Hyatt Regency Phoenix

National Labor Relations Board - Board Decisions

Jul 2, 1981

256 N.L.R.B. 1099 (N.L.R.B. 1981)

HYA1IT K RFGFNCNCY PHOE:NIX
Hyatt Hotels, Inc., d/b/a Hyatt Regency Phoenix
and International Union of Operating Engi-
neers, Local 428, AFL-CIO. Case 28-CA-
6325
July 2, 1981
DECISION AND ORDER
Upon a charge filed on March 2, 1981, by Inter-
national Union of Operating Engineers, Local 428,
AFL-CIO, herein called the Union, and duly
served on Hyatt Hotels, Inc. d/b/a Hyatt Regency
Phoenix, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 28, issued a com-
plaint on March 20, 1981, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
the complaint and notice of hearing before an ad-
ministrative 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 July 29,
1980, following a Board election in Case 28-RC-
3803, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about February 19, 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 March 30, 1981,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On April 8, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 13, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed a reply to the Motion for Summary
Judgment.
Upon the entire record in this proceeding, the
Board makes the following:
I Official notice is taken of the record in the representation proceed.
ing, Case 28-RC-3803, as the term "record" is defined in Secs 102.68
and 102.6 9(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Elecirosystems, 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); Interrype 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.
256 NLRB No. 164
Ruling on the Motion for Summary Judgment
In its answer to the complaint and reply to the
Motion for Summary Judgment, Respondent basi-
cally contends that the certification of the Union in
the underlying representation case is invalid be-
cause the certified bargaining unit is inappropriate,
the representation election was invalid for the rea-
sons specified in Respondent's objections to that
election, and Respondent was deprived of its due
process rights. The General Counsel argues that
these material issues have been previously decided,
that there are no litigable issues of fact, and thus
that the Board should grant the Motion for Sum-
mary Judgment. We agree with the General Coun-
sel.
Our review of the record herein, including the
record in Case 28-RC-3803, discloses that pursuant
to a representation petition filed on March 10,
1980, a represention hearing in which Respondent
participated was conducted. Thereafter, on April
11, 1980, the Regional Director for Region 28
issued a Decision and Direction of Election in
which he found, inter alia, that the petitioned-for
unit of maintenance and engineering department
employees was an appropriate unit, that Ed Duffy
was not a supervisor within the meaning of the
Act, and that the Hearing Officer did not err in
prohibiting Respondent from questioning witnesses
concerning the extent of the Union's organizational
activity.
Thereafter, Respondent filed a timely request for
review of the Regional Director's decision, alleging
that the Regional Director had departed from
Board precedent, had made erroneous factual find-
ings, and had improperly ruled on the Hearing Of-
ficer's refusal to permit inquiry on the Union's
extent of organization. Respondent also requested
that the Board reconsider its rules and policies, and
that the election be stayed. On May 6, 1980, the
Board granted Respondent's request for review
only with respect to the unit scope issue, but did
not stay the election. In all other respects, the
Board denied Respondent's request for review. On
June 27, 1980, the Board issued a telegraphic order
in which it affirmed the Regional Director's unit
determination, and remanded the case to the
Region for the opening and counting of ballots.
On July 2, 1980, the impounded ballots of the
election conducted on May 7, 1980, were opened
and counted: 10 votes were cast for and 6 against
the Union, with no challenged ballots. Thereafter,
Respondent filed timely objections to the conduct
of the election and to conduct affecting the results
of the election. The objections alleged in substance
that the election should be set aside because the
;Y I i R()GE N C Y P~~ h ) E N I 9 9
1100 I)ECISIONS OF NATI()NAL LABOR RELATI()NS B()ARD
Region failed to permit an employee to vote by
mail ballot, and because the conduct of Ed Duffy
interfered with the election because he was a
prounion supervisor. On July 29, 1980, the Region-
al Director overruled Respondent's objections in
their entirety. The Regional Director found that
Respondent submitted no evidence to support its
objection on the mail ballot issue, and even assum-
ing the allegations to be true, it would not have af-
fected the outcome of the election. As to the objec-
tions on alleged supervisor misconduct, the Re-
gional Director concluded that Duffy's supervisory
status had been previously determined by the Re-
gional Director and the Board, and that Respond-
ent offered no new evidence to support its conten-
tion.
