New York Hilton at & Rockefeller Center

National Labor Relations Board - Board Decisions

Sep 22, 1971

193 N.L.R.B. 313 (N.L.R.B. 1971)

NEW YORK HILTON AT ROCKEFELLER CENTER 313
Rock-Hil-Uris, Inc. d /b/a the New York Hilton at
Rockefeller Center and Security Officers, Guards,
Patrolmen , Watchmen, Timekeepers Union of
Greater New York , Local 12 , Petitioner. Case
2-RC-15538
September 22, 1971
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 2, 1971, the Regional Director for Region
2 issued his Decision and Order in the above-entitled
proceeding, in which he dismissed the petition herein
on the ground that the Petitioner, a guard union, is
affiliated directly or indirectly with an organization
which admits to membership employees other than
guards. Thereafter, in accordance with Section 102.67
of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Petitioner
timely filed a Request for Review of the Regional
Director's Decision, contending that the Regional
Director erred in finding an affiliation based on the
facts established at the hearing. The Intervenor filed a
statement in opposition to the Request for Review.
On June 25, 1971, the National Labor Relations
Board by telegraphic order granted the Request for
Review. Thereafter the Petitioner and the Intervenor
filed briefs on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the entire record in this
case, including the Request for Review, the statement
in opposition thereto, and the briefs on review, and
makes the following findings:
The Petitioner seeks to represent a unit consisting of
all of the Employer's house officers, security officers,
guards, patrolmen, and watchmen. The Intervenor i
urges that the petition be dismissed because the
Petitioner is affiliated with a nonguard union and,
i Local 18, International Union of Police and Protection Employees,
Independent Watchmen's Association (hereinafter referred to as
Intervenor), was permitted to intervene on the basis of a contract alleged to
bar the proceedings The Intervenor alleged that its original contract
covering the employees in the unit sought , which was to expire on
December 15, 1970, was subsequently extended to January 15, 1971, by
oral agreement on December 14, 1970, as evidenced by a letter to that
effect dated December 24, 1970, from the Employer to the Intervenor. The
petition herein was filed on January 13, 1971 In view of his decision to
dismiss the petition on other grounds , the Regional Director found it
unnecessary to determine the contract -bar issue . However , we find that the
contract relied on by the Intervenor will not bar the election herein A
contract which is not signed by both parties will not bar an election,
Appalachian Shale Products Co, 121 NLRB 1160, nor will a written
therefore, is prohibited by Section 9(b)(3) the Act
from being certified as the collective-bargaining
representative of a unit of guards.2
The Employer operates a Hilton Hotel at Rockefel-
ler Plaza in New York City.
In 1967 the New York City Hotel and Motel Trades
Council, AFL-CIO, consisting of several unions
representing various classifications of hotel employ-
ees, sought to organize the security personnel at the
Plaza and Americana hotels in New York City. At
that time Anthony Tronolone was an organizer for the
Trades Council's security personnel division.
Petitions for elections among the security personnel
at the two hotels were filed by the Intervenor herein,
whereupon the Trades Council, jointly with the Office
and Professional Employees Union Local 153, inter-
vened. Elections were held and the joint intervenors
won both elections. However, the Regional Director
certified only the arithmetic results of the elections,
having previously determined that the Trades Council
admitted to membership both guards and
nonguards.3
As a result of the failure to secure certification, a
decision was made to separate the security personnel
division from the Trades Council and to form an
independent guard union. The Petitioner herein was
formed in December 1968, with Tronolone as its
president. The guards at the Plaza and Americana
hotels then became members of the Petitioner.
The Petitioner has its own constitution and bylaws
which express its policy to organize only security
personnel. Petitioner's officers are not members of,
nor officers of, any other union, nor are they paid
money by any other union. Petitioner's offices are
located on the same floor as the offices of the Trades
Council, in a building apparently owned by the
Trades Council. Petitioner pays the Trades Council
$400 per month for office rent, and for clerical and
reception services which are performed by employees
on the payroll of the Trades Council.
Tronolone testified that, subsequent to the estab-
lishment of the Petitioner, he had been present at
meetings with officers of the Trades Council; howev-
er, no discussion of wages or other working conditions
took place. He was asked to attend the meetings to
agreement which is extended orally Container Corporation of America, 83
NLRB 424 ; Cleveland Pneumatic Tool Company, 143 NLRB 1 165
2 Section 9(b)(3) provides that "no labor organization shall be certified
as the representative of employees in a bargaining unit of guards if such
organization admits to membership , or is affiliated directly or indirectly
with an organization which admits to membership , employees other than
guards"
3 Certification of such a union as the collective -bargaining representa-
tive of a unit of guards is prohibited by Section 9(b)(3) of the Act.
However, certification of the arithmetic results is appropriate when the
petition is filed by a qualified labor organization and the nonqualified
labor organization intervenes . See The Wackenhut Corporation , 169 NLRB
398.
193 NLRB No. 47
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss security matters at a certain hotel, including
fires, thefts, muggings, and the harassment of Trades
Council members by hotel security personnel.
The crux of the affiliation contention raised by the
Intervenor concerns a master collective-bargaining
contract effective from June 1, 1968, to May 31, 1973,
between the Petitioner and the Hotel Association of
