Ommi International Hotel

National Labor Relations Board - Board Decisions

Mar 31, 1987

283 N.L.R.B. 475 (N.L.R.B. 1987)

OMNI INTERNATIONAL HOTEL 475
Omni-Dunfey Hotels , Inc. d/b/a Omni International
Hotel of Detroit and Local 557, International
Union of Operating Engineers, AFL-CIO, Peti-
tioner. Case 7-RC-17825
31 March 1987
DECISION ON REVIEW AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, STEPHENS, AND
CRACRAFT
On 20 December 1985 the Regional Director for
Region 7 issued the attached Decision and Direc-
tion of Election in this proceeding, in which he
found appropriate for collective bargaining the Pe-
titioner's requested unit of engineering department
employees. In accordance with Section 102.67 of
the Board's Rules and Regulations, the Employer
filed a timely request for review of the Regional
Director's decision, contending that the' only ap-
propriate unit was an overall unit of all hotel em-
ployees. By mailgram dated 15 January 1986 the
Board granted the Employer's request for review.
The Employer's request for a stay of the election
was denied; accordingly, the election was conduct-
ed as scheduled on 16 January 1986 and the ballots
were impounded pending the Board's decision on
review.
The Board has considered the entire record in
this case and concludes, for the reasons stated by
the Regional Director in his decision, that the peti-
tioned-for unit of engineering department employ-
ees is an appropriate unit for bargaining. In so con-
cluding, we specifically find that the record con-
tains no -compelling facts which would mandate a
finding that the smallest appropriate unit must in-
clude all employees of the hotel.
It is beyond peradventure that the Act allows a
union to petition for an , appropriate unit, and does
not require it to seek the most appropriate unit,
even when a different unit than that petitioned-for
might be more appropriate than the one it seeks. In
the hotel and motel industry, the Board at one time
applied a rigid rule that only an overall unit con-
sisting of all hotel/motel employees would be
found appropriate for bargaining. See Arlington
Hotel Co., 126 NLRB 400 (1960). Six years after
deciding Arlington, the Board reversed that deci-
sion , finding that the inflexible rule of that case was
based on' the false premise that all employees in the
various facilities of hotels and motels shared such a
high degree of integration of function and mutual-
ity of interests that only an overall unit could be
appropriate, and announced that henceforth it
would consider each case on its facts. 77 Operating
Co., 160 NLRB 927 (1966), enfd. 387 F.2d 646 (4th
283 NLRB No. 73
Cir. 1967). Since that decision, the Board has made
unit determinations in the hotel/motel industry on'
a case-by-case basis, utilizing the same traditional
community-of-interest criteria used in other indus-
tries. Westin Hotel, 277 NLRB 1506 (1986); Atlanta
Hilton & Towers, 273 NLRB 87, 90 (1984); Sheraton
Motor Inn, 210 NLRB 790 (1974); Regency Hyatt
House, 171 NLRB 1347 (1968).
In the instant case, the dissent represents essen-
tially a desire to return to the rigid rule of Arling-
ton which, as indicated above, is not required by
the statute. Here, the engineering department em-
ployees are separately supervised by the chief engi-
neer, who interviews all engineering department
applicants and makes the final hiring decisions for
his, department; i they employ skills unique to their
classification, as indicated by the fact that the Em-
ployer requires them to have a minimum of 1 year
of prior experience in their classification (the
painter/carpenter is required to have 3 years); and
they earn the highest hourly wage among the
hotel's nonsupervisory employees (at least $1 per
hour more than the next highest rate).2 In addition,
there have been no instances of transfer Of employ-
ees' into or out of the engineering department,
whether on a permanent or temporary basis. Al-
though the dissent correctly notes that on several
occasions engineering department employees have
assisted employees from other departments with
various tasks such as construction of shelving and
construction of a kitchen bulletin board, the record
reveals that these incidents are sporadic and do not
reflect an actual overlap of job functions, butare
more in the nature of showing a spirit of coopera-
tion or civility (such as a cook having handed an
engineering department employee a shelf to be in-
stalled in the kitchen).3
1 Our dissenting colleagues concede the existence of separate immedi-
ate supervision, but point to the existence of common procedures for inter-
viewing and hiring new employees To the extent that our colleagues
may suggest that hiring procedures are of equal weight with the identity
of day-to-day supervision , we believe they have lost sight of the question
before us-determining employees' community of interest as to the. terms
and conditions of their employment . Surely the fact that the engineering
department employees work under the direction of, and would likely ad-
dress their immediate grievances to, someone different from those under
whom other employees immediately work has greater bearing on collec-
tive-bargaming interests than the procedures by which the employees
were interviewed for entry into the work force in the first place.
