Howard Johnson Motor Lodge

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 519 (N.L.R.B. 1981)

HOWARD JOHNSON MOTOR LODGE
Howard Johnson Motor Lodge and Chauffeurs,
Teamsters and Helpers Local Union No. 364,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 25-CA- 13481
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on April 27, 1981, by
Chauffeurs, Teamsters and Helpers Local Union
No. 364, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served
on Howard Johnson Motor Lodge, herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 25, issued a complaint on May 27, 1981,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 February 20,
following a Board election in Case 25-RC-7570,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate; and that,
commencing on or about April 21, and at all times
thereafter, Respondent has refused, and continues
to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative,
although the Union has requested and is requesting
it to do so. On June 3, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On June 19, counsel for the General Counsel
filed directly with the Board a motion to strike
portions of Respondent's answer 3 and a Motion for
All dates herein are in 1981.
2 Official notice is taken of the record in the representation proceeding,
Case 25-RC-7570, as the term "record" is defined in Sees. 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); Interrype Co. v. Penello, 269 F.Supp 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
I The portions of Respondent's answer which the General Counsel has
moved to strike appear to deny only legal conclusions arising from ad-
mitted facts. We therefore find it unnecessary to rule on the General
Counsel's motion to strike.
258 NLRB No. 73
Summary Judgment. Subsequently, on June 29, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent thereafter
filed a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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
Our review of the record herein reveals that on
January 9, 1981, an election in Case 25-RC-7570
was conducted pursuant to a Decision and Direc-
tion of Election issued by the Regional Director,
resulting in 15 votes for, and 3 against, the Union,
with I challenged ballot, which was insufficient in
number to affect the results of the election. There-
after, the Employer filed timely objections to the
election. On February 20, the Regional Director
for Region 25 issued his Supplemental Decision,
Order, and Certification of Representative, in
which he overruled the Employer's objections in
their entirety, and certified the Union as the exclu-
sive bargaining representative of employees in the
appropriate bargaining unit herein. On March 5,
the Employer filed with the Board a request for
review of the Regional Director's Supplemental
Decision.
On March 23, the Board denied the Employer's
request for review, as it raised no substantial issues
warranting review. Accordingly, the Board certi-
fied the Union as the collective-bargaining repre-
sentative of the employees in the appropriate unit.
In its answer to the complaint, Respondent
admits certain factual allegations therein, including
its refusal since February 20, and more particularly
by letter of April 21, to recognize and bargain with
the Union4 which has been certified as the collec-
tive-bargaining representative of the employees in
the appropriate unit described in the complaint.
However, in its answer to the complaint and in its
response to the Motion for Summary Judgment,
Respondent asserts that the Board and the Region-
al Director erred in overruling its objections to the
election conducted January 9. Consequently, it
argues that the Certification of Representative
issued by the Board s is invalid and without legal
' The Union, by letter of April 2, requested that Respondent bargain
with it as the exclusive representative of the employees in the unit found
appropriate by the Board.
5 Not reported in volumes of Board Decisions
519
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect, and that it therefore did not violate Section
8(a)(5) and (1) of the Act, as alleged.
By its assertions, and more specifically by its de-
nials, in whole or in part, of the allegations of the
complaint and the arguments propounded in the re-
sponse, Respondent is attempting to relitigate the
same issues which it raised in the representation
proceeding in Case 25-RC-7570.
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.s
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
Respondent Howard Johnson Motor Lodge has
its principal offices in Braintree, Massachusetts. It
owns and operates a motor hotel and related serv-
ices in South Bend, Indiana, as well as various
motels in various States. During the past 12
months, a representative period, Respondent, in the
course and conduct of its business operations de-
rived gross revenues in excess of $500,000, and it
purchased and received at its South Bend, Indiana,
facility products, goods, and materials valued in
excess of $50,000 directly from points outside the
State of Indiana.
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
Chauffeurs, Teamsters and Helpers Local Union
No. 364, a/w International Brotherhood of Team-
6
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 102.69(c).
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time mainte-
nance employees, all housekeeping employ-
ees, all desk clerks, and all night auditors;
but excluding all innkeepers, all professional
employees, all guards and all supervisors as
defined in the Act.
2. The certification
On January 9, 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 25, 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 Feburary 20, 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 April 2, and at all
times thereafter, the Union has requested Respond-
ent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing
on or about February 20, and more particularly by
letter of April 21, and continuing at all times there-
after to date, Respondent has refused, and contin-
ues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
April 21 and at all times thereafter, refused to bar-
gain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
520
HOWARD JOHNSON MOTOR LODGE
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Howard Johnson Motor Lodge
set forth in section III, above, occurring in connec-
tion with its operations described in section I,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial 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. Howard Johnson Motor Lodge is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local
Union No. 364, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time mainte-
nance employees, all housekeeping employees, all
desk clerks and all night auditors; but excluding all
innkeepers, all professional employees, all guards
and all 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 February 20, 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 by its April 21 letter, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor 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)(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,
Howard Johnson Motor Lodge, South Bend, Indi-
ana, 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 Chauffeurs, Team-
sters and Helpers Local Union No. 364, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as exclu-
sive bargaining representative of its employees in
the following appropriate unit:
All full-time and regular part-time maintenance
employees, all housekeeping employees, all
desk clerks, and all night auditors; but exclud-
ing all innkeepers, all professional employees,
all guards and all 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
521
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 South Bend, Indiana, facility
copies of the attached notice marked "Appendix."7
Copies of said notice, on forms provided by the
Regional Director for Region 25, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
I 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
No'riCE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS 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 Chauffeurs, Teamsters and Helpers Local
Union No. 364, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILI., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time mainte-
nance employees, all housekeeping employ-
ees, all desk clerks, and all night auditors;
but excluding all innkeepers, all professional
employees, all guards and all supervisors as
defined in the Act.
HOWARD JOHNSON MOTOR LODGE
522