Hotel Employers Association of San Francisco

National Labor Relations Board - Board Decisions

Jun 10, 1966

159 N.L.R.B. 143 (N.L.R.B. 1966)

HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 143
Representatives discharged in 1961. Petitioner urges that certain
GLR's discharged in 1961 be allowed to cast challenged ballots as they
are presently seeking reinstatement, backpay, and other relief from a
United States District Court under the provisions of the Labor-
Management Reporting and Disclosure Act. A verdict in their favor
would establish, in effect, that their employee status was never law-
fully terminated, while a contrary determination would establish that
it was. In these circumstances, we shall permit them to vote subject
to challenge.'
[Text of Direction of Election omitted from publication.] 10
6 Cf. Pacific Tile and Porcelain Company, 137 NLRB 1358, 1365.
io An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 10 within 7 days
after the date of this Decision and Direction of Election . The Regional Director shall
make the list available to 'all parties to the election No extension of time to file this list
shall be granted by the Regional Director except in extraordinary circumstances . Failure
to comply with this requirement shall be grounds for setting aside the election whenever
proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
Hotel Employers Association of San Francisco and Professional
and Clerical Employees , Local 856, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Petitioner and San Francisco Local Joint Executive
Board of the Hotel and Restaurant Employees and Bartenders
International Union , AFL-CIO; and Hotel , Motel & Club Serv-
ice Workers Union , Local No . 283, Intervenor. Case 93O-RC-
6369. June 10, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Offi-
cer Joe R. McCray. The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed. The
Employer, Petitioner, and Intervenor filed briefs with the Board.'
Upon the entire record in. this case, the National Labor Relations
Board finds :
1. The Employer, sometimes referred to herein as the Association,
is an organization of both large and small hotels and motels formed
for the purposes of collective bargaining. The Employer annually
exceeds $500,000 in gross sales and annually purchases in excess of
$50,000 worth of goods from outside the State of California. The
' The Employer and Intervenor 's requests for oral argument are hereby denied as the
record and briefs adequateW present the issues and positions of the parties.
159 NLRB No. 15.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties stipulated, and we find, that the Employer is engaged in com-
merce within the meaning of the Act.
2. The Petitioner, sometimes referred to herein as the Teamsters,
and the Intervenor, San Francisco Local Joint Executive Board of
the Hotel and Restaurant Employees and Bartenders International
Union, AFL-CIO, and Hotel, Motel & Club Service Workers Union,
Local No. 283, are labor organizations claiming to represent certain
employees of the Employer.
3. The Petitioner seeks to represent an associationwide unit, as
amended at the hearing, of "all front desk clerks and office clerical
employees, including room clerks, information clerks, reservation
clerks, cashiers, accounting and auditing clericals, and all other office
clericals (a residual unit) ; excluding all employees currently covered
by collective bargaining agreements, guards and supervisors as
defined in the Act." Alternatively, the Petitioner states that if the
Board finds its primary position too narrow, it will accept as part of
the residual unit some few fringe classifications of employees, who, as
revealed by the testimony, are not clerical but who are unrepresented.
Should the Board find that the Intervenor's contract is a bar to pro-
ceeding to an election among the front desk employees, Petitioner, as
a second alternative unit position, will accept an election in a residual
unit of all the remaining employees save the front desk personnel.
The Intervenor asserts that since 1948 it has had collective-
bargaining contracts with the Employer covering the employees
sought by the Petitioner and that since the petition is not timely filed
with respect to the most recent contract, the petition should be dis-
missed. The Intervenor further asserts that it was and is the author-
ized representative of all the Employer's front office employees,
recognized and confirmed as such by an arbitration award. The
Employer's position is essentially the same as the Intervenor's. Both
contend that the only appropriate unit is a true residual group, save for
the front office employees, but urge the Board to dismiss the petition on
the basis of the long bargaining history between the Intervenor and
Employer.
