Holiday Inn of Oak Ridge, Tennessee

National Labor Relations Board - Board Decisions

Jun 23, 1969

176 N.L.R.B. 939 (N.L.R.B. 1969)

HOLIDAY INNS OF AMERICA, INC.
Holiday Inns of America , Inc. d /b/a Holiday Inn of
Oak Ridge , Tennessee , Employer and Local 150-T,
Building Service Employees International Union,
AFL-CIO. Case 10-RM-500
June 23, 1969
DECISION AND DIRECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Pursuant to a stipulation for certification upon
consent election approved on October 22, 1968, an
election by secret ballot was conducted on
November 1, 1968, under the direction and
supervision of the Regional Director for Region 10,
among the employees in the stipulated appropriate
unit. At the conclusion of the election the parties
were furnished with a tally of ballots which showed
that of approximately 67 eligible voters, 64 cast
ballots, of which 30 valid votes were cast for the
Union, 28 valid ballots were cast against the Union,
and 6 voters cast challenged ballots. No objections
to the election were filed.
Inasmuch as the challenged ballots are sufficient
in number to affect the results of the election, the
Regional Director caused an investigation to be
made of the issues raised by the challenges, and
thereafter, on November 21, 1968, issued and caused,
to be duly served on the parties his Report on
Challenged Ballots. In his Report the Regional
Director found Alce H. Rymer and Diana Watts not
to be eligible voters and recommended that the
challenges to their ballots be sustained. The
Regional Director also found Dorothy L. Jenkins,
Ronald E. Jenkins, Julia Bray, and Mary Eatherly
to be eligible voters, and recommended that the
challenges to their ballots be overruled, that their
ballots be opened and counted and that a revised
tally of ballots be issued and served on the parties.
Thereafter, the Employer and the Union filed timely
exceptions to the Regional Director's Report.
On December 19, 1968, the Board issued an
Order Directing Hearing, in which, in the absence of
exceptions, it adopted pro forma the Regional
Director's recommendation that the challenge to the
ballot of Dorothy L. Jenkins be overruled,' and
ordered that a hearing be conducted to resolve the
issues with respect to the remaining 5 challenged
ballots.
Pursuant to the Board's Order, a hearing was held
on January 21 and 22, 1969, before Hearing Officer
Robert C. Batson . The Employer, the Union, and
Counsel for the Regional Director appeared and
participated. All parties were afforded full
opportunity to be heard, to examine and
'In its Order the Board directed that the opening and counting of the
ballot of Dorothy L. Jenkins be deferred pending the disposition of the
remaining five challenged ballots.
176 NLRB No. 124
939
cross-examine witnesses, and to introduce evidence
bearing on the issues. On February 24, 1969, the
Hearing Officer issued and duly served on the
parties his Report and Recommendation on
Challenged Ballots, in which he recommended that
the challenges to the ballots of Alce H. Rymer,
Ronald E. Jenkins, Julia Bray, and Diana Watts be
sustained, and that the challenge to the ballot of
Mary F. Eatherly be overruled. The Hearing
Officer also recommended that the ballots of Mary
F. Eatherly and Dorothy L. Jenkins be opened and
counted, that a revised tally of ballots, including the
count of the ballots of Eatherly and Dorothy L.
Jenkins, be prepared and served upon the parties,
and that an appropriate certification be issued.
Thereafter the Employer and the Union filed timely
exceptions with supporting arguments.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record in this case, including the
exceptions and supporting arguments filed by the
parties, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following described unit constitutes a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees of
the Employer at its Oak Ridge, Tennessee,
establishment, including desk clerks, night
auditor, inspectors, maids, laundry workers,
maintenance employees, porters, cashier-hostesses,
waitresses, busboys, cooks, salad girls, kitchen
porters, bartenders, and secretary to the
Innkeeper, but excluding casual employees,
professional employees, guards, and the
Innkeeper, the Assistant Innkeeper, the
housekeeper, and all other supervisors as defined
in the Act.
5. The Board has considered the Employer's
exceptions and argument to the Hearing Officer's
findings and recommendations that the challenges to
the ballots of Ronald E. Jenkins, Julia Bray, and
Diana Watts be sustained. Upon the entire record,
we find that the exceptions are without merit, and
we shall, accordingly, adopt the Hearing Officer's
recommendations to this extent.
The Union excepts to the Hearing Officer's
findings with respect to Mary F. Eatherly and Alce
H. Rymer, contending the Eatherly should have
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been found ineligible because on the date of the
election she was employed only as a casual
employee, and that Rymer should have been found
eligible , notwithstanding his status as a social
security annuitant. For the reasons stated herein, we
find merit in the Union ' s contentions.
