Westward-Ho Hotel Co. v. NLRB, 24920.

• Decision Date: 05 February 1971
• Docket Number: No. 24920.,24920.
• Citation: 437 F.2d 1110
• Parties: The WESTWARD-HO HOTEL COMPANY, Petitioner and Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Petitioner.
• Court: U.S. Court of Appeals — Ninth Circuit

437 F.2d 1110 (1971)

The WESTWARD-HO HOTEL COMPANY, Petitioner and Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Petitioner.

No. 24920.

United States Court of Appeals, Ninth Circuit.

February 5, 1971.

Daniel F. Gruender (argued), of Shimmel, Hill & Bishop, Phoenix, Ariz., for petitioner and respondent.

Donald Savelson (argued), Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L. R.B., Washington, D. C., C. Woodrow Greene, Atty., N.L.R.B., for respondent-petitioner.

Before MERRILL and HUFSTEDLER, Circuit Judges, and BYRNE, District Judge.^*

MERRILL, Circuit Judge.

Petitioner Westward-Ho has initiated these proceedings to review an order of the National Labor Relations Board directing it to bargain with Hotel & Restaurant Employees & Bartenders, Local Union 631, AFL-CIO. The Board decided that Westward-Ho had violated § 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) and (1), by refusing to bargain with the union after the union had won an election and had been certified as the representative of the hotel's kitchen employees. Westward-Ho contends that the Board's determination of the appropriate bargaining unit was controlled by the extent of union organization, in violation of § 9(c) (5) of the Act, and that its order should therefore be set aside. The Board cross-petitions for enforcement. We hold that the bargaining unit established by the Board was inappropriate, and we deny enforcement and set the Board's order aside.

I

Petitioner's hotel is located in downtown Phoenix, Arizona. The hotel has approximately 360 rooms, the normal hotel front offices, a dining room, a bar, a fountain, private meeting rooms and banquet facilities. The hotel also houses three private clubs, one of which is open to hotel guests. All three clubs are supplied by the hotel's kitchen and staffed by the hotel's employees. The hotel provides restaurant facilities primarily for its room guests, however: 80 per cent of the dining room business is attributable to hotel guests; 60 per cent of the entire hotel business is attributable to conventions. The employer's convention service involves the close co-ordination of all the hotel's employees.

In the Phoenix area at the time of the Board's decision the union represented employees of three other hotel or motel establishments. At all three locations the bargaining unit approved was an over-all unit combining kitchen, dining room and housekeeping employees.

There is no bargaining history in the particular unit approved by the Board. From 1943 to 1947 the union, under contract with petitioner, was the collective bargaining representative for a unit encompassing all employees at the Westward-Ho hotel. Since 1947 hotel employees (with the exception of maintenance and steamroom employees) have not been represented by any union.

In 1967 the union conducted an organizational campaign among Westward-Ho's employees. It was successful in obtaining a majority favoring unionization only among the kitchen employees. Consequently, when the union petitioned the Board for an election under § 9(c) of the Act, it sought a collective bargaining unit limited to Westward-Ho's kitchen employees.¹ The Board's regional director held a hearing, at which petitioner urged that the appropriate bargaining unit should include all operating personnel, including kitchen employees, and excluding only those employees who were already represented by another union: steamroom employees, stationary engineers and other maintenance employees. In the alternative, petitioner sought a unit composed of all restaurant employees, including kitchen employees. The regional director found, over Westward-Ho's opposition, that a bargaining unit limited to kitchen employees was appropriate. His decision was upheld by the Board on review. The union won the ensuing election and was duly certified as the collective bargaining representative of petitioner's kitchen employees.

In order to secure judicial review of the Board's unit determination, petitioner refused to bargain with the union. The unfair labor practice charge and compulsory bargaining order which form the basis of this proceeding ensued. The only issue presented on this appeal is whether the bargaining unit established by the Board was appropriate under § 9 of the Act.