Thereafter, Respondent filed a timely request for
review of the Regional Director's supplemental de-
cision. Respondent reiterated its objections to the
election, and further claimed that the Regional Di-
rector ignored evidence previously submitted by
Respondent and that Respondent was denied due
process by the Regional Director's failure to hold a
hearing based on Respondent's prima facie evidence
of objectionable conduct. On August 27, 1980, the
Board by telegraphic order denied Respondent's
request for review.
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
Except as follows, all issues raised by Respond-
ent in this proceeding were or could have been liti-
gated 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 cir-
cumstances exist herein which would require the
Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that Re-
spondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
However, Respondent now raises for the first
time another argument. Respondent asserts that it is
not attempting to relitigate here the supervisory
status of Duffy in a "related" unfair labor practice
case. Rather, Respondent asserts that the question
of Duffy's status concerns the impact of his alleged
organizational and other union activities on the
election, not his inclusion or exclusion from the
2 See Pittsburgh Plate Glass Co. v N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.6 9(c).
unit. Thus, Respondent contends that the supervi-
sory issue here is analogous to the situation in
which the General Counsel is permitted to litigate
the supervisory status of an individual who is al-
leged to have committed actions violative of Sec-
tion 8(a)(l) or (3) of the Act, but whose status had
been previously decided in a representation pro-
ceeding.3 Respondent contends that the Regional
Director should have reexamined Duffy's alleged
supervisory status, and that the Board should not
grant summary judgment in the instant case.
Contrary to Respondent's contentions, the instant
8(a)(5) summary judgment proceeding is a "related
subsequent unfair labor practice proceeding" which
precludes relitigation of an issue on which the
Board has previously denied a request for review.
See Section 102.67(f) of the Board's Rules and
Regulations, Series 8, as amended. The precise
issues raised by Respondent here-whether Duffy
is a supervisor and whether his union activities in-
terfered with the election-were decided by the
Regional Director. The Board subsequently denied
Respondent's request for review of the Regional
Director's decision regarding Duffy and his activi-
ties. Respondent merely continues in this summary
judgment proceeding to argue that the Regional
Director, and the Board, erred because the Region-
al Director's decision, according to Respondent, "is
not supported by the record." Therefore, this case
stands in a different posture than those cited by Re-
spondent in which independent actions of an indi-
vidual are alleged, in a different proceeding not
arising out of the representation proceeding, to vio-
late Section 8(a)(1) or (3) of the Act, i.e., cases
which do not involve a technical violation of Sec-
tion 8(a)(5), so that a respondent may test the
Board's certification. We agree with the General
Counsel that Respondent in the instant proceeding
is attempting to test in the courts issues which the
Board has ruled on in the underlying representation
proceeding. Indeed, Respondent's letter to the
Union explaining Respondent's refusal to bargain
with the Union supports this conclusion. Thus, Re-
spondent by its argument is raising issues which
were or could have been litigated in a prior repre-
sentation proceeding, and has not raised a meritori-
ous defense to the Motion for Summary Judgment.
In its answer to the complaint, Respondent
denied that since February 6, 1981, and continuing
to date, the Union requested Respondent to recog-
nize and to bargain with it as the exclusive collec-
:' Respondent cities Amalgamated Clothing Workers of America, AL-
C'10 (Sagamore Shirt, d/b/a Spruce Pine Mfg. Co.) v. .L.R.B., 365 F.2d
898 (D.C. Cir. 1966), and Stanley Air Tools, Division of the Stanley Works,
171 NLRB 388 (1968), enfd. 432 F.2d 358 (6th Cir. 1970), among others,
to support its contention.
