The Westin Hotel

National Labor Relations Board - Board Decisions

Jan 10, 1986

277 N.L.R.B. 1506 (N.L.R.B. 1986)

1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Westin Hotel and International Union of Oper-
ating Engineers, AFL-CIO, Local 20 . Case 9-
CA-17844
10 January 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 29 May 1981 the Regional Director for
Region 9 issued a Decision and Direction of Elec-
tion in Case 9-RC-13742 in which he found appro-
priate a unit of all employees employed by the Re-
spondent in its maintenance and engineering de-
partment at its Cincinnati, Ohio facility,' as sought
by the Petitioner. The Regional Director rejected
the Respondent's and Intervenor Local 12's conten-
tion that an overall unit of hotel service employees,
excluding office clericals, was appropriate. In find-
ing the petitioned-for maintenance and engineering
unit appropriate, the Regional Director noted, inter
alia, the maintenance and engineering employees'
unique skills and training; their separate supervision
and responsibilities; the general lack of interchange
between maintenance and engineering employees
and other hourly workers; and the paucity of a
definite pattern of area bargaining on an overall
hotel unit basis. On 5 June 1981 the Respondent
and Local 12 filed motions for reconsideration with
the Regional Director. The Regional Director
denied the motions.
Thereafter, the Respondent and Local 12 filed
requests for review with the Board which were
granted on 26 June 1981. An election was conduct-
ed by secret ballot on 30 June 1981, pursuant to the
terms of the Decision and Direction of Election,
and the ballots cast were thereafter impounded in
conformity with the Board's procedures. On 28
September 1981 the Board adopted the Regional
Director's Decision and Direction of Election and
remanded to the Regional Director to open and
count the ballots. The Respondent and Local 12
filed motions for reconsideration with the Board.
The Board declined to reconsider its decision. On
18 December 1981 the Regional Director issued a
certification that the Petitioner was the majority-
i On 17 April 1981 the Petitioner filed a representation petition seeking
certification as the bargaining representative for the Respondent's mainte-
nance employees On 21 April, the Hotel, Motel, Restaurant Employees
and Bartenders Union, Local 12 (Local 12) notified the Respondent of its
desire to represent an overall unit consisting of all the Respondent's serv-
ice employees (including maintenance employees) Subsequently, on II
May 1981, the Respondent, after investigating Local 12's majority sup-
port, extended recognition to Local 12 excluding the maintenance em-
ployees pending resolution of the aforementioned petition. Local 12 inter-
vened in the Board proceeding solely to be heard on the appropriate unit
issue, it did not seek to participate in an election in the maintenance unit
designated representative of the unit found appro-
priate.2
Subsequently, by letter dated 22 December 1981,
the Petitioner requested the Respondent to meet
with it for purposes of collective bargaining. The
Respondent refused. Thereafter in Case 9-CA-
17844 the Petitioner filed unfair labor practice
charges which culminated in the Board's Decision
and Order finding that the Respondent, on or
about 22 December 1981, and at all times thereaf-
ter, violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Petitioner as the exclu-
sive representative of the Respondent's mainte-
nance employees, and ordering that the Respond-
ent bargain upon request.3
On 24 July 1984 the United States Court of Ap-
peals for the Sixth Circuit issued its decision in this
proceeding,4 wherein it denied enforcement of the
Board's Order and remanded the case to the Board
for reconsideration of the appropriate unit issue.
The court concluded that the Regional Director's
fording of a "paucity of an area-wide pattern of
bargaining on a broader unit basis" was not sup-
ported by substantial evidence in the record con-
sidered as a whole. The court noted uncontradicted
evidence that all area hotels organized since 1947
had been organized on an overall basis and, there-
fore, concluded that the prevailing areawide pat-
tern of bargaining in the industry favored overall
units. The court also found that the evidence sup-
porting the Regional Director's finding of unique
skills and separate supervision was not strong, and
that the Board had recognized that there were
some factors militating in favor of an overall unit.
It concluded that, in these circumstances, it could
not be assumed that the Board would have directed
a separate election in the maintenance department
absent its unsupported finding regarding the area
bargaining pattern.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
We have carefully reviewed the entire record in
the underlying representation proceeding and, for
the reasons discussed below, we have decided to
revoke our Certification of Representative issued in
Case 9-RC-13742 and vacate our previous Deci-
sion and Order in this proceeding.
The Westin Hotel is a 17-story luxury hotel in
Cincinnati, Ohio. The hotel has 460 guest rooms, 9
meeting and banquet rooms, 3 restaurants, 2
lounges, and a pool and health club. When the
2 The tally of ballots showed 11 votes cast for and none against the
Petitioner with no challenged ballots
3 261 NLRB 1005
4 738 F.2d 765 (6th Cir 1984)
277 NLRB No. 172
WESTIN HOTEL
hotel began operating on 19 March 1981, the facili-
ty employed approximately 600 persons. About 347
of these are service employees distributed among
traditional hotel classifications, i.e., housekeeping,
laundry and guest service, food and beverage, and
various subclassifications thereof. Eleven of these
service employees are assigned to the maintenance
department in which the Petitioner seeks represen-
tation.
