecum directed
to the Union's business manager, the Regional Director for Region 10,
and the Board's Associate Executive Secretary on the grounds, inter alia,
that the petitions did not fully comply with the requirements of Secs.
102.118(a)(1) and 102.31(b) of the National Labor Relations Board Rules
and Regulations, Series 8, as amended. Although the petitions to revoke
the subpenas may not have strictly conformed in all respects to the re-
quirements of the Rules and Regulations, we find that Respondent in no
way was prejudiced thereby. Thus, we agree with the Administrative
Law Judge's findings with respect to the subpenas seeking authorization
cards and other related documents directed to the Regional Director and
the Union's business manager that such cards and related documents are
irrelevant to the issues herein. See also Madeira Nursing Center, Inc. v.
N.L.R.B., 615 F.2d 728 (6th Cir. 1980). Furthermore, in view of our
adoption of the Administrative Law Judge's finding that Respondent's
counsel did not actually receive from the Board copies of the telegrams
denying its requests for review, we conclude that Respondent was not
prejudiced by the revocation of its subpena directed to the Board's Asso-
ciate Executive Secretary. Moreover, with respect to the subpenas direct-
ed to the Regional Director and the Board's Associate Executive Secre-
tary, we note that, in any event, Respondent makes no claim that it ob-
tained the prior written consent of the Board, the Chairman of the Board,
or the General Counsel, as required by Sec. 102.118(aXI). Accordingly,
we affirm the Administrative Law Judge's rulings revoking Respondent's
subpenas.
' Respondent urges, as it did in the underlying representation proceed-
ing, that the unit herein is inappropriate because it excludes, inter alia,
front desk clerks. In support thereof, Respondent relies on Howard John-
son Company, 201 NLRB 376 (1973), which involved another of Re-
spondent's locations. The Regional Director, in finding that a unit exclud-
ing front desk clerks is appropriate here, cited, inter alia. Lane Avenue
Property. Ltd. d/b/a Ramada Inn West, 225 NLRB 1279 (1976), and
Ramada Inns, Inc., 221 NLRB 689 (1975), which fully support his deter-
mination. To the extent that Howard Johnson, supra, is in conflict with
these subsequent cases and the instant case, it is hereby overruled.
250 NLRB No. 161
trative Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Howard John-
son Company, East Point, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
SUPPLEMENTAL DECISION
THOMAS E. BRACKEN, Administrative Law Judge: A
hearing was originally held before me in this proceeding
on November 27, 1978,1 at Atlanta, Georgia, at which
the Respondent, Howard Johnson Company, was not
represented.2 On January 16, 1979, 1 issued my Decision
concluding that the Respondent violated Section 8(a)(l)
and (5) of the Act by refusing to bargain with the Charg-
ing Party and ordered the Respondent to cease and
desist therefrom and to take certain affirmative action.
Thereafter, the Respondent filed exceptions and a sup-
porting brief contending, among other things, that it was
denied due process of law by the Regional Director's
failure to grant its November 26 request for a postpone-
ment of the unfair labor practice hearing, and by my
conducting the hearing without affording the Respond-
ent the opportunity to appear.3 The Board sustained the
Respondent's exception that the Respondent had shown
proper cause in support of its request for a postponement
of the hearing, and issued an Order Remanding Proceed-
ing to Administrative Law Judge for the purpose of con-
ducting a further hearing. All parties were to be afforded
the opportunity to participate and, thereafter, a Supple-
mental Decision was to be issued.
A further hearing in the matter was held on July 12,
1979, at which all parties were represented. 4 Thereafter,
Respondent filed its brief. Upon the entire record, 5 in-
All dates are in 1978 unless otherwise stated.
: The charge was filed by the Union on August 14, and the complaint
was issued on September 14. On September 22, the Respondent filed its
answer, denying the commission of any unfair labor unfair labor prac-
tices. The primary issue then and now is whether the Company refused
to bargain with the Union in violation of Sec. 8(aXl) and (5) of the Act,
with respect to its East Point, Georgia, motel.
I Respondent's representative underwent an appendectomy on Novem-
ber 24, and a telegram was sent by another representative on November
26 to the Regional Director, requesting a postponement of the hearing set
for November 27. On the morning of November 27 the Regional Direc-
tor by telegram denied Respondent's request, without prejudice to the
Respondent's right to renew the request at the hearing. No representative
appeared on behalf of the Respondent at the opening of the hearing on
the afternoon of November 27, and a hearing was conducted as sched-
uled.
