Hotel Employers Association of San Francisco

HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 143 Representatives discharged in 1961. Petitioner urges that certain GLR's discharged in 1961 be allowed to cast challenged ballots as they are presently seeking reinstatement, backpay, and other relief from a United States District Court under the provisions of the Labor- Management Reporting and Disclosure Act. A verdict in their favor would establish, in effect, that their employee status was never law- fully terminated, while a contrary determination would establish that it was. In these circumstances, we shall permit them to vote subject to challenge.' [Text of Direction of Election omitted from publication.] 10 6 Cf. Pacific Tile and Porcelain Company, 137 NLRB 1358, 1365. io An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 10 within 7 days after the date of this Decision and Direction of Election . The Regional Director shall make the list available to 'all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236. Hotel Employers Association of San Francisco and Professional and Clerical Employees, Local 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner and San Francisco Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO; and Hotel, Motel & Club Serv- ice Workers Union, Local No. 283, Intervenor. Case 93O-RC- 6369. June 10, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Offi- cer Joe R. McCray. The Hearing Officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. The Employer, Petitioner, and Intervenor filed briefs with the Board.' Upon the entire record in. this case, the National Labor Relations Board finds : 1. The Employer, sometimes referred to herein as the Association, is an organization of both large and small hotels and motels formed for the purposes of collective bargaining. The Employer annually exceeds $500,000 in gross sales and annually purchases in excess of $50,000 worth of goods from outside the State of California. The ' The Employer and Intervenor's requests for oral argument are hereby denied as the record and briefs adequateW present the issues and positions of the parties. 159 NLRB No. 15. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties stipulated, and we find, that the Employer is engaged in com- merce within the meaning of the Act. 2. The Petitioner, sometimes referred to herein as the Teamsters, and the Intervenor, San Francisco Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and Hotel, Motel & Club Service Workers Union, Local No. 283, are labor organizations claiming to represent certain employees of the Employer. 3. The Petitioner seeks to represent an associationwide unit, as amended at the hearing, of "all front desk clerks and office clerical employees, including room clerks, information clerks, reservation clerks, cashiers, accounting and auditing clericals, and all other office clericals (a residual unit) ; excluding all employees currently covered by collective bargaining agreements, guards and supervisors as defined in the Act." Alternatively, the Petitioner states that if the Board finds its primary position too narrow, it will accept as part of the residual unit some few fringe classifications of employees, who, as revealed by the testimony, are not clerical but who are unrepresented. Should the Board find that the Intervenor's contract is a bar to pro- ceeding to an election among the front desk employees, Petitioner, as a second alternative unit position, will accept an election in a residual unit of all the remaining employees save the front desk personnel. The Intervenor asserts that since 1948 it has had collective- bargaining contracts with the Employer covering the employees sought by the Petitioner and that since the petition is not timely filed with respect to the most recent contract, the petition should be dis- missed. The Intervenor further asserts that it was and is the author- ized representative of all the Employer's front office employees, recognized and confirmed as such by an arbitration award. The Employer's position is essentially the same as the Intervenor's. Both contend that the only appropriate unit is a true residual group, save for the front office employees, but urge the Board to dismiss the petition on the basis of the long bargaining history between the Intervenor and Employer. Since 1937, when the Association was formed, the Intervenor has represented most of the employees of the employer-members of the Association with which it has maintained a continuous bargaining relationship evidenced by collective-bargaining agreements. However, the representation of front office employees has remained a matter of controversy. In this regard, the Association would not recog- nize the Local Joint Board as representing front office clerks, claim- ing the clerks were "executives." The consecutive basic agreements have specifically exempted the front office clerks from coverage. Since 1948, however, subsequent to the negotiation of the basic agreement, HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 