Cranston Hilton Inn

DECISIONS OF NATIONAL LABOR RELATIONS BOARD First Mortgage Investors, A Trust d/b/a Cranston Hilton Inn and Michael H. Clark, Petitioner, and Local 217, Hotel and Restaurant Employees and Bartenders Union, AFL-CIO. Case 1-RD-824 June 14, 1977 DECISION ON REVIEW BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On December 10, 1976, the Regional Director for Region I issued a Decision and Direction of Election in the above-entitled proceeding, ordering a decertifi- cation election excluding the categories of function waiter, function waitress, and function bartender (hereinafter function employees) from the unit found appropriate on the grounds that these employees were not part of the existing contract unit. Thereaf- ter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, the Union filed a timely request for review of the Regional Director's Deci- sion, together with a supporting brief, contending, inter alia, that in making his unit finding the Regional Director departed from precedent. The Employer filed a brief in opposition. By telegraphic order dated January 4, 1977, the Board (Member Walther dissenting) granted the Union's request for review and stayed the election pending decision on review. 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 considered the entire record in this case with respect to the issues under review and makes the following findings: 1. The Petitioner seeks to decertify the Union as the representative of all groundskeepers, room service bellman, bartenders, coffee shop waiters and waitresses, dining room waiters and waitresses, cocktail hostesses, doorman, busboys, barboys, maids, housemen, maintenance men, night chef, roundsmen, short order cooks, pantry men, general kitchen help, poolboys, assistant housekeeper, store- room clerks, laundry workers, banquet cook, and assistant banquet cook at the Employer's Cranston, Rhode Island, facility, but excluding all other employees, guards, and supervisors as defined in the Act. The Union asserts this unit is inappropriate for a decertification election. The Employer and the Union have maintained a collective-bargaining relationship over a number of years. The most recent contract was executed on July 27, 1974, and expired on June 30, 1976. The Employer and the Union signed an agreement to extend the contract on an indefinite basis while current negotiations proceed with either party free to terminate upon 10 days' notice. The unit appropriate in a decertification election, where, as here, there is no existing certification on which to rely, must be coextensive with the currently recognized unit for collective bargaining between the employer and the union.1 The Union contends that the petitioned-for unit improperly excludes the function employees. The Employer argues that such a unit is appropriate for decertification since the current collective-bargaining agreement does not include this category in the unit description. The issue before us is whether the Employer and the Union have included function employees in the existing unit with other employees named in the petition. We find that they have. The Employer points to article I of the current agreement to support its contention that function employees are not included in the existing unit. Article I, entitled "Recognition" provides: The Employer recognizes the Union as the sole and exclusive collective bargaining representative for its employees in the classifications set forth in Appendix A attached hereto and made a part of this agreement. Appendix A mentions all of the job categories listed in the petition for decertification. It does not, however, mention function employees. Further, the Employer contends, during the 1976 negotiations for a new collective-bargaining agreement, the Union proposed to add function employees to the unit description and the Employer rejected this proposal. Standing alone the provisions cited by the Employ- er and the rejection of the Union's proposal would seem to support the contention that bargaining has not included function employees in the unit covered by the contract. However, as the Union points out with respect to terms and conditions of employment, the contract deals extensively with function employ- ees. Thus, it contains a provision, article XV, entitled "Banquet or Function Department," which applies exclusively to function employees. The 10 sections in this article set forth, inter alia, the requirements for referral of function employees to the Employer through a union hiring hall, the type of work required, the hours and wages, the amount to be received for overtime, and the manner for computing gratuities received by function employees. Section I W. T Grant Company, 179 NLRB 670(1969). 230 NLRB No. 20 186 CRANSTON HILTON INN of article XV provides that the following articles of the agreement apply to function employees: article X, "Discrimination"; article XX, "Termination"; article XIII, "Strikes and Lockouts"; and article XIV, "Grievances." Indeed, under the terms of article XIV, three function employees brought grievances that were arbitrated. Furthermore, func- tion employees are represented on the union negoti- ating committee and the 1976 negotiations have included bargaining about their wages, hours, and conditions of employment. All of these circumstanc- es convince us that, despite the omission of function employees from the contract's description of the unit, the parties have included them in that unit. We therefore find that the parties, by practice and by the coverage and application of the agreement to function employees, have included them in the existing unit.2 Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All