4 At the close of the testimony, the record was left open for General
Counsel to submit documents that would establish that copies of General
Counsel's Exhibits 7 and 8 were received by the Respondent. No docu-
ments have been submitted, and the hearing was closed by my Order,
dated November 21, 1979, received in the record as AU Exh. 5.
a The Respondent's unopposed motion to correct the transcript, dated
August 13, 1979, is granted and received into evidence as Resp. Exh. 4.
1412
HOWARD JOHNSON COMPANY
eluding my observation of the demeanor of the wit-
nesses, and after due consideration of the oral argument
of General Counsel, and the brief filed by the Company,
I make the following findings:6
The Representation Proceeding
On March 10, a petition was filed by Hotel, Motel and
Restaurant Employees Union, Local 151, affiliated with
the Hotel and Restaurant Employees and Bartenders In-
ternational Union, AFL-CIO (herein called the Union),
in which it sought to represent certain of Respondent's
employees (Case 10-RC-11358). 7 The bargaining unit
was set forth in the petition as:
All full-time and regular part-time employees in-
cluding the housekeeping employees, laundry em-
ployees, bell stand-drivers employed by the Em-
ployer's motel in East Point, Georgia, but excluding
all professional employees, managerial employees,
office clerical employees, front office personnel,
guards and supervisors as defined in the Act.
On April 6 a hearing was held thereon before a hear-
ing officer. The Respondent moved pursuant to the Free-
dom of Information Act, 5. U.S.C. Sec. 552, as amended,
that the authorization cards submitted to the Board as
evidence of showing of interest be produced for the Re-
spondent's inspection. The hearing officer denied the
motion. The Company also contended that the Petition-
er, the Union, was not a labor organization within the
meaning of Section 2(5) of the Act. The Union did not
insist that the unit it had petitioned for was the only ap-
propriate unit, but agreed in the alternative to proceed to
an election in any unit found to be appropriate. The
Company did not agree that the unit petitioned for was
appropriate, but otherwise took no position as to the ap-
propriate unit. However, in its brief, dated April 14, the
Respondent sought to include in the unit front desk
clerks, the director of sales, and the sales representative.
On April 27, the Regional Director issued a Decision
and Direction of Election. In this decision, the hearing
officer's denial of the Respondent's motion that the au-
thorization cards be produced pursuant to the Freedom
of Information Act for inspection was upheld, and var-
ious cases were cited in support thereof. The decision
also held that the Union was a labor organization within
the meaning of the Act, finding from the testimony of
John Timperio, the Union's president and business man-
ager, that it was an organization in which employees par-
ticipate, and that it existed for the purpose of dealing
with employers concerning wages, hours, and other
terms and conditions of employment. The decision also
e The Respondent's motion to dismiss the complaint made on July 12,
1979, is disposed of in accordance with the findings and conclusions set
forth in this Supplemental Decision.
' Official notice is taken of the record in the representation proceed-
ing, Case 10-RC-11358, 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 Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969); Iniertype Co. v. Penello, 269 F Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91
(7th Cir 1968); Sec 9(d) of the NLRA, as amended
found appropriate the following unit, which is slightly
different from the unit originally petitioned for:
All full-time and regular part-time housekeeping
and service employees employed by the Employer
at its East Point, Georgia, motel, including maids,
housemen, inspectresses, bellmen, maintenance em-
ployees and lifeguards, but excluding office clerical
employees, the front desk clerks, the director of
sales, the sales representative, guards and supervi-
sors as defined in the Act.
On May 9, counsel for the Company mailed to the Re-
gional Director in Atlanta, a request for review of the
Regional Director's Decision and Direction of Election.
On May 24 the Board, by Associate Executive Secretary
Mario A. Lauro, Jr., directed that telegrams be sent from
its Washington, D.C., office to the Company, the presi-
dent of the Union, and to Region 10, denying the Com-
pany's request. 8 The telegram read as follows:
Re: Howard Johnson Company 10-RC-11358 Em-
ployer's request for review of Regional Director's
Decision and Direction of Election is hereby denied
as it raises no substantial issues warranting review.
By direction of the Board: (Member Murphy dis-
senting.)
On May 26, an election by secret ballot was conducted
under the direction and supervision of the Regional Di-
rector among the employees in the unit found appropri-
ate for the purposes of collective bargaining. Out of the
45 votes cast, 24 were in favor of the Union, 15 were
against the Union, and 6 were challenged, giving the
Union a majority of the valid votes counted. On May 31
the Company filed timely objections to the election, and
on June 15 supplemented its objections by filing a state-
ment in support thereof. In essence its objections were as
follows:
1. The Regional Director's denial of the Respondent's
request, pursuant to the Freedom of Information Act, to
examine the authorization cards submitted by the Union
was contrary to law.
2. The exclusion of desk clerks and the director of
sales caused the unit to be inappropriate.