145 the parties have negotiated a supplemental agreement and stipulation wherein minimum wages were set for the front office clerks. In 1958 the supplemental agreement was expanded to include a medical plan for front office clerks, premium pay for night work, and periodic wage adjustments. Nevertheless, the basic contract continued to exempt the front office clerks. During the 1964 negotiations between • the Intervenor and the Employer, the Intervenor demanded that the Association recog- nize it as the collective-bargaining representative of the front office employees. Although the resulting contract again specifically exempted from coverage the front office employees, the supplemental agreement and stipulation set up their, minimum wage rates and the expanded benefits of the 1958 supplemental agreement. In addition, the 1964 negotiations led to a letter from the Association to the Inter- venor dated September 22, 1964, the same date the most recent basic, agreement was signed, stating that it was the position of the Associa- tion that nothing contained in the contract between the parties would preclude the Intervenor from organizing, representing, or bargaining on behalf of the front office employees. Thereafter, Intervenor demanded recognition on behalf of the front office employees of the Canterbury Hotel, but such recognition was not given. On February 4, 1965, the Teamsters filed a petition with the Board which was subsequently withdrawn, for a unit of front office employees at the Sir Francis Drake Hotel. - On March 2, 1965, the Intervenor presented evidence of its repre- sentative status among front office employees of the Association. The Association refused recognition because of the Teamsters' earlier peti- tion. Again, on March 26, 1965, the Intervenor- demanded recognition and arbitration of the -issue involving the front office employees. By letter dated April 1, 1965, the Association refused the Intervenor rec- ognition and refused to arbitrate because of the Teamsters' organiz- ing activities. Thereafter, pursuant to the arbitration clause of the basic contract between the Interyenor and the Association, the Inter- venor obtained an order on April 19, 1965, from the California Supe- rior Court requiring arbitration. The instant petition was filed by the Teamsters on. April 23, 1965. Thereafter, on May 19,1965, Arbitrator Arthur C: Miller issued his award, finding that the Association's letter of September 22, •1964, in effect obligated the Association, upon proof of majority representa- tion of the front office employees, to grant recognition to and bargain with the Intervenor for a complete agreement applicable to those - employees. Finding that'the Intervenor represented a majority,of the, front office employees when it demanded recognition in March 1965, the arbitrator cbficluded that' the` Association was'obligated to bargain 243-084-67-vo]. 159-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the' Intervenor without further delay. Pursuant to that award, the Association and the Intervenor signed an agreement on' June 1, 1965; extending the basic agreement to the front office employees. - The' Employer and the-Intervenor contend, first, that their present contract, executed June 1, 1965, is a bar to the present petition. The Employer and Intervenor next contend that their supplementary agreements and stipulations, the most- recent being September 22, 1964, cover the front office employees herein sought, and that since the instant petition is not timely filed with respect to such agreement, the petition should be dismissed. As a third contention, the Employer and Intervenor would have the Board give effect to the above- described arbitration award in which the arbitrator found that the Employer was obligated, by virtue of its letter of September 22, 1964, to 'bargain with-the Intervenor who represented a majority of the front office employees in March 1965. For the reasons hereinafter set forth, we reject these contentions. First, the facts show that the present June 1, 1965, contract, in existence between the Intervenor and the Employer purporting to cover the front office employees, was executed long after the Team- sters' instant petition was filed. Although the terms of this agree- ment applied retroactively, it is well established that contracts signed after the filing of a petition cannot serve as a bar.2 Nor can it be maintained that the prior agreements, including the Employer's letter of September 22, 1964, serve as a bar to an election herein. The history of bargaining shows that although the Inter- venor had attempted to obtain recognition from the Association on behalf of these, front office employees, such recognition had, been denied and all previous basic contracts between the two had specifi- cally exempted front office employees from coverage. Nevertheless, the Intervenor urges the Board to recognize the supplementary agree- ment applicable to front office employees, negotiated and executed since 