Water Tower Inn

National Labor Relations Board - Board DecisionsNov 8, 1962

139 N.L.R.B. 842 (N.L.R.B. 1962)

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record herein, we find that the following employees of the Employer at its Boston, Massachusetts, plant constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All lithographic production employees formerly employed by Williamson Offset Company and covered by the Petitioner's contract with the Contract Employers Group (Lithographic Division) of the Graphic Arts Institute of New England, Inc., executed May 19, 1960, but excluding professional employees, guards, all other employees, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Water Tower Inn, a Partnership 1 and Chicago Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, Petitioner Water Tower Inn, a Partnership and Local 399, International Union of Operating Engineers , AFL-CIO,2 Petitioner. Cases Nos. 13-RC-8138 and 13-RC-8147. November 8, 1962 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions I duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a hearing was held before William D. Boetticher, hearing officer. Thereafter, and pursuant to Section 102.67(h) of the Board's Rules and Regulations, the Regional Direc- tor transferred the proceeding to the Board for decision. By orders dated March 21 and May 10, 1962, the Board remanded the proceeding to the Region for a further hearing. Another hearing was held be- fore Edward T. Maslanka, hearing officer. The hearing officers' rul- ings made at these hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The questions concerning representation : The Employer operates a hotel in Chicago, Illinois. In Case No. 13-RC-8138, the Chicago Joint Executive Board of the Hotel and 1 The Employer's name appears as amended at the hearing z This Petitioner ' s name appears as amended at the hearing. 8 The petitions in these cases were consolidated for purposes of hearing and decision ' As the record and briefs adequately set forth the issues and positions of the parties, the request for oral argument , filed by Building Service Employees International Union, AFL-CIO, is hereby denied 139 NLRB No. 77. WATER TOWER INN, A PARTNERSHIP 843 Restaurant Employees and Bartenders International Union, AFL- CIO, herein called the Joint Board, petitioned for a unit of all em- ployees in the Employer's departments classified as guest service (com- prised of bellmen, doormen, room clerks, cashiers, and switchboard operators) ; housekeeping (comprised of housekeepers, maids, inspec- tresses, and housemen) ; kitchen (employees who cook, prepare food, and clean utensils) ; food service (comprised of waiters, waitresses, bartenders, porters, service captains, hostesses, busboys, and cashiers) ; and maintenance (janitors who perform the duties typical of that classification and who also inspect and make simple repairs on plumbing and electrical equipment), excluding employees in the auditing and security departments, and all supervisors as defined in the Act. In Case No. 13-RC-8147, Local 399, International Union of Operating Engineers, AFL-CIO, herein called Local 399, petitioned for a unit of "all operating and maintenance engineers" which is intended to comprise the Employer's maintenance department of janitors and housemen. Hotel Service Employees Union, Local No. 4, Building Service Em- ployees International Union, AFL-CIO, herein called Local 4, in- tervened in Case No. 13-RC-8138 and asserted as a bar to that proceed- ing its contract with the Employer, executed on September 26, 1961, for a term expiring on April 30, 1963, covering employees in the guest service and housekeeping departments. Chicago Flat Janitors Union, Local No. 1, Building Service Employees International Union, AFL- CIO, herein called Local 1, intervened in Case No. 13-RC-8147 and urged as a bar its contract with the Employer, executed on Septem- ber 15, 1961, and due to expire on November 30, 1962, which covers janitors and housemen in a maintenance department. In support of its contract-bar contention made at the original hear- ing, Local 4 sought to introduce evidence purporting to show that bar- gaining patterns existed in the hotel industry in the Chicago, Illinois, area, which covered units identical with that embraced by its contract with the Employer. After this proceeding was transferred to the Board, it was remanded to the Regional Director for evidence to de- termine what, if any, bargaining patterns existed in the hotel industry in the Chicago, Illinois, area, in units such as those covered by the con- tracts asserted as a bar in these cases.5 The record on remand has been made and is before the Board. The Employer's hotel operation consists of seven departments. Two of the departments, housekeeping and guest service, are repre- 5 In its remand order, the Board also directed that evidence be received as to whether the employees covered by the contract between the Employer and Local 1 were actually employed at the time the contract was executed As the newly developed record estab- lishes that the Employer had a full complement of maintenance department employees prior to the execution of this contract, the evidence suffices to remove any contraet-bar issue based thereon from these proceedings. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented by Local 4. The housekeeping department consists of maids, linen room personnel, and inspectresses. The maids clean and arrange the hotel rooms. Linen room personnel send soiled linens to the hotel laundry, receive and store clean linens, and distribute them to the maids. Inspectresses oversee the work of the housekeeping staff. The guest service department consists of doormen, bellmen, room clerks, cashiers, and telephone operators. Guests are greeted by the doormen who take their baggage to the front desk where the guests are registered by the room clerk. Bellmen escort guests to their rooms and inspect the quarters to insure their readiness for guest occupancy. Cashiers receive the registration forms from the desk clerks and pre- pare accounts for guests. The switchboard operators are located be- hind the front desk and operate the telephone switchboard. The maintenance department, which is represented by Local 1, is comprised of approximately 5 employees who are classified as janitors and 10 employees who are classified as housemen. The janitors per- form simple maintenance repairs, and also unstop toilets, replace light switches, and change wallplates. They also inspect thermostats in the dining areas to insure that correct temperatures are maintained. Although they are administratively part of the housekeeping depart- ment, the housemen are actually covered by Local 1's contract with the Employer and are excluded from Local 4's contract. These em- ployees move furniture, vacuum carpets, clean windows, and hang draperies. In addition, they perform many of the functions per- formed by the janitors. The remaining departments are unrepresented. The food service department is comprised of bartenders, bar porters, room service captains, hostesses, waitresses, waiters, busboys, and coffeeshop and kitchen cashiers. The kitchen department consists of kitchen em- ployees in such classifications as cleaners, dishwashers, cooks, salad women, pantry women, food checker, and receiving clerks. The se- curity department is responsible for safeguarding the hotel, its guests, and its property. The employees in this department monitor the timeclocks to determine whether employees properly punch in and out; inspect items which come into and leave the hotel; mingle with the guests to further their security; and protect against robbery and fires. The auditing department is comprised of office employees, lo- cated in a separate office supervised by the general manager and his assistant, who perform purely office clerical duties. As noted above, the Joint Board seeks a unit of employees in the housekeeping and guest service departments (represented by Local 4), the maintenance department (represented by Local 1), and the un- represented food service and kitchen departments. Local 4 resists an election in such an overall unit and advances its contract and area patterns of collective bargaining in support of barring an election in WATER TOWER INN, A PARTNERSHIP 845 its unit of housekeeping and guest service department employees. Local 1 also relies on its contract covering maintenance department employees and area patterns to support its contention that no election involving the maintenance department employees should be directed at this time. At issue, therefore, is whether these contracts encompass appropriate units, for the Board has held that contracts which embrace inappro- priate units may not constitute a bar to an election.' To resolve this issue, we now turn to the evidence adduced on remand concerning the bargaining patterns which exist in the hotel industry in the Chicago, Illinois, area. Collective bargaining by the hotel industry in the Chicago area has been conducted by three hotel groups with the various labor organiza- tions involved herein. One is an association of hotels known as the Downtown Hotel Association and consists of the 14 major hotels in downtown Chicago. In 1947, this group formed a labor committee which was authorized to bargain on behalf of the constituent members. Another group is the Chicago Residential Hotel Association, a multi- employer association which has bargained on behalf of its members since 1937. The third is the Greater Chicago Residential Hotel Asso- ciation which has negotiated on behalf of its members since 1947. Finally, there are a large number of independent hotels in the Chicago area which bargain on an individual basis. The Joint Board is an organization composed of local unions in the Chicago area which belong to the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. These various locals separately represent waiters, cooks, bartenders, waitresses, hotel service employees, and food and beverage employees. However, bar- gaining on their behalf is conducted by the Joint Board. When agreement is reached, the individual local services that aspect of the overall agreement which pertains to its members. The record discloses that the Joint Board has had a long bargaining history with the Downtown Hotel Association. Generally speaking, the contract units covered by the bargaining agreements are coex- tensive with the overall unit sought by the Joint Board in Case No. 13-RC-8138. Local 399 has also had an extensive bargaining rela- tionship with the Downtown Hotel Association. During this period, Local 399 has represented units of operating and maintenance engi- neers who perform plumbing work, as well as inspect and maintain the water supply, sewage systems, air compressors, and boilers at the hotels. However, these contracts have specifically excluded janitors and housemen who constitute the maintenance department which Local 399 here seeks in Case No. 13-RC-8147, apparently because they have been included in the contracts executed by the Joint Board with See Appalachian Shale Produote do., 121 NLRB 1160, 1164. