Startler Hilton Hotel

National Labor Relations Board - Board Decisions

Jun 18, 1971

191 N.L.R.B. 283 (N.L.R.B. 1971)

STATLER HILTON HOTEL 283
Hilton Hotels Corporation d/b/a Statler Hilton Hotel
and Joint Executive Board of the Hotel and Restau-
rant Employees and Bartenders ' International
Union, AFL-CIO , of Washington , D.C. Case 5-CA-
4725
June 18, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On January 29, 1971, Trial Examiner Paul Bisgyer
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Decision and a supporting brief.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record ' in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Hilton Hotels Corporation d/b/a/ Statler
Hilton Hotel, Washington, D.C., its officers, agents,
successors , and assigns , shall take the action set forth
in the Trial Examiner's Recommended Order.'
CHAIRMAN MILLER, dissenting:
I disagree with the majority conclusion that the ban-
quet captains are not supervisors as defined in the Act.
The banquet captains direct the work of the banquet
waiters. In my view, the record establishes that such
' The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner 's resolutions with respect to credibility unless the clear prepon-
derance of all the relevant evidence convinces us that the resolutions were
incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3). We find no such basis for disturbing the Trial Examiner's
credibility findings in this case.
191 NLRB No. 40
direction is "responsible direction" within the meaning
of our statutory definition of supervisor.
Banquet captains are required to prepare a floor plan
for each banquet, to see that the banquet room is prop-
erly equipped, that the affair is adequately staffed, and
that the food is efficiently and correctly served. The
captains may vary the size of the stations to be served
by each waiter2 and may designate certain waiters to
come in earlier to set up tables, for which they receive
extra compensation.
While the function is in progress it is the captain's
responsibility to see that it runs smoothly. The waiter's
job may be fairly routine, but it does not necessarily
follow that the captain's job is also routine. The nature
of a banquet function, which involves dealing with the
general public, makes likely the occurrence of nonrou-
tine events; and it is the captain who must exercise his
judgment in determining how to deal with these mat-
ters.
On these facts I would find that the banquet captains
are required to use independent judgment in directing
the waiters. I would therefore find that the banquet
captains are supervisors within the meaning of the Act,
and that Respondent was under no obligation to bar-
gain with the Union concerning their compensation. I
would therefore dismiss the complaint in its entirety.
2 This, in turn, affects the waiter's compensation , which depends in part
on the number of guests he serves.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding, with all
the parties represented, was heard on September 24 and 25
and October 20 and 21, 1970, at Washington, D.C., on the
complaint of the General Counsel issued on June 16, 1970,'
and the answer of Hilton Hotels Corporation d/b/a/ Statler
Hilton Hotel, herein called the Respondent or the Company.
In issue is the question whether the Respondent, in violation
of Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended,' refused to bargain with Joint Executive
Board of the Hotel and Restaurant Employees and Bartend-
ers' International Union, AFL-CIO, of Washington, D.C.,
herein called the Union, the exclusive representative of the
Respondent's employees, by unilaterally reducing the per-
centage of banquet gratuities its two banquet captains, Erich
von der Lippe and Otto Kubain, had customarily been enjoy-
ing, without first notifying and bargaining with the Union
over the contemplated reduction. At the close of the hearing,
' The complaint is based on a charge filed by the Union on April 9, 1970,
a copy of which was duly served on the Respondent by registered mail the
following day.
3 Section 8(a)(1) of the Act makes it an unfair labor practice for an
employer "to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7." Insofar as pertinent , Section 7 pro-
vides that "[e]mployees shall have the right to self-organization, to form,
tom or assist labor organizations , to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection
Section 8 (a)(5) makes it an unfair labor practice for an employer "to
refuse to bargain collectively with the representatives of his employees"
designated by a majority of them in an appropriate unit.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties briefly argued their positions but thereafter the
General Counsel and the Respondent submitted illuminating
briefs in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration being
given to the arguments advanced by the parties, I make the
following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, operates a hotel
enterprise in Washington, D.C., where it also maintains its
principal place of business. Its gross annual revenues derived
from these operations exceed $500,000.
It is not disputed, and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded , and I find, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union's Dispute with the Respondent,- the Issues
Presented
As indicated above, the Respondent is charged with
breaching its bargaining obligation by unilaterally reducing
the share of banquet gratuities its two banquet captains had
customarily enjoyed, without consultation with the Union,
the employees' exclusive bargaining representative. The fac-
tual setting out of which this proceeding arises is, in the main,
undisputed and may be summarized, as follows:
For more than 20 years, the Union has been the recognized
collective-bargaining representative of the Respondent's em-
ployees in a multiemployer unit, conceded to be appropriate
for the purposes of this proceeding, pursuant to successive
contracts negotiated with Hotel Association of Washington,
D.C., Inc., herein called the Association.' The latest contract,
in effect at relevant times, was executed by the Respondent
and the Union for a term commencing September 16, 1969,
through September 15, 1972, and covers "all of... [the Re-
spondent's] employees, with the exception of managerial and
supervisory employees."4 Historically included in this bar-
gaining unit have been banquet captains whose wages, par-
ticipation in banquet gratuities, and fringe benefits have been
prescribed in the negotiated contracts along with those of
other unit employees. Concerning the sharing of gratuities,
the subject of controversy herein, article X of the current
contract provides that 19 percent of a gratuity paid by the
person booking a function "shall be retained by the officers
in charge, including captains," and the remaining 81 percent
shall be divided equally among the waiters and waitresses.'
' However, each hotel represented by the Association signed individual
contracts with the Union. It was stipulated that 38 hotel-members of the
Association participated in the 1969 contract negotiations It also appears
that other hotel-members of the Association were not parties to these
negotiations.
° Other excluded employees are "office employees, musicians, engineers,
firemen, carpenters, barbers, and upholsterers."
