Appendix — Portman v. National Labor Relations Board
Supreme Court brief1989
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89-727 ©
FILED
Nov 4 1989
IN THE }
JOSEP -F-SPANIOL, JR.
CLERK
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Supreme Court of the United States
OctToBerR TERM, 1989
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THE PORTMAN,
Petitioner,
V.
NATIONAL LABOR RELATIONS BOA
RD and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, STATIONARY ENGINEERS,
LOCAL 39, AFL-CIO,
Respondents.
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PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
a
SUPPLEMENTAL APPENDIX
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ARCH STOKES
(Counsel of cord)
FREDERICK L. WARREN
STOKES, LAZARUS & CARMICHAEL
80 Peachtree Park Drive
Atlanta, GA 30309
(404) 352-1465
Attorneys for Petitioner
Tower Printing Company, 2 Peachtree St., Atlanta, GA 30383 (404) 659-4080
No.
IN THE
Supreme Court of the Hnited States
Octoser TERM, 1989
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THE PORTMAN, _
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, STATIONARY ENGINEERS,
LOCAL 39, AFL-CIO,
Respondents.
A
—_
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
a
~
SUPPLEMENTAL APPENDIX
a
-
ARCH STOKES
(Counsel of Record)
. FREDERICK L. WARREN
STOKES, LAZARUS & CARMICHAEL
80 Peachtree Park Drive
Atlanta, GA 30309
(404) 352-1465
Attorneys for Petitioner
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TABLE OF CONTENTS
SUPPLEMENTAL APPENDIX: Page
The Portman, 291 NLRB No. 45 (September 30, 1988).............. A-3
The Portman, NLRB Case No. 20-RC-16191 (1988)...........s:::0++ A-4
Ruling on Appeal by Robert H. Miller, Regional Di-
rector, Region 20 dated November 20, 1987; Appeal to
Regional Director from Hearing Officer’s Refusal to
Admit Expert Testimonial Evidence of Professor Paul
Gaurnier dated November 18, 1987; and Affidavit of
Professor Paul Gaurnier as an Offer of Proof dated
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TABLE OF CONTENTS
SUPPLEMENTAL APPENDIX: Page
The Portman, 291 NLRB No. 45 (September 30, 1988)..............
The Portman, NLRB Case No. 20-RC-16191 (1988)............0.000+
Ruling on Appeal by Robert H. Miller, Regional Di-
rector, Region 20 dated November 20, 1987; Appeal to
Regional Director from Hearing Officer’s Refusal to
Admit Expert Testimonial Evidence of Professor Paul
Gaurnier dated November 18, 1987; and Affidavit of
Professor Paul Gaurnier as an Offer of Proof dated
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A-4
291 NLRB No. 45 sjc
D—9169
San Francisco, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE PORTMAN
and Case 20—-CA-21996
INTERNATIONAL UNION OF OPERATING
ENGINEERS, STATIONARY ENGINEERS,
LOCAL 39
DECISION AND ORDER
On June 21, 1988,' the General Counsel of the National
Labor Relations Board issued a complaint alleging that the
Respondent has violated Section 8(a)(5) and (1) of the National
Labor Relations Act by refusing to bargain following the Union's
certification in Case 20—RC—16191. (Official notice is taken of
the record in the representation proceeding as defined in the
Board’s Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed its
answer admitting in part and denying in part the allegations of
the complaint.
On July 11 the General Counsel filed a Motion for Summary
Judgment, with attachments, and a memorandum in support.
On July 15 the Board issued an order transferring the proceeding
' All dates are in 1988 unless otherwise stated.
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to the Board and a Notice to Show Cause why the motion should
not be granted. The Respondent and the Union filed responses.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on the Motion for Summary Judgment
In its answer the Respondent admits its refusal to bargain,
but attacks the validity of the certification on the ground that the
unit of engineering subdivision employees and maintenance
attendants found appropriate by the Regional Director in the
underlying representation proceeding is inappropriate. All
issues raised by the Respondent were or could have been
litigated in the prior proceeding. The Respondent does not offer
to adduce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special
circumstances that would require the Board to reexmine the
decision made in the representation proceeding. We therefore
find that the Respondent has not raised any issue that is
properly litigable in this unfair labor practice proceeding.’ See
? In its answer, the Respondent denies that portion of par. 2(a) of the complaint
that alleges that it is a California corporation. Contrary to its denial, however,
the Respondent stipulated in the underlying representation proceeding that it
is a California corporation. The Regional Director so found, and the
Respondent did not challenge this finding in its request for review of the
Regional Director's Decision and Direction of Election. Further, the
Respondent's response to the show cause notice does not address the issue and
provides no clue about its state of incorporation if other than California. As the
Respondent previously entered a stipulation regarding its state of
incorporation and admits the allegations of complaint pars. 2(a), (b), and (c)
regarding its operations, dollar volume of business, and involvement in
interstate commerce, we find that the denial raises no material issue of fact
warranting a hearing. \
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Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judgment.’
On the entire record, the Board makes the following
Findings of Fact
I. Jurisdiction
Respondent is a California corporation with an office and
place of business in San Francisco, California, where it is en-
gaged in the operation of a hotel providing food and lodging for
guests. Based on a projection of its operation since about
September 2, 1987, when it commenced operations, the Re-
spondent will annually derive gross revenues in excess of
$500,000. Since the opening of its San Francisco facility, the
Respondent, in the course and conduct of its operations, has
purchased and received at the facility products, goods, and
materials valued in excess of $1500 directly from points located
outside the State of California. We find that the Respondent is an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practice
A. The Certification
Following the election conducted on April 27, the Union
was certified on May 10 as the collective-bargaining represen-
tative of the employees in the following appropriate unit:
* Although Member Johansen dissented on the denial of review in the un-
derlying representation case, he considers that to be the law of the case and
consequently joins his colleagues in the present decision.
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All engineering subdivision employees and main-
tenance attendants employed by the Respondent at its
San Francisco, California, facility; excluding all other
employees, guards and supervisors as defined in the
Act.
The Union continues to be the exclusive representative under
Section 9(a) of the Act.
B. Refusal to Bargain
Since May 11 the Union has requested the Respondent to
bargain, and since June 2 the Respondent has refused. We find
that this refusal constitutes a refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
Conclusions of Law
By refusing on and after June 2, 1988, to bargain with the
Union as the exclusive collective-bargaining representative of
employees in the appropriate unit, the Respondent has engaged
in unfair labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and desist, to
bargain on request with the Union, and, if an understanding is
reached, to embody the understanding in a signed agreement.
To ensure that the employees are accorded the services of
their selected bargaining agent for the period provided by law,
we shall construe the initial period of the certification as be-
ginning the date that the Respondent begins to bargain in good
faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
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Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir.
1965).
ORDER
The National Labor Relations Board orders that the Re-
spondent, The Portman, San Francisco, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Union of Op-
erating Engineers, Stationary Engineers, Local 39 as the exclusive
bargaining representative of the employees in the bargaining
unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affimative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit on terms and conditions of employment and, if an un-
derstanding is/reached, embody the understanding in a signed
agreement:
All engineering subdivision employees and main-
tenance attendants employed by the Employer at its
San Francisco, California, facility; excluding all other
employees, guards and supervisors as defined in the
Act.
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(b) Post at its facility in San Francisco, California, copies of
the attached notice marked “Appendix.”‘ Copies of the notice,
on forms provided by the Regional Director for Region 20, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. '
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.
‘ If this Order is enforced by a judgment of a United States court of appeals, the
words in the notice reading “POSTED BY ORDER OF THE NATIONAL
LABOR RELATIONS BOARD” shall read “POSTED PURSUANT TO A
JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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Dated, Washington, D.C. September 30, 1988
James M. Stephens, Chaiman
Wilford W. Johansen, Member
Mary Miller Cracraft, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
WE WILL NOT refuse to bargain with International Union of
Operating Engineers, Stationary Engineers, Local 39 as the ex-
clusive representative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and condi-
tions of employment for our employees in the bargaining unit:
All engineering subdivision employees and maintenance
attendants employed by the Employer at its San Francisco,
California, facility; excluding all other employees, guards
and supervisors as defined in the Act.
THE PORTMAN
(Employer)
Dated By
(Representative) (Title)
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' This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material. Any questions concerning this
notice or compliance with its provisions may be directed to the
Board’s Office, 901 Market Street, Room 400, San Francisco,
California, 94103-1735, Telephone 415-995-5308.
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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE PORTMAN' —
Employer
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, STATIONARY ENGINEERS,
LOCAL 39
Petitioner
Case 20-RC-16191
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the Na-
tional Labor Relations Act, as amended, a hearing was held
before a hearing officer of the National Labor Relations Board;
hereinafter referred to as the Board.
Pursuant to the provisions of Section 3(b) of the Act the
Board has delegated its authority in this proceeding to the un-
dersigned.
Upon the entire record in this proceeding, the undersigned
finds:
1. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.’
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2. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of the Act
to assert jurisdiction herein.’
3. The labor organization(s) involved claim(s) to represent
certain employees of the Employer.
4. A question affecting commerce exists concerning the
representation of certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
5. The following employees of the Employer constitute a
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:*
All engineering subdivision employees and main-
tenance attendant employed by the Employer at its
San Francisco, California facility; excluding all other
employees, guards and supervisors’ as defined in the
Act.
DIRECTION OF ELECTION
An election by secret ballot shall be conducted by the un-
dersigned among the employees in the unit(s) found appropriate
at the time and place set forth in the notice of election to be
issued subsequently, subject to the Board’s Rules and
Regulations. Eligible to vote are those in the unit(s) who were
employed during the payroll period ending immediately pre-
ceding the date of this Decision, including employees who did
not work during that period because they were ill, on vacation,
or temporarily laid off. Also eligible are employees engaged in
an economic. strike which commenced less than 12 months
before the election date and who retained their status as such
during the eligibility period and their replacements. Those in the
military services of the United States may vote if they appear in
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person at the polls. Ineligible to vote are employees who have
quit or been discharged for cause since the designated payroll
period, employees engaged in a strike who have been
discharged for cause since the commencement thereof and who
have not been rehired or reinstated before the election date, and
employees engaged in an economic strike which commenced
more than 12 months before the election date and who have
been permanently replaced. Those eligible shall vote whether or
not they desire to be represented for collective bargaining
purposes by International Union of Operating Engineers,
Stationary Engineers, Local 39.
