The Waikiki Biltmore Hotel

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 222, International Ladies Garment Workers Union , AFL-CIO, Respondents have interfered with, restrained , and coerced their employees in the exercise of rights guaranteed by Section 7 of the Act, and have thereby violated Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication. I Waikiki Biltmore Inc., d/b/a The Waikiki Biltmore Hotel and Hotel Restaurant Employees and Bartenders' International Union, Local 5 (AFL-CIO), Petitioner. Cases Nos. 37-RC-462 and 37-RC-466. April 7, 1960 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Albert Schneider, hearing officer. The hearing officer's rulings made at the hearing 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 organization involved claims to represent certain employees of the Employer. 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 seeks certification as representative of a unit com- posed of all employees at the Employer's Honolulu, Hawaii, hotel, including office clericals, pool attendants, and doormen. The Em- ployer contends that there should be two separate bargaining units : (a) One unit embracing the front office cashiers, the night clerk, the relief night clerk, room clerks, relief room clerks, and auditors, all of whom the Employer characterizes as office clerical employees; and (b) another unit encompassing all the other employees, excluding guards and supervisors. Since 1954 the Petitioner has been recognized as the bargaining agents for all the hotel employees, except those described in (a) above, guards, pool attendants, doormen, and supervisors. The most recent agreement covering these employees expired on May 31, 1958. In the recent Arlington Hotel case,' the Board held that employees with duties similar to those of the Employer's front office cashiers, the night clerk, the relief night clerk, room clerks, and relief room clerks 1 Arlungton Hotel Company, Inc, 126 NLRB 400. 127 NLRB No. 23. THE WAIKIKI BILTMORE HOTEL . 83 were not office clerical employees as that term is used by the Board, but were operating personnel who should be joined with other operat- ing personnel for bargaining purposes. The Board also held in that case that where the unit placement of office clericals is in dispute, they likewise should be grouped with other hotel employees in an overall unit. In accord with the decision in the Arlington Hotel case, we find that the front desk personnel as well as the auditors, whom we find to be office clericals, properly belong in the existing unit. We shall also include, as operating personnel, the doormen and pool attendants? As these employees, however, have been unrepresented in the past, we shall ascertain by a self-determination election whether they desire to be included in the existing unit, before including them therein.3 Accordingly, as the representative status of the Petitioner, the present bargaining representative in the historical unit, is also in issue, we shall direct separate elections in the two voting groups of employees at the Employer's Honolulu, Hawaii, hotel described below, excluding from each voting group security officers, guards and/or watchmen, confidential employees, professional employees, the bell captain,' and supervisors as defined in the Act : (a) All employees excluding the employees in voting group (b) ; (b) All night clerks, relief night clerks, room clerks, relief room clerks, auditors, the doormen, and the pool attendants, but excluding travel desk attendants.5 If a majority of the employees in each of the above voting groups votes for the Petitioner, both groups will be merged into a single overall unit, which, under the circumstances, we find to be appropriate. In the event a majority in voting group (a) selects the Petitioner, and a majority in voting group (b) votes against the Petitioner, the employees in group (a) shall constitute an appropriate unit and may continue to be represented by the Petitioner, and those in group (b) shall remain unrepresented. However, if a majority of the employees in voting group (a) do not select the Petitioner, and a majority in voting group (b) votes for the Petitioner, the latter shall not consti- tute an appropriate unit, and in this circumstance likewise shall remain unrepresented. The Regional Director is instructed to issue 2 Cf. Dunes Enterprises, Inc., d/ b/a Dunes Motel, 124 NLRB 805 ( cabana boys and beach boys). a The Zia Company, 108 NLRB 1134, 1136. 4 The Petitioner would include and the Employer would exclude the bell captain on the ground that he is a supervisor. The bell captain is in charge of the service department He plans the schedules of working hours for the bellmen , and has the authority to grant them time off for illness and effectively to recommend their discharge. He also attends the monthly management meetings. On the basis of the foregoing, we find that the bell captain is a supervisor within the meaning of the Act and we shall exclude him from the unit 5 Although food and beverage checkers are sought in the petition , the Employer testified there is no one employed in this classification. We accordingly make no unit determina- tion concerning the checkers 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the appropriate certification or certifications as directed by the out- come of the elections. We have not provided for the pooling of votes in the elections di- rected above.' We realize that this action is somewhat at variance with past practices, but we believe that pooling is not justified in circumstances like those of this case. Where the Board in the past has directed elections, with an incumbent union on the ballot, among voting groups of previously represented and previously unrepresented employees, whom the incumbent Union seeks to combine for