Washington Palm, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1994

314 N.L.R.B. 1122 (N.L.R.B. 1994)

1122
314 NLRB No. 181
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Washington Palm, Inc. and Hotel and Res-
taurant Employees, Local 25, AFL–CIO, Peti-
tioner. Case 5–RC–14055
September 14, 1994
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Decision and Direc-
tion of Election (pertinent portions of which are at-
tached). The request for review is denied as it raises
no substantial issues warranting review.
APPENDIX
The Washington Palm, Inc. (the Employer) is an upscale
restaurant located at 1225 19th Street, N.W., Washington,
D.C., which serves a broad range of menu items, including
meats, seafoods, poultry, pastas, and salads. The restaurant
opened in 1972. The Employer is open for lunch Monday
through Friday and for dinner 7 days a week. There are ap-
proximately 46 managerial and nonmanagerial people em-
ployed by the Employer.
Hotel and Restaurant Employees, Local 25, AFL–CIO (the
Union or the Petitioner) seeks to represent a unit consisting
of all nontipped employees employed in the kitchen of the
Employer’s restaurant, excluding all other employees, all
tipped employees, office clericals, guards, and supervisors as
defined in the Act. Within the unit sought by the Petitioner
are the classifications of dishwashers, cooks, pot washers,
pantry workers, and the lobster person, a total of approxi-
mately 16 employees. This figure includes two individuals
Petitioner asserts are 2(11) supervisors. The Petitioner would
exclude the employee classifications of waiters, bus employ-
ees, bartenders, and valets, as well as statutory supervisors.
The Petitioner is unwilling to go to an election if a unit
broader than the one sought is found to be the smallest ap-
propriate unit.
The Employer takes the position that the unit sought by
the Petitioner is inappropriate and argues that the appropriate
unit should include all food and beverage employees em-
ployed by the Employer. Alternatively, the Employer con-
tends that, at a minimum, the unit must include employees
in the classifications of waiter and bus employee to the em-
ployees in the classifications sought by the Petitioner.
There is no history of collective bargaining for any of the
Employer’s employees involved in this proceeding, and no
other labor organization seeks to represent these employees.
STIPULATED SUPERVISORS
The parties stipulated that the following persons have the
authority on behalf of the Employer to hire, transfer, sus-
pend, lay off, recall, promote, discharge, reward, or dis-
cipline other employees, or responsibly direct them, and
these individuals should be excluded from any unit found to
be appropriate: Sang Ek, executive chef; Tommy Jacomo,
general manager; Damien Palladino, assistant manager; and
Sue Whitton, the bookkeeper. Consistent with the parties’
stipulation, I find that these individuals are supervisors with-
in the meaning of Section 2(11) of the Act and are excluded
from the unit.
. . . .
THE EMPLOYER’S BUSINESS OPERATION
The Employer is a fine dining, white tablecloth restaurant
that is open to the public. Peak hours for lunch are between
12 p.m. and 1:30 p.m. On a typical day during that period
the Employer serves approximately 220-250 meals. Peak
hours for dinner are somewhat longer, starting at 7 p.m. and
continuing until 9:30 p.m., during which approximately the
same number of meals is served. The restaurant opens at
some point after 11 a.m. on weekdays, the time that waiters
and bus persons report, but it appears that customers seldom
appear that early. The restaurant remains open until whatever
time the service of customers is completed, which can vary,
but normally ranges from 11:30 p.m. to 1 a.m. On weekends
the restaurant opens for dinner at approximately 5:30 p.m.
On weekdays, kitchen employees (cooks and dishwashers)
are scheduled to work on one of two shifts. There is a morn-
ing crew that works from approximately 7:30 a.m. to 3:30
p.m. The morning crew is responsible for preparing lunch.
The dinner crew, which works from approximately 4 p.m. to
11:30 p.m.—1 a.m., is responsible for preparing dinner. By
contrast, waiters and bus persons work a split shift, arriving
at approximately 11 a.m., leaving after the completion of
lunch service, at around 2:30 to 3 p.m., and then returning
at 5 p.m. to handle dinner service. At night waiters typically
leave at any time from 11:30 p.m. to 1 p.m. One waiter, re-
ferred to as the ‘‘late’’ waiter, remains on duty during the
slack period between lunch and dinner and handles any cus-
tomers who appear during that time. On a typical shift the
Employer uses 10–11 waiters. While the Employer claims
that it tries to give all of its employees 2 days off during
the week, it appears that many of the kitchen employees
typically work a sixth day during a week. Schedules for
waiters and busboys are prepared by Assistant Manager
Palladino and are posted in the kitchen near the dining room,
in a separate area from that where the schedules of kitchen
employees are posted. Schedules for kitchen employees are
prepared by Executive Chef Ek, who posts the schedules in
an area of the kitchen near his office.