LIST OF VOTERS
In order to insure that all eligible voters may have the
opportunity to be informed of the issues in the exercise of their
statutory right to vote, all parties to the election should have
access to a list of voters and their addresses which may be used
to communicate with them. Excelsior Underwear, Inc., 156 NLRB
1236 (1966); N.LR.B. v. Wyman-Gordon Company, 394 U.S. 759
(1969). Accordingly, it is hereby directed that within 7 days of
the date of this Decision 2 copies of an election eligibility list,
containing the names and addresses of all the eligible voters,
shall be filed by the Employer with the undersigned who shall
make the list available to all parties to the election. In order to be
timely filed, such list must be received in the Regional office, 901
Market Street, Suite 400, San Francisco, California 94103 on or
before April 6, 1988. No extension of time to file this list shall be
granted except in extraordinary circumstances, nor shall the
filing of a request for review operate to stay the requirement
here imposed.
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RIGHT TO REQUEST REVIEW
Under the provisions of Section 102.67 of the Board’s Rules
and Regulations, a request for review of this Decision may be
filed with the National Labor Relations Board, addressed to the
Executive Secretary, 1717 Pennsylvania Avenue, NW.,
Washington, D.C. 20570. This request must be received by the
Board in Washington by April 13, 1988.
Dated March 30, 1988
at San Francisco, California /s/ Robert H. Miller
Regional Director, Region 20
' The name of the Employer appears as corrected at the hearing.
2 The Employer appeals certain rulings by the hearing officers in this case.
During the course of the hearing, the Employer sought to challenge certain of
these rulings through interim appeals, which were denied by me. In its brief
the Employer presents no argument in support of its appeal of any of the
hearing officers’ rulings in question. Moreover, there is no indication that the
rulings of the hearing officers constituted prejudicial error. Accordingly,
these appeals are hereby denied.
> The parties stipulated to the following commerce facts: The Employer is a
California corporation with a facility in San Francisco, California and has
been engaged in the operation of a hotel providing food and lodging services
since it opened for business on September 2, 1987. Upon a projection of its
business operations from its opening in September 1987 to November 1987,
the Employer will derive annually gross revenues in excess of $500,000.00.
Since the opening of its San Francisco facility in September 1987, the
Employer has purchased and received at that facility goods valued In excess
of $1,500.00 directly from points located outside the State of California. Based
on these facts, I find that the Employer meets the Board's jurisdictional
standards under Sections 2(2), (6) and (7) of the Act.
* The Petitioner requests a unit of maintenance and engineering department
employees, excluding all other employees. The Employer takes the position
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that such a unit is inappropriate and that the only appropriate unit is one
that includes all hotel employees. For the reasons set forth below, | find that
a unit of engineering employees is appropriate.
The record shows that the Employer is large, luxury hotel which opened for
business in September 1987. The hotel's facilities include 340 guest rooms;
several food and beverage facilities, including a restaurant, lounge, buffet,
and employee cafeteria; several conference rooms and a ballroom. Overall
responsibility for the hotel is in the hands of the vice president and
managing director, Pat Mene. Mene, together with the director of human
relations, the director of marketing and the comptroller, comprise the
executive operating committee. This committee is charged with overseeing
the day-to-day operations of the hotel. Reporting to Mene are the heads of
ten different divisions, entitled respectively administration, front office,
guest room services, conference and catering, marketing, kitchen, room
service, grill, beverage management, and property management. These
divisions are further organized into subdivisions headed by individuals
denoted by the Employer as either managers or supervisors. Approximately
350 individuals work at the Portman. There is no history of collective
bargaining and no other labor organization seeks to represent any of the
Employer's employees.
The property management division is headed by Michael Jump. Reporting
directly to Jump are the house, light and power supervisor, Ralph Mork, a
support services coordinator, Renee Heider, and the acting executive
steward, Dennis Rollo. Heider supervises approximately three lobby porters
and also orders engineering supplies under Jump’s direction. In addition,
Heider coordinates the work of outside contractors who handle flowers and
greenery for the hotel and other contractors who perform certain cleaning
work. When Mork was hired in April, 1987, he was told by Jump that he
would be serving in the capacity of assistant chief engineer and that Jump’s
position was equivalent to that of chief ¢.igineer, in addition to other duties.
Approximately two weeks prior to the beginning of the hearing in this case,
Mork was informed that henceforth, he was going to have full responsibility
for overseeing the engineers work, in order that Jump’s work load would be
lightened. Eight engineers report directly to Mork. Six of these individuals
are considered as general maintenance engineers, while one specializes in
painting and another js considered to be the carpentry specialist. The job title
of all eight individuals is property management engineer.
The record shows that all eight engineers had substantial experience per-
forming highly skilled engineering work prior to joining the Portman staff.
Two of the engineers worked for several years as engineers at other hotels.
One of these two was described by Mork as a skilled carpenter, while the
other had also worked as a laborer foreman in the construction of the
Portman and was familiar with the hotel's inner workings. Another engineer
has a masters degree in environmental engineering with expertise in heating,
ventilation and air conditioning and had worked previously as a remodeling
general contractor. One of the engineers had worked for approximately six
years as an independent contractor performing cabinet making, painting and
paperhanging work, while another previously had worked with a general
building contractor and had been a laborer on several projects at another
hotel. Mork described this individual as having expertise in cement work,
ceilings and plumbing. One of the engineers had owned a television and
electronics repair shop for twelve years, while another had worked for
several years as a building automation computer technician and had been
emplyed for one and one-half years as an engineer at a high-rise office
building. Finally, one of the engineers had been employed as an engineer in
a large office building for a period of several years.
The engineers are charged with monitoring and performing preventive
maintenance and emergency repairs on several mechanical systems essential
to the functioning of the hotel. Although these systems, in addition to other
equipment, are still covered by warranty, the engineers eventually will be
charged with repairing them and all other electrical mechanical devices in
the hotel. Exceptions to this are the elevators and the air conditioning
systems, which are to be handled by outside contractors. The engineers are
responsible for monitoring and maintaining low pressure boilers, cooling
towers, an emergency diesel power system, two 350-ton train chillers with
pumps, a computerized building automation system and a computerized life
safety system, and two air compressor systems. No other employees at the
Portman have responsibility for monitoring, maintaining and repairing these
systems. The engineers were provided with certain training to aid them in
performing these functions, including a two-week course on the two
computerized syste..is and other training sessions focusing on the boilers,
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the sprinkler contro! systems, the chillers and the refrigeration equipment.
All of the engineering subdivision employees received this training
regardless of their area of specialty within the subdivision. No other
employees participated in these training sessions. The engineers, in addition
to the kitchen employees, were given training on the kitchen equipment.
Engineers are also charged with effecting repairs on plumbing, hardware,
woodwork, machinery and all varieties of electrical and mechanical devices
throughout the facility, subject to the warranty restrictions mentioned above.
Repair orders reach the engineering staff via written or oral work requests,
which come into the engineering office shared by Mork and Heider. There is
no evidence that any other employees receive work assignments in like
manner, other than the maintenance attendant discussed in detail below. The
evidence shows that, in the interests of efficiency, employees in other
departments often try to make minor repairs requiring simple hand tools,
such as screwdrivers, and may attempt to fix broken machinery prior to
contacting the engineers. Some witnesses testified that such repair efforts by
employees who are not engineers are more common at the Portman than at
other hotels. However, with the exception of the maintenance attendant in
the guest room services division, discussed in detail below, only engineers
are charged with making repairs as a regular component of their duties. The
record also reflects that, once an engineer arrives on the scene to make a
repair, an employee in the department in which the repair is needed will
often remain with the engineer and provide assistance by handing him or her
tools or providing “a second set of hands” in dismantling cumbersome parts.
When the engineer has completed the repair, he or she will often remain to
assist in cleaning up any disarray or spills caused by the breakdown or the
repair.
In addition to these duties, engineers work on various special projects
throughout the hotel. For example, engineers remodeled the banquet
kitchen, assembled a weigh machine for the purchasing director, set up
special electrical wiring for three gala events, and performed various custom
carpentry jobs. The record also shows that engineers, and all other hotel
employees, are exceptionally helpful to guests and to fellow employees.
Thus, when they come across employees or guests needing assistance,
engineers will help move furniture, lift luggage, and push heavy carts and
boxes.
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The evidence reflects some overlapping duties between engineers and other
employees. Engineers and personal valets (who clean guest rooms) work
jointly in re-keying all of the locks in the hotel approximately every three
weeks. Engineers, in addition to employees in some other departments, have
assembled prefabricated furniture or installed shelving or bulletin boards.
Employees in several departments change light bulbs in their respective
work areas, while engineers also perform this function. Employees in several
departments, in addition to engineers, perform trouble-shooting and make
minor repairs on the hotel’s computer systems. In addition, engineers have
worked with the assistant controller in setting up and redesigning the hotel’s
computer hardware and wiring.
The engineers work on three eight-hour shifts. Engineers on all shifts report
to the engineering office when they arrive at work in order to sign in on a
time sheet. Day shift and swing shift engineers receive work assignments
from Mork upon arrival. Graveyard shift engineers meet with Mork before
ending their shift. The watch engineer position is rotated among the
engineers on a daily basis. The watch engineer spends about an hour making
mechanical rounds and spends the remainder of the morning on repair work
orders in guest rooms. At mid-shift, a second set of rounds is made and the
remainder of the shift is spent again responding to repair requests. Repair
work is performed by the engineers throughout the hotel, an well as four
engineering shops consisting of a paint shop, a plumbing shop, a machine
shop and a carpentry shop. These shops are located next to the engineering
office. Also located on this floor on the basement level are Jump’s office, the
chiller room, the guest room services (commonly known as housekeeping)
office and a storage area.
Engineers receive their work assignments from Mork. Mork sets priorities
for work and assigns the various repair work and other projects to the
engineering staff. Mork checks up on the work performed by the engineers,
monitors their work times, and spends the remainder of his time ordering
supplies and performing engineering work himself. Mork has full authority
to grant overtime, while requests for time off must be approved by Jump.
Although Jump gave Mork full authority to handle all disciplinary problems,
no discipline other than verbal warnings has been meted out. None of these
warnings have been documented in writing. Jump originally sets the wage.
rates to be paid to the engineers. He has also held monthly meetings with the
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engineers in order to give them an opportunity to air grievances. The
evidence does not establish whether Jump will continue to conduct these
meetings now that Mork’s role in overseeing the engineering subdivision has
been expanded. Neither Mork nor Jump has authority to discharge an
employee but may only make recommendations to the director of human
resources. This individual reviews the matter and refers it to Pat Mene, the
vice president and managing director, for a final decision.
Both Mork and Jump have played a role in hiring engineers. The hotel's
hiring process begins with a telephone interview conducted by represen-
tatives of the human resources department in which candidates are screened
for personal qualities, such as helpfulness and desire to please others.