2 Our dissenting colleagues ' seek to minimize the significance of the
wage disparity by pointing to the fact that some of the employees outside
the engineering department have their wages supplemented by tips from
guests. If anything, however, this differentiating factor provides addition-
al support for our conclusion that the engineering department employees
have a separate community of interest . In making, this observation, we do
not,, contrary to our colleagues ' implication, intend to make this factor
determinative.
3 ' Chairman Dotson suggests that our resolution of this issue should
tam, among other things, on the potential "vulnerability" of the majority
of the hotel's employees to a work stoppage by the petitioned -for unit.
We' are aware of no authority outside of the health care industry to sup-
port this novel view.
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The remaining facts cited in the dissent, such as
that all employees receive the same fringe benefits,
punch the- same timeclock, and share common
overall supervision, in our opinion fail to establish
that the_ requested unit is not an appropriate -unit
for bargaining though' such facts undoubtedly
would show, that an overall unit, if sought, also
would be an appropriate unit. Further, in view of
the above evidence supporting the petitioned-for
unit, we reject the Chairman's contention in the
dissent that the extent of organization is the "only
logical explanation" for the result reached herein.
Westin Hotel, cited in the dissent, is distinguish-
able. That case, which was before the Board on
remand from the United States Court of Appeals
for the Sixth - Circuit,4 involved circumstances
which substantially differed from those of the in-
stant case. Although both cases involve petitioned-
for units of hotel maintenance and engineering em-
ployees otherwise similar to the engineering de-
partment unit found appropriate in, Sheraton-Ana-
heim Hotel, 252 NLRB 959 (1.980), the Board in
Westin concluded that the unit sought was not ap-
propriate because, unlike Sheraton Anaheim, the
prevailing areawide pattern of bargaining, favored
overall hotel units and a competing labor organiza-
tion was seeking to represent an overall unit of
hotel employees, including the petitioned-for main-
tenance workers. Neither of these factors is present
in the instant case; indeed, the Regional Director
specifically found, and the Employer does not dis-
,pute,- that there are separate engineering depart-
ment bargaining units at "virtually all" major De-
troit metropolitan area hotels.
Based on all the foregoing, we conclude, in
agreement with the Regional Director, that the pe-
titioned-for unit of engineering department employ-
ees is an appropriate unit for bargaining. Accord-
ingly, the Regional Director's Decision and Direc-
tion of Election is affirmed, and the case is remand-
ed' to the Regional Director for further appropriate
action, including the opening and counting of the
impounded ballots.
ORDER
This proceeding is remanded to the Regional Di-
rector for further appropriate action.
CHAIRMAN DOTSON AND MEMBER JOHANSEN, dis-
senting.
Contrary to our colleagues, we would find that
the petitioned-for unit of maintenance employees
does not constitute a separate appropriate bargain-
ing unit, and we would dismiss the petition. The
Employer operates a luxury hotel in Detroit,
s The court's opinion is reported at 738 F.2d 765 (6th Cyr 1984).
Michigan., The Union requested, and -the Regional
Director found -appropriate, a unit- limited to the
maintenance employees at the hotel. The Employer
requested review of this finding, contending that
the only appropriate unit would include all the
hotel employees. We agree with the Employer.