Executive Chef Ek arrives at the restaurant at any time
from 8 to 9:30 a.m. and he usually works to at least 8 p.m.,
sometimes later. Generally Manager Jacomo usually works
from 10 a.m. to 10 p.m. Assistant General Manager
Palladino arrives at around 9 a.m. and works to closing,
which is typically midnight or later. Occasionally Palladino
leaves earlier and Jacomo stays to the closing of the res-
taurant. Whenever the restaurant is open for customer serv-
ice, either Palladino or Jacomo, if not both, are present. Usu-
ally either Jacomo or Palladino performs the function of
greeting customers, though at times Whitton performs this
function. Bookkeeper Whitton works from 9 a.m. to 9 p.m.,
though on occasion she will work to closing. No stipulated
supervisor is present in the restaurant at 7:30 when day-shift
kitchen employees begin arriving. Yang Kim Yan, a saute
cook who possesses a key, usually opens the restaurant. Ra-
mirez occasionally performs this function. The four stipulated
1123WASHINGTON PALM, INC.
supervisors also possess keys to the restaurant, as does Kevin
Rudowski, who appears to be a bartender.
During the interval in the morning when no stipulated su-
pervisors are present in the restaurant, employees on duty
perform a variety of tasks. Dishwashers clean the dining
room, sweep, vacuum and clean the bar, clean the rest
rooms, the foyer, and complete any cleaning that must be
performed in the kitchen. Dishwashers also see that the bar
is adequately stocked, a function they perform throughout the
day. For performing this function dishwashers are tipped a
relatively small amount, usually $10, per week by bartenders,
though the payment appears to be made somewhat irregu-
larly. Cooks perform tasks, such as restocking supplies,
cleaning, and setting work stations for the day. Food and
supplies are delivered to the restaurant at various times dur-
ing the day. The executive chef usually signs for these, but
other employees, including nonsupervisors, sometimes per-
form this function. Deliveries of liquor are usually signed for
by the assistant manager, but others have performed this
function, including nonsupervisory employees.
THE PHYSICAL LAYOUT OF THE RESTAURANT
The restaurant consists of two principal areas, the dining
room and the kitchen. The dining room contains 48 to 50 ta-
bles. There is also a bar, at which customers can order and
eat food. From the table most distant from the kitchen it
takes only about 30 seconds or so to walk to the kitchen.
Roughly half of the dining room is located on each side of
the entrance to the kitchen.
The dining room is separated from the kitchen by a pas-
sageway that is approximately 5 feet long. There is a door-
way, but no door, at both ends of the passageway. The door-
ways are approximately 4-1/2 to 5 feet in width. Inside the
passageway on the right are stored dry goods and condiments
such as ketchup, mustard, and certain canned goods. Portions
of the dining room are visible from the kitchen and portions
of the kitchen are visible from the dining room. At the oppo-
site end of the kitchen from the doorway is a large walk-in
freezer which is used to store various food items that require
refrigeration.
On the left side near the entrance to the kitchen are sta-
tions for bread, coffee, and tea. Also in this area is a com-
puter terminal that is used both as a timeclock and as a
method for waiters to enter their food orders. There is also
a place in this general area where waiters maintain guest
checks. A little bit further down on the left side of the kitch-
en is the pantry area. Salads and cold appetizers are prepared
in this area. There is also a station in the pantry area with
a warming oven for baked potatoes, a station for soups and
creamed spinach, and a refrigerated area where desserts and
ice cream are stored. Behind the pantry area is a table used
for cutting and preparing food items. Also behind the pantry
area are large refrigerators and other storage facilities. The
pantry or cold-line consists of a stainless steel apparatus with
various shelves. One shelf is located about shoulder height
and about a foot or foot-and-a half above this is another
shelf. These upper shelves create a window-like effect
through which waiters and the pantry cook can see and com-
municate with each other.
Inside the kitchen immediately to the right of the doorway
there is a cooler where wines are stored. A bit further to the
right is the dish area, where dishwashing machines, ice ma-
chines, and glass and dishracks are located. This is the prin-
cipal work station of dishwashers. At the front of the dish-
washing area are shallow basins into which soiled dishes and
glasses are placed by waiters and bus employees. Next to the
dishwashing area is a station with ice water, ice, some silver-
ware, and other miscellaneous supplies.
Proceeding further on the right side of the kitchen is the
hot line, the areas where hot food items are prepared. The
exterior of the hot line consists of stainless steel shelving
units, approximately 20 feet long, with openings at the top
through which waiters and cooks can see each other, commu-
nicate with each other, and on which cooks place prepared
orders. Dishes and other supplies are also stacked on these
shelves, as well as on lower shelves on the unit. In front of
the hot line are shelves for storage of dishes and other sup-
plies. Toward the rear of the hot line is a large role of plastic
wrap that is used to prepare items that customers desire to
take home. In the middle of the hot line there is an apparatus
hanging from the ceiling from which numerous pots, pans,
and utensils are hung. This somewhat limits the visibility be-
tween the exterior and interior for a portion of the hot line.
The hot line consists of three principal work stations. The
station nearest the doorway is the broiler station. The broiler
cook works in this area preparing steaks, fish, and other
broiler items. Next to the broiler station is the middle station,
an area where items such as fried potatoes, onion rings,
cheese potatoes, and crab cakes are prepared by the middle
cook, also referred to as the fry cook. Furthest down the hot
line is the area where the saute chef prepares other types of
items such as veal dishes, pastas, and chicken. Next to the
saute area is a small lobster station. At the end of the hot
line there is an aisle leading to a pot washing area consisting
of large sinks. The stainless steel apparatus on the hot-line
side appears to be approximately 20 feet long, about twice
the length of the cold-line apparatus. The aisle separating the
two lines appears to be about 6 feet wide. Along the wall
on the hot-line side are various ovens, stoves, and prepara-
tion tables.
