Arlen House

National Labor Relations Board - Board Decisions

Jan 22, 1971

187 N.L.R.B. 1030 (N.L.R.B. 1971)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arlen-Burk, a Partnership , d/b/a Arlen House and
Arlen House West and Service Employees Interna-
tional Union , Local 362, AFL-CIO, Petitioner .
Case 12-RC-3548
January 22, 1971
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
Pursuant to a Stipulation for Certification Upon
Consent Election, approved by the Regional Director
for Region 12 of the National Labor Relations Board
on April 28, 1970, an election by secret ballot was
conducted on June 5, 1970, under the direction and
supervision of the Regional Director among employ-
ees in the stipulated unit described below. At the
conclusion of the election, the parties were furnished a
tally of ballots which showed that of approximately 73
eligible voters, 52 cast valid ballots of which 30 were
for the Petitioner, I was for the Intervenor (Highrise
Employees Union Local 255, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO), and 21 were against participating
labor organizations. Fourteen voters cast challenged
ballots. The challenged ballots are sufficient in
number to affect the results of the election. Thereaft-
er, the Employer and the Intervenor filed timely
objections to conduct affecting the results of the
election.
In accordance with the Board's Rules and Regula-
tions, Series 8, as amended, the Regional Director
conducted an investigation and, on August 21, 1970,
issued and duly served on the parties his Report on
Challenged Ballots and Objections, in which he
recommended that the Board overrule the challenges
in their entirety and direct him to open and count said
ballots and issue a revised tally. The Regional
Director also recommended that the Board overrule
the Intervenor's objection.' The Regional Director
further recommended that the Board sustain the
Employer's Objection 4 and, in the event the
Petitioner secures a majority upon the opening and
counting of the challenged ballots, that it set aside the
election of June 5, 1970, and direct a second election.
Thereafter, the Petitioner filed timely exceptions to
the Regional Director's report and the Employer filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
' In the absence of exceptions , we adopt, pro forma, this
recommendation of the Regional Director
2 No exception was taken to the Regional Director's conclusion that
pool department employees Reich and Zang are nonsupervisory employees
powers in connection with this case to a three-member
panel.
Upon the entire record in this case, the Board finds:
1. 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.
2. The Petitioner and the Intervenor are labor
organizations claiming to represent certain employees
of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees employed by the Employer in its
North Miami Beach facilities, including engineer-
ing and maintenance department employees,
including engineers, maintenance men, painters
and carpenters; housekeeping department em-
ployees, including porters, maids, janitorial em-
ployees and gardeners; pool department employ-
ees; service department employees, including bell
men, doormen-runners and chauffeurs, telephone
operators and all other service employees, exclud-
ing all office clerical employees including, but not
limited to front desk clerks and auditors, sales and
rental agents, and guards and supervisors as
defined in the Act.
5. The Board has considered the Regional Direc-
tor's report, the Petitioner's exceptions, the Employ-
er's answering brief, and the entire record in this case,
and makes the following findings:
The Challenges
Fourteen employees voted subject to challenge in
the election held herein. The Petitioner excepts to the
Regional Director's conclusion that 12 of the chal-
lenged voters, who are employed as "front door"
personnel (bellmen, doormen-runners, and chauf-
feurs) in the Employer's service department, have a
sufficient community of interest to warrant their
inclusion in the unit as previously stipulated by the
parties.2 Specifically, the Petitioner claims that after
entering into the aforementioned stipulation, it
learned that front door personnel were employees of a
separate concessionaire called Adams Parking Con-
cessions, Inc. In support of this claim, the Petitioner
alleges that "payroll has always been handled
separately" and that "employees take their orders
and accordingly are entitled to vote in the election . Therefore, we adopt pro
forma his recommendation and shall direct that their challenged ballots be
opened and counted.
187 NLRB No. 139
ARLEN HOUSE 1031
from the `Front Door Supervisor' and not from the
Employer's general manager." Accordingly, the Peti-
tioner argues that the Employer herein does not
exercise that type or degree of control which warrants
the inclusion of front door personnel in the stipulated
unit . In the alternative, the Petitioner requests that a
hearing be held to allow the Petitioner to demonstrate
that the unit, as previously stipulated, is
inappropriate.3
The Regional Director's investigation, however,
reveals specific facts which are not contradicted and
which persuade us that the stipulated unit is appropri-
ate for the purposes of collective bargaining. The
Employer herein owns two apartment hotels known
as Arlen House and Arlen House West. The operation
and management of these buildings is entrusted to
Arlen Properties, Inc., hereinafter API, which compa-
ny manages other buildings of a similar nature in the