At the time of the hearing, Westin's maintenance
department consisted of a building superintendent,
Lloyd Hodges, an assistant building superintendent,
Dan Pumey, and the 11 maintenance employees.
Maintenance employees perform a wide variety of
repair and maintenance ! works throughout the facil-
ity requiring various levels of skill and expertise.
But repair work involving major structural alter-
ations, reupholstery of furniture, and major repair
or servicing of television sets, office equipment,
elevators, or air-conditioning units is generally sub-
contracted to outside repair personnel.
Maintenance employees are classified as Mainte-
nance Worker I, 11, and III depending on their
level of experience. Maintenance Worker III is an
entry level position filled by individuals demon-
strating "mechanical aptitude." The Maintenance
Worker II and I classifications require 3 and 6
years, respectively, of experience or training as a
maintenance employee. No engineering or craft li-
censes are required.
The hiring procedure for maintenance employees
is similar to that of other departments throughout
the hotel. Thus, like all other department heads,
Superintendent Hodges makes a personnel requisi-
tion to the personnel department which, in turn,
screens applicants via preliminary interviews.
Hodges then interviews the applicants and makes
his selection after conferring with personnel as to
which applicant seemed the best qualified. Other
personnel matters and supervision are likewise han-
dled on a department-by-department basis. For ex-
ample, Hodges determines yearly wage increases
for maintenance department employees using cor-
poratewide personnel evaluation forms, 6 and both
Hodges and Purney make all work assignments in
the maintenance department, and are solely respon-
sible for the direction of all maintenance work.
The employees perform such tasks as hanging pictures, moving and
making routine repairs on furniture , installing and monitoring gauges;
doing carpentry, making vinyl wall, lamp, refrigeration, and minor air-
conditioning and television repairs , replacing shower heads ; making boxes
and racks, unstopping drains and toilets, installing and performing routine
repair on laundry, kitchen, and other equipment, wallpapering and paint-
ing small areas, maintaining the sprinkler system, making minor modifica-
tions to certain plumbing and electrical equipment, and monitoring boil-
ers and giving them chemical treatments.
6 Regardless of department, throughout the hotel, all wage increases
ale uniformly enacted on the first of the year
1507
All hotel service employees, including mainte-
nance workers, are hourly paid, enjoy the same
fringe benefits, use the employee entrance on the
service level of the hotel, punch identical I.D.
cards into a computerized timeclock, wear uni-
forms and name badges, share common locker
rooms and cafeteria facilities, are subject to similar
work rules and policies, and, when newly hired,
participate in the same orientation program. With
respect to wages, the average pay for maintenance
employees falls within the median level for all
hotel service employees.
There is a separate maintenance area where
Hodges and Purney maintain their offices and
where maintenance employees have their own tool
lockers. Although the employees report to this area
on a daily basis, 80-90 percent of their time is spent
working throughout the hotel, i.e., the kitchen,
laundry, restaurant and lounges, banquet and meet-
ing rooms, and guest rooms. In performing their
tasks throughout the hotel, maintenance employees
are in frequent contact with the other service em-
ployees. On a given occasion, the manager of a de-
partment in whose area the maintenance employee
is working might instruct the employee in carrying
out maintenance duties.
Service employees have on occasion assisted
maintenance employees in performing their tasks,
such as moving furniture. The record discloses in-
stances in which a manager from another depart-
ment has called a porter from the property mainte-
nance department to assist a maintenance employee
in performing a maintenance task within that man-
ager's department. In an emergency situation, such
as a bathroom flood, maintenance employees and
service employees from other departments work
together to rectify the problem . Maintenance em-
ployees make the necessary repairs and housekeep-
ing employees handle the cleanup tasks. Front desk
and security employees also lend assistance in such
circumstances.
Although no nonmaintenance employee has ever
been permanently transferred into the maintenance
department or has substituted for an ill mainte-
nance employee, a transfer policy exists if a vacan-
cy occurs and the applicant is qualified. In isolated
instances, the property maintenance department
does light building maintenance such as minor
carpet repairs, replacing wall outlets, and touching
up molding and wall covering-all tasks normally
delegated to maintenance employees. The tools for
such tasks are generally signed out of the mainte-
nance department.
In making unit determinations in the hotel indus-
try, the Board applies, on a case-by-case basis, the
same traditional community of interest criteria used
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in other industries . These criteria include distinc-
tions in skills and function of particular employee
groups, their separate supervision, the employer's
organizational structure and differences in wages
and hours, as well as integration of operations, and
employee transfer, interchange, and contacts. See
generally the principles set forth in Atlanta Hilton
& Towers, 273 NLRB 87 (1984), modified on other
grounds 275 NLRB 1413 (1985), and 77 Operating
Co., 160 NLRB 927 (1966), enfd. 387 F.2d 646 (4th
Cir. 1967).
