Fisher Island Holdings, LLC, Fisher Island Club,
Inc., and Fisher Island Community Association d/b/a Fisher Island and
Freight Drivers, Warehousemen & Helpers, Teamsters Local Union 390,
AFL–CIO. Cases 12–CA–23440 and 12–RC–8941
September
30, 2004
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
By Members Liebman, Walsh, and Meisburg
On June 4, 2004, Administrative Law Judge George Carson II issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The General Counsel filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions as discussed below,2 and to adopt the recommended Order, except that the attached notice is substituted for that of the administrative law judge.3
Contrary to our dissenting colleague, we adopt the judge’s finding that the Respondent violated Section 8(a)(1) of the Act and engaged in objectionable conduct by conveying the impression that unionization would be futile and by threatening to withhold future wage increases if employees unionized.
Facts
After the Union lost a second election held on September
18 and 19, 2003,4 the
In his opening remarks, Melk referred to the organizational campaign as “a very negative event for us all” that had “given management a wake-up call” regarding its need to communicate better. He stated “the last vote was very disappointing and makes me very angry at the Teamsters.” He further stated, “I have always valued our employee group, have supported wage increases despite large financial losses, and I have mentioned our valued employees in every resident letter and magazine interview. During management meetings, I have always discussed our valued employees. I guess what we missed, was communicating this to you!”
Melk then told employees
that providing services to the residents of
In negotiations, I know I have the absolute, legal
right to reject each and every proposal the Teamsters might make which I think
is bad for my business. That includes
saying “no” changes in policy, procedure and extra money.
I will bargain in good faith, I promise that. I will listen and consider anything
said. That’s the law, and I follow the
rules. But let me be real clear—I will
absolutely reject any Teamster proposal that will ultimately cost
I will do nothing to increase costs and make a
bad situation even worse.
After noting that, in negotiations, each party has the
right to make proposals but that neither party is obligated to agree, Melk
repeated, “I’ve already told you I will not agree to any changes that will cost
The second election was held the day after the last
speech. The
Analysis
We agree with the judge that Melk violated Section 8(a)(1) and engaged in objectionable conduct by conveying to employees the impression that unionization would be futile, and by threatening employees with loss of future pay raises if they elected the Union. This finding is based on the combined effect of two of Melk’s statements: that he had supported wage increases in the past despite large financial losses, and that he would absolutely reject any union proposal that would increase the Respondent’s costs. Based on Melk’s past support of wage increases, the judge found, and we agree, that the “prospective refusal to agree to any proposal that would cost more money” constituted a threat to withhold future pay raises that the Respondent would have otherwise granted in the absence of union representation, and further communicated to employees that unionization would be futile.
Our dissenting colleague contends that Melk’s statements
were neither objectionable nor unlawful.
He finds that Melk was merely truthfully informing employees that the
Respondent would not enter into agreements that would worsen its financial
situation. However, our colleague has
failed to consider Melk’s comments within the context of his entire
speech. Melk did not merely inform
employees that the Respondent was losing money and that he would not make
bargaining decisions that would increase costs.
Rather, after reminding employees that he had supported wage increases
in the past despite financial losses, he told employees that when negotiating
with the
Our dissenting colleague also contends that Melk’s speech was not coercive because he expressed a willingness to bargain in good faith and “follow the rules.” However, such statements do not negate the coercive effect of the speech as a whole. Paoli Chair Co., 231 NLRB 539 (1977) (“Mere expressions of the intention to ‘abide by the law’ and ‘bargain in good faith’ do not insulate an employer’s campaign statements from further scrutiny.”). We find that the Respondent’s general statements that it would bargain in good faith and “follow the rules” do not render lawful its more specific statements that it would “absolutely reject” any proposal that would increase costs.
Finally, we disagree with our colleague that nothing in
Melk’s speech would suggest he was precluding “the usual horse trading that
takes place in collective bargaining.”
Unlike our colleague, we find that, in the broader context of Melk’s
entire speech, employees could reasonably interpret Melk’s statements that he
would absolutely reject any Union proposal that would “ultimately cost . . .
more money,” “increase costs,” or “cost . . . more money” as demonstrating the
Respondent’s intransigence and indicating that the Respondent would reject any
union proposal to increase wages or benefits.