groundskeepers, room service bellmen, bar- tenders, coffee shop waiters and waitresses, dining room waiters and waitresses, cocktail hostesses, doorman, busboys, barboys, maids, housemen, maintenance men, night chef, roundsmen, short order cooks, pantry men, general kitchen help, poolboys, assistant housekeeper, storeroom clerks, laundry workers, banquet cook and assis- tant banquet cook, function waiters, function waitresses, and function bartenders at the Em- ployer's Cranston, Rhode Island, facility, but excluding all other employees, guards, and super- visors as defined in the Act. 2. The Employer and the Union are in disagree- ment with respect to the voter eligibility requirements for function employees.3 The Employer argues that if function employees are allowed to vote their eligibili- ty should be based on a formula requiring the employees to have worked an average of I day (8 hours) a week for a 6-month period from October 1975 through March 1976.4 The Union requests that the Board find eligible to vote all function employees who worked in either of two calendar quarters immediately preceding the Direction of Election, and 2 We find no merit in the Employer's further contentions that function employees should be excluded simply on the basis that they are referred to the Employer by the Union. 3 We do not need to establish an eligibility formula for "on call" maids inasmuch as it appears they are all regular part-time employees and eligible to vote. Of course, either party is free to challenge the eligibility of an "on call" maid. I The Employer contends that the period of time subsequent to the filing of the decertification petition should be excluded on the grounds that since the Union, through the hiring hall arrangement, has the exclusive ability to determine who will work, it is in a position to establish regularity of also worked for the Employer in the same capacity during the calendar year preceding those quarters. To resolve the question of voter eligibility, it is necessary to examine the Employer's banquet busi- ness and the work history of function employees. The Employer's banquet business is somewhat irregular. On certain days of the week no functions may be scheduled while on other days several functions may occur. The average number of functions per month is in the range of 75 to 80. The banquet manager, in accordance with the terms of the contract, informs the Union of the number of function employees required for the week, and the Union refers employees to the Employer. Due to the fluctuating nature of the business the number of employees required for scheduled functions may change from day to day. According to the evidence presented by the Union, during the 13-week period immediately preceding the hearing, 44 banquet waiters and waitresses worked a total of 954 function shifts. Assuming 4 hours per function,5 these employees averaged 6.9 hours per week during the 13-week period. During that same period, 14 banquet bartenders worked a total of 147 function shifts averaging 6.5 hours per week.6 In light of the fluctuating nature of the Employer's banquet business and the regularity of employment evident in the work histories of function employees for a 13-week period, we conclude that neither the Employer's nor the Union's eligibility proposal is satisfactory. The proposal advanced by the Employer does not account for the fluctuations in the banquet business and is so restrictive that it would preclude from voting all the function employees who worked during the 13-week period immediately preceding the hearing, inasmuch as none of these employees averaged 8 hours a week even for a 3-month period, not to mention a 6-month period. The Union's proposal, on the other hand, fails to recognize the regularity of employment and is so broad that it would include employees who had only worked twice for the Employer, once during either of the calendar quarters immediately preceding the Direction of Election and once during the calendar year preced- ing those quarters. We find that a fairer result, in accordance with the reality of the situation, is reached by allowing to vote those function employ- employment of the employees it chooses to refer. We find no merit to this contention. s This is a rough figure. since luncheons range in duration from I to 3 hours, while dinners are from 1-1/2 to 4 hours. Nonetheless, it seems to represent fairly the average time of functions, particularly since the banquet manager testified that luncheons sometimes extend beyond 3 hours, and dinners beyond 4 hours. 6 The average hours worked is computed by assuming 8 hours for each function inasmuch as bartenders are paid for minimum shifts of 8 hours for each function. 187 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees who have worked an average of 6 hours per week over the 13-week period immediately preceding the eligibility date established herein. We shall, there- fore, limit eligibility of function employees to those who meet this standard. Accordingly, we hereby remand this case to the Regional Director for the purpose of conducting an 7 The Direction of Election is contingent on the Regional Director's finding that the Petitioner has an adequate showing of interest. 8 The Union's motion to dismiss the petition is hereby denied, inasmuch election pursuant to his Decision and Direction of Election,7 except that the unit is modified as stated herein.8 The payroll period for determining eligibility shall be that ending immediately before the date of issuance of this Decision. [Excelsior footnote omitted from publication.] as the Petitioner agreed to participate in an election in this case, regardless of the Regional Director's unit finding. 188