# National Labor Relations Board v. The Westin Hotel

> Court of Appeals for the Sixth Circuit · July 24, 1984 · 738 F.2d 765

URL: https://www.frixlaw.com/law-library/cases/9472352

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THE WESTIN HOTEL, Respondent
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 24, 1984
- **Citations:** 738 F.2d 765; 116 L.R.R.M. (BNA) 3288; 1984 U.S. App. LEXIS 20211
- **Precedential status:** Published
- **Opinion:** Dissent by Edwards
- **Judges:** Edwards, Kennedy, Joiner
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge,
dissenting.
The Board petitions for enforcement of an order to bargain with a unit of 11 maintenance employees while the Westin Hotel cross-petitions protesting the Board’s determination of a separate craft union for *770 same. The facts as determined by the ALJ, some of them strongly disputed by Westin, are as follows:
The Employer, a Washington corporation, has been, since March 19, 1981, engaged in the operation of a hotel and restaurant complex at its Fountain Square South, Cincinnati, Ohio location, where it employs approximately 600 employees of whom 11 are assigned to the engineering and maintenance department. The Employer on May 11, 1981, voluntarily recognized the Hotel, Motel, Restaurant Employees and Bartenders Union, Local 12, herein called the Intervenor, 2 as the bargaining representative for an essentially all employee unit consisting of approximately 347 hourly employees including the 11 engineering and maintenance employees sought herein, 3 as well as those in the traditional hotel classifications of housekeeping, food and beverage, bellpersons and various sub-classifications thereof.
The Petitioner seeks to represent a unit consisting of all the engineering and maintenance department employees, including the Key Control Officer but excluding all other employees. In the alternative, the Petitioner is willing to proceed to an election among the aforementioned engineering and maintenance department employees, excluding the Key Control Officer and all other employees. The Employer and the Intervenor, on the other hand, contend that the only appropriate unit is an overall one consisting of all hourly motel/restaurant employees, excluding all office clerical employees, supervisors and professional employees. mining the appropriateness of a bargaining unit. TRT Telecommunications, 230 NLRB 139 . Moreover, since the recognition agreement was reached after the filing of the Petition, it cannot constitute a bar to an election herein.
The issue in the case appears to be: Did the NLRB abuse its discretion in finding that the Westin’s maintenance employees constituted an appropriate bargaining unit and that the Westin violated the Act by refusing to bargain with the designated unit?
Section 9(b), 29 U.S.C. § 159 (b), of the Act provides that:
the Board shall decide in each case ... in order to assure the employees the fullest freedom in exercising the rights guaranteed by the Act, the unit appropriate for collective bargaining.
Section 9(b) clearly conveys to the National Labor Relations Board authority to make appropriate bargaining unit decisions. While there is certainly a significant dispute of fact in this case between the International Union of Operating Engineers, Local 20 and the Westin Hotel over the appropriateness of the maintenance employee bargaining unit, the record of the proceedings supplies an ample basis for the Board’s determination. I do not see how this court can appropriately term its order an abuse of discretion.
The Intervenor was permitted to intervene upon sufficient showing of interest. It has done so solely in order to protest the Petitioner's unit request and does not wish to appear on the ballot in the event that an election is directed in any unit.
I note that any bargaining history arising from such a voluntary agreement for such a brief period is not a militating factor in deter-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472352. Public record. Not legal advice.