Holiday Inn of Oak Ridge, Tennessee

HOLIDAY INNS OF AMERICA, INC. Holiday Inns of America, Inc. d/b/a Holiday Inn of Oak Ridge, Tennessee, Employer and Local 150-T, Building Service Employees International Union, AFL-CIO. Case 10-RM-500 June 23, 1969 DECISION AND DIRECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Pursuant to a stipulation for certification upon consent election approved on October 22, 1968, an election by secret ballot was conducted on November 1, 1968, under the direction and supervision of the Regional Director for Region 10, among the employees in the stipulated appropriate unit. At the conclusion of the election the parties were furnished with a tally of ballots which showed that of approximately 67 eligible voters, 64 cast ballots, of which 30 valid votes were cast for the Union, 28 valid ballots were cast against the Union, and 6 voters cast challenged ballots. No objections to the election were filed. Inasmuch as the challenged ballots are sufficient in number to affect the results of the election, the Regional Director caused an investigation to be made of the issues raised by the challenges, and thereafter, on November 21, 1968, issued and caused, to be duly served on the parties his Report on Challenged Ballots. In his Report the Regional Director found Alce H. Rymer and Diana Watts not to be eligible voters and recommended that the challenges to their ballots be sustained. The Regional Director also found Dorothy L. Jenkins, Ronald E. Jenkins, Julia Bray, and Mary Eatherly to be eligible voters, and recommended that the challenges to their ballots be overruled, that their ballots be opened and counted and that a revised tally of ballots be issued and served on the parties. Thereafter, the Employer and the Union filed timely exceptions to the Regional Director's Report. On December 19, 1968, the Board issued an Order Directing Hearing, in which, in the absence of exceptions, it adopted pro forma the Regional Director's recommendation that the challenge to the ballot of Dorothy L. Jenkins be overruled,' and ordered that a hearing be conducted to resolve the issues with respect to the remaining 5 challenged ballots. Pursuant to the Board's Order, a hearing was held on January 21 and 22, 1969, before Hearing Officer Robert C. Batson . The Employer, the Union, and Counsel for the Regional Director appeared and participated. All parties were afforded full opportunity to be heard, to examine and 'In its Order the Board directed that the opening and counting of the ballot of Dorothy L. Jenkins be deferred pending the disposition of the remaining five challenged ballots. 176 NLRB No. 124 939 cross-examine witnesses, and to introduce evidence bearing on the issues. On February 24, 1969, the Hearing Officer issued and duly served on the parties his Report and Recommendation on Challenged Ballots, in which he recommended that the challenges to the ballots of Alce H. Rymer, Ronald E. Jenkins, Julia Bray, and Diana Watts be sustained, and that the challenge to the ballot of Mary F. Eatherly be overruled. The Hearing Officer also recommended that the ballots of Mary F. Eatherly and Dorothy L. Jenkins be opened and counted, that a revised tally of ballots, including the count of the ballots of Eatherly and Dorothy L. Jenkins, be prepared and served upon the parties, and that an appropriate certification be issued. Thereafter the Employer and the Union filed timely exceptions with supporting arguments. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, including the exceptions and supporting arguments filed by the parties, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Union is a labor organization claiming to represent certain employees of the Employer. 3. 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 stipulated, and we find, that the following described unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of the Employer at its Oak Ridge, Tennessee, establishment, including desk clerks, night auditor, inspectors, maids, laundry workers, maintenance employees, porters, cashier-hostesses, waitresses, busboys, cooks, salad girls, kitchen porters, bartenders, and secretary to the Innkeeper, but excluding casual employees, professional employees, guards, and the Innkeeper, the Assistant Innkeeper, the housekeeper, and all other supervisors as defined in the Act. 5. The Board has considered the Employer's exceptions and argument to the Hearing Officer's findings and recommendations that the challenges to the ballots of Ronald E. Jenkins, Julia Bray, and Diana Watts be sustained. Upon the entire record, we find that the exceptions are without merit, and we shall, accordingly, adopt the Hearing Officer's recommendations to this extent. The Union excepts to the Hearing Officer's findings with respect to Mary F. Eatherly and Alce H. Rymer, contending the Eatherly should have 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been found ineligible because on the date of the election she was employed only as a casual employee, and that Rymer should have been found eligible, notwithstanding his status as a social security annuitant. For the reasons stated herein, we find merit in the Union 's contentions. MARY EATHERLY Eatherly was first employed by the- Employer in May 1968, as a full-time desk clerk. On or about September 1, 1968, Eatherly gave the Employer's Innkeeper, Sidney Hill, 3 weeks' notice of intent to terminate