Maxim'S De Paris Suite Hotel

National Labor Relations Board - Board Decisions

Aug 20, 1987

285 N.L.R.B. 377 (N.L.R.B. 1987)

MAXIM 'S DE PARIS HOTEL 377
Pratt/North Plaza Associates, a California Joint
Venture d/b/a Maxim 's de Paris Suite Hotel
and International Union of Operating Engi-
neers , Local 501 , AFL-CIO, Petitioner. Case
21-RC-17804
20 August 1987
DECISION AND REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFr
On 4 November 1986 the Regional Director for
Region 21 issued the attached Decision and Order
in this proceeding. The Regional Director found
inappropriate for collective bargaining the Petition-
er's requested unit of engineering department em-
ployees. Finding that all of the Employer's employ-
ees share a substantial community of interest based
on the Employer's highly centralized management,
its integration of operations, and the fact that all
employees share significant terms and conditions of
employment and have frequent contacts, the Re-
gional Director concluded that a separate unit of
maintenance employees is inappropriate.
In accordance with Section 102.67 of the Board's
Rules and Regulations, the Petitioner filed a timely
request for review of the Regional Director's deci-
sion, contending that the engineering department
employees share a community of interest distinct
from that of the other employees. The Employer,
filed a statement in opposition to the Petitioner's
request for review, and the International Union of
Operating Engineers filed a brief as amicus curiae
in support of the Petitioner's position.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
In light of our recent decision in Omni Interna-
tional Hotel, 283 NLRB 475 (1987), in which the
Board found appropriate a separate unit of engi-
neering department employees, the Petitioner's re-
quest for review is granted. Having reviewed and
considered the entire record in this case, the Board
concludes, contrary to the Regional Director, that,
the petitioned-for unit of engineering department
employees here, like the requested unit in Omni,
constitutes a separate appropriate unit for purposes
of collective bargaining.
In Omni, the Board discussed its departure from
the "rigid rule" that only an overall unit consisting
of all hotel/motel employees would be found ap-
propriate for bargaining. See Arlington Hotel Co.,
126 NLRB 400 (1960). Finding that this inflexible
rule is not statutorily required and that it is based
on the false premise that all hotel and motel em-
ployees share such a high degree of integration of
285 NLRB No. 61
function and mutuality of interests that only an
overall unit could be appropriate, the Board in
Omni reaffirmed ,its intent to make unit determina-
tions in the hotel/motel industry on a case-by-case
basis, using the same traditional cdmmunity-of-in-
terest criteria used in other industries. See Westin
Hotel, 277 NLRB 1506 (1986); Atlanta Hilton &
Towers, 273 NLRB 87, 90 (1984).
The facts in this case, which are fully set forth in
the attached Regional Director's Decision and
Order, are very similar to those in Omni. Here, as
in Omni, the engineering department employees are
separately supervised by the chief engineer, who
interviews all engineering department employees
and makes the final hiring decision for his depart-
ment;1 they maintain the hotel's facilities and
equipment, including the air conditioning, electri-
cal, plumbing, and heating systems, and possess
skills unique to their, classifications; they earn the
highest hourly wage among the hotel's nonsupervi-
sory employees; 2 and there have been no transfers
of employees into or out of the engineering depart-
ment, whether on a permanent or temporary basis.
Further, engineering department employees, unlike
other employees, carry beepers or radios, are as-
signed work under a unique work order system,
supply their own tools, and work in a locked main-
tenance area (workshop) in the hotel's basement to
which only maintenance employees, management,
and guards have keys. Consistent with the majority
decision in Omni, these factors clearly establish
that the engineering department employees share a
separate community of interest.