3. The election was conducted without any notice
from the Board to the Company as to any ruling by the
Board on the Company's May 9 request for review.9
a The telegram was jointly addressed to Richard A Gaucher. Esq.
Howard Johnson Company, 220 Forbes Road. Braintree. Mass 02184: lo
John R. Timperio, Pres. & Bus. Mgr. Hotel, Motel & Restaurant Em-
ployees Union, Local 151, 161 Spring Street. N.V.. Atlanta, Ga.: and to
NLRB-Region 10, Atlanta. Ga
9 In counsel for the Respondent's letter of June 15 to the Board. he
stated that at the preelection conference at 6 a m on May 26 he informed
the Board agent conducting the election that he had received no ruling
from the Board on the Company's pending request for res iew. The
Board agent advised him that it was her understanding that the Compan)
request for re.iew had been denied. although she had not seen such com-
munication Although the Employer objected to proceeding with the
election absent the notification of the Board's ruling on its request for
review, the election was conducted as scheduled C(lunsel Gaucher "a,
the authorized observer for the Employer and signed the tall) of ballots
on its behalf
1413
DEI)tCISIONS ()F NATIONAL LABOR RELATIONS BOARD
4. The Union conducted a preelection campaign con-
sisting primarily of an appeal to racial prejudice, thereby
excluding white voters.
An investigation was conducted of the issues raised by
the objections, in accordance with Section 102.69 of the
Board's Rules and Regulations, and on June 27 the Re-
gional Director issued a Supplemental Decision and Cer-
tification of Representative. As to Objection I, the Re-
gional Director ruled that the authorization cards were
privileged from disclosure under exemption 6 of Section
552(b) of the Freedom of Information Act.
As to the Company's objection to the exclusion of
desk clerks and the director of sales from the unit, the
Regional Director pointed out that the Company had
previously raised this issue in its request for review of
the Regional Director's Decision and Direction of Elec-
tion, and that "[t]he Board denied Employer's request for
review on May 25, 1978, thus affirming the appropriate-
ness of the unit found by the Regional Director."
As to Objection 3, the Regional Director pointed out
that the investigation disclosed that on May 25, 1978, the
Board had sent a telegram to Company's counsel in
Braintree, Massachusetts, denying the Employer's re-
quest for review, and that the failure of the Company's
counsel to receive notice of this denial prior to the elec-
tion was not grounds for setting aside the election.
As to Objection 4, that the Union had conducted a
preelection campaign consisting primarily of an appeal to
racial prejudice, the Regional Director had interviewed
eight witnesses presented by the Company. Each of these
eight witnesses denied that statements with any racial
overtones were made during the campaign. Since no
other evidence was presented to support this objection,
the Regional Director found that it had no merit.
The Regional Director, finding that the objections did
not raise any material or substantial issues affecting the
results of the election, overruled them, and certified the
Union as the exclusive representative of the Employer's
employees in the unit previously found appropriate.
On July 6, counsel for the Company filed with the
Board a request for review of the Supplemental Decision
and Certification of Representative. This request con-
tained the same objections previously made by the Com-
pany in its May 10 request for review of the Regional
Director's Decision and Direction of Election, and in its
May 31-June 15 objections to the election. In substance
they were as follows: (1) the Regional Director's refusal
to permit the Company to examine authorization cards
was prejudicial; (2) the Regional Director's unit determi-
nation was improper in that front desk clerks and the di-
rector of sales or sales manager should not have been ex-
cluded from the unit; and lastly "conducting the election
prior to a ruling by the Board on the Employer's request
for review and notice thereof was clearly contrary to
Board policy."
On July 26 the Board, again by Associate Executive
Secretary Mario A. Lauro, Jr., directed that telegrams be
sent from Washington to the Employer,' ° to the Union,
to The telegram addressed to the Company was to the attention of the
same attorney, Richard A Gaucher, as the Board's telegram of May 24,
and to the same address in Braintree, Massachusetts.
and to Region 10, denying the Employer's request for
review. The telegram read as follows:
Employer's request for review of Regional Direc-
tor's Supplemental Decision and Certification of
Representative is hereby denied as it raises no sub-
stantial issues warranting review. By Direction of
the Board.
The Complaint Case
The complaint, issued on September 14, alleges that
commencing on or about June 28 the Respondent has
committed unfair labor practices in violation of Section
8(a)(1) and (5) of the Act by refusing to bargain with the
Union upon request. In due course the Respondent filed
its answer to the complaint in which certain allegations
of the complaint were admitted and others denied.