To the right of the broiler station is a bulletin board, re-
ferred to as a grease board, on which waiters write their or-
ders. This is used to coordinate the order of preparing food
items. Two other boards are kept in the kitchen. One is lo-
cated near the lobster station and is used to keep track of the
number and size of available lobsters. The other board is
kept near the broiler station and is used to keep track of the
availability of special items.
OPERATING PROCEDURES IN THE RESTAURANT
Customers are greeted and seated by the manager, assistant
manager or, occasionally, by Sue Whitton. The stations han-
dled by waiters are assigned by Jacomo, Palladino, or
Whitton. After a waiter has taken an order the waiter enters
the order into a computer. Usually the order is entered using
the computer terminal located in the kitchen near the coffee
station. After the order is entered, it is then printed out in
the form of a ticket or ‘‘dupe’’ located next to the pantry
station and the broiler station. The dupes for hot food are
pulled from the printer by the broiler cook who then instructs
the other cooks to prepare their portions of the order. On the
pantry side, the dupe is pulled by the pantry cook who then
proceeds to prepare the listed items. Once items are prepared
the cooks then place the items on the shelves of the steel
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
units where the waiters pick them up. Depending on the
item, waiters add items such as garnish, lemons, dressing, or
sauce to the plate. If a customer orders a special item, the
waiter punches in the notation ‘‘see server’’ into the com-
puter; the waiter then proceeds to discuss the item with the
applicable cook to determine if the item can be prepared. Be-
fore the waiter can inform the customer that the special item
can be provided the waiter must first determine whether the
kitchen is able to prepare it.
Executive Chef Ek is in charge of the kitchen. On the
morning shift he serves as the broiler cook, as such he in-
forms the middle cook and the saute cook about the items
they need to prepare, a process designed to coordinate prepa-
ration of items for a table. That function is handled by the
broiler cook on the dinner shift, Weerapon Ouyporn. In addi-
tion, Ek ensures that waiters and bus persons comply with
the Employer’s food presentation standards and kitchen pro-
cedures. For instance, if a waiter fails to place the proper
garnish with an item, fails to place an underliner, on a plate
or fails to retrieve prepared food orders in a timely fashion,
Ek will point out the deficiency. Reprimands to waiters by
Ek for this sort of deficiency are issued with some fre-
quency. Bus employees also receive reprimands of this na-
ture from Ek.
Waiters normally report at 11 a.m. Typically this leaves
waiters from half an hour to 45 minutes to spend setting up
their stations. Setting up a station involves taking any re-
maining dirty dishes and linen from the dining room to the
kitchen, and retrieving linen, silverware, plates, and glass-
ware and placing them on tables. Most of these supplies are
obtained by waiters from an area in the kitchen near to the
dishwashing work station. Waiters also prepare for customers
during this setup period by filling up ice pans and bread bas-
kets, replenishing supplies of table condiments, serving
spoons and cocktail forks, and cleaning and resupplying the
coffee machines, all of which requires waiters to spend some
time in the kitchen. Bus employees also perform many of
these functions.
In filling orders, waiters prepare certain items themselves.
They scoop ice cream and cut cakes and pies, though some-
times a dessert order will require the assistance of the pantry
employee, for instance if a customer wants fresh fruit or
whipped cream added. Similarly, waiters prepare soup orders
by ladling the soup into bowls—an exception is onion soup,
which waiters obtain from the saute cook. Waiters frequently
participate in the preparation of lobster orders, particularly
when the customer desires to have the meat removed from
the shell. When that happens the lobster man cuts the lobster
and the waiter then takes it, removes the meat, and places
it on a tray for serving.
An important element of a waiter’s job is knowing the
preparation time for various items and coordinating the prep-
aration so that customers at a table receive their meals simul-
taneously. One tool used to facilitate this objective is the
grease board, located near the broiler cook station. Waiters
also check with the various cooks to determine the stage of
preparation of various items. The preparation of meals in-
volves a coordinated effort by both cooks and the wait staff.
Waiters spend much of their work shift in the kitchen, esti-
mated by one waiter as up to 70 percent of the time of that
portion of the shift when customers are being served. At
peak meal hours over half the waiters on duty can be in the
kitchen at the same time. The number of meals being pre-
pared and the number of waiters present in the kitchen makes
the coordination of activities an important element in the op-
eration of the restaurant.
The duties performed by nonkitchen employees involve
constant contact with customers. In performing their duties
kitchen employees seldom, if ever, have any contact with
customers. Dishwashers enter the dining area occasionally
while customers are present when performing the task of re-
stocking the bar.
WORKING CONDITIONS
There is a locker room in the restaurant that is used by
both by kitchen and nonkitchen employees, though the hand-
ful of female employees change in a different area of the fa-
cility. Both kitchen and nonkitchen employees wear uniforms
that consist of white jackets, white shirts, aprons, and black
shoes. The jackets and aprons are supplied by the Employer.
The only difference between the uniforms worn by kitchen
and nonkitchen employees is in the pants: waiters, bus em-
ployees, and bartenders wear black pants, while cooks, dish-
washers, and other kitchen employees wear black checked
pants. All employees maintain their own uniforms at their
own expense, with the exception of aprons. These are sup-
plied by the Employer for all employees and are kept in a
container in the kitchen. The aprons used by kitchen and
nonkitchen employees are the same. Waiters also carry a pad,
a pen, and a corkscrew, all of which they supply themselves.