Our dissenting colleague correctly notes that the
Employer is soon to establish a "manager on duty"
program in which each of the 17 department heads
and managers, including the chief engineer, would
serve as general manager on a rotating basis during
"off hours." Nevertheless, in view of the fact that
under this system employees would still report to
1 The dissent points to the existence of common hiring procedures for
new employees as a reason for disallowing a separate'unit of engineering
department employees The issue before us, however, is the employees'
terms and conditions of actual employment. As the Board noted in Omni,
283 NLRB 475, fn. I• "Surely the fact that the engineering department
employees work under the direction of, and would likely address their
grievances to, someone different from those under whom other employ-
ees immediately work has greater bearing on collective bargaining inter-
ests than the procedures by which the employees [were] hired for entry
into the work place in the first place "
2 The Employer's engineering employees earn between $10.58 and
$14,05 per hour, while wages earned by the food and beverage and
housekeeping employees whom the Employer seeks to include in the unit
range from $4.90 to $7 30 per hour, excluding tips received by some bar-
tenders and waitresses . In our opinion the wage differential is substantial
With respect to the dissent's effort to minimize this disparity by focusing
on the supplementation of some wages by tips, we note, as in Omni, fn. 2,
that this factor does not make the maintenance employees less distinct
but, if anything, provides support for our finding that the engineering em-
ployees have a separate community of interest
378 DECISIONS OF-THE NATIONAL LABOR RELATIONS BOARD
their immediate supervisor who would, in turn,
report to the "manager on duty," we find, contrary
to the dissent, that this program does not constitute
a significant increase in centralized supervision or
integration of operations. The dissent also notes
that engineering employees do occasionally assist,
and are assisted by, employees from other depart-
ments. As in Omni, however, the record reveals
that these incidents-such as the occasional move-
ment of furniture and the one-time movement of
television sets in response to an earthquake-are
sporadic and reflect "a spirit of cooperation or ci-
vility" rather than an overlap of job functions. (283
NLRB 475.)
Other factors cited by the dissent, such as the
fact that all employees here receive the same fringe
benefits, punch the same timeclock, wear uniforms
(albeit different ones) and name tags, and are paid
by the hour, fail to establish, as in Omni, that the
requested unit is not an appropriate unit for collec-
tive bargaining, although such factors would
render an overall unit appropriate if one were
sought.3 Further, in view of the specific evidence
supporting our finding, we reject the dissent's con-
tention, also made in Omni, that the extent of the
employees' organization was the controlling factor
in our unit determination, in contravention of Sec-
tion 9(c)(5) of the Act. -
Under all the circumstances, we find, contrary to
the Regional Director, that the petitioned-for unit
of engineering department employees is an appro-
priate unit for bargaining. Accordingly, having
found that the engineering department employees
constitute a separate unit, we shall reinstate the pe-
tition and remand the case to the Regional Direc-
tor for further appropriate action.
ORDER
The petition is reinstated and this proceeding is
remanded to the Regional Director for further ap-
propriate action.
CHAIRMAN, DOTSON, dissenting.
Contrary to my colleagues, I would find that the
petitioned-for unit of engineering employees does
not constitute an appropriate unit for bargaining,
and I would adopt the Regional Director's dismis-
3 Westin Hotel, above, relied on by the Regional Director,, involved
circumstances substantially different from those present in this case and in
Omni, and is therefore distinguishable. Specifically, the prevailing pattern
in the relevant geographical area in Westin favored overall units, and an
intervenor sought to represent an overall unit in the hotel. Although the
pattern of areawide bargaining in this case is mixed, while that in Omni
favored separate units, there is no competing labor organization here,
unlike Westin, seeking to represent the petitioned-for employees in an
overall unit Moreover, a mixed pattern of area bargaining does not, like
the factors mentioned above, establish that the requested maintenance
unit is an inappropriate unit for collective bargaining.
sal of the petition. The Employer has been engaged
in the operation of a luxury suite hotel since Janu-
ary 1986. The Petitioner seeks to represent a unit
comprised of the Employer's five engineering em-
ployees, three of whom are skilled maintenance
employees and two of whom are general mainte-
nance employees. The Employer contends that the
only appropriate unit consists of the engineering
employees and the approximately 130 employees in
its food and beverage and housekeeping depart-
ments. I agree.
As the majority noted, the facts in the present
case are very close to those in Omni International
Hotel, 283 NLRB 475 (1987). In both cases, the
hotel in question functions as an integrated oper-
ation, management and personnel policies are
highly centralized, and the general manager over-
sees the hotel's day-to-day operations. Employees
share a number of their terms and conditions of
employment, such as use of the same timeclock,
lunchrooms, locker rooms and employee entrance,
receiving free meals, the same orientation and in-
centive programs, the same vacation and insurance
benefits, wearing uniforms and the same type of
name tags, being subject to the same probationary
period and hiring procedures, and being paid on an
hourly basis. Here, as in Omni, although the engi-
neering employees are paid the highest hourly
wage, they are not the highest paid employees in
the hotel, as other employees receive as much as
$20-25 an hour in tips.