Candidates who pass this screening are personally interviewed by the
manager interested in hiring then. Managers have full authority to decide
whether to hire prospective employees, subject only to a reference check
conducted by the human resources division. Jump interviewed all of the
engineering subdivision applicants and made the final hiring decisions.
Mork participated with Jump in two interviews. In both cases he
recommended to Jump that the candidates be hired and, in both cases, the
individuals were hired.
As noted above, the property management division includes lobby porters
and stewards in addition to the engineering subdivision. Lobby porters are
charged with cleaning the lobby, entry court and public rest rooms. Heider,
their immediate supervisor, has authority to schedule their work and to
handle disciplinary matters. Stewards work in the various kitchens and
dining areas, washing dishes, emptying garbage and clearing and stacking
plates. They report to work and sign in at the chief steward’s office. Two lead
stewards oversee the activities of three to four stewards. According to Jump,
the acting executive steward has authority effectively to recommend
discipline, to schedule employees’ work, to grant overtime and to make, or
effectively recommend, hiring decisions.
The guests rooms services division employs an individual, Ben Balansag,
whose job it is to make repairs in guest rooms and whose title is main-
tainance attendant. Personal valets, who clean the guest rooms, initially try
to make repairs and contact Balansag if they are unsuccessful in doing so.
However, if a repair request is such that it will take longer than fifteen
minutes to complete, Balansag is required to refer the job to the engineering
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subdivision. Balansag reports to work in the guest services division office but
receives assignments in the form of written work orders which are kept in a
slot marked with his name in the engineering subdivision office. Balansag
frequently utilizes the engineering shops, where he obtains tools, parts and
supplies and effects repairs. Balansag works together with engineers on a
daily basis on repair projects and frequently looks to them for suggestions
regarding his work. According to Jump, Balansag also receives work
assignments from the engineering department three or four times a week
when he is not busy with guest room repairs.
Balansag worked for several years as an engineer at various hotels prior to
joining the Portman staff. Jump devised a job description for Balansag’s job
and also played a role in his hiring. Spencer Scott, the director of guest
services, told Jump that he was looking for an individual with strong me-
chanical and plumbing skills. He asked Jump to interview candidates and to
make a hiring recommendation. Jump interviewed five candidates and
referred two to Scott, one of whom was Balansag. Balansag testified that he
was interviewed by Jump and then referred to Scott, who described the
position to him. Balansag initially was paid at the rate of $10.52 per hour.
Later, Jump recommended that Balansag be paid the same rate as the
engineers, $19.93 per hour, as he was performing engineers’ work. Balansag
was granted this wage Increase, effective November 4, 1987. Jump testified
that, in his opinion, Balansag was a skilled engineer who was capable of
being transferred into the engineering subdivision at any time.
The record shows that the working conditions of the engineers, along with
those of Balansag, differ in several respects from the conditions under which
other employees work: The engineers and Balansag are the only employees
who supply their own tools or who receive assignments in the form of work
orders. Only the engineers and Balansag wear gray uniforms; other
employees wear white or green uniforms. Engineers receive five uniforms
per week, while other employees receive only three. While other employees
may borrow hand tools from the engineers from time to time, only the
engineers and Balansag utilize tools and work in the four engineering shops
on a regular basis. Engineering subdivision employees are the only non-
management employees to be issued “grand master” keys giving them
access to virtually all doors in the hotel. According to Mork, engineers are the
only empioyees who have been called back during periods they are not
~-
A-4j
scheduled to be working. This practice has been necessitated by the fact that
the engineers possess expertise necessary to effect certain repairs. Finally,
engineers and Balansag earn $19.93 per hour, substantially more than al!
other rank and fil: employees at the Portman except for a part-time pianist,
who earns $25.84 per hour, but who works only six hours per week and does
not receive fringe benefits. The Vast majority of employees earn between
$5.95 and $10.00 per hour. Certain clerical and accounting staff receive
between $10.34 and $11.54 per hour, while the line cook earns $12.50 per
hour and the bartender earns $11.77 per hour. Food service personnel and
various service employees receive tips which supplement their wages.
Engineers share certain terms and conditions of employment with other
hotel employees. All employees, including engineers, utilize a designated
employee entrance, eat meals and take breaks in an employee cafeteria, are
subject to the same personnel policies and receive the same fringe benefits.
All employees, including engineers, attend the same orientation seminars
upon being hired. It is the Employer's policy to attempt to fill job vacancies
from within the hotel and several employees have transferred to other
positions. However, there have been no transfers into or out of the engineer-
ing subdivision. -
The evidence reflects that Petitioner is party to collective bargaining
agreements covering employees at 25 major San Francisco hotels and 1 major
hotel in neighboring San Mateo County. These agreements cover only
engineering /maintenance department employees. The Employer introduced
evidence showing that, of seventy hotels in San Francisco contacted by the
Employer for information, forty-four have collective bargaining agreements
with at least one union and twenty-five have agreements with Petitioner. The
Employer's survey does not reflect whether any of the forty-four unionized
hotels are organized into bargaining units in which engineers are combined
with employees in other job classifications. The evidence also shows that the
San Jose Hyatt Hotel In Santa Clara County, located south of San Mateo
County, is party to a collective bargaining agreement covering ail of the
hotel’s employees in a single “wall-to-wall unit.” In Hotel Sofitel, 20-RC-
16188, it was found, and I hereby take administrative notice that, in San
Mateo County, five of the fourteen unionized hotels have contracts in which
engineers are represented by Petitioner in a separate bargaining unit, while
two hotels are party to union contracts covering all employees in “wall-to-
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wall” units. It was further found in that case that engineers at the Fairmont
Hotel in Santa Clara County are represented by Petitioner in a separate unit,
while at nine other hotels in Santa Clara County, engineers are represented
in broader units, in some cases including all other hotel employees. In sum,
the bargaining pattern in the three-county area described above appears to
be mixed in nature with respect to whether engineers are represented in
separate units for purposes of collective bargaining or as part of larger units.
A substantial amount of evidence was adduced as to the exceptionally high
quality and degree of service provided to guests of the Portman as compared
to other large luxury hotels. In this regard, the evidence shows that
employees of the Portman are instructed to give guest service their highest
priority and to be courteous and helpful to guests and co-workers even when
such helpfulness involves performing tasks that are not a regular component
of their job duties. Several witnesses testified that engineers and all other
Portman employees are friendlier, more cooperative among themselves, and
offer more assistance to guests than employees of other major hotels in San
Francisco and elsewhere.
In making unit determinations in the hotel industry, the Board takes into
account the same traditional community of interest considerations which it
considers to be important in other industries, including distinctions in skills
and functions of particular employment groupings, their separate supervi-
sion, the employer's organizational structure and differences in wages and
hours. 77 Operating Co., 160 NLRB 927 (1966), enfd. 387 F.2d 646 (4th Cir.
1967); Omni International Hotel of Detroit, 283 NLRB No. 73 (Mar. 31, 1987);
Dunfey Family Corporation d/b/a Sheraton Motor Inn, 210 NLRB 790 (1974). The
Board has, in several recent cases, specifically addressed the issue of whether
engineering/maintenance department employees in a hotel constitute a
separate appropriate unit. Sheraton-Anaheim Hotel, 252 NLRB 959 (1980); The
Westin Hotel, 277 NRLB 1506 1986; Omni International Hotel of Detroit, supra;
Maxim's de Paris Suite Hotel, 285 NLRB No. ¢1 (August 20, 1987) and Hilton
Hotel Corporation, Sun Cal Investments No. 1, Ltd., d/b/a Los Angeles Airport
Hilton and Towers, 287 NLRB No. 36 (December 16, 1987). See also Western
Lodging Corp., d/b/a Stanford Park Hotel, 287 NRLB No. 137 (Feb. 29, 1988), in
which the Board approved a petitioned-for unit consisting of maintenance
and housekeeping employees where such employees shared separate
immediate supervision.
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In the first of these cases, Sheraton-Anaheim Hotel, supra, the Board adopted
the Regional Director’s findings that the engineering employees’ distinct
skills and separate supervision by the chief engineer indicated that a separate
unit of these employees was appropriate, in spite of the fact that the
engineers were not “highly skilled,” that there was some, albeit minimal,
overlapping of duties between these employees and those in other de-
partments and that there had been two permanent transfers and one
temporary transfer into the department during the preceding two years.
Engineers, in that case, performed both skilled and unskilled maintenance
and repair work, while some of the more complex repair work was
contracted out. Engineers in Sheraton-Anaheim shared certain working
conditions as a group that differentiated them from the other employees:
they were required to bring their own tools, they were assigned work pur-
suant to a unique work order system and they carried a beeper at all times.
In finding a separate unit to be appropriate, the Regional Director, in
Sheraton-Anaheim, noted that there was a mixed pattern of bargaining for
engineering / maintenance units in the local area, that there was a lack of any
bargaining history at the hotel on a broader basis and that no other labor
organization was seeking to represent hotel employees in a broader unit.
Later, in Westin Hotel, supra, the Board, upon a remand from the U. S. Court
of Appeals for the Seventh Circuit (reported at 738 F.2d 765), rejected a
departmental unit of engineering/ maintenance employees in favor of an
overall unit. In so doing, the Board distinguished Sheraton-Anaheim, supra, on
the basis that the local area bargaining pattern in Westin was that of overall
units and that an intervening labor organization desired to represent Westin
employees in a “wall-to-wall” unit. In determining that a departmental unit
was not appropriate, the Board noted that there was not strong evidence that
the maintenance and engineering department employees possessed unique
skills or that those employees were separately supervised. The Board further
noted that maintenance and engineering employees occasionally worked
together on projects with employees in other departments, that the duties of
those employees and other hotel employees were functionally integrated,
and that maintenance and engineering department employees worked under
similar terms and conditions as those of other hotel employees. Maintenance
employees, in Westin, were classified as Maintenance Worker I, II and III,
according to their level of experience. The Maintenance Worker III position
required only “mechanical aptitude.” Only two of the eleven maintenance
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employees were Maintenance Worker I employees, who performed the more
technical tasks. The average pay for Westin maintenance employees fell
within the median level for all hotel service employees.
