Sheraton-Jefferson Corp.

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wagner, Claytus Witty, Harold Cassidy, Otto Lightle, Hubert Mor- rison, Chester Vest, Edwin Lightle, and Harold Galloway, but ex- cluding all seasonal employees, office and plant clerical employees, sales employees, over-the-road (long haul) truckdrivers, professional employees, guards, and all supervisors as defined in the Act [Text of Direction of Election omitted from publication ] Sheraton-Jefferson Corporation i and Local 2, International Union of Operating Engineers, AFL-CIO, Petitioner. Case No 14 RC-3547 December 10, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Secrion 9 (c) of the National Labor Relations Act, a hearing was held before Walter A Werner, hearing officer The hearing officer's 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] Upon the entire record in this case, the Board finds 1 We find no merit in the Employer's contention that its hotel operations do not affect commerce within the meaning of the Act The Employer, a Delaware corporation, is a wholly owned subsidiary of the Sheraton Corporation of America, and is engaged in the operation of a 746-room hotel in St Louis, Missouri, which furnishes lodging, eating, and related services to its guests The Employer derives additional income from the rental of office space to com- mercial and business enterprises, including Western Union, airlines, advertising agencies, and local shops of various kinds The Em- ployer employs approximately 500 employees In 1958, the Employer received gross revenues in excess of $500,000, made purchases from points outside the State amounting to over $50,000, and spent about $25,000 on out-of-State advertising It does not appear that 75 per- cent of the guests remain at the hotel for periods of a month or more In view of the foregoing, 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 Floridan Hotel of Tampa, Inc, 124 NLRB 261, Member Jenkins concurring in part and dissenting in part, and Member Fanning concurring separately 2 The labor organization involved claims to represent certain em- ployees of the Employer 1 The name of the Employer appears as corrected at the hearing 125 NLRB No 77 SHERATON-JEFFERSON CORPORATION 703 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner requests a unit comprised of three or four operat- ing engineers. Also known as watch or stationary engineers, they operate a high-pressure boiler, low-pressure boilers, ammonia com- pressors, pumps, and heating and cooling systems. This equipment is complex and dangerous. They have undergone specialized training and, having passed an examination prescribed by the City of St. Louis, Missouri, are licensed to operate high-pressure boilers. Each engineer spends substantially all of his working time in the basement of the hotel, has a different 8-hour shift, is not interchanged with other employees, and is under the supervision of Spray, the head of the engineering department. The latter is available around the clock, but spends little time with the engineer on duty. Spray also super- vises nine maintenance employees and a fireman who are covered by a contract with another union. The engineers are not presently covered by a collective-bargaining agreement. The Employer moves to dismiss the petition on the ground that the requested unit is composed of supervisors. The engineers have no authority to hire, fire, or promote employees, or to adjust grievances, grant time off, assign overtime or lunch periods, or effectively to recommend any of the foregoing. Although Spray testified that an engineer could send home an intoxicated employee, no such incident has occurred and Spray would independently investigate an engineer's recommendations regarding discipline in "90 percent of the cases." Even during Spray's annual 2-week vacation, when the day engineer is said to be "in charge," disciplinary action abides Spray's return. Like any other employee, the engineer may assign demerits to an em- ployee. Maids and guests reporting minor repair jobs call a tele- phone normally answered by the engineer on duty. Spray testified that the engineer uses discretion in delegating these jobs to main- tenance employees and transferring the latter from one job to another, but two engineers testified that, except in emergencies, the procedure is to note the complaint on a ticket which a maintenance employee, when free, picks from a table. One engineer testified that he often instructs the fireman to do work on the equipment, and that the fire- man is "our choreboy" or "helper." Another engineer testified that, although he does most of his own mechanical work, "on occasions" he directs a maintenance employee who is not busy to help him make repairs on the equipment. As there is no evidence of either nonroutine direction of employees or authority other than that derived from skill, experience, and responsibility for the operation and control of coin- plex equipment, and in the absence of authority to hire, discharge, or discipline, or effectively to recommend such action with respect to 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees, we find that the engineers are not supervisors as defined in the Act Z Accordingly, the Employer's motion to dismiss is denied. We find, on the basis of the above, that the operating engineers constitute a functionally distinct and separate group of employees with related tasks and interests such as are entitled to separate rep- resentation, if they so desire.' We, therefore, find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All operating engineers at the Employer's St. Louis, Missouri, hotel, excluding office clerical employees, professional employees, guards, all other employees, and supervisors as defined in the act. [Text of Direction of Election omitted from publication.] z United States Gypsum Company, 119 NLRB 1415, 1418. $ Westinghouse Electric Corporation, 117 NLRB 520, 521; Olin htathieson Chemical Corporation, Olin Works, 117 NLRB 1441, 1443-1444; American Potash & Chemical Cor- poration, 117 NLRB 1508, 1509; Montgomery Ward & Company, 110 NLRB 256, 259; cf. Seville-Sea Isle Hotel Corporation Operating the Seville Hotel, 125 NLRB 299. International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 78, AFL-CIO [Knowlton Construction Company] and Leon Parsley International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 78 , AFL-CIO and Robert J. Haley. Cases Nos. 8-C,B-296 and 8-CB-299. December 1.4, 1959 DECISION AND ORDER On May 25, 1959, Trial Examiner W. Gerard Ryan 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 and a brief in support of its exceptions., 2 On June 12, 1959 , the Respondent filed a motion , and a supporting memorandum, to reopen the record for the limited purpose of adducing testimony with regard to the financial hardship and other adverse effects which would be caused by enforcement of the Trial Examiner 's recommended order requiring reimbursement of dues in accord with United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry, etc. (J. S. Brown-Olds Plumbing & Heating Corporation ), 115 NLRB 594. As the Board and the courts have consistently held, financial hardship is no defense to a violation of the Act. E.g., N.L .R.B. v. Star Publishing Company, 97 F. 2d 465 ( C.A. 9). The Respondent's con- 125 NLRB No. 80.