Hamilton Realty CorporationDownload PDFNational Labor Relations Board - Board DecisionsDec 29, 193810 N.L.R.B. 858 (N.L.R.B. 1938) Copy Citation In the Matter of HAMILTON REALTY CORPORATION and LOCAL JOINT EXECUTIVE BOARD OF HOTEL & RESTAURANT EMPLOYEES INTERNA- TIONAL ALLIANCE AND BARTENDERS' INTERNATIONAL LEAGUE OF AMERICA Case No. R-1144.-Decided December 09, 1938 Hotel Operating Industry-Investigation of Representatives : controversy con- ,cerning representation of employees : controversy concerning status of peti- tioner as labor organization : held "labor organization " ; controversy concern- ing appropriate unit; employer 's refusal to bargain on basis of unit proposed by petitioner-Unit Appropriate for Collective Bargaining : all employees ; exclud- ing managerial ' and supervisory employees , office employees , musicians, engi- neers , firemen, carpenters , painters , and upholsterers ; functional coherence ; self -organization ; history of bargaining in industry and with employer ; occupa- tional differences ; desires of employees-Representatives : proof of choice : desig- nation by each of constituent locals; signed authorizations by majority of employees in unit found appropriate-Certification of Representatives: upon proof of majority representation. Mr. Reeves R. Hilton, for the Board. Mr. Joseph C. McGarraghy, of Washington, D. C., for the Com- pany. Mr. Samuel Levine and Mr. Sidney Schlesinger, of Washington, -D. C., for the Joint Board. Mr. Ivar Peterson, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On October 28, 1938, Local Joint Executive Board of Washington, D. C., herein called the Joint Board, of the Hotel and Restaurant Employees' International Alliance and Bartenders' International League of America, herein called the International, filed with the Regional Director for the Fifth Region (Baltimore, Maryland) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of the Hamilton Hotel,' 'On November 18, 1938, the Joint Boaid filed an amended petition wherein the correct name of the company, "Hamilton Realty Corporation ," was given . In all other material respects the amended petition conforms to the original petition. 10 N. L. R. B., No. 75. 858 DECISIONS AND ORDERS 859 Washington, D. C., herein called the Company, and requesting an in- vestigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 23, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labo'r Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On. November 29, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and upon the Joint Board. On December 8, 1938, the Regional Director issued an amended notice of hearing; the Company and the Joint Board, by stipulation at the hearing, agreed to the substitution of the amended notice for the original notice theretofore served, and waived notice of the time and place of hearing. Pursuant to the notices, a hearing was held on December 8, 9, and 10, 1938, at Wash- ington, D. C., before Frank Bloom, the Trial Examiner duly desig- nated by the Board. The Board, the Company, and the Joint Board were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the hearing, the Company moved to dismiss the petition on the ground that the Joint Board is not a labor organization within the meaning of the Act. The Trial Examiner reserved ruling.on the motion. The Board has considered this motion, and for reasons set forth below, it is hereby denied. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections..to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. All the rulings are hereby affirmed. On' December 22, 1938, oral. argument was had before the Board. 'The Company and the Joint Board were represented by counsel and participated in the argument. A brief was filed by the Company and has been considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Hamilton Realty Corporation, a.New York corporation organized in 1935, owns and operates the Hamilton Hotel, which is' located at 14th and K Streets, N. W., in Washington, D. C. The hotel has approximately 300 rooms and accommodates an average of 8,000 860 NATIONAL LABOR RELATIONS BOARD guests per month. The Company, in connection with its general hotel business, maintains and operates dining rooms for, serving food and drink to its guests and the general public. Normally, the Com- pany employs about 220 employees. II. THE ORGANIZATION INVOLVED The Local Joint Executive Board consists of representatives elected by each of the three Washington, D. C., locals of the Hotel and Restaurant Employees' International Alliance and Bartenders' Inter- national League of America. These three locals are Local 781, com- prising restaurant and kitchen employees; Local 80, comprising hotel service employees; and Local 75, bartenders. Each local elects three delegates to the Local Joint Executive Board, and in addition, the business agents of the three locals are ex-officio members of the Local Joint Executive Board, although they have no voting privileges. Hotel and Restaurant Employees' International Alliance and Bar- tenders' International League of America is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership in its locals all persons employed in hotels, restaurants, and kindred establishments, who are engaged in the preparing and serv- ing of food and beverages and in rendering service to the public. The Company contends that the Joint Board is not a labor organi- zation within the meaning of the Act, and for this reason moved to dismiss the petition. Section 2 (5) of the Act defines the term "labor organization" to mean "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." As stated above, the Joint Board consists of representatives duly elected by the members of the Washington, D. C., locals of the International. The constitution of the International, which was introduced in evidence, provides that Local Joint Executive Boards must be formed in any city or vicinity where more than one local exists. These Joint Boards are empowered, among other things, to adjust all differences be- tween locals and