her employment , advising -Hill that she would be moving to Atlanta, Georgia, where her husband had obtained employment.' Later, during the month of September, Eatherly had a second conversation with Hill in which she advised that the permanency of the move to Atlanta was undecided, but that in any event she would have to go to Atlanta for 3 weeks to open an apartment for her husband. Eatherly also informed Hill that her parents resided in Oak Ridge, that she would be returning to Oak Ridge from time-to-time, and she asked Hill if she could return to work on a part-time basis after 3 weeks in Atlanta . Hill agreed that Eatherly could take a 3 weeks leave of absence to go to Atlanta, and she could return to work on a part-time basis on those occasions when she returned to Oak Ridge and work was available. Eatherly was last employed on a full-time basis on September 28, 1968,' and on the following day she moved her residence to Atlanta. The record reflects that Eatherly returned to the Employer's Oak Ridge establishment sometime before the election , but did not work. On October 25, 1968, Eatherly again returned, advised that she was going to be in Oak Ridge, and asked that she be scheduled to work on a part-time basis. According to Hill, he granted Eatherly's request and thereafter he scheduled her on a weekly basis and Eatherly worked only when called to work. The Employer's payroll records reveal that Eatherly worked 5 full days from October 25 through October 31, and 3 full days from November 6 through November 8, 1968. Although the payroll records in evidence do not reveal Eatherly's work schedule following November 8, other evidence reveals that she worked only 1 or 2 days from that date to December 1, 1968, and Eatherly did not work at all after the latter date. According to Hill's testimony, Eatherly moved to Atlanta on a permanent basis in late November, after which Hill arranged for her employment with a sales office of the Employer's parent Company in Atlanta, where Eatherly began work on December 16, 1968. 'Eatherly did not testify , but her prehearmg affidavit given to a Board agent on November 8, 1968, was admitted in evidence without objection by any party. The eligibility period stipulated to by the parties was the 2-week payroll period ending on October 11, 1968. We agree with the Hearing Officer's findings that Eatherly was employed during the payroll eligibility period, and that her prior notice of intent to quit did not, of itself, deprive her of eligibility to vote in the election. We disagree, however, with the Hearing Officer's finding that the continuity of Eatherly's employment was not broken and that she had resumed her employment on a part-time basis prior to the date of the election. At the time Eatherly left her full-time employment on September 28, 1968, the Employer had only agreed that she could work, if work was available, on those then unspecified occasions in futuro when she returned for visits to Oak Ridge from Atlanta, a distance of more than 200 miles. Subject to these conditions, i.e., the availability of work and Eatherly's presence in Oak Ridge at unspecified intervals, her employment status after September 28, 1968 was not attended by the regularity necessary to warrant the conclusion that she was a regular part-time employee. On the contrary, Eatherly's employment on and before the date of the election was, at best, of a casual and intermittent nature, and as casual employees were excluded from the unit by stipulation of the parties, we shall sustain the challenge to Eatherly's ballot. ALCE H. RYMER Rymer., who is a social security annuitant, was first employed by the Employer as a pot washer in the kitchen of its restaurant on August 11, 1966. At the time of his hire Rymer explained to Johnson, the Employer' s then Innkeeper , that he would be able to work only until his earnings reached the level allowed under social security regulations, and Rymer asked if it would be agreeable if he took a leave of absence when this time came. Johnson agreed . In November 1966 Rymer's earnings had reached the approximate level of $1,500 for the year,' and he requested and was granted a leave of absence. While Rymer was on leave in 1966, the Employer paid his pro-rata share of an insurance premium covering the employees, and deducted the amount from his wages after he returned to work. Rymer returned to work for the Employer in the same classification on or shortly after January 1, 1967, and he continued to work until May, at which time he joined with other employees in a strike which lasted for approximately 2 months. After the strike Rymer returned and continued to work until November when his earnings reached the maximum allowable for the year. At that time Rymer, as he had in 1966, asked for and was granted a leave of absence , with the understanding that he would return after the beginning of the new year. After January 1, 1968, Rymer returned to work in the kitchen and continued to work until August 22, 1968. 