In its answer the Respondent, inter alia, admitted the
following allegations of the complaint: (1) the service of
the charge, (2) that the Respondent is a corporation with
a place of business in East Point, Georgia, where it is en-
gaged in the operation of a motor lodge, (3) that in the
past calendar year its gross revenues were in excess of
$500,000 and that its purchases directly from suppliers
outside the State of Georgia were in excess of $50,000,
(4) that there was an election on May 26 in which a ma-
jority of the employees in the unit, set forth in paragraph
6 of the complaint, designated the Union as their bar-
gaining representative, (5) that the Regional Director
certified the Union as the bargaining representative of
the employees described in the unit set forth in said para-
graph, (6) that on or about June 28 and thereafter the
Union requested it to bargain as the representative of the
employees in the unit described in said paragraph 6.
The Respondent denied the following allegations of
the complaint: (I) that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, (2) that the Union was a labor organi-
zation within the meaning of Section 2(5) of the Act, (3)
that the unit of employees set forth in paragraph 6 con-
stituted an appropriate unit, (4) that the unit was appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act, (5) that on and
after June 28 it refused to bargain collectively with the
Union, and (6) that it violated Section 8(a)(5) and (1) of
the Act. The Respondent further contended: (I) that the
certification issued by the Regional Director was unsup-
ported by facts and contrary to law, and (2) that the
Board had not ruled on Respondent's May 9 and July 6
requests for review.
Preliminary Matters
At the opening of the further hearing on July 12, Gen-
eral Counsel's motion to amend paragraph 6 of the com-
plaint was granted, so as to set forth therein the unit that
had been found to be appropriate by the Regional Direc-
tor in his Decision and Direction of Election, and as fur-
1414
HOWARD JOHNSON COMPANY
ther repeated by the Regional Director in his Supple-
mental Decision and Certification of Representative. It
General Counsel then moved to revoke the Respond-
ent's subpoena duces tecum that had been directed to
Curtis L. Mack, Regional Director for Region 10, calling
on him to appear at the hearing, and to produce the fol-
lowing:
I. All authorization cards submitted to the Board
by the Petitioner in Case No. 10-RC-11358 in sup-
port of its petition.
2. All correspondence, records and documents of
the Board relating to the investigation and adminis-
trative determination of the validity and sufficiency
of the authorization cards to support the petition,
including but not limited to Board Form 4069.
3. All correspondence, records and documents,
including the authorization cards, relating to the
intent, if any, of the authorization card signers to
have their authorization cards kept secret and confi-
dential.
Next, General Counsel moved on the record to revoke
a subpoena duces tecum issued by the Respondent direct-
ed to Mario Lauro, Jr., associate executive secretary of
the Board, that required him to produce the following:
1. The decision, if any, made by the National
Labor Relations Board in regard to the Employer's
May 10, 1978 Request for Review of the Regional
Director's Decision and Direction of Election in
Case No. 10-RC-11358; the date the decision was
made; notification, if any, to the Employer of the
decision; the manner by which such notification was
effected; the date such notification was effected; the
date of such notification; and proof that such notifi-
cation was made.
2. The decision, if any, made by the National
Labor Relations Board in regard to the Employer's
July 6, 1978 Request for Review of the Regional
Director's Supplemental Decision and Certification
of Representation in Case No. 10-RC-11358; the
date the decision was made; notification, if any, to
the Employer of the decision; the manner by which
such notification was effected; the date of such noti-
fication; and proof that such notification was made.
The motions filed by General Counsel were granted
for the reasons set forth in General Counsel's petition to
revoke. The cards and related documents sought from
the Regional Director were not relevant to the issues of
this case. General Counsel's complaint clearly set forth
that he was basing his claim that the Union was the rep-
resentative of the Respondent's unit employees on the
fact that the Union had won a secret-ballot election con-
ducted by the Board and had been duly certified as the
exclusive collective-bargaining representative of the em-
ployees. The Respondent's demand for cards and docu-
ments would have been relevant if General Counsel had
i' The unit set forth in the complaint was the unit initially petitioned
for by the Union, and the amendment was granted without objection by
the Respondent.
based his claim that the Union was the bargaining repre-
sentative on the fact that it had a majority of authoriza-
tion cards, as found in N.L.R.B. v. Gissel Packing Co..
Inc., 395 U.S. 575 (1969). In a Gissel situation, the Re-
spondent is entitled at a hearing to see the cards and ex-
amine the signatories thereof as to their beliefs and moti-
vations for signing the cards. Also, Mack and Lauro
were both employees of the Board and, under Section
102.118 of the Board's Rules and Regulations, are forbid-
den to disclose official information without the prior
written consent of the Board, Chairman of the Board, or
General Counsel. There was no evidence presented that
such consent had been requested by the Respondent, nor
was it claimed that such consent had been granted.
