Yorktowne Hotel

National Labor Relations Board - Board Decisions

Jan 26, 1960

126 N.L.R.B. 344 (N.L.R.B. 1960)

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an adjustment of rates for claimed "extra marking and trimming" and for "shingling "
Blank had advised Heller of the reported attitude, immediately before the conference.
It is reasonable to infer, and I find, that Heller knew he could not obtain adequate
replacements except by trainmg_ The new season was barely started and production
would be impaired These employees, it may reasonably be inferred, also knew
this Messina outlined the importance of "marking and trimming" at the beginning,
in the middle, and at the end of the operation The marking was a prerequisite to
the performance of operations by other crafts The economic impact of a with-
holding of services must have been apparent to all
After the conference with Heller, Mane Swerdlik talked to Bormack and testified
he said there was nothing he could do-"He was laughing " I find the latter asser-
tion incongruous 10
After leaving the plant, the group waited 10 days before contacting anyone rela-
tive to their jobs They then went to see Dordick, and were advised they had been
replaced It would thus appear reasonable to infer they waited 10 days, albeit
vainly, for the fulfillment of Marie Swerdhk's prediction "when Mr Heller needs
us, he'll call us back "
"Under all the facts outlined, I find there was neither a "firing" nor a "quitting"
as the latter term expresses intent to permanently sever relations Rather, there was
a voluntary departure from the plant of these five employees who were offered the
alternative of working at the rate agreed upon or "getting their hats and coats "
In view of the above findings it is my conclusion that-his record does not establish
that these employees were discharged, discrumnatonly or otherwise, and the record
does not contain the preponderant evidence needed to establish discriminatory
terminations within the meaning of the Act Accordingly, I recommend that the
complaint herein be dismissed in its entirety
On the basis of the foregoing findings of fact, and upon the entire record herein,
I have reached the following
CONCLUSIONS OF LAW
1 The Respondent, Tailored Trend, Inc, is 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 the Act
3 The Respondent has not engaged in unfair labor practices as alleged in the
complaint within the meaning of Section 8(a) (3) and (1) of the Act
[Recommendations omitted from publication 7
w I find it unnecessary to further detail the inconsistencies, evasions, and patent in-
accuracies which have caused me to discredit those portions of the testimony of both
Swerdhks which conflict with the testimony, set forth, of witnesses called by the Re-
spondent In view of this, and In view of the findings and conclusions based on the
record as a whole, the testimony of Pincus and Warth is not persuasive where it con-
flicts with the credited testimony of Respondent's witnesses
Yorktowne Hotel (Community Hotel Company, Incorporated)1
and Hotel and Restaurant Employees & Bartenders Inter-
national Union, AFL-CIO, Petitioner. Case No 4-IBC-3975
January 26, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Morris
Mogerman, hearing officer The hearing officer's rulings made at the
hearmg are free from prejudicial error and are hereby affirmed'
i The Employer's name appears as amended at the hearing
2 The Employer questions the Petitioner's showing of interest on the grounds that
several cards were submitted to the hearing officer at the hearing However, showing-of
interest is an administrative matter not litigable by the parties 0 D Jennings f Co,,
68 NLRB 516 We find nothing in the circumstances of this case to warrant an exception
126 NLRB No 44
YORKTOWNE HOTEL (COMMUNITY HOTEL CO., INC.) 345
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The parties agree generally on the appropriate unit, except with
respect to the following categories :
Chef: The chef, with the steward, is responsible for the operation
of the kitchen. He oversees the work of approximately 35 employees,
schedules work assignments, and moves employees between jobs. The
chef has the authority to request employees to work overtime and
frequently attends meetings of management at which policy matters
are discussed. As we find that the chef responsibly directs the work
of employees under him, we shall exclude him from the unit as a
supervisor.
Headwaiter: The headwaiter greets and seats customers, makes
"table assignments," and sees that the Employer's "Wedgewood"
dining room is in order. He reports directly to the hotel manager and
assistant manager. While the headwaiter is purported to have the
power to recommend hiring, his recommendations may or may not be
followed. We are unable from the above facts, which constitute the
entire record evidence regarding the headwaiter, to determine whether
or not he is a supervisor. Accordingly, we make no finding regarding
the headwaiter, but shall allow him to vote subject to challenge.
Head housekeeper and assistants to the head housekeeper: The head
housekeeper directs the work of approximately 32 employees, and is
responsible for seeing that hotel rooms are kept clean and in good
order. She has a voice in making up work schedules, and her recom-
mendations regarding hire, discharge, and pay increases for house-
keeping employees are given weight. As the record indicates that the
to this rule. See Brunswick Quick Freezer, Inc, 117 NLRB 6G2. We are administratively
satisfied that Petitioner's showing of interest is adequate
The Employer also alleges that Petitioner was not in compliance with the filing re-
quirements of the Labor Management Relations Act of 1947, and intimates the existence
of a noncomplying local of the Petitioner interested in the employees in question. The
petition herein was filed August 5, 1959, prior to the repeal of Section 9(f), (g), and (h)
of the Act. It is settled that the fact of compliance is an administrative matter not
litigable in a representation proceeding No evidence appears, nor was offered, to show
the existence of a noncomplying local of Petitioner interested in these employees, and we
are administratively satisfied that the Petitioner was in compliance at all times relevant.
Accordingly, we find no merit in these contentions of the Employer. See The M. W.
Sell00a Company, 110 NLRB 51.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
head housekeeper responsibly directs employees under her, and makes
effective recommendations concerning their employment status, we find
the head housekeeper is a supervisor and shall exclude her. As for
the assistants to the head housekeeper, the record indicates only that
these employees help the housekeeper maintain records and control
linen distribution. As the assistants appear to possess none of the
statutory indicia or supervisory authority, we shall include them.
Hostesses : The primary duty of the four hostesses is to seat patrons
as they enter the Employer's dining rooms. The hostesses do not
normally attend management meetings, and possess no authority to
hire or discharge other employees. They may recommend available
friends for work, but their recommendations are given the same
weight as those of other employees. We find the hostesses are not
supervisors, and shall include them.3
Cashiers: There are five cashiers, including one combination
cashier-hostess. These employees, alleged by the Petitioner to be
office clericals, check food slips for accuracy, take cash from waitresses,
and make change. They are hired by the steward, but are respon-
sible to the auditor's office for the cash they collect. When the dining
room is busy, the cashiers give out menus, help seat patrons, and
occasionally wait on tables. We find that the cashiers are not office
clerical employees,' and shall include them.
Desk clerks and telephone operators: The record indicates only that
employees in these categories work in an area adjacent to the hotel
lobby, and that desk clerks, telephone operators, and cashiers frequent-
ly interchange jobs, depending on the Employer's needs. The afore-
mentioned evidence does not substantiate the Petitioner's claim that
employees in these classifications are office clericals. We shall there-
fore include the desk clerks and telephone operators in the unit.-'
In view of the foregoing and the entire record, we find that the
following employees constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the
Act :
All hotel, restaurant, and bar employees at the Employer's York-
towne, Pennsylvania, hotel, including maintenance, garage, and park-
ing lot employees, food checkers, assistants to the head housekeeper,
hostesses, cashiers, desk clerks, and telephone operators, but excluding
secretaries, auditing and other office clerical employees, extra em-
ployees, part-time employees who work less than 20 hours a week,
professional employees, watchmen and guards, the chef, the head
housekeeper, and all other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
8 See Marshall Field & Co., 93 NLRB 182.
4 See Indiana Hotel Company, 125 NLRB 629; Beau Rivage Hotel, 124 NLRB 80'9
8 See Indiana Hotel Company , supra.