Holiday Inn of Dunkirk-Fredonia

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 461 (N.L.R.B. 1974)

HOLIDAY INN OF DUNKIRK-FREDONIA 461
Dunkirk Motor Inn, Inc., d/b/a Holiday Inn of
Dunkirk-Fredonia and Amalgamated Meatcutters
and Butcher Workmen of North America , Local 34,
AFL-CIO, Petitioner . Case 3-RC-5678
June 12, 1974
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, an election was conducted on May
11, 1973, under the direction and supervision of the
Regional Director, among the employees in the
stipulated unit.' The tally of ballots furnished the
parties at the conclusion of the election showed that
of approximately 67 eligible voters 43 cast ballots of
which 20 were for and 18 against the Petitioner, and
5 were challenged.2 The challenged ballots were
sufficient in number to affect the results of the
election . Thereafter, the Employer timely filed two
objections to conduct affecting the results of the
election.
Pursuant to the Board's Rules and Regulations,
Series 8 , as amended, the Acting Regional Director
conducted an investigation and, on June 8, 1973,
issued and duly served on the parties his report in
which he recommended that the challenges be
sustained , that the objections be overruled, and that
the Petitioner be certified as the bargaining repre-
sentative of the employees. Thereafter, the Employer
filed exceptions to the Acting Regional Director's
finding that Nichols, Straight, and Hancock were
supervisors and were therefore not entitled to vote.
The Employer also took exception to the Acting
Regional Director's failure to find merit in Objection
I which alleged that the Petitioner's offer during the
week preceding the election to waive the initiation
fee for "those employees presently employed"
constituted coercive conduct that interfered with the
election.
On August 22, 1973, the Board issued a Decision
and Order3 adopting the Acting Regional Director's
findings and recommendations with respect to the
objections and the challenged ballots of Addabbo
and Richmond and directing a hearing on the
challenged ballots of Nichols, Straight, and Han-
cock.
A hearing was held on September 19 and 20 and
October 10, 1973, before Hearing Officer L. W.
Tucker. Both Employer and the Petitioner participat-
ed and were given full opportunity to examine and
cross-examine witnesses and to introduce evidence
bearing upon the issues.
On October 25, 1973, the Hearing Officer issued his
report in which he found that Straight was an
employee and that Nichols and Hancock were
supervisors within the meaning of the Act. He
therefore recommended that the challenge to
Straight's ballot be overruled and that the challenges
to the ballots of Nichols and Hancock be sustained.
He therefore recommended that Straight's ballot be
opened and counted and that a revised tally of
ballots and certification of representative be issued.
Thereafter, the Employer filed exceptions to the
Hearing Officer's report and a supporting brief in
which it "reasserts" Objection 1 and also argues that
Nichols and Hancock were employees rather than
supervisors. The Petitioner filed a brief in opposition
to the Employer's exceptions.
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 rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
The Board has considered the Hearing Officer's
report, the exceptions, the briefs,4 and the entire
record in this proceeding, and hereby adopts the
Hearing Officer's finding and recommendations, as
modified below.5
We agree with the Hearing Officer that Assistant
Housekeeper Hancock is a supervisor within the
meaning of the Act. The record is clear that
Hancock, who is salaried and receives no overtime
I Eligible to vote were those who were employed during the payroll
period ending March 23, 1973.
2 John Addabbo, Fleury Richmond , Sandra Ann Nichols, John Leslie
Straight, and Ruth Alice Hancock.
3 Unpublished.
4 As indicated above , the Employer in its brief "reasserts" its objection
concerning the Petitioner 's offer to waive the initiation fee for those
presently employed . This offer was not conditioned upon the expression by
any employee of support for the Union in any form during the electoral
process. Moreover , any denial of the waiver to new employees hired after
the date of the offer could not have affected the election because said
employees would not have been eligible to vote in the election . Accordingly,
we find that the waiver does not fall within the proscription of the Supreme
Court's decision in N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270 (1973). We
therefore affirm our holding as to the propriety of the Acting Regional
Director's finding that the waiver did not interfere with the election. See
Endless Mold, Inc., 210 NLRB No. 34.