1948' along with the basic agreements, as a contract sufficient to serve as a bar. This we cannot do. The original supplementary agreement, titled "Stipulation," stated that in consideration of the parties agreeing to certain exemptions appearing in section 2 of the basic agreement, the Association agreed that any hotel becoming a member of the Association that had employed union, front office employees would continue to do so,3 and would pay them a minimum rate. The 1958 supplementary agreement 'states that the basic agree- ment or any other collective-bargaining agreement between the par- 3 Mt. Clemens Metal Products Company, 110 NLRB 931; Appalachian Shale Products Co., 121 NLRB 1160; Whitsng Milk Company, 137 NLRB 1143. a Although this provision is not in the 1964 supplementary agreement, it has apparently been followed over the years as it appears that the Cecil Hotel is -presently covered under this provision. HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 147 ties shall not apply to front office employees except as provided in the supplementary agreement. The most recent supplementary agree- ment, like the previous supplements, only modifies the basic agree- ment by providing minimum wage scales, night work premiums adjustment in daily wages, and a medical plan for all front office employees. However, it is clear that the supplementary agreements did not recognize the Intervenor as the collective-bargaining repre- sentative of the front office employees, and all that we can infer from the bargaining history is that the Intervenor failed to gain recogni- tion for the front office employees. Certainly we cannot accept under our contract bar principles a contract that does not recognize the sig- natory union as the collective-bargaining representative of employees with respect to whom the contract is asserted as a bar. Finally, unlike our dissenting colleague, we do not consider the Association letter of September 22, 1964, sufficient to serve as a con- tract bar-whether read in conjunction with the main agreement or by itself-for three reasons: (1) As noted, the principal agreement specifically exempts the front office clerks from coverage, and the let- ter in no way includes them. (2) The letter states only the "position" of the Association, that nothing contained in section 2 of the princi- pal contract shall "preclude" the Intervenor "from organizing, repre- senting or bargaining on behalf" of the front office employees and cashiers. In other words, the letter does no more than acknowledge the Association's changed position that these employees were now to be susceptible to organization, while at the salve time clearly revealing that such employees had not yet been covered by any contract. (3) The letter obviously does not meet the Board's standards for the valid assertion of it contract bar. Although the Board does not require that a contract must be embodied in a formal document if it is to serve as a bar, an asserted contract, if it is to meet minimal bar standards, must at least be signed by the parties and must contain terms and con- ditions of employment sufficiently substantial to stabilize the bargain- ing relationship.' I{ere, the letter does not purport to reflect a specific agreement of that sort. For all the foregoing reasons, we find that the documents on which the Employer and Intervenor rely are insufficient under the Board's applicable standards 5 to serve as a contract bar. We accordingly reject the contract-bar contention. Turning to the question of whether the Board should honor the arbitration award, it is true, as the Board held in Raley's; that Sec- tion 9 of the Act, which empowers the Board to decide questions con- * Appalachian Shale Products Co , supra. 5In addition, we note, as hereinafter set forth , that the appropriate unit is not a sepa- rate unit of front office employees , but a residual unit including the front office employees 6 Ralev's Inc. d/b/a Raley's Supermarkets, 143 NLRB 256, 259 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning representation, "does not preclude the Board in a proper case from considering an arbitration award in determining whether such a question exists." But we do not believe in the circumstances of this case that the arbitrator's award may properly be regarded as disposi- tive of the ultimate issue we must decide. The situation now before us is plainly distinguishable from that in Raley's. There the arbi- trator had before him a question of contract interpretation which, once resolved, was also determinative of the central issue before the Board. Moreover, in Raley's the Board found nothing in the arbi- tration award that was "repugnant to the purposes and policies of the Act." Here, the only question of contract interpretation presented to the arbitrator was whether in the 1964 negotiations the Association had agreed to recognize the Intervenor as the representative of the front office' employees-of the'Employer if and when the Intervenor attained a majority among such employees. But the