All the hotel employees are paid on an hourly
basis, enjoy the same fringe benefits, use the same
employee entrance, punch the same timeclock, are
required to wear uniforms, share common cafeteria
facilities, and are subject to the same work rules
and personnel policies. Although the maintenance
employees have separate immediate supervision,
they are jointly supervised at a higher level with
employees in six other job classifications by Denise
Barker,, rooms division head and resident manager.
Management for the entire hotel is centralized in
General Manager Andrew Swinney, who has the
final authority over all personnel matters.
In addition, there is frequent day-to-day contact
between maintenance employees and employees in
other departments. Maintenance employees spend , a
significant amount of their time in areas of the
hotel where' other employees work. They usually
receive their work orders from employees in
housekeeping or at the front desk, and have assist-
ed nonmaintenance employees in performing their
job duties on several occasions. This is particularly
true during occasions such as the hotel's opening,
when the distinctions between job classifications-all
but disappear. Significantly, there are at least six
more of these functions planned throughout the
next year.
Further, it is clear that these employees do not
constitute a craft unit. No engineering or craft- li-
cense is required, of them by the Employer, and no
maintenance employee , currently holds one. Al-
though the Employer does require at least 1- year's
prior maintenance experience for general mainte-
nance employees and 3 -years' prior experience for
the carpenter/painter position, there are at , least
five other job classifications at the hotel which also
require prior experience. -
In reaching the conclusion that the, petitioned-for
unit is appropriate, the majority notes that the
maintenance employees are separately supervised
by the chief engineer, ' who interviews and hires
new employees. The majority neglects to mention,
however, that the interviewing and hiring ' proce-
dures are the same for each department at the
hotel. As mentioned; above, although the mainte-
nance employees have separate, immediate supervi-
sion, they share higher supervision with six other
departments, and authority for personnel matters
affecting all employees rests with the general- man-
ager.
OMNI INTERNATIONAL HOTEL 477
The majority also relies on the fact that mainte-
nance employees possess unique job skills, as evi-
denced by ' the requirement that they have prior
job-related experience when hired and that they
are paid the highest hourly wage. We note, howev-
er, that several other job classifications require
prior experience , including those of the seam-
stress/tailor , fitness center attendant, servers,
cooks , and cash manager . In addition, although
maintenance employees receive the highest hourly
wage, they are not necessarily the highest paid job
classification because they do not receive tips from
guests, as do employees in some other classifica-
tions. With respect to the majority's reliance on the
lack of transfers or overlap of job functions be-
tween departments, we note that the record is re-
plete with evidence of the constant contact among
the employees and the assistance rendered by one
classification to another whenever necessary. We
further note that all employees , including those in
the maintenance department , are specifically in-
structed to perform whatever tasks are necessary to
accommodate the guests , even if those tasks are
outside their job descriptions.
The majority avers that we have lost sight of our
task of determining the extent of the employees'
community of interest by equating , hiring proce-
dures with the identity of day-to-day supervision.
Nowhere in our dissent have we made such a state-
ment. Clearly, separate immediate supervision is an
element that tends to support distinct bargaining
units, just as a common hiring procedure , common
overall supervision , and common labor relations
policies support a finding of a single ' appropriate
unit . None of these factors exist in a vacuum, how-
ever, and each must be evaluated in the context of
all the relevant facts . Rather that attempting to
equate one factor with any other factor , or identi-
fying one fact as the decisive element in the case,
we have weighed ' all the evidence which estab-
lishes a significant community of interest among
the employees against all the evidence which sup-
ports a finding of separate units : On balance, we
have determined that a single unit is appropriate.
Our colleagues ' also dispute the significance of
our reliance on the fact that the maintenance em-
ployees are not necessarily the highest paid em-
ployees in the hotel because certain of the other
employees receive tips from the hotel guests. The
majority asserts that this is actually evidence of a
disparity of interest . What our colleagues fail to re-
alize is that the maintenance employees' receipt of
the highest hourly wage is not particularly signifi-
cant when other ' employees in the hotel are also
paid in a manner which differs from their fellow
employees. Not all nonmaintenance employees re-
ceive tips , just as not all are paid the same hourly
wage . Surely the Majority does- not mean to sug-
gest that we should establish separate units for all
employees receiving tips and for each classification
of employee that receives a different hourly wage
any more than they are suggesting that every em-
ployee classification with separate supervision be
granted a separate unit . These factors are merely
elements to be evaluated when assessing all the evi-
dence establishing a community of interest or lack
thereof. No one factor should be elevated to the
position of a determinative element . It is our under-
standing that this is still the test by which the ques-
tion of whether a community of interest exists is re-
solved.