New York City, Inc. Under the terms of the master
contract, the Hotel Association agrees that any
member hotel at which the Petitioner becomes the
collective-bargaining representative for security per-
sonnel will be bound by the terms of the contract.4
The contract further provides that Employers will
make contributions in behalf of all employees who are
members of the Petitioner to the New York Hotel and
Motel Trades Council and Hotel Association Insur-
ance Fund, the Hotel and Motel Trades Council and
Hotel Association Pension Fund, and the Hotel and
Motel Trades Council and Hotel Association Family
Medical Fund. The benefits of these funds are
available to Petitioner's members as well as members
of the Trades Council unions.
All three of the above funds are duly qualified tax
exempt trust funds which are administered by an
equal number of union and employer trustees. The
trustees who represent the unions are all representa-
tives or officials of the various unions affiliated with
the Trades Council; no trustees are officers or
representatives of the Petitioner. The funds are
managed by professional managers, none of whom is
an officer or employee of any union or employer.
Based on the above facts, the Regional Director
dismissed the petition, finding that the facts indicated
that there still exists an affiliation between the Trades
Council and Petitioner sufficient to make it question-
able that, in an area of negotiations relating to the
funds, the Petitioner can act independently of the
Trades Council.
Section 9(b)(3) prohibits the certification of a guard
union where the guard union either admits nonguards
as members or is directly or indirectly affiliated with
an organization which admits both guards and
nonguards to membership.
Since none of the parties contend that Petitioner is
disqualified because of any direct affiliation with a
nonguard union or because it admits to membership
4 The security personnel presently sought by Petitioner are not yet
covered by this contract since it only becomes effective as to those
employees in the event Petitioner becomes their bargaining representative
S 97 NLRB 1111
6 In applying this standard , the Board has permitted substantial
latitude , particularly when guard unions are in their formative stages. Thus,
no indirect affiliation was found in Inspiration Consolidated Copper
Company, 142 NLRB 53 (assistance in soliciting authorization cards);
Westinghouse Electric Corporation, 96 NLRB 1250 (chief steward
participated in organizational meetings ); The Midvale Company, 114 NLRB
372 (assistance in preparation of unfair labor practice charges and selection
of attorney), International Harvester Company 81 NLRB 374 (free use of
employees other than guards, the only issue before us
is whether or not there exists the prohibited indirect
affiliation.
In The Magnavox Company,5 the Board stated that
an indirect affiliation exists when a nonguard union
participates in guard affairs to such an extent and for
such a duration as to indicate that the guard union has
lost the freedom and independence to formulate its
own policies and principles.6
Applying this principle to the facts of this case, we
are not satisfied that there is an indirect affiliation
between the Petitioner and the Trades Council
sufficient to render the Petitioner disqualified under
Section 9(b)(3).
While it is true that the Petitioner and the Hotel
Association have voluntarily agreed to participate in
the trust fund arrangement contractually established
by the Hotel Association and the nonguard Trades
Council, the record fails to establish, as contended by
the Intervenor, that, by such participation, the
Petitioner has delegated its authority to administer the
funds to members of the Trades Council unions,
thereby depriving the Petitioner of the ability to act
independently of the Trades Council in negotiations
relating to the funds. As stated above, the funds are
not exclusively administered by the Trades Council
unions, but rather by an equal number of trustees
designated by the Hotel Association and by the
Trades Council unions. Nor does it appear that the
Trades Council has utilized the participation of its
representatives in the management of the trust funds
in a manner to influence or interfere with Petitioner's
affairs. Further, to infer any future influence or
interference would be entirely speculative. And since
we do not regard the renting of office space, use of
clerical services, and Tronolone's attendance at
Trades Council meetings as having any substantial
significance in this case, we conclude that the
Regional Director erred in dismissing the petition.?
Accordingly, we find that the following employees
of the Employer constitute a unit appropriate for
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All of the house officers, security officers, guards,
patrolmen, and watchmen employed by the
meeting hall ); and Brooklyn Piers, Inc., 88 NLRB 1364 (sharing of office
space) However, the Board has found the existence of indirect affiliation
in Mack Manufacturing Corporation, 107 NLRB 209 (assistance during
organization continued after demand for recognition ), Willcox Construction
Co., Inc., 87 NLRB 371 (individual was an officer in guard and nonguard
union); International Harvester Company, Wisconsin Steel Works, 145
NLRB 1747 (advice and assistance in negotiations and money to pay
pickets).
I However , if it can be later established that the nonguard union has
acted in some manner to deprive the Petitioner of its independence, the
Board will entertain a motion to revoke any certification of representative
which may issue herein See Ingersold-Rand Company, 119 NLRB 601, in 4
NEW YORK HILTON AT ROCKEFELLER CENTER 315
Employer, excluding all other employees and
supervisors as defined in the Act.
[Direction of Election8 omitted from publication.]
8 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. Accordingly , 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 2 within 7 days of
the date of this Decision on Review and Direction of Election The
Regional Director shall make the 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.