In effect, then, employees could reasonably believe that Melk was
planning to take a fixed position during negotiations, and that any effort on
the part of the
Accordingly, we affirm the judge’s finding that Melk’s speech violated Section 8(a)(1) and constituted objectionable conduct that warrants setting aside the election.
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Fisher Island Holdings, LLC, Fisher Island Club, Inc., and Fisher Island Community Association d/b/a Fisher Island, Miami, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge.
[Direction of third election omitted from publication.]
Member Meisburg, dissenting.
In my view, the speech made by the Respondent’s chairman, John Melk, was neither unlawful nor objectionable, and I would not set aside this election because of it. Melk articulated legitimate business concerns regarding financial losses, provided specific assurances that the Respondent would bargain in good faith, and did not present a position that precluded the ability of the Respondent to bargain in good faith.
First, the speech made it clear that the Respondent was losing substantial amounts of money, and that its losses could not be allowed to continue, “union or not.” In light of those circumstances, Melk stated that the Respondent would not make decisions at the bargaining table that would “increase costs and make a bad situation even worse.” Surely an employer, faced with such business adversity, is permitted to truthfully inform its employees that it will not enter into agreements in collective bargaining that will worsen the situation.
Second, Melk expressed his readiness to comply with his obligations under the Act in all respects. He explicitly stated that he was not making threats or promises, and that the Respondent would bargain in good faith, “follow the rules,” and “listen to and consider anything said” by the Union.
Third, nothing in Melk’s speech indicated that bargaining would be futile. In that regard, he stated only that the Respondent would reject proposals that increased its “ultimate” costs. Such a statement does not preclude the usual horse trading that takes place in collective bargaining, or prohibit reallocation of costs to provide for certain benefits, so long as ultimate costs are not increased.
For the foregoing reasons, I dissent.1
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We
will not threaten you with loss of pay raises if you select the
We will not threaten that it would be futile to select Freight Drivers, Warehousemen & Helpers, Teamsters Local Union 390, AFL–CIO, or any other union as your collective-bargaining representative in that we would not agree to any bargaining proposal that would increase costs.
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.
Fisher Island Holdings, LLC, Fisher Island Club,
Inc., and Fisher Island Community Association d/b/a
Susy Kucera, Esq., for the General Counsel.
Jonathan J. Spitz and Lawrence F. Glick, Esqs., for the Respondent.
D. Marcus Braswell Jr., Esq., for the Charging Party.
DECISION
Statement of the Case
George Carson II,
Administrative Law Judge. This case was
tried in
On the entire record,2 including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following
Findings of Fact
i.
jurisdiction
The Respondent, Fisher Island (the Company or the Employer),
is a
The Respondent admits, and I find and conclude, that
Freight Drivers, Warehousemen & Helpers, Teamsters Local Union 390, AFL–CIO
(the
ii. alleged
unfair labor practices
A. Background
The Company operates a residential community and recreational
facility, including restaurants, a hotel, and a golf course, on
Prior to both elections, John Melk, chairman of Fisher Island Holdings, LLC, addressed the employees. The only allegations in this case relate to remarks that Melk is alleged to have made in September. Prior to the July 30 and 31 election, Melk had addressed the employees, first the early shift and then the late shift, with two interpreters present at each meeting. The interpreters translated Melk’s remarks into Spanish and Creole. Melk was not satisfied with that procedure. Prior to the September election, Melk held three meetings, giving the same speech at each meeting. He addressed the English-speaking employees on September 16, and on September 17 he gave the same speech twice with a single interpreter each time. The first time the speech was translated into Creole. The second time, it was translated into Spanish.
All witnesses agreed that there was no speech given on the day of the election. In the absence of any evidence supporting the complaint allegation relating to alleged threats on September 18, I dismissed that allegation at the conclusion of the General Counsel’s case.
B. The Alleged Unfair Labor Practices
1. Facts
The General Counsel presented three witnesses, none of whom required an interpreter, but two of whom testified that English was not their native language. Each testified to threats that they asserted they heard in the remarks of Chairman Melk.
Employee Alexander Fernandez attended the meeting for
English speaking employees on September 16.
The record does not establish whether Fernandez, who spoke accented
English, is a native speaker of English.