'Rymer had earnings of approximately $900 in 1966 before he began work for the Employer , and therefore worked only until his earnings from the Employer added $600 to this amount. HOLIDAY INNS OF AMERICA, INC. Shortly prior to August 22, 1968, Rymer informed Innkeeper Hill that his earnings had approached the maximum allowable amount and again asked for a leave of absence. According to Rymer, Hill agreed and asked if Rymer would be willing to return about February 1, 1969, to which Rymer agreed. According to the testimony of Hill, he did not agree to give Rymer a leave of absence, but rather informed him that if he had to leave work to limit his earnings, the Employer would consider him as having quit. Nevertheless, Hill admitted that he did tell Rymer that the Employer would consider him for return to work in March 1969, and that he also furnished Rymer with the name and address of the insurance carrier and instructions as to the monthly amount Rymer would have to pay as his share of the premium during the period of his absence. We find no merit in the Employer' s argument that Rymer quit and was, therefore, not employed on either the eligibility date or the date of the election. The treatment accorded Rymer in August 1968, in allowing him to leave work temporarily in order to limit his earnings , was precisely the same as the treatment accorded him in the prior 2 years. Moreover, such treatment was fully consistent with the policy followed by the Employer with respect to another social security annuitant , John Smith, who was granted a leave of absence for the purpose of limiting his earnings in each year from 1960 through 1968. As it had in the prior 2 years, the Employer made provision in August 1968 for Rymer to pay his prorata share of his insurance premium, and the Employer continued to pay its share.' It was not until December 31, 1968 that Rymer received notice that he had been terminated, and the Employer admittedly did not notify its Memphis headquarters until earlier that same month of its contention that Rymer had quit his job. Accordingly, and without the necessity to decide Rymer's employment status on or after December 31, 1968, we find that he was employed by the Employer on both the eligibility date and the date of the election. On the basis of the foregoing evidence, the Hearing Officer found Rymer to be a superannuated employee who limits his working time and earnings so as not to decrease his social security annuity, and under prevailing Board precedent was not eligible to participate in the election. The Union contends, nevertheless, that in spite of Rymer 's status as a social security annunitant who voluntarily limits his working time and earnings, Rymer does enjoy a close community of interest with other employees in the unit, and the challenge to his ballot should be overruled. We are now persuaded, by a recent court of appeals decision,' that the Union's contention has merit. Accordingly, employees who are otherwise 'Hill testified that he was not positive, but assumed that the Employer paid its share of the premiums on Rymer's insurance for the last 4 months of 1968. The record also reveals that in January 1969 the insurance carrier paid a bill for hospitalization incurred by Rymer in November 1968. 941 within the appropriate unit will not henceforth be excluded and found ineligible to participate in a Board-conducted election solely for the reason that they limit their working time and earnings so as not to decrease their social security annuity, and earlier cases to the contrary are hereby overruled.7 In this case the record is clear that Rymer is employed in a classification within the bargaining unit. He has been employed by the Employer in its kitchen since 1966, and except during the periods of his annual leave of absence he worked a regular schedule of 5 days per week. During the eligibility period and on the date of the election there was no indication that Rymer would not continue to work for the Employer on a similar schedule in the future. Employed as he was in the kitchen, Rymer enjoyed close contact and association with other employees in the unit, and the record reveals that his employment benefits, including insurance, profit sharing and vacations, are similar to the benefits enjoyed by the full-time and other regular part-time employees. Inasmuch as Rymer, although on leave of absence, was regularly employed within the unit, we shall overrule the challenge to his ballot. In accordance with the findings herein, the challenges to the ballots of Ronald E. Jenkins, Mary Bray, Diana Watts, and Mary Eatherly are hereby sustained. The challenge to the ballot of Alce Rymer is hereby overruled, and we shall direct that Rymer's ballot, together with the ballot of Dorothy L. Jenkins, be opened and counted. DIRECTION It is hereby directed that the Regional Director for Region 10 shall, within 10 days from the date of this Decision and Direction, open and count the ballots of Alce Rymer and Dorothy L. Jenkins, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said ballots; and take such further steps as may be necessary in accordance with the Board's Rules and Regulations. MEMBERS BROWN AND JENKINS, dissenting: With all respect for our colleagues and the Court of Appeals in the Indianapolis Glove case cited by them, we are not persuaded that the established law respecting the voting eligibility of social security annuitants warrants reversal. Taunton Supply Corporation, 137 NLRB 221 and prior and subsequent similar cases; cf., also, our dissent in Clark-O'Neill Inc., 147 NLRB 370. 'Indianapolis Glove Co v. NLR.B., 400 F.2d 363 (C.A 6), reversing 166 NLRB No. 61 'For example see Taunton Supply Corporation, 137 NLRB 221; Horn & Hardart Company, 147 NLRB 654, and John P Krystyniak d/b/a Red & White Super Markets, 172 NLRB No. 210.