MARY EATHERLY
Eatherly was first employed by the- Employer in
May 1968, as a full-time desk clerk. On or about
September 1, 1968, Eatherly gave the Employer's
Innkeeper , Sidney Hill, 3 weeks' notice of intent to
terminate her employment , advising - Hill that she
would be moving to Atlanta, Georgia, where her
husband had obtained employment.' Later, during
the month of September, Eatherly had a second
conversation with Hill in which she advised that the
permanency of the move to Atlanta was undecided,
but that in any event she would have to go to
Atlanta for 3 weeks to open an apartment for her
husband. Eatherly also informed Hill that her
parents resided in Oak Ridge, that she would be
returning to Oak Ridge from time-to-time, and she
asked Hill if she could return to work on a
part-time basis after 3 weeks in Atlanta . Hill agreed
that Eatherly could take a 3 weeks leave of absence
to go to Atlanta, and she could return to work on a
part-time basis on those occasions when she
returned to Oak Ridge and work was available.
Eatherly was last employed on a full-time basis
on September 28, 1968,' and on the following day
she moved her residence to Atlanta. The record
reflects that Eatherly returned to the Employer's
Oak Ridge establishment sometime before the
election , but did not work. On October 25, 1968,
Eatherly again returned , advised that she was going
to be in Oak Ridge, and asked that she be scheduled
to work on a part-time basis . According to Hill, he
granted Eatherly's request and thereafter he
scheduled her on a weekly basis and Eatherly
worked only when called to work. The Employer's
payroll records reveal that Eatherly worked 5 full
days from October 25 through October 31, and 3
full days from November 6 through November 8,
1968. Although the payroll records in evidence do
not reveal Eatherly's work schedule following
November 8, other evidence reveals that she worked
only 1 or 2 days from that date to December 1,
1968, and Eatherly did not work at all after the
latter date. According to Hill's testimony, Eatherly
moved to Atlanta on a permanent basis in late
November, after which Hill arranged for her
employment with a sales office of the Employer's
parent Company in Atlanta, where Eatherly began
work on December 16, 1968.
'Eatherly did not testify , but her prehearmg affidavit given to a Board
agent on November 8, 1968, was admitted in evidence without objection by
any party.
The eligibility period stipulated to by the parties was the 2-week payroll
period ending on October 11, 1968.
We agree with the Hearing Officer's findings that
Eatherly was employed during the payroll eligibility
period, and that her prior notice of intent to quit did
not, of itself, deprive her of eligibility to vote in the
election. We disagree, however, with the Hearing
Officer's finding that the continuity of Eatherly's
employment was not broken and that she had
resumed her employment on a part-time basis prior
to the date of the election. At the time Eatherly left
her full-time employment on September 28, 1968,
the Employer had only agreed that she could work,
if work was available, on those then unspecified
occasions in futuro when she returned for visits to
Oak Ridge from Atlanta, a distance of more than
200 miles. Subject to these conditions, i.e., the
availability of work and Eatherly's presence in Oak
Ridge at unspecified intervals, her employment
status after September 28, 1968 was not attended by
the regularity necessary to warrant the conclusion
that she was a regular part-time employee. On the
contrary, Eatherly's employment on and before the
date of the election was, at best, of a casual and
intermittent nature, and as casual employees were
excluded from the unit by stipulation of the parties,
we shall sustain the challenge to Eatherly's ballot.
ALCE H. RYMER
Rymer., who is a social security annuitant, was
first employed by the Employer as a pot washer in
the kitchen of its restaurant on August 11, 1966. At
the time of his hire Rymer explained to Johnson,
the Employer' s then Innkeeper , that he would be
able to work only until his earnings reached the
level allowed under social security regulations, and
Rymer asked if it would be agreeable if he took a
leave of absence when this time came. Johnson
agreed . In November 1966 Rymer's earnings had
reached the approximate level of $1,500 for the
year,' and he requested and was granted a leave of
absence. While Rymer was on leave in 1966, the
Employer paid his pro-rata share of an insurance
premium covering the employees, and deducted the
amount from his wages after he returned to work.
Rymer returned to work for the Employer in the
same classification on or shortly after January 1,
1967, and he continued to work until May, at which
time he joined with other employees in a strike
which lasted for approximately 2 months. After the
strike Rymer returned and continued to work until
November when his earnings reached the maximum
allowable for the year. At that time Rymer, as he
had in 1966, asked for and was granted a leave of
absence , with the understanding that he would
return after the beginning of the new year. After
January 1, 1968, Rymer returned to work in the
kitchen and continued to work until August 22,
1968.
'Rymer had earnings of approximately $900 in 1966 before he began
work for the Employer , and therefore worked only until his earnings from
the Employer added $600 to this amount.
HOLIDAY INNS OF AMERICA, INC.