Since 1937, when the Association was formed, the Intervenor has
represented most of the employees of the employer-members of the
Association with which it has maintained a continuous bargaining
relationship evidenced by collective-bargaining agreements. However,
the representation of front office employees has remained a matter
of controversy. In this regard, the Association would not recog-
nize the Local Joint Board as representing front office clerks, claim-
ing the clerks were "executives." The consecutive basic agreements
have specifically exempted the front office clerks from coverage. Since
1948, however, subsequent to the negotiation of the basic agreement,
HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 145
the parties have negotiated a supplemental agreement and stipulation
wherein minimum wages were set for the front office clerks. In 1958
the supplemental agreement was expanded to include a medical plan
for front office clerks, premium pay for night work, and periodic wage
adjustments. Nevertheless, the basic contract continued to exempt
the front office clerks.
During the 1964 negotiations between • the Intervenor and the
Employer, the Intervenor demanded that the Association recog-
nize it as the collective-bargaining representative of the front
office employees. Although the resulting contract again specifically
exempted from coverage the front office employees, the supplemental
agreement and stipulation set up their, minimum wage rates and the
expanded benefits of the 1958 supplemental agreement. In addition,
the 1964 negotiations led to a letter from the Association to the Inter-
venor dated September 22, 1964, the same date the most recent basic,
agreement was signed, stating that it was the position of the Associa-
tion that nothing contained in the contract between the parties would
preclude the Intervenor from organizing, representing, or bargaining
on behalf of the front office employees.
Thereafter, Intervenor demanded recognition on behalf of the front
office employees of the Canterbury Hotel, but such recognition was
not given. On February 4, 1965, the Teamsters filed a petition with
the Board which was subsequently withdrawn, for a unit of front
office employees at the Sir Francis Drake Hotel.
- On March 2, 1965, the Intervenor presented evidence of its repre-
sentative status among front office employees of the Association. The
Association refused recognition because of the Teamsters' earlier peti-
tion. Again, on March 26, 1965, the Intervenor- demanded recognition
and arbitration of the -issue involving the front office employees. By
letter dated April 1, 1965, the Association refused the Intervenor rec-
ognition and refused to arbitrate because of the Teamsters' organiz-
ing activities. Thereafter, pursuant to the arbitration clause of the
basic contract between the Interyenor and the Association, the Inter-
venor obtained an order on April 19, 1965, from the California Supe-
rior Court requiring arbitration. The instant petition was filed by
the Teamsters on. April 23, 1965.
Thereafter, on May 19,1965, Arbitrator Arthur C: Miller issued his
award, finding that the Association's letter of September 22, •1964, in
effect obligated the Association, upon proof of majority representa-
tion of the front office employees, to grant recognition to and bargain
with the Intervenor for a complete agreement applicable to those -
employees. Finding that'the Intervenor represented a majority,of the,
front office employees when it demanded recognition in March 1965,
the arbitrator cbficluded that' the` Association was'obligated to bargain
243-084-67-vo]. 159-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the' Intervenor without further delay. Pursuant to that award,
the Association and the Intervenor signed an agreement on' June 1,
1965; extending the basic agreement to the front office employees.
- The' Employer and the-Intervenor contend, first, that their present
contract, executed June 1, 1965, is a bar to the present petition. The
Employer and Intervenor next contend that their supplementary
agreements and stipulations, the most- recent being September 22,
1964, cover the front office employees herein sought, and that since
the instant petition is not timely filed with respect to such agreement,
the petition should be dismissed. As a third contention, the Employer
and Intervenor would have the Board give effect to the above-
described arbitration award in which the arbitrator found that the
Employer was obligated, by virtue of its letter of September 22, 1964,
to 'bargain with-the Intervenor who represented a majority of the
front office employees in March 1965. For the reasons hereinafter set
forth, we reject these contentions.