The full text of that provision reads, as follows-
Sec. 4. Banquet waiters and waitresses shall be permitted to pass a
plate unless the party booking said party guarantees a gratuity amount-
ing to sixteen (16%) per cent of the cost of the meal, including food and
drink. In the event of such guarantee, no plate shall be passed. Nineteen
(19%) per cent of the gratuity shall be retained by the officers in charge,
including captains, and Eighty-One (81%) per cent shall be sent to the
Although the extent of the captains' share in the 19-percent
fund is not fixed in this contract, nor was it established in
prior agreements, it was the uniform practice for some 15
years until changed by the Respondent in October 1969, for
the Respondent's two captains to receive 9 percent of the
overall gratuity payable out of the 19 percent,' which they
shared equally. As "officers in charge," the Respondent's
banquet manager and the headwaiter,7 admittedly super-
visory employees, have been the other participants in the
19-percent allocation.
On or about October 12, 1969, without notice to the Union,
the Respondent unilaterally reduced the share of its banquet
captains, Erich von der Lippe and Otto Kubain, in the 19-
percent fund to 6 percent of the overall gratuity, thereby
increasing the distribution to the banquet manager and the
headwaiter to 13 percent. The consequent reduction in each
captain's share from 4% to 3 percent of the overall gratuity
meant a real financial loss to them as gratuities constitute
approximately 60 percent of their total earnings. Upon learn-
ing of the Respondent's action on October 23, when they were
given their weekly paycheck for the October 12 to 18 work
period, von der Lippe promptly sought an explanation from
his superior, Wolfgang F. Baere, the headwaiter. Baere in-
formed him that management had made the decision to
reduce the captains' share in gratuities. Shortly thereafter,
von der Lippe complained to the Catering Service Director
Weatherstone, who acknowledged responsibility for the re-
duction. Receiving no satisfaction from him, von der Lippe
reported the reduction to dames Karath, the Union's business
manager. Karath telephoned Weatherstone who told him
that he had been directed by his superiors to cut the captains'
percentage. Karath then called the Respondent' s general
manager, Richard C. Nelson, and protested the Respondent's
action. In the ensuing conversation, Nelson bluntly asserted
management's right to distribute the 19 percent as it saw fit'
and rejected Karath's request for a meeting to discuss the
matter further. Karath's subsequent effort to persuade Nel-
son to change his position and meet with the Union was
similarly futile. Ultimately, the Union filed the unfair labor
practice charge herein against the Respondent seeking vindi-
cation of its bargaining rights.
It is settled law that an employer's compliance with his
statutory bargaining obligation presupposes that he will not
alter existing wages and conditions of employment without
giving his employees' exclusive bargaining representative ad-
vance'notice and an opportunity to negotiate over any con-
templated change.' As the Supreme Court pointed out, such
a unilateral change "is a circumvention of the duty to negoti-
ate which frustrates the obligation of Section 8(a)(5) much as
does a flat refusal."10
The Respondent does not question this principle and, al-
though conceding its unilateral action and its persistent
refusal to bargain over that matter , urges that the complaint
should be dismissed on three grounds-first, the failure to
join other members of the multiemployer bargaining group as
indispensable parties to the action; secondly, the absence of
Union to be divided equally among the other employees serving the
banquets.
It appears that banquet captains' share in the 19-percent allocation
varies from hotel to hotel
' "Officers in charge" may encompass different people at the various
hotels.
' The Union has never claimed the right to be consulted concerning the
division of the remaining 10 percent among the banquet manager, head-
waiter, or other management personnel.
' N.L.R.B. v. Katz, 369 U.S 736, 743
Ibid.
STATLER HILTON HOTEL 285
a bargaining obligation with respect to the employment con-
ditions of captains because of their supervisory status; and
lastly, the Union's waiver of its right, assuming it had one,
to bargain concerning the extent of the captains' share in
banquet gratuities. These contentions will be separately con-
sidered below.
B. Analysis of Issues,- Concluding Findings
1. Alleged necessary parties
The Respondent contends that the complaint must be dis-
missed for failure to join the other employer-members of the
multiemployer group as indispensable parties. It argues that
joinder is necessary because any remedy issued herein, if a
violation should be found , would require bargaining in the
multiemployer unit. Moreover, it urges that the rights as-
serted in this proceeding arise out of a contract common to
all the employer-members of the bargaining group and that
therefore their presence in this proceeding is essential. The
General Counsel , on the other hand , disputes that there is a
fatal nonjoinder of parties. He further argues that, in any
event, the Association did not apply to intervene in this pro-
ceeding, even though it was present in the courtroom at
various times during the presentation of the General Coun-
sel's case and was served with formal notice before the Re-
spondent opened its defense. I find the Respondent 's position
lacking in merit.
As noted , the only employer in the multiemployer group
charged with unlawfully violating its bargaining obligation is
the Respondent which admittedly reduced its banquet cap-
tains' customary share in banquet gratuities without notice or
discussion with the Union . Obviously , this action did not
affect the earnings of the banquet captains at the other hotels
in the unit. There is also no question that the multiemployer
contract does not fix the banquet captains" share in the 19-
percent allocation . From the varying practices prevailing at
the different hotels, it is quite clear that this matter has been
treated by the employer group and the Union as a condition
of employment handled on an individual employer basis. In-
deed , implicit in the Respondent's unilateral action and its
assertion of management prerogative in justification is its
recognition of this fact."
