Atlanta Hilton & Towers

ATLANTA HILTON & TOWERS 87 ACL Corporation d/b/a Atlanta Hilton and Towers and International Brotherhood of Firemen and Oilers, AFL-CIO. Cases 10-CA-18929 and 10- RC-12727 6 December 1984 . DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS Upon a charge filed by the Union in Case 10- CA-18929, 26 January 1983, 1 the General Counsel of the National Labor Relations Board issued a complaint 2 1 February 1983 against the Company, the Respondent, alleging that it has violated Sec- tion 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 4 January 1983, following a Board election in Case .10-RC-12623, the Union was certified as the exclusive collective- bargaining representative of the Company's em- ployees in the unit found appropriate. (Official notice is taken of'the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 7 January the Company has refused to bargain with the Union. On 7 February the Company filed its answer admitting in part and denying in part the allegations in the complaint. On 18 March the General Counsel filed a Motion for Summary Judgment. On 24 March the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. - The Company's answer admits its refusal to bar- gain, but attacks the certification's validity on the basis that the unit in which the election was direct- ed is inappropriate for collective-bargaining pur- poses. The General Counsel argues that all material issues have been previously decided. In Case 10-CA-18929, the record, including the record in Case 10-RC-12623, reveals that on 9 August 1982, after a hearing, the Regional Director issued a Decision and Direction of Election in which, inter alia, he found appropriate a unit con- sisting essentially of all full-time and regular part- time housekeeping, laundry, public facility, and ex- An dates are in 1983 unless otherwise indicated 2 Hotel, Motel & Restaurant Employees Union, Local 151. AFL-CIO was permitted to Intervene in this proceeding hibit employees employed at the Respondent's At- lanta, Georgia facility. 3 On 23 Augiist 1982 the Re- spondent filed with the Board a request for review, contending that the unit was inappropriate. On 10 September 1982 the Board granted the request for review. The election was held the same day, but the ballots were impounded pending resolution of the request for review. On 15 December 1982 the Board affirmed the Regional Director's Decision and Direction of Election, and directed that the impounded ballots be opened and counted. On 20 December 1982 the impounded ballots were count- ed. The tally showed that of approximately 219 eli- gible voters, 98 cast valid ballots for the Union, 8 for the Intervenor, and 63 against both labor orga- nizations; there were 4 nondeterminative chal- lenged ballots. On 4 January 1983 the Regional Di- rector certified the Union as the exclusive collec- tive-bargaining representative -of the employees in the unit found appropriate. On 3 March the Regional Director for Region 10 issued a Decision and Direction of Election in Case 10-RC-12727 in which he found appropriate the petitioned-for unit consisting essentially of all full-time and regular part-time food and beverage employees at the Respondent's Atlanta facility.4 Thereafter, the Employer filed a timely request for review, challenging the Acting Regional Director's unit determination and contending, inter aim, that the only appropriate unit consists of all employees employed at the facility, but excluding property operations department 5 employees, confidential 3 The precise unit description is as follows All full-time and regular part-time housekeeping, laundry and public facility and exhibit employees employed by the Employer at . Its Atlanta. Georgia. facility located at 255 Courtland Street. Atlanta, Georgia including aides, on-call aides, turn-down aides, attendants, the payroll clerk, -dispatchers, night cleaners, stockroom attendant, locker room attendant. drapery attendant, washman, chuteman, laun- dry attendant, linen runner, seamstress, uniform room attendant. meeting room attendant, banquet houseman and assistant team lead- ers. excluding office clerical employees. secretaries, property oper- ations employees, front office employees, food and beverage employ- ees, steward employees, room service employees, communication employees, the hostesses, guest greeters, purchasing employees, human resources employees, the tower clerk, marketing and sales employees, accounting employees, security employees, guards and supervisors as defined in the Act 4 The precise unit description is as follows • All full-time and regular part-time food and beverage employees, steward employees, room service employees, guest services employ- ees, bellmen, cashiers, and stockroom attendant, excluding office