5 Although we agree with the Hearing Officer's conclusion that Straight
is an employee and was therefore eligible to vote, we do not adopt the
recommendation that Straight's ballot be opened and counted as his vote
would not affect the results of the election . Accordingly, we shall issue a
Certification of Representative on the basis of the Acting Regional
Director's tally of ballots which shows that the Petitioner received a
majority of the valid votes cast.
211 NLRB No. 56
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay, oversees the work done by the maids assigned to
one of the two floors of the motel,6 inspects the
rooms which they clean, exercises independent
judgment in ordering the maids to correct the
deficiencies in their work,7 grants time off to maids
and replaces them in the event of illness , participates
in interviewing applicants whose qualifications she
discusses with the housekeeper, regularly replaces
and performs the functions of the housekeeper on
her days off, and attends managerial meetings.8
In view of the foregoing, particularly Hancock's
authority to order maids to take corrective action
when she deems it necessary, we find that Hancock
responsibly directs the maids in the performance of
their work. Accordingly, we conclude in agreement
with the Hearing Officer that the challenge to the
ballot of Hancock was properly sustained in view of
her position as a supervisor.9
Our dissenting colleague obscures the issue by
labeling as "routine" the duties which Hancock
performs with respect to overseeing the maids' work
and giving orders to them. The test of responsible
direction does not depend on the complexity and
difficulty of the maids' work or of the corrective
measures invoked by Hancock. Adoption of that test
would unrealistically rule out a finding of responsible
direction in all situations where the work involved
does not require a high degree of skill and technical
competence. The proper test, which is met herein, is
that Hancock exercises independent judgment with-
out consultation with the housekeeper in ascertaining
the deficiencies in the maids' work, however prosaic
and uncomplicated, and utilizing the authority to
order that the work be done correctly.
Although our colleague also points out that
Hancock does some cleaning work, the fact does not
render nugatory our finding as to Hancock's supervi-
sory status which is based on the undisputed
evidence that she devotes her time principally to the
duties described above.10
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Amalgamated Meatcutters
and Butcher Workmen of North America, Local 34,
AFL-CIO, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended , the said
labor organization is the exclusive representative of
all the employees in the unit found appropriate in
paragraph 4 of the Decision and Order for the
6 Innkeeper Ken King testified that Hancock or Housekeeper Leola
Fitzpatrick, an acknowledged supervisor, "makes the initial decision" as to
assignments.
I Similarly, Fitzpatrick is in charge of the maids working on the other
floor.
R Although Hancock 's testimony was uncertain on this point, both
purposes of collective bargaining in respect to rates
of pay , wages , hours of employment, or other
conditions of employment.
CHAIRMAN MILLER, concurring in part and dissenting
in part:
I cannot agree with my colleagues' finding that
Ruth Alice Hancock is a supervisor within the
meaning of Section 2(11) of the Act which defines
the term supervisor as:
[A]ny individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to
direct them, or to adjust their grievances, or
effectively recommend such action, if in connec-
tion with the foregoing the exercise of such
authority is not of a merely routine or clerical in
nature, but requires the use of independent
judgment.
This provision requires that, to be a supervisor, one
must have authority to exercise independent and
effective judgment in at least one of the areas of
authority enumerated. In my view, the record here
shows that Hancock has no such authority in any of
the said areas.
My colleagues find that Hancock is in charge of a
crew of maids, exercises independent judgment in
ordering maids to correct deficiencies in their work,
and grants them time off in the event of illness. I find
nothing in the record to support the finding that
Hancock is in charge of a crew of maids or, indeed,
that maids were assigned in crews. Rather it appears
that the housekeeper, not Hancock, assigned each
maid to prepare certain rooms; and Hancock was
assigned to inspecting rooms on one floor. In
addition Hancock performed maid's work and other
routine chores such as counting linen. The inspection
chore consisted of checking the rooms to insure that
each was clean and contained all the prescribed
articles; such as stationery, fly swatter, and informa-
tional materials. If the inspection revealed that the
room did not meet the Inn's standard of cleanliness,
Hancock would either clean it herself or tell the maid
responsible for the room that a sink was dirty or a
mirror needed cleaning. She could not, however,
discipline or reward employees or effectively recom-
mend such action. Nothing in this inspection process
Fitzpatrick and King testified unequivocally as to Hancock's presence at
these meetings.