HYATT REGENCY PHOENIX I101
tive-bargaining representative of the employees in
the certified maintenance and engineering depart-
ment unit. In its reply to the Motion for Summary
Judgment, Respondent does not further address
this denial. The Motion for Summary Judgment in-
cludes as an exhibit a letter, dated February 6,
1981, from the Union to Respondent in which, inter
alia, the Union formally requested to bargain with
Respondent. Respondent has not denied the au-
thenticity of this document. Therefore, we find the
relevant complaint allegations involving it to be es-
tablished as true.4
Accordingly, for the reasons stated above, we
find that Respondent has at all times material
herein refused to recognize and bargain with the
Union, upon request, and that its refusal to do so is
violative of Section 8(a)(5) and (1) of the Act.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONI)ENT
Respondent is, and has been at all material times
herein, an Illinois corporation with a facility and
place of business in Phoenix, Arizona, where it is
engaged in the operation of a hotel. During the 12-
month period preceding issuance of the complaint,
a representative period, Respondent, in the course
and conduct of its business as described above, de-
rived gross revenues in excess of $500,000. During
this same time period, Respondent also purchased
goods and materials valued in excess of $10,000
which were transported in interstate commerce and
delivered to its place of business in the State of Ar-
izona directly from suppliers located in States of
the United States other than the State of Arizona.
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.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers,
Local 428, AFL-CIO, is a labor organization
within the meaning 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
4 See, e.g.. Eskimo Radiator Mfg. Co. 255 Nl.RB No. 43. fn 3 (1981)
purposes within the meaning of Section 9(b) of the
Act:
All employees employed in the maintenance
and engineering department at the Respond-
ent's facility located at 122 North Second
Street, Phoenix, Arizona, exluding all other
employees, office clerical employees, guards,
watchmen, and supervisors as defined in the
Act.
2. The certification
On May 7, 1980, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 28 designated the Union as
their representative for 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 29, 1980, 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 February 6, 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 above-described unit. Com-
mencing on or about February 19, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
February 19, 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 Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
HYATT REGENCY PHOENIX 1 01
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 period of certi-
fication 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Hyatt Hotels, Inc., d/b/a Hyatt Regency
Phoenix, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. International Union of Operating Engineers,
Local 428, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed in the maintenance
and engineering department at Respondent's facili-
ty located at 122 North Second Street, Phoenix,
Arizona, excluding all other employees, office
clerical employees, guards, watchmen, and supervi-
sors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since July 29, 1980, 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 February 19, 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,
Hyatt Hotels, Inc., d/b/a Hyatt Regency Phoenix,
Phoenix, Arizona, 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 International Union
of Operating Engineers, Local 428, AFL-CIO as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All employees employed in the maintenance
and engineering department at the Respond-
ent's facility located at 122 North Second
Street, Phoenix, Arizona; excluding all other
employees, office clerical employees, guards,
watchmen, 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 Phoenix, Arizona, facility, copies
of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 28, after being duly
' In he event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the ntice reading "'losted by
Order of the National Labor Rclations Board" shall read "Posted Pursu-
alit to a Judgment f the niited Stlates Court of Appeals nforcing an
)rder of the National l.abor Relationsl Board"
HYATT REGENCY PHOENIX 1103
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 insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 28,
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 WIL. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with International Union of Operating Engi-
neers, Local 428, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE wll.l. 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 employees employed in the maintenance
and engineering department at the Employ-
er's facility located at 122 North Second
Street, Phoenix, Arizona, excluding all other
employees, office clerical employees, guards,
watchmen, and supervisors as defined in the
Act.
HYATT HOTELS, INC., I)/B/A HYAT-r
RiFG INCY PHOENIX
HYATT REGENCY PHOENIX 103
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