Hotel Westward Ho

National Labor Relations Board - Board Decisions

Jun 13, 1968

171 N.L.R.B. 1351 (N.L.R.B. 1968)

HOTEL WESTWARD HO 1351
Hotel Westward Ho and Hotel and Restaurant Em-
ployees and Bartenders ' Local Union 631,
AFL-CIO, Petitioner. Case 28-RC- 1699
June 13,1968
DECISION ON REVIEW
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BOWN
On October 26, 1967, the Regional Director for
Rgion 28 , issued a Dcision and Direction of Elec-
tion in the above -entitled proceeding in which he
found appropriate a unit of the Employer's hotel
kitchen employees . Thereafter the Employer, in ac-
cordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Se-
ries 8, as amended , filed with the National Labor
Relations Board a timely request for review of such
Decision and Direction of Election, contending,
inter alia , that the only appropriate unit should in-
clude all its unrepresented hotel operating em-
ployees.
The Board, by telegraphic order dated December
5, 1967, granted the Employer 's request for review
of the Regional Director 's unit determination and
stayed the election.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case 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:
The Westward Ho is a hotel located in Phoenix,
Arizona . Petitioner seeks a unit limited to the
hotel's kitchen employees .' The Employer contends
that the only appropriate unit should include-in
addition to its kitchen personnel-all of its other
unrepresented operating employees. The Regional
Director , upholding the Petitioner , found the
requested kitchen unit to be appropriate . The Em-
ployer argues on review that a kitchen unit is inap-
propriate because the kitchen is functionally in-
tegrated with other hotel operations and, in any
event , that a unit of hotel kitchen employees is con-
trary to Board precedent . We reject these conten-
tions and uphold the unit determination of the Re-
gional Director.
At least 60 percent of the Employer's business is
derived from conventions held at the hotel and al-
most 80 percent of its dining room customers are
hotel guests attending conventions there. The ac-
tivities of all departments of the hotel including
food service are carefully coordinated for each con-
vention.
Food is served at the hotel in the main dining
room, a fountain, and three private clubs.3 The
food for all of these service locations is essentially
prepared in the main kitchen. Additional "touches"
may also be added to food served in the private
clubs by cooks detailed from the main kitchen who
perform this work in a small auxiliary kitchen ad-
jacent to each club.
All food facilities of the hotel come under the ju-
risdiction of the Employer's Food Service Depart-
ment which is supervised by the catering office su-
pervisor. The latter discusses problems with, and
makes suggestion to, the kitchen chef with a view
towards improving service. The chef also attends
meetings of dining room personnel at which food
service is discussed. The chef does not, however,
report to the catering office supervisor but is in-
stead directly responsible to the Employer's pre-
sident or hotel general manager.
All 27 employees of the kitchen are under the
overall supervision of the chef, although the dish-
washers and porters are immediately supervised by
the kitchen steward. The chef has authority to hire
or discharge kitchen personnel subject only to
clearance by the central office. He determines the
kitchen's hours of work, schedules overtime and va-
cations, disposes of grievances, and recommends
wage increases within the framework of the hotel's
wage scales.
The Employer contends that there is an overlap
in the functions and skills of the kitchen help and of
the employees working in other work areas of the
hotel such as the storeroom, linen room, and dining
room. It further argues that the employees in the
kitchen interchange with personnel assigned to
other operating departments and that kitchen em-
ployees have regular contacts with the public. The
record, however, lends little support to those con-
tentions.
Thus, it does not appear that any employees ex-
cept those assigned to the kitchen are engaged in
the preparation of food. Interchange of employees
between the kitchen and other departments is
' The Employer 's request for oral argument is hereby denied because the
record , including the request for review and briefs, adequately presents the
issues and positions of the parties.
2 The unit found appropriate by the Regional Director includes all cooks,
cooks ' helpers , pantry workers , butchers , bakers, kitchen helpers, dish-
washers, and kitchen porters Inasmuch as the record was insufficient to
determine the status of the cafetena employee or employees, the Regional
Director decided to permit him or them to vote subject to challenge
7 The hotel cafeteria is used exclusively by hotel employees
171 NLRB No. 173
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minimal , and its dearth is explained by the hotel's
policy not to assign employees to duties at which
they have had no experience. On the occasions
when kitchen employees have been asked to wait
on tables in the dining room, only those with prior
experience as waiters have been so assigned. Dish-
washers have been detailed, infrequently, to scrub
floors when the hotel was short handed. There is no
indication that other hotel employees have ever
been assigned to work in the kitchen.
A a general rule kitchen employees have no con-
tact with the public. Exceptions occur when a buf-
fet is put on and a cook is sent to carve roast beef
or, to a more limited degree, when cooks work in
an auxiliary kitchen next to one of the three private
clubs putting finishing touches on food to be served
there.