9 Island Holidays, Ltd. d/b/a Coco Palms Resort Hotel, 201 NLRB 522;
Howard Johnson Company, 201 NLRB 376.
iO In this connection, it is noteworthy that Fitzpatrick sometimes places
missing supplies in a room and also does cleaning work at times
HOLIDAY INN OF DUNKIRK-FREDONIA 463
required the use of independent judgment in the
direction of work.11 In fact nothing could be more
routine . The record also reveals that Hancock was
not entrusted with discretion in granting or denying
requests for time off due to illness. It was apparently
the Inn's policy to require the maids to notify
someone, even another maid, in the event they would
be unable to report for work. Similarly, Hancock
testified that on one occasion a maid reported to het
that she would be unable to continue working
because of illness. There is no evidence that Hancock
was authorized to approve this absence; she was
merely to report it to the housekeeper.
My colleagues also find that Hancock regularly
replaced the housekeeper on her days off, but fail to
note that on these occasions she did not assume the
supervisory authority of the housekeeper. The house-
keeper resided at the Inn and was usually available
when necessary. In her absence, any unusual
problem which would require the attention of a
supervisor was taken to the innkeeper or the assistant
innkeeper. Hancock simply assumed the routine
chores of the housekeeper, such as picking up the
room reports from the front desk.
By noting that Hancock participated in interview-
ing applicants, my colleagues apparently find, as did
the Hearing Officer, that Hancock possesses the
authority to hire or effectively recommend hiring. In
my view, such a finding is completely at odds with
the record evidence. Thus, Innkeeper King, House-
keeper Fitzpatrick, and Hancock all testified without
contradiction that, since Fitzpatrick's return to the
Inn, Hancock had no authority to hire or fire.12
While Hancock may have been present during
employment interviews conducted by Fitzpatrick,
her only function was to show the prospective
applicant a dirty room and a clean room to
demonstrate the nature of the work. She might also
have been asked if she knew the applicant's reputa-
tion in the community, but her views on whether an
applicant should be hired were neither solicited nor
offered. In these circumstances, the conclusion that
Hancock did not possess the authority to effectively
recommend hiring seems inescapable.
Like other maids, Hancock wore a uniform,
participated in the employee insurance program, and
had the same lunch period.13 Although maids
generally were hourly paid, Hancock received a
salary. However, her weekly salary amounted to little
more than a maid's weekly pay and was slightly less
than half the weekly salary paid the housekeeper.
Although my colleagues find that Hancock attends
managerial meetings, Hancock testified she could
not recall ever attending such a meeting since
Fitzpatrick returned. It is also apparent from the
testimony of the only maid who testified that
Hancock was not regarded as a supervisor after
Fitzpatrick's return.
In sum , I find nothing in the record which could
support a finding that Hancock is a statutory
supervisor. To the contrary, it appears that Hancock
is a very efficient maid, willing to perform the worst
jobs that other maids refuse, and capable of
performing additional routine tasks to assist the
housekeeper. Cf. Dayton Motels, Inc. d/b/a Holiday
Inn of Dayton, 192 NLRB 674, 675.
Accordingly, in my view, the election results are
still in doubt and the certification is being issued
prematurely.
11 Cf. LaRonde Bar & Restaurant Inc. and/or Carrousel Motels, Inc, 145 not relevant to the determination of her current status.
NLRB 270, 272; Janesville Auto Transport Company, 193 NLRB 874. 13 She did not enjoy the privileges provided the admitted supervisors;
12 Any authority Hancock may have had while acting as housekeeper is such as, company paid major medical insurance and free room and board.