In addition, the engineering employees do not
constitute a craft unit. No special training or licens-
ing is required for the position, and the engineering
employees do not perform major structural alter-
ations or major air conditioning repairs. Although
there have been no transfers in or out of the engi-
neering department, current employees are given
first consideration for all vacancies within the
hotel. Engineering employees do occasionally
assist, and are assisted by, employees from other
departments, and there is frequent contact among
employees since the engineering employees work
throughout the entire hotel. The engineering de-
partment has separate departmental meetings, as do
the other departments in the hotel. Although there
is separate immediate supervision of the engineer-
ing employees, the Employer's general manager
testified that within 1 to 2 weeks after the hearing
the Employer would establish a "manager on duty"
program in which each of the 17 department heads
and managers would fulfill the function of the gen-
eral manager on a rotating basis during "off
hours." Once the program is implemented, employ-
ees in each department would still report to their
immediate supervisor, who would then report to
MAXIM'S DE PARIS HOTEL 379
the "manager on duty." This program further illus-
trates the integrated nature of the hotel's oper-
ations.
The Regional Director's decision specifically
considered whether the maintenance employees
constituted "an" appropriate unit, and concluded
they did not. Here, and in Omni, given the sparsity
of evidence supporting a separate unit, I fear my
colleagues once again have contravened Section
9(c)(5) of the Act, which requires that the extent of
union organization shall no 1, be controlling in deter-
mining the appropriateness of a unit. In these cir-
cumstances, I cannot agree with the majority's de-
cision to reverse the Regional Director's finding
that all employees share a substantial community of
interest and that a separate unit of engineering em-
ployees is inappropriate. Accordingly, I dissent.
APPENDIX
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before a hearing officer of the National Labor
Relations Board; hereinafter referred to as the Board.
Pursuant to the provisions of Section 3(b) of the Act,
the Board has delegated its authority in this proceeding
to the undersigned.
Upon the entire record in this proceeding, the under-
signed finds:
1. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
2. 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.' -
3. The labor organization involved claims to represent
certain employees of the Employer.
4. No question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
The Employer is a California joint venture, which has
been engaged in the operation of a luxury suite hotel
since January 1986. The hotel consists of 194 guest
rooms, 3 restaurants, a spa, a swimming pool, specialty
shops and stores, meeting rooms, and banquet facilities.
Additionally, the Employer provides limousine services
to and from airports, golf courses, and tennis courts.
The Petitioner seeks to represent a unit comprised of
the Employer's five engineering department employees:
three skilled maintenance employees and two general
maintenance employees.3 The Employer contends that
8 The engineering department also includes a chief engineer The par-
ties stipulated, and I find, that Steve Fekete, the chief engineer, is a su-
pervisor within the meaning of Section 2(11) of the Act, based on record
evidence that Fekete effectively recommends the hiring of employees. At
one time, the Employer also employed two gardens in the engineering
department However, it subsequently subcontracted the gardening serv-
ices, and it does not anticipate reemploying gardners.
the only appropriate unit consists of the engineering de-
partment employees and approximately 130 other em-
ployees in its food and beverages and housekeeping de-
partments. There is no history of collective bargaining
for any of the Employer's employees. No other labor or-
ganization seeks to represent a unit broader than the peti-
tioned-for unit.
The maintenance employees are responsible for main-
taining and repairing the entire hotel, including the
plumbing, carpentry, electrical' equipment, heating and
refrigeration equipment, pools and water treatments. In
connection therewith, the maintenance employees repair
all kitchen equipment and the air conditioning system; fix
leaks; unplug toilets; replace light bulbs, terrace doors,
and broken lamps; move or replace furniture; and insure
a supply of hot water. Outside contractors provide repair
services for television, elevators, fire alarms, fire sprin-
kler systems, tile, marble, and office equipment. Mainte-
nance employees do not perform major structural alter-
ations or major air conditioning repairs.
Maintenance employees report to work in the mainte-
nance area , which is located in the hotel's basement and
which houses the hotel's operating equipment. Within
the maintenance area is a workbench and a small mainte-
nance shop in which minor repairs are performed and
tools are kept. Maintenance employees are required to
purchase their own hand tools. The entire maintenance
area is locked and only maintenance employees, manage-
ment, and guards have keys to unlock the area. While in
the maintenance area, the chief engineer distributes work
assignments to the maintenance employees through a
work order system. Whenever maintenance work is re-
quired in a particular department, a supervisor in that de-
partment fills out a work requisition form and submits it
to the department head, who will, in turn, submit the
form to the chief engineer. No other employees are as-
signed work based on a work order system. Only on an
emergency basis would an employee directly reqest the
engineering department to perform maintenance work.
Only maintenance employees carry either a beeper or a
radio while working in the hotel. The engineering de-
partment, like all other departments, holds its own sepa-
rate departmental meetings.
