Holiday Inn Coliseum

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 631 (N.L.R.B. 1990)

631
300 NLRB No. 68
HOLIDAY INN COLISEUM
1 We are amending the caption to add Stanley E. Stein, Receiver. Stein was
appointed receiver on May 25, 1988, by an order of the Summit County, Ohio
Court of Common Pleas pursuant to a foreclosure action against the Holiday
Inn Coliseum.
2 We adopt the findings in the June 20, 1989 Decision and Direction of
Election which the Board was not requested to review.
3 In view of our decision to assert jurisdiction, we find it unnecessary to
address the Petitioner’s objections to holding a second hearing and to the hear-
ing officer’s rulings at the second hearing.
4 The Employer states summarily, without citation, that it is exempt from
the jurisdiction of the Act as a political subdivision of a State. An employer
will be found to be a political subdivision if it is either ‘‘created directly by
the state, so as to constitute a department or administrative arm of the govern-
ment’’ or ‘‘administered by individuals who are responsible to public officials
or to the general electorate.’’ NLRB v. Natural Gas Utility District of Hawkins
County, 402 U.S. 600, 604–605 (1971).
Stein does not argue, and we do not find, that the Hotel meets the first
prong of the Hawkins test. Further, where the State has a temporary interest
in the employing entity, for reasons unrelated to the actual services provided
by that employer and unrelated to any state interest in regulating the manner
in which the employer’s services are provided, we find the situation most
closely analogous to bankruptcy trustees, over whom we do assert jurisdiction.
See, e.g., Karsh’s Bakery, 273 NLRB 1131 (1984). Given the temporary na-
ture of the State’s interest and the limited nature of its interest in preserving
the value of a disputed asset, we find that the receiver is not a political sub-
division as defined under the second prong of the Hawkins test. Accordingly,
we find the Employer is not exempt from Board jurisdiction on this basis.
5 280 NLRB 670 (1986). Chairman Stephens, who dissented from the
Board’s refusal to assert jurisdiction in Res-Care, adheres to that dissenting
position; but he agrees that the assertion of jurisdiction here is also proper
under the opinion of the Res-Care majority.
6 240 NLRB 565 (1979). In National Transportation Service, the Board ma-
jority stated that the inquiry is ‘‘whether the employer itself meets the defini-
tion of ‘employer’ in Section 2(2) of the Act and, if so . . . whether the em-
ployer has sufficient control over the employment conditions of its employees
to enable it to bargain with a labor organization as their representative.’’ Ibid.
7 283 NLRB 602, 603 (1987).
Stanley E. Stein, Receiver for Holiday Inn Coli-
seum1 and Hotel & Restaurant Employees &
Bartenders Local 118, Petitioner. Case 8–RC–
14103
October 31, 1990
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On a petition filed under Section 9(c) of the Na-
tional Labor Relations Act, a hearing was held before
Hearing Officer Christine Hoffer on June 9, 1989. On
June 20, 1989, the Regional Director for Region 8
issued a Decision and Direction of Election in which
he asserted jurisdiction over Holiday Inn Coliseum (the
Hotel). On June 30, 1989, Stanley E. Stein, Receiver
for Holiday Inn Coliseum (the Employer) filed a Re-
quest for Review of the Decision and Direction of
Election.2 The Region, treating the request as a motion
for reconsideration, held a second hearing on August
16, 1989, for the purpose of taking further evidence.3
On October 23, 1989, pursuant to Section 102.67 of
the National Labor Relations Board Rules and Regula-
tions, the Regional Director for Region 8 transferred
this proceeding to the Board to determine whether to
assert jurisdiction over the Employer. The Employer
and the Petitioner filed posthearing briefs with the
Board.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this proceeding, the Board
finds that the Employer is not exempt from the
Board’s jurisdiction.
The parties do not contest the fact that Stein was ap-
pointed receiver to ‘‘take possession of, manage, con-
trol and protect’’ the Hotel. It is well settled that a re-
ceiver is a ‘‘person’’ within the meaning of Section
2(1) of the Act; and Section 2(2) of the Act includes
‘‘any person acting as an agent of an employer’’ in the
definition of ‘‘employer.’’ See, e.g., Airport Limousine
Service, 231 NLRB 932 (1977). Therefore, Stein, as
receiver, is an employer within the meaning of the
Act.4
The Employer contends that the Board should not
exercise jurisdiction over it because of its close ties to
an exempt government entity. We find that it would
effectuate the purposes and policies of the Act to assert
jurisdiction over the Employer.
