Dundee's Seafood, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1975

221 N.L.R.B. 1183 (N.L.R.B. 1975)

DUNDEE'S SEAFOOD, INC. 1183
Dundee's Seafood, Inc. and Dining Room Employees
Union, Local 1, affiliated with Hotel and Restau-
rant and Bartenders International Union, AFL-
CIO. Case 2-RC-16850
December 17, 1975
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, by
Dining Room Employees Union, Local 1, affiliated
with Hotel and Restaurant and Bartenders Interna-
tional Union, AFL-CIO, a hearing was held before
Hearing Officer Abraham Borenstein on June 6, 12,
19; July 2 and 9; and August 8, 1975. At the close of
the hearing, the case was transferred to the Board for
decision. Thereafter the Petitioner and the Employer
filed briefs.
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 Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. 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.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The appropriate unit:
Petitioner seeks to represent a unit of waiters,
cocktail waitresses, captains, and cashiers employed
by the Employer, in, its membership club in New
York City. The Employer contends that the proposed
unit is inappropriate,'that an appropriate unit should
include, in addition„ to the employees sought by the
Petitioner, bartenders, switchboard operators, a
hatcheck girl, ^a parking lot attendant, a disc jockey, a
concierge, and! a janitor.1
The Employer operates aclub in New York City.
Entry to the club is 'limited to members, members'
guests, and nonmembers who pay a per deem entry
fee. The club consists of three floors, two of which
are devoted to customer use. The first or street floor
consists of a restaurant, bar, cocktail lounge, hat-
check area, and switchboard. On most nights the
restaurant converts into a discotheque after 10:30
p.m. The second floor contains a backgammon room
and a private banquet room. The basement floor
houses the kitchen, the cashier's desk, and a service
bar which is utilized when the bar facilities on the
first floor are overcrowded. '
Serving food and drinks to patrons are seven full-
time waiters; one part-time waiter who works
regularly on Saturday nights; one full-time employee,
Francis Lamarro, who spends 35 percent of his time
as a waiter, 40 percent arranging flowers, and 15
percent filling in as a bartender; and one cocktail
waitress. There are also two captains who take
patrons' orders and oversee service during meals. A
single cashier checks on food and drinks leaving the
kitchen and bar, respectively, and posts prices on
checks given to patrons. The above are the employ-
ees whom Petitioner seeks to represent.
Employees whom Petitioner desires to exclude
from the proposed unit comprise one full-time and
one regular part-time bartender, two telephone
operators who handle telephone calls at the switch-
board for the convenience of patrons,- a hatcheck girl,
a parking lot attendant who parks the cars of
patrons, a disc jockey who plays records in the
discotheque and also -mixes with patrons to ; deter-
mine their "requests" and to "motivate" them, a
concierge who greets people at the door and takes
them to the maitre d' who seats them, and a janitor
who cleans, does some maintenance work,,and helps
with problems; like moving chairs and tables.
The Petitioner contends that a, unit limited to
dining room employees is appropriate because: (1)
the waiters, waitresses, and captains have a commu-
nity, of interest separate from that of other employ-
ees, (2) historically in restaurants in New York City
there have been separate bargaining units of dining
room employees, and this practice has been approved
by the New York State Labor Relations, Board, and
(3) the Petitioner's organizational efforts have ex-
tended only to the dining room employees, inasmuch
as its charter limits it to representation of, such
employees.
The Employer argues that only an overall bargain-
ing unit is appropriate since: (1) the Board should
not give deference to the; jurisdictional limitations of
the Petitioner, (2) there is no relevant bargaining in
New York which supports Petitioner's unit position
and in any event bargaining history in the restaurant
industry is inapplicable to the Employer, and (3) all
of the Employer's employees share a community of
1 Neither party seeks to include kitchen personnel i n the bargaining unit
221 NLRB No. 191
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interest and therefore should be included in the same
unit.
Contrary to the contention of the Employer, there
is relevant bargaining history among New York City
restaurants which supports Petitioner's unit position.
There are more than 1,000 restaurants in New York
City and Petitioner represents employees in, more
than 500 of them in' units similar to that which it
seeks to represent in this case. The Board has long
held that the form which self-organization has taken
in an industry is one of the more significant factors in
determining the appropriate unit.2 Further, the, New
York State Labor Relations Board has, repeatedly
held that a unit of restaurant dining room employees,
excluding bartenders, is appropriate for the purposes
of collective bargaining.3 While the New York State
Labor Relations Board's decisions are not binding on
this , Board, they nevertheless are indicative of
bargaining practices in the New York City restaurant
industry.