The chief engineer is the maintenance employees' im-
mediate supervisor. At the time of the hearing, the chief
engineer did not supervise any other employees, and no
other department supervisor supervised the maintenance
employees. The chief engineer appoints a maintenance
employee to act as chief engineer whenever he is absent.
The', Employer's general manager testified that within I
to 2 weeks after the hearing the Employer will establish
a "manager on duty" program . Pursuant to that pro-
gram, a total of 17 department heads and managerial em-
ployees, including the chief engineer, will fulfill the func-
tion of the general manager during "off hours" on a ro-
tating schedule approximately once a month for 2 to 3
days. Once the program is implemented , maintenance
employees, as well as all other employees, will still
report to their immediate supervisor, who will, in turn
report to the "manager on duty."
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the Employer first considers current em-
ployees to fill vacancies in any department, including the
engineering department, no employee has ever trans-
ferred, on a temporary or permanent basis, into or out of
the engineering department. No other employees routine-
ly perform maintenance functions. Recently, in response
to an earthquake, the Employer decided to remove and
position about 50 television sets onto the guest room
floors One food and beverage department employee and
one maintenance employee assisted a housekeeping em-
ployee with this manual labor. On occasion, a housekeep-
ing employee has assisted a maintenance employee to
move furniture. Further, maintenance employees have
frequent contact with other employees while working in
various areas of the hotel.
Maintenance employees earn between $10.58 per hour
and $14.05 per hour The wages earned by the other em-
ployees the Employer seeks to include in the unit range
from a low of $4 90 per hour to a high of $7 30 per hour
However, some of these employees, such as bartenders
and waitresses, can receive as much as $20 to $25 per
hour in tips during the Employer's high season. Mainte-
nance employees, as well as some other employees, re-
ceive a 30-cents per hour shift differential, while other
employees receive a differential of 50-cents per hour.
The Employer's corporate office has established a set
wage scale for all employee classifications. None of the
employees, including the maintenance employees, are re-
quired to have any special license or technical training.
All employees punch the same time clock, sign in in
their respective departments, are paid hourly, have the
same probationary period, receive the same vacation, in-
surance and free meal benefits, and enter through the
same employee entrance. All employees share common
lunch and locker rooms All employees wear the same
type of name tags and are required to wear uniforms, al-
though the colors and types of uniforms vary with each
department. All employees receive the same orientation
and are eligible for the Employer's incentive and em-
ployee-of-the-month programs The food and beverage
and housekeeping departments operate 24 hours a day,
whereas the engineering department operates 18 hours a
day. The housekeeping department begins its first shift at
6 a.m., whereas the engineering department begins at
6:30 a.m.
The Employer's labor policy is set to a certain degree
by an executive committee composed of managers, in-
cluding the chief engineer. In some cases, the committee
will check with its corporate office before deciding on a
policy. The hiring procedure for maintenance employees
is the same as that for all other employees. The chief en-
gineer, as department head, submits a personnel requisi-
tion form to the personnel department and the general
manager approves or disapproves the request The per-
sonnel manager then screens applicants through a prelim-
inary interview. If an applicant's background is found ac-
ceptable, the chief engineer then interviews the applicant
and decides whether or not to hire the individual. Any
change in an employee's status, such as a transfer, termi-
nation, or leave of absence, must be accompanied by a
personnel action form and approved only by the general
manager. As noted above, the Employer first considers
current employees to fill vacancies in any department, in-
cluding the engineering department.
The Petitioner introduced into evidence six collective-
bargaining agreements covering engineering and mainte-
nance employees employed at approximately 90 major
hotels in southern California and southern Nevada, for
the purpose of establishing an areawide bargaining pat-
tern of separate unit representation for engineering/-
maintenance employees at hotels similar to that operated
by the Employer The Petitioner's president testified
that, within the Petitioner's own geographical jurisdic-
tion of southern California and southern Nevada, some
bargaining units are hotelwide and other units are limited
to engineering and maintenance employees
In determining the appropriateness of a bargaining unit
in the hotel industry, the Board considers each case on
its facts 77 Operating Company, 160 NLRB 927 (1966).
The Board applies to units in the hotel industry the same
community-of-interest criteria used for determining the
appropriateness of units in other industries, such as dis-
tinctions in skills and functions of particular employee
groupings, their separate supervision, the employer's or-
ganizational structure, and differences in wages, hours
and other terms and conditions of employment. Sheraton
Motor Inn, 210 NLRB 790 (1974).
In Atlanta Hilton & Towers, 273 NLRB 87, 91 (1984),
the Board concluded.