determination which the arbitrator made with respect to the question of contract interpretation did not dispose of the ultimate issue we must decide. Thus, in his award, the arbitrator, although taking notice of the or- ganizing efforts of the Teamsters, did not consider or decide whether, notwithstanding his contract interpretation, a question of representa- tion nevertheless existed by reason of the Teamsters' competing rep- resentation claim.? He found simply that the Employer was obli- gated to recognize the Intervenor as bargaining representative of the front office employees who were referred to by the parties in their understanding of September 22, 1964, and as to whom the Inter- venor had since made a showing of majority interest. But that showing had postdated the Petitioner's claim with respect to at least some of these employees (front office employees at one of the Associa- tion hotels), a claim which was expressed by Board petition. That- petition both presented a unit issue and raised a question concerning the majority status of competing unions with respect to front office employees in the San Francisco area, issues best resolved by the Board's own processes in these circumstances. Although the Peti- tioner's initial petition was subsequently withdrawn, the Employer consistently refused to recognize the Intervenor, specifically because of its awareness of the Petitioner's organizing activities; and, the Employer itself filed an RM petition (later dismissed for unit reasons by the Regional Director) to resolve the competing claims of the two labor organizations. We note, moreover, that the present petition was filed on April, 23, 1965, almost -1 month before the above- mentioned arbitrator's award issued. The arbitrator's award did not order bargaining and the Respondent did not in fact accord the 7 Petitioner was not a party to the arbitration proceeding even though it had been organizing the employees of the Employer, whose representation was in issue before the arbitrator. HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 149 Intervenor recognition until after the petition herein was filed, in short, at a time and under circumstances when adherence to basic principles of the Act requires that the choice of employee representa- tive be made by a secret-ballot election. For these reasons, we find it will not effectuate the policies and purposes of the Act to honor the arbitration award here urged. We have found that neither the existing multiemployer contract between the Association and the Intervenor, nor the supplementary agreement, nor the Employer's letter of position of September 22, 1964, was operative to bar the petition filed herein. We have further found that, in the circumstances of this case, we cannot give effect to the arbitration award. Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The parties are in disagreement as to the appropriate residual unit. The Petitioner seeks a broad clerical residual unit, but stated it would accept as part of the residual unit several fringe classifications of employees, who, as revealed in the record, are not clerical and are unrepresented. The Employer and Intervenor would exclude the front desk employees under their contract-bar argument, supra, but apparently agree that the appropriate residual unit includes all other unrepresented employees of the Employer. We have rejected this contract-bar argument, and even though the Intervenor seeks to repre- sent the front desk personnel separately, we find that they are prop- erly included in a unit of all unrepresented employees of the Associa- tion and that such unit is an appropriate residual unit.8 The parties stipulated that the following classifications generally are managerial or supervisory and should be excluded: owners; gen- eral managers; resident managers, and executive assistant managers; assistant managers at the Bellevue, Chancellor, Clift, Drake- Wiltshire, Fairmont (Messers, Goldsworthy, Messinezell, and Paul), Golden State, Jack Tar, Mark Hopkins, Plaza, St. Francis, Sheraton Palace, Handlery Motor Inn, and Stewart Hotels; personnel direc- tors and the assistant personnel-managers at the San Francisco Hil- ton and Sheraton Palace Hotels; chief fiscal officers called auditors or comptrollers; the head night auditor at the Fairmont Hotel; the assistant auditors at the Drake-Wiltshire, San Francisco Hilton, and Mark Hopkins Hotels; the food and beverage controller at the Shera- ton Palace and Fairmont Hotels; purchasing agents; sales; catering, banquet, food and beverage, and credit managers ; bar managers; housekeepers; chefs, executive stewards, and the two assistant execu- B-In.finding ,a residual unit, we-note,,and the parties agree, that the following classifica- tions should be excluded: (1) employees of corporations other than, members of the Asso- elation ; ( 2) employees of the Hilton Reservations Service; ( 3) employees of the conces- sionaires; and ( 4) student trainees who are not regular part-time employees. 