The Employer also contends that the bargaining
history in the restaurant industry in New York City
is inapplicable to a private club offering a wide
variety of personalized services to its patron mem-
bers. , While the Employer does appear to render
more services to patrons than the average restaurant,
we fail to see how the additional services destroys the
separate community of interest existing among the
dining room employees. The functions of these
employees whether, performed in a restaurant or in a
private club are essentially the same. The locus of
employment does not change the community of
interest . Moreover, Petitioner does in fact represent
dining room employees in separate units in at least
three other private, membership clubs.
The Employer further argues that Petitioner's unit
position is predicated 'solely upon its jurisdictional
limitation and the Board should therefore give no
effect to Petitioner's request. Although the Board is
not bound by a union's jurisdictional limitations in
deciding upon the appropriateness of a unit, it may
consider that factor as one element in reaching a
decision as to an appropriate unit .4 The Supreme
Court has said that extent of organization may be
considered as "one factor, although not the control-
ling' factor, in [the Board's] unit determination."5 In
the present case, the unit determination is being
based predominantly- on the bargaining practice in
the' restaurant industry in New York City. The
jurisdictional limitation in the Petitioner's charter is
2 3 NLRB Ann. Rep. 160-167 (1938)
3 E.g., Homestead Rest, Inc, 30 NLRB 231 (1967), Marcht's Restaurant,
30 NLRB 370 (1967)
4 3 NLRB Ann. Rep. 166-167 (1938)
5 N L.R B v. Metropolitan Life Insurance Co, 380 U S 438,442 (1965)
significant only to the extent that it may have been a
factor in creating this bargaining practice.
Finally, the Employer asserts that the Board should
find appropriate a unit of all its employees, excluding
only kitchen employees. While this broader unit may
be appropriate it is not the only appropriate unit.
"There is nothing in the statute which requires that
the unit for bargaining be the only appropriate unit,
or the ultimate unit, or the most appropriate unit; the
Act requires only that the unit be `appropriate.' "6
There may be more than one way in which
employees may be grouped for collective-bargaining
purposes.?
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, waiters, cocktail waitresses, captains and
cashiers employed by Dundee's Seafood, Inc.,
New York, New York, excluding bar and kitchen
employees, switchboard operators, hat check
girls, parking lot attendants, disc jockeys, con-
cierges, office clerical employees, guards and
supervisors as defined in the Act.
[Direction of Election omitted from publication.]
MEMBER PENELLO, dissenting:
Contrary to the majority, I think the smallest
appropriate unit in which to place the dining room
employees sought by the Petitioner must include the
bartenders. I think a unit limited to dining room
employees is based primarily on extent of organiza-
tion; i.e., Petitioner's unwillingness, based on its
charter, to represent the bartenders.
There are approximately 13 employees in the unit
sought and 2 bartenders, I full-time and I part-time.
Included in the unit sought are nine waiters and a
cocktail waitress. Like the cocktail waitress, the
waiters spend most of their time serving drinks. Less
than one-third of their time is spent serving food, and
when they are not at the tables serving food or drink
they are usually at the bar waiting, for drinks. They
have more contact with the bartenders, therefore,
than with any other employees. The bartenders also
serve drinks, and even serve food at the bar. Two
employees interchange regularly, as waiters and
bartenders. The earnings of waiters and bartenders
are approximately the same, both approximating 25
percent in salary and 75 percent in tips. Arguably,
6 Morand Brothers Beverage Co, 91 NLRB 409, 418 (1950), enfd 190
F.2d 576 (C A 7, 1951)
7 General Instrument Corporation v N L R B, 319 F.2d 420, 422 (C A. 4,
1963), cert denied 375 U.S. 966
DUNDEE'S SEAFOOD, INC. 1185
the dining room employees have interests separate
from those of the bartenders. But in comparison to
the community of interest these two groups share, I
do not believe their separate interests are of such
significance as to justify separating them for bargain-
ing,purposes.
If the unit sought by the Petitioner is appropriate,
as found by the majority, it will be difficult to avoid
finding a separate unit consisting of the one full-time
and one part-time bartender to be appropriate. And
the remaining few miscellaneous employees, exclud-
ing the kitchen personnel, would constitute at least
one additional bargaining unit. I do not think the
principle of an appropriate unit as opposed to the
most appropriate unit need take us to that extent of
fragmentation of this small work force. Therefore, as
the Petitioner has declared its unwillingness to
represent any unit including the bartenders, I would
dismiss the petition.