employers and to enforce wage scales and hours adopted by the locals after approval by the Joint Board; no collective bargaining agreement may be negotiated by a local without the ap- proval and consent of the Joint Board. Since the convention of August 1938, the International has adopted the policy that Joint Boards, in cities where they exist, should negotiate joint collective bargaining agreements, rather than permitting each of the various locals to negotiate a separate agreement. The record in this case clearly shows that the Joint Board has been designated as the representative of the employees involved not only DECISIONS AND ORDERS, 861 by the three locals but also by the employees directly.2 We conclude, therefore, that.the Joint Board is an organization in which employees participate, existing at least in part for the purpose of dealing with employers concerning matters which are the legitimate objects of col- lective bargaining. We find that Local Joint Executive Board of the Hotel and Restaurant Employees' International Alliance and Bar- tenders' International League of America of Washington, D. C., is a labor organization within the meaning of the Act. III. THE QUESTION CONCERNING REPRESENTATION On September 27, 1938, the Joint Board met with a committee of managers of hotels which are members of the Hotel Association, of Washington, D. C., for the purpose of negotiating, with each member hotel, an agreement covering the terms and conditions of employ- ment of hotel employees.3 The Joint Board took the position that any agreement should treat all employees of a hotel, with certain ex- ceptions, as a single unit. To this, however, the representatives of the hotels did not agree, contending that such unit was inappropriate. On October 19, 1938, the Joint Board notified the Company that it represented a majority of the employees in the Hamilton Hotel, and requested that the Company enter into negotiations for an agreement with the Joint Board covering all employees, except managerial em- ployees, office employees, and musicians. The Company refused to negotiate on the basis of the unit suggested by the Joint Board, but expressed its willingness to enter into separate negotiations for each of three units comprising employees in,the food department, em- ployees in the service department, and bartenders. The negotiations went no further, since neither the Joint Board nor the Company would recede from its position with regard to the appropriate bar- gaining unit. We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial 2 See Section V, infra 8 The Hamilton Hotel is a member of the Hotel Association . The evidence establishes that the negotiations , although participated in by a committee of hotel managers , did not contemplate the formation of contracts between the Joint Board and the Association. The committee had no authority to bind the members of the Association Any agreement, if made, would be between the Joint Board and a member of the Association 862 NATIONAL LABOR RELATIONS BOARD relation to trade, traffic, and commerce within the District of Colum- bia, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT In its petition and amended petition the Joint Board claimed that all employees of the Company, excluding managerial and office em- ployees and musicians, constitute an appropriate unit. During the hearing, the Joint Board defined its claim more specifically by ex- cluding from the unit, in addition to the above-mentioned employees, the following: Engineers, firemen, carpenters, painters, upholsterers, and electricians ,4 most of whom are members of their respective craft organizations. The Company contends that the various de- partments in the hotel are essentially independent businesses; that the qualifications, duties, and working conditions of employees in these departments are dissimilar, and that the organization of its employees and collective bargaining in the past` have followed de- partmental lines. For these reasons, the Company claims that the unit proposed by the Joint Board is inappropriate and that there are at least three separate appropriate units, consisting of hotel serv- ice employees, food-department employees, and bartenders, respec- tively. The Company has divided the hotel, for operating and accounting purposes, into a number of departments,"directly supervised by de- partment heads who in turn are responsible to the manager. In general, the hotel service department, which in reality includes two departments, namely, the halls and elevators department and the housekeeping department, is engaged primarily in furnishing room and related service to guests registered in the hotel. The food de- partment, embracing dining-room and kitchen employees, prepares food and serves the same not only to room guests but also to' the general public. About 75 per cent of the restaurant business is attributable to patrons who are not room guests of the hotel. Like- wise, the beverage department serves guests who may not be registered in the hotel. Although the restaurant and beverage departments are not re- stricted solely to the service of hotel guests, it does not necessarily follow that these departments are unconnected with the hotel service department. In so far as the hotel guests utilize services afforded by the restaurant and beverage departments, all three departments contribute to the general serving of the same group. Moreover, it is to-be noted that, in general, the hotel business is so organized that It appears , however, that the Company has no employees classified as electricians. DECISIONS AND ORDERS 863: housing and eating facilities are maintained in one establishment,, usually under the same management. The evidence establishes that. the Company's hotel manager determines all matters of policy; includ- ing labor policy, relative to all departments, subject to the general approval of the owners. Under these circumstances, it seems clear that the various departments of the hotel are functionally inter- dependent and must be