150 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD tivestewards at the San Francisco Hilton Hotel; the building super- intendent at the Fairmont Hotel'; the reservations managers' at the Jack Tar, Sheraton Palace, 'and Sir Francis Drake Hotels; the man- ager of the Starlight- Roof and the brill. maliager at the Sir' Francis Drake; the-assistant catering manager at the St.'Francis 'Hotel; and the bookkeepers at the Cecil and Beverly Plaza Hotels. It, appears that the parties' stipulations generally follow Board cases involving managerial or supervisory po'siti'ons in hotel units; and we shall'there- •fore accept the parties' stipulations and exclude the above-mentioned classifications from the unit. The record further shows that ulirepre- sented department heads at the larger hotels, 'such as`chief engineers and laundry managers, possess and exercise supervisory authority. Thus; we shall also exclude` them from the' unit. ` ' - The parties also stipulated that the following classifications gen- erally are confidential and should be excluded : the personal secre- taries of managers; the personal secretaries of the resident managers of Del Webb'sTownehouse, -Mark Hopkins, San Francisco Hilton, and St. Francis Hotels; the secretary to the executive assistant'manager at the, Fairmont Hotel; the secretaries of the building superintendent and the controller' of the Fairmont Hotel.; the secretary of the resi- dent auditor at the Mark Hopkins Hotel; the secretaries of the sales managers'at the San Francisco Hilton and Sir Francis'Drake` Hotels; and the secretaries of personnel directors. The parties also stipulated that the Los Angeles representative of the Hotel Californian and the daughter of the manager of the Villa Roma should be' excluded from the unit.' We shall accept the parties' stipulation' and exclude the abovementioned employees from the unit. At the hearing the Employer and Petitioner were in disagreement as to a number of employees who the Employer claimed are confiden- tial employees such' as secretaries or clerks to certain department man- agers. The record shows that, in addition to routine secretarial and clerical work, these secretaries and clerks keep time and work records, and type memoranda dealing with personnel matters. However, we find that these -secretaries and clerks, except as stipulated, are not sufficiently concerned with labor relations matters to be considered confidential employees who should be excluded from the unit. Mere access to personnel records does not qualify an employee -as a confiden- tial employee. As it appears these secretaries and,clerks do not assist or act in a confidential capacity to persons who formulate, determine, and effectuate -management policies in the field of labor relations," but perform only routine work, we include them in the unit. Y The reservations manager at the San Francisco Hilton also exercises supervisory func- tions comparable to the reservations managers who are excluded by stipulation . We shall therefore exclude him. 10 See Eastern Camera and Photo Corp ., 140 NLRB 569. HOTEL EMPLOYERS ASSOCIATION OF, SAN FRANCISCO -151 The parties disagreed on the record, -as to whether-the following job classifications are supervisory or managerial., The Employer contends that they are supervisory or. managerial, the Petitioner argues that they are not. - . The, catering assistant, 5 the convention manager, and the head checker,-cashier at the San Francisco Hilton: The catering assistant is an assistant to the two catering managers, and although he does not have authority . ,to ;hire and, fire, the record indicates that he can so recommend. However, the record does -not show that he has ever made a recommendation or that; such would be effective, or that he has any of the other indicia of a supervisor. Since it appears that actual authority is vested in others, we shall include him in the unit. The convention manager works in the, sales department under the director of - sales. The convention manager's primary - duty is to set up arrangements for, and to serve, conventions, duties that keep him within the hotel. ;It,is not entirely clear whether or not he possesses the requisite attributes of supervisory authority to be classified as a supervisor, and we are-therefore not prepared without, further evi- dence to make a determination of this status. We shall therefore allow him to vote subject to challenge. The head checker-cashier makes up the work schedules of all the checkers ,and cashiers employed by the hotel, and her, main responsibility ,is• the supervision of checkers and cashiers. She has the authority-to hire-and fire. We find, therefore, that the head checker-cashier is •a supervisory employee and should be excluded from the unit.