In the instant proceeding, the Sixth Circuit con-
cluded that the Regional Director's finding of a
"paucity of current area-wide pattern of bargain-
ing" was not supported by the record evidence.
Rather, it found the prevailing pattern favored
overall hotelwide units. We are bound by that find-
ing as the law of the case.
The remaining factors relied on by the Regional
Director in finding a community of interest among
maintenance employees are outweighed by the evi-
dence in favor of establishing an overall unit. As
the Sixth Circuit pointed out, the evidence support-
ing the Regional Director's finding of unique skills
and separate supervision is "not very strong." Only
2 of the 11 maintenance employees were Mainte-
nance Worker I employees, who engaged in the
more technical tasks. A majority of the mainte-
nance employees had at most a high school educa-
tion or its equivalent. Although one maintenance
employee was a certified boiler technician and one
was a licensed engineer , no license or specific craft
experience was required for their jobs.7 Additional-
ly, occasionally supervisors from other departments
would direct a maintenance worker in performing
tasks. Indeed, the indicia of separate supervision
and 'skills are here no more prevalent in application
to maintenance employees than they are to the em-
ployees in the other manual service departments.
Like maintenance employees, those other service
employees are supervised on a department-by-de-
partment basis and have skills that are different or
set them apart from the employees in all other de-
partments. Yet their separate supervision and dis-
tinct skills do not warrant their exclusion from an
overall unit of manual service employees.
Although the record demonstrated a lack of
interchange between maintenance workers and
other service employees, this fact is substantially
outweighed by the extensive contact, integration of
duties, and similar terms and conditions of employ-
ment among all hotel operating personnel. As
stated, maintenance workers spend 80-90 percent
of their time in areas of the hotel occupied by
7 The only requirement was the 3 and 6 years' general maintenance
experience described above.
other hotel employees. They frequently repair
equipment in proximity to other employees and
share the same locker room and cafeteria with
other operating personnel . In several instances,
maintenance workers work with other service de-
partments and are, as a courtesy, assisted in their
work by other hotel employees. In other isolated
instances , nonmaintenance employees perform
minor maintenance tasks. Although this is not done
on a regular basis , there is no requirement that all
employees perform identical tasks in order to be
grouped together in the same unit . It is sufficient
that the maintenance, housekeeping, and property
maintenance employees perform , as here, the simi-
lar integrated function of ensuring that the hotel's
physical plant is properly maintained."
More importantly, the maintenance employees in
this hotel share comparable wages, identical bene-
fits, and other significant similar terms and condi-
tions of employment with other nonmaintenance
service employees. All of the hotel's service em-
ployees are subject to uniform personnel policies
regarding recruitment , hiring, orientation, and
work rules.9
The Regional Director relied on Sheraton-Ana-
heim Hotel, 252 NLRB 959 (1980), in support of his
finding appropriate a separate unit for maintenance
workers. Although the Board in that case found a
separate unit of hotel maintenance employees ap-,
propriate, the Regional Director there noted in
particular the existence of a "mixed pattern of bar-
gaining for engineering and maintenance units in
the local area . . . and the fact that no other labor
organization [was] seeking to represent the hotel
employees in a broader unit." Id. at 961. As stated
above, the Sixth Circuit found that there is no sub-
stantial evidence of a mixed bargaining practice in
the current case, and we are bound by that finding.
Additionally, Local 12, the Intervenor, has specifi-
cally sought to represent an overall unit of hotel,
employees which includes maintenance workers.1
In light of the foregoing, we find a separate unit
for the Respondent's maintenance employees to be
inappropriate. Having found that the unit the Re-
gional Director found appropriate in Case 9-RC-
13742 is not an appropriate unit for collective-bar-
gaining purposes, we shall revoke the certification
8 For this reason, the Board has in the past grouped together mainte-
nance employees with other hotel service employees See Ramada Inns,
221 NLRB 689 (1975), Holiday Inn, Pittsburgh, 214 NLRB 651 (1974).
9 These common links among all hotel service employees are factors
utilized in determining whether a certain group , of employees would be
adequately represented within an overall unit See Atlanta Hilton &
Towers, supra , Holiday Inn Alton, 270 NLRB 1405 (1984), Clothing Work-
ers (Farah Mfg Co) v NLRB, 491 F.2d 595 (5th Cir. 1974)
10 As stated , the Respondent has extended recognition to Local 12 in
an overall unit which will include or exclude maintenance employees de-
pending on the resolution of this proceeding.
WESTIN HOTEL
issued in that case and dismiss the petition . In addi-
tion, we shall vacate our previous Decision and
Order in Case 9-CA-17844 and dismiss the com-
plaint.
ORDER
It is ordered that the previous Decision and
Order issued in this proceeding in Case 9-CA-
1509
17844 (261 NLRB 1005) is vacated and the com-
plaint is dismissed.
IT IS FURTHER ORDERED that the Certification of
Representative issued in Case 9-RC-13742 is re-
voked, and the petition is dismissed.