In these circumstances , I am unable to perceive how
joinder of the other employer -members of the multiemployer
group, who certainly are not responsible for the Respondent's
conduct," is necessary in order to effectuate an appropriate
remedy if an unfair labor practice is found . Contrary to the
Respondent's contention , multiemployer bargaining is not
the permissible remedy to rectify the violation . Rather, the
cure for the Respondent's individual breach of its statutory
obligation is bargaining by the Respondent itself with respect
to the subject of its unilateral action, leaving the multiem-
ployer unit intact as the basic bargaining unit for dealing with
problems common to the group ." Under settled law," such
" Of course, one of the issues later to be considered is whether the
Respondent 's action was a permissible exercise of a management preroga-
tive or an interference with the bargaining rights of its employees within the
meaning of Section 8 (a)(1) and (5) of the Act
11 It is the Board's policy not to find an unfair labor practice against a
party or subject him to a remedial order, where he has not been charged with
violating the Act Sewanee Coal Operators Association, 167 NLRB 172,
Moving Storage Negotiating Committee, 135 NLRB 387, 389, CascadeEm-
ployers Association, Inc., 126 NLRB 1014, 1016; Sterling Furniture Com-
pany, 94 NLRB 32, 34-35
n The KrogerCo., 148 NLRB 569, 573-575; N.L.R.B. v Miller Brewing
Company, 408 F.2d 12, 15 (C.A. 9), enfg. 166 NLRB 831.
14 Ibid.; cf. Milk Drivers and Dairy Employees Local Union No. 537
(Sealtest Foods), 147 NLRB 230, 234, Guerin & Company, 92 NLRB 1698,
individual bargaining, limited as it is to a matter of particular
concern to that employer, is not precluded by the existence
of a multiemployer unit since it is neither inconsistent with,
nor destructive of, the principle of group bargaining. It there-
fore follows that all the employer-members of the bargaining
group are not needed to enable the Board to adjudicate the
alleged unfair labor practices and afford complete relief re-
quired by the circumstances."
Nor do I find any basis for treating all the employer-mem-
bers of the bargaining group as indispensable parties whose
absence compels dismissal of the complaint simply because
they are parties to the contract the Association negotiated on
their behalf with the Union. Significantly, the validity of the
contract is not here in issue which, if it were, might require,
in certain situations, the presence of all parties to the contract
to litigate the case fairly and fully. is Moreover, the bargaining
rights the Union and the General Counsel seek to have vin-
dicated herein derive from the Act and not solely from the
contract, as the Respondent asserts.
While not indispensable parties, the employer-members or
their Association might, nevertheless, be proper parties enti-
tled to seek intervention by reason of the Respondent's alter-
native defense." As later discussed more fully, it is the Re-
spondent's position that its unilateral action was an exercise
of management prerogative sanctioned by the parties' con-
tract and the Union's waiver of any right it possessed to
bargain over the extent of the captains' share in banquet
gratuities. This defense brought into question the interpreta-
tion of the contract and bargaining history of common inter-
est and importance to all employer -members of the bargain-
ing unit , entitling them or their Association to seek
intervention to protect their interests." However, no motion
to intervene was made by the Respondent, Association, or
any employer-member, even though Leonard E. Hickman,
the Association's executive vice president, was in attendance
in the courtroom at various times during the first 2 days of
the hearing when the General Counsel presented his case.
Nor was any application to intervene made after the General
Counsel sent Hickman a letter on October 5, 1970, while the
hearing was in recess and the Respondent had not yet opened
its case, inviting him, as representative of the Association, to
appear at the resumed hearin on October 20, 1970, in the
event he "believe[d] there ... were] any interests of the As-
sociation to be protected in this matter." Enclosed in that
fn. 2.
" The cases cited by the Respondent either do not support a contrary
principle or are inapplicable to the situation here presented . See Rules of
Civil Procedure for the United States District Courts, Rule 19
16 See Consolidated Edison Company v. N.L.R.B., 305 U.S. 197, 232;
National Licorice Company v. N.L.R.B., 309 U S 350, 363; N.L.R.B. v.
Pennsylvania GreyhoundLines Inc, 303 U S 261, 271, N.L.R.B. v. Indiana
& Michigan Electric Co., 124 F.2d 50, 55 (C A. 6), affd. 318 U S. 9. See also
Rules of Civil Procedure for the United States District Courts, Rule 19.
11 Section 10(b) of the Act provides that "[iln the discretion of the mem-
ber, agent, or agency conducting the [unfair labor practice] hearing or the
Board , any other person may be allowed to intervene in the said proceeding
and to present testimony." Pursuant to this authority, Sec. 102.29 of the
Board's Rules and Regulations provides, in pertinent part.
Any person desiring to intervene in any proceeding shall file a motion
in writing , or, if made at the hearing, may move orally on the record,
stating the grounds upon which such person claims an interest. . The
trial examiner shall rule upon all such motions made at the hearing or
referred to him by the regional director ... The regional director or the
trial examiner , as the case may be, may by order permit intervention
in person or by counsel or other representative to such extent and upon
such terms as he may deem proper.
16 Milk Drivers (Sealtest), supra, 234, N.L.R.B. v. Sterling Furniture
Company, 202 F.2d 41,43 (C A. 9), remanding 94 NLRB 32 See also Rules
of Civil Procedure for the United States District Courts, Rule 20.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter was a copy of the complaint , as amended . This letter
was never answered.
Considering the foregoing , it cannot be seriously argued
that the Board is barred from adjudicating the unfair labor
practice charged herein because of the nonjoinder of employ-
er-members of the bargaining group , even though the As-
sociation was fully aware of this proceeding and was afforded
adequate opportunity to safeguard the employers ' interests.
Furthermore, the Respondent 's ability to litigate the issues
herein was in nowise impaired by the nonjoinder . Indeed,
much of the documentary evidence produced by the Re-
spondent came from the files of the Association which for
years has been representing the hotel -employers in contract
negotiations and in resolving problems arising under nego-
tiated agreements . In addition , the Association 's labor coun-
sel and its former and present executive vice president , as well
as other participants in the various contract negotiations,
were available as witnesses if the Respondent wanted to call
them.
