Cranston Hilton Inn

National Labor Relations Board - Board Decisions

Jun 14, 1977

230 N.L.R.B. 186 (N.L.R.B. 1977)

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