More recently, in Omni International Hotel, supra, Maxim's de Paris Suite Hotel,
supra, and Los Angeles Airport Hilton and Towers, supra, the Board found units
consisting exclusively of engineering / maintenance department employees to
be appropriate. In all of these cases, the Board relied on the following
community-of-interest indicia which are also present in the instant case:
distinct job duties and unique skills, separate immediate supervision and
higher wage rates paid to engineers than to other hotel employees, and a lack
of interdepartmental transfers. In Maxim's, the Board relied on certain
additional factors, which were present in Sheraton-Anahzim and which are
also present in the instant case, namely, the fact that engineering department
employees worked under a unique work order system and that they
supplied their own tools. In both Omni and Maxim's, as in the instant case,
the engineering department head himself made all final hiring decisions,
whereas in Airport Hilton the personnel department interviewed job
candidates and made all final hiring decisions. In these three cases, as in
Sheraton-Anaheim and the instant case, engineering employees performed a
wide range of funtions, from changing light bulbs to routine preventive
maintenance and making all varieties of repairs. In Omni and Airport Hilton,
as here, the hotel’s equipment was still under warranty at the time hearing
and, thus, major repairs were being performed by outside repair persons. In
Maxim's, outside contractors provided repair services for televisions,
elevators, fire alarms, fire sprinkler systems, tile, marble and office
equipment. Engineering department employees in that ¢ase did not perform
major structural alterations or major air conditioner repairs.
In all three of the Board’s post-Westin cases, the Board distinguished Westin
on the basis that, unlike the circumstances in Westin, there was not a
prevailing local area pattern favoring overall units and no other labor
organization had expressed an interest in representing the employer's
employees in a broader unit. In Omni, the local_area bargaining pattern
among hotels was that of engineering department units, whereas in Maxim's
and Airport Hilton, as in the instant case, the local area pattern was a mixed
one. ; ~
_
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In all of the post-Westin cases the Board expressly discounted the significance
of certain community-of-interest factors which it previously had found to be
important in Westin. Thus, in Maxim's, the Board quoted its decision in Omni
in which it had stated that the fact that employees in different departments
occasionally assist each other with various projects “reflect(s] a ‘spirit of
cooperation or civility’ rather than an overlap of job functions.” 285 NLRB
No. 61, slip op. at p. 4, quoting 283 NLRB No. 73, slip op. at p. 3. Further-
more, in Omni, the Board noted that, while other employees occasionally
performed certain minor maintenance tasks, no other employees regularly
performed maintenance work. In Airport Hilton, the Board acknowledged
evidence as to a number ot instances in which engineering department
employees had worked alongside non-engineering department employees
and other evidence disclosing that some nonengineering department
employees occasionally had performed maintenance type work. In
addressing such evidence the Board stated that: certain common endeavors
which occur between engineering department employees and in the kitchen,
housekeeping, security, and other departments do not obliterate the clear
functional distinction between the essentially maintenance and repair duties
of the engineering department and the duties required of, and performed by,
nonengineering employees.” In a footnote to this sentence the Board further
commented:
Thus, for example, the Employer places great emphasis on contacts
between engineering department employees and employees in
departments such as housekeeping. It details record evidence that
employees In these two departments interact in the cleaning of
major water leaks and other cleanup and maintenance operations.
Although it is clear that such incidents of cooperation occur, we are
not persuaded that they establish a blurring of the functional
distinction between the duties of engineering and the duties of
housekeeping. Indeed, this difference in job duties to a large extent
explains why the Employer pays housekeeping employees in the
range of $4.25 to $4.75 per boar and pays engineering /maintenance
employees up to $15.50 per hour. Apart from other factors, this
wage disparity tends to undermine any claim that there is a sub-
stantial overlap of job functions. —
Airport Hilton, supra, 287 NLRB No. 36, slip op. at pp. 5-6.
A-40
Finally, in both Omni and Maxim's, the Board emphasized that the sharing of
certain terms and conditions of employment among engineering employees
and other hotel employees—such as identical fringe benefits, punching the
same time clock, wearing name tags and uniforms, being paid on an hourly
basis, and sharing common overall supervision—fails to establish that a
separate engineering/ maintenance unit is not an appropriate unit, even
though such factors would constitute considerations in favor of an overall
unit if such a unit had been sought. Omni, supra, 283 NLRB No. 73, slip op. at
p. 4; Maxim's, supra, 285 NLRB No. 61, slip op. at p. 4.
In light of the evidence described above and in accordance with current
Board policy, I find that a unit of engineering-subdivision employees is
appropriate. As the above discussion illustrates, all of the Board’s recent
decisions on this issue are directly applicable to the circumstances in this
case. The Employer contends that the Portman’s “product,” which it char-
acterizes as “world-class oriental service,” will be “destroyed” if the Region
determines that a unit consisting only of engineers is appropriate. The
Employer reasons that its “product” requires employees to operate as a team
in providing services to guests and that a unit which encompasses only one
group of employees will interfere with the Employer’s team approach. The
Employer does not explain, however, why a unit composed exclusively of
engineers will have this undesired effect. As noted above, the Board
specifically addressed the issue of overlapping duties and interdepartmental
cooperation in all three of its post-Westin decisions and, in all three cases, the
Board determined that, in spite of such circumstances, the evidence
nevertheless reflected clear functional distinctions between engineers and
employees in other departments. While the engineers at the Portman may be
more helpful to guests and co-workers than engineers at some other hotels,
and while employees in other departments at the Portman may attempt
simple repairs more frequently than at some other hotels, such overlap is
incidental and does not reflect any greater degree of functional integration
than was present at the hotels which were the focus of the Board’s post-
Westin decisions.
With respect to the unit placement of maintenance attendant Ben Balansag, the
record reflects that Balansag shares an overwhelming community of interest with the
engineers. Balansag performs repair duties of the same nature as those handled by
the egineers, he is paid the same wage rate aythe engineers, he wears the same type of
A-4p
uniform and receives job assignments in the same manner as the engineers. He uti-
lizes the same tools and work areas as the engineers in performing his work. Peti-
tioner requests that Balansag be included in the engineering subdivision unit, while
the Employer has expressed no position on this matter. Under these circumstances, I
find that Balansag is included in the unit herein found appropriate.
The Employer has not taken a position as to the supervisory status of Ralph
Mork. The Union, while contending that Mork was not a supervisor,
conceded that this was a “close question” and acknowledged that “Mork
may, in fact, be in the process of becoming a supervisor within the meaning
of the Act.” The evidence shows that Mork uses independent judgment in
assigning work to engineers, inspecting their work and making schedule
changes. In addition, the record reflects that he grants overtime and that he
has authority to discipline engineers. Based on this evidence, I find that Mork
is a supervisor within the meaning of Section 2(11) of the Act and that he is
excluded from the unit.
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November 20, 1987
THE PORTMAN,
Employer
and Case 20-RC-16191
INTERNATIONAL UNION OF OPERATING
ENGINEERS, STATIONARY ENGINEERS,
LOCAL 39,
Petitioner.
RULING ON APPEAL
After careful consideration, | have denied your appeal of the
Hearing Officer’s ruling to prohibit the testimony of proffered
witness Professor Paul Gaurnier.
Robert H. Miller, Regional Director
Region 20
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BEFORE THE
NATIONAL LABOR RELATIONS BOARD
REGION 20
THE PORTMAN,
Employer, CASE NO. 20-RC-16191_—-
and
INTERNATIONAL UNION APPEAL TO REGIONAL
OF OPERATING DIRECTOR FROM HEAR-
ENGINEERS, STATION- ING OFFICER’S REFUSAL
ARY ENGINEERS, TO ADMIT EXPERT TES-
LOCAL 39, TIMONIAL EVIDENCE OF
she PROFESSOR PAUL
Petitioner, GAURNIER ; ¢
TO THE HONORABLE ROBER MILLER ~~
REGIONAL DIRECTOR
INTRODUCTION
This case involves a unit determination in which the
1.U.0.E., Local 39 (“union”) petitioned to organize what the
union claims is an engineering unit for purposes of collective
bargaining at The Portman, a luxury, transient hotel located at
Post and Mason Streets, San Francisco California. The Portman
maintains there exist sufficient functional integration and
community of interest among all nonsupervisory job
classifications to justify an all-employee unit.
The Portman has presented over one dozen witnesses and
thirty-pius exhibits over eight days of hearings. Evidence, both
~
testimonial and documentary, has been received comparing
engineering job duties, functional integration, and commonality
of interests at The Portman with several San Francisco area
hotels within what the union contends is the “area pattern of
bargaining.”
On Tuesday, November 17, 1987, The Portman offered the
testimonial expert evidence of Professor Paul Gaurnier, of the
School of Hotel Administration, Cornell University, Ithaca, New
York. Subsequent to oral argument on the record by Arch
Stokes, counsel for The Portman, regarding the admissibility and
relevance of Professor Gaurnier’s testimony, and pursuant to
Section 11226, N.L.R.B. Casehandling Manual, Inter Alia, Mr.
Stokes proffered the affidavit of Professor Gaurnier as a partial
offer of proof. Additionally, Mr. Stokes requested that the
complete offer of proof on the admissibility and relevance of
Professor Gaurnier’s testimony be an examination of Professor
Gaurnier himself, who was present in the hearing room, ready,
willing and able to testify. The Hearing Officer reviewed
Professor Gaurnier’s 25-page affidavit in a few minutes and
ruled (1) that the affidavit was the only offer of proof allowed,
and (2) that Professor Gaurnier’s testimony was inadmissible.
This ruling was in spite of a further offer of proof by Mr.
Stokes that Professor Gaurnier had participated in the design of
the “Property Management Division” at the St. Francis Hotel in
San Francisco, a subject explored on cross-examination by
union's counsel of Michael Jump, Director of Property
Management Division at The Portman.
The Portman now appeals from the Hearing Officer’s ruling
and incorporates by reference the previously submitted affidavit
of Professor Gaurnier, as well as the oral representations of
Professor Gaurnier’s testimony by Mr. Stokes as an offer of
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proof supporting the admissibility of his expert testimony. The
Portman further appeals the Hearing Officer’s refusal to take
testimony of Professor Gaurnier as an additional offer of proof.
The Portman also appeals the Hearing Officer's refusal to receive
Professor Gaurnier’s testimony in rebuttal of evidence adduced
on cross examination of Michael Jump by opposing counsel.
Professor Gaurnier's expert testimony is critical to estab-
lishing that the petitioned-for unit is “utterly inappropriate” for
this employer and its associates (employees). The Portman’s
product is unique, professional, luxury hospitality service in the
highly competitive hotel industry in the United States and, more
particularly, San Francisco and Northern California. This
product demands difference. This product demands a synergism
between and among all guests and employees in architectural
design and people service. The segregated, gerrymandered
petitioned-for unit is anathema to this product which is
inextricably intertwined with employee relations at The
Portman. A proliferation of segregated units would drastically
affect, at best, and destroy, at worst, the raison d’etre oc The
Portman.