Fernandez recalled that Chairman Melk stated that he would “not
negotiate anything that has to do with money with the Teamsters.” On cross-examination, he acknowledged that
Melk stated that he would negotiate in good faith, but that he also stated “he
would not negotiate anything that has to do with money with the
Employee Manuel Menendez attended both the meeting for
English speaking employees on September 16, and the meeting for Spanish
speaking employees on September 17. He acknowledged
that Melk was reading the speech that he gave.
He recalled that, in the speech, Melk stated that, if the
Employee Alfonso Morgan also recalls attending two meetings. At the first meeting he recalled comments
about the
Melk testified that he read the same speech that had been prepared in consultation with his attorney at all of the meetings. He acknowledged that he edited the speech, and the copy of the speech received into evidence reflects minor deletions and additions. Claude Rousseau, the interpreter who translated Melk’s statements into Creole at the meeting on September 17, testified that he reviewed the written text, which had already been translated in Creole, a day or two prior to the meeting to assure its accuracy. Rousseau did not recall whether the minor deletions and additions had been made when he originally received the document. Regardless of when they were made, he conformed the Creole version, making the deletions and additions. He recalled no occasion when Melk deviated from the text when making the speech. In addition to the prepared speech, Melk made separate opening and closing remarks. There was no written Creole translation of these remarks, and Rousseau simply translated them as they were spoken. Melk testified that he wrote these remarks either the day before or the morning of the speech and gave it to the “attorneys and they gave it to the translators.” There is no evidence that the statements in those opening remarks were reviewed in conjunction with the statements made in the prepared speech, nor is there any evidence that there was any consideration of the significance of the opening remarks as they related to statements in the prepared speech.
The General Counsel argues that I should credit the testimony
of the employee witnesses whenever there is a conflict between that testimony
and the written speech. The difficulty I
have in doing so is that, with only two exceptions, none of the employee
witnesses corroborated one another. In
assessing their testimony, I am satisfied that all three witnesses testified
truthfully regarding what they believed that they heard. As the foregoing
summary of their testimony reflects, the only comment upon which the witnesses
fully corroborate one another is the “no more Mr. Nice Guy” comment. Fernandez’s testimony regarding the
restaurants and Morgan’s testimony regarding the
In his opening remarks, Melk referred to the organizational campaign having “given management a wake-up call” regarding its need to communicate better. He stated his disappointment with the outcome of first election and continued, stating:
I have always valued our employee group, have supported wage increases despite large financial losses, and I have mentioned our valued employees in every resident letter and magazine interview. During management meeting[s], I have always discussed our valued employees. I guess what we missed was communicating this to you!
Melk then began the speech itself, referring to the fact
that providing services to the residents of Fisher Island accounted for the
employment of the employees and explaining that the agreement to hold a second
election occurred because the voting times were incorrectly stated on the
notices for the first election. He
continued with a short personal history and then referred to
In negotiations, I know I have the absolute, legal right
to reject each and every proposal the Teamsters might make which I think it is
bad for my business. That includes
saying “no” to changes in policy, procedure and extra money. I will bargain in
good faith, I promise that. I will
listen and consider anything said.
That’s the law, and I follow the rules.
But let me be real clear—I will absolutely reject any Teamster
proposal that will ultimately cost
After noting that, in negotiations, each party has the
right to make proposals but that neither party is obligated to agree, Melk
repeated, “I’ve already told you I will not agree to any changes that will cost
2. Analysis and Concluding Findings
The complaint alleges that, on September 16, the Respondent informed its employees of the futility of selecting the Union and the inevitability of a strike, impliedly threatened its employees with unspecified reprisals, and threatened its employees with loss of work and pay raises if they selected the Union as their bargaining representative and that, on September 17, the Respondent informed its employees of the futility of selecting the Union, impliedly threatened its employees with unspecified reprisals, and threatened its employees with discharge if they selected the Union as their bargaining representative.
Insofar as the same speech was given at all three meetings, I find that all of the foregoing allegations were fully litigated. There is no probative evidence of a threat that a strike was inevitable. The only evidence relating to a threat of loss of work are the remarks that Fernandez attributed to Melk regarding the closing of the restaurants. I have not credited his uncorroborated testimony that those comments were made on September 16 or 17. There is no evidence of any threat of discharge, and the testimony of Fernandez that Melk referred to replacement of strikers, not discharge, is consistent with the text of the speech which refers to the possibility, not inevitability, of an economic strike and the rights of the Company in that circumstance. I shall recommend that the foregoing allegations be dismissed.
