Tio Pepe, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1978

237 N.L.R.B. 537 (N.L.R.B. 1978)

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