clerical employees, secretaries, property operations employees, com- munication employees, housekeeping, laundry and public facility and exhibit employees, human resources employees, purchasing employ- ees, the Tower clerk, marketing and sales employees, accounting em- ployees, security employees, guards and supervisors as defined by the Act 5 On 26 February 1980 in Case 10-RC-11941, the Union was certified as the bargaining representative in the follow ing unit, and entered Into-a collective-bargaining agreement which expired 29 May 1983 Continued 273 NLRB No. 9 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, security officers, guards/watchmen and -giipervisors as defined in the Act. The , Board, by telegraphic order dated 26 August 1983, (Member Zimmerman, dissenting), granted the request for review. In light of the overlapping issues presented in Cases 10-RC-12727 and 10-CA-18929, the Board has decided on its own Motion to consolidate the cases for decision. On the entire record, 8 the Board makes the fol- lowing findings, - The Atlanta Hilton and Towers •is a 30-story hotel in Atlanta; Georgia. The hotel derives ap- proximately 83 percent of its gross revenues from its convention business. The hotel has 1250 rooms and employs about 832 regular full-time nonsuper- visory employees. The hotel has 4 restaurants, 3 cocktail lounges, a nightclub, recreational facilities, 52 meeting rooms, and an exhibition hall. Because it is mainly a convention hotel, the Re- spondent's facilities and organizational structure have been designed specifically for the purpose of servicing convention business. The Respondent's operations are closely coordinated and functionally integrated. The conventions require each depart- ment to cooperate with the others to provide the promised services. In Case 10-RC-12623, the Re- gional Director found that: [T]he hotel and tower are operated in a highly integrated and centralized manner, especially so because of the high volume of its conven- tion business and the special needs of its con- vention guests. Thus, the front office, sales, ca- tering, reservations, food and beverage, and communications personnel are involved in sell- ing conventions to prospective customers and in an effort to ascertain customers' needs during their stay at'the Employer's facility. The Respondent has an extensive internal com- munications and recordkeeping system. This con- sists of a MICOR computer system, 7 a pneumatic All full-time and regular part-time employees employed by the Re- spondent at its Atlanta, Georgia facility, in the Property Operations Department including electricians, T V technicians, mechanics, op- erators, plumbers, helpers, carpenters. carpet-men, upholsterers, printers and locksmith, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act In Case 10-RC-12182, the Regional Director dismissed the Union's pe- tition to represent a unit confined to "PBX operators" in the Employer's communications department 6 In Case 10-RC-12727, the parties requested the Regional Director to take official notice of the records in the two earlier representation pro- ceedings, Cases 10-RC-12182 and 10-RC-12623 The MICOR system is used by employees in accounting (cashiers), housekeeping, front desk, and communications MICOR's information In- cludes guest names, guest room locations, guest conventions, and room status tube system linking the front desk and other parts of the facility, communications (PBX) and food and beverage outlets, a beeper paging system, and a walkie-talkie system. The booking, planning, and execution of conven- tions require close coordination among all hotel areas. The hotel's organization is designed to pro- vide numerous services for the convention as ar- ranged through contractual agreement. Preconven- tion meetings are held to review a convention resume that outlines the convention functions and particular roles of each area. The convention resume is circulated to approximately 40 different departments and contains instructions for each. The hotel's management is highly centralized. The Employer introduced numerous memoranda from General Manager Utnik to various depart- ment heads, assistant department heads, and assist- ant area managers, which demonstrate Utnik's close involvement in minor details of the hotel's day-to-day operation. 