Pacific Host, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1966

156 N.L.R.B. 1467 (N.L.R.B. 1966)

PACIFIC HOSTS, INC.-PADRE TRAILS MOTEL CORP. 1467
Accordingly, we shall set aside the election, on the ground that
actions by members of the community rendered impossible "the ra-
tional, uncoerced selection of a bargaining representative as contem-
plated by the Act," 9 and shall direct the holding of a second election.
ORDER
[The Board set aside the election conducted herein on April 23,
1965.]
[Text of Direction of Second Election omitted from publication.]
9 The Falmouth Company, 114 NLRB 896 ; James Lecs and Sons Company , 130 NLRB
290; Monarch Rubber Co., Inc., 121 NLRB 81.
Pacific Hosts, Inc.-Padre Trails Motel Corporation 1 and Local
Joint Executive Board of San Diego , Comprising Waiters and
Bartenders Union Local No. 500, and Culinary Alliance and
Hotel Service Employees Union , Local No . 402, AFL-CIO, Peti-
tioner.a Case No. 21-RC-9646. February 14, 1966 ,
DECISION AND DIRECTION OF.ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Claude R. Marston. The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed. There-
after, the Petitioner and the Employer each filed briefs with the
National Labor Relations Board and the Petitioner subsequently filed
a supplemental brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
Upon the entire record in this case the Board finds :
1. The Petitioner seeks to represent a unit of hotel and restaurant
workers employed at the Padre Trail Inn, herein called the Inn. The
Employer contends that its operations do not meet the Board's current
-discretionary standards for asserting jurisdiction in the hotel indus-
try 3 and that the petition should, therefore, be dismissed. In support
of this position, the Employer argues that no employer-employee rela-
1 The name Padre Trails Motel Corporation appears as amended at the hearing.
9 The name of the Petitioner appears as amended at the hearing.
8 Floridan Hotel of Tampa, Inc., 124 NLRB 261.
156 NLRB No. 128.
1468 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
tionship exists between Pacific Hosts,Inc.,herein called Pacific, and the
employees sought herein so as to constitute Pacific a joint employer,
with the Padre Trails Motel Corporation, herein called Padre; and,
in any event, Pacific and Padre together do not meet the said juris-
dictional standard. We find no merit in the Employer's position.
Pacific is a management corporation engaged in the business of
operating various hotels and motels in California pursuant to the
terms of a "Management Agreement" executed by each owner. Padre
is a California corporation which owns the Inn. In August 1964,
Padre entered into a "Management Agreement" with Pacific, thereby
becoming one of nine California hostelries similarly operated.4 Pur-
suant to this agreement, Pacific, for a fixed fee plus a percentage, of
profits, undertook to operate and manage the Inn exclusively for a
period of 10 years.5 To that end, Pacific provided and installed a
general manager at the Inn who, as an employee of Pacific, remained
subject to its direction and control.
Although Padre retains some veto power over policy matters pro-
posed or undertaken by Pacific, and retains a right effectively to
recommend the hire or discharge of an employee at the Inn, the com-
plete overall responsibility and authority for the Inn's management
rests with Pacific, and the general manager implements and carries
out this responsibility on a day-to-day basis. This management obli-
gation is outlined in the agreement, which expressly provides that
Pacific "... shall have full and complete authority over all operations
of the hotel to the extent necessary to operate the hotel and to main-
tain the hotel in an efficiently operating condition; such authority shall
include, but not be limited to the right ..." inter alia, to hire, supervise,
discipline, and fire employees; to pay employee salaries, wages, and
all social security and withholding taxes thereon ; to fix and change
rates; to bill tenants for rents and other charges; to maintain the hotel
in first class condition, including decorating and making inside and
outside repairs; to keep accounts and records; to order all signs, price
lists, renting plans, circulars, and advertising matter reasonably re-
quired in connection with the management; to defend any and all suits
against the premises and/or the operation of said premises; to pro-
cure all necessary insurance for the hotel; to obtain bonding of
employees who handle moneys belonging to Padre; and ". . . to per-
form any act or do anything reasonably necessary to carry out ...
'Although the specific references hereinafter are to Padre 's "Management Agreement,"
the only such agreement placed in evidence , an officer of Pacific testified that, "with
minor exceptions ," which were not spelled out, it represents substantially the same man-
agement arrangement which Pacific has with the eight other hostelries.
s While Padre retained a right to terminate the agreement for any breach thereof by
Pacific, the latter had the option to extend the contract for an additional 10-year period.
PACIFIC HOSTS, INC.-PADRE TRAILS MOTEL CORP. 1469
[Pacific's] agreement contained herein, . . . and all obligations and
expenses incurred thereunder shall be for the account of, on behalf of
and at the expense of [Padrel."
In view of the foregoing, it is'clear that Padre, in fact, delegated
to Pacific the exclusive and complete authority and control to operate
and manage the Inn in all respects. Accordingly, as Pacific exercises
full control over persons employed at the Inn, we find that an employer'
employee relationship exists between Pacific and these employees.6
This fact, considered together with the veto powers retained by Padre
over the Inn's labor relations and other policies, establishes, and we
find, that for jurisdictional purposes Padre and Pacific are joint
employers of the employees sought herein.? Therefore, the Employer's
contention that all.operating costs, including employee salaries, are
actually borne by Padre alone is immaterial. For, Pacific is clearly
authorized and required by the terms of the Agreement to. incur these
operating obligations and to pay for them out of the Inn's. gross
receipts before turning net earnings over to Padre and thus in fact
controls such expenditures. It is also immaterial under the, circum
stances of this case that Pacific and Padre have no common stockhold-
ers, corporate officers, or ownership interests; 8 in any event, Pacific
shares a financial interest in the successful operation of the Iub to the
extent that its compensation is based upon a percentage of profits.