The General Counsel argues that the “no more Mr. Nice Guy”
remark threatens unspecified reprisals.
The remark does not appear in the speech that I have found that Melk
read. Even if I were to find that Melk
did deviate from the written text and make the foregoing remark at some point
in the speech, Fernandez agreed that the statement was made in the context of
negotiations and his testimony that the comment came “out of the blue” does not
establish that it was made in any other context. Menendez did not place the statement in any
context. Morgan agreed with counsel for the Respondent that negotiations were
the context in which it was mentioned. Alterman
Transport Lines, Inc., 308 NLRB 1282 (1992), cited by counsel for General
Counsel is inapposite. In that case the
Board affirmed without comment the finding of the administrative law judge that
the “no more Mr. Nice Guy” comment made by a supervisor implied “other
unspecified retaliation” when it was coupled with “an implicit admission that
work was being denied local drivers because of their union activity.”
The written text that Melk admits he read confirms the
testimony of Menendez that Melk informed the employees that there would be “no
more raises . . . in the future” if they selected the
The General Counsel argues that the foregoing comments
threatened loss of pay increases and the futility of selecting the
The Respondent argues that Melk “tied the risk of negotiations
to the objective financial health of the Employer” and that he “never said that
he would not agree to union proposals.”
The Respondent’s brief notes that Melk informed employees that
Contrary to the argument of the Respondent, the “risk” of
negotiations to which Melk repeatedly referred was his prospective refusal to
agree to any Union proposal that would increase costs. The speech text to which the brief refers
regarding “union or not” does not relate to negotiations but to losses. Melk’s “will not-cannot allow
that to continue, union or not,” [emphasis in the text] does not dictate an
absolute rejection of union bargaining proposals. His commitment not to permit losses to
continue would certainly include initiatives for revenue enhancement. When turning to negotiations, Melk did, as
the Respondent points out, modify the word “costs” with the adjective
“ultimate.” He did this on one of the
three occasions in which he stated that he would not agree to any union proposal
that would increase costs. He did not
mention costs unrelated to union bargaining proposals such as the wages of
non-bargaining unit employees. In
arguing that the Respondent never stated that it “would not agree to union
proposals,” the Respondent’s brief fails to acknowledge Melk’s statement, “I’ve
already told you I will not agree to any changes that will cost
The Respondent, in its brief, cites Textron, Inc., 176
NLRB 377 (1969), for the proposition that Melk’s statements relating to costs
were lawful expressions of opinion privileged under Section 8(c) of the
Act. In Textron, the Board held
that an employer’s statement to the effect that “the
Fernandez testified that Melk said “he would not negotiate anything that has to do with money.” Although that specific statement is not in the speech, Melk stated three times that he would not agree to any proposal that would cost money. A prospective refusal to agree, stated to employees as an inalterable position, is inimical to the collective-bargaining process and violates the Act. In Gerry’s I.G.A., 238 NLRB 1141 (1978), enfd. 602 F.2d 1021 (1st Cir. 1979), the Board specifically affirmed the administrative law judge’s determination that the employer violated Section 8(a)(1) of the Act by threatening to refuse to bargain in good faith when it stated to employees that a test administered to them, the psychological stress evaluation (PSE) test, was “[no] more negotiable than the locks on the doors.” The judge explained:
Even if, as Gerry testified, he added that the Unions had
a right to raise the subject for discussion, any discussion had on it could
only be pointless, because the clear import of the entire context was that just
as Respondent could never be persuaded to forgo the locks on the doors it would
never agree to give up the test. Such a
position in respect to a mandatory subject of bargaining “tends to convey to
employees a sense of futility about the value of prospective collective bargaining
and, in consequence, improperly restrains their freedom of choice in regard to
collective representation,” especially in light of the other violations
herein. Tommy’s Spanish Foods, Inc.,
187 NLRB 235, point 1 [(1970)].
The foregoing principle was reaffirmed by the Board in Aquatech, Inc., 297 NLRB 711 (1990). In that case the employer, Ben Fisco Jr., stated to employees that, if the employees selected the union as their collective-bargaining representative, he “would refuse to agree to a union shop or dues checkoff . . . at the bargaining table.” In finding that the foregoing pronouncement violated the Act, the administrative law judge stated:
While it is true that the Act does not require that
parties agree, “it does require that they negotiate in good faith with the view
of reaching an agreement if possible.” NLRB
v. Highland Park Mfg. Co., 110 F.2d 632 (4th Cir. 1940). When Fisco asserted that he would not accept
a union shop or dues checkoff, he conveyed to the employees his unwillingness
to approach bargaining with the spirit of compromise or flexibility necessary
to reach agreement. In effect, he
implied that he would not bargain in good faith. Such statements, which suggest the futility
of selecting a bargaining representative, are unlawful under Section 8(a)(1).