coordinated for the successful operation of the business. The record shows that there is little interchangeability among em- ployees in the various departments. Due to differences in qualifi- cations and duties, employees in the hotel service department are not assigned work in the food or beverage departments. However, the same holds true as to employees within a department; for example, waiters and waitresses are not qualified to perform the duties re- quired of employees in the kitchen nor are maids and housemen utilized as bellmen or elevator operators. On the other hand, the respective classes of employees are related in that each contributes to the totality of service which the hotel furnishes. The self-organization of the type of employees involved has not been on a strictly craft or departmental basis. Local 781, compris- ing at the present time the dining-room and kitchen employees, is the parent local of hotel employees in Washington, D. C. In the past, it embraced some hotel service employees as well as bartenders. In July 1935, Local 75 was chartered by the International and assumed jurisdiction over bartenders who formerly had belonged to Local 781. Local 80 was chartered in August 1937 with jurisdiction over hotel service employees, some of whom had theretofore been members of Local 781. The Joint Board, pursuant to the provisions of the con- stitution of the International, came into existence in 1935, when Local 75 was chartered. During the summer of 1938, each of these three locals, by a vote of its membership, designated the Joint Board as the sole collective bargaining representative of the members of each local. It appears that the designations of the Joint Board as repre- sentative were made pursuant to the policy adopted by the Inter- national, at its 1938 convention, that Joint Boards should negotiate one joint contract for all locals in a particular city or vicinity. The history of bargaining for the type of employees here involved is contradictory and inconclusive on the question of the unit appro- priate for the purposes of collective bargaining. From December 1937 to April 1938 several consent elections were conducted by the Regional Director for the Fifth Region among employees in a number of hotels in Washington, D. C. These elections resulted in the cer- tification by the Regional Director of Local 781 and Local 80 as the bargaining representatives of various groups of employees. In most 864 NATIONAL LABOR RELATIONS BOARD instances Local 80 was certified for hotel service employees; how- ever, maintenance employees and laundry workers were included in the unit in one case and in another laundry workers alone comprised the unit. Local 781 was certified as the representative of kitchen and dining-room employees in two cases . On May 21, 1938, pursuant to a stipulation of the parties , the Board certified Local 80 as the ex- clusive representative of service employees of the Raleigh Hotel Com- pany, Washington, D. C.5 In April 1937 , 10 hotels in Washington , D. C., including the Com- pany, after negotiations with Local 781 , issued a statement of policy regarding the hours , wages, and working conditions of food-depart- ment employees , which was accepted by Local 781. The policy was effective for 18 months, terminating October 1 , 1938. ° The policy did not specifically recognize Local 781 as the bargaining representa- tive of food -department employees , but provided that "in those branches of the catering ( food ) departments where the Union repre- sents a majority of the employees , the management will give the Union first consideration in securing new employees." Effective for an indefinite period from January 1, 1938, three Washington hotels, including the Company , announced a similar statement of policy re- garding hotel service employees . This policy was accepted by Local 80, which was recognized as the sole collective bargaining agency "in those branches of the service department where the Union repre- sents a majority of the employees ." It appears that no contracts or statements of policy covering bartenders are in existence , although there is evidence that several hotels, including the Company, are observing the hours and wage scale adopted by Local 75 and secure new bartenders through Local 75. Three contracts , between Joint Boards and Hotel Associations T in San Francisco , Seattle, and Minneapolis, were introduced in evi- dence in support of the claim of the Joint Board with regard to the appropriate unit. These agreements , in general, cover approximately the same groups of employees as are here involved , and recognize the Joint Boards as exclusive representatives of employees within the jurisdictions of the respective locals. Two of these agreements were entered into in 1937 , and the third was made in March 1938. As noted above , each of the three locals , within the past 6 months, by a vote of its membership , designated the Joint Board as the rep- resentative of the members of each local . Moreover , a majority of 5 Matter of the Raleigh Hotel Company and Hotel and Restaurant Employees Alliance, Local No. 80, 7 N L. R. B. 353. 6 The record shows, however, that the policy has been observed since October 1, 1938, pending the outcome of this proceeding 7 The San Francisco agreement was signed by a hotel owners policy committee on behalf of the owners and operators of 19 named hotels; the other two agreements were signed by the Hotel Association on behalf of its members DECISIONS AND ORDERS 865 the employees of the Company in the unit proposed by the Joint Board 8 signed statements, during the course of the hearing, authoriz- ing the Joint Board to represent them for the purpose of collective bargaining. That a single unit consisting of the employees within the jurisdiction of the three locals is desired by the employees themselves is thus evident. Nor does the Company, although opposing such a unit, offer substantial reasons against its appropriateness. Under all the circumstances, we conclude that the unit proposed by the