None of the Employer's employees are presently
represented with the exception of steamroom em-
ployees,' who are represented by Local 428, Inter-
national Union of Operating Engineers, AFL-CIO.
Petitioner had represented a hotelwide unit of the
Employer's employees from 1943 to 1947, but
there has been no bargaining for nonsteamroom
personnel for more than 20 years. Petitioner also
presently represents hotelwide units of the Adams
Hotel and the Samoan, two other hotels which are
similar to the Wstwared Ho and which are located
in Phoenix, Arizona. No labor organization at this
time seeks a broader unit of the Employer's em-
ployees than that described by the petition.
On these facts the Regional Director found a
kitchen unit to be appropriate primarily relying
upon, John Hammonds and Roy Winegardner, Part-
ners, d/bla 77 Operating Company, d/b/a Holiday
Inn Restaurant, 160 NLRB 927, in which the Board
found appropriate a less than overall unit of motel
employees, and also relying upon Toffenetti Restau-
rant Company, Inc., 133 NLRB 640, in which the
Board found appropriate a unit of kitchen em-
ployees at a restaurant.
The Employer's principal argument on review is
that these precedents are inapplicable to this case.
Thus, it points out that, unlike Holiday Inn, the
facilities of the Wstward Ho are highly integrated
and that the kitchen and dining room are operated
merely as a part of its service to its guests. The Em-
ployer likewise contends that Toffenetti does not
' Steamroom employees , stationary engineers , and additional main-
tenance personnel.
' A policy originally enumcated in Arlington Hotel Company, Inc., 126
NLRB 400
' Holiday Inn, supra , 930 (Emphasis supplied
' Allied Stores of Ohio, d/b/a A Polsky Company, 90 NLRB 1868 (a
restaurant unit at a retail department store ), and F. W Wool%orth, 144
NLRB 307, 309 ( a departmental unit of lunch counter , snackbar , baking
apply because there, unlike the Regional Director's
finding here, an essential basis for the Board's unit
determination was a unique local pattern of bar-
gaining for kitchen units. We reject these conten-
tions.
The Board's decision in Holiday Inn applies to
this as well as other unit determinations in the
hotel/motel industry. In Holiday Inn the Board
specifically overruled its longstanding policy of
favoring overall units of hotel employees.' Noting
that its experience in dealing with hotel unit issues
over a period of years had shown that a high degree
of integration coupled with a close community of
interest among all employees does not necessarily
exist in every hotel operation, the Board further
stated that in future hotel cases it would
"[t]hereafter consider each case on the facts pecu-
liar to it in order to decide wherein lies the true
community of interest among particular employ-
ees"6 at a hotel; i.e., follow the Board's general cri-
teria as they have developed from the Board's prac-
tice for dealing with unit questions in all industries.
And in finding a less than overall unit to be appro-
priate in Holiday Inn, viz, a unit of restaurant em-
ployees, the Board applied certain restaurant unit
precedents involving analogous, but nonhotel, en-
terprises which provided food service.'
Therefore, in determining an appropriate unit
based on the community of interest "among par-
ticular employees" at a hotel in accordance with
the rule of Holiday Inn, we shall follow our general
practice for all industries-of weighing all relevant
factors, such as distinction of skills and functions,
lines of supervision, employee interchange, the en-
terprise's organizational structure, integration of
operations, etc. This is precisely what the Regional
Director did here. While it is true that the opera-
tions of the Employer are somewhat more in-
tegrated than those of the employer in Holiday Inn,
this' integration of the Employer's various guest
service activities standing alone does not establish
the inappropriateness of the unit sought by the Peti-
tioner.' In agreeing with the Regional Director's
unit finding, we note in particular the following
considerations: Effective supervision of the kitchen
employees is vested in the chef, including the effec-
tive power to hire and discharge employees, dispose
of grievances, schedule overtime and vacations,
counter, and kitchen employees at a retail chain variety store).
I In Holiday Inn the motel and the restaurant were operated in separate
buildings
' The Board has held, subsequent to Holiday Inn -as the Regional
Director also pointed out in his decision-that integration of operations is
merely one factor to be considered in arriving at an appropriate unit deter-
mination but this factor is not necessarily controlling. See E. I DuPont de
Nemours and Company, 162 NLRB 413.
HOTEL WESTWARD HO
establish working hours , and recommend wage in-
creases . The kitchen employees enjoy a separate
functional identity centered around their special
skills in the preparation of basic foods. We further
note the kitchen employees' infrequent contact
with the hotel 's clientele ( hotel guests or diners);
the absence of substantial interchange between the
kitchen and other employee groupings at the hotel;
the remoteness of a bargaining history on a broader
basis; the circumstance that no other labor or-
ganization is seeking to represent the Employer's
employees in a broader unit; and, finally, the fact
that the bargaining history for the Employer's
steamroom employees demonstrates the feasibility
at this hotel of less than an overall unit. The Re-
gional Director 's determination was therefore in ac-
cord with the underlying principle of Holiday Inn.