In the final analysis , I find nothing in the record indicating
that the Respondent was prejudiced in any way by the non-
joinder of the other employers in the bargaining unit to war-
rant dismissal of the complaint herein . After all, "procedural
regularity [is] not ... an end in itself, but [is] ... a means of
defending substantive interests."19
2. Banquet captains' alleged supervisory authority
Turning to the merits of the complaint , the Respondent
seeks to avoid the legal consequences of its conceded unilat-
eral action by arguing , in opposition to the position of the
General Counsel and Union , that Banquet Captains von der
Lippe and Kubain are supervisors within the meaning of
Section 2(11) of the Act20 and hence it was under no duty to
bargain concerning their working conditions. Initially, it is
noted, as shown above, that banquet captains have for, years
been members of the contractual unit, even though
"managerial and supervisory employees" have been expressly
excluded, and the captains ' wages, fringe benefits, and other
conditions of employment have been governed by its terms.
While this is a factor to be considered in resolving the super-
visory question , it is, of course, not determinative , if, in fact,
the captains are vested with such authority . In the latter
event , there undeniably is no statutory restriction on the
Employer's right to alter unilaterally the captains' working
conditions whether established by the collective -bargaining
agreement or practice ," whatever civil remedies might be
available to the captains or their bargaining agent.
Much testimony was produced on the subject of the au-
thority and duties of Captains von der Lippe and Kubain and
their role in the Respondent 's catering operations . In sub-
stance, the credited testimony discloses the following: The
Respondent maintains banquet and catering facilities on the
19 Charles Fay v Douds, 172 F.2d 720, 725 (C A 2); cf Rules of Civil
Procedure, supra, Rule 21
'° Section 2(11) defines " supervisor," to mean:
.. any individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall , promote, discharge , assign, re-
ward, or discipline other employees, or responsibly to direct them, or
to adjust their grievances , or effectively to recommend such action, if
in connection with the foregoing the exercise of such authority is not
of a merely routine or clerical nature , but requires the use of independ-
ent judgment.
" Cf Section 14(a) of the Act which provides:
Nothing herein shall prohibit any individual employed as a supervisor
from becoming or remaining a member of a labor organization, but no
employer subject to this Act shall be compelled to deem individuals
defined herein as supervisors as employees for the purpose of any law,
either national or local, relating to collective bargaining.
second floor of its hotel , which are managed by Director of
Catering Weatherstone . In charge of the functions, which
may be dinners or luncheon banquets , receptions, breakfasts,
and other affairs, is Wolfgang F . Baere, the headwaiter, ad-
mittedly a supervisor . He is assisted by the two banquet cap-
tains, von der Lippe and Kubain , who alternately work the
day and evening shifts, while Baere is usually at the hotel
during all the scheduled functions . The captains take their
orders principally from Baere and at times from Weather-
stone, which are passed along to the waiters working a par-
ticular affair.
The captains ' responsibility is to effectuate the written in-
structions relating to a scheduled function which they receive
almost daily from the catering office. These instructions con-
tain such information as the date and time of the functions,
the room to be used, the name of the customer , the nature of
the function, the approximate or guaranteed number of
guests, the person in charge for the customer, the seating
arrangements (the head table and the , number, type, and size
of tables), the menu to be served , and many other details.
Following the written instructions and established proce-
dures, which obviously vary according to the type of affair,
captains, among other things, prepare a floor plan and see
that the banquet room is properly equipped ; the tables are
properly arranged and set with appropriate linens, silver, and
glassware; the affair is adequately staffed ; and the food is
efficiently and correctly served . The performance of these
duties involve coordination with the steward , chef, and the
houseman departments , each of which has its own respon-
sibilities regarding the furnishing of equipment , food, and
beverages required for the function.
To obtain waiters for scheduled functions , captains utilize
a rotation list of steady waiters. The waiters are assigned in
order of their standing on the list a day before the functions
are to be held so that those at the top of the list are designated
for the first function and those below them are assigned to the
other scheduled affairs. If additional waiters are required,
captains call the Union for extra help. According to von der
Lippe and Kubain, whom I credit, they also generally assign
service stations at a function in rotation ," although better
waiters might be selected to cover the head and VIP tables,
regardless of their position on the list , or there might be other
departures for some special reason, as age. Moreover, cap-
tains may vary the size of the stations so that one waiter may
have more than the minimum number of guests prescribed in
the bargaining contract for which he is additionally compen-
sated or he may have less than the minimum for which he is
paid the minimum.23 The number of waiters needed at a
function is normally indicated by the written instructions or
established practices or by Baere when consulted by the cap-
tain . In connection with the assignment, captains may desig-
nate some of the waiters to come in earlier to set up the tables
for, which they receive extra compensation . Under certain
circumstances where a banquet room is not available in time
for a regular setup, the headwaiter or, in his absence, the
captain may order the waiters to do a so-called station setup
which is more costly to the hotel than the regular setup.
Waiters familiarize themselves with the requirements of their
22 Art. XIII, sec 3 , of the current collective-bargaining contract provides-
The Employer shall rotate watches , stations and turns so that em-
ployees shall have equal opportunities . Those hotels using steady wait-
ers or waitresses for banquet work during the employees' regular shift
shall rotate same among all waiters or waitresses , provided they are
willing to rotate and also provided that parties requesting designated
waitresses or waiters shall be recognized.
' The waiters ' share of the gratuities are equally divided among them-
selves, irrespective of the number of guests they serve.
STATLER HILTON HOTEL
assigned function, such as the menu to be served or the collec-
tion of tickets, from posted written instructions or oral
briefings by the headwaiter or captain.
While a function is in progress, the captain handling it is
always on the floor to see that it is running smoothly, direct-
ing and assisting waiters if necessary, although the waiters'
job is fairly routine. The captain may criticize a waiter for
poor performance or alert the waiter to the headwaiter's
disapproval of his work. It is also the captain's responsibility
to satisfy the customer's requests as, for example, to speed up
or hold back service, to open up certain bars or buffet tables,
to furnish additional microphones for a speaker, or to extend
the allocated time of the function, which might require the
retention of several waiters on overtime pay. In the latter case
of extending the time of the function, the captain discusses
the matter with Baere or the catering salesman who arranged
the affair. Customer complaints or problems are usually
brought by the captain to the attention of Baere, who oversees
all the functions. If Baere is not present or available, these
matters are discussed with Catering Director Weatherstone.