- It further appears from the record that the assistant housekeeper, the assistant laundry manager, and the liquor store manager at the San Francisco Hilton responsibly direct employ- ees, have authority to. hire and fire, and are therefore supervisors within the meaning of the Act. We shall exclude them from the unit. The assistant personnel manager, at, the Sheraton Palace: This employee screens, interviews, and tests applicants for employment and recommends hiring and firing. She is responsible for the preparation and issuance' of -the general managers' daily report, a copy of which goes to the department heads. She performs clerical duties, handles unemployment compensation claims, maintains personnel records, and handles minor grievances when the personnel manager is absent from the hotel. We find from the, record evidence that the assistant per- sonnel director acts not only in a confidential capacity but also fre- quently in a managerial capacity and shall therefore exclude her from the unit. The relief assistant managers at Del-Webb's Townehouse and the Fairmont . Hotel who have not been 'excluded by stipulation : The relief assistant managers at the Fairmont Hotel regularly work 2 or 3 days a week as room clerks, and it appears they relieve as assistant U For the same reasons, the cashier-supervisor at the Sheraton Palace is also excluded. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD managers during lunch hours, the early morning hours between 2 or 3 a.m. until 7 a.m., vacation periods, and weekends. As in the case of the Hilton assistant manager, the record as made is not sufficiently clear and complete in a number of respects to allow a judgment on the issue of their supervisory status. We shall not, therefore, determine that issue now, but will allow them to vote subject to challenge. The record further shows that the relief assistant manager and the "graveyard" assistant manager at Del-Webb's Townhouse 12 perform essentially the same duties as the relief assistant managers at the Fairmont Hotel. Accordingly, we shall also allow them to vote sub- ject to challenge. The three senior room clerks at the Sheraton-Palace : The senior room clerks rent and assign rooms to guests, arrange transfers of guests, check guests out of the hotel, and refer guests to the front office cashier for payment. They receive and distribute mail, and receive and handle guests complaints-all duties shared by the other room clerks. In addition, the senior room clerks notify the house- keeping department of the expected number of arrivals and depar- tures, periodically inspect guest rooms, and supervise the junior room clerks in their duties. Although the senior room clerks can recom- mend hiring and firing, it appears they have no duty to do so, and such action would be voluntary on their part. As far as recommend- ing reward or discipline, the senior room clerks would talk to the resident manager, and, on the basis of that information, a judgment would be made. The record shows two instances where a senior room clerk has made an effective recommendation, but this appears to be the exception rather than the rule. Thus, one junior room clerk was promoted on the recommendation of a senior room clerk after an inquiry was made throughout the hotel for an employee. The other instance involved a clerk who could not perform his duties and at the request of the senior room clerk was transferred. However, it ap- pears that the actual authority was lodged in, and the decision to make these transfers was performed by, others. In addition, the record supports the conclusion that the senior room clerks direct others in only a routine manner since at all times a, resident manager is pres- ent, and the majority of their time is spent performing the same duties as the junior room clerks. For these reasons, we shall include them in the unit. The parties are in agreement that the Hotel Employers Association of San Francisco constitutes an appropriate unit. Hence, we shall 12 As the record is not clear as to the number of assistant managers at Del-Webb's Townehouse , we shall consider them by title. The general manager, resident manager, and executive assistant manager are excluded from the unit by stipulation. The record shows that the evening assistant manager exercises supervisory authority, and we shall therefore exclude him. - -- HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 153 treat the Teamsters' petition as a request for a residual unit of all unrepresented employees employed by the Hotel Employers Associa- tion of San Francisco members.13 In view of the foregoing, we shall direct an election in the following unit of employees which we find to be appropriate 14 for the purposes of collective bargaining within the meaning of Section 9(c) of the Act. 'All unrepresented employees employed by the Employer, Hotel Employers Association of San Francisco, including accounting department employees, office clerical employees, front office employees (including cashiers, night auditors, and voucher clerks), the catering assistant at the San Francisco Hilton,15 sales representatives and regular part-time employees, but excluding confidential employees, owners and managerial employees, the head checker-cashier at the San Francisco Hilton, the cashier-supervisor at the Sheraton-Palace, the assistant personnel manager at the Sheraton-Palace, student trainees, employees of corporations other than members of the Asso- ciation, professional employees, guards, supervisors as defined in the Act, and employees covered by existing collective-bargaining agreements. - [Text of Direction of Election omitted from publication.] 