Joint Board is more appropriate for the purposes of collective bargaining and will better effectuate the policies of the Act than sev- eral units as claimed by the Company. We find that all employees of the Company, excluding managerial and supervisory employees, office employees, musicians, engineers, fire- men, carpenters, painters, and upholsterers, constitute a unit appro- priate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and' otherwise effectuate .the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The manager of the Company read into the record the names of 219 employees on the pay roll for the period ending November 30, 1938. Of these, approximately 183 are within the appropriate unit. As stated above, the Joint Board was duly designated as the bargain- ing representative by each of the three locals during the summer of 1938. During the course of the hearing the Joint Board obtained signed authorizations from 127 employees 9 within the appropriate unit. These authorizations are in the form of several notarized state- ments, with the signatures of employees appended, reciting that the signers, employees of the Company and members of the Interna- tional, "hereby affirm and reaffirm the action of our respective Locals in Washington, D. C. in designating the Local Joint Executive Board of the Hotel and Restaurant Employees International Alliance and Bartenders International League of America of Washington, D. C. to represent us as our collective bargaining agency for the purpose of negotiating an agreement with the said Hamilton Hotel." At the oral argument and in his brief, counsel for the, Company contended that the constitution of the International did not con- template that the Joint Board should act as the collective bargaining representative of the employees, but that its function, under the con- 8 This majority also constitutes a majority of the employees within the jurisdiction of each of the three locals and within each of the three units proposed by the, Company., A comparison of the signatures with the names of employees as of November 30, 1938, reveals that four who signed were not listed as employees on that date However, the remaining 123 signatures check with the pay-roll list. 866 NATIONAL LABOR RELATIONS BOARD stitution of the International, was limited to approving tentative agreements made by locals and exercising a general supervision over the negotiations between locals and employers. In support of this contention, counsel referred to certain provisions of Sections 71 and 72 of the constitution of the International. Section 71 provides, in part, that Joint Boards are empowered "to enforce the scale of wages and hours adopted by the Locals, as approved" by the Joint Board. The pertinent provision in Section 72 requires that "Every new de- mand upon one or more employers in behalf of one or more of the affiliated Locals, and every renewal of an agreement shall, before its presentation, negotiation, or enforcement, be approved" by the Joint Board, and "no agreement or settlement, verbal or written, shall be made by or on behalf of any Local or Locals, except by consent" of the Joint Board. There would appear to be nothing in the aforesaid provisions of tithe constitution of the International to preclude the Joint Board from ;acting as a bargaining representative and there would accordingly .appear to be no necessity for considering in detail the contention of the Company. It is to be noted, however, that Section 2 (4) of the _Aict provides that the term "representatives" "includes any individual or labor organization." As we found above, the Joint Board is a labor organization within the meaning of the Act. It is also to be -noted that Joint Boards in other cities apparently have negotiated with employers and have entered into collective bargaining agree- ments."' We find that the Joint Board has been designated and selected by a majority of the employees in the appropriate unit as their repre- sentative for the purposes of collective bargaining. It is, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, and we will so certify. Upon the, basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Hamilton Realty Corporation, Washing- ton, D. C.'within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company, excluding managerial and super- visory employees, office employees, musicians, engineers, firemen, car- penters, painters, and upholsterers, constitute a unit appropriate for SU Cf Matter of Hoffman Beverage Company - and Joint Local Executive Board of International Union of United Brewery, Flour, Cereal, and Soft Drtink lVovkers of America, 3 N. L. R. B. 584. DECISIONS AND ORDERS 867 the purposes of collective bargaining , within the meaning of Section 9 (b) of the National Labor Relations Act. 3. Local Joint Executive Board of the Hotel and Restaurant Em- ployees' International Alliance and Bartenders ' International League of America of Washington , D. C., is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES By virtue of and ,,pursuant to the power vested in the National Labor Relations`' Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Local Joint Executive Board of the Hotel and Restaurant Employees ' International Alliance and Bar- tenders' International League of America of Washington , D. C., has been designated and, selected by a majority of the employees of Hamilton Realty Corporation, Washington, D. C., excluding mana- gerial and supervisory employees , office employees, musicians, en- gineers, firemen , carpenters , painters , and upholsterers , as their rep- resentative for the purposes of collective bargaining and that, pur- suant to the provisions of Section 9 (a) of the Act, Local Joint Executive Board of the Hotel and Restaurant Employees' Interna- tional Alliance and_ Bartenders ' International League of America r 0f Washington , D. C., is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay , wages, hours of employment , and other conditions of employment. Copy with citationCopy as parenthetical citation