Business Manager Timperio also moved on the record
to revoke the subpoena duces tecum issued to him by the
Respondent, which called for the following:
1. All authorization cards submitted to the Board
by the Petitioner in Case No. 10-RC-11358 in sup-
port of its petition.
2. All correspondence, records and documents,
including the authorization cards, relating to the
intent, if any, of the authorization card signers to
have their authorization cards kept secret and confi-
dential.
Since item I and 2 of this subpoena duces recum re-
quested the same authorization cards and related docu-
ments as items I and 3 of the subpena to the Regional
Director, which I had previously found to be not rele-
vant to the issues of this case, I granted Timperio's peti-
tion to revoke.
The Request To Bargain
Paragraph 10 of the complaint alleged that on two oc-
casions the Union had requested the Respondent to bar-
gain with it as follows:
On about June 28, 1978 and at all times thereafter
including specifically on or about August 2, 1978,
the Union requested Respondent to bargain collec-
tively with the Union as the exclusive representa-
tive of all the employees in the unit described in
paragraph 6 above, with respect to rates of pay,
wages, hours of employment and other terms and
conditions of employment.
The Respondent, in its answer, denied that the unit
was appropriate for the purposes of bargaining, but ad-
mitted the other allegations of the paragraph, thereby
conceding that the Union had requested it to bargain on
or about June 28 and at all times thereafter, including
August 2.
In addition to this admission, General Counsel had
Timperio, the president and business manager of the
Union, testify as to the Union's requests to bargain. 12
Timperio identified General Counsel's Exhibit 3 as the
letter he caused to be sent to Karl Thomas, general man-
ager of the Howard Johnson Motel in East Point, Geor-
lZ Tlmperio was the only wllners called hb (General Counsel.
1415
DECISIONS OF NATIONAL l.ABOR RELATIONS BOARD
gia, dated June 28, 1978. In this letter, on Local 151 sta-
tionery, Timperio informed the Respondent that he had
received the June 27 "Certification of Representation
Notice" from Region 10 in Case 10-RC-11358, certify-
ing Local 151 as the exclusive bargaining representative
of all the employees in the unit. He then advised General
Manager Thomas that he was ready to meet with him as
soon as possible for the purpose of collective bargaining
as to rates of pay, hours of work, and other working
conditions. Timperio also identified General Counsel Ex-
hibit 4 as the letter he sent to the same general manager
of the Respondent at the same address in Georgia on
August 2. In this letter Timperio again advised that he
was ready to meet with the Respondent for the purposes
of collective bargaining, and further advised that if col-
lective bargaining was not entered into he would file a
charge with the Board. No reply was received to either
letter. Timperio testified that both of these letters were
sent by certified mail, and testified that he received re-
ceipts for their delivery in the form of green cards. He
admitted on cross-examination that he did not know who
signed the green cards nor did he know if Mr. Thomas,
the addressee, received the letters. Timperio testified in a
sincere, frank manner without contradiction, and I credit
his testimony. Because of the Respondent's admission in
the complaint, and Timperio's credited and uncontradict-
ed testimony, I find that the Union did request the Re-
spondent to bargain on or about June 28 and August 2.
The Respondent has not replied to either letter, or by
any other means communicated with the Union in re-
gards to its comcomitant duty to bargain with the certi-
fied Union of its employees.
The Requests for Review
During the course of the hearing General Counsel's
Exhibits 7 and 8 were received into evidence without ob-
jection. General Counsel's Exhibit 7 was a photostatic
copy of the telegram received from the Board by Region
10, date-time stamped May 25, 9:55 a.m., which denied
the Respondent's request for review of the Regional Di-
rector's Decision and Direction of Election. General
Counsel's Exhibit 8 was a photostatic copy of the tele-
gram received from the Board by Region 10, date-time
stamped July 27, 8:16 a.m., denying the Company's re-
quest for review of the Regional Director's Supplemental
Decision and Certification of Representative.
Counsel for the Respondent stated on the record that
he had been counsel of record in this case since the peti-
tion was filed, and at no time had he ever received a
telegram from the Board notifying him of any ruling by
the Board on either of his requests for review. I credit
counsel for the Respondent's statement that he never re-
ceived such telegrams from the Board. However, he did
admit on the record that he had received a copy of one
of the telegrams from an investigator from the Regional
Office, by at least August 31.'3 It was the Respondent's
position that the receipt of this copy "does not constitute
13 The charge was filed on August 14, and apparently this copy of one
of the telegrams was furnished to Gaucher by the Region 10 field exam-
iner during the period of investigation prior to the issuance of the com-
plaint on September 14.
proper notification by the Board," and that "in any event
it pertains to only one of the two requests."