The bases for admission of this expert evidence are as
follows:
(1) While the rules -of evidence are not strictly ad-
hered to in N.L.R.B. “RC” unit determination
hearings, the established administrative rules and
procedures demand liberality and not Draconian
restriction on the admissibility of evidence.
(2) The N.L.R.B.’s own Rules, Regulations, Statements
of Procedure, and Casehandling Manual require a
full and complete record.
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(3)
(4)
(5)
(6)
The Supreme Court of the United States has
opined that due process forbids an agency to use
evidence in a way that forecloses an opportunity
to offer a contrary presentation.
The Portman has the burden of convincing the
Regional Director that the petitioned-for unit is
inappropriate. Accordingly, The Portman should
be afforded a full opportunity to present its
position and to produce significant facts in
support thereof. '
Union Exhibits 1, 2 and 3 were introduced for the
purposes of establishing the “area pattern of
bargaining.” Thus, the union has opened the door
for the admission of evidence relating to so-called
engineering bargaining units in San Francisco.
This necessarily makes relevant evidence of
whether the “pattern” is applicable to The
Portman.
Evidence comparing the engineering areas of
hotels in what the union contends to be the “area
_ pattern of bargaining” is, by definition, admissible
(7)
since the N.L.R.B. and Regional Directors have
determined applicable “areas” in numerous cases.
On the first day of the hearing, the Hearing Officer
overruled union objections to questions by The
Portman’s counsel on an analysis and comparison
of job duties set forth in union Exhibits 1, 2 and 3.
This was during examination of Robert Hydorn, a
union representative who has never worked at
The Portman and who has no personal knowledge
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of the job duties of the engineering associates at
The Portman.
(8) The Regional Director must consider the facts and
the result of comparison cases when determining
the appropriateness of the proposed bargaining
unit. This necessarily includes the “holdings” of
relevant board decisions, as well as comparative
bargaining units in the area. For example, the
Hearing Officer cited the Omni/Detroit “RC” case
as “seminal.” The Portman would, of course, be
allowed to introduce evidence distinguishing its
facts from that case, among others. Similarly, it
should be allowed to distinguish itself from other
hotel bargaining units in what the union claims to
be the “area pattern of bargaining.” Therefore, to
prohibit an expert witness from testifying to
factual similarities or distinctions between The
Portman and a hotel which the union argues is the
“same” for bargaining purposes would be arbi-
trary, capricious, and a denial of due process.
STATEMENT OF FACTS
The union offered Mr. Robert Hydorn to authenticate union
Exhibits 1, 2 and 3, and to establish that the petitioned-for
bargaining unit was within the “area pattern of bargaining”
among “Class A” luxury hotels in San Francisco. The Hearing
Officer received the collective bargaining agreements between
this union and approximately 25 hotels in the city and county of
San Francisco. Tr. 10-26-87, p. 18, Ln. 9-25. William Sokol,
counsel for the union, stated “for the record” that “this union is
petitioning for the same unit as it represents in every Class A
hotel in the city and county of San Francisco. .. . ” Tr. 10-26-87,
p. 48, In. 15-18 (emphasis supplied).
At several other points during Mr. Hydorn’s testimony, Mr.
Sokol repeated the union’s position that the bargaining unit
sought at The Portman is “exactly like” or the “same as” those
bargaining units covered by union Exhibits 1, 2 and 3. Tr. 10-26-
87, p. 77, In. 6-9; p. 78, In. 19-20. For the purpose of supporting
the union's position, Mr. Sokol questioned Mr. Hydorn
concerning the job classifications and duties of the engineers
employed at the hotels covered by those Exhibits. See, for
example, Tr. 10-26-87, p. 29, In. 18-25; p. 30, In. 1-10, p. 33, In. 22-
25.
Upon cross-examination, Arch Stokes further questioned
Mr. Hydorn regarding the specific duties of the engineers cov-
ered by union Exhibits 1, 2 and 3. Tr. 10-26-87, p. 74, In. 16-23.
Mr. Sokol objected to this line of questioning on the basis that
the Exhibits “spoke for themselves." Tr. 10-26-87, p. 75, In. 1-14.
Mr. Stokes responded to the objection by stating that because the
union had introduced union Exhibits 1, 2 and 3 for the purpose
of establishing the “area pattert. ~f bargaining” standard, The
Portman had the right to question this “so-called” expert to
compare the duties of engineers in the existing bargaining units
with those of the associates at The Portman. Tr. 10-26-87, p. 75,
In. 15-25; p. 76, In. 1-21. Mr. Sokol’s objection was overruled by
the Hearing Officer. Tr. 10-26-87, p. 76, In. 22.
For an additional two and one-half pages of the transcript,
Mr. Sokol argued that he “might” object to future comparative
evidence and that he did object to the timing of receipt of
comparative evidence. Tr. 10-26-87, p. 76-80. He recognized that
Mr. Stokes intended “to also introduce evidence concerning job
duties and classifications in the hotels in the city and county of
A-5g
ae
San Francisco . . . for the purposes of comparison.” Tr. 10-26-87,
p- 77, In. 9-12. The Hearing Officer again ruled in favor of the
receipt of such evidence and the line of questioning to which Mr.
Sokol was objecting. Tr. 10-26-87, p. 80, In. 7-8. Mr. Sokol
continued to object and argued, despite the ruling. Tr. 10-26-87,
p. 80-84.
After luncheon recess, Mr. Stokes’ examination of Mr.
Hydorn relating-to a comparison of the job duties continued
consistent with the Hearing Officer's rulings. Tr. 10-26-87, p. 85-
88. Subsequently, further such comparative evidence was
elicited and received from each and every witness who had
worked at another hotel than The Portman, including Ralph
Mork (Sir Francis Drake and The St. Francis), Mark Everton (The
Four Seasons Clift), Spencer Scott (Hyatt), Larry Ott (Hyatt),
Larry Sternberg (Hyatt, Omni and numerous others), Michael
Jump (Meridien and Ramada Renaissance), Ban Balansag
(Holiday Inns), Patrick Mene (Hyatt, Omni, Westin, and
numerous others), and Charles Lo (Hyatt). Mr. Sokol himself
exhaustively elicited comparative evidence of engineering duties
at other San Francisco hotels covered by union Exhibits from Mr.
Michael Jump, director of the Property Management Division at
The Portman.
ARGUMENT
The comparative evidence offered by The Portman should
be received into evidence. It will be a denial of administrative
due process to admit, receive and consider the evidence thus far
reflected in the record without admitting similar comparative
evidence. The Due Process Clause forbids an agency to use
evidence in a way that forecloses an opportunity to offer a
contrary presentation. Red Ball Motor Freight, Inc. v. Arkansas-Best
Freight System, Inc., 419 U.S. 281, 95 S. Ct. 438, 443, fn. 4 (1974).
A-5h
It is the duty of an N.L.R.B. Hearing Officer to inquire fully
into all matters and issues necessary to obtain a full and
complete record upon which the N.L.R.B. or the Regional Di-
rector may discharge their duties under § 9(c) of the Act.
N.L.R.B. Rules and Regulations, Section 102.64(a).
The parties are supposed to be afforded a full opportunity
to present their respective positions and to produce the signif-
icant facts in support of their contentions. N.L.R.B. Statements of
Procedure, Section 101.20(c).
These rules and procedures are not for the benefit of labor
organizations, employers or administrative agencies. They are
for the benefit of employees. The N.L.R.B. is responsible for
conducting an election that will reflect the free choice of em-
ployees in the appropriate unit. N.L.R.B. Statements of Pro-
cedure, Section 101.18(a). The determination of the electorate is
obviously the most critical decision in furtherance of employees’
rights collectively to bargain or to refrain therefrom within the
meaning of the Act.
The refusal of an administrative agency to consider evi-
dence introduced at a hearing before it constitutes arbitrary
action. See, e.g., S.D. Warren, Co. v. N.L.R.B., 342 F.2d 814 (1st Cir.
1965). Refusal by an administrative body to consider factors 4
properly before it and relevant to the decision at hand is
arbitrary and capricious. See Cousins v. Oliver, 369 F. Supp. 553
(E.D. Va. 1976).
Administrative agency actions must have a reasonable or
rational basis if it is to avoid the stigma of arbitrariness. See
Carlisle Paper Box Co. v. N.L.R.B., 398 F.2d 1 (3rd Cir. 1968); Mil
Ka Ko Research & Development Corp. v. Office of Economic Oppor-
A-5i
ieee
tunity, 352 F. Supp. 169 (D.C.D.C. 1972), aff'd, 497 F.2d 684 (D.C.
Cir. 1974).
_ Logistical and ministerial considerations should eclipse the
admissibility of Professor Pau! Gaurnier’s testimony. As a matter
of fact, more time and argument have been wasted on and off
the record regarding this issue than the time necessary for the
testimony itself.
The Portman recognizes its burden herein. It has to show
the petitioned-for unit is clearly inappropriate. See Arcadian
Shores, Inc., d/bla Myrtle Beach Hilton, 229 N.L.R.B 806 (1977),
enfd, 580 F.2d 118 (4th Cir. 1978). Accordingly, to prohibit The
Portman from introducing similar comparative evidence con-
trary to the union’s “area pattern” evidence, would be arbitrary
and capricious. A fortiori, this comparative evidence has already
been adduced, much of it based upon the union’s questioning.
This 18th day of November, 1987.
Respectfully Submitted,
/S/ ARCH STOKES
/S/ MARGARET A. MEAD
COUNSEL FOR THE PORTMAN
STOKES, LAZARUS & CARMICHAEL
80 Peachtree Park Dr., N.E.
Atlanta, Georgia 30309
(404) 352-1465
AFFIDAVIT
This affidavit is given as an “Offer of Proof” in the Unit
Determination Case involving The Portman Hotel and Local 39
of the International Union of Operating Engineers before Region
20 of the National Labor Relations Board in San Francisco,
California.
I, Professor Emeritus Paul L. Gaurnier, of the School of
Hotel Administration, Cornell University, Ithaca, New York, do
hereby swear that the following facts and statements are true
and accurate to the best of my knowledge and belief:
1. I have taught hotel operations at the School of
Hotel Administration at Cornell University to
both seniors and graduate students for 19 years as
a Professor of Management and Associate Dean
and Acting Dean of the School. I have a Bachelor
of Science Degree (1950) from Cornell University’s
School of Hotel Administration and a Master of
Science (1956) from the same school. My personal
resume is as follows:
PERSONAL VITA
PAUL L. GAURNIER
Present Position
Professor of Management, School of Hotel Administration,
Cornell University. Responsible for Hotel Operations and
Business Policy and Strategy courses.