Thus, in light of the entire record , we cannot
agree that the facts relied on by the majority sup-
port a -finding that the petitioned-for unit is appro-
priate . Westin Hotel, 277 NLRB 1506 (1986).1 Ac-_
cordingly, we would dismiss the petition.
1 Chairman Dotson notes that although it is true, as the majority states,
that the Act allows a union to petition for an appropriate unit and does
not require it to seek the unit which would be most appropriate , the Act,
in Sec. 9(cX5), also requires that the extent of union organization shall
not be controlling in determining unit appropriateness. Yet given the
sparsity of evidence supporting a separate unit herein , that very factor
appears to the Chairman to be the only logical explanation for the con-
clusion reached by the majority . The Chairman also finds it significant
that, given the nature of the maintenance employees' jobs and the extent
of their involvement in all aspects of the hotel, finding that a separate
unit is appropriate here could result in making the majority of the Em-
ployer's employees vulnerable to a shutdown of the entire hotel if this
small group of employees engaged in a work stoppage or slowdown.
Where, as here, the work of all the employees is so closely related and
interdependent, it is inappropriate to give such a small, critically placed
unit of 6 employees the power to potentially take work away from the
'other approximately 174 employees working at the hotel . In the Chair-
man's view, this factor, along with the strong community of interest the
maintenance employees share with the other hotel employees, and the ex-
plicit statutory mandate against allowing the extent of organization to be
controlling , requires the conclusion that a separate unit for the Employ-
er's maintenance employees is' inappropriate.
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 a hearing officer of the National Labor
Relations Board, hereinafter referred to as the Board.'
Pursuant to the provisions of Section 3(b) of the Act,
the Board has delegated its authority in this proceeding
to the undersigned.
Upon the entire record in this proceeding, I find:2
1. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
' The names of the parties appear as amended at the hearing.
2 The parties have filed briefs , which have been carefully considered.
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The, Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.3
3. The labor organization involved claims to represent
certain employees of the Employer.
4. A question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
The Petitioner seeks an election among all mainte-
nance employees employed by the Employer at its De-
troit, Michigan hotel, but would exclude all other em-
ployees, guards, and, supervisors as defined in the Act.
The Employer contends that the only appropriate unit is
hotel-wide. There is no history of collective bargaining
and no evidence that any other labor organization is cur-
rently attempting to represent the Employer's employees
in a broader unit.
The Employer had its "soft" opening on August 28,
1985. At that time, it opened its dining room, bar, and
ballroom facilities and 50 of its 240 guest rooms. On Oc-
tober 20, 1985, the Employer had its grand opening, by
which time all except three to five of its guest rooms and
suites had become available. On November 1, 1985, the
Employer opened its fitness center.
The hotel's structure consists of 20 stories. On the first
floor are the lobby, front dest, lobby bar, restaurant,
kitchen, and a ballroom area that can be sub-divided into
two to four rooms, and various offices. On the next
level, designated as 2.5, are the housekeeping and laun-
dry departments, employee cafeteria and locker room
and extensive retail space. The next level, designated as
four, houses the executive offices, reservationists, and the
catering, food, and beverage, sales and engineering de-
partments. Floors five through seven are a parking
garage, and the guest rooms are to be found on floors
eight through, twenty. The Employer employs approxi-
mately 180 employees in various classifications. All but
two work at least 20 hours per week and are thereby
classified as full-time by the Employer.
The engineering department consists of Donald Ru-
zyski, the chief engineer, and six employees. Five are
classified as-general maintenance and the sixth is classi-
fied as painter/carpenter. There is a third departmental
classification, heat, light, power maintenance, but this po-
sition has not as yet been filled. The parties stipulated,
and 'I find, that Ruzyski is a' supervisor within the mean-
ing of the Act. Thus, he interviews all engineering de-
partment applicants and, as with all department heads,
makes the final decisions on hiring in his department.