First, the facts show that the present June 1, 1965, contract, in
existence between the Intervenor and the Employer purporting to
cover the front office employees, was executed long after the Team-
sters' instant petition was filed. Although the terms of this agree-
ment applied retroactively, it is well established that contracts signed
after the filing of a petition cannot serve as a bar.2
Nor can it be maintained that the prior agreements, including the
Employer's letter of September 22, 1964, serve as a bar to an election
herein. The history of bargaining shows that although the Inter-
venor had attempted to obtain recognition from the Association on
behalf of these, front office employees, such recognition had, been
denied and all previous basic contracts between the two had specifi-
cally exempted front office employees from coverage. Nevertheless,
the Intervenor urges the Board to recognize the supplementary agree-
ment applicable to front office employees, negotiated and executed
since 1948' along with the basic agreements, as a contract sufficient to
serve as a bar. This we cannot do. The original supplementary
agreement, titled "Stipulation," stated that in consideration of the
parties agreeing to certain exemptions appearing in section 2 of the
basic agreement, the Association agreed that any hotel becoming a
member of the Association that had employed union, front office
employees would continue to do so,3 and would pay them a minimum
rate. The 1958 supplementary agreement 'states that the basic agree-
ment or any other collective-bargaining agreement between the par-
3 Mt. Clemens Metal Products Company, 110 NLRB 931; Appalachian Shale Products
Co., 121 NLRB 1160; Whitsng Milk Company, 137 NLRB 1143.
a Although this provision is not in the 1964 supplementary agreement, it has apparently
been followed over the years as it appears that the Cecil Hotel is -presently covered under
this provision.
HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 147
ties shall not apply to front office employees except as provided in the
supplementary agreement. The most recent supplementary agree-
ment, like the previous supplements, only modifies the basic agree-
ment by providing minimum wage scales, night work premiums
adjustment in daily wages, and a medical plan for all front office
employees. However, it is clear that the supplementary agreements
did not recognize the Intervenor as the collective-bargaining repre-
sentative of the front office employees, and all that we can infer from
the bargaining history is that the Intervenor failed to gain recogni-
tion for the front office employees. Certainly we cannot accept under
our contract bar principles a contract that does not recognize the sig-
natory union as the collective-bargaining representative of employees
with respect to whom the contract is asserted as a bar.
Finally, unlike our dissenting colleague, we do not consider the
Association letter of September 22, 1964, sufficient to serve as a con-
tract bar-whether read in conjunction with the main agreement or
by itself-for three reasons: (1) As noted, the principal agreement
specifically exempts the front office clerks from coverage, and the let-
ter in no way includes them. (2) The letter states only the "position"
of the Association, that nothing contained in section 2 of the princi-
pal contract shall "preclude" the Intervenor "from organizing, repre-
senting or bargaining on behalf" of the front office employees and
cashiers. In other words, the letter does no more than acknowledge
the Association's changed position that these employees were now to
be susceptible to organization, while at the salve time clearly revealing
that such employees had not yet been covered by any contract. (3)
The letter obviously does not meet the Board's standards for the valid
assertion of it contract bar. Although the Board does not require that
a contract must be embodied in a formal document if it is to serve as
a bar, an asserted contract, if it is to meet minimal bar standards,
must at least be signed by the parties and must contain terms and con-
ditions of employment sufficiently substantial to stabilize the bargain-
ing relationship.' I{ere, the letter does not purport to reflect a specific
agreement of that sort.
For all the foregoing reasons, we find that the documents on which
the Employer and Intervenor rely are insufficient under the Board's
applicable standards 5 to serve as a contract bar. We accordingly
reject the contract-bar contention.
Turning to the question of whether the Board should honor the
arbitration award, it is true, as the Board held in Raley's; that Sec-
tion 9 of the Act, which empowers the Board to decide questions con-
* Appalachian Shale Products Co , supra.
5In addition , we note, as hereinafter set forth , that the appropriate unit is not a sepa-
rate unit of front office employees , but a residual unit including the front office employees
6 Ralev's Inc. d/b/a Raley's Supermarkets, 143 NLRB 256, 259
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning representation , "does not preclude the Board in a proper case
from considering an arbitration award in determining whether such a
question exists." But we do not believe in the circumstances of this
case that the arbitrator's award may properly be regarded as disposi-
tive of the ultimate issue we must decide. The situation now before
us is plainly distinguishable from that in Raley's. There the arbi-
trator had before him a question of contract interpretation which,
once resolved, was also determinative of the central issue before the
Board. Moreover, in Raley's the Board found nothing in the arbi-
tration award that was "repugnant to the purposes and policies of the
Act." Here, the only question of contract interpretation presented to
the arbitrator was whether in the 1964 negotiations the Association
had agreed to recognize the Intervenor as the representative of the
front office' employees-of the'Employer if and when the Intervenor
attained a majority among such employees. But the determination
which the arbitrator made with respect to the question of contract
interpretation did not dispose of the ultimate issue we must decide.
