Howard Johnson Co.

National Labor Relations Board - Board Decisions

Jun 28, 1978

236 N.L.R.B. 1206 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Johnson Company and Hotel, Restaurant
Employees' & Bartenders Union Local 267, AFL-
CIO, Petitioner. Case 4-RC-12791
June 28, 1978
DECISION ON REVIEW
BY MEMBERS JF NKINS, PENELLO. AND MURPHY
On September 8, 1977, the Regional Director for
Region 4 issued a Decision and Direction of Election
in the above-entitled proceeding, in which he found
appropriate the Petitioner's requested unit of restau-
rant employees employed at the Employer's 1119
South College Avenue, Newark, Delaware, facility;
excluding, among others, banquet room and cocktail
lounge employees employed at the physically sepa-
rate motel facility, banquet coordinators, bookkeep-
ers, acting relief managers, and hostesses. Thereafter,
in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Employer filed a timely request
for review of the Regional Director's decision on the
grounds, inter alia, that in failing to find an overall
unit of food and beverage service employees appro-
priate and in excluding hostesses, acting relief man-
agers, and bookkeepers from the unit he made find-
ings of fact which were clearly erroneous and
departed from officially reported precedent.
By telegraphic order dated October 6, 1977, the
Board granted Employer's request for review and
stayed the election pending decision on review.
Thereafter, the Employer filed a brief on review and
a request for oral argument.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
proceeding with respect to the issues under review,
including the Employer's brief on review,' and makes
the following findings:
The Employer contends that the unit should be
broadened to encompass all food and beverage em-
ployees, including lounge and banquet employees
who work at the lodge. We agree.
The Employer's facility consists of a restaurant
and a motor lodge building which are physically sep-
arated by approximately 50 yards. The restaurant
building contains two dining rooms, a fountain area.
a service bar, a kitchen, and office and storage space.
I he Employer's request for oral argument is hereby denied. as the rec-
ord and brief adequately present the issues and the positions of the partics.
The motor lodge building contains the Chart Room,
which is a lounge serving drinks and light meals, four
banquet rooms, a service kitchen, and the banquet
coordinator's office. The restaurant is open 24 hours
a day; the Chart Room is open from 4:30 p.m. until
1 a.m. 6 days a week; and the banquet area is open
whenever a function is scheduled. The manager, Wil-
liam Cronenberg, supervises employees at both
buildings. There is also an assistant manager. The
parties stipulated, and we find, that the manager and
assistant manager are supervisors within the meaning
of the Act.
Employees at both buildings receive the same ben-
efits and are subject to the same personnel policies
and work rules. In addition, although the two build-
ings are physically separated, all food is prepared in
the restaurant kitchen and all liquor is stored in the
restaurant building. It also appears that there is some
employee interchange between the restaurant,
lounge, and banquet area and that there is limited
but regular contact between employees in these three
areas. Thus, one restaurant waitress also works in the
banquet area and other restaurant waitresses may
work in the banquet area if the need arises; this situ-
ation appears to arise once or twice a month on the
average. Utility workers assigned to the restaurant
are also required to do cleanup work in the banquet
area after functions have been held. We also note
that one recently hired employee divides her time be-
tween working as a cashier in the restaurant and as a
waitress in the lounge. In addition, one utility worker
assigned to cleaning up the lounge reports to the res-
taurant when he is finished.
In view of the foregoing showing of common su-
pervision, benefits, and personnel policies; employee
interchange; integrated function even to the extent
that there is a common kitchen and next-door prox-
imity of the two facilities, we find that the scope of
the unit must be broadened to include all full-time
and regular part-time food and beverage service em-
ployees employed at both the restaurant and the
lodge.
Banquet area employees are not employed full
time but are called upon to work when banquet func-
tions are scheduled. Accordingly, only those who
have the length, regularity, and currency of employ-
ment to qualify as regular part-time employees may
be included in the unit. See West Michigan Dock and
Market Corporation, 226 NLRB 239 (1976). The Em-
ployer placed in evidence exhibits which showed the
employment history of banquet personnel for the pe-
riod January 1, 1977, through August 12, 1977. These
exhibits indicate that banquet waitresses Mary Shep-
pard and Phylis Lloyd may qualify as regular part-
time employees on the basis of length, regularity, and
236 NLRB No. 150
1206
HOWARD JOHNSON COMPANY
currency of employment. These exhibits also indicate
that banquet bartenders Maurice Harrison and Den-
nis George might be characterized as casual employ-
ees on the basis of these same factors. However, we
make no determination as to the eligibility of these
four employees, inasmuch as it appears that there are
other banquet employees for whom no employment
history was made available. Accordingly. because the
record is inadequate, we shall provide the parties an
opportunity to devise a mutually acceptable eligibili-
ty formula for banquet employees. If the parties are
unable to agree on such a formula, banquet employ-
ees will be permitted to vote subject to challenge.
Management Directors, Inc. dhb/a Columbus Plaza
Motor Hotel, 148 NLRB 1053 (1964).
Based upon our review of the record we find that
the Employer's two bookkeepers perform duties typi-