II

Although the Board performs an important and difficult task in selecting an appropriate bargaining unit,² the National Labor Relations Act affords remarkably little guidance to aid its unit determinations. Section 9(b) provides the Board with only a vague standard for determining whether a unit is "appropriate" for collective bargaining purposes:

"The Board shall decide in each case whether, in order to assure to employees the fullest freedom of exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof * * *."

This broad delegation of authority, see Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941), was limited in 1947 by the enactment of § 9(c) (5) of the Act, which provides that:

"In determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling."

While the language and legislative history of § 9(c) (5) leave its meaning ambiguous in some respects,³ it is clear that Congress in passing this amendment intended to overrule Board decisions approving a unit that could only be supported on the basis of the extent of organization. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 441, 85 S.Ct. 1061, 1063, 13 L.Ed.2d 951 (1965).

Westward-Ho contends that an examination of prior Board decisions reveals that the Board's unit determination in this case marks a decided departure from established standards of unit determination in the hotel-motel industry. It argues that the reasons assigned by the Board for its action here do not justify such departure and that the only rational explanation is that, contrary to § 9(c) (5), the extent of union organization was the controlling factor in the Board's determination.

Where the Board appears to depart from the standards for unit determination it has applied in the past it must articulate its reasons for doing so, since without a disclosure of the basis for its exercise of discretion its action cannot be judicially reviewed. NLRB v. Metropolitan Life Ins. Co., supra, at 442, 85 S.Ct. 1061.

Since the results in other recent decisions of the Board are relevant in determining whether there has been an evasion of § 9(c) (5), we have examined prior Board decisions in this area.⁴ From our review we conclude that at the time of the Board's decision in this case the hotel-wide unit established in Arlington Hotel Co., Inc.,supra, note 4, remained the Board's standard for hotels and motels, subject to two exceptions: (1) Where well-defined area bargaining practices recognized as appropriate something less than a hotel-wide unit, the Board deferred to those practices in the interests of maintaining stability of collective bargaining relationships in the industry. SeeColumbia Plaza Motor Hotel,supra, note 4; LaRonde Bar & Restaurant, Inc.,supra, note 4. (2) Where the enterprise was not highly integrated, and under the peculiar facts of the case the "true community of interest" among particular employees was less than hotel-wide, a smaller unit consistent with that true community of interest was held appropriate. See77 Operating Company,supra, note 4.

It is against the backdrop of these standards for unit determination in the hotel-motel industry that we examine the basis of the Board's selection of a unit limited to Westward-Ho's kitchen employees.

III

The Board has assigned seven reasons for its unit determination in this case: (1) the separate identity and function of the kitchen employees, (2) their separate immediate supervision by the chef, (3) their minimal interchange with other employees, (4) their infrequent contact with the public, (5) the remoteness of the history of bargaining with this employer on a broader basis, (6) the fact that no other labor organization seeks a broader unit, and (7) since the hotel steamroom employees were separately represented on a craft basis, as was generally true in the Phoenix area, the Board concluded that "smaller units of hotel employees are a matter of industrial reality in the Phoenix area."

An examination of these reasons reveals that the first four considerations are generally true of kitchen employees everywhere and can hardly be said to constitute "facts peculiar to the case" or to indicate why, in this highly integrated hotel operation as distinguished from all others, the "true community of interest" of Westward-Ho's kitchen employees is confined to the kitchen. The fifth reason cited by the Board lends no support to its determination. It serves simply to de-emphasize the importance of the adverse fact that Westward-Ho bargained with the union on a hotel-wide basis in the past. We find nothing of substance in the seventh reason given by the Board. The fact that in the Phoenix area certain employees are customarily represented on a craft basis does not seem to bear directly on the question whether the true community of interest for the remaining employees should be found to encompass a hotel-wide unit or something smaller. The sixth and only remaining reason cited by the Board strongly suggests that the Board's action was controlled by extent of organization.

In support of the sufficiency of its list of reasons the Board correctly notes that extent of organization can be taken into consideration in selecting an appropriate bargaining unit. "* * * Both the language and legislative history of § 9(c) (5) demonstrate...