Maxim'S De Paris Suite Hotel

MAXIM'S DE PARIS HOTEL 377 Pratt/North Plaza Associates, a California Joint Venture d/b/a Maxim's de Paris Suite Hotel and International Union of Operating Engi- neers, Local 501, AFL-CIO, Petitioner. Case 21-RC-17804 20 August 1987 DECISION AND REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFr On 4 November 1986 the Regional Director for Region 21 issued the attached Decision and Order in this proceeding. The Regional Director found inappropriate for collective bargaining the Petition- er's requested unit of engineering department em- ployees. Finding that all of the Employer's employ- ees share a substantial community of interest based on the Employer's highly centralized management, its integration of operations, and the fact that all employees share significant terms and conditions of employment and have frequent contacts, the Re- gional Director concluded that a separate unit of maintenance employees is inappropriate. In accordance with Section 102.67 of the Board's Rules and Regulations, the Petitioner filed a timely request for review of the Regional Director's deci- sion, contending that the engineering department employees share a community of interest distinct from that of the other employees. The Employer, filed a statement in opposition to the Petitioner's request for review, and the International Union of Operating Engineers filed a brief as amicus curiae in support of the Petitioner's position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. In light of our recent decision in Omni Interna- tional Hotel, 283 NLRB 475 (1987), in which the Board found appropriate a separate unit of engi- neering department employees, the Petitioner's re- quest for review is granted. Having reviewed and considered the entire record in this case, the Board concludes, contrary to the Regional Director, that, the petitioned-for unit of engineering department employees here, like the requested unit in Omni, constitutes a separate appropriate unit for purposes of collective bargaining. In Omni, the Board discussed its departure from the "rigid rule" that only an overall unit consisting of all hotel/motel employees would be found ap- propriate for bargaining. See Arlington Hotel Co., 126 NLRB 400 (1960). Finding that this inflexible rule is not statutorily required and that it is based on the false premise that all hotel and motel em- ployees share such a high degree of integration of 285 NLRB No. 61 function and mutuality of interests that only an overall unit could be appropriate, the Board in Omni reaffirmed ,its intent to make unit determina- tions in the hotel/motel industry on a case-by-case basis, using the same traditional cdmmunity-of-in- terest criteria used in other industries. See Westin Hotel, 277 NLRB 1506 (1986); Atlanta Hilton & Towers, 273 NLRB 87, 90 (1984). The facts in this case, which are fully set forth in the attached Regional Director's Decision and Order, are very similar to those in Omni. Here, as in Omni, the engineering department employees are separately supervised by the chief engineer, who interviews all engineering department employees and makes the final hiring decision for his depart- ment;1 they maintain the hotel's facilities and equipment, including the air conditioning, electri- cal, plumbing, and heating systems, and possess skills unique to their, classifications; they earn the highest hourly wage among the hotel's nonsupervi- sory employees; 2 and there have been no transfers of employees into or out of the engineering depart- ment, whether on a permanent or temporary basis. Further, engineering department employees, unlike other employees, carry beepers or radios, are as- signed work under a unique work order system, supply their own tools, and work in a locked main- tenance area (workshop) in the hotel's basement to which only maintenance employees, management, and guards have keys. Consistent with the majority decision in Omni, these factors clearly establish that the engineering department employees share a separate community of interest. Our dissenting colleague correctly notes that the Employer is soon to establish a "manager on duty" program in which each of the 17 department heads and managers, including the chief engineer, would serve as general manager on a rotating basis during "off hours." Nevertheless, in view of the fact that under this system employees would still report to 1 The dissent points to the existence of common hiring procedures for new employees as a reason for disallowing a separate'unit of engineering department employees The issue before us, however, is the employees' terms and conditions of actual employment. As the Board noted in Omni, 283 NLRB 475, fn. I• "Surely the fact that the engineering department employees work under the direction of, and would likely address their grievances to, someone different from those under whom other employ- ees immediately work has greater bearing on collective bargaining inter- ests than the procedures by which the employees [were] hired for entry into the work place in the first place " 2 The Employer's engineering employees earn between $10.58 and $14,05 per hour, while wages earned by the food and beverage and housekeeping employees whom the Employer seeks to include in the unit range from $4.90 to $7 30 per hour, excluding tips received by some bar- tenders and waitresses. In our opinion the wage differential is substantial With respect to the dissent's effort to minimize this disparity by focusing on