The engineering employees report to Ruzyski and he as-
signs the department's work to them. Under the Employ-
er's yearly wage review policy, Ruzyski will also make
recommendations on their merit increases.
8 The Employer is a New Hampshire corporation engaged in the oper-
ation of a hotel at 333 E. Jefferson Avenue, Detroit, Michigan. The Em-
ployer opened for business on August 28, 1985 . Based on business projec-
tions, during the 12 month period ending November 30, 1986 , the Em-
ployer will have gross revenues in excess of $500,000 and will purchase
goods and materials valued in excess of $50,000 which will be shipped to
its facility directly from outside the State of Michigan
The engineering department is primarily engaged in
the maintenance and repair of the Employer's equipment.
Departmental personnel are on duty 24 hours per day,
seven days a week. The chief engineer and three employ-
ees work day shifts, one employee works afternoons, an-
other works midnights and the sixth works a "floating"
schedule, two afternoon shifts and three midnight shifts.
The only other of the hotel's employee classifications
who are on duty round-the-clock are room service, front
desk and _ lobby, telephone operators and utility workers
who clean the kitchen. Unlike the schedules of most
other employee classifications, the schedules of, and
number of hours worked by, engineering employees are
not dependent on the Employer's occupancy rate.
Departmental tools and supplies for engineering are
kept in that department. Those tools include a tilting
arbor saw, electric drill, band saw, drill press, hammer
drill, Hilti gun, various testing equipment, and diverse
hand tools, such as pipe wrenches, pliers, channel locks,
screw drivers, hammers, hand saws, and hammer punch.
The engineering employees carry tools and a beeper
with them during working hours. Each engineering em-
ployee has a locker in the department area. All other em-
ployees' lockers are in the locker room on the 2.5 level.
Most work assignments for the engineering department
are generated by work orders, called maintenance- re-
quest forms, submitted by the various other departments,
mostly housekeeping an d the front desk. There is no evi-
dence that any other, employees receive their assignments
through work orders. These assignments include the
maintenance of all equipment in the hotel except for the
elevators. That equipment includes the emergency gener-
ator, fire pump, turbine pump, hot water heaters, refrig-
eration equipment, and all kitchen equipment.- At present,
because of the recent commencement of operations,' all
of this equipment is still under a one year warranty.
Thus, major repairs are performed by the manufacturers:
The department also maintains the hotel's swimming
pool. It is also responsible for routine preventive mainte-
nance functions, such as checking belt tensions, oil levels,
operating temperatures, and general wear and tear, as
well as checking for leaks or broken parts. The depart-
ment also performs a wide variety of repair and mainte-
nance work throughout- the hotel, such as repairing
radios, television sets, tape players, microphones, lamps,
faucets, tub stoppers, dead bolts, doors, and ice ma-
chines, unplugging toilets and garbage disposals, install-
ing shower curtain rods, changing light bulbs and nitro-
gen tanks in the bar, moving furniture, and performing
various carpentry tasks. While the record discloses that
certain other employee occasionally perform minor main-
tenance tasks, such as unplugging a garbage disposal, no
other employees regularly perform maintenance work. In
addition, no other employee has substituted for an engi-
neering employee. Absences of engineering employees
have been covered by other engineering' employees.
Likewise, while engineering employees have occasionally
assisted other departments, such as setting up a meeting
room for the banquet department in an emergency, none
has been assigned to any other departments. Further,
there have been no employee transfers into or out of the
OMNI INTERNATIONAL HOTEL 479
engineering department . The one engineering employee
hired since the grand opening was hired from the out-
side.
