Indiana Hotel Co.

) ATDIANA HOTEL COMPANY (CLAYPOOL HOTEL) 629 promulgate and enforce a rule prohibiting union solicitation during working hours Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose Since working time is for work an employer may discipline an employee for solici- tation or engaging in any other personal activity when he is on the job And, in the absence of substantial proof of discriminatory departure from a rule or custom, an employer cannot be found to have violated the Act because he has threatened to discharge an employee for doing something other than working while being paid for his labor It is no violation of the Act to warn an employee against solicitation on company time 5 The General Counsel produced considerable testimony to the effect that the Respondent condoned or permitted checkpools, raffles, and the circulation of peti- tions and other matters an company time as contrasted with its no-solicitation rule on the union cards The `evidence which I credit, however, discloses that the Respondent did not officially sanction such practices, as a general policy, and that foremen were instructed not to permit it Employee Beck stated that such activities were done on the "Q T," and. was not sure how the Company felt about it or that they had any knowledge other than "possibly supervisors " In Carolina Mirror Corporation, 123 NLRB 1712, the Respondent posted a notice which prevented union organizing during working hours, and at the same time continued in effect a rule permitting other solicitation if permission were granted by a supervisor, and the Board held that the institution of the rule did not violate- Section 8 (a) (1) of the Act On the basis of the entire record, I find that the General Counsel has failed to prove by the required preponderance of the evidence that the Respondent promul- gated and enforced a company rule prohibiting union solicitation on nonworking time, and interfered with, restrained, and coerced its employees in violation of Section f a) (1) of the Act I shall therefore recommend that the complaint be dismissed in its entirety CONCLUSIONS of LAW 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 The Respondent has not engaged in unfair labor practices as alleged in the complaint, within the meaning of Section 8 (a)<1) of the Act [Recommendations omitted from publication I s Ltlij-Tiiip Cup Corporatips, 113 NLRB 1267 Indiana Hotel Company (Claypool Hotel) and Local 512, Retail, Wholesale and Department Store Union, AFL-CIO, Petitioner. Case No 35-RC-1645 December 7, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section f9 (c) of the National Labor Relations Act, a hearing was held before, John H Rogers, hearing officer The hearing o#1icers rulings made at the hearing are free from prejudicial error and are hereby affirmed Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Jenkins, and Fanning] 125 NLRB No 68 535828- 0,-vo1 125----41 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case the Board finds : 1. The Employer's contention that its hotel operations do not affect commerce within the meaning of the Act is without merit. The Employer, an Indiana corporation, is engaged in the operation of a hotel in Indianapolis, Indiana, which furnishes lodging, eating, and related services to its guests. The hotel contains 465 rooms and offices, of which 433 are for transient guests. The Employer receives $1,800 monthly from the rental of office space to major airlines. The Employer is associated with the Affiliated National Hotel Company, herein referred to as Affiliated, which has hotel affiliates in seven or eight States. In return for a monthly $1,300 fee, Affiliated, through its office in Texas, acts as purchasing agent, places advertising, and performs other services for the Employer. The president of Affili- ated, who is located in Texas, is also president of the Employer. Part of the Employer's receipts is deposited in a bank in Texas. Some of the Employer's linens are shipped directly to it from mills outside In- diana. The hotel purchased furniture valued at $400,000 which was manufactured in West Virginia. During the calendar year 1958, the Employer's total gross revenue was $1,649,739.71, of which $22,- 346.77 represents gross income from rentals to permanent occupants and $562,261.92 represents payments by transient guests. During the same period, total purchases were $480,057.26. In view of the fore- going, we find that the Employer's operations affect commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.' 2. The Employer declined to stipulate that the Petitioner and Local 58, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, the Intervenor, are labor organizations as defined by the Act. As the record shows that these organizations exist for the purpose of dealing with employers concerning wages, hours, and conditions of work, we find that they are labor organizations within the meaning of the Act .2 The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Intervenor requests that the Board conduct further investi- gation of the Petitioner's showing of interest, and moves to dismiss the amended petition on the ground that the showing was obtained through misrepresentation. It is alleged that the Petitioner's original petition and authorization cards described the Petitioner as "Hotel, Bartenders and Culinary Workers, Local 512 Affiliated R.W.D.S.U., AFL-CIO" (emphasis supplied), in order to create the illusion that the Petitioner is the Intervenor. Explaining that such an issue is an ' Floridan Hotel of Tampa, Inc., 124 NLRB 261, Member Jenkins concurring and dis- senting, and Member Fanning concurring separately. 2 See Mason Can Company, 115 NLRB 105. INDIANA HOTEL COMPANY (CLAYPOOL HOTEL) 631 administrative matter which should be brought to the attention of the Regional Director, the hearing officer refused to permit litigation of the question. The Intervenor agreed with this ruling, and we find that it was proper.' As the Intervenor has failed to submit to the Regional Director evidence that employees were misled or confused as to the identity of the Petitioner, and in view of the fact that the name of each union will appear separately on the ballot, the motion to dismiss and the request for additional investigation are hereby denied.' We find that a question affecting commerce exists concerning the representation 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 are in general agreement concerning the composition of the unit, but disagree as to the inclusion of certain job classi- fications. Contrary to the Intervenor, the Petitioner and the Employer would exclude the six room salesmen. Also known as room clerks or desk clerks, they