Marie Antoinette Hotel

National Labor Relations Board - Board Decisions

Jan 31, 1961

129 N.L.R.B. 1504 (N.L.R.B. 1961)

1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seventeen-Fifty, Inc., d/b/a Marie Antoinette Hotel and Hotel
and Restaurant Employees and Bartenders Union , Local 339,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO. Case No. 12-CA-1326. January 31,
1961
DECISION AND ORDER
Upon charges duly filed on December 29, 1959, by Hotel and Res-
taurant Employees and Bartenders Union, Local 339, Hotel and
Restaurant Employees and Bartenders International Union, AFL-
CIO, hereinafter referred to as the Union, the General Counsel of the
National Labor Relations Board, by the Regional Director for the
Twelfth Region, issued a complaint and notice of hearing dated
March 11, 1960, against Seventeen-Fifty, Inc., d/b/a Marie Antoi-
nette Hotel, hereinafter referred to as the Respondent, alleging that
the Respondent had engaged in and was engaging in certain unfair
labor practices affecting commerce within the meaning of Section
8(a) (1) and (5) of the National Labor Relations Act, as amended,
hereinafter referred to as the Act. Copies of the charges, complaint,
and notice of hearing before a Trial Examiner were duly served upon
the parties.
With respect to the unfair labor practices, the complaint alleges, in
substance, that on or about December 22, 1959, and at all times there-
after, the Respondent refused to bargain collectively with the Union
as the exclusive bargaining representative of a unit of certain em-
ployees of Prestige Hotels, Inc., d/b/a Marie Antoinette Hotel.
On March 23, 1960, the Respondent filed an answer to the complaint
denying the allegations therein and moved to dismiss the complaint
for lack of jurisdiction. On April 6, 1960, the said Regional Director
issued an order postponing hearing indefinitely.
On April 28, 1960, the Respondent and the Union executed a stipu-
lation of facts and a further stipulation whereby they agreed that the
Board may find the facts as stipulated to be true and correct, to
waive the customary hearing before a Trial Examiner, and the issu-
ance of an Intermediate Report and proposed Decision and Order of
the Board, and that the Board may make findings of fact and con-
clusions of law with respect to the allegations of the complaint. They
further agreed that the stipulations, complaint and notice of hearing,
order postponing hearing indefinitely, answer, and charges would
constitute the entire record upon which the Board might make its
findings, and providecl for the iziing of briefs with the Board.
By order dated May 6, 1960, the Board transferred the proceedings
to and continued them before the Board for the purpose of making
129 NLRB No. 178.
MARIE ANTOINETTE HOTEL 1505
findings of fact, conclusions of law, and the issuance of a decision and
order. Subsequently, only the Respondent filed a brief.
Upon the basis of the aforesaid stipulations and the entire record
in the case, the Board makes the following :
FINDINGS OF FACT
The Respondent, as a Florida corporation with its principal office
and place of business located in Fort Lauderdale, Florida, on March
1, 1959, purchased a portion of the premises of the Marie Antoinette
Hotel in Fort Lauderdale, hereinafter referred to as the Hotel. The
remaining portion of the premises, known as the Annex, was at all
material times owned by one Angela E. Hadapp. The purchase was
made subject to an outstanding 99-year lease with operational rights
held by Pavilion Marie Antoinette, Inc., a Florida corporation,
hereinafter referred to as Pavilion, which had acquired a similar
leasehold interest in the Annex. On November 24, 1958, prior to the
date of the Respondent's purchase, Pavilion had subleased its lease-
hold interests in the premises to Prestige Hotels, Inc., hereinafter re-
ferred to as Prestige, which began operating the Hotel properties on
December 21, 1958. Under the existing lease, the Respondent re-
ceived rental payments only. At no time has there been any common
ownership or control of the Hotel properties by Respondent, Pavilion,
and Prestige.
On May 1, 1959, Pavilion defaulted on its lease. On October 7,
1959, the Respondent brought suit in a Florida State court in which it
sought cancellation of the 99-year lease held by Pavilion and the sub-
lease held by Prestige and the appointment of a receiver to manage
the property. A receiver was appointed on November 4, 1959. On
December 14, 1959, the court issued its final decree canceling all inter-
ests of Pavilion and Prestige in the Hotel.
On January 11, 1960, the receiver, apparently after sale pursuant to
court order, delivered to the Respondent possession of the portion of
the premises owned by it. On the same date, the Respondent ac-
quired from Angela E. Hadapp a leasehold interest with operational
rights to the Annex, and began the operation and management of the
Hotel-with substantially the same employees who had been employed
by Prestige.
On June 19, 1959, while the Hotel was still under the operation and
management of Prestige, the Union filed a representation petition