Accidents and intoxication incidents are reported to the Re-
spondent's assistant manager or security officer. In cases of
spillage, the captain investigates the matter, apologizes to the
guest, arranges for the soiled clothes to be cleaned, and makes
out a written report of the occurrence. Baere is also kept
informed of these incidents.
In addition to the foregoing, captains have many clerical
duties to perform, using the same office as Headwaiter Baere
for such purpose. They prepare "Headwaiter's Supervisory
Report" relating to a completed function in which are noted
all details of the affair, including the names of the waiters
working it and the charge to the customer. They also keep a
daily payroll record for each function, which contains, among
other things, a detailed statement of the money due each
waiter, as well as a breakdown of gratuities to be shared by
the waiters, captains, and "officers in charge." There are
other financial reports which captains are required to make.
It appears that Captains von der Lippe and Kubam do not
have the power to hire, fire, or discipline employees. This is
the province of Headwaiter Baere. Nor is the evidence per-
suasive that the captains possess the power to make effective
recommendations in those respects.24 However, there is evi-
dence that from about May 1967, when Baere's predecessor
left the Respondent's employ, and November 1967, when
Baere was hired, von der Lippe was requested by the person-
nel manager to interview four applicants for houseman's jobs
to ascertain if they were physically and mentally qualified;
that he found the applicants acceptable and so advised the
personnel manager; that this was during a period when
housemen were difficult to come by and the Company was
willing to hire anyone who was physically fit; and that he has
not interviewed anyone since then.
Von der Lippe and Kubain have also been instructed by
Baere that he (Baere) alone had the authority to permit wait-
ers to take time off, except that in case of emergency captains
could grant permission in his absence. Accordingly, captains
have customarily referred waiters requesting time off to Ba-
ere, although von der Lippe once permitted a waiter to leave
to attend a funeral and Kubain sent a waiter home sick. On
one occasion when an elderly waiter fell while working and
did not appear to be physically able to continue to work, von
der Lippe suggested to him that he go home. That individual
accepted the suggestion and his departure was excused. On
another occasion in December 1968, while Baere was on
vacation, von der Lippe asked an extra waiter not to seek
z" To the extent that Baere's testimony differs from that of von der Lippe
and Kubam, I find the captains' testimony more convincing
287
extra work at the Respondent's hotel as a result of an incident
in which the waiter had dropped a plate on a guest and soiled
the guest's dinner jacket.25 When a waiter arrives late for
work, which is an infrequent occurrence, and he had already
been replaced or his service station had already been redis-
tributed because time was short before the function was
scheduled to begin, captains follow the customary practice of
not allowing the waiter to start work. Finally, captains do not
attend supervisory meetings, as do the catering director and
the headwaiter.
Captains' weekly wages, which are fixed in the bargaining
contract, are much higher than those paid to steady waiters
and, while they share in gratuities with waiters, the amount
each receives for working a particular function probably is
less than the share of each waiter. In their work, the captains
wear a tuxedo and the waiters wear a uniform, both of which
are issued by the Respondent. On the other hand, the head-
waiter's tuxedo is furnished by himself.
The question thus to be resolved is purely a factual one26
and, in my opinion, close and troublesome. From a careful
analysis of the evidence, I am, nevertheless, led to the conclu-
sion that the responsibilities of Captains von der Lippe and
Kiibain in running a function are insufficient to confer super-
visory status on them within the meaning of Section 2(11) of
the Act. Their directions to employees appear to be fairly
routine, conforming with management instructions and es-
tablished•guidelines and procedures. While some judgment is
obviously required in the performance of the captains' duties,
that exercised by them falls short of the independent judg-
ment and responsible direction indicative of supervisory au-
thority contemplated by the Act. Nor am I able to find vested
in von der Lippe and Kubain effective power to affect the
employment status of banquet waiters or other employees to
constitute them supervisors. Whatever action they might
have taken in that respect over the years has been too infre-
quent and sporadic to satisfy the statutory definition of super-
visor. Finally, their title of "captain" does not establish super-
visory authority; such status obviously depends on duties.27
As I find that von der Lippe and Kubain are not super-
visors within the meaning of the Act,26 it follows that the
Respondent's unilateral reduction of their share in banquet
gratuities which they had been customarily enjoying violated
Section 8(a)(1) and (5) of the Act, unless there is merit in the
Respondent's defense that the Union had waived its statutory
right to be consulted in advance.
" Von der Lippe explained that his statement to the waiter was not
intended as an order but as friendly advice for fear that the waiter might
otherwise run into more serious problems at the hotel which could jeopard-
ize his standing in the Union He further testified that, although he thought
that his advice was also in the Respondent's best interests, the waiter could
not be barred from returning unless the Respondent made such a request of
the Union in writing. Moreover, von der Lippe testified, he did not have the
authority to prevent the waiter from working at the hotel.
N.L R.B v. Elliott-Williams Co., Inc., 345 F 2d 460, 463 (C A 7).