Miami Beach area. API employs one Larry Fedder as
the general supervisor of all front door personnel
employed at each of the buildings managed, including
those owned by the Employer. Fedder, in turn, is
under the general supervision of the manager of each
building, including the Employer's manager, Skiles.
Fedder, as the general supervisor of the front door
personnel here involved, hires them, subject to Skiles'
approval, and plans, with Skiles, their required work
schedules. Skiles, however, has the right to discharge
any front door employee without consulting Fedder.
Front door personnel wear uniforms purchased by the
Employer, who establishes dress regulations.4 The
Employer also furnishes the equipment used by front
door personnel in the performance of their duties.
These employees have frequent, daily contact with
other employees in the stipulated unit and are subject
to the same rules of conduct established by the
Employer. The front door payroll is prepared by
Fedder and submitted to the Employer for approval.
The Employer then remits to Fedder the exact
amount necessary to cover the payroll. Fedder
subsequently issues paychecks drawn on the account
of Adams Parking Concessions, Inc. According to
Fedder, this procedure was established by API for
recordkeeping purposes.
In view of the foregoing, and specifically because of
the substantial degree of control both retained and
exercised by Arlen-Burk over front door employees'
wages, hours, and working conditions, we find, the
employer status of Adams Parking notwithstanding,
that Arlen-Burk must be considered to be an
employer of the front door employees here involved.5
Further, in view of the frequent and daily contact
between front door personnel and the employees of
the other departments involved and the common rules
of conduct pertaining to all employees, we find that
the former share sufficient interests with the latter to
warrant their inclusion in the unit as stipulated.
Accordingly, we find that the 12 front door employees
are eligible to vote in the election held herein and we
shall direct that the Regional Director open and count
their challenged ballots.
The Objections
The Petitioner also excepts to the Regional Direc-
tor's recommendation that the Employer's Objection
4 be sustained. With respect to this objection, it is
uncontroverted that immediately before the election
here in question, the Petitioner caused to be mailed
and delivered to approximately 75 employees a letter
urging them to vote for the Petitioner. Enclosed with
this letter was a copy of the Board's official sample
ballot, altered by the Petitioner by the insertion of an
"X" in the box under the Petitioner's name.
The Board has long held that it will not permit the
reproduction of any document purporting to be a
copy of the Board's official ballot, other than one
completely unaltered in form and content and clearly
marked "sample" on its face, and that it will, upon
objection validly filed, set aside the results of an
election where the successful party has violated this
rule.6
It is apparently the contention of the Petitioner that
the placement of a "simple `X' " in the box under its
name on the Board's official sample ballot, unaccom-
panied by other language calculated to influence
employees, does not constitute an objectionable
alteration under the Board's rule. Such a contention is
wholly without merit. The Petitioner's alteration was
undertaken for campaign purposes and necessarily
suggests that the material appearing thereon bears the
Agency's approval. Such use of our official sample
ballots is forbidden. Accordingly, we adopt the
recommendation of the Regional Director and hereby
sustain the Employer's Objection 4.7 Further, in the
event the Petitioner secures a majority upon the
opening and counting of the challenged ballots, we
shall direct that the election of June 5, 1970, be set
aside and that a second election be held.
DIRECTION
It is hereby directed that the Regional Director for
3 As there are no substantial questions of fact raised by the Petitioner's 5 The Greyhound Corporation, 153 NLRB 1488
request for a hearing, said request is hereby denied 6 Allied Electric Products, Inc, 109 NLRB 1270
4 Approximately I month before the election held herein , front door 7 In view of our Decision herein , we deem it unnecessary to pass upon
personnel were furnished shirts supplied by Fedder with the names "Arlen the Employer's remaining objections
Properties , Inc " and "Adams Parking" lettered thereon.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 12 shall, pursuant to the Rules and Regula-
tions of the Board, within 10 days from the date of this
Decision, open and count the ballots of Ted Buffing-
ton, Joe Cohane, Kenneth Wolf, Robert Pettett,
Robert Stern, George Risley, Joseph Valerio, Dennis
Fain, Henry Guttermuth, Antonino Mars, Hassan
Toloo, John Van Dyke, Adolph Reich, and Tommy
Zang and prepare and cause to be served on the
parties a revised tally of ballots, including therein the
count of the above-mentioned ballots, and, in the
event the Petitioner does not secure a majority upon
the opening and counting of the challenged ballots, as
directed above, issue a Certification of Results of
Election.
It is further directed that, in the event the Petitioner
does secure a majority upon the opening and counting
of said ballots, the Regional Director shall set aside
the election held on June 5, 1970, and direct that a
second election be conducted among employees in the
unit found appropriate at such time as he deems
appropriate.