Hotel Commander, Inc.

HOTEL COMMANDER, INC. 807 belong to the Employer, and he pays "all help" employed at the pool, including the one full-time cabana boy. Also, Williams and the cabana boy "have ... the ice cream concession" at the pool. There is testimony that the Employer may "hire" or "fire" the pool manager and cabana boy, and direct them to perform work in and around the pool area. Williams has no lease. Apart from the fact that he pays the help at the pool, there is no evidence that Williams makes any significant capital investment, furnishes goods or materials for the job, or undertakes any risk. These circumstances, together with the fact that the Employer can terminate at will its relationship with either Williams or the cabana boy, indicate that Williams is not an independent contractor and that both he and the cabana boy are em- ployed by the Employer.' In view of his authority to discharge the cabana boy, we find merit in the Petitioner's contention that Williams is a supervisor and exclude him. We include the cabana boy. The record does not reveal sufficient evidence upon which to base a determination as to whether or not the other cabana boys or the beach boys are regularly employed by the Employer. Accordingly, we do not pass on their inclusion in the unit, but shall permit them to vote subject to challenge. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the moaning of Section 9(b) of the Act: All employees at the Employer's Dunes Motel, Miami Beach, Florida, including food cashiers and checkers and the full-time cabana boy, but excluding office clerical employees, guards, Evelyn La Rocque, Al Ehrlich, the head bar- tender, the head porter, the pool manager, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] See Local No. 980, International Hod Carriers', Building .k Common Laborers' Union of America, AFL-CIO, et at. (The Kroger Company ), 119 NLRB 469, 475-477. Hotel Commander, Inc.' and Majorie Fecas, Dorothy Sullivan, and Vivian Calderon, Petitioners and Hotel, - Catering;, and Waitresses Union, Local 277, AFL-CIO.' Case No. 1-RD-288. August 31, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hugh J. Beins, hearing offi- cer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1, e,l iloyer's'name appears as corrected at the hearing. a The Union's name appears as corrected at the hearing. 124 NLRB No. 99. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case, the Board finds : 1. The Employer is a Massachusetts corporation engaged in the operation of a hotel in Boston, Massachusetts. It is affiliated with the Fields Chain, a nationwide chain consisting of approximately 30 hotels. The Employer provides the customary hotel services, including rooms for rent and dining and barroom facilities, to both transient and permanent guests. Approximately 60 percent of its guests are transients who stay from 1 to 3 days at the Employer's hotel. Of these, approximately 95 percent come to the hotel from States other than Massachusetts, or from foreign countries. The Employer's annual gross revenues approximate $700,000. Almost all of the beer, liquor, and meat sold by the Employer, and the fuel oil it uses, though pur- chased by it locally, originate in places outside of Massachusetts. The Employer purchases china, cutlery, linens, furniture, and rugs directly from sources in the State of New York. The total value of goods thus purchased by the Employer exceeds $200,000 annually. As a member of the Fields Chain, the Employer participates in a chain- wide reservations system, utilizing a system for sending and receiving information concerning out-of-State reservations. The Employer con- cedes that its operations affect commerce within the meaning of the Act. We find that the Employer is engaged in commerce within the Act's meaning and that it will effectuate the policies of the Act to assert jurisdiction over its operations.' 2. The labor organization involved claims to represent certain employees of the Employer 4 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. We find, in accordance with the stipulation of the parties, that the following employees employed at the Employer's Commander Hotel, Boston, Massachusetts, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 0 (b) of the Act : All regular employees, excluding kitchen employees, auditing em- ployees, confidential employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER JENIKINS took no part in the consideration of the above Decision and Direction of Election. $ Floridan Hotel of Tampa, Inc., 124 NLRB 26 '-, Member Jenkins concurring In part and dissenting in part and Member Fanning concurring specially. ° Petitioners , employees of the Employer , assert- that the Union, is no longer the exclu- sive bargaining representative of the employees Involved herein , within the meaning of Section 9 ( a) of the Act . The Union was certified as the bargaining representative of such employees by the Commonwealth of Massachusetts . Pursuant to such certification, the Employer has bargained with the .Union and, with the Hotel , Cafeteria & Waitresses Union , Local 277, as the joint representatives of employees in the certified unit. Local 34 was notified of this proceeding , and although its representative was present at the hearing, it did not intervene in the proceeding. ; `