Although, as the Respondent’s brief points out, Melk stated that he would “bargain in good faith” and that he would “listen and consider anything said” in negotiations, those affirmations were belied by his virtually contemporaneous statement that he would “absolutely reject any Teamster proposal that . . . [would] ultimately cost Fisher Island more money.” Although asserting that he would “listen and consider,” Melk’s repeated statements regarding his determination to “not agree to any changes” that would cost money establish that he would be listening with a closed mind and that any consideration would be a mere formality: he would not be willing to change his position. In the words of Administrative Law Judge Bernard Ries in J. P. Stevens & Co., 239 NLRB 738 (1978):
[The Respondent] . . . simply was not disposed to ever
change its mind. This is certainly not
to say that the Company was not keenly aware of the nature of its statutory
obligations to the
The effect of the Respondent’s prospective refusal to
agree to any proposal that would cost
C. The Objections to the Election
I have found that, after the petition was filed, the Employer violated Section 8(a)(1) of the Act by threatening loss of pay raises if the employees selected the Union as their collective-bargaining representative and that selection of the Union would be futile. The foregoing findings are predicated upon the Employer’s prior support of wage increases “despite large financial losses,” coupled with its prospective rejection of any union proposal that would cost money. I find that the foregoing prospective rejection of any proposal that related to an economic issue that would increase costs, alleged in the complaint as a threat of futility, informed employees that the Employer would not bargain in good faith, the predicate for achieving a collective-bargaining agreement. I find that the foregoing prospective refusal is encompassed in Objection 1, which alleges that the Employer threatened employees that “no collective-bargaining agreement would ever exist between the parties.” Objection 2 alleges a threat to replace workers and Objection 3 alleges a threat to cut the pay of employees. Consistent with my decision, I find that the statements relating to replacement were made in the context of remarks relating to an economic strike. There is no evidence of a threat to cut pay, only to cease granting raises. Thus, Objections 2 and 3 are overruled. Objection 1 is sustained.
The Employer’s statements that threatened to cease
granting wage increases and threatened futility by informing employees that the
Employer would not bargain in good faith regarding any economic issues occurred
during the critical preelection period and were not isolated or de
minimus. They were made to all employees
at the meetings held on September 16 and 17 before the election on September
18. Even if I were to have found that
the prospective refusal to bargain was not encompassed in Objection 1, the
foregoing violations of Section 8(a)(1) interfered with the election. “The Board has long held that unfair labor
practices that have been litigated in a consolidated unfair labor
practice/representation proceeding can form the basis for setting aside the
election even though those matters were not raised by the objections.
I find that the foregoing conduct encompassed by the Petitioner’s Objection 1 and the unfair labor practices found herein occurred during the critical preelection period and interfered with the employees’ free choice of representation and that the election must be set aside and a new election held.
Conclusion of Law
By threatening loss of pay raises if its employees selected the Union as their collective-bargaining representative and threatening its employees that selection of the Union as their collective-bargaining representative would be futile in that the Respondent would not agree to any bargaining proposal that would increase its costs, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and post an appropriate notice.
In view of the diversity of the work force, I recommend
that the notice be translated into either French or Creole and into Spanish.4
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5
ORDER
The Respondent,
1. Cease and desist from
(a) Threatening loss of pay raises if its employees
selected the
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility at
(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is also ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
It is further ordered that the election is set aside and Case 12–RC–8941 is severed from Case 12–CA–23440 and remanded to the Regional Director to conduct a third election when she deems the circumstances permit a free choice.
1 The General Counsel has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
2 We find it unnecessary
to determine whether the Respondent’s unlawful statements to employees fell
within the scope of Objection 1 or Objection 3.