Red Star Express Lines ofAuburn, Inc. v N.L.R.B., 196 F.2d 78,79-80
(C A 2), cf. Management Directors, Inc. d/b/a/ Columbus Plaza Motor
Hotel; 148 NLRB 1053, 1055-56, Don the Beachcomber, 163 NLRB 275,
276. Hotel Equities, d/b/a/ The Regency Hyatt House, 180 NLRB No. 34.
28 Plainly, the document entitled "Equal Employment Opportunity
Commission-Area Director's Findings of Fact" involving the Sheraton
Park Hotel, which was appended to the Respondent's brief submitted to the
Trial Examiner, is not an official part of the record in the present case
Moreover, the findings contained in that document are neither binding on
the Trial Examiner nor require a contrary result.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The alleged waiver of the union's statutory right
As noted previously, the parties' current contract entitles
"officers in charge, including captains" to 19 percent of the
gratuity paid by a customer for services performed at a ban-
quet with the remaining 81 percent being divided equally
among the waiters and waitresses. It is also undisputed that,
although the contract does not specify the precise share of the
19-percent allocation to be distributed to banquet captains, it
has long been the practice-probably since 1955-for the
Respondent's two captains jointly to receive 9 percent of the
overall gratuity payable out of the 19 percent. Accordingly,
since their employment in that capacity, Captains von der
Lippe and Kubain have each received 4 1/2 percent of the
overall gratuity until the Respondent in October 1969, unilat-
erally reduced each one's share to 3 percent, without first
notifying or bargaining with the Union or even honoring the
Union's subsequent bargaining request. Significantly, this
was the first instance in the Respondent's long history of
bargaining relations with the Union where the Respondent
had undertaken unilaterally to change the captains' share.29
It is the Respondent's inflexible position that it is under no
duty to bargain with the Union over this matter because the
Union had clearly and unmistakably waived this right.30 In
support of this contention, the Respondent relies on the his-
tory of negotiations for successive contracts from 1955 to
1969, when the current contract was concluded, in which
negotiations, it argues, the parties consciously explored the
subject of gratuities, adopting language indicative of manage-
ment's unqualified control over the distribution of the 19-
percent allocation among "officers in charge, including cap-
tains."31 With equal vigor the General Counsel maintains that
the record does not substantiate the Respondent's defense.
As a general rule, a labor organization may waive its statu-
tory right to be notified and consulted concerning a contem-
plated change in working conditions. Such a waiver, however,
cannot be lightly inferred but must be clearly and unmistaka-
bly evidenced either in the terms of the parties' bargaining
contract or in the nature of the prior contract negotiations."
Silence in the consummated agreement following discussions
of a controversial subject does not necessarily meet the waiver
test.33 As the Board stated in an early case34:
It is well established Board precedent that, although a
subject has been discussed in precontract negotiations
and has not been, specifically covered in the resulting
contract, the employer violates Section 8(a)(5) of the Act
if during the contract term he refuses to bargain, or takes
29 There is testimony, however, that the Shoreham Hotel, a participant
in the multiemployer negotiations , unilaterally reduced its banquet captains'
share in the allocated 19 percent in 1964, when it expanded its banquet
facilities Apparently, the captains were not dissatisfied with the new ar-
rangement because the expanded facilities improved the opportunity for
increased earnings Besides, there is no evidence that the Union was even
aware of the change
3° Except with respect to the captains ' share, there is no question of the
Respondent's right to distribute the rest of 19-percent allocation among
other personnel designated by the Respondent as "officers in charge."
31 Indeed, the Respondent and other employer-members of the bargain-
ing unit have ignored the Union's earlier request of April 21, 1969, for
information respecting the distribution that was being made to captains out
of the allocated 19 percent
32 The Press Company, Incorporated, 121 NLRB 976, 977-978, The
Timken Roller Bearing Company, 138 NLRB 15, 16, enfd 325 F.2d 746,
750-751 (C.A. 6), cert denied 376 U.S 971; C & CPlywood Corporation,
148 NLRB 414, 415-417, enforcement denied 351 F 2d 244 (CA 9),
reversed 385 US. 421; L. C. Cassidy & Son, Inc, 185 NLRB No. 134;
American Cyanamid Company, 185 NLRB No 135
33 Ibid.
34 The Press Company, supra, 977-978.
unilateral action with respect to the particular subject,
unless it can be said from an evaluation of the prior
negotiations that the matter was "fully discussed" or
"consciously explored" and the union "consciously
yielded" or clearly and unmistakably waived its interest
in the matter.
Applying these principles to the instant case, I find that
neither the language of the current or predecessor contracts
nor the bargaining history supports the Respondent's waiver
defense or otherwise sanctions the unilateral reduction here
in question. As the evidence shows, for at least 25 years,
banquet captains' right to participate in banquet gratuities
has been recognized in the contracts. Thus, the successive
agreements in effect from 1946 to 1955 contained clauses
which provided that "[t]en per cent of the gratuity shall be
retained by the officers in charge and 90% shall be sent to the
union to be divided equally among the employees serving the
banquets, including captains." The first relevant revision of
that clause occurred in the 1955-56 negotiations when the
parties provided in their new agreement, effective from Sep-
tember 16, 1955, through September 15, 1957, that 19 percent
of the gratuity shall be retained by "the officers in charge,
including captains, and 81% shall be sent to the Union to be
divided equally among the other employees serving the ban-
quets."35 In identical language, this arrangement of 19 per-
cent for "officers in charge, including captains" and 81 per-
cent for the waiters and waitresses was continued in all
subsequently negotiated contracts. The sole changes in the
applicable provision made in several contracts were increases
in the overall gratuity paid by the party booking the func-
tion.36
Concerning the evidence relating to the 1955-56 negotia-
tions which culminated in the 19-81-percent arrangement, it
essentially consists of an Association memorandum dated
December 21, 1955, which was directed to several interested
member-hotels,37 and a copy of a letter dated January 25,
1956, sent by the Association's former counsel to the Union's
35 A proviso was added to that clause, not retained in succeeding con-
tracts, which seem to suggest that the term "officers in charge" was not
intended to apply to captains. Thus, the proviso read:
. in the case of the Mayflower and Shoreham hotels where the cap-
tain actually works the party, 10% of the gratuity shall be retained by
the officers in charge , 5% shall be given the captains , and the balance
shall be sent to the Union, who shall divide the balance equally among
all employees serving the banquets , including captains.
36 Specifically, the overall gratuity in the September 16, 1957-September
15, 1960, contract was increased from 10 percent of the cost of meal and
drink to 13 percent In the September 16, 1963-September 15, 1966, con-
tract the gratuity was increased to 14 percent In the September 16, 1966-
September 15, 1969, contract it was increased to 15 percent and in the
current contract to 16 percent.