8 Individual department heads oversee routine operations in their areas, but do not establish basic work policies or have final control over department functions. The hotel's human resources department estab- lishes uniform personnel policies, including wages and benefits, 8 which apply to all hotel employees except property operations employees whose terms and conditions of employment have been specified in a collective-bargaining agreement. Individual de- partment heads do not determine personnel poli- cies. Human resources screens all applicants and refers those selected to the department managers for interviews." The director of human resources must approve all personnel decisions, including any discipline supervisors recommend. Hotel employees have an employee cafeteria, employee locker rooms, and a recreation program. There are em- ployee training programs throughout the hotel in which employees of different departments partici- pate. Some employees receive cross-training in 8 Some examples of the day-to-day Issues with which Utnik has been involved Include the policy regarding furnishing meals to police officers, cleaning of guest elevator doors, availability of rollaway beds, the pur- chase of a knife for the dessert wagon, use of employee name tags, the maintenance and cost of shower curtains, approval of a front office clerk's vacation period, guest entrapment in elevators, and the cleaning of the lower ground floor area 9 A hotelwide wage and salary prograim sets pay rates for each job classification, including the hiring rates and frequency and amounts of pay increases Individual supervisors and department heads do not deter- mine when their employees receive a pay increase Among other hotel- wide personnel policies the human resources department formulates, with Utnik's approval, are work hours, disciplinary procedures, dress stand- ards. holidays, night differential pay rates, benefit improvements, funeral leave, vacation policy. Jury duty, overtime pay, and probation periods All hotel employees except property operations employees receive the same fringe benefits i ° Each manager makes the final hiring decision from among those that human resources refers ATLANTA HILTON & TOWERS other departments. For example, some communica- tions employees • received training to make them more aware of what goes on in the front office. There is also a "priority one" training program which covers any employee who has face-to-face contact with guests. The hotel , has a uniform transfer policy. The human resources department posts openings and employees from any area may apply. The employ- ee's current supervisor must sign a form and human resources must approve the transfer. There have been approximately 27 transfers in 2 years from housekeeping to other departments: There have also been transfers from the food and beverage and stewards area to housekeeping, and transfers from communications to housekeeping, secretary, front office, and accounting. Other transfers have oc- curred from , food and beverage to sales, front office, and accounting; from office to food and beverage; from housekeeping to the front desk; from greeter to catering; from bellstand to food and beverage; from communications to accounting; from room service to secretary; from personnel to catering; from public facilities to security; and from stewards to bellstand. Employees from different areas have frequent contact with employees from other areas.' 1 Exam- ples of contact between accounting personnel and other employees include the 'following. Front office cashiers issue keys to food and beverage employ- ees, restaurant cashiers, housekeeping, engineering, and laundry employees. Shipping and receiving employees deal with engineering, food and bever- age, laundry, and housekeeping employees in han- dling goods to be picked up by other departments or delivered. Night auditors have contact with res- taurant employees when they pick up reports and read registers in the restaurant outlets. Accounts payable clerks are involved with every department in obtaining approvals for payments of invoices." Restaurant cashiers occasionally assist the hostesses or greeters in the dining rooms. , Laundry employees have , contact with busper- sons from all food and beverage outlets, banquet employees, kitchen employees, the storeroom clerk, shipping and receiving, communications, catering, room service, and the bellstand. Employees from other departments come into contact with laundry employees when they bring laundry to be cleaned, and pick up clean laundry arid uniforms. ' 1 In finding a unit of only PBX operators inappropriate in Case 10- RC-12182, the Regional Director stated, "The record is replete with evi- dence of frequent daily contacts among employees in almost every area of the hotel as they attend to the needs of convention guests" 2 Generally, rank-and-file employees in other departments are not in- volved with this function unless there is a question about receipt of mer- chandise Housekeeping employees maintain contact with the front desk cashiers through the MICOR syStem regarding all room status changes. The front desk provides house counts go housekeeping for budget- ing and scheduling purposes. Housekeeping