Holiday Inn of Dunkirk-Fredonia

HOLIDAY INN OF DUNKIRK-FREDONIA 461 Dunkirk Motor Inn, Inc., d/b/a Holiday Inn of Dunkirk-Fredonia and Amalgamated Meatcutters and Butcher Workmen of North America , Local 34, AFL-CIO, Petitioner . Case 3-RC-5678 June 12, 1974 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on May 11, 1973, under the direction and supervision of the Regional Director, among the employees in the stipulated unit.' The tally of ballots furnished the parties at the conclusion of the election showed that of approximately 67 eligible voters 43 cast ballots of which 20 were for and 18 against the Petitioner, and 5 were challenged.2 The challenged ballots were sufficient in number to affect the results of the election . Thereafter, the Employer timely filed two objections to conduct affecting the results of the election. Pursuant to the Board's Rules and Regulations, Series 8 , as amended, the Acting Regional Director conducted an investigation and, on June 8, 1973, issued and duly served on the parties his report in which he recommended that the challenges be sustained, that the objections be overruled, and that the Petitioner be certified as the bargaining repre- sentative of the employees. Thereafter, the Employer filed exceptions to the Acting Regional Director's finding that Nichols, Straight, and Hancock were supervisors and were therefore not entitled to vote. The Employer also took exception to the Acting Regional Director's failure to find merit in Objection I which alleged that the Petitioner's offer during the week preceding the election to waive the initiation fee for "those employees presently employed" constituted coercive conduct that interfered with the election. On August 22, 1973, the Board issued a Decision and Order3 adopting the Acting Regional Director's findings and recommendations with respect to the objections and the challenged ballots of Addabbo and Richmond and directing a hearing on the challenged ballots of Nichols, Straight, and Han- cock. A hearing was held on September 19 and 20 and October 10, 1973, before Hearing Officer L. W. Tucker. Both Employer and the Petitioner participat- ed and were given full opportunity to examine and cross-examine witnesses and to introduce evidence bearing upon the issues. On October 25, 1973, the Hearing Officer issued his report in which he found that Straight was an employee and that Nichols and Hancock were supervisors within the meaning of the Act. He therefore recommended that the challenge to Straight's ballot be overruled and that the challenges to the ballots of Nichols and Hancock be sustained. He therefore recommended that Straight's ballot be opened and counted and that a revised tally of ballots and certification of representative be issued. Thereafter, the Employer filed exceptions to the Hearing Officer's report and a supporting brief in which it "reasserts" Objection 1 and also argues that Nichols and Hancock were employees rather than supervisors. The Petitioner filed a brief in opposition to the Employer's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the Hearing Officer's report, the exceptions, the briefs,4 and the entire record in this proceeding, and hereby adopts the Hearing Officer's finding and recommendations, as modified below.5 We agree with the Hearing Officer that Assistant Housekeeper Hancock is a supervisor within the meaning of the Act. The record is clear that Hancock, who is salaried and receives no overtime I Eligible to vote were those who were employed during the payroll period ending March 23, 1973. 2 John Addabbo, Fleury Richmond, Sandra Ann Nichols, John Leslie Straight, and Ruth Alice Hancock. 3 Unpublished. 4 As indicated above , the Employer in its brief "reasserts" its objection concerning the Petitioner's offer to waive the initiation fee for those presently employed. This offer was not conditioned upon the expression by any employee of support for the Union in any form during the electoral process. Moreover, any denial of the waiver to new employees hired after the date of the offer could not have affected the election because said employees would not have been eligible to vote in the election . Accordingly, we find that the waiver does not fall within the proscription of the Supreme Court's decision in N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270 (1973). We therefore affirm our holding as to the propriety of the Acting Regional Director's finding that the waiver did not interfere with the election. See Endless Mold, Inc., 210 NLRB No. 34. 5 Although we agree with the Hearing Officer's conclusion that Straight is an employee and was therefore eligible to vote, we do not adopt the recommendation that Straight's ballot be opened and counted as his vote would not affect the results of the election . Accordingly, we shall issue a Certification of Representative on the basis of the Acting Regional Director's tally of ballots which shows that the Petitioner received a majority of the valid votes cast. 211 NLRB No. 56 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay, oversees the work done by the maids assigned to one of the two floors of the motel,6 inspects the rooms which they clean, exercises independent judgment in ordering the maids to correct the deficiencies in their work,7 grants time off to maids and replaces them in the event of illness, participates in interviewing applicants whose qualifications she discusses with the housekeeper, regularly replaces and performs the functions of the housekeeper on her days off, and attends managerial meetings.8 In view of the foregoing, particularly Hancock's authority to order maids to take corrective action when she deems it necessary, we find that Hancock responsibly directs the maids in the performance of their work. Accordingly, we conclude in agreement with the Hearing Officer that the challenge to the ballot of Hancock was properly sustained in view of her position as a supervisor.9 Our dissenting colleague obscures the issue by labeling as "routine" the duties which Hancock performs with respect to overseeing the maids' work and giving orders to them. The test of responsible direction does not depend on the complexity and difficulty of the maids' work or of the corrective measures invoked by Hancock. Adoption of that test would unrealistically rule out a finding of responsible direction in all situations where the work involved does not require a high degree of skill and technical competence. The proper test, which is met herein, is that Hancock exercises independent judgment with- out consultation with the housekeeper in ascertaining the deficiencies in the maids' work, however prosaic and uncomplicated, and utilizing the authority to order that the work be done correctly. Although