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Educational Background
Cornell University, School of Hotel Administration, Master
of Science, 1956; Bachelor of Science, 1950.
Areas of Experience
Has held responsible positions in a wide variety of ad-
ministrative, managerial, and operating positions at all levels ci
the Army, and also served three years with the Headquarters of
the Defense Supply Agency, Department of Defense.
Has served as: ©
Assistant Dean, then Associate Dean of the School of
Hotel Administration, Cornell University from
September 1967 through June 1978
Director, Cornell Hotel and Restaurant Center for
Professional Development, 1968 through 1979
Academic consultant for the Hilton International
Career Development Institute
Expert hotel operations witness for eight law firms
over the past five years
Consultant to six different investment/syndication
groups over the past five years with responsibility to
estimate “value” of acquisitions being considered and
to select contract management company.
Other Consulting Responsibilities
Consultant to General Telephone and Electronics (GTE).
First as senior consultant on the planning and construction of
their Advanced Management Education Center in Norwalk,
Connecticut. Second as person directly responsible for preparing
Invitation for Bids, evaluating the IFB’s, and then recommending
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selection of contract management company. Currently on
retainer as advisor on the overall hotel operations, including
standards of service, performance appraisal, and productivity
analysis. (1980 - Present.)
Advisor to Motor Hotel Management, Incorporated, the
largest independent hotel contract management company in the
U.S. with regard to all phases of hotel operations including
feasibility studies, site selections, development and training of
personnel, projected markets and organizational structure to
meet those markets. Works closely with the President and Senior
Vice Presidents of the company on an annual retainer basis (1978
to Present.)
Advisor of the First Expandominium and Syndications, Inc.
group, headquartered in Clearwater, Florida. Worked closely
with the Chairman of the Board and Vice President on an annual
retainer basis. Major project involved the development of the
Ravines Executive Meeting Place and Country Club, a luxury
Florida resort. (1982 - 1983)
Project director of a major study for the Worid Bank, in
Washington, D.C., to evaluate their entire food service/
contractual arrangements. Responsibility ‘acluded a complete
questionnaire and survey of the 5,000 person World Bank staff; a
thorough analysis of the contractual obligations with both the
World Bank and the contractor; a thorough review of the food
production, food service, and purchasing procedures being
followed by the contractor; and analysis and recommendations
as to organizational reporting structure within the World Bank
which would better serve the Bank to oversee a multi-thousand
meal a day operation. As an individual, worked with Bank
officials on a follow-up study a year later. (1980 - 1981)
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Advisor to Fulop, Rolston, Burns & McKittrick, a Law
Corporation, Beverly Hills, California, with regard to a defense
preparation of a $140,000,000 claim by plaintiff (Dunes Hotel,
Las Vegas) against Fulop, Rolston’s client. My responsibilities
involved complete analysis of the effectiveness of Dunes Hotel
management strategy, the market segmentation approaches
taken by management, the efficiency of the Dunes Hotel
operations (to include rate setting, expenses, cost controls,
productivity analysis, staffing scheduling, and market niche
positioning), and financial projections concerning future
revenues. (1977 - 1980)
Consultant to the Jefferson Company, Minneapolis,
Minnesota, concerning a complete rehabilitation project on the
St. Paul Hotel in St. Paul. Worked directly with the Chairman of
the Board and the President in analyzing feasibility studies,
methods of potential financing, standards for hotel operations,
and types of market needs existing in St. Paul and how these
needs could be best served and by which type of hotel and hotel
company. (1979 - 1980)
Project director of a complete study for the Puerto Rico
Industrial Development Company concerning the convention
center complex in San Juan, to include the two hotels connected
to the convention center. This project resulted in a complete
analysis for Pridco, to include market potential, rates, income,
expenses, energy costs, hotel operations, union relations,
contract management recommendations and estimates of net
present values of each individual property involved with the
convention center. Personally assumed responsibility on a
separate consulting agreement with Pridco officials to negotiate
a contract with a hotel operating company to operate this center,
and to negotiate with potential investment groups concerning a
possible sale of the complex. (1979 - 1980)
Advisor to Motor Hotel Management, Incorporated on a
special sixmonth full-time project to design, develop, and
implement a manpower development program which would
meet the needs of their very diversified 45-property manage-
ment company. (1978)
Project director of the joint venture School Program
established by the Cornell University School of Administra-
tion/Tourism Development Company of the Commonwealth of
Puerto Rico. (1970 - 1978)
Personal advisor to the Director of Tourism, Brazil, to
evaluate proposals submitted by international hotel companies
to build major hotels at various sites. Responsibilities included
on-site inspections, recommendations as to type and size of
proposed hotels, and the setting of standards required for the
hotels to receive a luxury or first class designation by the
Brazilian government. (1974 - 1975)
Co-author of “How to Invest in People,” an industry-wide
manual published under the auspices of the National Restaurant
Association and funded by the Department of Labor. (1973)
Senior consultant to the Department of Labor/National
Restaurant Association to develop workable career ladders for
non-management personnel in the food service industry. (1971 -
1973)
Project director of the Department of Labor-funded study of
“Career ladders and Manpower Development for Non-
Management Personnel in the Food Service Industry,” to
identify skill areas, physical requirements, levels of education,
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and training requirements for non-management food facility
positions in the food service industry; to identify and evaluate
current career system patterns and to construct a model career
system or systems. (1969 - 1970)
Co-author of the Department of Defense Report of the
Procurement Program - Radios, which has been the definitive
program used throughout the Department of Defense with
regard to the purchasing of radios and like items.
Additional Activiti
Has lectured at numerous seminars in the United States,
and in Japan, Korea, Hong Kong, Singapore, Okinawa, Mexico,
Colombia, Peru, Brazil, France, Germany, Italy, Switzerland, and
Sweden on different occasions.
Has evaluated hotels for the Inter-American Development
Bank with regard to site selection for their annual world-wide
financial ministers meeting.
Was member of the Steering Committee, Hotel Industry,
National Alliance of Businessmen for two years.
Has served as:
Chief of:
Hotel evaluation which annually surveyed Jamaica
hotels for the Jamaica Tourist Board (1969 - 1970)
Hotel evaluation group which completed a survey of
250 Caribbean Hotels for Air Canada (1971)
Hotel evaluation group which completed a survey of
Florida hotels for Air Canada (1972)
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Consultant to:
Economic Development Corporation, New York, NY
General Services Administration, Washington, DC
Inter-American Development Bank, Washington, DC
National Passenger Railroad Corporation (AMTRAK),
Washington, DC
Eight university study teams investigating the need for
Hotel programs
Chief of the Procurement Systems Branch in the Defense Supply
Agency, DOD, which branch was charged with providing
procurement analysis and supervision over the four-billion-
dollar annual procurement of seven supply centers (1943 - 1 366)
Principal supply advisor to Chief Quartermaster of the Republic
of Vietnam Armed Forces, with direct responsibility for
approval and administration of over 100,000,000 dollars of
military aid supplies furnished to the Republic of Vietnam
Armed Forces; and as such,
* assisted in the development of a Vietnamese
Industrial Base to meet the needs of the Viet-
namese Department of Defense and that of the
local economy.
* made two special fact-finding trips to Korea to
determine the capability of Korean industry to
produce needed items to be used by the Viet-
namese Armed Forces.
¢ directed the activities of a fact-finding team which
set up in Taiwan the industrial capability to
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produce certain hard-to-get items needed for the
Vietnamese Armed Forces. (1966 - 1967)
As a paid consultant and executive seminar teacher, I have
personally and physically inspected hundreds of hotels in the
United States, Mexico, Canada, Jamaica, Antigua, Martinique,
Guadeloupe, Barbados, The Virgin Islands, El Salvador, Brazil,
Venezuela, Puerto Rico, Germany, France, Italy, Great Britain,
Hawaii, Japan, Taiwan, Korea, Hong Kong, Singapore,
‘Indonesia, Thailand, Vietnam, India, Okinawa, Colombia, Peru,
- Switzerland and Sweden. In each visit, I was officially touring
the hotel as a consultant representing either the group that
operated the hotel, or as the person who was presenting the
principle of management/hotel operation seminars to the
executives who were operating these properties and in order to
make the seminar more topical, the executives wanted me to
know exactly how they operated in order that I could use it in
the seminar.
In addition to having inspected hundreds of hotels, I have
personally prepared and produced a written, analytical report
concerning the entire operations of the property for at least 70 to
80 hotels in the Caribbean, South America, Mexico, Canada and
the United States. For each of these written analytical reports I
was a paid consultant to the owners, or to the hotel association,
or to the government with responsibility for the operations of
the hotels, especially the tourism departments of international
governments. Hotel groups in the United States with which I
have been directly involved in preparing operational analyses
concerning many of their hotels, include the Marriott Group, the
Hilton, Hyatt, Four Seasons, Sheraton, Stauffer, Ritz Cariton,
Holiday Inns, Raphael Group (Alameda Plaza) and the Coleman
Group (Tremont, Whitehall and the Navarro), and Japan
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Airlines when it was originally starting the Nikko Group. In the
City of San Francisco itself, I have taken official tours with
executives of the hotel showing me complete operations data
and providing me with financial data of The Fairmont, Stanford
Court, The Hilton, The Clift, The Donatello, The St. Francis, The
Hyatt Regency, The Portman, The Holiday Inn, and The
Handlerly Motor Inn.
As a Professor of Management from the School of Hotel
Administration at Cornell University, | have had the oppor-
‘tunity to lecture on the principles of management and hotel
operations in the United States, Japan, Korea, Hong Kong,
Singapore, India, Okinawa, Mexico, Colombia, Peru, Brazil,
France, Germany, Italy, Switzerland, Sweden, Canada, Puerto
Rico, Barbados, the Bahamas and Jamaica. At Cornell University,
at the School of Hotel Administration Center for Professional
Development, I was the Director of said Center for over 10 years,
and personally lectured in the areas of principles of management
and hotel operations. This past July (1987), the School of Hotel
Administration presented a high level seminar limited to 26
qualified participants of General Managers and Resident
Managers only, and I taught the first two days concerning the
principles of organizational and functional assignments for hotel
organizations as it pertained to hotel operations. There were 10
‘other renowned faculty and industry executives who taught and
none taught more than one day; my contribution was two days
of the 10-day program.
‘ In 1985, I was one of two Professors who were brought over
to Japan to lecture for a full week to various Japanese Chief
Financial Officers and Chief Operating Officers for companies
which were interested in expanding into the United States. This
was an absolute give and take session in which the Japanese |
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\
Executives were expected to produce the basis for strategic
decisions for the next few years regarding their expansion plans
into this nation.
