Title: Atlantic City Showboat , Inc and HERE Local 54
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CITY SHOWBOAT, INC.
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H.E.R.E. INTERNATIONAL UNION, LOCAL 54
FMCS Case No. 97-11521-A
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Employer violated the CBA by assigning servers
the Emperor's Inn restaurant rather than the .
service servers to deliver food to customers
the Baccarat Pit. Thus, the
grievance is upheld.
parties shall promptly agree on the specific amount
the monetary remedy, with the arbitrator retaining
to resolve this matter if the parties do
reach such agreement by August 15, 1999.
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.
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.
service is a department. According to past practice, the room servers deliver
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.
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
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.
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.
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
At least half the time was on an overtime basis.
The typical gratuity for the Asian Buffet, which typically lasted 3-4
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.
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.
- CONTROL, DISCHARGE AND
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
- GRIEVANCES AND ARBITRATION
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]
If the dispute is not resolved at either the meeting or the resolution
conference, timely grievances may be submitted to ... arbitration....
the Employer violate 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? If
so, what shall the remedy be?
In its landmark Trilogy, the Supreme
Court made clear that, as a general matter, past practice is part and parcel of
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
3) and the
cross reference to this clause, rather than the expression of a clear
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,
met the criteria for past practice of longevity, consistency, and visibility.
Thus, the practice is generally binding until the Employer provides
notification to the Union upon negotiating a new CBA.
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.
If not, notification at the time of negotiations at least would have
provided the requisite basis for such a unilateral change.
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.
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.
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.
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.
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,
and the arbitrator will, within two weeks thereafter, select one of these two
offers as the remedy.
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,
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
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.
 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.
 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.
 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."
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....
 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.
 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.
 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)..
 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.
 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.
 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.
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