with the Board, seeking to represent all of the Hotel employees and
naming Prestige as the Employer. The hearing on the petition was
held on July 8, 1959 . As of that date, Prestige had an alleged gross
income of $205,000 for the period from December 21, 1958, to May 31,
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1959. At the hearing Prestige stipulated that, based on its income for
the 5 months, it anticipated a gross income for the full year of $575,000,
and that within the 12 months it would purchase from outside the
State materials and supplies in excess of $50,000. Prestige further
stipulated that for the aforesaid period from December 21, 1958, to
May 31, 1959, its cost of out-of-State advertising exceeded $25,000.
Upon the basis of such stipulated facts, the Board found that Pres-
tige was engaged in commerce within the meaning of the Act, and, as.
its anticipated gross income exceeded $500,000, the Board found that it
would effectuate the policies of the Act to assert jurisdiction in the
proceeding.' The Board also found a unit of hotel employees to be
appropriate and directed an election therein. Pursuant to such de-
cision and direction of election, an election was held on August 28,,
1959, which the Union won. On December 2, 1959, 4 weeks after the
receiver was appointed in the State court action, the Union was certi-
fied as the exclusive bargaining agent for the Hotel employees.
On December 3, 1959, the Union wrote the manager of the Hotel, an
employee of Prestige, requesting a bargaining meeting. No reply was
made to this letter. On December 17, 1959, the Union set a letter to
the "Marie Antoinette Hotel" again requesting a bargaining meeting.
This letter was answered by the Respondent by letter of December 22,,
1959. In this letter the Respondent stated that on advice of counsel
it was not in a position to negotiate because, among other reasons, the
receiver, not the Respondent, was the Employer of the Hotel em-
ployees and operator of the Hotel.
In the instant case, the parties have stipulated that for the period
from November 24, 1958, to November 2, 1959, the actual gross reve-
nue from the operations of the Hotel amounted to only $293,407.85 and
the actual cost of the out-of-State purchases of materials and supplies
was only $37,157.45 and that of advertising $4,500.
Conclusions
Contending in part that it was under no legal obligation to bargain
at the time the Union made its demand for bargaining, the Respond-
ent also maintains that jurisdiction should not be asserted herein as its
operations do not meet the Board's jurisdictional standards for hotel
cases.2 It also argues, in effect, that although the Board asserted juris-
diction in the representation proceeding, the Board did so upon esti-
mates of gross income which proved incorrect, and, as the Respondent
was not a party to the representation proceeding, the stipulation,of
the parties therein was not binding on it. We find merit in the Re-
spondent's contention.
1 Case No., 12-RC-649 ( not published in NLRB volumes).
2 Floridan Hotel of Tampa , Inc., 124 NLRB 261, 265.
MARIE ANTOINETTE HOTEL 1507
If, in the present proceeding, the Board should consider the actual
gross revenue derived from the operation of the Hotel while under
Prestige's control as representative of the Respondent's current oper-
ations, it would follow that jurisdiction would not be asserted as such
revenue does not meet the Board's jurisdictional standards for hotels.
The apparent theory of the complaint, however, is that the Board,
having asserted jurisdiction in the representation proceeding on the
basis of commerce data covering the same period of operations, the Re-
spondent may not now, in the present proceeding, challenge the
Board's commerce findings, and, therefore, as a successor in interest,
is obligated to bargain with the certified representatives of its em-
ployees 3 It is not disputed, however, that the commerce data upon
which the Board asserted jurisdiction in the prior proceeding was
erroneous, and that the Respondent was neither party to that pro-
ceeding nor to the stipulation therein adopting the projected figures
as the basis for the assertion of jurisdiction.
It would be inequitable to assert jurisdiction over the Respondent
on the basis of erroneous commerce data where it contests jurisdiction,
and impose upon it, as a successor employer, under the circumstances
herein, the obligation to bargain with the previously certified repre-
sentatives of its employees. We find, therefore, that it would not
effectuate the policies of the Act to assert jurisdiction herein and,
accordingly, dismiss the complaint .4
[The Board dismissed the complaint.]
MEMBER KIMBALL took no part in the consideration of the above De-
cision and Order.
5N.L R.B . v. Albert Armato, et al., 199 F . 2d 800 ( C.A. 7), enfg. 97 NLRB 971.
In view of our determination herein declining to assert jurisdiction , we find it un-
necessary to pass on the Respondent 's obligation to bargain with the Union.
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