Having found that, for jurisdictional purposes, Pacific and Padre
constitute a joint employer of the employees herein, the question re-
mains whether their combined annual revenue is sufficient to meet the
Board's discretionary standard for asserting jurisdiction'in this indus-
try.9 We find that it is.
The combined annual .gross income to Padre , projected on the.basis
of the Inn's operations since March 1965 , and Pacific , considering only
its management fees and commissions , is less than the Board 's $500,000
discretionary jurisdictional standard for the hotel industry. The
Petitioner, however , takes the position and we agree , that in computing
Pacific's annual gross revenues for the purpose of meeting that stand-
ard, the Board should consider the combined gross revenues of all the
properties which, like Padre, are under the exclusive management
control of Pacific. The parties stipulated that such a total would
exceed the Board 's jurisdictional requirement . As indicated above,
Pacific has exclusive management control of nine hotels and motels
8 See Roane-Anderson Company, 95 NLRB 1501, 1503
7 The Greyhound Corporation, 153 NLRB 1488; Laundry, Dry Cleaning and Dye House
Workers' International Union Local 2 6; at al , 129 NLRB 1446
8 Cf. Central Dairy Products Co., 114 NLRB 1189, 1190, in which the Board declined to
find a joint employer relationship for jurisdictional purposes upon a finding that the man-
agement firm had no centralized authority over the labor policies of the businesses it
administered.
0 Floridan Hotel Corporation , supra.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to its standard "Management Agreement." These agree-
ments delegate to, and vest in, Pacific complete overall responsibility
and authority for the efficient and economic operation of each property
thereunder, including the authority to formulate and implement labor
policies, to hire, fire, and supervise employees on a regular daily basis.
Thus, Pacific's total operations encompass all nine hotels and motels,'0
and the Board has consistently held that jusisdiction is asserted on the
basis of the impact of the totality of an employer's operations on
commerce." The fact that each of the nine hostelries remains a sepa-
rate and distinct corporate entity is not controlling for jurisdictional
purposes. Thus, it is also immaterial that Pacific does not establish
or maintain a uniform labor policy for all the properties under its
management control, since it clearly has and exercises the authority
to control labor policies at each such hotel. Uniformity of employ-
ment conditions and interchange of employees are relevant only to the
determination of an appropriate unit for the purpose of collective
bargaining but are not material to the issue herein.
In view of all of the foregoing, including the Employer's stipula-
tion that the total gross dollar volume of business of all of the motels
and hotels managed by Pacific exceeds $500,000 annually, 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.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act
4. It was stipulated by the parties, and we agree, that an appro-
priate unit herein should include all hotel maids, hostesses, waitresses,
waiters, cooks, dishwashers, busboys, and bartenders employed at the
Padre Trail Inn, and should exclude office clerical employees, guards,
watchmen, and supervisors as defined in the Act. However, the
Employer would include the two front-desk clerks and one night audi-
tor, while the Petitioner contends they should be excluded as office
clerical employees.
The front desk is operated on a 24-hour basis. Two desk clerks,
each working an 8-hour shift, handle the desk during the two day
shifts and a night auditor acts as the desk clerk during the 8-hour night
shift. These desk clerks handle cash paid by guests, operate the PBX
10 In this respect, Padre 's matchbook advertising of the Inn , for example , lists the eight
other properties operated by Pacific under the heading of "OTHER PACIFIC HOSTS
PROPERTIES."
n See , for example , Horizon House, Inc., 151 NLRB 766; Pentagon Plaza, Inc., et al, 143
NLRB 1280; Southwest Hotels, Inc., 126 NLRB 1151; Milner Hotels, Inc., 124 NLRB
599; Thunderbird Hotel, Inc ., et al., d/b/a Thunderbird Hotel Company, 144 NLRB 84;
Checker Cab Company and its Members , 141 NLRB 583; The T. H. Rogers Lumber Com-
pany, 117 NLRB 1732, 1735.
FORMCO INCORPORATED 1471
switchboard for all incoming telephone calls, make reservations, meet
and register guests, and operate a teletype machine and an NCR post-
ing machine. In addition to these functions,. the night auditor also
brings all accounts or room charges up to date each night and posts
this on the bills prepared for the guests. The disputed employees are
under the direct supervision of either the general manager or assistant
manager. While receiving the same benefits as other employees, they
are salaried rather than hourly paid employees. The desk clerks have
no supervisory authority nor is there any interchange between them
and other employees at the Inn.
The Board has held that front-office or lobby employees are operat-
ing personnel whose work brings them in frequent contact with other
employees in the unit and with the hotel guests. Despite the dif-
ferences in duties, training, and manner of dress from those of other
hotel employees, we find that the front desk clerks, including the
night auditor-desk clerk, are not office clerical or managerial employees
and should properly be included in a unit of operating and main-
tenance hotel employees.12
The record reveals that the assistant manager, the housekeeper, the
head hostess, and the head cook have the right to hire and fire
employees in their departments and can exercise independent judg-
ment in that regard. We therefore find that they are supervisors
within the meaning of the Act and will be excluded from the unit.
Accordingly, we find that the following employees constitute an
appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All hotel maids, hostesses, waitresses, waiters, cooks, dishwashers,
busboys, bartenders, front desk clerks, and the night auditor employed
by Padre Trail Inn, San Diego, California, but excluding all office
.clerical employees, guards, watchmen, and supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
v Southwest Hotels, Ina., 126 NLRB 1151, 1155-1156.
Formco Incorporated and Carpenters Local Union No . 415 (Mill-
men), United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Petitioner. Case No. 9-RC-630. Febru-
ary 14, 1966
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on March 5, 1965, under the
156 NLRB No. 129.