Greenhoot, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1973

205 N.L.R.B. 250 (N.L.R.B. 1973)

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Greenhoot, Inc. and Local 99-99A, International
Union of Operating Engineers , AFL-CIO, Peti-
tioner. Case 5-RC-8304
August 6, 1973
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On January 18, 1973, the Regional Director for
Region 5 issued his Decision and Direction of Elec-
tion wherein he directed an election among all li-
censed and unlicensed engineers, apprentice
engineers, and maintenance men at 14 office build-
ings managed by Greenhoot in the District of Colum-
bia. Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and Regu-
lations, Series 8, as amended, the Employer filed a
timely request for review on the grounds that the Re-
gional Director in concluding Greenhoot was the sole
Employer herein made findings which are clearly er-
roneous and departed from officially reported preced-
ent.
By telegraphic order dated February 13, 1973, the
National Labor Relations Board granted review and
stayed the election pending the decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
matter with respect to the issues under review and
makes the following findings:
Greenhoot, Inc., is a District of Columbia corpora-
tion engaged in real estate sales and leasing and pro-
perty management in the Washington metropolitan
area. The Union seeks a unit limited to the engineers
and maintenance employees employed in 14 separate
office buildings in the District of Columbia.' Green-
hoot contends that the separate building owners are
1 All owners of the buildings involved herein were served with a notice of
hearing. One attorney appeared representing two owners and one individual
appeared representing four owners The buildings and the owners involved
are as follows (1) Trans Lux Building owned by 14th & H Street Corp, (2)
2021 L Street owned by 2021 L Street Associates, (3) Vanguard Building
owned by Vanguard Associates, (4) 1020 Vermont owned by Pearlberg Hold-
ing Co, (5) Pennsylvania Building owned by Pennsylvania Associates, (6)
McLachlen Bank Building owned by M C L. Associates, (7) National Center
for Higher Education owned by the American Council on Higher Education,
(8) 1411 K Street owned by National Real Estate Investment Trust, (9) 818
18th Street owned by 18th Street Associates, (10) Vermont Building owned
by Vermont Building Associates, (11) Imperial Building owned by Imperial
Building Limited Partnership (alternately referred to as 1441 L Street Associ-
ates), (12) Federal Building owned by Intereal Holding Co, (13) 1019 19th
Street owned by C.A G Associates, and (14) American Institute of Archi-
tects Building owned by the American Institute of Architects
the sole employers of the employees sought herein or,
in the alternative, that it is a joint employer together
with the building owners of the employees sought and,
accordingly, a multiple location unit is not appropri-
ate. We agree with the alternative contention.
Greenhoot's building management operations are
conducted pursuant to a standard written contract
with the building owner which provides that Green-
hoot is the owner's agent employed to rent and man-
age the owner's building. For its services, Greenhoot
receives a fee which is a fixed percentage of the
building's gross rental income. Greenhoot, which col-
lects the rentals from the tenants, deducts its fee from
the rentals and uses the remaining amount to pay
other building expenses. Any amounts remaining are
then remitted to the building owner; but if rental
income is insufficient to cover the building expenses
and Greenhoot's fee, the building owner is required to
make up the difference. Moreover, under the agree-
ment, Greenhoot is authorized to hire, discharge, and
pay the wages of the building employees in accor-
dance with a schedule approved in advance by the
building owner. Although Greenhoot is responsible
for the supervision of building employees, the owner
retains the right to determine if a building superinten-
dent is to be employed and to approve the hiring and
retention of all building employees. Finally, the agree-
ment provides that the owner is responsible for pro-
viding various types of liability insurance including
workmen's compensation and that the owner will
hold Greenhoot harmless for employee injuries.
The key supervisor of the employees sought by the
Petitioner is the chief engineer employed in nearly all
of the several buildings involved herein. When Green-
hoot becomes the management agent at a building it
normally continues to utilize the chief engineer and
other engineers already working at the building and
they ordinarily remain employed at the building when
Greenhoot's management contract terminates. If,
however, it becomes necessary to employ a new chief
engineer, Greenhoot will recruit and screen applicants
and then make a recommendation to the building
owner who will ordinarily interview and hire the chief
engineer.
Thereafter, the day-to-day building maintenance
functions are directed by the chief engineer. In nearly
all instances he hires, discharges, recommends pay
increases, and schedules the work of the building
maintenance employees and guards. There is evi-
dence that in at least one instance the chief engineer,
will consult on a daily basis with the building ow aer
on operational problems including labor matte- s, and
in some other instances the chief engineer consults
with the building owner for similar reas'jns once a
month. Although it appears that Greenhoot provides
205 NLRB No. 37
GREENHOOT, INC.
some direction and control of the chief engineer, the
record is silent with respect to the nature and extent
thereof.