As the judge found, the Respondent’s conduct provides an adequate basis
for setting aside the second election even assuming that this conduct fell outside
of the scope of the
3 We shall substitute a new notice to conform with our decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
4 The
1 This case is readily distinguishable from cases where an employer, without either factual basis or conveying to employees a sense of the give and take of collective bargaining, states that bargaining will “begin from scratch” and that unionization will ultimately result in a loss of benefits
1 All dates are in 2003 unless otherwise indicated. The charge in Case 12–CA–23440 was filed on September 29, and was amended on November 26.
2 The Respondent, in its
brief, refers to the Company’s financial condition and asserts that
“take-aways” had occurred prior to the
3 The unit is:
All
full-time and regular part-time General Maintenance and Engineering Employees
(including Safety Maintenance, Golf Cart Mechanic, A/C Tech., Electrician,
Electrician Asst., Carpenter, I.T. Asst., Engineering Supervisor, Golf Course
Mechanic), Landscape Employees (including Irrigation Tech., Lead Spray Tech.,
Equipment Operators, Landscape Mechanic, Spray Tech., Tree Surgeon, Interior
Plant Person, Grounds Maintenance Attendant), Hotel and Housekeeping Employees
(including PBX Operators, Laundry Attendants, Room Attendants, Houseman, Public
Area Attendants, Turn Down Attendants, Floor Attendants, Reservations, Ft.
Desk/Night Auditor, Front Desk, Club Concierge, Service Bar Attendant, Bell
Person Valet, Lead Bell Person), Spa and Beauty Salon Employees (including Spa
Front Desk, Fitness Coordinator, Instructor Trainer, Fitness Weight Room Attendants,
Fitness Trainer, Massage Therapists, Aesthetician, Spa Tech, Floor Care
Specialist, Housekeeping Attendant, Manicurist, Hair Stylist, Shampoo
Attendant), Restaurant and Catering Employees (including On-call Food Servers,
Catering, On-call Bartender, Receiving Clerk, Receiving Supervisor, Deli
Attendant, Stock Attendant, Market Clerk, Porto Cervo Asst. Mgr., Bar Back,
Bartender, Broiler Cook, Bus Person, Cook, Dishwasher, Floor Care Specialist,
Food Runner, Food Server, Fry Cook, Golf Grill Leader, Golf Grill Restaurant
Chef, Grill Cook, Hostess/Host, Lead Cook, Line Supervisor, Night Cleaner,
Pantry Attendant, Pastry Cook, Prep Cook, Room Service Attendant, Porto Cervo
Sous Chef, Utility Attendant, Utility/Busser), Drivers, Mailroom Attendants,
Lead Beach Attendant, Pool/Beach Attendant, Club Employees (including Aviary
Asst., Locker Room Attendant, Bag Room Service, Golf Ranger) employed by the
Employer. EXCLUDING: All other employees, Superintendent, Asst. Superintendent,
Director, Asst. Director, Outside Operations Supervisor, Lead Foreman,
Irrigation Supervisor, Landscape Foreman, Facilities Mgr., Asst. Chief
Engineer, First Asst. Golf Professional, I.T. Mgr., I.T. Asst. Mgr., I.T.
Coordinator, Security Captain, Security Mgr., Mailroom Supervisor, Hotel Mgr.,
Hotel Services Mgr., Asst. Reception Mgr., Executive Housekeeper, Housekeeper
Supervisor, Beach Service Mgr., Bell Captain, F&B Receiving Supervisor,
F&B Analyst, Banquet Mgr., Banquet Sous Chef, Garde Mgr., Vanderbilt Chef
De Cuisine, Vanderbilt Sous Chef, Vanderbilt Bakery Supervisor, Restaurant
Mgr., Executive Steward, Asst. Exec. Steward, Trattoria Asst. Mgr., Beach Club
Asst. Mgr., Beach Club Chef, Porto Cervo Chef, Marina Mgr., Dockmaster,
Administrative Assistants, Market Mgr., Asst. Market Mgr., Aviary Consultant,
Golf Grill Supervisor, Boutique Coordinator, Salon Mgr., guards and supervisors
as defined in the Act.
4 The record does not
reflect the languages into which the notices of election were translated. I am mindful that the written language best
understood by speakers of Creole is often French, their school language.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
6 If this
Order is enforced by a judgment of a