the supplementation of some wages by tips, we note, as in Omni, fn. 2, that this factor does not make the maintenance employees less distinct but, if anything, provides support for our finding that the engineering em- ployees have a separate community of interest 378 DECISIONS OF-THE NATIONAL LABOR RELATIONS BOARD their immediate supervisor who would, in turn, report to the "manager on duty," we find, contrary to the dissent, that this program does not constitute a significant increase in centralized supervision or integration of operations. The dissent also notes that engineering employees do occasionally assist, and are assisted by, employees from other depart- ments. As in Omni, however, the record reveals that these incidents-such as the occasional move- ment of furniture and the one-time movement of television sets in response to an earthquake-are sporadic and reflect "a spirit of cooperation or ci- vility" rather than an overlap of job functions. (283 NLRB 475.) Other factors cited by the dissent, such as the fact that all employees here receive the same fringe benefits, punch the same timeclock, wear uniforms (albeit different ones) and name tags, and are paid by the hour, fail to establish, as in Omni, that the requested unit is not an appropriate unit for collec- tive bargaining, although such factors would render an overall unit appropriate if one were sought.3 Further, in view of the specific evidence supporting our finding, we reject the dissent's con- tention, also made in Omni, that the extent of the employees' organization was the controlling factor in our unit determination, in contravention of Sec- tion 9(c)(5) of the Act. - Under all the circumstances, we find, contrary to the Regional Director, that the petitioned-for unit of engineering department employees is an appro- priate unit for bargaining. Accordingly, having found that the engineering department employees constitute a separate unit, we shall reinstate the pe- tition and remand the case to the Regional Direc- tor for further appropriate action. ORDER The petition is reinstated and this proceeding is remanded to the Regional Director for further ap- propriate action. CHAIRMAN, DOTSON, dissenting. Contrary to my colleagues, I would find that the petitioned-for unit of engineering employees does not constitute an appropriate unit for bargaining, and I would adopt the Regional Director's dismis- 3 Westin Hotel, above, relied on by the Regional Director,, involved circumstances substantially different from those present in this case and in Omni, and is therefore distinguishable. Specifically, the prevailing pattern in the relevant geographical area in Westin favored overall units, and an intervenor sought to represent an overall unit in the hotel. Although the pattern of areawide bargaining in this case is mixed, while that in Omni favored separate units, there is no competing labor organization here, unlike Westin, seeking to represent the petitioned-for employees in an overall unit Moreover, a mixed pattern of area bargaining does not, like the factors mentioned above, establish that the requested maintenance unit is an inappropriate unit for collective bargaining. sal of the petition. The Employer has been engaged in the operation of a luxury suite hotel since Janu- ary 1986. The Petitioner seeks to represent a unit comprised of the Employer's five engineering em- ployees, three of whom are skilled maintenance employees and two of whom are general mainte- nance employees. The Employer contends that the only appropriate unit consists of the engineering employees and the approximately 130 employees in its food and beverage and housekeeping depart- ments. I agree. As the majority noted, the facts in the present case are very close to those in Omni International Hotel, 283 NLRB 475 (1987). In both cases, the hotel in question functions as an integrated oper- ation, management and personnel policies are highly centralized, and the general manager over- sees the hotel's day-to-day operations. Employees share a number of their terms and conditions of employment, such as use of the same timeclock, lunchrooms, locker rooms and employee entrance, receiving free meals, the same orientation and in- centive programs, the same vacation and insurance benefits, wearing uniforms and the same type of name tags, being subject to the same probationary period and hiring procedures, and being paid on an hourly basis. Here, as in Omni, although the engi- neering employees are paid the highest hourly wage, they are not the highest paid employees in the hotel, as other employees receive as much as $20-25 an hour in tips. In addition, the engineering employees do not constitute a craft unit. No special training or licens- ing is required for the position, and the engineering employees do not perform major structural alter- ations or major air conditioning repairs. Although there have been no transfers in or out of the engi- neering department, current employees are given first consideration for all vacancies within the hotel. Engineering employees do occasionally assist, and are assisted by, employees from other departments, and there is frequent contact among employees since the engineering employees work throughout the entire hotel. The engineering de- partment has separate departmental meetings, as do the other departments in the hotel. Although there is separate immediate supervision of the engineer- ing employees, the Employer's general manager testified that within 1 to 2 weeks after