The Employer provides employees with meals at two
points during the day, the first at 3:30 p.m. and the second
at around 5 p.m. All employees are provided with the same
meal. Kitchen employees usually do not take a break to eat
their meal, but rather eat while working at their work station.
Waiters and bus persons sometimes eat in the kitchen and at
other times eat at tables located in the back of the restaurant,
which they are allowed to do as long as there are no cus-
tomers in the restaurant. Kitchen employees apparently have
the same privilege, but seldom if ever avail themselves of the
ability to eat at tables.
Employees’ work hours are recorded on the computer. All
employees punch in when they arrive for work. Kitchen em-
ployees punch in on the terminal located in the kitchen while
nonkitchen employees often use that terminal for the same
purpose. If an employee has a problem involving pay that
employee would raise the matter with Assistant Manager
Palladino, who has the responsibility of preparing a payroll
report. While there was testimony that the Employer tries to
give all employees 2 off days every week, it appears that a
majority of kitchen employees work 6 days a week. At the
end of their shifts waiters check the balance of charged
meals entered into the computer against customer checks.
Some 95 percent of the meals at the Employer are paid by
credit card. This process also allows waiters to determine the
amount of tips they received during their shift. If there is a
problem a waiter would bring this matter to the attention of
Jacomo, Palladino, or Whitton. Waiters receive a check cov-
ering the amount they earned in charged tips from their shift
on their next working day.
There is virtually no job interchange between employees
who hold positions in the kitchen and those who work in the
dining room. Promotions within the kitchen do occur from
1125WASHINGTON PALM, INC.
time to time. Executive Chef Ek started his employment with
the Employer as a dishwasher.
COMPENSATION
Kitchen employees are paid on an hourly basis and do not
receive tips, with the minor exception of dishwashers, who
sometimes receive $10 a week from bartenders for per-
forming the function of cleaning and restocking the bar.
Wage rates for kitchen employees vary considerably, depend-
ing on the position. The hourly rate of the four dishwashers
range from a low of $6.68 to a high of $7.72. The hourly
rate for the one pot washer is $7.95, while the lobster person
earns $7.80. The five pantry employees earn an amount that
ranges from $6.49 to $8.92. The lowest paid cook earns an
hourly rate of $8.87. The two other cooks sought by the Peti-
tioner earn $10.68 and $11.58, respectively. As to the two
cooks the Petitioner seeks to exclude as supervisors, Ouyporn
earns $14.81 per hour and Yang Kim Yan earns $15.93.
Earnings for waiters, bus employees, bartenders, and valets
derive principally from tips. Under District of Columbia law
the Employer is allowed to take a tip deduction, resulting in
an hourly base pay of $2.36 per hour for waiters, bus per-
sons, and bartenders and of $3.15 per hour for valets. Be-
cause of tax withholding requirements, employees in these
classifications usually receive no weekly check from their
hourly base rate—the amounts earned all are allocated to
withholding categories. Bus employees receive a proportion
of the tips received by waiters, as do bartenders. While earn-
ings for these classifications vary by season and, for waiters,
by station assignment, on average, bus employees earn $9.02
per hour; waiters earn $20.82 per hour; and bartenders earn
$14.89.
The Employer makes available a number of benefits for all
of its employees. All full-time employees, those that work at
least 25 hours a week, are eligible to participate in a health
insurance plan made available by the Employer. The health
plan requires a significant copayment by participating em-
ployees. Approximately 10 employees, employed in various
classifications, participate in the Employer’s health plan.
Likewise all employees are eligible to participate in an op-
tional life insurance plan and in a 401(k) retirement plan
made available by the Employer. There are five holidays dur-
ing the year when the Employer is closed. Kitchen employ-
ees are paid by the Employer for these holidays, employees
whose income derives principally from tips—waiters, bus
employees, bartenders, and valets—are not. Sick leave policy
at the Employer is informal and somewhat haphazard. Gen-
eral Manager Jacomo testified that kitchen employees receive
sick leave pay, but other testimony suggests this is not al-
ways the case. While the evidence shows that waiters do not
receive sick leave pay, and while this suggests that bus em-
ployees, bartenders, and valets similarly do not receive this
type of pay, there is no specific evidence regarding these lat-
ter three employee classifications.
The Employer also has a practice of giving out Christmas
bonuses to certain employees. The amount of the bonus, the
classifications of employees eligible to receive bonuses, and
the identities of recipients within a classification vary from
year to year, depending on factors such as the profitability
of the restaurant. Kitchen employees do receive Christmas
bonuses, with the amount ranging this past year from $25 to
$500. During this past year bartenders also received bonuses,
while waiters did not. Bus employees apparently have not re-
ceived such bonuses, at least not in recent years. As the prin-
cipal supervisor with authority over the operation of the
kitchen, Ek determines the identity of kitchen employees to
receive bonuses. The Employer also holds contests, such as
wine sale competitions, from time to time, but these are lim-
ited to waiters and bus employees.
Waiters do not earn any vacation benefits, but the Em-
ployer is flexible in allowing them to take time off. The
same appears to be true for bus employees, bartenders, and
valets. It is not clear from the record whether kitchen em-
ployees earn any vacation benefits.
