Horizon House 1, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1965

151 N.L.R.B. 766 (N.L.R.B. 1965)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial an interest with respect to working conditions and remunera-
tion therein as to justify their inclusion. Of the five employees who,
at the time of the hearing, regularly worked part time in the
department, two, Sclafani and McPhail, spent 60 and 70 percent
respectively of their time in the cutting department, more than twice
as much time as did any of the other three part-time employees.
Sclafani is the only part-time spreader in the department, and
McPhail does assorting and ticketing in addition to helping with
pin-lays. We find that of the regular part-time employees in the
cutting department, only these two share with the full-time employ-
ees a substantial interest in the terms and conditions of employment
within the department .3 We shall, therefore, exclude from the unit
the three employees, Boykin, Beaman, and Durkee, who share to a
much lesser extent in the work of the cutting department and have
correspondingly less concern over its terms and conditions of em-
ployment. We shall also exclude from the unit the 10 or so unidenti-
fied women who assist in making pin-lays in the department on
an irregular basis 4
Accordingly, we find that the following employees of the Em-
ployer at its Newburgh, New York, plant constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
.of Section 9 (b) of the Act :
All cutting department employees, including those who regularly
spend substantial time in cutting department work, and excluding
all other employees and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
8 Berea Publishing Company , 140 NLRB 516
4 Evans -Picone, Inc ., Case No. 22-RC-2176 (October 31, 1963).
Horizon House 1, Inc. ,' Horizon House 2, Inc ., Horizon House 4,
Inc. and Local 68, International Union of Operating Engineers,
AFL-CIO, Petitioner . Case No. 02-RC-2670. Marclb 17, 1965
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Christopher J. Hoey. The Hearing Officer's rulings are free
from prejudicial error and are hereby affirmed. Thereafter, the Em-
ployer and the Intervenor filed biefs.
1 The name of the Employer appears as amended at the hearing
151 NLRB No. 96.
HORIZON HOUSE, ETC. 767
Pursuant to the provisions of Section 3 (b) of the Act , the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [ Chairman McCulloch and Mem-
bers Fanning and Brown].
Upon the entire record in this case , the Board finds:
1. The Employer , herein collectively referred to as Horizon House,
operates residential , nontransient apartment houses with a gross
annual income in excess of $1 million. Annual purchases approx-
imate $75,000 , of which some $30,000 is imported from points and
firms located outside the State of New Jersey. The capital stock of
the Employer is wholly owned by Tishman Realty and Construction
Co., Inc. ( hereinafter referred to as Tishman ), which is engaged in
the construction , ownership , and operation of residential apartments
and commercial office buildings . It is conceded that Tishman, the
parent corporation , whose principal office is located at 666 Fifth
Avenue, New York, New York, meets the Board's office building
standards for the assertion of jurisdiction.
The Employer contends, however, that the Board should not assert
jurisdiction herein, as it is engaged solely in the construction and
operation of residential apartment houses for permanent residents.
It relies in this regard on Carol Management Corporation, etc., 133
NLRB 1126, in which the Board noted that it had no discretionary
jurisdictional standard covering employers engaged exclusively in
such an operation. The Employer recognizes that, in Carol Manage-
ment, we stated that where the employer's total operations are diver-
sified we would continue to consider the totality of its operations in
order to determine whether any portion thereof meets the discre-
tionary standards for assertion of jurisdiction . It urges that the
assertion of jurisdiction in that case was based on a consideration of
the operation of a contiguous shopping center which satisfied the
requisite jurisdictional standards and that the ruling in Carol Man-
agement would be unduly extended if the Board were to rely on
Tishman's operations herein. We do not agree.
First, the assertion of jurisdiction in Carol Management was
grounded on the employer 's operation of a total of six shopping
centers, five of which were located in a neighboring State, as well as
the employer's operation of two hotels in New York City which met
the hotel standard for assertion of jurisdiction. Second, the record
reveals a close interrelationship between the operations of Horizon
House and Tishman. As previously noted, the capital stock of Hori-
zon House is wholly owned by Tishman. In addition, employees of
Horizon House are paid by Tishman's checks. Charles Quinn, di-
rector of property management for Tishman, also serves as vice
president of the separate corporations comprising the Employer.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He, too, is paid by check from Tishman. Further, the Employer's
resident manager, who supervises the project's superintendent and all
other personnel, is supervised by Quinn, to whom he is responsible.