the hearing the Employer would establish a "manager on duty" program in which each of the 17 department heads and managers would fulfill the function of the gen- eral manager on a rotating basis during "off hours." Once the program is implemented, employ- ees in each department would still report to their immediate supervisor, who would then report to MAXIM'S DE PARIS HOTEL 379 the "manager on duty." This program further illus- trates the integrated nature of the hotel's oper- ations. The Regional Director's decision specifically considered whether the maintenance employees constituted "an" appropriate unit, and concluded they did not. Here, and in Omni, given the sparsity of evidence supporting a separate unit, I fear my colleagues once again have contravened Section 9(c)(5) of the Act, which requires that the extent of union organization shall no 1, be controlling in deter- mining the appropriateness of a unit. In these cir- cumstances, I cannot agree with the majority's de- cision to reverse the Regional Director's finding that all employees share a substantial community of interest and that a separate unit of engineering em- ployees is inappropriate. Accordingly, I dissent. APPENDIX DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before a hearing officer of the National Labor Relations Board; hereinafter referred to as the Board. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its authority in this proceeding to the undersigned. Upon the entire record in this proceeding, the under- signed finds: 1. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 2. 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.' - 3. The labor organization involved claims to represent certain employees of the Employer. 4. No question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The Employer is a California joint venture, which has been engaged in the operation of a luxury suite hotel since January 1986. The hotel consists of 194 guest rooms, 3 restaurants, a spa, a swimming pool, specialty shops and stores, meeting rooms, and banquet facilities. Additionally, the Employer provides limousine services to and from airports, golf courses, and tennis courts. The Petitioner seeks to represent a unit comprised of the Employer's five engineering department employees: three skilled maintenance employees and two general maintenance employees.3 The Employer contends that 8 The engineering department also includes a chief engineer The par- ties stipulated, and I find, that Steve Fekete, the chief engineer, is a su- pervisor within the meaning of Section 2(11) of the Act, based on record evidence that Fekete effectively recommends the hiring of employees. At one time, the Employer also employed two gardens in the engineering department However, it subsequently subcontracted the gardening serv- ices, and it does not anticipate reemploying gardners. the only appropriate unit consists of the engineering de- partment employees and approximately 130 other em- ployees in its food and beverages and housekeeping de- partments. There is no history of collective bargaining for any of the Employer's employees. No other labor or- ganization seeks to represent a unit broader than the peti- tioned-for unit. The maintenance employees are responsible for main- taining and repairing the entire hotel, including the plumbing, carpentry, electrical' equipment, heating and refrigeration equipment, pools and water treatments. In connection therewith, the maintenance employees repair all kitchen equipment and the air conditioning system; fix leaks; unplug toilets; replace light bulbs, terrace doors, and broken lamps; move or replace furniture; and insure a supply of hot water. Outside contractors provide repair services for television, elevators, fire alarms, fire sprin- kler systems, tile, marble, and office equipment. Mainte- nance employees do not perform major structural alter- ations or major air conditioning repairs. Maintenance employees report to work in the mainte- nance area, which is located in the hotel's basement and which houses the hotel's operating equipment. Within the maintenance area is a workbench and a small mainte- nance shop in which minor repairs are performed and tools are kept. Maintenance employees are required to purchase their own hand tools. The entire maintenance area is locked and only maintenance employees, manage- ment, and guards have keys to unlock the area. While in the maintenance area, the chief engineer distributes work assignments to the maintenance employees through a work order system. Whenever maintenance work is re- quired in a particular department, a supervisor in that de- partment fills out a work requisition form and submits it to the department head, who will, in turn, submit the form to the chief engineer. No other employees are as- signed work based on a work order system. Only on an emergency basis would an employee directly reqest the engineering department to perform maintenance work. Only maintenance employees carry either a beeper or a radio while working in the hotel. The engineering de- partment, like all other departments, holds its own sepa- rate departmental meetings. The chief engineer is the maintenance employees' im- mediate supervisor. At the time of the hearing, the chief engineer did not supervise any other employees, and no other department supervisor supervised the maintenance employees. The chief engineer appoints a maintenance employee to act as chief engineer whenever he is absent. The', Employer's general manager testified that within I to 2 weeks after the hearing the Employer will establish a "manager on duty" program. Pursuant to that pro- gram, a total of 17 department heads and managerial em- ployees, including the chief engineer, will fulfill the func- tion of the general manager during "off hours" on a ro- tating schedule approximately once a month for 2 to 3 days. Once the program is implemented, maintenance employees, as well as all other employees, will still report to their immediate supervisor, who will, in turn report to the "manager on duty." 