our colleague also points out that Hancock does some cleaning work, the fact does not render nugatory our finding as to Hancock's supervi- sory status which is based on the undisputed evidence that she devotes her time principally to the duties described above.10 CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Amalgamated Meatcutters and Butcher Workmen of North America, Local 34, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate in paragraph 4 of the Decision and Order for the 6 Innkeeper Ken King testified that Hancock or Housekeeper Leola Fitzpatrick, an acknowledged supervisor, "makes the initial decision" as to assignments. I Similarly, Fitzpatrick is in charge of the maids working on the other floor. R Although Hancock's testimony was uncertain on this point, both purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. CHAIRMAN MILLER, concurring in part and dissenting in part: I cannot agree with my colleagues' finding that Ruth Alice Hancock is a supervisor within the meaning of Section 2(11) of the Act which defines the term supervisor as: [A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if in connec- tion with the foregoing the exercise of such authority is not of a merely routine or clerical in nature, but requires the use of independent judgment. This provision requires that, to be a supervisor, one must have authority to exercise independent and effective judgment in at least one of the areas of authority enumerated. In my view, the record here shows that Hancock has no such authority in any of the said areas. My colleagues find that Hancock is in charge of a crew of maids, exercises independent judgment in ordering maids to correct deficiencies in their work, and grants them time off in the event of illness. I find nothing in the record to support the finding that Hancock is in charge of a crew of maids or, indeed, that maids were assigned in crews. Rather it appears that the housekeeper, not Hancock, assigned each maid to prepare certain rooms; and Hancock was assigned to inspecting rooms on one floor. In addition Hancock performed maid's work and other routine chores such as counting linen. The inspection chore consisted of checking the rooms to insure that each was clean and contained all the prescribed articles; such as stationery, fly swatter, and informa- tional materials. If the inspection revealed that the room did not meet the Inn's standard of cleanliness, Hancock would either clean it herself or tell the maid responsible for the room that a sink was dirty or a mirror needed cleaning. She could not, however, discipline or reward employees or effectively recom- mend such action. Nothing in this inspection process Fitzpatrick and King testified unequivocally as to Hancock's presence at these meetings. 9 Island Holidays, Ltd. d/b/a Coco Palms Resort Hotel, 201 NLRB 522; Howard Johnson Company, 201 NLRB 376. iO In this connection, it is noteworthy that Fitzpatrick sometimes places missing supplies in a room and also does cleaning work at times HOLIDAY INN OF DUNKIRK-FREDONIA 463 required the use of independent judgment in the direction of work.11 In fact nothing could be more routine. The record also reveals that Hancock was not entrusted with discretion in granting or denying requests for time off due to illness. It was apparently the Inn's policy to require the maids to notify someone, even another maid, in the event they would be unable to report for work. Similarly, Hancock testified that on one occasion a maid reported to het that she would be unable to continue working because of illness. There is no evidence that Hancock was authorized to approve this absence; she was merely to report it to the housekeeper. My colleagues also find that Hancock regularly replaced the housekeeper on her days off, but fail to note that on these occasions she did not assume the supervisory authority of the housekeeper. The house- keeper resided at the Inn and was usually available when necessary. In her absence, any unusual problem which would require the attention of a supervisor was taken to the innkeeper or the assistant innkeeper. Hancock simply assumed the routine chores of the housekeeper, such as picking up the room reports from the front desk. By noting that Hancock participated in interview- ing applicants, my colleagues apparently find, as did the Hearing Officer, that Hancock possesses the authority to hire or effectively recommend hiring. In my view, such a finding is completely at odds with the record evidence. Thus, Innkeeper King, House- keeper Fitzpatrick, and Hancock all testified without contradiction that, since Fitzpatrick's return to the Inn, Hancock had no authority to hire or fire.12 While Hancock may have been present during employment interviews conducted by Fitzpatrick, her only function was to show the prospective applicant a dirty room and a clean room to demonstrate the nature of the work. She might also have been asked if she knew the applicant's reputa- tion in the community, but her views on whether an applicant should be hired were neither solicited nor offered. In these circumstances, the conclusion that Hancock did not possess the authority to effectively recommend hiring seems inescapable. Like other maids, Hancock wore a uniform, participated in the employee insurance program, and had the same lunch period.13 Although maids generally were hourly paid, Hancock received a salary. However, her weekly salary amounted to little more than a maid's weekly pay and was slightly less than half the weekly salary paid the housekeeper. Although my colleagues find that Hancock attends managerial meetings, Hancock testified she could not recall ever attending such a meeting since Fitzpatrick returned. It is also apparent from the testimony of the only maid who testified that Hancock was not regarded as a supervisor after Fitzpatrick's return. In sum, I find nothing in the record which could support a finding that Hancock is a statutory supervisor. To the contrary, it appears that Hancock is a very efficient maid, willing to perform the worst jobs that other maids refuse, and capable of performing additional routine tasks to assist the housekeeper. Cf. Dayton Motels, Inc. d/b/a Holiday Inn of Dayton, 192 NLRB 674, 675. Accordingly, in my view, the election results are still in doubt and the certification is being issued prematurely. 11 Cf. LaRonde Bar & Restaurant Inc. and/or Carrousel Motels, Inc, 145 not relevant to the determination of her current status. NLRB 270, 272; Janesville Auto Transport Company, 193 NLRB 874. 13 She did not enjoy the privileges provided the admitted supervisors; 12 Any authority Hancock may have had while acting as housekeeper is such as, company paid major medical insurance and free room and board.