HIRING, TRAINING, AND SUPERVISION
The Employer receives applications constantly. On the
other hand, most of the Employer’s employees are long term,
there is little turnover. Applicants are required to appear in
person and fill out an application. A file is started for each
applicant. When a vacancy occurs the Employer will review
the applications of those in whom it has some interest. Ap-
plicants for positions as a waiter, bartender, bus employee,
or valet are normally interviewed by General Manager
Jacomo. Applicants for a kitchen position would normally be
interviewed by Executive Chef Ek. Because of the extremely
high ratio between the number of applicants and vacancies,
the Employer is in the enviable position of frequently being
able to hire experienced individuals, usually a person with
whom some current employee is well acquainted, either as
a relative or as a former coworker. The Employer has a 60-
day probationary period, at the end of which Executive Chef
Ek, General Manager Jacomo, and Assistant Manager
Palladino consult about the suitability of the new employee.
In practice, this appears to be largely a formality since vir-
tually all new employees come to the Employer already pos-
sessing the skills and attributes necessary to perform success-
fully in the restaurant.
It appears that employees are evaluated periodically, at ir-
regular intervals. The process is very informal. Evaluations
of dining room employees, waiters, bus employees, and bar-
tenders are conducted by General Manager Jacomo. These
employees are evaluated for their ability to handle customers
and their other duties, to work with other employees, and
their general attitude. Evaluations of kitchen employees, to
the extent they are performed at all, are handled by Execu-
tive Chef Ek. Before the Employer may grant a pay raise,
it must first obtain permission from its parent, Palm Manage-
ment Company. Executive Chef Ek is consulted about and
appears to have the greatest say in determining whether a
raise should be sought for a kitchen employee. It appears that
raises are seldom, if ever, sought for nonkitchen employees
whose earnings come principally for tips. Executive Chef Ek
is similarly consulted about matters such as whether addi-
tional employees are needed in the kitchen.
Members of management consult with each other about
the performance of virtually all employees. Because waiters
and bus employees spend a considerable portion of their
worktime in the kitchen, Executive Chef Ek is consulted
about their performance. Nonetheless, there is a general divi-
sion of supervision between kitchen employees and dining
room employees. Executive Chef Ek has the principal re-
sponsibility for supervising the work of kitchen employees.
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Manager Jacomo and Assistant Manager Palladino
have that responsibility for dining room employees.
New employees receive a limited amount of training.
Typically a new waiter will be trained by another waiter.
Training on use of the computer is provided by any number
of people. Waiters do not receive tips during their training
period, which may last up to a week—they earn the min-
imum wage during that period. Ek does most of the training
of new cooks, though other cooks might have input into the
process.
There is very little evidence regarding the imposition of
disciplinary measures by the Employer, possibly because the
experienced nature of the work force seldom requires such
action. The evidence reflects that Ek, Jacomo, and Palladino
possess the authority to discipline employees. Ek sometimes
reprimands waiters and bus employees when they fail to
comply with standards for preparing meals to be presented
to patrons. Of course, such incidents occur when waiters and
bus employees are working in the kitchen. Ek would also
have the principal role in disciplining kitchen employees. Re-
garding conduct in the dining room requiring the imposition
of discipline, Jacomo or Palladino, as the two supervisors
who work in that part of the facility, would be the persons
to impose discipline.
AREA PRACTICES
The Petitioner represents units at four freestanding res-
taurants in the Washington, D.C. area. In three of those res-
taurants the unit consists of both tipped and nontipped em-
ployees, including most kitchen employees, waiters, and bus
employees. Recognition of the Petitioner at these restaurants
was extended voluntarily. At the fourth restaurant, Sam and
Harry’s, pursuant to a decision issued by me in Case 5–RC–
13863, the Union recently gained the right to represent a unit
of all nontipped employees employed in the kitchen, the
same unit as the one sought in this proceeding.
Over approximately the past 20 years, the Petitioner also
represented units at approximately a dozen other freestanding
restaurants in the Washington area, all of which have closed.
All of these units included both tipped and nontipped em-
ployees and both kitchen employees and waiters and bus em-
ployees. For a short time a number of these restaurants nego-
tiated jointly as part of a multiemployer association.
Besides the freestanding restaurants, the Petitioner also
represents employees employed in nine fine-dining establish-
ments within hotels located in the Washington area. In these
units both tipped and nontipped employees, kitchen and din-
ing room employees, are grouped together within the unit. In
a number of these instances, restaurant employees are in-
cluded in the overall unit encompassing all hotel employees.
THE APPROPRIATE UNIT
The Petitioner
The Petitioner seeks a unit limited to all nontipped kitchen
employees. The Petitioner contends that the petitioned-for
unit is appropriate because of a number of distinctions be-
tween nontipped kitchen employees and other employees
who would be included in the wall-to-wall unit advocated by
the Employer. Among the factors relied on by the Petitioner
in support of its position are:
(1) The significant difference in compensation structure for
kitchen employees as compared to employees in classifica-
tions whose income is derived primarily from tips.
(2) The absence of contact between kitchen employees and
clientele, as compared to the extensive customer contact en-
gaged in by employees in the excluded classifications.
(3) The distinct nature of the functions performed by
kitchen employees and nonkitchen employees.
(4) The lack of substantial interchange and transfers be-
tween the two groups of employees.