" This memorandum, which was signed by the Association's Executive
Vice President Bourbon Dawes and substantially embodies a memorandum
from its labor counsel, advised that a meeting with the Union was scheduled
for January 11, 1956, to consider "a definite method of computing the
maitre d's , captains ' and officers in charge percentage of the banquet waiters'
tips " It further stated that the Union is "going to recommend a 15% deduc-
tion (of the 10% tips) to take care of all of these people. Up to this point the
hotels have been deducting 10%, but the captains, etc, are being taken care
of out of the remaining 90%. This would be eliminated under the 15%
deduction." A handwritten notation on the memorandum, identified as that
of Dawes and dated "1-13-56," notes that the Association's counsel "says
we offered to deduct 19% and distribute as we see fit " Dawes, who is no
longer in the Association's employ, was not produced as a witness. Accord-
ing to the Respondent's attorney, he had telephoned Dawes in St. Louis, and
was informed by him that he neither recalled those events nor was his
recollection stimulated by the memorandum. Similar advice was conveyed
to the Respondent's attorney by the Association's former labor counsel that
he had no recollection concerning "the hotel's prerogative to distribute the
banquet captains ' share of tips "
STATLER HILTON HOTEL
former counsel. In brief, the memorandum indicates that at
a meeting with the Union scheduled for January 11, 1956, the
Association expected the Union to propose a 15-percent dis-
tribution for "matire d's, captains and `officers in charge.' "
The memorandum also had a handwritten notation dated
"1-13-56" which stated that "we offered to deduct 19% and
distribute as we see fit." It is certainly not without signifi-
cance that the resultant contractual provision makes no men-
tion of management's reservation of its right to distribute the
19 percent as it saw fit, much less to determine the captains'
share. As for the letter of the Association's counsel referred
to above, it advised that the clause in question was rewritten
by him "to allow for the 19% withholding of gratuity for
officers in charge and captains, as per your request and our
agreement," and similarly fails to make any reference to
management's control over the captains' share. This clause
was subsequently incorporated in the executed agreement.
It is undisputed that since at least 1960 the Union in the
various negotiations culminating in the execution of the
successive contracts sought to increase the captains' share in
the 19-percent allocation by reducing or eliminating the par-
ticipation of "officers in charge." Such proposals have uni-
formly been rejected by management . Specifically, the evi-
dence shows that in the 1963 negotiations the Union
proposed an increase in the overall gratuity from 13 to 15
percent paid by the party booking the banquet to be dis-
tributed only among the captains and the waiters and wait-
resses in indicated proportions without any sharing by "offic-
ers in charge." This proposal was not acceptable to
management which insisted that "officers in charge" were
entitled to a part of the gratuity because of their contribution
to the banquet. The end result was that the overall gratuity
was raised to 14 percent," and the 19-percent allocation for
"officers in charge, including captains" was retained.
In the next series of contract negotiations in 1966, the
Union proposed another increase in the overall gratuity, an
enlargement of the captains' share in the 19-percent alloca-
tion, and a concomitant reduction in the participation of
"officers in charge."39 This, too, met with resistance from
management, arguing for the retention of the share enjoyed
by "officers in charge." Again, the overall gratuity was in-
creased to 15 percent and the clause in the previous contract
dealing with this subject was retained .40 The participation of
"officers in charge" thus remained intact.
In the 1969 negotiations for the current agreement, the
Union made another fruitless attempt to increase the cap-
tains' share in the 19 percent and to diminish the share of
"officers in charge."41 As it had done on previous occasions,
The captains' base pay was also raised.
" Item 17(c) of the Union's proposal read, as follows:
Amend Article X, Sect 4, to increase the guaranteed gratuity from 14%
to 18% of which 90% shall be sent to the Union for equal division among
the waiters and waitresses serving the function 10% to be retained by
the officers in charge of which 60% shall be divided among the captains
assigned to the function.
40 The base pay of captains was also increased
" The Union' s proposal was as follows:
Amend Article IX, Sec 4 (Banquet gratuity) to provide:
(a) 18% gratuity instead of 15%
(b) The 19% of the gratuity that is retained by the officers in charge,
including captains, shall be divided as follows. Where there is one
captain in the house, an equal division with one part to the officers
and one part to the captain. Where there are two captains in the
house, an equal division with two parts to the officers in charge and
two parts to the captains Where there are more than two captains
working, including substitute captains, pro rata shares with two
shares going to the officers in charge and one share to each captain
(c) Where there is no captain, in the banquet department, one-half
of the 19% of the gratuity shall be divided equally among the
289
the Respondent rejected the Union's proposal and argued for
the preservation of the share of "officers in charge." The only
change the Union succeeded in achieving in this respect was
another 1-percent increase in the overall gratuity. Otherwise,
the applicable clause in the contract remained the same.
I credit the testimony of the Union's attorney, Samuel
Levine, who participated in all the contract negotiations since
1957,42 that never in any negotiations did management assert
a right to control or determine the captains' share in the
19-percent allocation nor did that question even arise. This
is borne out by the very nature of the Union's proposals
which were undeniably concerned with increasing the cap-
tains' share by decreasing or terminating the participation of
"officers in charge" in the 19 percent, and not with any
asserted management right unilaterally to alter the captains'
share. In this context, and in view of the fact that captains
were members of the bargaining unit whose interests the
Union always represented, it is highly unlikely that manage-
ment would assert a right in the discussions to change the
captains' share whenever it saw fit. Not surprisingly, there is
no testimony of the Union's response to this purported man-
agement claim nor explicit language in the contract recogniz-
ing the claim. In these circumstances, I find unpersuasive the
contradictory testimony of Philip A. Hollywood, chairman of
the Association's labor committee, regarding management's
reservation of its right unilaterally to control and determine
the captains' share in the gratuity.
