Continental Hotel

National Labor Relations Board - Board Decisions

Oct 31, 1961

133 N.L.R.B. 1694 (N.L.R.B. 1961)

1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees being offered and having accepted the increased commission rates, only
dramatizes in this particular case the coercive effect upon the Delaware agents of the
Respondent 's "take it or leave it" attitude.
I find that by refusing, on demand , to discuss its proposed increase in commission
rates offered to the Delaware debit agents on and after May 16, 1960, the Respondent
unlawfully refused to bargain with the Union and thereby violated Section 8(a)(5)
of the Act.
In keeping with the above finding, the total Intermediate Report is hereby amended
by adding the following paragraph 5(a) under Conclusions of Law:
5. (a) By refusing , upon request , to bargain with the Union respecting com-
pensation increases offered by the Respondent to the employees , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
In all other respects I deem the provisions of the Preliminary Report , including the
"cease and desist" sections of the Recommendations and the Appendix notice, suffi-
cient to include the additional unfair labor practice finding made here.
Spink Arms Hotel Corporation , d/b/a Continental Hotel and
Bartenders and Hotel and Restaurant Employees Local Union
No. 58, affiliated with Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO, Petitioner. Case
No. 25-RC-2008. October 31, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John W. Hines, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board finds :
1. The Employer operates its sole establishment, the Continental
Hotel, in Indianapolis, Indiana. During 1960, the Employer had a
gross income of over $900,000 and received goods, supplies, and mate-
rials valued in excess of $50,000 directly from outside the State of
Indiana.' While conceding that its dollar volume meets the Board's
standard for the assertion of jurisdiction in the hotel industry, the
Employer moves to dismiss the petition on the ground that it operates a
"residential hotel" over which the Board declines to assert jurisdiction
under that standard.2 Thus, the Employer contends that the Board's
1 The hotel is divided into two main parts , the hotel proper and the annex , referred to
herein jointly as the hotel The Union contends that only the hotel proper should be
considered for jurisdictional purposes . The annex is a separate building connected to the
hotel proper by a door in the basement and has a separate main and rear entrance
However, the manager of the Employer testified that there is no separate management of
any kind and that it maintains central rental , service , and maintenance facilities for
both the annex and the hotel proper. We find that the Union's contention is without
merit and that the totality of the Employer's operations must be considered The
T H Rogers Lumber Company, 117 NLRB 1732
2 "For purposes of application of this standard , a permanent or residential hotel or
motel is one as to which 75 percent of its guests may be regarded as permanent guests.
, that is they remain for a month or more " Floridan Hotel of Tampa, Inc, 121 NLRB
261, 264
133 NLRB No' 154.
CONTINENTAL HOTEL 1695
definition of a permanent or residential hotel as- "one as to which 75
percent of its guests . . . remain for a month or more" should be
applied by interpreting "guests" as meaning "guest days," i.e., the num-
ber of permanent guests and the number of transients, multiplied by
the respective number of days of their actual tenancy through the year,
so that the proportion of each class of guests may be determined. The
Petitioner, on the other hand, contends that the Floridan Hotel'
standard should be interpreted literally and the determination should
be based on the actual number of individual guests throughout the
year who stayed more than a. month.
In view of the disagreement which has arisen in this case, the defini-
tion set forth in the Floridan Hotel case appears to be ambiguous and
should be clarified. However, neither of the above positions reflects the
Board's intention at the time of the adoption of the above standard.
Rather, although stated in terms of "guests," the Board intended that
the determination as to the residential character be made on the basis of
an annual computation of either : (1) the percentage of rental units
occupied by permanent guests who stay more than a month, or (2) the
percentage of the gross rental income which was derived from perma-
nent guests. Thus, if in an annual period a hotel or motel rents 75
percent or more of its rental units to guests who remain for a month or
receives 75 percent or more of its rental income from such guests, it
is a permanent or residential hotel or motel over which the Board will
not assert jurisdiction. Stated conversely, if on an annual basis an
establishment rents more than 25 percent of its rental units to transient
guests who remain less than a month, or receives more than 25 percent
of its rental income from such guests, it is a transient hotel over which
the Board will assert jurisdiction.
In the instant case the hotel is divided into approximately 293 rental
units. During 1960, the Employer accommodated 4,000 individual
guests, of whom 700 stayed a month or more and occupied an average
of 190 rental units from which the Employer derived $319,314 in
rental income. During this same period, 103 rental units were oc-
cupied by 3,300 transient guests from whom the Employer derived
rental income of $150,848.
It is thus clear that under either of the criteria set forth above
the Employer operates a transient hotel over which the Board will
assert jurisdiction, as approximately 35 percent of its rental units
were occupied by transient guests during 1960, and about 32 percent
of its gross income from room rentals was derived from transient
guests.
Accordingly, we find that it will effectuate the purposes of the Act
to assert jurisdiction herein. We therefore deny the Employer's
motion to dismiss the petition. '
3 Ibid.
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The parties agree as to the appropriateness of a unit of all em-
ployees, but have not agreed as to the unit placement of three annex
employees, whom the Employer would include. An elevator operator,
a mail clerk and a houseman work in the annex. The record shows
that these employees are supervised by the maintenance supervisor,
who also supervises maintenance employees in the hotel proper. The
annex employees punch the same clocks, are paid the same rate of
pay, and receive the same fringe benefits as employees of similar
classification in the hotel proper. Further, there is some interchange
between these employees and other maintenance employees. In view
of the foregoing, we find that the annex employees have common
interests with the other employees and shall include them in the unit.
Accordingly, we find that the following employees of the Employer
at its Indianapolis, Indiana, hotel constitute a unit appropriate for
the purposes of collective bargaining within the meaning of the Act :
All employees, including annex employees, but excluding the watch-
men,4 night auditor room clerk, assistant night auditor room clerk,
office clericals, professional employees, guards, and supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERS and LEEDOM took no part in the consideration of
the above Decision and Direction of Election.
4 The parties stipulated that Charles B. Williams , the relief watchman , should be
included in the unit because his primary duties are in maintenance . The record shows
that Williams works 40 hours a week as a maintenance man but relieves the watchmen
for '8 hours each Saturday . During the 8 hours as relief watchman he has authority to
see that hotel property is not taken from the premises . There are no other employees
performing guard duties on this day. We find that Williams is a "guard" within the
meaning of Section 9 (b) (3) of the Act and shall exclude him . Walterboro Manufacturing
Corporation, 106 NLRB 1383.
Robert Pitcher , Fred Pitcher and Henry Gradwohi, d/b/a
Gradwohl & Pitcher and Carpet, Linoleum & Soft Tile Layers
Union No . 1238. Case No. AO-37. October 31, 1961
ADVISORY OPINION
This is a petition filed by the Carpet, Linoleum & Soft Tile Layers
Union No. 1238, herein called the Petitioner, for an advisory opinion
in conformity with Section 102.98 of the Board 's Rules and Regula-
tions, Series S.
133 NLRB No. 164.