Dunes Motel

National Labor Relations Board - Board DecisionsAug 31, 1959

124 N.L.R.B. 805 (N.L.R.B. 1959)

DUNES MOTEL 805 All production, maintenance, shipping, and receiving employees at the Employer's establishment in New York, New York, excluding office clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Dunes Enterprises , Inc., d/b/a Dunes Motell and Hotel Em- ployees Union Local 255, AFL-CIO, Petitioner. Case No. 12-RC-513. August 31, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert B. Mintz, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in this case the Board finds : 1. The parties did not stipulate that the Employer's operations affect commerce within the meaning of the Act. The Employer is a Florida corporation which operates a resort motel in Miami Beach, Florida. Guests at the motel are provided with rooms for rent, dining and barroom facilities, and other customary hotel services. The Em- ployer's annual gross revenues exceed $500,000. Its expenditures for advertising in out-of-State newspapers amount to more than $10,000 a year. The Employer maintains a reservations office in New York City. The Employer participates in "package deals" with major airlines. The Employer purchases some goods directly from out-of- State sources, and it purchases from local sources, whiskey, valued in excess of $5,000, which is manufactured in States other than Florida. At certain times of the year over 50 percent of the Employer's guests come to the motel from outside Florida. It appears that less than 75 percent of its guests remain at the motel for periods of a month or more. On the basis of the foregoing, we find that the Employer's motel operations affect commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein? i The name of the Employer has been corrected to reflect the testimony at the hearing that Dunes Motel is a "trade name" used by Dunes Enterprises, Inc. 2 The hearing officer rejected an offer of proof as hearsay. This matter is discussed infra, under paragraph 4 s Floridan Hotel ofTampa, Ind., 124 NLRB 261; Member Jenkins concurring in part and dissenting in part and Member Fanning concurring specially. 124 NLRB No. 100. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The parties are in general agreement as to the composition of the unit, but disagree with regard to the inclusion of certain individuals. The Petitioner would include, and the Employer would exclude, Phil Buonanno, the head bartender, and Fletcher McCullough, the head porter. Buonanno oversees the operation of the bar. He directs employees with regard to such matters as which guests to serve and keeping the bar in order. He determines the working hours of cer- tain employees. Bartenders have been instructed to obey his orders. Although he may not discharge or discipline a regular employee, if cocktail waiters or waitresses do not do their jobs properly, he reports them and his recommendations are usually followed. When a wed- ding or other social affair is held at the motel, Buonanno is respon- sible for hiring and does hire as much extra help as he deems to be required. McCullough hires, discharges, assigns work to, and is "re- sponsible" for, the work done by the porter. Al Ehrlich is "in charge". of the kitchen. and dining room staffs, tells the dishwashers, bakers, and salad men "what to do," prepares the menus and tells the cooks "what he wants," is responsible for the "quality" of the food, and hired the second chef and salad man. In light of the above facts, we find that Phil Buonanno, Fletcher McCullough, and Al Ehrlich are supervisors as defined in the Act and exclude them.4 The record contains no evidence that the chef is a supervisor, but the Petitioner offered to prove that he recently discharged an em- ployee. The hearing officer rejected the proffer as hearsay. As the technical rules of evidence are not controlling in a representation pro- ceeding, this ruling was erroneous.' However, as the Petitioner stated at the hearing that it will be prepared to litigate the chef's status at the postelection stage of this proceeding, and in view of its suggestion in a posthearing memorandum to the Board, that resolution of such issues be deferred until after the election, we find that there was no prejudicial error and do not now pass on the chef's alleged supervisory status. Accordingly, we shall permit him to vote subject to challenge. Ray Williams, the pool manager, is in charge of cleaning and set- ting up the swimming pool area. Formerly, he and the cabana boys were on the motel payroll. At present, Williams receives a percentage of the income derived from the rental to guests of beach mats which See; e . g., 'Pacific Fruit and Produce Conipany '118 NLRB , 1517,'1:51S.' is See Bay Counties District Council of Carpenters, etc., 115 NLRB 1757, 1763. HOTEL COMMANDER, INC. 807 belong to the Employer, and he pays "all help" employed at the pool, including the one full-time cabana boy. Also, Williams and the cabana boy "have . . . the ice cream concession" at the pool. There is testimony that the Employer may "hire" or "fire" the pool manager and cabana boy, and direct them to perform work in and around the pool area. Williams has no lease. Apart from the fact that he pays the help at the pool, there is no evidence that Williams makes any significant capital investment, furnishes goods or materials for the job, or undertakes any risk. These circumstances, together with the fact that the Employer can terminate at will its relationship with either Williams or the cabana boy, indicate that Williams is not an independent contractor and that both he and the cabana boy are em- ployed by the Employer.' In view of his authority to discharge the cabana boy, we find merit in the Petitioner's contention that Williams is a supervisor and exclude him. We include the cabana boy. The record does not reveal sufficient evidence upon which to base a determination as to whether or not the other cabana boys or the beach boys are regularly employed by the Employer. Accordingly, we do not pass on their inclusion in the unit, but shall permit them to vote subject to challenge. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning' of Section 9(b) of the Act : All employees at the Employer's Dunes Motel, Miami Beach, Florida, including food cashiers and checkers and the full-time cabana boy, but excluding office clerical employees, guards, Evelyn La Rocque, Al Ehrlich, the head bar- tender, the head porter, the pool manager, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] See Local No. 980, International Hod Carriers ', Building & Common Laborers' Union of America, AFL-CIO, et al. (The Kroger Company ), 119 NLRB 469, 475-477. Hotel Commander , Inc.' and Majorie Fecas, Dorothy Sullivan, and! +Vivian â€¢ Calderon ; Petitioners and,' Hotel,' Catering, and Waitresses Union, Local 277, AFL-CIO .2 Case No. 1-RD-288. August 31, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hugh J. Beins, hearing offi- cer. The hearing officer 's rulings made at the hearing are free from prejudicial error and are hereby affirmed. ?; e^FD^n',10er's+ne'me appears as corrected ^ at the hearing. s The Union's name appears as corrected at the hearing. 124 NLRB No. 99.