Royal Hearth Restaurant

National Labor Relations Board - Board Decisions

Jul 6, 1965

153 N.L.R.B. 1331 (N.L.R.B. 1965)

ROYAL HEARTH RESTAURANT
APPENDIX
NOTICE TO ALL EMPLOYEES
1331
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with United Paper-
makers and Paperworkers, AFL-CIO, as the exclusive bargaining
representative of the employees in the appropriate unit.
The appropriate unit is:
All production and maintenance employees at the Employ-
er's Baltimore, Maryland, plant, excluding truckdrivers, office
clerical employees, watchmen, guards, and supervisors as
defined by the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guaranteed
by Section 7 of the Act.
WE WILL, upon request, bargain collectively with the aforesaid
labor organization as the exclusive representative of the employ-
ees in the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
GRAPHIC ARTS FINISHING CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland,
Telephone No. 752-2159, if they have any question concerning this
notice or compliance with its provisions.
Imperial Management, Inc. d/b/a Royal Hearth Restaurant and
Chicago Joint Executive Board of the Hotel & Restaurant Em-
ployees and Bartenders International Union , AFL-CIO. Peti-
tioner. Case No. 13-RC-10404. July 6,1965
DECISION AND CERTIFICATION OF REPRESENTATIVE
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on November 24, 1964, under
153 NLRB No. 108.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the direction and supervision of the Regional Director for Region 13
among the employees in the stipulated unit. At the conclusion of the
election, the parties were furnished with a tally of ballots which
showed that of approximately 58 eligible voters, 39 cast ballots, of
which 19 were for, and 15 against, the Petitioner, with 5 challenged
ballots. The challenged ballots were sufficient in number to affect the
results of the election. Thereafter, the Employer filed timely objec-
tions to the conduct of the election and to conduct affecting the results
of the election.
In accordance with the National Labor Relations Board's Rules and
Regulations, the Regional Director conducted an investigation and,
on January 4, 1965, issued and duly served upon the parties his report
on challenges and objections in which he recommended that two of the
five challenges to the ballots be sustained; that the remaining three
challenges be overruled; and that the objections and additional allega-
tions be overruled. He further recommended that the three ballots,
as to which he recommended overruling the challenges, not be opened
and counted as they would not affect the election, and that a certifica-
tion of representative be issued. On January 14, 1965, the Employer
filed timely exception only to the Regional Director's recommendation
that the challenge to the ballot of Georgene Surnick be sustained.'
Upon the entire record in this case, the Board 2 finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act, as amended, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to represent cer-
tain 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 stipulated, and we find, that the following employees
constitute 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 kitchen, dining room, cocktail
lounge, bar, hat check, and storeroom employees, but excluding office
clerical employees, casual employees, guards, and supervisors as de-
fined in the Act. -
'In the absence of exceptions , we adopt pro forma the Regional Director 's recom-
mendations overruling the challenges to the ballots of Kupisch , Chura, and Yoshino and
sustaining the challenge to the ballot of Bookey.
2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members Fanning and
Jenkins].
ROYAL HEARTH RESTAURANT 1333
5. The Board has considered the Regional Director's report and
the exception thereto, and hereby adopts the Regional Director's find-
ings and recommendations, as hereinafter modified.
Petitioner challenged the ballot of Georgene Surnick on the
grounds that she is a casual employee. The Employer, however, con-
tends that she is eligible to vote because she is a regular part-time
waitress in the banquet operation. Miss Surnick has been employed
as a banquet waitress since May 1963, and she worked sporadically a
total of 56 hours, in 12 days, during the calendar quarter immediately
preceding the date of voting eligibility. On the basis of the above,
the Regional Director recommended that the challenges to Surnick's
ballot be sustained, citing Scoa, Inc., 140 NLRB 1379, as authority.
We agree with the Regional Director that Surnick is not a regular
part-time employee eligible to vote. We do not rely, however, on the
Regional Director's application of the 15-day rule of Scoa, Inc.,
supra, a case involving retail department store employees. It appears
that she worked on an average less than 1 day a week in the immedi-
ately preceding quarter and in our opinion this is not enough in the
circumstances of this case to make her a regular part-time employee.
Accordingly, we sustain the challenge to her ballot .3
[The Board certified Chicago Joint Executive Board of the Hotel
^C Restaurant Employees and Bartenders International Union, AFL-
CIO, as the designated collective-bargaining representative of the em-
ployees in the unit.]
MEMBER FANNING, dissenting :
Contrary to my colleagues, I believe that the challenge to the ballot
of employee Surnick should be overruled. A comparison of the num-
ber of hours worked by Surnick with the number worked by Kupisch,
who was found to be a regular part-time employee, reveals substan-
tially the same work history. For example, in 1963 Surnick worked
55 hours in the third calendar quarter and 244 hours in the fourth cal-
endar quarter. Kupisch worked 28 hours and 109 hours respectively
in the third and fourth calendar quarter of 1963. During 1964, Sur-
nick worked 75 hours, 1121/2 hours, and 59 hours respectively in the
first, second, and third quarters as compared to 55 hours, 154 hours,
and 1001/2 hours worked by Kupisch. In view of the similarity that
exists between the work histories of the two employees, and the fact
that the banquet operation is subject to marked fluctuations character-
ized by a peak season, I believe it is inconsistent to find that Kupisch
is a regular part-time employee but that Surnick is merely a casual.
'In the absence of exceptions , we,are not called on to determine whether the Regional
Director was correct in ruling Kupisch a regular part-time employee . We note in passing,
however, that during the last quarter Kupsich worked 109 hours , an average of more
than 1 day a week.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is especially true since the stipulated appropriate unit specifically
includes regular part-time employees. The Employer employs only
five part-time employees, all of whom are banquet waitresses. Of
these five, Miss Surnick and Miss Kupisch are the only two that are
called in on a regular basis. If the term "regular part-time" as used
in the stipulated unit is to be given any effect at all, it must also in-
clude employee Surnick-particularly since she has worked more hours
than any other part-time banquet waitress since she was employed in
May 1963.
For these reasons, I would overrule the Regional Director's recom-
mendation as to Surnick's ballot,4 and direct the Regional Director
to open and count the challenged ballots of employees Surnick, Ku-
pisch, Chura, and Yoshino, and issue the appropriate certification.
' The facts upon which this dissent are based are partially taken from information sup-
plied by the Employer in its argument in support of its exception to the Regional Di-
rector 's report on challenges and objections.
Grinnell Company , Inc. and International Union of Operating
Engineers, Local 465, AFL-CIO. Case No. 11-CA-25f21. Jury 6,
1965
DECISION AND ORDER
On May 4, 1965, Trial Examiner Phil W. Saunders issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in any unfair labor practices and recommending that the
complaint be dismissed in its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Charging Party filed excep-
tions to the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to -a three=member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including tho
exceptions, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
1 The Charging Party's request for oral argument is denied , as the record and the excep-
tions adequately present the issues and the positions of the parties.
In the absence of exceptions thereto, we adopt pro forma the Trial Examiner 's recom-
mended dismissal of the allegations of the complaint that Respondent violated Section
8(a)(1) and (3)
153 NLRB No. 101.