The Steigenberger Group, the most noted hotel chain in
Germany also hired me to analyze their strategic plans for
moving into the United States and in the summer of 1984 I met
with their top executives to discuss the strategy they had already
laid out and I was able to convince them to change this strategy
completely, which they did. In the 20 years that I have taught at
the school of hotel administration at Cornell in both the
Principles of Management and the Hotel Operations course, I
have taught literally hundreds of under-graduates and
graduates, many of whom are well-placed executives in the
hotel industry today. For the past eight years that I was at the
school, I taught (along with another Professor), a course that was
designated as a capstone course because it utilized all the
teaching from previous courses for the four years. This course
was restricted to seniors and graduate students and was called a
Hotel Simulation Exercise and was limited to 20 students. My
responsibility in this course was to completely analyze the
analyses turned in by the seniors and the graduate students
concerning specified hotel properties, hotel chains and
restaurant properties and chains, and my obligation was to turn
back to the students a thorough analysis of the analytical reports
they have prepared. In the hotel operations course, the students
(both seniors and graduate students), were required to write
complete analyses of all the hotels visited (such as the New York
Hilton, the Washington Hyatt, the Boston Sheraton), and I was
obligated to make a complete oral presentation concerning each
and every one of these reports and to analyze the strengths and
weaknesses of the reports the students had turned in. In doing
this, I needed to make a thorough analysis of the. property
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myself in order to be able to compare it against the students’
projects. The Headquarters of Prudential Insurance Company
has used me on several occasions as a mediator between the
hotel management group operating the hotel and themselves. In
each case, my report was completely accepted by both sides and
all of the recommendations made were followed exactly. I have
served as a mediator for M.H.M., Inc., the largest hotel operating
management group in the United States on at least 10 occasions
where they were at loggerheads with the owning group and
both sides agreed to accept my written recommendations.
I have taught hotel operations at the School of Hotel
Administration for both seniors and graduate students for 19
years as a-Professor of Management and Associate Dean and
Acting Dean of the School of Hotel Administration at Cornell
University. During this time frame the hotel operations class has
gone to the major hotel chains such as the Hilton, Hyatt,
Sheraton, Holiday Inns, in addition to specific hotels, inde-
pendent hotels such as the Saunders Group in Boston and the
John Coleman Group in New York City previously called the
Navarro, now the Ritz Carlton. In each case, the students were
assigned specific projects that included analyzing the
Department responsibilities for each of these various hotels and,
especially the students were required to analyze the working
relationships between Departments, between employees and
supervisors, and between supervisors and top management
within the hotels. The final report required of the students also
had to include an analysis of the esprit de corps and the team
effort that could be ascertained from visiting the property and
how it related to guest satisfaction.
Therefore, over the years, I have had the opportunity to
read many well-written reports from bright young people who
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had no ax to grind at all in their evaluation of the organizational
structure and the accomplishments of a particular hatel,
especially as it related to the guest’s treatment and the
satisfaction of the guest’s stay. In addition to this exposure to
hotel operations, the enclosed resume indicates that I have done
a considerable amount of work as a consultant in the industry.
As a matter of fact, for the past five years I have taken a leave of
absence for every Spring term at Cornell University because my
consulting work was too heavy for me to teach both terms and
to keep up with my work. Some of the background that is
germane to this specific situation is my work with General
Telephone and Electronics (GTE), first as a Senior Consultant on
the entire planning and construction of their advanced
management education center in Norwalk, Connecticut, and
second as the person directly responsible for preparing the
invitation for bids and evaluating those bids and then
recommending the selection of the contract management
company, and then probably the most important, a retainer as an
advisor to GTE on the overall hotel operations including the
standards of service and the performance and the productivity
analysis that was so important to the atmosphere needed by GTE
for their advanced management education center, in that the
center, the rooms, the food, the beverage and all of the facilities
were being operated by a third party; in this case Marriott
received the contract. It was very important that the standards
that GTE needed, especially for the ambience and the feeling of
being part of the team that the attendees could feel, was almost
as important as the material being covered in the seminar rooms.
During the first two years of operation, it was necessary to
request Marriott to relieve two executives from the center
operations because of the attitudinal problems represented by
both of these executives. This became necessary because I, as the
Advisor to GTE, discovered that although the professionalism of
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these particular executives was beyond reproach and their
technical capability was certainly beyond reproach and they had
done very well with Marriott (and that was why they had been
chosen for the positions), their attitude was not what was
needed in order to fit in with the Program Directors that GTE
used in order to have the seminars be acceptable to the high
level executives who were participants in the various programs
at the education center. It became necessary, as a matter of fact,
to promote two people who had been within the Marriott
organization at a much lower level, whose attitudes did fit the
needs of the GTE Program Directors and to promote these
people into positions for which they were literally technically
not qualified, but we were able to overcome this through
training exercises and through on-the-job training with others,
including myself. This experience highlighted to me the
importance of attitude as compared to the skill or technical or
knowledge normally required in a position, and the program
directors for GTE who were putting on the Executive
Development Seminars were literally the guests, if you will, of
the Marriott management team operating the GTE Education
Center.
From 1978 to 1987, I was the advisor to M.H.M., Inc., which
is the largest contract management company within the hotel
industry in the United States.
Initially, in 1978 I took a leave of absence from Cornell
University in order to establish a manpower development
program for the company which would allow them to identify,
select, train and promote from within the organization. As a
result of this initial work with the company during the later
years I was with the company as an outside consultant, on an
annual retainer, | was able to work with many of the young
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,
executives interspersed throughout the company’s hotel
properties on a close, personal basis to assist them in ac-
complishing their goals, which included operating the hotel on a
management contract representing M.H.M. in a profitable
manner for the owners. Time and time again, I have seen
M.H.M. take over a property which had been operated by
another management company, or by the owners themselves,
and because of the way in which M.H.M. treated its employees
and the manner in which M.H.M. executives briefed the em-
ployees as to their benefits and as to what was expected of them,
and as to what M.H-M. would do for them, I have seen the
occupancy and revenues increase dramatically in hotels that had
been operated previously by someone else who had not had the
ability to generate the enthusiasm and the proper attitude within
and among the employees and the departments within the hotel
that would be so noticeable to the guests that they would want
to come back to that same hotel on their next time in that town.
As the only operations consultant to M.H.M. I was directly
involved with many of the motivational training programs
which M.H.M. did find was an absolute prerequisite to dealing
with the employees before expecting them to accomplish any of
their technical duties in operating the hotel.
Therefore, I have seen many instances where the exact same
hotel, the same location, the same flag (in other words was it a
Hilton or was it a Holiday Inn), the same employees, and with
no extensive renovation or money being placed into the
property, change from an unprofitable operation to a profitable
operation within a period of six to eight months. In my opinion,
this was directly attributable to the attitude among the
employees and the cooperation among the employees in
servicing the guests, and the consensus among the guests (we
did many surveys in this regard), that they did come back to this
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particular hotel because they liked the attitude and the way they
were treated as a guest.
During the period 1970 through 1980, I was the advisor to
the Puerto Rico Industrial Development Company which owns
11 hotels in Puerto Rico and to the Tourism Department in
Puerto Rico with regard to aspects of tourism and hotel
operations on the Island. I have done complete analysis to
include the market potential, the rates, the income, the expenses,
the energy costs, the hotel operations (in an overall sense), union
relations and estimates of net present values of various
properties owned by the Puerto Rico Industrial Development
Company and in all cases the attitude of the employees was
probably the most important factor in our analysis and our
findings and recommendations. We had thousands of
questionnaires from tourists, visitors, conventioneers, and
transient businessmen from which to obtain information and,
without exception, the negatives involved the attitude of the
Puerto Rican employee toward the guest —- as perceived by the
guest.
The impact of this information was so strong that the
School of Hotel Administration at Cornell University agreed
formally with the government of Puerto Rico to establish a joint
venture school program in San Juan in order to begin to make
inroads into the attitudes of the Puerto Rican youth who might
be choosing the hotel industry as a career. From a technical and
knowledge standpoint, the typical employee in the Puerto Rican
resort hotels was extremely competent, yet the guest comments
were very negative in a majority of the questionnaires because of
the experience that the guest had had with a room clerk or with
a food server or with a bellman, or with one of the engineers
servicing a room, or with a doorman calling a cab. What came
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across to the guest was an unpleasant experience rather than a
lovely visit to a lovely Island — and all because of the
tremendous attitudinal problems that existed on the Island at
that time. The school at Puerto Rico, therefore, for years and
years, and still does, emphasize motivation and human relations
as much and more than emphasizing the technical aspects of the
hotel operations business. All of us involved in this joint venture
recognized it would be a long period of time before there would
be any improvement in the attitude, if we could accomplish it at
all. There has been some improvement during the early 1980's
which we attribute to the school, but as yet the level of pleas-
antness and services to the guest certainly has not reached the
point that the Puerto Rico Industrial Development Company
officials would like.
“FACTS ESTABLISHING EXPERIENCE AT PORTMAN HOTEL
- SAN FRANCISCO”
I arrived at The Portman Hotel in San Francisco on
Thursday, November 12, 1987, as a guest, and checked in the:
normal and usual manner. This is my fifth day as a guest in the
hotel and my wife and I have eaten meals in the hotel to include
breakfast, lunch and dinner, and we have used room service on
four different occasions. | was present when the personal valet
made up the room on two occasions and had the opportunity to
talk with both of those gentleman (one day was on a weekend
and there was a different personal valet than during the
weekday). Additionally, I had the opportunity to talk as a guest
with employees from the guest services area which included
both the front door porter and doorman and the reception
personnel; I had a long talk with an engineer who was lighting
the fireplace on Saturday evening when I was sitting there, I
have had a chance to talk with food service personnel and with
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ee
the room service personnel and, by coincidence, had quite a chat
with one of the administrative assistants who was standing by to
service a large influx of guests (175 check-ins on a Friday
afternoon) as an assist to the usual guest services contingent.
Additionally, I was officially given a tour of the entire property
and met many of the management, supervisors, employees, and
was able to talk with them during the tour with no one
attempting to lead or to direct my questions or the employee's
answers. Therefore with my experience and in analyzing
properties, tied in with my 5-day stay as a guest, and my official
tour of the complete building and the opportunity to talk to
employees from all departments, I have been able to form some
very definite opinions about the organizational structure and the
reporting relationships which are currently in place in The
Portman Hotel.