As previously set forth herein, I left the record open
for General Counsel to secure from the Board's records
copies of affidavits of service on the Respondent for
those two telegrams, or whatever evidence he could
secure to prove delivery of the telegrams to the Re-
spondent. General Counsel has not supplied any records,
and the reasonable inference is that there are no records
to prove that the telegrams from the Board were re-
ceived by the Respondent.
The Respondent's Witnesses
On July 2, the Respondent had mailed subpenas from
its Massachusetts office to 21 of its employees in Geor-
gia. At least 14 of these employees were present in the
hearing room when the Respondent commenced its de-
fense. At this time there was a colloquy between counsel
for the Respondent, General Counsel, and myself con-
cerning the questioning of these witnesses about authori-
zation cards, the circumstances of their signing, or the in-
tentions of the signers. I then informed the Respondent's
counsel that if such questions were asked, and if General
Counsel objected on the grounds that such questions
were not relevant, I would sustain the objection. The
Respondent's counsel then called as his first and only
witness Ardela Banks, and proceeded to ask her if, at
any time during the history of this case, she had signed a
union authorization card. When General Counsel object-
ed I sustained the objection. The Respondent's counsel
then made the following offer of proof:
It is Respondent's position that had it been al-
lowed to pursue the line of questioning with refer-
ence to the authorization cards of the following
named witnesses, Ardela Banks, Clara M. Barber,
Jesse Brooks, Winnie P. Buchanan, Mary A.
Chacow, Betty Fuller, Nellie R. Hazel, Josey M.
Jones, John D. Norris, Molly B. Person, Lizzy M.
Rainey, Robert D. Chamburger, Birdie Thompson,
Beverly Washington. And if those witnesses had
been permitted to testify on this matter, they would
have testified that those who signed union authori-
zation cards did not intend that those cards be kept
secret, private, or confidential; that the circum-
stances surrounding the signing of those cards sup-
port this proposition that other persons witnessed
those signatures; that numerous persons at times had
custody over the cards since their signing; and that
no representations were made by the person solicit-
ing the signatures that these cards would be kept
secret, nor was any request made by any of these
witnesses that the cards be kept secret or confiden-
tial; and that finally, these cards contain no intimate
details of a highly personal nature.
Analysis
It is established Board policy in a complaint case, in
the absence of newly discovered or previously unavail-
able evidence or special circumstances, not to permit liti-
gation before an administrative law judge of issues which
1416
HOWARD JOHNSON COMPANY
were or could have been litigated in a prior related rep-
resentation proceeding. 4
With the exception of the Respondent's contention in
its brief that the revocation of the three subpoenas duces
tecum was prejudicial error, and that the Board's failure
to notify the Respondent of its rulings on its requests for
review violated the Administrative Procedure Act, and
the matter of the Union's request to bargain, all of the
Respondent's contentions in the representation case and
in this unfair labor practice case were urged before the
Regional Director and the Board, and were denied. The
Regional Director found that Local 151 was a labor or-
ganization within the meaning of Section 2(5) of the Act,
that the unit set forth in his decision was a unit appropri-
ate for the purposes of collective bargaining, that the Re-
spondent was not entitled to the production, under the
Freedom of Information Act, of the authorization cards
that had been submitted to the Board by the Union as
evidence of its showing of interest, and that the Board
had ruled on the Respondent's May 10 request for
review.'15 These denials are binding on me. The Re-
spondent is free to request the Board to reconsider its de-
termination and, in the event of an adverse decision, to
seek review in an appropriate court of appeals. The
Board's dispositions are not, however, reviewable by me.
There remains the matters of the revocation of the Re-
spondent's subpoenas duces tecum , the Respondent's
right to receive copies of the Board's rulings on its re-
quests for review, and the Union's requests to bargain.
As previously set forth, the cards and documents sought
by the Respondent in its subpenas to the Regional Direc-
tor and to Timperio were not relevant to this case. The
question of representation was decided at the ballot box,
through the Board-conducted election and certification
procedures, which, as stated in Gissel, supra, is "the pre-
ferred route." In addition, as to the subpenas to the Re-
gional Director and the associate executive secretary, the
Respondent had not complied with Section 102.118 of
the Board's Rules and Regulations as set forth above.
The most critical issue presented by the Respondent is
its allegation that the Board failed to notify it of its rul-
ings, if any, on the Respondent's two requests for
review, thereby violating Section 555(e) of the Adminis-
trative Procedure Act, and relieving it of any duty to
bargain with the Union. Section 555(e) provides as fol-
lows:
Prompt notice shall be given of the denial in whole
or in part of a written application, petition, or other
request of an interested person made in connection
with any agency proceeding.