cal of office clerical employees in the restaurant
manager's office and in the banquet coordinator's of-
fice, respectively. They have little contact with food
and beverage service employees. Accordingly, we af-
firm the Regional Director's exclusion of the book-
keepers from the unit.
With regard to the banquet coordinator, it appears
that, although she does some unit work she has an
office to which she reports daily, handles bookings as
they come in, reviews the scheduling of rooms for
banquet functions, and gathers and submits weekly
records to Employer's manager. On these facts, we
find that the banquet coordinator is, also, essentially
an office clerical employee, and we exclude her from
the unit.
The Employer contends that the record facts do
not support the Regional Director's findings that res-
taurant hostesses and acting relief managers are su-
pervisors. Hostesses greet customers, direct them to
their seats, and generally oversee the operation of
their shifts in the restaurant. Employee Sandra Breon
testified that hostess Dorsey interviewed her, gave
her a job application, and at that time told her that
she was hired, issued her uniforms, and told her
when to report to work. She testified that she had no
conversations with the manager about her employ-
ment. Similarly, employee Janice Stone and former
employee Susan McCardle each testified that hostess
Henry interviewed her, gave her an application, and
at that time told her that she was hired and issued her
uniforms. They also testified that they had no con-
versations with the manager regarding their employ-
ment.
Manager William Cronenberg testified that he did
all the hiring and that hostesses did not possess this
authority. He also testified that hiring is not com-
plete until he signs job applications, that he usually
does not meet prospective employees when they first
come in to fill out applications, and that uniforms are
not issued until he has reviewed applications.
While Cronenberg's testimony establishes that he
makes the final decisions with regard to the hiring of
restaurant employees, it does not specifically contro-
vert the testimony of Breon, Stone, and McCardle as
to how they were hired: their testimony supports a
finding that hostesses, at the very least, effectively
recommend the hire of employees. Moreover, from
the testimony recited above, it appears that some
waitresses are actually (if not formally) hired on the
spot by hostesses. We find, therefore, that the four
hostes-ses are supervisors as defined in the Act and
shall exclude them from the unit.2
Acting relief managers Pedrick and Daniels work
in the restaurant. Pedrick relieves the assistant man-
ager on his days off or when he is relieving the man-
ager. Daniels works 11 p.m. to 7 a.m. 5 days a week
and relieves the cook on Mondays. Both are hourly
paid but report their hours to the manager instead of
keeping a timecard like other employees. They are
eligible for the same benefits as employees admitted-
ly within the unit. Their names appear on the weekly
work schedule. They are primarily responsible for
keeping the shift operating smoothly in the restau-
rant. On occasion they may cook or assist the dish-
washer. They listen to customer complaints, check
timecards, and instruct employees. They make rec-
ommendations regarding hiring and discharging em-
ployees but it appears that the manager makes the
decisions based on his own independent investiga-
tions. If the health or safety of employees is involved,
the acting relief managers have authority to grant
employees time off: otherwise, such actions are first
cleared with management. If an emergency situation
arises, acting relief managers will attempt to contact
the manager or assistant manager before taking ac-
tion. In view of the foregoing, it does not appear that
acting relief managers responsibly direct the work of
other employees but merely insure that their shifts
function within established routines. If also appears
that they do not effectively recommend hiring or fir-
ing, or otherwise exercise independent judgment, but
that this authority rests with the manager and the
assistant manager. Accordingly, Pedrick and Daniels
appear to be at most leadmen and not supervisors
within the meaning of the Act, and we shall therefore
include them in the unit. See Butler's Shoe Corpora-
tion, a wholly-o"wned subsidiary of Zale Corporation,
208 NLRB 404 (1974).
We therefore find an overall food and beverage
! Absent solnme basl f,,r differentiating between the four hostesses. we
find. contralr, to the f-mplh.oer. that all four possess the same degree of
authonrlt'
1207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service unit appropriate and describe the unit as fol-
lows: 3
All full-time and regular part-time restaurant,
lounge, and banquet area employees employed
by the Employer at its restaurant and motor
lodge facility at 1119 South College Avenue,
Newark, Delaware, including all waiters, wait-
resses, cooks, bus persons, kitchen help, acting
relief managers, bartenders; but excluding all
hostesses, the banquet coordinator, bookkeep-
ers, office clericals, managers, guards and super-
visors as defined in the Act.
Accordingly. the case is hereby remanded to the
Regional Director for Region 4 to conduct an elec-
tion pursuant to his Decision and Direction of Elec-
tion, as modified herein, except that the payroll pe-
riod for determining eligibility shall be for that
ending immediately before the issuance date of this
Decision on Review. [Excelsior footnote omitted
from publication.]
I As the unit found appropriate herein appears to be larger than that
requested, the Petitioner is accorded a period of 10 days in which to submit
the requisite showing of interest to support an election herein. In the event
the Petitioner does not wish to proceed with an election herein, it may
withdraws its petition without prejudice by notice to the Regional Director
within 7 days from the date below.
1208