collective- bargaining purposes, it has been the practice to pool the votes. How- ever, the consequence has been that if the voting group of previously represented employees rejects the Union, and the voting group of previously unrepresented employees votes for the Union, the votes have been pooled; but the votes have not been pooled if the voting group of previously represented employees votes to retain the Union, and the voting group of previously unrepresented employees rejects the union? This discrepancy of treatment, in our opinion, unduly weighs the scales in the Union's favor. Thus, the practice uses the votes of the previously unrepresented employees to give an incumbent union a second chance of retaining its status among the previously represented employees; but, on the contrary, the votes of the previously unrepresented employees have no effect in unseating the incumbent. Equity demands like treatment in like situations. In sum, we are holding that, in such situations, fairness will be served by having the Union establish that it enjoys representative status both in the hitherto represented group and in the unrepre- sented group, before both may be combined into one overall group. The swamping by the represented group of the unrepresented em- ployees, which concerns our dissenting colleague, would occur, under the majority's voting procedures, only if the represented group voted against union representation by a small margin while the unrepre- sented group voted for representation by a sufficient margin to over- come the deficiency.8 We fail to see how the ends of fairness are served by letting the newcomers to the situation determine the con- tinuing representative status of the Union in the existing unit. Ac- "For a description of the pooling technique, see American Potash & Chemical Corpo- ration, 107 NLRB 1418, 1427. T For example, see The Zia Company, 109 NLRB 312, 314. s We are constrained to note that nowhere does Member Fanning assert that pooling should be employed where the unrepresented employees vote against the Union and the represented employees vote for the Union. The failure to pool in this circumstance "frustrates the right of a majority of employees in a unit which the Board itself has found to be appropriate," just as much as in the instance cited by Member Fanning. For example, using Member Fanning's hypothetical figures, but reversing them ( 2 to 7 against representation in the unrepresented group; 42 to 38 for representation in the represented group), the failure to pool necessarily frustrates the choice of a clear majority against representation. THE WAIKIKI BILTMORE HOTEL 85 cordingly, we have decided that we no longer shall pool the votes of the employees 'where we direct separate elections among voting groups composed of represented and unrepresented employees.9 [Text of Direction of Elections omitted from publication.] MEMBER FANNING, dissenting : I dissent from the majority's refusal to pool the votes of both groups in the event employees in voting group (b) vote for inclusion in the existing overall unit. Admittedly, the sole reason for a separate election among the employees in group (b), who were previously unrepresented, is insur- ance that their interest for or against representation "will not be thwarted by the numerical superiority of the employee-members of the existing unit." 10 Once these employees have voted for inclusion in the existing unit, the purpose of their self-determination election has been achieved. According to the majority's own unit finding, their vote for inclusion makes the overall unit the only appropriate unit. Obviously, the remaining question is simply one of determin- ing whether the Petitioner has obtained a majority of the valid ballots cast in this appropriate unit. Unless the votes of the two voting groups are pooled, Petitioner may well receive a majority of such ballots and yet be denied the certification to which it is entitled. For example, assume that employees in voting group (b) vote for the Petitioner by a vote of 7 to 2, and the employees in the existing unit vote against the Petitioner by a vote of 42 to 38. Notwithstanding the fact that Petitioner has received a majority of valid votes in the appropriate unit, the majority will refuse to certify the Petitioner as the majority bargaining representative of that unit because it did not receive a majority in both voting groups. In my opinion, the Board's refusal to certify the Petitioner in such circumstances not only thwarts the desires of the unrepresented em- ployees "by the numerical superiority of the employees in the existing unit," but also imposes a condition on the Petitioner above and beyond that required by the statute. It is a condition that effectively frus- trates the right of a majority of employees in a unit which the Board itself has found to be appropriate to select a representative for the purposes of collective bargaining." 9 To the extent that The Zia Company, Supra, and other similar cases are inconsistent, they are hereby overruled. 