The Employer's position descriptions for the paint-
er/carpenter and general maintenance classifications re-
quire that those employees have three years and one year
of prior experience in their respective classifications. The
painter/carpenter had well in excess of the required ex-
perience. All but one of the current general maintenance
employees had at least one year prior experience and the
one who did not had some general maintenance back-
ground and had attended a vocational school in heating,
ventilation and air conditioning. The only other of the 40
employee classifications of the hotel that require any
prior experience ar seamtress/tailor, fitness center attend-
ant, cash manager, servers, and cooks.
All employees are hourly rated and receive the same
fringe benefits and privileges. The engineering employ-
ees, however, earn the highest hourly rate, at least $1 per
hour more than the next highest rate, although certain
employees' wages are augmented by tips. All employees
have a common employee entrance, time clock and cafe-
teria, and are subject to the same rules and policies. All
employees, except reservationists and secretaries, wear a
uniform and name tag . The uniforms differ among most
of the departments, however, and the engineering em-
ployees' uniforms, while similar to housekeeping, are
unique and their shirts have "Engineer" written on them.
As to the pattern of area bargaining, the record shows
that the engineering employees at virtually all of the
major Detroit metropolitan area hotels are se arately
represented. Thus, the Petitioner represents engineering
or maintenance employees at seven major Detroit metro-
politan area hotels and another labor organization repre-
sents those classifications of employees at two other
major hotels. While this Region did in the past direct an
election at one area hotel in a facility-wide unit, the peti-
tioning union sought such a unit and no other union was
seeking ` a smaller unit.
In the hotel industry, the Board determines appropri-
ate units on the facts of each case in order to determine
wherein lies the true community of interest among par-
ticular employees. Holiday Inn Restaurant, 160 NLRB
927 (1966), enfd. 387 F.2d 648 (4th Cir. 1967). In doing
so, the Board applies the general criteria used for deter-
mining units in other industries, weighing all factors
present, such as the distinctiveness or lack of discreteness
in the skills and functions of the particular employee
groupings, their supervision, whether separate or
common, the employer's organizational structure, and
differences or lack of differences "in wages and hours.
Sheraton Motor Inn, 210 NLRB 7901, 792 (1974).
Based upon the foregoing and the record as a whole, I
conclude that the engineering department employees
enjoy a sufficiently distinct community of interest, apart
from any broader interests they may share with other
hotel employees, to warrant separate representation. I
thus find that a unit limited to those employees is appro-
priate . In making this finding , I note in particular the
unique experience and skills required by the engineering
employees, the distinctiveness in function between the
engineering department and other departments,4 the sep-
arate immediate supervision of the , engineering depart-
ment, the lack of interchange with other employees, the
pattern of area bargaining of separate maintenance units,
and that no other labor organization seeks a broader
unit.5 Sheraton Anaheim Hotel, 252 NLRB 959 (1980);
Compare NLRB v. Westin Hotel, 738 1F.2d 765 (6th Cir.
1984), denying enforcement of Western Hotel, 261 NLRB
1005 (1982), where there was no predominant area prac-
tice of separate engineering department units, and where
another labor organization sought, an overall unit. Atlanta
Hilton and Towers, 273 NLRB 87 (1984), differs substan-
tially from this case because of the much greater func-
tional integration and interchange found there. Also, in
that case, unlike herein, a large number of employees in
the housekeeping unit performed tasks similar to those of
employees in the food service unit, or outside both units,
or vice-versa.
5. In view of the foregoing, I find the following em-
ployees constitute an appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time maintenance em-
ployees employed by the, Employer at its facility lo-
cated at 333 E. Jefferson Avenue, Detroit, Michi-
gan, but excluding all other employees, guards' and
supervisors as defined in the Act.
Those eligible to vote shall vote as set forth in the at-
tached Direction of Election.
a The record does not support the Employer's contention that there is
close and functional integration of the duties performed by the engineer-
ing department and those duties performed by other employees; the mini-
mal overlapping of some minor duties - does not negate the engineering
employees ' distinct community of interest . Sheraton Anaheim Hotel, 252
NLRB 959, 961 (1980).
6 Based upon this finding , I need not decide whether the hotel-wide
unit contended for by the Employer is also appropriate, or whether such
a unit is more appropriate. The sole issue before me is whether the unit
petitioned for is appropriate.