Westin Hotel, The

National Labor Relations Board - Board Decisions

May 19, 1982

261 N.L.R.B. 1005 (N.L.R.B. 1982)

THE WESTIN HOTEL
The Westin Hotel and International Union of Oper-
ating Engineers, AFL-CIO, Local 20. Case 9-
CA-17844
May 19, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on January 8, 1982, by In-
ternational Union of Operating Engineers, AFL-
CIO, Local 20, herein called the Union, and duly
served on The Westin Hotel, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 9, issued a complaint on January 27,
1982, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December
18, 1981, following a Board election in Case 9-RC-
13742, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;t and that, commencing on or about January 4,
1982, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. Subsequently,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On February 8, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February
12, 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
thereafter filed a response to the Notice To Show
Cause.
O' fficial notice is taken of the record in the representation proceed-
ing, Case 9 RC-13742, as the term "record" is defined in Secs 102.h68
and 102.69(g) of the Board's Rules and Regulations, Senes 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); 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. 141
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent
admits its refusal to bargain, but denies that it
thereby violated Section 8(a)(5) and (1) of the Act.
In its response to the Notice To Show Cause, Re-
spondent contends that it is not obligated to bar-
gain because the unit for which the Union is certi-
fied is inappropriate and that the only appropriate
unit is an overall one consisting of all
motel/restaurant employees, excluding all office
clerical employees, supervisors and all professional
employees. Respondent urges that by limiting the
unit to all engineering and maintenance department
employees, the Board departed from both estab-
lished Board law and the weight of the evidence
developed in the record. Respondent also contends
that the issues it wishes to litigate in this unfair
labor practice proceeding were not properly litigat-
ed in the prior representation proceeding.
Counsel for the General Counsel argues that Re-
spondent's contentions are without merit as they
raise issues which were presented to, and decided
by, the Board in the underlying representation pro-
ceeding. 2
A review of the record herein, including the
record in Case 9-RC-13742, reveals that following
a hearing before a hearing officer of the National
Labor Relations Board, the Regional Director for
Region 9 issued a Decision and Direction of Elec-
tion in which the appropriate unit for collective
bargaining was found to consist of:
All employees employed by the Employer in
its maintenance and engineering department at
its Cincinnati, Ohio facility, excluding all other
employees and all professional employees,
guards and supevisors as defined in the Act.
Thereafter, on June 5, 1981, the Hotel, Motel, Res-
taurant Employees and Bartenders Union, Local
12, Intervenor in Case 9-RC-13742 (hereafter
2 General Counsel contends that all issues raised by Respondent's
answer were decided in the representation proceeding and that he is enti-
tled to a summary judgment as a matter of law. In this regard he moves
to strike portions of Respondent's answer, contending that such are con-
trary to the facts admitted and the official record. While, for the reasons
stated herein, we find that Respondent's answer and memorandum in op-
position to Motion for Summary Judgment do not present a meritonous
defense to the allegations of the complaint, we do not believe such de-
fenses should be stricken since they constitute an endeavor by Respond-
ent to preserve a position, albeit, in our view, erroneous one See Rod-Ric
Corporation. 171 NL RB 922 (1968) The motion to strike is denied.
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Intervenor) and Respondent filed sepa-
rate motions for reconsideration with the Regional
Director, contending that the unit in which the
election was directed is inappropriate as a matter of
law and of the evidence developed in the record.
On June 9 and 10, 1981, the Intervenor and Re-
spondent, respectively, filed requests for review
with the Board in Washington, D.C., in which they
reiterated the contentions made in their separate
motions for reconsideration. On June 16, 1981, the
Regional Director for Region 9 issued an order
denying motion for reconsideration in which he
concluded that an insufficient basis existed for a re-
consideration of the Decision and Direction of
Election. However, on June 26, 1981, the Board by
telegraphic order granted the request for review
filed by Respondent and the Intervenor. An elec-
tion was conducted by secret ballot on June 30,
1981, by an agent of the Board, pursuant to the
terms of the Decision and Direction of Election,
and the ballots cast were thereafter impounded in
conformity with the Board's procedures. On Sep-
tember 28, 1981, the Board issued a Decision on
Review in Case 9-RC-13742 in which it adopted
the Regional Director's Decision and Direction of
Election, and remanded the proceeding to the Re-
gional Director for the purpose of opening and
counting ballots in the election which had already
been held and for further appropriate action. On
October 8, 1981, Respondent filed a motion to re-
consider and request for oral argument. On Octo-
ber 9, 1981, the Intervenor filed a motion for re-