All things being considered, including the history of bar-
gaining and the language of the clause in question embodied
in past and current contracts, I find insufficient (evidence that
the matter of management's asserted right of unilateral con-
trol over the captains' share in banquet gratuities "was `fully
discussed' or `consciously explored' and the union 'con-
sciously yielded' or clearly and unmistakably waived its inter-
est in the matter."" Nor am I able to find any convincing
evidence of a prevailing practice, as the Respondent suggests,
from which an inference may reasonably be drawn of the
existence of such an acknowledged management prerogative
or a surrender by the Union of its statutory right to be con-
sulted concerning a contemplated change in the captains'
share. Indeed, it appears that at no time prior to its action in
October 1969 which gave rise to this proceeding did the
Respondent ever presume to exercise its purported manage-
ment right to alter the percentage of the gratuities its captains
have been customarily receiving.
Accordingly, I find that the Respondent's admitted reduc-
tion of the individual share of Captains von der Lippe and
Kubain in the overall gratuity to 3 percent from 4 % percent
they had long enjoyed as an established condition of employ-
ment, without bargaining with the Union, violated Section
8(a)(5) and (1) of the Act.
IV THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, I recom-
mend that the Respondent be ordered to cease and desist
from engaging in the unfair labor practices found and in any
like or related conduct and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that the Respondent, in derogation of its
statutory obligation, unilaterally reduced the percentage
share in banquet gratuities its banquet captains had long
waiters and waitresses serving the function.
In the negotiations held during the 1960-69 period, Levine was actu-
ally the Union's chief spokesman. It also appears that he was a union
negotiator prior to 1955.
'3 The Press Company, Incorporated 121 NLRB 976, 978
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enjoyed as a condition of employment. Accordingly, it is
recommended that the Respondent rescind such reduction
and restore the percentage share the captains had been receiv-
ing under the prevailing practice at the time the Respondent
had taken the unlawful action. A full and complete remedy
further requires that the Respondent reimburse its Captains
von der Lippe and Kubain for the loss of moneys suffered by
them in consequence of the reduction to be computed with
interest at 6 percent per annum.44 It is so recommended. To
facilitate the computation, the Respondent shall make availa-
ble to the Board, upon request, all records necessary and
appropriate for such purposes. The posting of a notice is also
recommended.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. As stipulated for the purpose of this case only, all em-
ployees of the Respondent at its Washington, D.C., location,
excluding managerial and supervisory employees, office em-
ployees, musicians, engineers, firemen, carpenters, barbers,
and upholsterers, together with the employees of other hotel-
employers in the Washington, D.C., area comprising a mul-
tiemployer bargaining group, constitute a unit appropriate
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section 9(a)
of the Act.
5. By unilaterally reducing the share in banquet gratuities
each of its banquet captains, von der Lippe and Kubain, had
been customarily receiving, from 4 1/2 percent to 3 percent,
without first notifying and bargaining with the Union, the
Respondent had engaged, and is engaging, in unfair, labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
as amended, I hereby issue the following recommended:45
ORDER
The Respondent, Hilton Hotels Corporation d/b/a Statler
Hilton Hotel, Washington, D.C., its officers, agents, succes-
sors and assigns, shall:
1. Cease and desist from:
(a) Unilaterally reducing or otherwise changing the per-
centage share of its banquet captains in banquet gratuities
paid or guaranteed by the party booking a function, or mak-
ing any unilateral changes in other terms or conditions of
employment of its employees in the appropriate unit de-
scribed below, without first notifying and bargaining with the
employees' exclusive representative, Joint Executive Board of
Isis Plumbing & Heating Co., 138 NLRB 716.
In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
the Hotel and Restaurant Employees and Bartenders' Inter-
national Union, AFL-CIO, of Washington, D.C.:
All employees of the Respondent at its Washington,
D.C., location, excluding managerial and super-
visory employees, office employees, musicians, engi-
neers, firemen, carpenters, barbers, and upholster-
ers, together with the employees of other hotel
employers in the Washington, D.C., area compris-
ing a multiemployer bargaining group.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their bargaining
rights through their exclusive representative, the above-
named Union, which are guaranteed to them in Section 7 of
the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Rescind the unilateral reduction made in the share of
banquet gratuities which its banquet captains, Erich von der
Lippe and'Otto Kubain, had previously enjoyed and restore
the percentage they had customarily received just prior to the
reduction.
(b) Make Erich von der Lippe and Otto Kubain whole for
any loss of moneys suffered by reason of the unlawful reduc-
tion, in the manner set forth in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary or
useful in analyzing the amount of moneys due under the
terms of this Order.
(d) Post at its Statler Hotel in Washington, D.C., copies of
the attached notice marked "Appendix."46 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 5, after being duly signed by the Respondent's author-
ized representative, shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith.47
16 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
°' In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 5, in writing, within 20 days from
the date of this Order what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally reduce or otherwise change
the percentage share of our banquet captains in banquet
gratuities paid or guaranteed by the party booking the
function, or make any unilateral changes in other terms
or conditions of employment of our employees in the
bargaining unit described below , without first notifying
STATLER HILTON HOTEL
and bargaining with the employees ' exclusive represent-
ative , Joint Executive Board of the Hotel and Restaurant
Employees and Bartenders ' International Union, AFL-
CIO, of Washington, D.C. The bargaining unit includes:
All employees at our Statler Hilton Hotel in Wash-
ington, D.C., excluding managerial and supervisory
employees , office employees, musicians , engineers,
firemen , carpenters, barbers, and upholsterers,
together with the employees of other hotel employ-
ers in the Washington , D.C., area comprising a
multiemployer bargaining group.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise of
their bargaining rights through the above -named Union,
which are guaranteed to them in Section 7 of the Act.
WE WILL rescind the unilateral reduction made in the
share of banquet gratuities which our banquet captains,
Erich von der Lippe and Otto Kubain, had previously
enjoyed and we will restore the percentage they had
customarily received just prior to the reduction.
WE WILL make Erich von der Lippe and Otto Kubain
291
whole for any loss of moneys they suffered by reason of
our unlawful action.
HILTON HOTELS
CORPORATION D/B/A
STATLER HILTON
HOTEL
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board 's Office, Room
1019, Federal Building , Charles Center, Baltimore, Maryland
21201, Telephone 301-962-2822.