Thus, in his award, the arbitrator, although taking notice of the or-
ganizing efforts of the Teamsters, did not consider or decide whether,
notwithstanding his contract interpretation, a question of representa-
tion nevertheless existed by reason of the Teamsters' competing rep-
resentation claim.? He found simply that the Employer was obli-
gated to recognize the Intervenor as bargaining representative of the
front office employees who were referred to by the parties in their
understanding of September 22, 1964, and as to whom the Inter-
venor had since made a showing of majority interest. But that
showing had postdated the Petitioner's claim with respect to at least
some of these employees (front office employees at one of the Associa-
tion hotels), a claim which was expressed by Board petition. That-
petition both presented a unit issue and raised a question concerning
the majority status of competing unions with respect to front office
employees in the San Francisco area, issues best resolved by the
Board's own processes in these circumstances. Although the Peti-
tioner's initial petition was subsequently withdrawn, the Employer
consistently refused to recognize the Intervenor, specifically because
of its awareness of the Petitioner's organizing activities; and, the
Employer itself filed an RM petition (later dismissed for unit reasons
by the Regional Director) to resolve the competing claims of the
two labor organizations. We note, moreover, that the present petition
was filed on April, 23, 1965, almost -1 month before the above-
mentioned arbitrator's award issued. The arbitrator's award did not
order bargaining and the Respondent did not in fact accord the
7 Petitioner was not a party to the arbitration proceeding even though it had been
organizing the employees of the Employer , whose representation was in issue before the
arbitrator.
HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 149
Intervenor recognition until after the petition herein was filed, in
short, at a time and under circumstances when adherence to basic
principles of the Act requires that the choice of employee representa-
tive be made by a secret-ballot election. For these reasons, we find
it will not effectuate the policies and purposes of the Act to honor the
arbitration award here urged.
We have found that neither the existing multiemployer contract
between the Association and the Intervenor, nor the supplementary
agreement, nor the Employer's letter of position of September 22,
1964, was operative to bar the petition filed herein. We have further
found that, in the circumstances of this case, we cannot give effect to
the arbitration award. Accordingly, we find that a question affecting
commerce exists concerning the representation of employees of the
Employer within the meaning of Sections 9(c) (1) and 2(6) and (7)
of the Act.
4. The parties are in disagreement as to the appropriate residual
unit. The Petitioner seeks a broad clerical residual unit, but stated it
would accept as part of the residual unit several fringe classifications
of employees, who, as revealed in the record, are not clerical and are
unrepresented. The Employer and Intervenor would exclude the
front desk employees under their contract-bar argument, supra, but
apparently agree that the appropriate residual unit includes all other
unrepresented employees of the Employer. We have rejected this
contract-bar argument, and even though the Intervenor seeks to repre-
sent the front desk personnel separately, we find that they are prop-
erly included in a unit of all unrepresented employees of the Associa-
tion and that such unit is an appropriate residual unit.8
The parties stipulated that the following classifications generally
are managerial or supervisory and should be excluded: owners; gen-
eral managers; resident managers, and executive assistant managers;
assistant managers at the Bellevue, Chancellor, Clift, Drake-
Wiltshire, Fairmont (Messers, Goldsworthy, Messinezell, and Paul),
Golden State, Jack Tar, Mark Hopkins, Plaza, St. Francis, Sheraton
Palace, Handlery Motor Inn, and Stewart Hotels; personnel direc-
tors and the assistant personnel-managers at the San Francisco Hil-
ton and Sheraton Palace Hotels; chief fiscal officers called auditors or
comptrollers; the head night auditor at the Fairmont Hotel; the
assistant auditors at the Drake-Wiltshire, San Francisco Hilton, and
Mark Hopkins Hotels; the food and beverage controller at the Shera-
ton Palace and Fairmont Hotels; purchasing agents; sales; catering,
banquet, food and beverage, and credit managers ; bar managers;
housekeepers; chefs, executive stewards, and the two assistant execu-
B-In.finding ,a residual unit, we -note,,and the parties agree, that the following classifica-
tions should be excluded: (1) employees of corporations other than, members of the Asso-
elation ; ( 2) employees of the Hilton Reservations Service; ( 3) employees of the conces-
sionaires; and ( 4) student trainees who are not regular part-time employees.
