Tio Pepe, Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 15, 1978237 N.L.R.B. 537 (N.L.R.B. 1978) Copy Citation 110 PEPE. INC. Tio Pepe, Inc. and Bartenders, Hotel, Restaurant & Cafeteria Employees Union, IAcal 36, Hotel and Restaurant Employees and Bartenders International Union AFLCIO, Petitioner. Case 5 RC -10373 August 15. 1978 DEC(ISION ON' RlEVI\'\ BY Ml \BI!RS JF\KI\S. Mt RPI \NI) TRt I s1) \1 I On March 29. 1978. the Regional Director for Re- gion 5 issued a Decision and Direction of Election in the above-entitled proceeding. in which he found ap- propriate, in agreement vwith the Petitioner's request. a unit of all kitchen and dining room eraplo\ees em- ployed by the Emploser at its Baltimore. \lal land. location, excluding all office clerical empi alcc,,. guards. and supervisorrs as defined in the Act. 1 here- after, in accordance with Section 102.67 of the Na- tional Labor Relations Board Rules and Regulations. as amended, the EmploNer filed a request for review of the Regional Director's decision on the grounds that. inter aria, in deciding that the Eralover's nine "captains" are employees within the meaning of the Act and, were, therefore, properli included in the appropriate unit, the Regional Director failed to coln- sider record evidence establishing that such captains control the compensation received by other dining room personnel. By telegraphic order dated April 24. 1978, the re- quest for review was granted \with respect to the unit placement of the captains' and the election was stayed pending decision on review. Thereafter, the Employer filed a brief on review. Pursuant to the provisions of Section 3(hb) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review, includ- ing the brief on review, and has decided to affirm the Regional Director's Decision and Direction of Elec- tion for the reasons set forth below. The Employer employs approximately 33 emplo\- ees to work in its dining room facility as follows: 9 captains, 9 runners, 9-10 busboys. 3 bartenders, and 3 cashiers. All such employees work under the super- vision of admitted supervisors, Jesus Perez Goenada itI ti equc l fo t iuC i , t de nid tn A ,IL itI'1"- ,I (hereinafter referred to as Perez). part owner, and maitre'd. Francisco Lobo. The tables in the Employ- er's dining rooms are serviced by teams of three men consisting of one captain, one runner. and one bus- hob. All three team members assist in supplying the \,ants of the customers at the tables. tloswever. the SCI'\ IcC ciptll.lln, A iti general chzareg of the team aald .are responsible for the proper discharge of team duties. Ihe Inmploer's captains do not have the authority to hire or fire team members nor can they effectively recommenld such action. Overtime. time off, and va- cation must be granted bh either Lobo or Perez. Al- though the Implover's captains advise one of the ahose if team members are not working together har- molliosl\. transfer of employ)ees between teams is directed bh either Perez or obho. All team members reccisc the salme hourlv rate of paN. However. the prinlcipal source of income is comprised of tips. X hich are pooled b'y all teams at .he end of the eve- ninm and thereafter distributed among teams in a ra- tio of approximately 57 percent to captains. 29 per- cent to runners, and 14 percent to busboys. The 4:2:1 distribution s stem has been in existence since the lmlpheloer commenced operations. Further. when asked uhoether this split is a tradition in the restau- rant industlr., Perez testified. "It seems like it is." Based on the ahbo e facts and the record as a whole. sve agree with the Regional Director that the Emploser's service captains are not supervisors with- in the meanin of the Act as the\ do not have the autlhorits to hire. fire. trant time off, or transfer em- plo ces. oi to cffectivel, recommend such action. F urther. we find no merit in the EmploNer's conten- tion that its service captains effectively control com- pensation of team members by controlling the amount and manner of distribution of tips. Although Perez testified that service captains have the authori- ty to alter the formula by which tips are distributed, there is no evidence that any of the Employer's cap- tains has been informed that he has such authority. or that an\ captain has in fact exercised it. In these circumstances. \re adopt the Regional Director's con- clusion that captains are not supervisors. Accordingly. we shall affirm the Regional Direc- tor's Decision and Direction of Election and shall remand the case to the Regional Director for the pur- pose of opening and counting the impounded ballots to the election conducted herein on April 29. 1978. and thereafter, prepare and cause to be served on the parties a tally of ballots and issue an appropriate cer- tiit'.tilon based thereon. 237 NLRB No. 73 537 Copy with citationCopy as parenthetical citation