14 Pittsburgh Plate Glass Company v. N.LR.B., 313 U.S. 146, 162
(1941); Hoaward Johnson Company, 164 NLRB 801 (1967); Klinger Electric
Corporation, 245 NLRB No. 159 (1979); and Sec. 102 67(f) of the National
Labor Relations Board Rules and Regulations, Series 8, as amended:
Denial of a request for review shall constitute an affirmance of the
regional director's action which shall also preclude relitigating any
such issue in any related subsequent unfair labor practice proceeding
ia The Respondent did not contend in its brief, as it did in its answer,
that it was not engaged in commerce within the meaning of Sec. 2(6) and
(7) of the Act. The Regional Director had found that the Respondent
was engaged in commerce within the meaning of the Act.
The fact that the Board did make and send out such
rulings promptly is clear from the record, as Region 10
received its copy of both telegrams as time-stamped on
May 25 and July 27, respectively. However, this does
not establish that the Respondent received its copies.'"
Since General Counsel was unable to secure any evi-
dence from the Board's files that the telegrams were de-
livered to, or received by, the Respondent, and the Re-
spondent's counsel stated credibly on the record that he
had not received any telegrams from the Board notifying
him of the Board's rulings on his requests for review, I
find that the Respondent has rebutted the ordinary pre-
sumption of delivery and that the Respondent did not re-
ceive such telegrams from the Board.
However, this is not to say that the Respondent was
without knowledge as to the Board's denial of its re-
quests for review. In his Supplemental Decision of June
27, in overruling the Respondent's Objection 3, the Re-
gional Director specifically pointed out that the Board
had denied the Respondent's request, and had sent a tele-
gram to the Respondent so stating:
The investigation disclosed that on May 25, 1978,
the Board sent a telegram to Employer's counsel in
Braintree, Massachusetts, denying Employer's re-
quest for review of the Regional Director's Deci-
sion and Direction of Election. Employer's coun-
sel's failure to receive notice of this denial prior to
the election is not grounds for setting aside the elec-
tion.
Also, by August 31, the Respondent's counsel had ad-
mittedly received a copy of one of the telegrams from
the Regional Office. Since this telegram set forth the Re-
spondent's name therein as an addressee, to the attention
of Richard Gaucher, Esq., he at that time had actual
notice of the Board's denial of the Respondent's request
for review. However, the Respondent states in its brief
that, because of the failure of the Board to notify it of
the Board's rulings, it had a good faith doubt as to
whether or not the Board had ruled on its requests and,
as a result, was under no obligation to bargain with the
Charging Party."
We are thus faced with the balancing of interests as
often occurs in the real world of labor relations. The em-
ployees, whose majority vote chose the Union as their
bargaining representative, would suffer a heavy hardship
if they were barred from having the Union bargain for
them, because the Board's notices had not been received
promptly by the Respondent, although indirect notice
had been received. I do not find that the Respondent had
a good-faith doubt as to whether the Board had ruled on
its requests for review, as the Respondent had been so
informed by the Regional Director in his Supplemental
Decision of June 27, and by the Respondent's receipt of
a copy of one of the telegrams from the Regional Office
prior to August 30. It is to be noted that at no time has
the Respondent claimed that it was prejudiced by not re-
ceiving the telegrams promptly, and the record does not
ie There was no testimony as to whether or not Timperio received the
copies addressed to him
1417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicate that it was prejudiced in any manner. However,
the Respondent would assert that its technical right to
receive the notices from the Board itself negated its duty
to bargain with the duly certified representative of its
employees. I do not find this to be the law in these cir-
cumstances.
In N.L.R.B. v. J. H. Rutter-Rex Manufacturing Compa-
ny, 396 U.S. 258, 264-265 (1969), the Supreme Court
stated, "the Board is not required to place the conse-
quences of its own delay, even if inordinate, upon
wronged employees to the benefit of wrongdoing em-
ployers." When the Respondent received the Union's
two requests to bargain at its Georgia motel, it knew
without question that the Union had been certified as its
employees' bargaining representative, and yet it ignored
the letters and did not respond in any manner to the
written requests to bargain. Certainly if the Respondent
was in good faith, it would have acknowledged the
Union's letters, and advised it of its reasons for refusing
to meet and commence bargaining. After receiving the
notice indirectly, the Respondent in good faith had the
option to comply with the Supplemental Decision, or
question the Board as to the validity of the notice it had
indirectly received. It did neither, and by refusing to ac-
knowledge the Union's admitted requests to bargain and
by ignoring the Union it refused to bargain. I hereby
make the following further:
FINDINGS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Maryland corporation with an
office and place of business in East Point, Georgia,
where it is engaged in the operation of a motel. During
the past calendar year, a representative period, the Re-
spondent's gross revenues were in excess of $500,000;
during the same period the Respondent purchased prod-
ucts valued in excess of $50,000 directly from suppliers
located outside the State of Georgia. The 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.
11. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel and Restaurant Employees Union, Local
151, affiliated with Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Representation Proceedings
i. The unit
The following employees of the 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 housekeeping
and service employees employed by the Respondent
at its East Point, Georgia, motel, including maids,
housemen, inspectresses, bellmen, maintenance em-
ployees and lifeguards, but excluding office clerical
employees, the front desk clerks, the director of
sales, the sales representative, guards and supervi-
sors as defined in the Act.
2. The certification
On May 26, 1978, a majority of the employees of the
Respondent in such unit, in a secret-ballot election con-
ducted under the supervision of the Regional Director
for Region 10, designated the Union as their representa-
tive for the purpose of collective bargaining with the Re-
spondent. The Union was certified as the collective-bar-
gaining representative of the employees in said unit on
June 27, 1978, and the Union continues to be such exclu-
sive representative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and the Respondent's
Refusal
Commencing on or about June 28, 1978, and at all
times thereafter, the Union has requested the Respondent
to bargain collectively with it as the exclusive collective-
bargaining representative of all the employees in the
above-described unit. Commencing on or about June 28,
1978, and continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to rec-
ognize and bargain with the Union as the exclusive rep-
resentative for collective bargaining of all employees in
said unit.
Accordingly, it is found that the Respondent has, since
June 28, 1978, and at all times thereafter, refused to bar-
gain collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit. By
such refusal, the Respondent has engaged in and is en-
gaging 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 the Respondent set forth in section
III, above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act, I find it necessary
to order the Respondent to cease and desist therefrom
and, upon request, bargain collectively with the Union as
the exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, it shall
be construed that the initial period of certification begins
1418
HOWARD JOHNSON COMPANY
on the date the Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. Mar-Jac Poultry
Company, Inc., 136 NLRB 785 (1962); Commerce Compa-
ny 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).
Upon the basis of the foregoing findings of fact and
the entire record, I make the following:
CONCLUSIONS OF LAW
I. Howard Johnson Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Hotel, Motel and Restaurant Employees Union,
Local 151, affiliated with Hotel and Restaurant Employ-
ees and Bartenders International 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 housekeeping and
service employees employed by the Respondent at its
East Point, Georgia, motel including maids, housemen,
inspectresses, bellmen, maintenance employees and life-
guards, but excluding office clerical employees, the front
desk clerks, the director of sales, the sales representative,
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 June 27, 1978, the above-named labor organi-
zation has been and now is the certified representative of
all employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing on or about June 28, 1978, and at all
times thereafter, to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of all the employees of the Respondent in
the appropriate unit, the 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, the Respondent
has interfered with, restrained, and coerced, and is inter-
fering with, restraining, and coercing, employees 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 meaning of Sec-
tion 2(6) and (7) of the Act.
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I hereby issue the following rec-
ommended:
ORDER' 7
The Respondent, Howard Johnson Company, East
Point, Georgia, its officers, agents, successors, and as-
signs, shall:
7 In the event no exceptions are filed, as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
I. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Hotel, Motel and Restaurant Employees
Union, Local 151, affiliated with Hotel and Restaurant
Employees and Bartenders International Union, AFL-
CIO, as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time housekeeping
and service employees employed by the Respondent
at its East Point, Georgia, motel, including maids,
housemen, inspectresses, bellmen, maintenance em-
ployees and lifeguards, but excluding office clerical
employees, the front desk clerks, the director of
sales, the sales representative, guards and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all em-
ployees in the aforesaid appropriate unit 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.
(b) Post at its East Point, Georgia, motel copies of the
attached notice marked "Appendix. " ' 8 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the 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 the Respondent has taken to comply herewith.
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings. conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
is 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
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 con-
cerning rates of pay, wages, hours, and other terms
1419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conditions of employment with Hotel, Motel
and Restaurant Employees Union, Local 151, affili-
ated with Hotel and Restaurant Employees and Bar-
tenders International Union, AFL-CIO, as the ex-
clusive representative of the employees in the bar-
gaining unit described below.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 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 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. The bargaining unit
is:
All full-time and regular part-time housekeeping
and service employees employed by the Employ-
er at its East Point, Georgia, motel including
maids, housemen, inspectresses, bellmen, mainte-
nance employees and lifeguards, but excluding
office clerical employees, the front desk clerks,
the director of sales, the sales representative,
guards and supervisors as defined in the Act.
HOWARD JOHNSON COMPANY
1420