em- ployees have contacts with food and beverage em- ployees when they clean restaurant outlets. House- keeping employees work with public facilities em- ployees in cleaning areas around the meeting rooms. Food and beverage employees have contact with housekeeping and laundry employees as already de- scribed. They also keep contact with the front office on house count and-the pay-in-advance guest list. Food and beverage employees have contact with restaurant cashiers and night auditors. They work closely with the inventory control office. Convention services advises food and beverage as to the food and beverage services each convention requires. Food and beverage employees work with housekeeping employees in setting up VIP rooms. Communications employees assist cashiers re- garding guest telephone charges (the pneumatic tube system is used for this purpose). Operators take restaurant reservations when food and bever- age receptionists are not available. Restaurant cash- iers call operators to verify guest room numbers, and operators call outlets to locate guests. Opera- tors give out information regarding the hours of the various food and beverage outlets. Housekeep- ing employees call operators if a message light is left on in a vacant room or if a telephone is missing or damaged. Public facilities employees notify op- erators when a telephone needs to be removed from a meeting room. All departments nOtify com- munications when repairs are necessary. There is some interchange of personnel between departments, mainly under emergency,. situations. Accounting personnel have worked as bartenders, and credit personnel 'as hostesses. During an ice storm, accounting personnel assisted housekeeping. Catering, sales, and accounting personnel have been used as bar cashiers. Housekeeping employees sometimes fill in at the laundry and uniform room. A housekeeping employee fills in for the , restroom attendant in Nikolai's Roof Restaurant every week. Housekeeping employees have filled in as waitress- es or buspersons, and help in shipping and receiv- ing when a large order arrives. Housekeeping em- ployees also occasionally substitute for lobby por- ters (bellstand). In Arlington Hotel Co., 126 NLRB 400, 404 (1960), the Board announced a general rule of hotel unit determination, finding only a hotelwide unit to be appropriate, holding, "in the hotel industry, all operating personnel have such a high degree of 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD functional integration and mutuality of interests that they _should be grouped together for -collec- tive-bargaining purposes." - The Board later retreated from the Arlington rule in 77 Operating. Co., 160 NLRB 927, 929-930 (1966), enfd. -387 .F.2d 646 (4th Cir. 1967), and ap- proved a unit limited to restaurant employees. The Board stated: - • - Since -Arlington, the Board has gained much experience and better insight into the nature of the - hotel-mOtel industry. Although, as was held in Arlington; employees in the various fa- cilities Of hotels and motels have a basic mutu- -ality of interest, neither their functions nor their mutual- interests are in all cases integrated to such a high degree that an overall unit should be found the only appropriate unit. . . . Arlington took a valid principle (if functions and mutual interests are highly integrated, an overall unit alone is appropriate) and fashioned from it an inflexible rule to be applied to all hotels and motels. But, because our .experience 'has-indicated- that such a degree of integrated functions and eniployee interests does not exist in every hotel or motel, we shall hereafter ' consider each case on the facts peculiar to it in order to 'decide wherein lies the true communi- ty of interest among particular employees. In making unit determinations in the hotel indus- try; the Board applies the same general criteria used in other, industries, including , "distinctions in skills and functions Of particular employee groups, their separate supervision, the employer's organiza- tional structure •and differences in wages and hours,"" as well as integration of operations, and employee transfer, interchange, and contacts. In applying these criteria in Cases 10-RC-12727 and 10-RC-12623, the Regional Director found that "there is , not such a high degree of functions and mutuality of interest" between the employees in the, requested units and other hotel and tower employees as to require a single combined unit. We disagree. After carefully examining the facts of the instant case, we find that the units the Regional Di- rector . found appropriate in Cases 10-RC-12727 and .10L-RC-12623 do not represent "the true com- munity of interest" of the hotel's employees, and are inapprOpriate for collective-bargaining pur- poses. 