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Title: Atlantic City Showboat , Inc and HERE Local 54
Date: June 19, 1999
Arbitrator: Perry Zirkel
Citation: 1999 NAC 113

  *   *   *   *   *   *   *   *   *   *   *   *   *   *

           ATLANTIC CITY SHOWBOAT, INC.          *

                                                      *   AWARD

                       - and -                        *

                                                      *   OF THE

    H.E.R.E. INTERNATIONAL UNION, LOCAL 54     * 

                                               * ARBITRATOR

                                                      *

FMCS Case No. 97-11521-A

  *   *   *   *   *   *   *   *   *   *   *   *   *   *

 

 

 

 

 

 

 

 

 

 

            The Employer violated the CBA by assigning servers

            from the Emperor's Inn restaurant rather than the .

            room service servers to deliver food to customers

            in the Baccarat Pit.  Thus, the grievance is upheld.

 

            The parties shall promptly agree on the specific amount

            of the monetary remedy, with the arbitrator retaining

            jurisdiction to resolve this matter if the parties do

            not reach such agreement by August 15, 1999. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

          _____________________                 ____________

             Perry A. Zirkel                        Date

 

HEARING

            The hearing in this matter was held in Atlantic City on May 9, 199p.  The Employer was represented by attorney Gerald Einsohn.  The Union's representative was attorney William Josem.  Testifying for the Union was room service server Antonio Izzo.  The Employer's witnesses was restaurants service manager Gerald Beaver.  The joint exhibits were the collective bargaining agreement (J-1) and the grievance (J-2).  There were no party exhibits.  The parties submitted posthearing briefs by their mutually agreed upon deadline of 6/7/99.

 

 

FACTS

            The Employer operates a hotel that includes gaming and restaurants.  Under the collective bargaining agreement (CBA), job classifications and seniority are within departments.  Each restaurant and outlet is a separate department.  Based on past practice, each department is responsible for certain work.

            Room service is a department.  According to past practice, the room servers deliver[1] food to not only the guest rooms, which is the major part of their work, but also other areas of the hotel, such as in-suite hospitality and the Baccarat Pit on the casino floor.[2]  When they deliver food to these other areas, they receive a guaranteed gratuity of 15 percent from the Employer.  In such cases, the food may be served by another employee, such as a butler in the suite or the cocktail waitress in the Baccarat Pit.  Although the in-suite hospitality included food from the gourmet restaurants, until August 1995 the Baccarat Pit deliveries were only cold sandwiches, which were not popular among its primary clientele, Asian high rollers..

            In August 1995, in an effort to attract and retain more Asian patrons at the Baccarat Pit, the Employer decided, without prior notification to or consultation with the Union, to provide food from its gourmet Emperor's Inn restaurant in mini-buffet, usually Saturday nights, in the Baccarat Pit.  Although the room servers handled this Asian Buffet for the first two times, the Employer thereafter assigned the work to employees of Emperor's Inn.  The primary purpose was to provide servers conversant with the patrons, thus making the new offering more comfortable to the them in terms of language as well as cuisine.  This was the first time that outlet or restaurant employees delivered food outside their site.

            At the time, some of the room servers were working 25-32 hours per week, rather than a full shift.  The single Asian room server worked the day shift (i.e., 7 am to 3 pm) along with 5-6 other room servers.  The swing shift (i.e., 3 pm to 11 pm) had 4-5 room servers, and the graveyard (i.e., 11 pm to 7 am) shift had 3-4 room servers.  On Saturdays, all the room servers were typically scheduled to work.  Their general gratuity averaged $125 per Saturday night 8-hour shift. 

            The Emperor's Inn employees worked a reduced swing shift (e.g., 5 pm to 1 am) only, and their restaurant was struggling to survive.  The Employer assigned one such employee each time for the new buffet; s/he remained to entire time of the buffet to serve the food and converse with the patrons.[3]  At least half the time was on an overtime basis.[4]  The typical gratuity for the Asian Buffet, which typically lasted 3-4 hours,[5] was $79.50.

            In December 1996, after approximately 15-16 months of operation, the Employer replaced the Asian Buffet with a noodle bar, which became a separate department located in the Baccarat Pit.

