Atlas Hotels, Inc.

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlas Hotels, Inc. and Bakery and Confectionery Workers International Union of America, Local No. 315. Case 21-CA-11635 May 22, 1974 SUPPLEMENTAL DECISION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 8, 1973, the National Labor Relations Board issued its decision in the above-entitled case finding that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to bargain with Local 315 of the Bakery and Confectionery Workers of America, the duly certified and exclusive representative of its bakery and bakery sanitation workers, Atlas Hotels, Inc., 205 NLRB No. 47. The Board, upon reexamination of the Regional Director's Decision and Direction of Election in the underlying representation case, 21-RC-12890 (review denied December 7, 1972), has concluded that that decision might be interpreted as relying on the Board's decision in Hotel Westward Ho, 178 NLRB 9, enforcement denied 437 F.2d 1110 (C.A. 9, 1971), and John Hammonds and Roy Winegardner, d/b/a 77 Operating Company, d/b/a Holiday Inn Restaurant, 160 NLRB 927, enfd. 387 F.2d 646 (C.A. 4, 1967). Inasmuch as the Board believes the unit sought herein to be of a wholly different type from that sought in either Westward Ho, supra, or Holiday Inn, supra, it has decided, sua sponte, to further explicate its decision in Atlas Hotels, supra. i The Respondent operates five transient hotels and a convention center in San Diego, California. Each of the hotels is headed by a manager and is divided into departments, each with its own department head. The employees at all the hotels are subject to common labor policies and receive the same general wage and fringe benefits commensurate with their job classifications. The Union sought to represent Respondent's bakery employees. The bakery is located in a separate room adjoining the butcher shop and kitchens in Respondent's Town and Country Hotel. Unlike the typical hotel bakery, this bakery provides all the baked goods, with the exception of hamburger buns and sliced bread, for all five of the hotels, as well as for the convention center. Although the bakery is located in the Town and Country Hotel, the record contains no evidence that the services provided by the bakery to that hotel differ from those provided by it to Respondent's other four hotels. The record does disclose that the ovens in the bakery have been used by nonbakery kitchen personnel to prepare nonbakery items for large banquets. It should be noted, however, that the ovens have been used at times when the bakery employees are not normally in the bakery, and the nonbakery items that have been prepared have been for the convention center and not for use in any of the hotels. The bakers currently employed in the bakery were hired as journeymen bakers or began as drivers or pot-washer assistants and gradually developed the skills necessary to follow recipes, mix basic ingredi- ents, and bake and decorate a variety of cakes, pastries, breads, and rolls. The bakers use different tools than the kitchen employees, work different hours, receive higher wages, are paid by the day rather than the hour, and are not required to punch a timeclock. With the exception of the deliveryman, they spend all of their time in the bakery and are not subject to call for banquets or other assignments.2 The bakery employees are separately supervised, have little contact with employees outside the bakery, and, with the exception of a limited number of employees taking part in Respondent's manage- ment training program,3 there is no evidence of interchange between the bakery and other parts of Respondent's operation. The Board has, in prior cases, found separate units of bakery employees to be appropriate. For example, in The Brass Rail, Inc., 110 NLRB 1656, the petitioner sought to represent the bakery employees working in one of the employer's five restaurants. The bakery, like the one in the instant case, provided all the baked goods for the five restaurants. In finding the unit of bakery employees to be appropri- ate, the Board stated that the bakers were a traditional departmental group who were functional- ly distinct and separate from the other employees of the employer, and that the petitioner had traditional- ly represented the interests of the employees sought. In Rich's, Inc., 147 NLRB 163, the employer operated a chain of retail department stores in Atlanta, Georgia. Each of the stores had a retail bakery outlet which was supplied by a bakery located on the sixth floor of Respondent's main store. The petitioner sought to represent the prod- uction employees working in the bakery. The facts in that case indicated that, as in the present case, the ' For the reasons stated herein , we are also of the view that the unit the bakery The Regional Director's finding that there were several found appropriate in Ramada Inns, Inc, 200 NLRB No 19, enforcement deliverymen is unsupported by the record. denied 487 F 2d 1334 (C A 9, 1973), is of a different type than that found 3 Employees taking part in the management training program are rotated appropriate in Atlas Hotels, supra through all facets of Respondent's operation , spending only short amounts 2 The deliveryman spends the remainder of his time doing odd jobs in of time in any one area 210 NLRB No. 86 ATLAS HOTELS, INC. bakery employees performed traditional baking duties, were separately supervised, had only limited contact with employees in other parts of the employer's operation, and worked hours differing from those of the rest of the employees. In finding the unit sought appropriate, the Board noted that the bakery was a traditional unit that operated like a wholesale commercial bakery. In light of the above, we find that the unit sought is a traditional departmental unit which is functionally distinct and separate from other parts of the Respondent's operation, and that Petitioner has traditionally represented the interests of the employ- ees sought. The Brass Rail, Inc., supra.4 Thus, we conclude, particularly in light of the fact that the bakery supplies five hotels and a convention center, that Respondent's bakery, rather than being an integral part of a hotel, is essentially a commercial bakery that happens to be located in a hotel. Rich's, Inc., supra. Therefore, we conclude, as did the Regional Director, that Respondent's bakery and bakery sanitation employees constitute a unit appro- priate for bargaining within the meaning of Section 9(b) of the Act, and we reaffirm our prior 8(a)(5) finding. MEMBER KENNEDY, concurring: I agree with my colleagues that Respondent's bakery and bakery sanitation employees constitute 4 Safeway Stores, Incorporated, 178 NLRB 412. Cf. Jordan Marsh Company, 174 NLRB 1265; F W Woolworth Company, 119 NLRB 480; and 797 an appropriate unit for bargaining. The bakery, which produces substantially all of the baked goods used at the Employer's five motels in San Diego, is not an integral part of the Town and Country Motel. The bakery employees have little contact with other employees or guests. I believe the peculiar facts here fall within one of the two exceptions recognized by the Ninth Circuit in the Hotel Westward Ho case.5 The court there recognized that "where the enterprise was not highly integrated" a unit less than hotelwide may be appropriate. The facts here are not compara- ble to those in Dunfey Family Corporation d/b/a Sheraton Motor Inn, 210 NLRB No. 85, in which I would have found an overall unit appropriate. Nor are the facts here comparable to those in West, Inc. d/b/a Holiday Inn Southwest, 202 NLRB 781, in which I joined two of my colleagues in dismissing a petition limited to housekeepers who cleaned 125 rooms. I disassociate myself from the rationale of my colleagues in their reliance upon The Brass Rail Inc., 110 NLRB 1656; Rich's, Inc., 147 NLRB 163, and cases cited in footnote 4 of the majority opinion. In my view the retail industry, like the hotel industry, involves unique operational problems. I believe my colleagues' reliance upon the cited retail cases is misplaced and unnecessary. Safeway Stores, Incorporated, 137 NLRB 1741 5 437 F.2d 1110 (1971), denying enforcement of 178 NLRB 9