In further accord with Holiday Inn, the Regional
Director drew from the Board 's experience in
determining units of food service employees by ap-
plying Toffenetti -a restaurant industry decision-
as the direct authority for his kitchen unit finding.
For, as previously mentioned, the Board in Holi-
day Inn specifically held that restaurant unit
principles may be applied in determining a unit of
hotel food service employees. 10
While there is a factual distinction between the
present case and Toffenetti, in that the record in
Toffenetti showed a widespread pattern of bargain-
ing for kitchen units in the local area which is not
"The limitation in Toffenetu -where the Board stated that its kitchen
unit finding there was not intended to change its then existing overall unit
rules for the hotel industry-has been withdrawn by the force of the
Board 's decision in Holiday Inn
" The record herein indicated that kitchen employees are included in
broader units at the only other two hotels in the Phoenix , Arizona, area
which appear to have kitchen employees which are organized . However,
we do not believe that the local history is sufficient to constitute a pattern
of any significance . Moreover , it also appears that there are , at other hotels
in the local area , units less than hotel wide in scope For, as has been men-
tioned , the Employer 's hotel has a steamroom unit And the Employer con-
cedes in its request for review that this unit "was the product of a long
standing area bargaining history which exists to this day"-thus indicating
the existence of separate steamroom units at still other local hotels. Since
the local pattern of bargaining is therefore mixed -some overall units and
some smaller units- the only meaning we can attach to this background is
that both overall or smaller units of hotel employees are a matter of indus-
trial reality in the Phoenix area
Holiday Inn, supra ; Toffenetti Rstaurant Company, Inc., supra.
" Pointing to some testimony that Petitioner was unsuccessful in or-
ganizing any of the hotel 's unrepresented employees except in the kitchen,
the Employer also argues that the Rgional Director's unit determination is
based upon Petitioner 's extent of organization and is contrary to the
proscription of Sec . 9(c)(5) of the Act. However , the Regional Director
did not rely upon this factor in making his unit findings . And even if he had,
his determination would not violate Sec . 9(c)(5) For, as the Supreme
Court held in N.L.R.B. v Metropolitan Life Insurance Company, 380 U.S.
438, 441-442, " both the language and the legislative history of §9(c)(5)
demonstrate that the provision was not intended to prohibit the Board from
1353
present in this case," the fact remains that the
Board's decision in that case is also based on a find-
ing that the kitchen employees possess a separate
community of interest, and the local pattern of bar-
gaining in that case serves, moreover, to support
the fundamental proposition that a unit of kitchen
employees is practicable. Further, the other factors
with respect to the kitchen employees in Toffenetti
i.e., their limited contacts and interchange and the
distinct nature of their work, are virtually the same
in the present case.
In view of all the foregoing, but particularly the
separate identity and functions of kitchen em-
ployees, their separate immediate supervision, the
minimal interchange with other employees, their in-
frequent contact with the public, the remoteness of
a bargaining history on a broader basis, and the fact
that no other labor organization seeks a broader
unit at this time, and the fact that a less than overall
unit of this Employer's employees is clearly feasible
(because of the bargaining history in the steam-
room unit), we find, in agreement with the Re-
gional Director, that a unit of kitchen employees12
is appropriate.13
Accordingly, the case is remanded to the Re-
gional Director for Region 28 for the purpose of
conducting an election pursuant to his Decision and
Direction of Election in the unit found appropriate
except that the payroll period for determining eligi-
bility shall be that immediately preceding the date
below.14
considering the extent of organization as one factor , though not the con-
trolling factor , in its unit determination " See also Western and Southern
Life Insurance Company, 163 NLRB 138, enfd. 391 F 2d 119 (C.A. 3).
The Employer also urges that we should find that either an overall unit
excluding the steamroom employees is appropriate or, in the alternative,
that a unit of all the food department employees including the kitchen is
appropriate . In upholding the finding of the Regional Director that the
requested kitchen employees constitutes an appropriate unit we do not sug-
gest that either alternative unit proposed by the Employer is inappropriate.
We do not need to reach the latter questions For there is nothing in the
Act which requires that the unit for bargaining be the only appropriate
unit The Act requires simply that the unit be "appropriate " to insure to
employees in each case the fullest freedom in the exercise of their rights
guaranteed by the Act. Western and Southern Life Insurance Company,
supra, and cases cited at fn . 19 therein And it is not the Board 's function to
compel all employees to be represented or unrepresented at the same time
nor to compel a labor organization to represent employees it does not wish
to represent unless an appropriate unit does not otherwise exist . Mc-Mor-
Han Trucking Co , Ic., 166 NLRB 700, and cases cited in fn 6 therein.
'a An amended election eligibility list, containing the names and ad-
dresses of all the eligible voters, must be filed by the Employer with the Re-
gional Director for Region 28 within 7 days after the date of this Decision
on Review . 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