            On 12/3/96, room server Antonio Izzo filed a grievance, alleging that the Asian Buffet had been a violation of past practice.  The grievance was subsequently processed through the contractually specified steps to the present arbitration.[6]

 

 

 

 

 

 

CONTRACTUAL PROVISIONS

 

ARTICLE III  -  CONTROL, DISCHARGE AND SENIORITY

 

            1. The Employer shall have the sole right to direct and control its employees.  The Employer reserves the right ... to ... reclassify, ... schedule, [and] assign .... according to the requirements of business and according to skill and efficiency, giving proper consideration of seniority....  The Union does not, however, waive its right to arbitrate.  Nor is this Section intended to affect the Employer's burden of proving just cause.

 

ARTICLE V  -  GRIEVANCES AND ARBITRATION

 

            1.  All timely grievance ... involving questions of interpretation, or application of any clause in this Agreement, or in any acts, conduct or relations between the Parties, directly or indirectly, which arise out of this contract, shall be resolved by utilization of the ... specified multi-step] method....

 

            3.  If the dispute is not resolved at either the meeting or the resolution conference, timely grievances may be submitted to ... arbitration....

 

ISSUE

            Did the Employer violate the CBA by assigning servers from the Emperor's Inn restaurant rather than room service servers to prepare, deliver, and serve[7] customers in the Baccarat Pit?  If so, what shall the remedy be?

 

OPINION

            In its landmark Trilogy, the Supreme Court made clear that, as a general matter, past practice is part and parcel of the CBA.[8]  In this specific case, the parties reflected, rather than rebutted, this presumption via 1) their mutual clarification, in their submission of the Issue, that the reference to "the CBA" was to be broadly construed; 2) the CBA's absence of a zipper, or integration, clause, and, instead, the inclusion of a broad grievance and arbitration clause;[9] 3) and the cross reference to this clause, rather than the expression of a clear waiver,[10] in the Management Rights article

            The proof in this case is preponderant that the delivery of food from the restaurants and outlets, as the exclusive domain of the room service servers,[11] met the criteria for past practice of longevity, consistency, and visibility.[12]  Thus, the practice is generally binding until the Employer provides notification to the Union upon negotiating a new CBA.[13]

            Here, the Employer did not provide any notification to the Union.  Although the new marketing feature may have been a productive idea, which had the potential of not only increasing revenues but also maintaining employment, the Company's implicit and explicit management rights were subject to contractual limitations, including those of past practice.  Presumably, if the new idea would benefit the employees, in terms of further solidifying the future of the Emperor's Inn restaurant as well as the overall enterprise, timely consultation even prior to the negotiations of a new CBA could have yielded a mutually satisfactory resolution.[14]  If not, notification at the time of negotiations at least would have provided the requisite basis for such a unilateral change.

            Thus, although its good faith and entrepreneurial creativity are unquestioned, the conclusion is inescapable that the Employer violated the CBA by assigning servers from the Emperor's Inn restaurant rather than room service servers to prepare, deliver, and serve customers in the Baccarat Pit.[15]  The Employer's arguments focused on efficiency, which is its understandable concern, but the gravamen of this case is the CBA, which is a matter of mutuality.[16]  Ultimately, efficiency is in the interest of both parties, but in the context of the bargaining relationship, the Union was entitled to the notification and, thus, the opportunity for a mutual rather than unilateral solution.   

            The remedy is another matter, which in this case is difficult.  The evidence and arguments on this point were so limited that the arbitrator could well miss the mark, not sufficiently squaring the remedy with the wrong. On the other hand, in light of the expedited and economical purposes of arbitration, holding another hearing on this matter would in this case be inappropriate.

            Thus, the arbitrator initially leaves to the parties to mutually agree on a remedy, within a finite period.  Specifically, the deadline for agreement, given that the violation is not ongoing and summer is the time of vacations, is 8/15/99.  If the parties do not agree by that date, they shall each send to the arbitrator by 9/15/99, their respective final best offer, with any appurtenant arguments, limited to four double-spaced pages in total,[17] and the arbitrator will, within two weeks thereafter, select one of these two offers as the remedy.

            In an effort to facilitate the resolution of this matter, the arbitrator offers these tentative guidelines to take into consideration.  Although the gratuity lost to the room servers is presumably readily calculable, based on the amount of food served during the finite period of approximately 15 months,[18] and the division of the proceeds among the room servers who were working during the period could be equal unless the parties agreed on some reasonable uneven allocation, complicating factors include 1) the extent of an equitable deduction in terms of the gratuities that they otherwise earned so as to avoid an unfair windfall, 2).the unknown as to whether one of the affected shift would likely have performed this service or whether an additional person from another shift would have done it instead, and 3) the effect of the hourly rate, including overtime. 