14 " 13 Regency Hyatt House, 171 NLRB 1347, 1348 (1968) 14 See Holiday Inn Alton,_ 270 NLRB 1405 (1984), Holiday Inn South- west, 202 NLRB 78L(1973), Holiday Inn, 214 NLRB 651 (1974), Days Inn of America, 216 NLRB 1035 (1974), Ramada Inns v NLRB, 487 F 2d 1334 (9th Cir 1973), in which "housekeeping Only" units were found ma- propnate As described above, the evidence discloses that the Respondent is a highly integrated operation. Each department is closely coordinated with the others in order to serve the needs of conven- tions." All employees are subject to the same per- sonnel policies, and share the same wage and bene- fit programs. There is a hotelwide wage and salary program which establishes pay rates and deter- mines increases. All employees receive the same fringe benefits and work under rules and policies the human resources department establishes. Indi- vidual gupervisors or department heads do not for- mulate or Change personnel- policies. Rather, the human resources department with .the- general man- ager's approval formulates of changes such poli- cies. Employees in different departments frequently have contact with employees in • other departments in performing their duties, as previously detailed. There is substantial evidence of transfers between departments and some evidence of interchange of duties, particularly in emergency situations. - A number of employees who perform similar functions in different departments were placed in separate units or excluded from both units. For ex- ample, the stockroom attendant (housekeeping) was included in the unit found appropriate in Case 10- RC-l2623, the food storeroom. clerk (food, and beverage) was included in the _unit found appropri- ate in Case 10-RC-12727, but the general store- room clerk (accounting) was excluded from both units. Other 'examples include the locker room at- tendant (housekeeping) (included in Case 10-RC- 12623) and the restroom attendant in Nikolai's (food and beverage) (included in Case 10-RC- 12727); the banquet helper (stewards) (included in Case 10-RC-12727) and the banquet houseman (public facilities) (included ih Case 10-RC-12623); the night cleaners (housekeeping) (included in Case 10-RC-12623) and the night cleaners' (stewards) (included in Case 10-RC-12727); the lobby porter (bellstand) (included in Case 10-RC-12727) and' the housekeeping attendant (included in Case 10-RC- 12623); and food and beverage cashiers (included in Case 10-RC-12727) and front desk cashiers '(ex- cluded from both units). In Case 10-RC-12727 the Regional Director at- tempted to justify his unit determination in terms of a "white collar/blue collar" distinction under Re- 15 See Westward-Ho Hotel, 437 F 2d 1110 (9th Cm 1971), in which the Ninth Circuit reversed a Board finding that a unit consisting of only kitchen employees was appropriate In that case, the court , noted that "the employer's convention service involves the close coordination of all the hotel's employees" The volume of Westward-Ho's convention busi- ness was 60 percent, while 83 percent of Respondent's revenues is attrib- utable to conventions ATLANTA HILTON & TOWERS 91 gency . Hyatt House, supra. The Regional Director stated: [T]he employees sought for consist of the 'hotel's unrepresented manual operating person- - nel, such as doorman, bellmen,- waiters, wait- ' resses, bartenders, and coOks. Each 'employee provides, the hotel's customers with physical services, be" it preparing food and beverages, changing cash after purchases;- carrying lug- ' gage or- opening dOors: 'The 'differences be- tween these employees' duties and job func- tions and other clerical personnel employed throughout the hotel justifies a "blue collar/white-collar" distinction as contemplat- ed in Hotel Equities, d/b/a The Regency Hyatt House, supra, Accordingly, I find that the un- represented "blue collar" employees share a sufficient community of interest apart from the broader interest they may share with other hotel and tower employees to warrant their separate representation. This finding is consist- ent with the previous decision in Case 10-RC- 12623, which found a blue-collar unit to be ap- propriate. The record in the entire proceeding does not warrant a conclusion that the unit es- tablished in Case 10-RC-12623 should be merged into an overall unit with the unit cur- rently sought herein. [Emphasis added.] The Regional Director did not, however, explain why the "blue collar" employees in Case 10-RC- 12623 should not be in the same unit with the "blue collar" employees in Case 10-RC-12727. The Re- gional Director's units separate "blue collar" em- ployees into two units 18 and include some "white collar" employees in each unit while excluding others." The Regional Director excluded from both units employees such