(5) The existence of largely separate lines of supervision.
(6) The differences in benefits that exist between employ-
ees in the two groups.
(7) The disparity in wages between employees in the two
groups.
As to the issue of area bargaining practices, the Petitioner
asserts that the number of represented freestanding res-
taurants is too small to constitute any type of pattern.
The Employer
Contrary to the Petitioner, the Employer asserts that a unit
of nontipped employees working in the kitchen is inappro-
priate. The Employer contends that a comprehensive commu-
nity of interest exists between employees in the petitioned-
for unit and employees in the classifications of waiter and
bus employee to require, at a minimum, the inclusion of
those groups in any appropriate unit. Along with the similar-
ities in working conditions that require this result, the Em-
ployer asserts that there exists an established area practice of
combining into a single unit all nonsupervisory food and
beverage employees employed in restaurants.
ANALYSIS AND CONCLUSION
Section 9(b) of the Act states that ‘‘the Board shall decide
in each case whether, to assure to employees the fullest free-
dom in exercising the rights guaranteed by this Act, the unit
appropriate for the purpose of collective bargaining shall be
the employer unit, craft unit, or subdivision thereof.’’
The statute does not require that a unit for bargaining be
the only appropriate unit, or the ultimate unit, or the most
appropriate unit. Rather, the Act requires only the unit be
‘‘appropriate,’’ that is, appropriate to insure to employees in
each case ‘‘the fullest freedom in exercising the rights guar-
anteed by this Act.’’ Morand Bros. Beverage Co., 91 NLRB
409 (1950), enfd. 190 F.2d 576 (7th Cir. 1951); Parson In-
vestment Co., 152 NLRB 192 fn. 1 (1965); Federal Electric
Corp., 157 NLRB 1130 (1966); Capital Bakers, 168 NLRB
904, 905 (1968); National Cash Register Co., 166 NLRB
173 (1967); and Dezcon, Inc., 295 NLRB 109 (1989). A
union is, therefore, not required to seek representation in the
most comprehensive grouping of employees unless ‘‘an ap-
propriate unit compatible with that requested does not exist.’’
P. Ballantine & Sons, 141 NLRB 1103 (1963); Bamberger’s
Paramus, 151 NLRB 748, 751 (1965); and Purity Food
Stores, 160 NLRB 651 (1966). Moreover, it is well estab-
lished that there is more than one way in which employees
of a given employer may appropriately be grouped for pur-
poses of collective bargaining. General Instrument Corp. v.
NLRB, 319 F.2d 420, 422–423 (4th Cir. 1963), cert. denied
375 U.S. 966 (1964); and Mountain Telephone Co. v. NLRB,
310 F.2d 478, 480 (10th Cir. 1962).
1127WASHINGTON PALM, INC.
While the Act does not lay down any specific standards
for making unit determinations, the Board has developed a
number of criteria to be applied in such cases. Foremost is
the principle that mutuality of interest in wages, hours, and
working conditions is the prime determinant of whether a
given group of employees constitutes an appropriate unit.
Continental Baking Co., 92 NLRB 777, 782 (1952). The key
question is whether the employees have a sufficient commu-
nity of interest to be an appropriate unit. Tidewater Oil Co.
v. NLRB, 358 F.2d 363, 366 (2d Cir. 1964), cert. denied 380
U.S. 910 (1965). As stated by the Board in Continental Bak-
ing:
In deciding whether the requisite mutuality exists, the
Board looks to such factors as the duties, skills, and
working conditions of the employees involved, and es-
pecially to any existing bargaining history. [Continental
Baking Co., supra at 782–783.]
The community-of-interest test also considers factors such
as the degree of functional integration, Atlanta Hilton &
Towers, 273 NLRB 87 (1984); common supervision, Associ-
ated Milk Producers, 250 NLRB 1407 (1970); employee
skills and functions, Phoenician, 308 NLRB 826 (1992);
interchangeability and contact among employees, Associated
Milk Producers, supra; and general working conditions and
fringe benefits, Allied Gear & Machine Co., 250 NLRB 679
(1950).
Applying these principles to the instant proceeding, I find
that a unit of nontipped kitchen employees is an appropriate
unit for purposes of collective bargaining. A number of fac-
tors support this conclusion, including the physical layout of
the restaurant, the employees’ compensation systems, their
fringe benefits, their separate supervision, distinct work
schedules, and their job functions.
(1) A significant factor is the physical layout of the res-
taurant and the different areas in which the petitioned-for
employees work as opposed to the other employees in the
restaurant. The kitchen is separated from the dining room by
a full wall. Indeed, only a relatively small portion of the din-
ing room is visible from the kitchen. Kitchen employees
work almost exclusively in the kitchen. The only exception
is the very small portion of time that dishwashers spend re-
stocking the bar. By contrast dining room employees spend
a substantial part of their work period in the dining room.
Indeed, it appears that bartenders and valets have little if any
occasion to spend time in the kitchen. While waiters and bus
employees do spend a considerable portion of their workday
in the kitchen, the great bulk of their time in the kitchen is
spent in an area apart from where the kitchen employees
work. Thus the dishwashers work principally behind the
counter at the dishwasher station, except when restocking
plates. Cooks spend their worktime behind the stainless steel
units that separate the food preparation areas of the kitchen
from the pickup area. The pot washer works at his work sta-
tion.