consideration with the Board. On November 30,
1981, the Board issued an order denying motion,
finding that Respondent's motion lacked merit and
contained nothing previously considered by the
Board. In its order, the Board also denied Re-
spondent's request for oral argument.3
: Though not raised as an issue by any of the parties, we found from a
review of the record that the Board through inadvertence has never
ruled on the Intervenor's October 9, 1981, motion for reconsideration in
the underlying RC case. We have reviewed the Intervenor's motion and
find that it contains no new arguments, evidence, or contentions not al-
ready considered by and rejected by the Board in Respondent's parallel
motion for reconsideration of October 8, 1981. Further, although the In-
tervenor, in its motion, requested that the R case be remanded to the Re-
gional Director for the purpose of taking evidence on the issue of area
bargaining practice, the Intervenor did not allege any newly discovered
or previously unavailable evidence or special circumstances which war-
rant granting this request. Therefore, having duly considered the matter,
we find that the Intervenor's motion lacks merit and contains nothing not
previously considered by the Board. Further, the Intervenor's request to
remand the case to the Regional Director for purposes of reopening the
record is lacking in merit since the Intervenor had adequate opportunity
to present this evidence at the representation hearing and failed to do so.
Accordingly, we have issued an order dated May 12, 1982, denying In-
tervenor's motion for reconsideration. Since no party has suffered, or
claimed that it suffered, any prejudice based on our failure to make a
ruling on the Intervenor's motion at an earlier time, we find that our in-
advertence-now remedied-does not preclude our granting this Motion
for Summary Judgment.
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.4
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, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Since on or about March 19, 1981, at which time
Respondent commenced its operations, and con-
tinuing to date, Respondent, a Delaware corpora-
tion, with an office and place of business in Cincin-
nati, Ohio, has been engaged in the operation of a
hotel and restaurant complex. Since on or about
March 19, 1981, Respondent, in the course and
conduct of its business operations, has derived
gross revenues in excess of $500,000. During the
same period, Respondent, in the course and con-
duct of its business operations, has purchased and
received at its Cincinnati, Ohio, facility products,
goods, and materials valued in excess of $5,000 di-
rectly from points outside the State of Ohio.
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,
AFL-CIO, Local 20, is a labor organization within
the meaning of Section 2(5) of the Act.
4 See Pittsburgh Plate Glass Ca v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.6
9
(c).
1006
THE WESTIN HOTEL
111. 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 employees employed by [Respondent] in
its maintenance and engineering department at
its Cincinnati, Ohio facility, excluding all other
employees and all professional employees,
guards and supervisors as defined in the Act.
2. The certification
On June 30, 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 9 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 December 18, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 22, 1981,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about January 4, 1982, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
January 4, 1982, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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.
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. The Westin Hotel is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union of Operating Engineers,
AFL-CIO, Local 20, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All employees employed by the Employer in
its maintenance and engineering department at its
Cincinnati, Ohio facility, excluding all other em-
ployees and all professional employees, guards and
supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since December 18, 1981, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about January 4, 1982, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has engaged in and is engaging in unfair labor prac-
tices 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)(l) 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,
The Westin Hotel, Cincinnati, Ohio, its officers,
agents, successors, and assigns, shall:
I. 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, AFL-CIO, Local 20, as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All employees employed by the Employer in
its maintenance and engineering department at
its Cincinnati, Ohio facility, excluding all other
employees, and all professional employees,
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 Cincinnati, Ohio, facility copies of
the attached notice marked "Appendix."5 Copies
5 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
of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with International Union of Operating Engi-
neers, AFL-CIO, Local 20, as the exclusive
representative of the employees in the bargain-
ing 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 employees employed by the Employer
in its maintenance and engineering depart-
ment at its Cincinnati, Ohio facililty, exclud-
ing all other employees and all professional
employees, guards and supervisors as de-
fined in the Act.
THE WESTIN HOTEL
1008