150 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
tivestewards at the San Francisco Hilton Hotel; the building super-
intendent at the Fairmont Hotel'; the reservations managers' at the
Jack Tar, Sheraton Palace, 'and Sir Francis Drake Hotels; the man-
ager of the Starlight- Roof and the brill. maliager at the Sir' Francis
Drake; the-assistant catering manager at the St.'Francis 'Hotel; and
the bookkeepers at the Cecil and Beverly Plaza Hotels. It, appears
that the parties' stipulations generally follow Board cases involving
managerial or supervisory po'siti'ons in hotel units; and we shall'there-
•fore accept the parties' stipulations and exclude the above-mentioned
classifications from the unit. The record further shows that ulirepre-
sented department heads at the larger hotels, 'such as`chief engineers
and laundry managers, possess and exercise supervisory authority.
Thus; we shall also exclude` them from the' unit. ` ' -
The parties also stipulated that the following classifications gen-
erally are confidential and should be excluded : the personal secre-
taries of managers; the personal secretaries of the resident managers
of Del Webb'sTownehouse, -Mark Hopkins, San Francisco Hilton, and
St. Francis Hotels; the secretary to the executive assistant'manager
at the, Fairmont Hotel; the secretaries of the building superintendent
and the controller' of the Fairmont Hotel.; the secretary of the resi-
dent auditor at the Mark Hopkins Hotel; the secretaries of the sales
managers'at the San Francisco Hilton and Sir Francis'Drake` Hotels;
and the secretaries of personnel directors. The parties also stipulated
that the Los Angeles representative of the Hotel Californian and the
daughter of the manager of the Villa Roma should be' excluded from
the unit.' We shall accept the parties' stipulation' and exclude the
abovementioned employees from the unit.
At the hearing the Employer and Petitioner were in disagreement
as to a number of employees who the Employer claimed are confiden-
tial employees such' as secretaries or clerks to certain department man-
agers. The record shows that, in addition to routine secretarial and
clerical work, these secretaries and clerks keep time and work records,
and type memoranda dealing with personnel matters. However, we
find that these -secretaries and clerks, except as stipulated, are not
sufficiently concerned with labor relations matters to be considered
confidential employees who should be excluded from the unit. Mere
access to personnel records does not qualify an employee -as a confiden-
tial employee. As it appears these secretaries and,clerks do not assist
or act in a confidential capacity to persons who formulate, determine,
and effectuate -management policies in the field of labor relations,"
but perform only routine work, we include them in the unit.
Y The reservations manager at the San Francisco Hilton also exercises supervisory func-
tions comparable to the reservations managers who are excluded by stipulation . We shall
therefore exclude him.
10 See Eastern Camera and Photo Corp ., 140 NLRB 569.
HOTEL EMPLOYERS ASSOCIATION OF, SAN FRANCISCO -151
The parties disagreed on the record, -as to whether-the following job
classifications are supervisory or managerial., The Employer contends
that they are supervisory or. managerial, the Petitioner argues that
they are not. -
. The, catering assistant, 5 the convention manager, and the head
checker,-cashier at the San Francisco Hilton: The catering assistant is
an assistant to the two catering managers, and although he does not
have authority . ,to ;hire and, fire, the record indicates that he can so
recommend. However, the record does -not show that he has ever
made a recommendation or that; such would be effective, or that he has
any of the other indicia of a supervisor. Since it appears that actual
authority is vested in others, we shall include him in the unit. The
convention manager works in the, sales department under the director
of - sales. The convention manager's primary - duty is to set up
arrangements for, and to serve, conventions, duties that keep him
within the hotel. ;It,is not entirely clear whether or not he possesses
the requisite attributes of supervisory authority to be classified as a
supervisor, and we are-therefore not prepared without, further evi-
dence to make a determination of this status. We shall therefore allow
him to vote subject to challenge. The head checker-cashier makes up
the work schedules of all the checkers ,and cashiers employed by the
hotel, and her, main responsibility ,is• the supervision of checkers and
cashiers. She has the authority-to hire-and fire. We find, therefore,
that the head checker-cashier is •a supervisory employee and should be
excluded from the unit.- It further appears from the record that the
assistant housekeeper, the assistant laundry manager, and the liquor
store manager at the San Francisco Hilton responsibly direct employ-
ees, have authority to. hire and fire, and are therefore supervisors
within the meaning of the Act. We shall exclude them from the unit.