Shortly prior to August 22, 1968, Rymer
informed Innkeeper Hill that his earnings had
approached the maximum allowable amount and
again asked for a leave of absence. According to
Rymer, Hill agreed and asked if Rymer would be
willing to return about February 1, 1969, to which
Rymer agreed. According to the testimony of Hill,
he did not agree to give Rymer a leave of absence,
but rather informed him that if he had to leave
work to limit his earnings , the Employer would
consider him as having quit. Nevertheless, Hill
admitted that he did tell Rymer that the Employer
would consider him for return to work in March
1969, and that he also furnished Rymer with the
name and address of the insurance carrier and
instructions as to the monthly amount Rymer would
have to pay as his share of the premium during the
period of his absence.
We find no merit in the Employer' s argument
that Rymer quit and was, therefore, not employed
on either the eligibility date or the date of the
election. The treatment accorded Rymer in August
1968, in allowing him to leave work temporarily in
order to limit his earnings , was precisely the same
as the treatment accorded him in the prior 2 years.
Moreover, such treatment was fully consistent with
the policy followed by the Employer with respect to
another social security annuitant , John Smith, who
was granted a leave of absence for the purpose of
limiting his earnings in each year from 1960 through
1968. As it had in the prior 2 years, the Employer
made provision in August 1968 for Rymer to pay
his prorata share of his insurance premium, and the
Employer continued to pay its share.' It was not
until December 31, 1968 that Rymer received notice
that he had been terminated, and the Employer
admittedly did not notify its Memphis headquarters
until earlier that same month of its contention that
Rymer had quit his job. Accordingly, and without
the necessity to decide Rymer's employment status
on or after December 31, 1968, we find that he was
employed by the Employer on both the eligibility
date and the date of the election.
On the basis of the foregoing evidence, the
Hearing Officer found Rymer to be a superannuated
employee who limits his working time and earnings
so as not to decrease his social security annuity, and
under prevailing Board precedent was not eligible to
participate in the election. The Union contends,
nevertheless, that in spite of Rymer 's status as a
social security annunitant who voluntarily limits his
working time and earnings , Rymer does enjoy a
close community of interest with other employees in
the unit, and the challenge to his ballot should be
overruled. We are now persuaded, by a recent court
of appeals decision,' that the Union's contention has
merit. Accordingly, employees who are otherwise
'Hill testified that he was not positive , but assumed that the Employer
paid its share of the premiums on Rymer 's insurance for the last 4 months
of 1968 . The record also reveals that in January 1969 the insurance carrier
paid a bill for hospitalization incurred by Rymer in November 1968.
941
within the appropriate unit will not henceforth be
excluded and found ineligible to participate in a
Board-conducted election solely for the reason that
they limit their working time and earnings so as not
to decrease their social security annuity, and earlier
cases to the contrary are hereby overruled.7
In this case the record is clear that Rymer is
employed in a classification within the bargaining
unit. He has been employed by the Employer in its
kitchen since 1966, and except during the periods of
his annual leave of absence he worked a regular
schedule of 5 days per week. During the eligibility
period and on the date of the election there was no
indication that Rymer would not continue to work
for the Employer on a similar schedule in the future.
Employed as he was in the kitchen, Rymer enjoyed
close contact and association with other employees
in the unit, and the record reveals that his
employment benefits, including insurance, profit
sharing and vacations, are similar to the benefits
enjoyed by the full-time and other regular part-time
employees. Inasmuch as Rymer, although on leave
of absence, was regularly employed within the unit,
we shall overrule the challenge to his ballot.
In accordance with the findings herein, the
challenges to the ballots of Ronald E. Jenkins,
Mary Bray, Diana Watts, and Mary Eatherly are
hereby sustained. The challenge to the ballot of Alce
Rymer is hereby overruled, and we shall direct that
Rymer's ballot, together with the ballot of Dorothy
L. Jenkins, be opened and counted.
DIRECTION
It is hereby directed that the Regional Director
for Region 10 shall, within 10 days from the date of
this Decision and Direction, open and count the
ballots of Alce Rymer and Dorothy L. Jenkins, and
thereafter prepare and cause to be served upon the
parties a revised tally of ballots, including therein
the count of said ballots; and take such further steps
as may be necessary in accordance with the Board's
Rules and Regulations.
MEMBERS BROWN AND JENKINS, dissenting:
With all respect for our colleagues and the Court
of Appeals in the Indianapolis Glove case cited by
them, we are not persuaded that the established law
respecting the voting eligibility of social security
annuitants warrants reversal. Taunton Supply
Corporation, 137 NLRB 221 and prior and
subsequent similar cases; cf., also, our dissent in
Clark-O'Neill Inc., 147 NLRB 370.
'Indianapolis Glove Co v. NLR.B., 400 F.2d 363 (C.A 6), reversing
166 NLRB No. 61
'For example see Taunton Supply Corporation, 137 NLRB 221; Horn &
Hardart Company, 147 NLRB 654, and John P Krystyniak d/b/a Red &
White Super Markets, 172 NLRB No. 210.