In Res-Care, Inc.,5 the Board reaffirmed the basic
twofold inquiry enunciated in National Transportation
Service6 for determining when to assert jurisdiction
over an employer providing services to or for an ex-
empt entity. Further, the Board stated that it would ex-
amine not only the control over essential terms and
conditions of employment retained by the employer,
but also the scope and degree of control exercised by
the exempt entity over the employer’s labor relations,
to determine whether the employer is capable of en-
gaging in meaningful collective bargaining.
In ARA Services,7 the Board summarized the essen-
tials of the Res-Care analysis as follows:
The Board concluded in Res-Care that it was the
exempt entity (the Department of Labor) that, in
every sense, retained the ultimate discretion for
setting wage and benefit levels; thus, the exempt
entity effectively precluded the employer from en-
gaging in collective bargaining. Although the em-
ployer initially set the wage and benefit levels for
each job classification in its operating budget, the
Board noted that the budget required approval by
the exempt entity and, once approved, became the
basis for the contract price. In addition, the em-
ployer was required to obtain approval from the
exempt entity of the wage ranges to be paid to the
employer’s employees, including a maximum for
each classification, and the substantive terms of
several employee benefits. The contract specifi-
cally provided that any proposed changes in the
approved wage ranges or fringe benefit plans had
to be submitted to the exempt entity for approval,
along with any proposed changes in the staff man-
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The Employer argues that the duration of his term as receiver is uncertain,
and that he is not authorized to sign contracts which would bind the Hotel
beyond the term of his receivership. He concludes from this that he is unable
to sign a long-term labor agreement with a union. Stein’s execution of such
a contract, however, would bind only himself as the Employer, not future own-
ers of the Hotel. It is not uncommon for collective-bargaining agreements to
cease operating because of some change in the identity of the employer. We
will not find that Stein is unable to enter into a labor contract because of the
uncertainty of the duration of his receivership. See Rancho Los Coyotes Coun-
try Club, 170 NLRB 1773, 1774 (1968).
9 Long Stretch Youth Home, 280 NLRB 678, 682 (1986) (then Member Ste-
phens concurring).
ning table, labor grade schedule, or salary sched-
ule.
In the instant case, the Employer is a state court re-
ceiver for a Hotel property that is the subject of a fore-
closure proceeding. Stein argues he is only allowed to
operate the Hotel as specified by the state court, i.e.,
that the state court operates the Hotel through him. We
reject this argument.
Stein files monthly financial reports with the judge
presiding over the foreclosure case. Stein’s reports,
however, contain, inter alia, information on expendi-
tures already paid out. There is no evidence that Stein
needs prior approval to make expenditures for the daily
operation of the Hotel; nor is there evidence that any
of his expenditures ever have been questioned.
Stein has delegated the management of the Hotel to
a manager and a general manager. Stein hired the gen-
eral manager from outside the Hotel operation and pro-
moted the manager from within. Stein did not seek
court approval for these actions. The manager and gen-
eral manager operate the Hotel on a daily basis and
oversee labor relations. They have the authority to hire,
fire, and discipline employees; grant wage raises to in-
dividual employees; and change company policies.
Stein testified that he did not believe disgruntled em-
ployees had the right to appeal the manager’s decisions
to him.
We find under these circumstances that the exempt
entity does not exercise such control over the Employ-
er’s labor relations policies as would remove the Em-
ployer’s control over decisions affecting the ‘‘core
group of ‘basic bargaining subjects,’’’ and thereby pro-
hibit meaningful bargaining.8 Res-Care, supra at 674.
Further, unlike the situation in Res-Care, there are no
line-by-line budgetary controls imposed on the Em-
ployer by the state court. In fact, the only budgetary
control seems to be a prohibition from making major
capital improvements without court approval. The only
restraint on increases in wages and/or benefits, as in
most settings, is the profitability of the Hotel operation
and Stein’s willingness to agree to such increases. Fur-
ther, the Hotel managers have exclusive control over
the hiring, firing, promotion, and disciplinary policies
at the Hotel.
Based on the above, we find that the limitations im-
posed by the state court do not substantially affect the
Employer’s ultimate discretion over wages and benefit
levels.9 We therefore conclude that the Employer re-
tains substantial control over all economic matters
which are central to the employer-employee relation-
ship, which enables it to engage in meaningful collec-
tive bargaining, and that it will effectuate the purposes
of the Act to assert jurisdiction.
Accordingly, we shall direct an election in the fol-
lowing appropriate unit:
All food and beverage employees, kitchen and
dining room employees, and banquet employees,
excluding office clerical employees, professional
employees, guards, and supervisors as defined in
the Act and all other employees.
[Direction of Election omitted from publication.]