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although the Employer first considers current em- ployees to fill vacancies in any department, including the engineering department, no employee has ever trans- ferred, on a temporary or permanent basis, into or out of the engineering department. No other employees routine- ly perform maintenance functions. Recently, in response to an earthquake, the Employer decided to remove and position about 50 television sets onto the guest room floors One food and beverage department employee and one maintenance employee assisted a housekeeping em- ployee with this manual labor. On occasion, a housekeep- ing employee has assisted a maintenance employee to move furniture. Further, maintenance employees have frequent contact with other employees while working in various areas of the hotel. Maintenance employees earn between $10.58 per hour and $14.05 per hour The wages earned by the other em- ployees the Employer seeks to include in the unit range from a low of $4 90 per hour to a high of $7 30 per hour However, some of these employees, such as bartenders and waitresses, can receive as much as $20 to $25 per hour in tips during the Employer's high season. Mainte- nance employees, as well as some other employees, re- ceive a 30-cents per hour shift differential, while other employees receive a differential of 50-cents per hour. The Employer's corporate office has established a set wage scale for all employee classifications. None of the employees, including the maintenance employees, are re- quired to have any special license or technical training. All employees punch the same time clock, sign in in their respective departments, are paid hourly, have the same probationary period, receive the same vacation, in- surance and free meal benefits, and enter through the same employee entrance. All employees share common lunch and locker rooms All employees wear the same type of name tags and are required to wear uniforms, al- though the colors and types of uniforms vary with each department. All employees receive the same orientation and are eligible for the Employer's incentive and em- ployee-of-the-month programs The food and beverage and housekeeping departments operate 24 hours a day, whereas the engineering department operates 18 hours a day. The housekeeping department begins its first shift at 6 a.m., whereas the engineering department begins at 6:30 a.m. The Employer's labor policy is set to a certain degree by an executive committee composed of managers, in- cluding the chief engineer. In some cases, the committee will check with its corporate office before deciding on a policy. The hiring procedure for maintenance employees is the same as that for all other employees. The chief en- gineer, as department head, submits a personnel requisi- tion form to the personnel department and the general manager approves or disapproves the request The per- sonnel manager then screens applicants through a prelim- inary interview. If an applicant's background is found ac- ceptable, the chief engineer then interviews the applicant and decides whether or not to hire the individual. Any change in an employee's status, such as a transfer, termi- nation, or leave of absence, must be accompanied by a personnel action form and approved only by the general manager. As noted above, the Employer first considers current employees to fill vacancies in any department, in- cluding the engineering department. The Petitioner introduced into evidence six collective- bargaining agreements covering engineering and mainte- nance employees employed at approximately 90 major hotels in southern California and southern Nevada, for the purpose of establishing an areawide bargaining pat- tern of separate unit representation for engineering/- maintenance employees at hotels similar to that operated by the Employer The Petitioner's president testified that, within the Petitioner's own geographical jurisdic- tion of southern California and southern Nevada, some bargaining units are hotelwide and other units are limited to engineering and maintenance employees In determining the appropriateness of a bargaining unit in the hotel industry, the Board considers each case on its facts 77 Operating Company, 160 NLRB 927 (1966). The Board applies to units in the hotel industry the same community-of-interest criteria used for determining the appropriateness of units in other industries, such as dis- tinctions in skills and functions of particular employee groupings, their separate supervision, the employer's or- ganizational structure, and differences in wages, hours and other terms and conditions of employment. Sheraton Motor Inn, 210 NLRB 790 (1974). In Atlanta Hilton & Towers, 273 NLRB 87, 91 (1984), the Board concluded. . . . that because of the highly integrated functions and mutual interests of the Respondent's employees, the common pay rates and fringe benefits shared by all employees, the