Greenhoot's wage budget for each building is ap-
proved in advance by the building owner. The record
discloses that although there is sufficient leeway in the
budget for minor increases, such as when an employee
completes a probationary period, nearly all other
wage increases require the building owner's approval
before they can be placed into effect. Greenhoot is
responsible for the preparation of the payroll and any
employee tax deductions but in most instances Green-
hoot prepares and files the tax returns for such mon-
eys in the name of the owner.
Most employees are covered by Greenhoot's health
insurance contract but the premium payments for this
purpose come from the individual building expense
moneys. Holidays are established by the building
owner but are, in effect, dictated by the schedule of
the principal tenant. Uniforms are provided for from
the building expense account but in some instances
they bear Greenhoot's name while in other instances
they bear the principal tenant's name and, in one
instance, they bear both names.
Although there is evidence of transfer and inter-
change of a limited number of the chief engineers who
are supervisors, there is no evidence of employee in-
terchange among the buildings.
The Regional Director concluded that the circum-
stances here were indistinguishable from Herbert Har-
vey, Inc., 159 NLRB 254, wherein we held that the
building maintenance employees at the World Bank
were employees of the building maintenance contrac-
tor in circumstances that are similar in some respects
to those herein. However, the Regional Director's reli-
ance on that case is misplaced since the principal issue
there was whether the building maintenance contrac-
tor retained a sufficient degree of control over the
employees to warrant finding the contractor was an
employer within the meaning of Section 2(2) as the
Bank, which exercised some control over the employ-
ees, was exempt from the Board's jurisdiction. No
such problem exists in this case since neither the
building owners nor Greenhoot are in a class exempt
from the Board's jurisdiction. Herbert Harvey, supra,
is also distinguishable on an additional ground. Al-
though the conditions of employment were subject to
review and approval by the Bank in that case, a con-
siderable area of effective control remained vested in
the building maintenance contractor, whereas in the
instant case each building owner in effect hires the
chief engineer and the latter tends to confer with
building owners on operational problems. Hence,
both the individual owner and the management agent,
Greenhoot, have significant employer functions. In
these circumstances the Regional Director is in error
251
in his conclusion that the building owner plays no role
in hiring and firing and exercises no daily control over
employees. As we believe the facts set forth above
sufficiently demonstrate that Greenhoot and the
building owners at each building share or codeter-
mine matters governing the essential terms and condi-
tions of employment of the employees herein, we
conclude that Greenhoot and each of the Building
owners are joint employers at each of the respective
buildings.2
In this circumstance, there is no legal basis for es-
tablishing a multiemployer unit absent a showing that
the several employers have expressly conferred on a
joint bargaining agent the power to bind them in neg-
otiations or that they have by an established course of
conduct unequivocally manifested a desire to be
bound in future collective bargaining by group rather
than individual action.' As there is no consenual basis
here for finding a multiemployer unit , we find that
separate units at each location sought by the Peti-
tioner of all licensed and unlicensed engineers, ap-
prentice engineers , and maintenance men excluding
all other employees, office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act to be appropriate herein.4
Accordingly we remand this case to the Regional
Director for the purpose of conducting an election at
each location in accordance with his Decision and
Direction of Election, as modified herein,' except that
the eligibility payroll period therefore shall be that
immediately preceding the date of issuance.'
2
Manpower, Inc, 164 NLRB 207, The Greyhound Corporation, 153 NLRB
1488
3 The Kroger Co, 148 NLRB 569, Bennett Stone Company 139 NLRB 1422;
Chicago Metropolitan Home Builders Association, 119 NLRB 1184
Notwithstanding the existence of a contract at the Trans Lux Building,
the Petitioner sought to include that building in order to obtain the benefits
of certification In this circumstance we find that contract no bar to an
election herein Montgomery Ward & Co, Incorporated, 137 NLRB 346, In
5 At the Pennsylvania Building a new contract had been negotiated but not
executed at the time the petition was filed Accordingly we find no bar to an
election at that building DeLuxe Metal Furniture Company, 121 NLRB 995
5In the event the Petitioner does not wish to proceed to an election in
separate units , it shall so notify the Regional Director by written notice
within 7 days of the date of issuance The Regional Director shall also
determine the adequacy of the showing of interest for each location If it
appears, as some record evidence indicates , that there are less than two unit
employees at any of the locations sought , the Regional Director shall forth-
with dismiss the petition as to such location See Cutter Laboratories, 116
NLRB 260
6 In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote , all parties
to the election should have access to a list of voters and their addresses which
may be used to communicate with them Excelsior Underwear Inc, 156
NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S. 759 (1969) Accord-
ingly, it is hereby directed that an election eligibility list, containing the
names and addresses of all the eligible voters , must be filed by the Employer
with the Regional Director for Region 5 within 7 days of this Decision on
Review The Regional Director shall make this list available to all parties to
the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to comply
with this requirement shall be grounds for setting aside the election whenever
proper objections are filed