register, and assign rooms to, guests, keep the hotel regis- ter, check the folio for the spelling of guests' names, and refer guests' complaints about personnel or service to the department heads. Three of the room salesmen are assistant clerks. Generally, each of the latter works an 8-hour shift with one of the other three room salesmen. On "certain days," an assistant clerk is on duty alone. One room salesman on the night shift is called the "night manager," and it was testified that he "has supervision of the hotel at night." The Employer con- tends that all the room salesmen are supervisors as defined in the Act. The hotel manager's testimony constitutes all the evidence on their supervisory status. In conclusionary language, he testified that the room salesman on duty is the "head man" at the desk; supervises the cashiers, mail clerks, telephone operators, and bellboys; has the "privilege" of "disciplining" an employee; and gives "orders to the bellboys. Without specifying any actual incidents, the manager testified that a room salesman would "send home" a bellboy or cashier who was drunk or disorderly and would refer the incident to a department head on the following day. The manager later admitted, however, that the room salesman would "consult" an assistant manager if a bellboy was found drunk, and that there is on duty a department manager or assistant manager to whom to refer such matters during the "busy period when problems are likely to arise . . . ." It does not appear that the room. salesmen may hire or discharge an em- ployee, and although they may recommend the discharge of other employees, a department head or the manager will make an inde- pendent investigation before taking final action. Room salesmen 3 Tung-Sol Electric, Inc., et at., 120 NLRB 1674; Georgia Kraft Company, 120 NLRB 806; Standard Cigar Company, 117 NLRB 852. 4 East Jordan Iron Works, Inc., 119 NLRB 1657; General Shoe Corporation, 114 NLRB 381, 382-383 ; Stokely Foods, Inc., 83 NLRB 795, 796. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aspire to become assistant managers, but no such promotion has been made for several years. Room salesmen attend department head meetings. Taken as a whole, the testimony is unclear. Nevertheless, it suggests that some or all of the room salesmen work an unspecified number of hours each week at times when no department head or assistant manager is on duty, and that at such times they exercise authority of the sort which would require a finding of supervisory status.' In this state of the record, we do not make a finding that the room salesmen are 'supervisors within the meaning of the Act 6 and will permit them to vote subject to challenge.' Contrary to the Petitioner and Intervenor, the Employer would exclude the following employees as office clerical or confidential employees. Cashiers: All cashiers are in the auditing department, bonded, and report receipts to the auditor's office. The three front office cashiers check in and check out guests, cash checks, keep bookkeeping machine records and records of all checks cashed, write up invoices, and give receipts to guests. Three cashiers in the coffeeshop and another in the dining room take money from guests paying for meals. Relief cashiers perform the duties of some or all of the above employees. Food checkers: Deemed part of the auditing department, three food checkers are stationed in the kitchen. They scrutinize waiters' checks and trays in order to determine whether the waiters have properly filled the guests' orders and are charging correct prices for the food. PBX operators: Also called telephone or switchboard operators, 11 PBX operators operate a telephone switchboard, direct that messages be paged, and make out charges for calls.8 Mail clerks: Four mail clerks receive and distribute mail, mail packages, place notices of telephone calls in guests' boxes, and write up the guest ledgers. In light of the foregoing, we find that the cashiers,' food checkers,10 PBX operators," and mail clerks 12 are neither confidential nor office clerical employees and will include them in the unit. See Pennsalt Chemicals Corporation , 119 NLRB 128, 130. 6 See West Virginia Pulp and Paper Co., 122 NLRB 738; The Great Atlantic & Pacific Tea Company, 119 NLRB 603, 606. 1 The record does not support, and we find no merit in , the contention that the room salesmen are office clerical or confidential employees. See Roy C. Kelley etc., 95 NLRB 6, 7. 8 The parties stipulated that a 12th PBX operator, the chief telephone operator, is a supervisor as defined in the Act. 9 See Floridan Hotel of Tampa, Inc., 124 NLRB 261 ; I.L.M. Corporation d/b/a Beau Rivage Hotel, 124 NLRB 809 ; International General Electric, S.A., Inc., 117 NLRB 1571, 1576: East Coast Fisheries, Inc., 97 NLRB 1261, 1265; Waigreen Co. of New York, Inc., 97 NLRB 1101, 1104-1105; O. Z. Hall Motors, Inc., 94 NLRB 1180, 1183. 10 See Floridan Hotel of Tampa, Inc., supra ; I.L.M. Corporation d/b/ Beau Rivage Hotel, supra. 14 See Floridan Hotel of Tampa, Inc., supra; Roy C. Kelley etc., 95 NLRB 6, 7 ; cf. Mission Valley Inn, Inc., 124 NLRB 963. 11 See Welding Shipyards, Inc., 81 NLRB 936, 942-943. W. W. CHAMBERS Co., INC. 633 We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular employees and regu- lar part-time employees at the Indianapolis, Indiana, hotel, including front office, coffeeshop, dining room, and relief cashiers, food checkers, PBX operators, and mail clerks, but excluding office clerical employ- ees, confidential employees, guards, professional employees, the chief telephone operator, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] W. W. Chambers Co., Inc. and Office Employees International Union, Local 2, AFL-CIO. Case No. 5-CA-1497. December 8, 1959 DECISION AND ORDER On August 21, 1959, Trial Examiner A. Bruce Hunt issued his In- termediate Report in the above-entitled proceeding, finding that the 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 copy of the Inter- mediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. 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 Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, W. W. Chambers Co., Inc., Washington, D.C., its officers, agents, successors, and assigns, shall : I We agree with the Trial Examiner that the relationship of Company President Cham. bers to Echols and Tolson is of little significance as the latter are members of the Re- spondent's board of directors, hold top managerial positions, and exercise supervisory powers. Echols and Tolson are agents of the Respondent within the definition of Section 2(13) of the Act, regardless whether Chambers treats them like rank-and-file employees. 125 NLRB No. 78.