16 MEMBER BROWN, dissenting in part : I cannot agree with my colleagues' conclusion that the front desk employees of the hotels should be included in the residual unit of clericals found appropriate herein. In my view, the petition was untimely as to them. Hence, I would direct an election among the clerical employees in the ' alternative residual unit sought by Peti- tioner; i.e., excluding the front desk personnel. "There are certain miscellaneous employee classifications such as the money washer and the Captain and steward of the Ship Adventuress employed by the St. Francis Hotel whose inclusion or exclusion are not urged on the record or in the briefs. We find such employees are properly part of the residual unit herein found appropriate 14 The unit found appropriate contains employees not originally sought by the Peti- tioner. Therefore , the sufficiency of the showing of interest is not clear . Accordingly, we direct the Regional Director not to proceed with the election hereinafter directed until he shall have first determined that the Petitioner has made an adequate showing of in- terest among employees who are eligible to vote in the election. w By Board order of August "19, 1966, the catering assistant at the San Francisco Hilton was deleted from the appropriate unit by agreement of the parties as this employee is covered by another contract. 19 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 20 within 7 days after the date of this Decision and Direction of Election . The list may initially be used by the -Regional Director to assist in determining an adequate showing of interest. The Regional Director shall make the list available to all parties to the election when he shall have determined that the Petitioner has made an adequate showing of interest 'among the employees in the unit found appropriate . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed . Excelsior Underwear, Inc, 156 NLRB 1236. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. The facts are discussed at some length in the majority opinion. However, it seems desirable to restate some of them and to note addi- tional matters not alluded to therein. It should be observed That the Association and the Intervenor have had a bargaining relationship dating back to 1937. Beginning in that year and continuing until the Arbitrator's award in 1965, the Intervenor's right to represent the front desk personnel was in dis- pute. The issue throughout this period did not concern the Inter- venor's majority status among those employees but revolved about the question of whether front desk clerks were employees entitled to the benefits. of the Act, the Employer contending they were confi- dential employees or executives and exempt from collective bargain- ing. In 1937 the Intervenor struck over this issue and lost insofar as Association members were concerned, but front office employees of nonmembers of the Association were included in the separate hotel- wide units. In 1941 another strike, the last in the hotel industry in San Francisco as of the date of this Decision, occurred over this issue at the end of the first contract term. Once again the matter was not resolved, and it remained a subject of continued discussion through- out the years. Beginning in 1948, the Association and the Inter- venor, at the same time they negotiated 'their regular agreements, signed a so-called "Stipulation" in which, inter alia, they provided for wage rates of front office employee and their inclusion under the medical plan. Also beginning at about this time, some hotels, already covered by separate contract includii ' lg front desk employees, joined the Association with the understanding such clericals also became part of the basic multiemployer unit. In 1958, the parties entered a "Supplementary Agreement" covering the disputed employ- ees which included more extensive provisions with respect to wage rates, premium pay, and periodic wage adjustments to conform with those agreed to for other employees. Finally in 1964, after a number of "stipulations" and "supplemen- tary agreements" had been signed throughout the years, the Inter- venor again sought to have full benefits of the existing unit extended to the front desk personnel, demanding that the group be covered by all the provisions of the main agreement. As a result, when the con- tract was signed on September 22, 1964, in addition to the supple- mentary agreement concerning conditions applicable to the front office clerks, the parties agreed in writing that upon submission of proof of current representation full contract coverage would be extended to the front office cashiers as well as clerks. On March 2 and 26, the Intervenor