            Although preserving jurisdiction for this limited purpose, the arbitrator urges the parties to mutually resolve the matter before 8/15/99, thus bringing the matter to closure without further outside intervention.

 



                [1] Ancillary to the delivery, they also often prepare the accouterments and sometimes, to the limited extent of opening or replenishing the containers, serve the food.

                [2] The in-suite and Baccarat Pit orders are less frequent but still notable, particularly on weekends.  On occasion, the hospitality was a group function, where the room server would return during the assigned hours of the function to replenish the food and accouterments as necessary.

                [3] All of the Emperor's Inn employee spoke one or more Asian languages, and the patrons, who chose to converse most of the time in their native tongue, represented a wide variety of languages and dialects.  When the patrons occasionally stayed over, the room service servers handled their in-room orders usually without a problem.

                [4] The CBA requires the payment of overtime, at time and one half, for hours worked past the employee's scheduled time even when they are scheduled for less than eight hours.

                [5] Said employee had to spend approximately 1.5-2.0 additional hours for preparation and clean-up.

                [6] Procedural arbitrability, including the timing of the grievance, was not at issue in this case.

                [7] The terms "prepare, deliver, and serve" are reasonably understood, in the context of this case, to refer primary to delivery, with preparation and service relatively limited and secondary in comparison to the anchoring term "deliver."

                [8] United Steelworker of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960):

                                The labor arbitrator's source of law is not confined to the 

                                express provisions of the contract, as the industrial common

                                law -- the practices of the industry and the shop -- is equally

                                a part of the CBA....

                [9] See Article V  Sec. 1, as excerpted in "Contractual Provisions" supra.

                [10] Addressing the overlapping coverage of the prohibited practice of failure to bargain, the Third Circuit has held that a management rights clause that does not contain a clearly and unmistakably specific waiver "falls far short of contractually conferring on management the power to make unilateral decisions [concerning mandatory subjects of bargaining]."  Leeds & Northrup v. NLRB, 391 F.2d 974, 877-78 (3d Cir. 19689).  The court looked to not only contractual language, but also past practice.  Id. at 878.

                [11] The Employer, in its posthearing brief, focused on the preparation and serving of the food, but these tasks were ancillary, limited, and varying in comparison to the anchoring, primary, and uniform task of delivering the food.  See supra note 7.

                [12] See, e.g., ELKOURI & ELKOURI HOW ARBITRATION WORKS  632 (M. Volz & E. Goggin eds. 1997); Arthur Dobbelaere, William Leahy & Jack Reardon, The Effect of Past Practice on the Arbitration of Labor Disputes, 40 ARB. J. 27 (1985)..

                [13] See, e.g., ELKOURI & ELKOURI, supra note 7, at 643; Dobbelaere, Leahy & Reardon, supra note 7, at 41.  The only other generally recognized exception, a change in the underlying basis of the practice, clearly does not apply in this case.  The linguistic preference of the clientele does not qualify here in light of the many languages and dialects encompassed within the Asian community and the availability of at least one room service server with comparable qualifications.

                [14] The added problems of effectuating the optimum employee assignment within the contractual scheduling constraints would have facilitated the discussion.  For example, such discussion would have presented the opportunity for the Asian room service server to voluntarily choose whether to accept the assignment.  Another possibility that could have been mutually explored was to have the room server deliver the food but an Emperor's Inn employee serve it, at least partially analogous to the practice regarding butlers and cocktail servers for hospitality orders.

                [15] Although delivery, rather than preparation and serving, were the heart of the matter, the guaranteed gratuity in this case did not depend on the allocation of these tasks.

                [16] The arbitrator relies on the past-practice element of the CBA, thus finding no necessity or reason to address the Union's alternative argument based on the nondiscrimination provision (Article VIII) of the CBA.

                [17] The only evidence that is allowable is in the form of joint stipulations, given the lack of cross-examination and rebuttal.

                [18] Alternatively, the $79.50 figure could be multiplied times the number of nights that the Employer provided the buffet.

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