“FACTS ESTABLISHING EXPERIENCE AT COMPARISON
PROPERTIES:”
In order to compare properly The Portman organization
with those of some other luxury hotels in San Francisco, I made
arrangements to visit with the Executive Assistant Manager
(whom I had known well previously), and the Controller of the
Four Seasons Clift Hotel, and talked with an assistant manager
at The Stanford Court (a hotel that I had been very familiar with
previously and, in fact, had been privy to all of their initial pre-
opening training information and operating procedures). The
tour through the Clift Hotel allowed me to talk with employees,
and then on the second day of my visit to The Clift I was able to
talk with two of the executives for several hours concerning
organizational structure and work units and the like, in that both
of the Executives had been students in my hotel operations class
at Cornell University. This was a total discussion concerning
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classical management versus job descriptions versus
productivity versus synergism within an organization, and what
organizational structure works best in attempting to operate a
luxury hotel. My conversation with the assistant manager at the
Stanford Court then confirmed what I had already known
previously about the Stanford Court in its organizational
structure, and the manner in which it is operated. Consequently, |
I have been able to make a comparison concerning the
organizational structure and the operating procedures which are
currently in place at The Portman Hotel as ae to the
other luxury hotels in San Francisco.
“FINDINGS REGARDING THE PORTMAN HOTEL:”
The operating procedures written prior to the opening of
The Portman Hotel envisioned the property with employees
working together as an intrinsic unit without any of the
problems associated with “turf responsibility” being a factor in
the operation of the property. In my opinion, this has already
been accomplished and is in place at The Portman Hotel. There
are many _____ examples that indicate the synergism and the
esprit de corp that is present at The Portman Hotel and | shall
cite several: during my tour, Mark Everton, the controller, was
able to introduce me to almost every employee we met by name
and to give a brief description of what he or she did and in each
case the employee related well back to Everton in a team work
type of attitude which is just not present in the normal work unit
in today’s world. Everton, as a matter of fact, was able to discuss
a problem the hotel is having with leaking showers with one of
the engineers with whom we talked on my tour and the engineer
obviously enjoyed talking on an equal one-to-one basis with the
Controller of the Hotel and you could see and feel the
camaraderie which was evident between these two gentlemen.
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a TT |
Another example was the way that the fire room (called the
Fireman’s Control Room) is administered and manned. Both the
Security and the Property Management people must take care of
this room and must assign someone to watch over it, but in case
of emergency the Security representative immediately takes over
until the Property Management Engineer who is in charge of the
' guest safety can get there until the fire department arrives. This
is an exceedingly important example because it is not manage-
ment here who is responsible for the guest safety in case of
. emergency, but it is the Property Management Engineer as-
signed person who takes over the room and is in charge, and it is
the Security representative whose office is right next to the
Fireman’s Control Room who takes over first and the co-
ordination required between these two departments (i.e., Se-
curity and Property Management), is very important to the
working of this arrangement and to the safety of the guest.
Another example of the truly integrated atmosphere that | en-
countered at The Portman was the manner in which 175 in-
coming guests were handled Friday afternoon and early
evening. People from all Departments came down, ieft their own
jobs, in order to assist the doorman, the porter and the guest
services reception people to process this large influx (large for
this size hotel) of incoming guests. Having the opportunity to
talk with several of them while standing waiting for the guests, |
qwas smitten with the complete feeling of teamwork and
integrated atmosphere that permeated the entire situation.
Another strong example of the synergism present in The
Portman Hotel is the integration of the personal valet guest
service personnel into the team as compared to the normal hotel
organization where the housekeeping department is almost
always female, and as such (for whatever reason) come in and
make up the rooms and do not participate in other aspects of
guest services. Whereas in The Portman the personal valet is the
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contact for the guest to the rest of the hotel and particularly if
something needs to be done within the room, the personal valet
is able to accomplish it without having to fill out a work order to
maintenance, to the engineering department, and wait to have it
done. The engineers, in fact, are assigned to help the personal
valets either by assisting them in doing something or by loaning
them tools to accomplish first echelon maintenance such as
fixing a drape or a valance which is in need of fixing, or to cover
up a chip on the wall, etc.; and already I have seen evidence
where the engineering department is integrated in the respect
that not only do they encourage this to be done within the hotel,
but they cooperate with other people who are on site in the guest
rooms accomplishing things for the pleasure and the service of
the guest; that the engineers themselves would be too busy to
do.
In the final analysis, nothing is more important than the
satisfaction of the guest. The conversation I had with the
engineer who was lighting the fireplaces in the lobby was very
enlightening and he was an exceedingly articulate, self-assured
gentleman who was talking to me as a guest, and was talking to
me certainly as an equal. and a very comfortable equal, and
telling me about the hotel and about how “Mr. Portman really
wanted to have the guests have a decent experience sitting in the
lobby, hence the fireplaces.” Had I been a guest who would be
coming back to San Francisco time and again, this experience
alone (i.e., having the opportunity to talk with an engineer who
was articulate and who was concerned with my well-being as a
guest and in keeping me informed as to the background of why
something had been built) would certainly heighten my desire to
come back to The Portman.
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Another example which is so different from what I am used
to in the typical hotel organization included the interaction
between an assistant auditor and the engineer who volunteered
to help the assistant auditor learn how to use a tool and to be
able to put in a secure fence down in the basement behind which
could be stored key items. The engineering people were too busy
to accomplish the job so one of the assistant auditors
volunteered to do it and one of the engineers loaned him the
tools with which to drill the holes in the concrete floor and
showed him how to use the tool and offered to assist whenever
he needed it if he got into trouble. Therefore, the assistant
auditor was able to go ahead and put up a complete structure
that would be secure for storing key items and the engineer
department was able to go on with their tasks, but under normal
organizational responsibilities, this job would have had to have
been accomplished by an engineering department person, while
some of the other important engineering tasks were held in
abeyance while he accomplished this immediate project.
At the present time there is no question that The Portman
Hotel employees, even though they are organized in the
departments, all have a common goal—which is the guest as the
product of this organization. They are organized to produce this
product, which is guest satisfaction and the loyalty of the guest
which would cause the guest to return. There is no segregation
or separation of departments with specific work duties or
specific responsibilities or specific loyalties elsewhere which
would interfere with this loyalty to The Portman Hotel as an
organization that wants to make the guest experience a pleasant
one which would cause him or her to return. From an academic
point of view, the organization currently in place at The Portman
Hotel can best be described as a modified matrix organization
where persons have a supervisor in a normal sense of the word
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and belong to a department in the normal organizational
manner, but also report to others in a technical sense as needed
(i.e., project directorships and getting specific acts accomplished
fast). Matrix organizations came into being because of the need
to accomplish the mission and change the organization quickly
without regard to false organizational barriers between
departments. It has especially been useful in large weapons
systems procurement with the United States Government and
large defense contractors, and without the matrix organization
that deadlines imposed and that have normally been met would
have been unrealistic deadlines because of the necessary
organizational bureaucracy which is present in most
organizations. The modified matrix organization at The Portman
Hotel at this time is working, the employees have tremendous
esprit de corp, the guest satisfaction is excellent, and without
this type of satisfaction and this type of ambience that would
please the guest there will be nothing to separate The Portman
Hotel from the already established properties here in San
Francisco, and it would be doubtful that The Portman would be
able to break into that small market share well enough in order
to survive.
FINDINGS WITH REGARD TO THE COMPARISON HOTELS,
ESPECIALLY THE CLIFT AND THE STANFORD COURT:
The Clift and The Stanford Court are both very well
managed and have exceedingly good reputations and yet are
unable to have the freedom to react to some of the guest service
needs as quickly as The Portman can at the present time because
of the segregation of the departments and the specific job
descriptions and barriers between the departments as to who
and which department accomplishes which task. In fact, the
work order board at The Clift Hotel was very typical of most
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perry ee a 8 eT ET
hotels wherein it was jam packed with small jobs that needed to
be done to the various hotel rooms in The Clift, most of which
could have been accomplished by someone not at the skill level
and technical knowledge level of the engineers, yet because of
the work rules it had to be accomplished by only a member of
the engineer department and the work kept piling up and the
engineer department, in spite of being a hard working
conscientious crew, just had to get to those work orders as they
‘could. Consequently, there are guest rooms that are in need of
small ‘first echelon maintenance that can not be done
immediately as it can be at The Portman Hotel at this time.
The organization assignment currently at The Clift and The
Stanford Court is similar to what I have been used to in many
many consulting situations and in many visits with my hotel
operations classes to well-operated hotels, but still without the
barriers imposed by specific segregated job related re-
quirements, the hotels would be able to service the guest (i.e,
which is really the organizational structure need is the guest
service, in a much better manner).
OPINION CONCERNING THE BARGAINING UNIT
In my opinion, The Portman Hotel has planned for and has
accomplished an organization structure which includes all of the
employees integrated in a synergistic group which will
accomplish the servicing of the guest in a manner which will
make a guest want to come back. I believe that an examination
of the esprit de corp of the employees would indicate that The
Portman has been successful in this organizational structure, and
that the employees are treated well (in fact they are even called
“associates"), and that the employees feel not only that they
belong to the hotel and they are proud of the hotel (reference, for
example, the engineering member telling me as a guest about
how wonderful the fireplaces were and what a good thought it
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was by Mr. Portman), but the employees take pride in being a
part of the team. My experience over many years leads me to the
conclusion that any barriers brought about because of a
segmentation of one department being unionized and the rest of
them not would be to the detriment of the entire work force to
include the engineering department. The success or failure of
The Portman Hotel is important to each and every employee,
whether he or she be unionized or not unionized, and the
current organizational structure where the employees are free to
cross boundaries and to perform other job tasks (ie., a true
matrix organization) is the best way to accomplish the mission of
_ ’ this property which is to produce a great guest satisfaction
experience to bring the guest back again. There are many good
hotels in this city, and if The Portman fails in its attempt to break
into this luxury market, the employees will be injured whether
they are unionized or not because as The Portman would be re-
quired to cut down on the number of employees and try to re-
duce its costs to keep in line with the revenues which would be
less than anticipated in the original pro-forma, the service and
the ambience would suffer, certainly the guest satisfaction
would be lessened, but the end loser would really be the
employees currently here in The Portman Hotel.
This is a relatively small luxury hotel which needs the
entire ambience and the total integration of the employees as a
team in order to succeed. | believe the current organization
where there is no segregation and no work barrier imposed
between and among departments is the only way this hotel can
survive.
I swear under penalty of perjury that the foregoing facts are
true and accurate to the best of my knowledge.
Dated this 17th day of November.
/s/Paul L. Guarnier
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.