10 The Zia Company, 108 NLRB 1134. n It is a condition that is also in irreconciliable conflict with the statutory policies embodied in Section 8 of the Act. As indicated above, the Petitioner may be denied certification by the Board as the result of an election in which it has proved its majority in an appropriate unit. Should the Petitioner thereupon demand recognition as the representative of such a unit, the Employer necessarily would refuse at his peril. If a .86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A majority of the Board, nevertheless, takes the position that pool- ing "unduly weighs the scales in favor of the union" because there would be no pooling if the employees in group (b) elected to refrain from representation in the existing unit. Thus, it is claimed, the un- represented group can be utilized by the Union to maintain its repre- sentative status among the employees in the existing unit, but these votes cannot be counted to unseat the Union. This argument ignores the crucial role the self-determination election for the unrepresented employees plays in the Board's unit determination in this case. If such employees vote against the petitioner, the existing unit remains the only appropriate unit. As the unrepresented employees thereby exclude themselves from the unit, there is of course no reason for pooling their votes with the votes of the employees in the existing unit. Petitioner's representative status stands or falls on the desires of a simple majority of all the employees in the unit the Board finds, in such circumstances, to be appropriate. This, of course, is what the Act requires. If, however, the unrepresented employees vote for the Petitioner, their vote makes the overall unit the only appropriate unit. Pooling is the only procedure which insures that the Petitioner's repre- sentative status as to that unit will be determined by a simple majority of all the employees in the unit. Again that is what the Act requires. The majority's real quarrel is with the Zia doctrine itself, which requires Petitioner to be selected by a majority of the unrepresented employees before it is entitled to an election in the overall unit. That requirement is, of course, an impediment to collective bargaining on the basis of the only unit the Board would find appropriate in the absence of the prior bargaining history.12 To go further, as the majority does, and require that Petitioner must obtain a majority in two separate groups, which together comprise a single appropriate unit, is a new and material impediment to collective bargaining. charge were filed and a complaint issued, the Board would be in the unhappy dilemma of denying employees their statutory right to collective bargaining or finding a violation of Section 8(a) (5) on the basis of an election that did not result in certification of the Petitioner. Even if the General Counsel refused to issue a complaint alleging a violation of Section 8(a) (5), the matter might still come to the Board if the Union picketed for recognition in violation of Section 8(b) (7) (B) Would the Board find that th4f Peti- tioner , which had garnered a majority of votes in a Board -conducted election, was in violation of this section of the Act? Clearly, neither Section 8(a) (5) nor 8(b) (7) (B) can be enforced satisfactorily unless the Board certifies unions which win elections conducted in appropriate units. 'a See Arlington Hotel Company, Inc., 126 NLRB 400. The requirement is defensible only on the ground that the desires of the unrepresented employees may properly be deemed controlling on the appropriate unit issue . So long as the majority continues to deem the desires of the unrepresented employees as controlling on the unit issue , pooling is precluded if they vote themselves out of the unit, and required if by their vote they become an integral part of the unit. If the majority is convinced of the unfairness of pooling in the latter case , because of the impossibility of pooling in the former case, they have no recourse but to abandon the Zia doctrine altogether in situations , such as this, where a union seeks an election in the overall unit. SWIFT & COMPANY 87 Moreover, it is destructive of the basic rationale of the Zia case be- cause it permits the swamping of the desire of the unrepresented group for representation by the votes of the represented group against representation. Plainly, the Board majority in this case is giving greater weight to votes against representation than it is willing to accord votes for representation. Certainly, such a decision can hardly be justified by holding that it is necessary to avoid .undue weighting of the election scales in favor of the union. If there is anything un- fair in permitting a union to have its majority status as a representa- tive of employees in an appropriate unit determined on the basis of a simple majority of the valid ballots cast in the election in that unit, then that fact should be called to the attention of Congress, which, no doubt, will be surprised to learn that the basic principle of political democracy, majority rule, results in unfairness when applied to in- dustrial elections. .Swift & Company and Amalgamated Meat Cutters and Food Store Employees Union Local 464, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Peti- tioner. Case No. 22-RC-610. April 7, 1960 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF ELECTION On October 9, 1959, the Board issued a Decision and Direction of Election in the above-entitled proceeding,' finding a unit of boners and cutters to be an appropriate residual unit, and holding that these employees were the only employees at the Employer's plant presently unrepresented. Thereafter, on October 23, 1959, the Employer filed a motion for reconsideration, asserting that there were employees in other classifications who were also unrepresented. The Employer urged, inter alia, that the residual unit should be enlarged accordingly. While the Employer's motion was pending before the Board, the Regional Director, on October 30, 1959, conducted an election among the employees in the boners and cutters unit and on November 9, 1959, issued a certification of representatives. On February 5, 1960, the Board issued a notice to all parties to show cause in writing, on or before February 15, 1960, why the Board should not vacate the Decision and Direction of Election, and the certification in this matter; why the Board should not broaden the unit found appropriate in the original decision to include all cutters 1 Unpublished. 127 NLRB No. 17.