asserted its majority status and demanded that the Employer comply with its September undertaking, and be- cause of the Employer's refusal the Intervenor sought a court order HOTEL EMPLOYERS ASSOCIATION OF' SAN FRANCISCO 155 directing arbitration of the issue. The said order was issued on April 19, 1965, and, the instant petition was filed on April 23`. On May 4 the arbitration proceeding was held, and on May 15, 1965; the award was handed down to the effect that beginning in March 1965 the Intervenor 'had current authorizations from a majority of the affected employees. On June 1, 1965, the Employer and Intervenor signed an agreement extending the basic agreement to the front office employees. On the above facts, the majority has found, in effect, that the Employer merely agreed to extend recognition to the Intervenor at a later time upon a showing of majority, and therefore the instant petition was timely, having been filed before the signing of a contract covering the disputed employees. This approach fails to give any effect to the history of relations between the parties or to the agree- ments entered between them prior to the filing of this petition. • In my opinion, there can be no doubt that the Employer in fact had long recognized the Intervenor as the majority representative of the front office employees. The principal issue between them through- out the years was the extension of the existing contract to those clerks. However, in September 1964 the Employer and the Inter- venor agreed in writing that upon a showing of majority status the full coverage would be extended. This can only be construed as an agreement upon,contract terms, subject only to the condition of proof of current majority. When that proof was given in March 1965, the condition was satisfied and the September 1964 agreement thereupon became effective. The Employer's failure to honor its commitment did not modify the binding nature of its contractual obligations to the Intervenor; nor did the contract thereafter executed in June 1965 do so, for it, in effect, only confirmed the outstanding contractual relationship between the parties. I would therefore find that the Employer and the Intervenor had a valid contract, which became operative in March 1965, covering the front office employees in the existing unit and that the subsequent petition is therefore untimely as to them. To hold that the September 1964 agreement does not bar this peti- tion not only misconstrues the, impact of the conduct of the parties but is, I believe, also contrary to established policies. The Employer and Intervenor have, for more than 25 years, successfully resolved their differences without resort to either strikes or lockouts, and throughout this period they have utilized voluntary arbitration in disposing of contract disputes. This is precisely what they did in the current situation in agreeing on applicable terms (i.e., extension unfurnished, and the other a 4-story structure containing 76 units, of the current contract) conditioned upon presentation of majority 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD showing, and the instant petition filed subsequent to a court order directing arbitration to construe the terms of that very agreement 17 Furthermore, the residual unit found herein by the majority does not include all persons employed by Association members within the identical categories, and will result in the division of front office employees between the basic multiemployer unit and the residual unit."' Accordingly, I would find that all front desk employees are included in the overall unit and that the present petition is untimely as to them. '- See Dube Manufacturing Corporation, 142 NLRB 431, 432. Cf. Raley's, Inc., 143 NLRB 256. 1, Cf. The Rose Ewterminator Company of Northern California, 143 NLRB 59 ; Westing- house Electric Corporation (Elevator Division ), 112 .NLRB 590 ; Westinghouse Electric Corporation, 110 NLRB 387; The Daily Press, Incorporated, 110 NLRB 573. The Mensh Corporation and Building Service Employees Interna- tional Union, Local 82, AFL-CIO, Petitioner. Case 5-RC-5502. June 10, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hear- ing Officer William I. Shooer. The Hearing Officer's rulings are free from prejudicial error and are hereby affirmed. Thereafter, the Employer filed a brief. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Jenkins, and Zagoria]. Upon the entire record in this case, the Board finds : 1. The Employer is a Delaware Corporation with its principal office and place of business in the District of Columbia where it is engaged in the ownership and management of real property. We find that it will effectuate the policies of the Act to assert jurisdiction herein." 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 Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Employer operates two apartment buildings, one an 8-story structure containing approximately 270 units , most of which are " The Westchester Corporation, 124 NLRB 194. 159 NLRB No. 11.