In view of all the foregoing, including the Employer's concession
that Tishman meets the Board's standards for assertion of jurisdic-
tion over office buildings, we find that the Employer is engaged in
commerce within the meaning of the Act and that it will effectuate
the purposes of the Act to assert jurisdiction over the Employer .2
2. The labor organizations involved claim to represent certain
employees of the Employer .3
3. No question affecting commerce exists concerning the repre-
sentation of employees of the Employer with the meaning of Sec-
tions 9(c) (1) and 2(6) and (7) of the Act for the following reasons:
The Petitioner seeks to represent a unit of all firemen, engineers,
maintenance mechanics, and assistant superintendents employed by
Horizon. The record reveals that this group consists of four persons
alleged by the Petitioner to be maintenance mechanics, a boilerroom
engineer, and the project's assistant superintendent. The Employer
contends that the engineer and assistant superintendent are super-
visors within the meaning of the Act and that the four employees
who are claimed as maintenance mechanics are, in fact, merely handy-
men whose job interests are indistinguishable from other cleaning
and service employees currently represented by the Intervenor under
its contract with Realty. These latter employees are hired through
Realty and referred to Horizon House on a cost-plus basis and in-
clude such classifications as charwomen, elevator operators, elevator
starters, porters, waxers, and porter-utility-handymen. The Inter-
venor agrees with the Employer that these employees are includable
within its unit and that the petition should, therefore, be dismissed.
We find merit in the position of the Employer and the Intervenor.
While there is no bargaining history, as such, with respect to the
sought employees, they have been the subject of considerable dispute
between the Employer and the Intervenor for some time. The In-
tervenor has consistently taken the position that these employees
belong within its bargaining unit and are covered by its collective-
bargaining agreement. The Employer has argued, and argues here,
that the employees are merely temporary in that their jobs will
awe leave open, as we did in Carol Management, the question of whether the Board
should establish a specific standard covering the operation of residential properties alone,
and, if so , what standard should be adopted
3 Building Service Employees International Union, Local 389, AFL-CIO, intervened
solely on the basis of a contract with Realty Maintenance Co , a subcontractor or agent
of Horizon House The Employer and Intervenor contend that this contract covers the
employees sought by Petitioner and serves as a bar to the petition As articles IV and
IX of the agreement clearly constitute closed-shop clauses , the contract is not a bar to
the petition . Paragon Products Corporation , 134 NLRB 662. -
HORIZON HOUSE, ETC. 769-
terminate upon completion of the construction project 4 The record
will not support this argument. While there has been high turnover
among these employees, one has worked 11/2 years, and the other
three have been employed for a period of 6 to 8 months. In addi-
tion, one of the four buildings is only half occupied and not yet
completed, while a second is under construction at this time. Thus,
there appears no likelihood that the work of the employees in ques-
tion will, even under the Employer's position, be terminated in the
immediately foreseeable future. Finally, Superintendent Thomas
Barrett testified that he considered these employees to be permanent,
rather than temporary, and that he has never advised applicants for
employment during job interviews that the positions would be tem-
porary in nature.
The record further reveals that the employees in question are
handymen-porters who assist the engineer in the boilerroom and make
minor repairs in individual apartments and hallways. Although the
principal activity of the handymen is repair work requiring no spe-
cialized skills, while that of the porters is cleaning, these groups of
employees frequently work together, are interchangeable, and are
subject to the same supervision by Horizon. Additionally, all such
employees are subject to the same work rules and regulations estab-
lished or concurred in by Horizon.,' It is apparent that Horizon is
the employer of the cleaning and service employees 6 as well as of
the maintenance employees sought herein. The repairs made by the
handymen are minor in nature, and all repairs requiring skilled
mechanical work are performed by employees of construction con-
tractors. We note also that the Intervenor's contract contains the
specific classification of porter-utility-handymen, although the only
employees falling within that classification are those sought by the
Petitioner. Finally when these men are employed, they are hired as
handymen and not as mechanics.
For the foregoing reasons, we find that the interests, functions,
and skills of the handymen are not sufficiently distinct from those
of the other employees of the Employer to warrant their separate
representation. Accordingly, the petition will be dismissed.
[The Board dismissed the petition.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
4 The Employer concedes that if the employees are permanent , they would be subject to
the collective-bargaining agreement with the Intervenor.
5 The record reveals that Horizon was consulted by Realty during the course of the
latter's negotiations with the Intervenor.
6 See, e g., Jerry Fairbanks , Inc., 96 NLRB 1140, 1142.
783-133-66-vol. 151--50