This physical separation underscores the distinct functions
performed by the different classifications of employees.
Cooks prepare food. Dishwashers wash dishes and the pot
washer washes pots. Waiters and bus employees are involved
in the serving of food, removal of food, and general serv-
icing of customers. While it appears that waiters and bus em-
ployees occasionally enter behind the steel units to perform
various functions, this occurs only infrequently and does not
detract from the separation within the kitchen in which these
various classifications perform their respective functions.
(2) A distinct compensation system also separates the peti-
tioned-for employees from the other classification employed
by the Employer. All kitchen employees are paid on an hour-
ly basis and receive overtime pay, if applicable. Waiters, bus
employees, bartenders, and valets earn the bulk of their in-
come from tips. Dishwashers do earn a small amount from
tips for their work in cleaning and restocking the bar, but the
amount involved is inconsequential and is insufficient to dis-
tinguish dishwashers from other kitchen employees, who earn
no tips at all. Kitchen employees are paid for the five holi-
days during which the Employer is closed; the tipped em-
ployees are not. The Employer holds sales contests for wait-
ers and bus employees. There are no such contests for kitch-
en employees. Kitchen employees are paid weekly. Dining
room employees also receive a part of their pay on a weekly
basis, but at least for waiters that entire amount is usually
allocated to tax deductions. The bulk of their income is paid
on a daily basis in the form of a check covering the prior
day’s tips. Also, the Employer deducts a certain amount, as
it is allowed to do by law, as a tip deduction from the pay
of waiters and bartenders, resulting in a base pay that is con-
siderably lower than the normal minimum wage. The same
privilege is not extended to the Employer to nontipped kitch-
en employees.
Finally, there is also a general difference in the relative
wage rates between nontipped kitchen employees and tipped
employees. The evidence shows that waiters earn roughly
$21 per hour, while bartenders earn almost $15 per hour.
This exceeds by at least $6 an hour the amount earned by
the 4 dishwashers, the pot washer, the lobster person, the 5
pantry employees, and 1 of the cooks, 12 of the 14 employ-
ees sought by the Petitioner, or 16 employees if Ouyporn and
Yang Kim Yan are included. Only the 4 bus employees have
an income in the same general range as these 12 nontipped
kitchen employees, and even then the bus employees earn
more, on average, than any of the 12. Finally, the record
shows that the Employer has dealt differently with kitchen
employees than with tipped employees in deciding whether
to give Christmas bonuses. While the policy on bonuses has
varied from year to year, the record establishes that the Em-
ployer is more prone to give such bonuses to kitchen em-
ployees.
(3) Unlike wages, the fringe benefits, other than holiday
benefits, offered to employees of the Employer are uniform.
Nontipped kitchen employees are eligible for the same health
insurance, retirement, and life insurance benefits as employ-
ees in tipped classifications. Overall, however, I find that the
compensation scheme in the Employer’s restaurant creates a
significantly different interest between nontipped kitchen em-
ployees and employees in the various tipped classifications
the Employer seeks to include in any appropriate unit. As the
Petitioner notes in its brief, the existence of different com-
pensation schemes affecting these two groups of employees
would inject significantly different issues into bargaining:
tipped employees naturally would focus on issues that affect
their ability to earn tips while kitchen employees would zero
in on issues related to their hourly pay rate. These contrast-
ing concerns are a significant factor that supports a finding
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the petitioned-for unit is an appropriate one for collec-
tive bargaining.
(4) There is also a separate pattern of supervision in the
Employer’s facility. Supervision of kitchen employees is han-
dled almost exclusively by Executive Chef Ek. He prepares
the schedules for kitchen employees, and he would have the
chief role in implementing any disciplinary measure against
a kitchen employee. The Employer’s other stipulated super-
visors spend little, if any, time in the kitchen and are not
able to oversee the work of kitchen employees.
By contrast, the Employer’s general manager and assistant
manager have a prominent role in the supervision of employ-
ees in the tipped classifications. Schedules for waiters are
formulated by Assistant Manager Palladino and are posted in
a different area of the kitchen than schedules for kitchen em-
ployees. Station assignments for waiters, a key matter in de-
termining earnings, are made by Palladino, Jacomo and, oc-
casionally, Whitton. Applicants for kitchen positions are
interviewed by Ek, while applicants for tipped positions are
interviewed by Jacomo or Palladino. While it appears that
the Employer’s practice in providing evaluations is erratic
and while there would likely be consultation among all su-
pervisors before a determination on a particular employee
was reached, clearly Ek would have the main role in pre-
paring an evaluation for a kitchen employee while Jacomo or
Palladino would fill that function for an employee in a tipped
classification.
(5) There are also different work schedules for kitchen em-
ployees and for employees in the tipped classifications.
Kitchen employees work on either the morning or the dinner
shift. Employees in tipped classifications work parts of both
shifts, with time off in between. The Employer attempts to
limit tipped employees to 5 days a week while the majority
of kitchen employees work 6 days a week. And, as noted
above, kitchen employees receive pay for the five holidays
when the Employer is closed, employees in tipped classifica-
tions are not paid for those holidays.
(6) Another significant difference between employees in
the two groups relates to the job functions they perform.