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this Association. Local 1 has never had contractual relations with the Downtown Hotel Association. Apparently, this is also true as to Local 4. With respect to the representation of employees of the Chicago Residential Hotel Association, the Greater Chicago Residential Hotel Association, and the independent hotels, a different unit picture emerges. In the labor agreements which Local 4 has with approxi- mately 48 members of the Chicago Residential Hotel Association, 33 members of the Greater Chicago Residential Hotel Association, and 100 independent hotels, almost all cover units of housekeeping and guest service employees which correspond with the unit presently embraced by its contract with the Employer. Even in instances where the Joint Board is in contractual relations with some members of these Associations and some independent hotels, the agreements gen- erally cover either a unit of housekeeping and guest service employees, or a unit of housekeeping employees alone. With regard to Local 1, the record discloses that it has a master contract with all constituent members of the Chicago Residential Hotel Association covering units of maintenance department employees, i.e., janitors and housemen. It also is under oral agreement with members of the Greater Chicago Residential Hotel Association and independent hotels to represent similar units at these hotels. Local 399's representation of employees at hotels in the Chicago area is limited to units of maintenance and operating engineers and does not include janitors and housemen. In sum, the bargaining pattern in the hotel industry in the Chicago area reveals that, with the exception of a very small number of hotels (the Downtown Hotel Association), collective bargaining has for years been conducted in less than hotelwide units. Indeed, the area patterns have long favored separate units of guest service and house- keeping employees on the one hand, and janitors and housemen on the other, which are identical with the units covered by the contracts of Locals 1 and 4. In Arlington Hotel Company, Inc.,' the Board promulgated the gen- eral rule that, in the hotel industry, "all operating personnel have such a high degree of functional integration and mutuality of interests that they should be grouped together for collective bargaining purposes." In that case, there was no evidence that historic unit patterns existed in the area which preponderated in favor of bargaining units on a scale less than hotelwide. To apply this rule where the probative evidence establishes that, despite the "functional integration and mu- tuality of interests" of operating personnel, the parties have for years bargained, pursuant to contract, in less than hotelwide units, would undermine the stability inherent in such a bargaining pattern and have an unsettling effect on labor relations. We do not believe that 4126 NLRB 400. WATER TOWER INN, A PARTNERSHIP 847 the general rule stated in Arlington was intended to or should be utilized to accomplish this result. The evidence in this proceeding makes it abundantly clear that the vast majority of hotels in the Chicago area have bargained with labor organizations in that area, including the Joint Lard, for separate units of guest service and housekeeping employees, and separate units of janitors and housemen. We do not believe that such an extensive and deep-rooted bargaining history should be lightly overturned. We therefore hold that, in the circumstances of these cases, the units embraced within the contracts which Local 1 and Local 4 have executed with the Employer are appropriate for the purposes of collective bargaining. We now turn to a consideration of whether these contracts may constitute a bar. The contract between the Employer and Local 1, covering the main- tenance department (janitors and housemen), was executed on Sep- tember 15, 1961, and was to run until November 30, 1962. Local 399 filed its petition on October 2, 1961. Normally, petitions which are filed so far in advance of the terminal date of a contract are deemed to be prematurely filed and will be dismissed. However, the Board has held that such petitions may be maintained and processed if a hearing has been held thereon and the Board decision will issue on or after the 90th day preceding the expiration date of the contract asserted as a bar." As these conditions have been met with respect to the contract of Local 1, we find that the petition in Case No. 13- RC-8147 is not premature, that the contract does not constitute a bar, and that an election should be conducted in this unit. The contract between the Employer and Local 4, which covers the guest service and housekeeping departments, was executed on Septem- ber 26, 1961, for a term ending on April 30, 1963. The petition in Case No. 13-RC-8138 was filed by the Joint Board on September 28, 1961. As the decision herein will have issued more than 90 days prior to the terminal date of this contract, we find that Local 4's contract is a bar to an election among the employees in this unit. 4. The appropriate units : We have found that a unit of guest service and housekeeping depart- ment employees is appropriate for the purposes of collective bargain- ing. Because that unit is presently represented by Local 4 under a 8 See S. J. Doroski and/or Luis Perez , 132 NLRB 746 , 747: ". . where there is a sub- sisting contract , a petition filed more than 150 days before the terminal date of a contract will be regarded as premature and will be dismissed unless a hearing is directed despite the prematurity of the petition and the Board's decision issues on or after the 90th day preceding the expiration date of the contract ." In Leonard Wholesale Meats, Inc, 136 NLRB 1000, the Board modified its Deluxe Metal Furniture Company rule (121 NLRB 995) by announcing that petitions, in order to be timely filed, must be filed not earlier than the 90th day and not later than the 60th day before the expiration date of the Contract pressed as a bar. However , this rule was made applicable only to those petitions filed after May 1, 1962. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract which constitutes a bar, we do not direct an election therein. We have also found appropriate a separate unit of maintenance depart- ment employees ( janitors and housemen ) and we have directed an election in that unit . A question remains as to whether an election should be directed among the remaining categories of employees at the Employer's hotel . These are the employees in the food service, kitchen, auditing , and security departments. The employees in the foregoing departments constitute the balance of the personnel at the hotel and are unrepresented .9 Although the Joint Board seeks a hotelwide unit in Case No. 13 -RC-8138, exclud- ing the auditing and security departments , it has not indicated an unwillingness to proceed to an election in an appropriate residual unit of employees . While Local 4 urges that the unit covered by its con- tract with the Employer is appropriate , it indicated a willingness to participate in an election in a broader unit if the Board so directed. Accordingly , we find that a unit of food service and kitchen depart- ment employees constitutes an appropriate residual unit, and we shall direct an election therein on the petition filed in Case No. 13-RC-8138, placing both the Joint Board and Local 4 on the ballot . 10 In the event that the Joint Board declines to proceed to such election, it shall notify the Regional Director to this effect within 10 days from the date of this Decision . Upon such notification , the Regional Direc- tor is instructed to dismiss the petition in that case . Moreover, as the Joint Board also sought to include employees in the maintenance department in its overall unit, and has not indicated that it is un- willing to participate in an election involving these employees, we shall accord it a place on the ballot in Case No. 13-RC -8147 with leave to withdraw upon timely notice to the Regional Director to this effect. Accordingly , we shall direct that separate elections shall be con- ducted in the following units which we have found appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 9In its brief, Local 4 claims that it has a contract with the Chicago Hotel Association which separately covers security department employees ; that the Employer is a member of that Association ; and, therefore, that it is in contractual relations with the Employer covering these individuals . However, no documentary evidence was submitted in these proceedings to substantiate this representative claim . In any event , we find in the foot- note immediately below that the individuals in the security department are guards within the meaning of the Act, and may not appropriately be included in the residual unit. See National Hotel Company, d/b/a Thomas Jefferson Hotel , 127 NLRB 202. 10 The Joint Board and the Employer would exclude from any unit found appropriate herein the auditing department and security department employees . Local 4 would also exclude the auditing department , but would include the security department. The audit- ing department is comprised of employees who are essentially office clericals. As the parties have agreed to exclude them from any unit found appropriate, we shall exclude them from the residual unit. See Southwest Hotels, Inc. (Grady Manning Hotel), 126 NLRI3 1151. As indicated elsewhere . the security department is responsible for safe- guarding the hotel, its guests , and its property , and protecting against pilferage and robbery. We find that they are guards and exclude them from the residual unit. See National Hotel Company , d/b/a Thomas Jefferson Hotel, supra. MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 849 Unit A. All employees in the Employer's maintenance department, including janitors and housemen, but excluding all other employees, guards, and all supervisors as defined in the Act.ii Unit B. All employees in the Employer's kitchen and food service departments, including cleaners, dishwashers, cooks, salad women, pantry women, food checkers, receiving clerks, bartenders, bar porters, room service captains and waiters, hostesses, waitresses, waiters, bus- boys, and coffee shop and kitchen cashiers, excluding all other em- ployees, guards, and all supervisors as defined in the Act.12 [Text of Direction of Elections omitted from publication.] MEMBER RODGERS took no part in the consideration of the above Decision and Direction of Elections. 11 The parties stipulated and we find that the superintendent of maintenance is a super- visor within the meaning of the Act. We therefore exclude him. 12 The parties stipulated that the executive chef, the food and beverage director, head bartender, the head waiter (captain) for room service, and the assistant hotel manager are supervisors . We so find and exclude them . There is disagreement as to the super- visory status of the soup chef and kitchen stewards . As these individuals possess authority to discharge employees under them , we find they are supervisors and we exclude them. Minneapolis -Honeywell Regulator Company and Regulator Em- ployees' Association , affiliated with IUE-AFL-CIO, Local No. 908. Case No. 25-CA-1371. November 9, 1962 DECISION AND ORDER On August 7, 1961, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, both the General Counsel and the Respondent filed exceptions to the Intermediate Report, and Respondent filed a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and it hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as modified below. The facts in this case are not in dispute. As detailed in the Inter- mediate Report, Respondent has more than 600 employees at its manu- facturing establishment in Wabash, Indiana, which consists of 5 sep- arate buildings located on separate plots of land within the city limits. 139 NLRB No. 65.