as front office cashiers and storeroom clerk who perform similar functions to employees included in the units. We are there- fore unable to agree with the Regional Director's unit determinations.18 We conclude that because of the highly integrat- ed functions and mutual interests of the Respond- ent's employees, the common pay rates and fringe benefits shared by all employees, the centralized 16 For example, "blue collar" employees such as housekeeping aides and laundry employees were included in Case 10-RC-12623, while other "blue collar" employees such as bell persons, waiters, and cooks were in- cluded in Case 10-RC-12727 " Thus, "white collar" employees such as the food and beverage cash- iers were Included in Case 10-RC-12727 and the housekeeping payroll clerk was included in Case 10-RC-12623, but other "white collar" em- ployees such as front office cashiers and PBX operators were excluded from both units Contrary to Member Zimmerman, we are reconsidering the under- lying representation proceeding in Case 10-CA-18929 not because of a change in the composition of the Board, but because the Regional Direc- tor erroneously applied existing precedent control of the Employer's day-to-day operations; the centralized formulation 'of personnel policies, the daily work contacts of employees in different departments, and the transfers of employees be- tween departments, an overall unit -of the Employ- er's employees, excluding _property operations em- ployees, confidential employees, guards, and , super- visors is appropriate in the instant case. Accordingly, because we have found that the units the Regional -Director found , appropriate in Cases 10-RC-12727 and 10-RC-12623- are not ap- propriate units for collective-bargaining purposes, we shall dismiss the petition in Case 10-RC-12727. In addition, we shall deny the Motion for Summa- ry Judgment in Case 10-CA-18929 and dismiss the complaint. We shall also revoke the certification issued in Case 10-RC-12623, and dismiss the peti- tion in that case. ORDER The petition in Case 10-RC-12727 is dismissed. The Motion for Summary Judgment in Case 10- CA-18929 is denied, and the complaint 'is dis- missed. The certification of representative issued in Case 10-RC-12623 is revoked, and the petition is dis- missed. MEMBER ZIMMERMAN, dissenting. Contrary to my colleagues, I would grant the General Counsel's Motion for Summary Judgment in Case 10-CA-18929. Specifically, in accordance with the reasons set forth in my specially concur- ring opinion in Bravos Oldsmobile, 254 NLRB 1056, 1058 (1981), I believe that the Board should refrain from reconsidering the unit determination made by the Regional Director, and affirmed by the Board on review, in the underlying representation case, Case 10-RC-12623. In Bravos Oldsmobile, I argued that any benefits to be derived from reconsidering and relitigating representation issues in a particular technical refus- al-to-bargain case such as this one were decidedly outweighed by the advantages of stability in law and finality of litigation resulting from the Board's longstanding policy against such relitigation. Very recently, in my dissent in Sub-Zero Freezer Co., 271 NLRB 47 (1984), I reiterated these considerations, and noted that the sole reason that relitigation of the underlying representation issue was permitted by the majority was because there was a change in the composition of the Board from the time the representation case was litigated to the time the Respondent tested the Board's certification. That is precisely the same reason my Colleagues are per- 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitting relitigation of the underlying unit determi- nation in the instant refusal-to-bargain case. Accordingly, for the reasons fully set forth in my separate opinions in Bravos Oldsmobile and Sub- Zero Freezer, I would not relitigate the representa- tion issue underlying the refusal-to-bargain case, and I would grant the General Counsel's motion, finding that the Respondent has violated Section 8(a)(5) of the Act as alleged. Also contrary to my colleagues, I would not have granted review of the unit determination made by the Regional Director in the instant case, Case 10-RC-12727, and I would therefore affirm that unit determination. The hotelwide unit which my colleagues find appropriate is squarely at odds with the Regional Director's unit determination in Case 10-RC-12623, underlying the General Coun- sel's Motion for Summary Judgment. Because I be- lieve that the Board should refrain from now re- versing its earlier affirmation of the Regional Di- rector's unit determination in Case 10-CA-12623 (and also for the substantive reasons on which that affirmation was based), I disagree with my col- leagues' unit determination in Case 10-RC-12727.