Kitchen employees do not enter the dining room, do not have
customer contact and do not handle money. Conversely, em-
ployees in tipped classifications generally do not cook or
wash dishes. Further, there are no transfers between these
groups of employees. No kitchen employee has ever been
transferred to a position in a tipped classification. One dish-
washer sought permission to become a bus employee and his
request was refused. On the other hand, the evidence shows
that it is possible for kitchen employees to advance within
positions in the kitchen, as exemplified by Executive Chef
Ek. There is also a certain amount of interchange among em-
ployees in tipped classifications. Indeed, it appears that bar-
tenders sometimes work as waiters.
To be sure there is a significant amount of contact be-
tween nontipped kitchen employees and waiters, bus employ-
ees and, to a lesser extent, bartenders. The timely preparation
and presentation of meals require a significant degree of co-
ordinated effort between the two groups. Waiters speak di-
rectly to cooks about the status of orders, work in conjunc-
tion with pantry employees in preparing a number of items,
such as desserts, and assist to prepare plates and platters with
condiments and underlinings. During peak service periods
waiters and bus employees spend a majority of their time in
the kitchen. However, the amount of direct communication is
lessened by the Employer’s system of having waiters enter
orders into a computer terminal, which then transmits to the
broiler cook and the pantry the applicable parts of the order.
In Toffenetti Restaurant Co., 133 NLRB 640 (1961), the
Board, in finding appropriate a separate unit of kitchen em-
ployees, emphasized the factors of the separate work func-
tions of kitchen employees, their infrequent contact with res-
taurant clientele, and the absence of any substantial inter-
change between kitchen employees and other restaurant em-
ployees. I find these factors are present in the instant case.
In addition, in Toffenetti, the Board also relied on the exist-
ence of an area pattern on the basis of separate kitchen units
in restaurants to support its determination. In the instant case
the Employer argues that unlike Toffenetti, the area pattern
in the Washington, D.C. area supports including kitchen em-
ployees with other restaurant employees.
My review of the evidence concerning the pattern of bar-
gaining within the Washington area does not establish a
practice that precludes a finding of a separate kitchen unit.
Indeed, the evidence shows that currently there are only four
freestanding restaurants with represented employees. In three
of the four the unit consists of some combination of kitchen
and dining room employees. In the fourth, Sam and Harry’s,
I found appropriate a separate unit of nontipped kitchen em-
ployees and that unit was eventually certified. Such a small
number of restaurants, even if all followed the same unit
practice, is insufficient to constitute an established area prac-
tice.
I contrast the evidence in this proceeding with Maxwell’s
Plum, 198 NLRB 14 (1972), enfd. 481 F.2d 75 (2d Cir.
1973), a case that dealt with the issue of area practice in the
New York City area concerning craft units in restaurants. In
that case the administrative law judge’s determination that
the area pattern in the New York City area was for kitchen
employees to be represented separately was based on the
practice in hundreds of restaurants, very different from the
handful of restaurants the Employer can point to in the
Washington, D.C. area. Even if I was to consider the defunct
restaurants that had bargaining relationships with the Peti-
tioner within the last decade or two, the total of restaurants
would still number less than 20, an insufficient number in
my view to constitute a meaningful area practice.
Additionally, I agree with the Petitioner that the practice
in hotel restaurants is not relevant to this issue because of
the common practice of including units in such sites within
larger hotel units. In this regard I would note that the Board
in Toffenetti explicitly recognized that its holding in that case
pertaining to freestanding restaurants was not intended to
modify the existing policy as to hotel units. Again, even if
hotel restaurants were relevant to this inquiry, the total num-
ber of restaurants would still amount to a small fraction of
what supported the Board’s determination in Toffenetti and
Maxwell’s Plum.
Finally, the Board has held that where other relevant fac-
tors predominate, the factor of area practice does not render
an otherwise inappropriate unit, which conforms to area prac-
tice, an appropriate one, White Front San Francisco, Inc.,
159 NLRB 681, 683 (1966); Halle Bros. Co., 87 NLRB 369,
370 (1949), or defeat a finding of appropriateness for a unit
that does not appear to conform to the prevailing area prac-
tice. J. O. Rhude & Gilbert Corp., 106 NLRB 536, 538 fn.
1129WASHINGTON PALM, INC.
7 (1953); and John W. Thomas & Co., 104 NLRB 868, 869
fn.3 (1953). Therefore, as I noted in my decision in Sam &
Harry’s, Case 5–RC–13863, even if the area practice in
Washington, D.C. was consistently to group restaurant em-
ployees in an overall unit, that factor would still not nec-
essarily preclude a finding that a unit of kitchen employees
is appropriate, especially where, as here, the primary relevant
factors support a finding of the appropriateness of such a
unit.
Accordingly, I find that a unit limited to nontipped kitchen
employees is appropriate in this proceeding. Of course, this
finding does not mean that other, larger, units of restaurant
employees, including the unit advocated by the Employer,
might also constitute an appropriate unit. General Instrument
Corp. v. NLRB, supra; Mountain Telephone Co. v. NLRB,
supra. That is, however, a determination that I am not re-
quired to reach in this proceeding. The completely separate
compensation structure, the different job functions, the sig-
nificantly separate supervision, the lack of interchange be-
tween the groups of employees and the other factors enumer-
ated above establish that the petitioned-for unit of nontipped
kitchen employees is an appropriate bargaining unit. I shall
therefore direct an election in that unit.