The assistant personnel manager, at, the Sheraton Palace: This
employee screens, interviews, and tests applicants for employment and
recommends hiring and firing. She is responsible for the preparation
and issuance' of -the general managers' daily report, a copy of which
goes to the department heads. She performs clerical duties, handles
unemployment compensation claims, maintains personnel records, and
handles minor grievances when the personnel manager is absent from
the hotel. We find from the, record evidence that the assistant per-
sonnel director acts not only in a confidential capacity but also fre-
quently in a managerial capacity and shall therefore exclude her from
the unit.
The relief assistant managers at Del-Webb's Townehouse and the
Fairmont . Hotel who have not been 'excluded by stipulation : The
relief assistant managers at the Fairmont Hotel regularly work 2 or 3
days a week as room clerks, and it appears they relieve as assistant
U For the same reasons, the cashier-supervisor at the Sheraton Palace is also excluded.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
managers during lunch hours, the early morning hours between 2 or 3
a.m. until 7 a.m., vacation periods, and weekends. As in the case of
the Hilton assistant manager, the record as made is not sufficiently
clear and complete in a number of respects to allow a judgment on the
issue of their supervisory status. We shall not, therefore, determine
that issue now, but will allow them to vote subject to challenge.
The record further shows that the relief assistant manager and the
"graveyard" assistant manager at Del-Webb's Townhouse 12 perform
essentially the same duties as the relief assistant managers at the
Fairmont Hotel. Accordingly, we shall also allow them to vote sub-
ject to challenge.
The three senior room clerks at the Sheraton-Palace : The senior
room clerks rent and assign rooms to guests, arrange transfers of
guests, check guests out of the hotel, and refer guests to the front
office cashier for payment. They receive and distribute mail, and
receive and handle guests complaints-all duties shared by the other
room clerks. In addition, the senior room clerks notify the house-
keeping department of the expected number of arrivals and depar-
tures, periodically inspect guest rooms, and supervise the junior room
clerks in their duties. Although the senior room clerks can recom-
mend hiring and firing, it appears they have no duty to do so, and
such action would be voluntary on their part. As far as recommend-
ing reward or discipline, the senior room clerks would talk to the
resident manager, and, on the basis of that information, a judgment
would be made. The record shows two instances where a senior room
clerk has made an effective recommendation, but this appears to be
the exception rather than the rule. Thus, one junior room clerk was
promoted on the recommendation of a senior room clerk after an
inquiry was made throughout the hotel for an employee. The other
instance involved a clerk who could not perform his duties and at
the request of the senior room clerk was transferred. However, it ap-
pears that the actual authority was lodged in, and the decision to make
these transfers was performed by, others. In addition, the record
supports the conclusion that the senior room clerks direct others in
only a routine manner since at all times a, resident manager is pres-
ent, and the majority of their time is spent performing the same
duties as the junior room clerks. For these reasons, we shall include
them in the unit.
The parties are in agreement that the Hotel Employers Association
of San Francisco constitutes an appropriate unit. Hence, we shall
12 As the record is not clear as to the number of assistant managers at Del-Webb's
Townehouse , we shall consider them by title. The general manager , resident manager,
and executive assistant manager are excluded from the unit by stipulation. The record
shows that the evening assistant manager exercises supervisory authority, and we shall
therefore exclude him. - --
HOTEL EMPLOYERS ASSOCIATION OF SAN FRANCISCO 153
treat the Teamsters' petition as a request for a residual unit of all
unrepresented employees employed by the Hotel Employers Associa-
tion of San Francisco members.13 In view of the foregoing, we shall
direct an election in the following unit of employees which we find to
be appropriate 14 for the purposes of collective bargaining within the
meaning of Section 9(c) of the Act.