centralized control of the Em- ployer's day to day operations, the centralized for- mulation of personnel policies, the daily work con- tacts of employees in different departments, and the transfers of employees between departments, an overall unit of the Employer's employees, excluding property operations employees . . is appropriate in the instant case.4 the record, as a whole, reveals that the hotel functions as one integrated operation, serving the needs of its quest. The hotel's management is highly centralized. The general manager has final authority regarding the hotel's day-to-day operations. The hotel's "manager on duty" program will establish an additional degree of centralized supervision over department heads and their employees. Individual department managers oversee their respective operations, but they do not set labor policy. The hotel's executive committee formulates labor policy, sometimes in conjunction with its corporate office The hotel man- agement in conjunction with its corporate office has es- tablished a set of wage scales for all employees. As stated previously, all personnel actions are accomplished through the Employer's personnel department with final approval resting with the general manager By the very nature of their job, maintenance employees have frequent contact with all other hotel employees, as they perform 4 In that case property operations employees, who basically performed maintenance functions, had been found to constitute a separate unit at an earlier date, and the appropriateness of that unit was not in issue MAXIM'S DE PARIS HOTEL their repair and maintenance duties throughout the hotel. On occasion, and especially in an emergency situation, other employees have assisted maintenance employees in their duties. Although no employee has ever transferred in or out of the engineering department, the hotel has been in operation for only a short time. Moreover, the Employer's policy is to first consider current employees for vacant positions. Maintenance positions, like all other hotel positions, do not require any special skills or li- censes. Virtually all terms and conditions of,employment for all employees are identical. Although maintenance employees earn an hourly wage two to three times higher than other employees, and are separately supervised by the chief engineer, these two factors alone do not warrant the finding that the mainte- nance employees have a separate community of interest from other hotel employees. Additionally, the fact that some bargaining units in the local area are composed of only maintenance employees does not, by itself, indicate that a unit of maintenance employees in the instant case is appropriate. In two cases which are factually similar to the instant case, the Board found separate units of hotel mainte- nance and engineering employees to be inappropriate. Thus, in The Westin Hotel, 277 NLRB No. 172 (Jan. 1, 1986), the Board found important the fact that mainte- nance employees shared comparable wages, identical benefits, and other , significant terms and conditions of employment with other employees, as well as the fact that all employees were subject to the same personnel policies. In Ramada Beverly Hills, 278 NLRB No. 95 (Feb. 25, 1986), the Board found that the criteria set forth above in Atlanta Hilton, supra, were present in that case, with the exception of employee departmental trans- fers. The Board noted that the lack of transfers was miti- gated by the high degree of functional intergration and job overlap, also present in the instant case. In all of these most recent cases, the ]I3oard has found separate 381 hotel employee units to be inappropriate where the hotel's management and personnel policymaking is highly centralized, and where the hotel functions as one integrated operation . Bothg of these factors, as well as the fact that all employees share significant terms and conditions of employment, and have frequent contacts, establish that all employees share a substantial communi- ty of interest. In Sheraton-Anaheim Hotel, 252 NLRB 959 (1980), the Board helds that a separate unit of hotel maintenance employees was appropriate . While many of the factors present in that case are also present in the instant case, it is significant that the Board did not find the employer's personnel policymaking and management operation to be highly centralized, nor did it find the hotel's maintenance functions to be integrated with other departmental func- tions. Therefore, the Board's holding in that case is not controlling in the instant matter. Based on the foregoing, and the record as a whole, I find that a separate unit of maintenance employees in in- appropriate. Since the Petitioner did not express a will- ingness to proced to an election in a broader unit but, rather, maintained on the record its traditional practice of representing only separtate maintenance units, I shall not make a finding as to what grouping of the Employ- er's employees constitutes an appropriate unit .5 Instead, I shall dismiss the petition. ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. S In this regard, I note that the record evidence concentrates on whether the maintenance employees constitute an appropriate unit, and does not sufficiently explore the other job classifications at the Employ- er's hotel and any community , of interest among those employees which may exist to support a finding regarding the smallest appropriate unit which would include the maintenance employees.