. . . that because of the highly integrated functions
and mutual interests of the Respondent's employees,
the common pay rates and fringe benefits shared by
all employees, the centralized control of the Em-
ployer's day to day operations, the centralized for-
mulation of personnel policies, the daily work con-
tacts of employees in different departments, and the
transfers of employees between departments, an
overall unit of the Employer's employees, excluding
property operations employees . . is appropriate in
the instant case.4
the record, as a whole, reveals that the hotel functions
as one integrated operation, serving the needs of its
quest. The hotel's management is highly centralized. The
general manager has final authority regarding the hotel's
day-to-day operations. The hotel's "manager on duty"
program will establish an additional degree of centralized
supervision over department heads and their employees.
Individual department managers oversee their respective
operations, but they do not set labor policy. The hotel's
executive committee formulates labor policy, sometimes
in conjunction with its corporate office The hotel man-
agement in conjunction with its corporate office has es-
tablished a set of wage scales for all employees. As
stated previously, all personnel actions are accomplished
through the Employer's personnel department with final
approval resting with the general manager By the very
nature of their job, maintenance employees have frequent
contact with all other hotel employees, as they perform
4 In that case property operations employees, who basically performed
maintenance functions, had been found to constitute a separate unit at an
earlier date, and the appropriateness of that unit was not in issue
MAXIM'S DE PARIS HOTEL
their repair and maintenance duties throughout the hotel.
On occasion, and especially in an emergency situation,
other employees have assisted maintenance employees in
their duties. Although no employee has ever transferred
in or out of the engineering department, the hotel has
been in operation for only a short time . Moreover, the
Employer's policy is to first consider current employees
for vacant positions. Maintenance positions, like all other
hotel positions, do not require any special skills or li-
censes. Virtually all terms and conditions of,employment
for all employees are identical.
Although maintenance employees earn an hourly wage
two to three times higher than other employees, and are
separately supervised by the chief engineer, these two
factors alone do not warrant the finding that the mainte-
nance employees have a separate community of interest
from other hotel employees. Additionally, the fact that
some bargaining units in the local area are composed of
only maintenance employees does not, by itself, indicate
that a unit of maintenance employees in the instant case
is appropriate.
In two cases which are factually similar to the instant
case, the Board found separate units of hotel mainte-
nance and engineering employees to be inappropriate.
Thus, in The Westin Hotel, 277 NLRB No. 172 (Jan. 1,
1986), the Board found important the fact that mainte-
nance employees shared comparable wages, identical
benefits, and other , significant terms and conditions of
employment with other employees, as well as the fact
that all employees were subject to the same personnel
policies. In Ramada Beverly Hills, 278 NLRB No. 95
(Feb. 25, 1986), the Board found that the criteria set
forth above in Atlanta Hilton, supra, were present in that
case, with the exception of employee departmental trans-
fers. The Board noted that the lack of transfers was miti-
gated by the high degree of functional intergration and
job overlap, also present in the instant case . In all of
these most recent cases, the ]I3oard has found separate
381
hotel employee units to be inappropriate where the
hotel's management and personnel policymaking is
highly centralized, and where the hotel functions as one
integrated operation . Bothg of these factors, as well as
the fact that all employees share significant terms and
conditions of employment , and have frequent contacts,
establish that all employees share a substantial communi-
ty of interest.
In Sheraton-Anaheim Hotel, 252 NLRB 959 (1980), the
Board helds that a separate unit of hotel maintenance
employees was appropriate . While many of the factors
present in that case are also present in the instant case, it
is significant that the Board did not find the employer's
personnel policymaking and management operation to be
highly centralized , nor did it find the hotel's maintenance
functions to be integrated with other departmental func-
tions. Therefore, the Board 's holding in that case is not
controlling in the instant matter.
Based on the foregoing , and the record as a whole, I
find that a separate unit of maintenance employees in in-
appropriate . Since the Petitioner did not express a will-
ingness to proced to an election in a broader unit but,
rather, maintained on the record its traditional practice
of representing only separtate maintenance units, I shall
not make a finding as to what grouping of the Employ-
er's employees constitutes an appropriate unit . 5 Instead, I
shall dismiss the petition.
ORDER
IT IS HEREBY ORDERED that the petition filed herein
be, and it hereby is, dismissed.
S In this regard , I note that the record evidence concentrates on
whether the maintenance employees constitute an appropriate unit, and
does not sufficiently explore the other job classifications at the Employ-
er's hotel and any community , of interest among those employees which
may exist to support a finding regarding the smallest appropriate unit
which would include the maintenance employees.