'All unrepresented employees employed by the Employer, Hotel
Employers Association of San Francisco, including accounting
department employees, office clerical employees, front office employees
(including cashiers, night auditors, and voucher clerks), the catering
assistant at the San Francisco Hilton,15 sales representatives and
regular part-time employees, but excluding confidential employees,
owners and managerial employees, the head checker-cashier at the
San Francisco Hilton, the cashier-supervisor at the Sheraton-Palace,
the assistant personnel manager at the Sheraton-Palace, student
trainees, employees of corporations other than members of the Asso-
ciation, professional employees, guards, supervisors as defined in the
Act, and employees covered by existing collective-bargaining
agreements. -
[Text of Direction of Election omitted from publication.] 16
MEMBER BROWN, dissenting in part :
I cannot agree with my colleagues' conclusion that the front desk
employees of the hotels should be included in the residual unit of
clericals found appropriate herein. In my view, the petition was
untimely as to them. Hence, I would direct an election among the
clerical employees in the ' alternative residual unit sought by Peti-
tioner; i.e., excluding the front desk personnel.
"There are certain miscellaneous employee classifications such as the money washer
and the Captain and steward of the Ship Adventuress employed by the St. Francis Hotel
whose inclusion or exclusion are not urged on the record or in the briefs. We find such
employees are properly part of the residual unit herein found appropriate
14 The unit found appropriate contains employees not originally sought by the Peti-
tioner. Therefore , the sufficiency of the showing of interest is not clear . Accordingly,
we direct the Regional Director not to proceed with the election hereinafter directed until
he shall have first determined that the Petitioner has made an adequate showing of in-
terest among employees who are eligible to vote in the election.
w By Board order of August "19, 1966, the catering assistant at the San Francisco
Hilton was deleted from the appropriate unit by agreement of the parties as this employee
is covered by another contract.
19 An election eligibility list, containing the names and addresses of all the eligible
voters, must be filed by the Employer with the Regional Director for Region 20 within
7 days after the date of this Decision and Direction of Election . The list may initially be
used by the -Regional Director to assist in determining an adequate showing of interest.
The Regional Director shall make the list available to all parties to the election when he
shall have determined that the Petitioner has made an adequate showing of interest 'among
the employees in the unit found appropriate . No extension of time to file this list shall
be granted by the Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election whenever
proper objections are filed . Excelsior Underwear, Inc, 156 NLRB 1236.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
The facts are discussed at some length in the majority opinion.
However, it seems desirable to restate some of them and to note addi-
tional matters not alluded to therein.
It should be observed That the Association and the Intervenor have
had a bargaining relationship dating back to 1937. Beginning in
that year and continuing until the Arbitrator's award in 1965, the
Intervenor's right to represent the front desk personnel was in dis-
pute. The issue throughout this period did not concern the Inter-
venor's majority status among those employees but revolved about
the question of whether front desk clerks were employees entitled to
the benefits. of the Act, the Employer contending they were confi-
dential employees or executives and exempt from collective bargain-
ing. In 1937 the Intervenor struck over this issue and lost insofar as
Association members were concerned, but front office employees of
nonmembers of the Association were included in the separate hotel-
wide units. In 1941 another strike, the last in the hotel industry in
San Francisco as of the date of this Decision, occurred over this issue
at the end of the first contract term. Once again the matter was not
resolved, and it remained a subject of continued discussion through-
out the years. Beginning in 1948, the Association and the Inter-
venor, at the same time they negotiated 'their regular agreements,
signed a so-called "Stipulation" in which, inter alia, they provided
for wage rates of front office employee and their inclusion under the
medical plan. Also beginning at about this time, some hotels,
already covered by separate contract includii ' lg front desk employees,
joined the Association with the understanding such clericals also
became part of the basic multiemployer unit. In 1958, the parties
entered a "Supplementary Agreement" covering the disputed employ-
ees which included more extensive provisions with respect to wage
rates, premium pay, and periodic wage adjustments to conform with
those agreed to for other employees.
