Lamar Hotel

National Labor Relations Board - Board Decisions

Jul 12, 1962

137 N.L.R.B. 1271 (N.L.R.B. 1962)

LAMAR HOTEL 1271
Lamar Hotel and Hotel and Restaurant Employees and Bar-
tenders International Union , AFL-CIO, Petitioner
Lamar Hotel and Joe Meleton , Petitioner . Cases Nos. 23-RC-
1561 and 23-RD-100. July 12, 1962
SUPPLEMENTAL DECISION CLARIFYING CERTIFICA-
TION OF REPRESENTATIVE AND ORDER DISMISSING
DECERTIFICATION PETITION
On September 23, 1960, the Regional Director for the Twenty-third
Region issued a certification of representative in which he certified
Hotel and Restaurant Employees and Bartenders International
Union, AFL-CIO, herein called the Union, as the exclusive collective-
bargaining representative of the Employer's employees in the unit
found appropriate by the Board in its Decision and Direction of
Election,' and subsequently amended by the Board on September 12,
1960.2
After the Union was certified, it engaged in collective bargaining
with the Employer and a dispute arose with respect to the unit place-
ment of 11 employees. As a result of this dispute, on March 28, 1961,
the Union filed a charge alleging that the Employer refused to bargain
in violation of Section 8 (a) (5) of the Act 3 Subsequently, on May 18,
1961, pursuant to the advice of the Regional Director, the Union with-
drew its unfair labor practice charge and filed a motion for clarifica-
tion of the certified unit. In its motion, the Union requested a hearing
to determine the unit placement of the 11 employees named therein.
On November 6, 1961, the Board issued an order directing supple-
mental hearing for the purpose of taking testimony and other evidence
as to the unit placement of the 11 named employees then in dispute.
On November 13, 1961, before the Board-ordered hearing com-
menced but after the certification year had expired, a decertification
petition was filed by an employee asserting that the Union was no
longer the representative of the employees in the -aforedescribed unit,
as defined in Section 9 (a) of the Act. Thereupon, the, Regional Direc-
tor consolidated the remanded proceeding on the motion for clarifi-
cation together with the RD proceeding for purposes of hearing.
The consolidated hearing was held before C. L. Stephens, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
1 Lamar Hotel , Case No 23-RC-1561, August 15, 1960, not published in NLRB volumes.
2 The unit description was amended pursuant to a motion for redetermination of unit
filed by the Employer. The certified unit is as follows.
All employees of the Employer at the Lamar Hotel, Houston , Texas , including regular
part-time employees , office clerical employees , auditing department employees , but ex-
cluding temporary and irregular part-time employees , confidential employees, pro-
fessional employees , guards, and supervisors as defined in the Act
2 Case No. 23-CA-1193.
137 NLRB No. 136.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman McCulloch and
Members Fanning and Brown].
The Employer and the Petitioner in Case No. 23-RD-100 contend
that the RD petition is timely since it was filed more than 12 months
after the Union was certified as exclusive bargaining representative
and at a time when no 8 (a) (5) charge was pending. In addition, the
Petitioner also contends that he has satisfied all prerequisites for the
filing and processing of his petition and that an election should now
be ordered. Finally, both the Employer and the Petitioner contend,
in pertinent part, that the Union's motion for clarification is moot by
virtue of the expiration of the certification year and the filing of the
decertification petition. On these grounds, the Employer and the RD
Petitioner move to dismiss the Union's motion for clarification.
On the other hand, the Union contends that the decertification peti-
tion is not timely and should be dismissed. The Union argues, in effect
that because of the dispute which arose over the unit placement of
the 11 employees described in its motion for clarification, because of
the advice it received from the Regional Director concerning the with-
drawal of the 8(a) (5) charge which it had filed, and because of the
filing of the motion for clarification and the delay ensuing therefrom,
it has been deprived of a substantial amount of time necessary to the
proper enjoyment of its certification. On these grounds, the Union
moves to dismiss the decertification petition. We find merit in the con-
tentions of the Union.
In Mar-Jac Poultry Company, Inc., 136 NLRB 785, where an
employer, by refusing to bargain, deprived the union of its bargaining
rights for a substantial part of its certification year, the Board dis-
missed an employer's petition which the employer had filed after the
certification year had expired, and granted the union an additional
period beyond the certification year for bargaining. In that same case,
the Board also announced that in future cases, where other similar
inequities appear, the Board will grant an additional period of time
beyond the certification year for purposes of bargaining. We believe
that such inequities appear in the instant proceeding.
Here, it appears that during the course of bargaining the parties
were in disagreement over the unit placement of some 11 employees.
As the result of this dispute, bargaining ceased, and the Union
filed 8(a) (5) charges against the Employer. Thereafter, pursuant to
advice received from the Regional Director, the Union, in order to
resolve the unit placement dispute, withdrew the 8 (a) (5) charges and
filed its motion for clarification. However, before the unit placement
dispute could be resolved by the Board, the certification year expired.
LAMAR HOTEL 1273
It appears that during the pendency of the above-described 8(a) (5)
charge and the Union's motion for clarification the parties have not
engaged in collective bargaining.
From the foregoing, it appears that approximately 6 months have
elapsed from the filing of the 8(a) (5) charge to the expiration of the
certification year. During this period of time, the Union has been
deprived of its right to unimpeded collective bargaining. Accord-
ingly, following the Mar-Jac Poultry doctrine, we shall sustain the
Union's motion to dismiss the decertification petition and grant the
Union an additional period of 6 months from the resumption of
negotiations in which to engage in collective bargaining.
Turning to the unit displacement of the 11 named employees in
the motion for clarification, the record shows that during the course
of the consolidated hearing the parties stipulated that 9 of the 11
employees named in the motion for clarification should be included in
the unit. In accordance with the parties' stipulation we shall there-
fore include Vivian Buchanan, Ross H. Collins, Evelyn Crutchfield,
Betty Cannon, Richard C. Johnson, N. L. Patella, C. C. Penn, L. B.
Nance, and Ben Atkinson.'
Finally, with respect to the unit placement of Martin Amador, the
Employer contends that he should be excluded as a supervisor and
the Union would include him as an employee. The record shows that
Amador directs the work of waiters and busboys. He receives com-
pensation which is about 20 percent higher than that received by the
waiters. In addition, it appears that he effectively recommended the
hiring of a waiter about 3 weeks prior to the hearing. The record
also shows that he assigns the banquet waiters, room service waiters,
and busboys to their specific work stations and that these employees
have been informed that Amador is their "boss." In view of the fore-
going, we find that Martin Amador is a supervisor within the meaning
of the Act, and we shall therefore exclude him from the bargaining
unit.
[The Board ordered that the certification of representative hereto-
fore issued in Case No. 23-RC-1561, be, and it hereby is, clarified by
specifically including in the unit therein found appropriate, Vivian
Buchanan, Ross H. Collins, Evelyn Crutchfield, Betty Cannon,
Richard C. Johnson, N. L. Patella, C. C. Penn, L. B. Nance, Ben
Atkinson,5 and by specifically excluding Martin Amador as a super-
visor, and dismissed the petition in Case No. 23-RD-100.]
4 The record shows that Lenora Smith , also named in the Union 's motion, was no longer
employed by the Employer at the time of the hearing . We shall not consider her unit
placement.
c Should any of the above-named employees no longer be employed by the Employer, or,
if they are not now engaged in the same or substantially similar employment as shown in
the record , then, this clarification shall apply to their replacements who are performing
those jobs which give rise to the unit placement dispute.