Finally in 1964, after a number of "stipulations" and "supplemen-
tary agreements" had been signed throughout the years, the Inter-
venor again sought to have full benefits of the existing unit extended
to the front desk personnel, demanding that the group be covered by
all the provisions of the main agreement. As a result, when the con-
tract was signed on September 22, 1964, in addition to the supple-
mentary agreement concerning conditions applicable to the front
office clerks, the parties agreed in writing that upon submission of
proof of current representation full contract coverage would be
extended to the front office cashiers as well as clerks. On March 2
and 26, the Intervenor asserted its majority status and demanded
that the Employer comply with its September undertaking, and be-
cause of the Employer's refusal the Intervenor sought a court order
HOTEL EMPLOYERS ASSOCIATION OF' SAN FRANCISCO 155
directing arbitration of the issue. The said order was issued on
April 19, 1965, and, the instant petition was filed on April 23`. On
May 4 the arbitration proceeding was held, and on May 15, 1965; the
award was handed down to the effect that beginning in March 1965
the Intervenor 'had current authorizations from a majority of the
affected employees. On June 1, 1965, the Employer and Intervenor
signed an agreement extending the basic agreement to the front office
employees.
On the above facts, the majority has found, in effect, that the
Employer merely agreed to extend recognition to the Intervenor at
a later time upon a showing of majority, and therefore the instant
petition was timely, having been filed before the signing of a contract
covering the disputed employees. This approach fails to give any
effect to the history of relations between the parties or to the agree-
ments entered between them prior to the filing of this petition.
• In my opinion, there can be no doubt that the Employer in fact
had long recognized the Intervenor as the majority representative of
the front office employees. The principal issue between them through-
out the years was the extension of the existing contract to those
clerks. However, in September 1964 the Employer and the Inter-
venor agreed in writing that upon a showing of majority status the
full coverage would be extended. This can only be construed as an
agreement upon,contract terms, subject only to the condition of proof
of current majority. When that proof was given in March 1965, the
condition was satisfied and the September 1964 agreement thereupon
became effective. The Employer's failure to honor its commitment
did not modify the binding nature of its contractual obligations to
the Intervenor; nor did the contract thereafter executed in June 1965
do so, for it, in effect, only confirmed the outstanding contractual
relationship between the parties. I would therefore find that the
Employer and the Intervenor had a valid contract, which became
operative in March 1965, covering the front office employees in the
existing unit and that the subsequent petition is therefore untimely
as to them.
To hold that the September 1964 agreement does not bar this peti-
tion not only misconstrues the, impact of the conduct of the parties
but is, I believe, also contrary to established policies. The Employer
and Intervenor have, for more than 25 years, successfully resolved
their differences without resort to either strikes or lockouts, and
throughout this period they have utilized voluntary arbitration in
disposing of contract disputes. This is precisely what they did in
the current situation in agreeing on applicable terms (i.e., extension
unfurnished, and the other a 4-story structure containing 76 units,
of the current contract) conditioned upon presentation of majority
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showing, and the instant petition filed subsequent to a court order
directing arbitration to construe the terms of that very agreement 17
Furthermore, the residual unit found herein by the majority does not
include all persons employed by Association members within the
identical categories, and will result in the division of front office
employees between the basic multiemployer unit and the residual
unit."' Accordingly, I would find that all front desk employees are
included in the overall unit and that the present petition is untimely
as to them.
'- See Dube Manufacturing Corporation , 142 NLRB 431, 432. Cf. Raley's, Inc., 143
NLRB 256.
1, Cf. The Rose Ewterminator Company of Northern California , 143 NLRB 59 ; Westing-
house Electric Corporation ( Elevator Division ), 112 .NLRB 590 ; Westinghouse Electric
Corporation, 110 NLRB 387; The Daily Press, Incorporated , 110 NLRB 573.
The Mensh Corporation and Building Service Employees Interna-
tional Union, Local 82, AFL-CIO, Petitioner. Case 5-RC-5502.
June 10, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hear-
ing Officer William I. Shooer. The Hearing Officer's rulings are
free from prejudicial error and are hereby affirmed. Thereafter, the
Employer filed a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Jenkins, and
Zagoria].
Upon the entire record in this case, the Board finds :
1. The Employer is a Delaware Corporation with its principal
office and place of business in the District of Columbia where it is
engaged in the ownership and management of real property. We find
that it will effectuate the policies 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 concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. The Employer operates two apartment buildings, one an 8-story
structure containing approximately 270 units , most of which are
" The Westchester Corporation, 124 NLRB 194.
159 NLRB No. 11.