Penn-Keystone Realty Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1971

191 N.L.R.B. 800 (N.L.R.B. 1971)

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Penn-Keystone Realty Corp . and Dorothy P.
McKeever , Petitioner. Case 2-RC-15457
June 30, 1971
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held at New York, New York, before Raymond P.
Green, Hearing Officer of the National Labor Relations
Board. Following the hearing and pursuant to Section
102.67 of the Board's Rules and Regulations and State-
ments of Procedure, Series 8, as amended, the Regional
Director for Region 2 transferred this case to the Board
for decision. The Employer and the Intervenor, Sta-
tionary Engineers, Firemen, Maintenance and Building
Service Union, Local 670, AFL-CIO,' filed briefs.
The Board has reviewed the Hearing Officers' rulings
made at the hearing and finds that they are free from
prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs filed herein, the Board finds:
1. The Employer2 operates the Keystone, a hotel
which is one of three hotels in New York City origi-
nally built and operated by Darius Mills, a banker and
philanthropist, to provide nominal cost lodging for
men. The Keystone was completed in 1907, and is the
only one of the three hotels presently operating. The
Employer bought the hotel in 1956 and gave it its
present name.
The Keystone has 16 floors, 13 of which contain
approximately 1,893 available rooms. All of the rooms
are small and are furnished with a single bed, chair, and
a locker. Bathroom and shower facilities are located in
the center of each floor. Coin-operated vending ma-
chines and lockers are available, but there is no room
service and no food and liquor facilities. The average
daily occupancy is between 500 and 600 rooms.
Guests are not required to fill out a registration card
when they apply for a room, but they must give their
names to a cashier who enters the names on a sheet of
paper. The cashier registers the date of payment, the
room number, and the number of nights the room is to
be rented, before the guest is given a receipt and a key.
All rooms must be paid for in cash, and there is no
billing, or honoring of credit cards. Room rents have
been raised from 25 cents to approximately $3 per day.
Some guests pay for their rooms on a daily basis even
though they have remained at the Keystone for a num-
ber of years. Rooms which are paid for by the day
' Stationary Engineers , Firemen, Maintenance and Building Service
Union, Local'670, AFL-CIO, herein called Intervenor, was permitted to
intervene on the basis of its current contractual interest in the employees
involved herein
1 The name of the Employer appears as amended at the hearing.
receive a complete change of linen daily, whereas
rooms which are paid for by the week or longer receive
a change of linen once a week. Some of the Keystone's
guests are referrals from the Department of Welfare.
During 1970, the Employer grossed revenues in the
approximate amount of $500,000. During this same
period, the Employer purchased fuel oil valued in ex-
cess of $12,000 which, although purchased locally,
originated from outside the State. Also, during the
same period, the Employer did an undetermined
amount of business with Manhattan Laundry in Jersey
City, New Jersey.
The Employer and the Intervenor move to dismiss
the petition and urge the Board to decline to assert
jurisdiction over the Keystone because, they contend,
it is a residential hotel, and no trades people, salesmen,
business people, or anyone engaged in industry or com-
merce ever did or does stay at the Keystone, and the
Board excluded permanent or residential hotels when
it announced in Floridan Hotel' those standards that it
would apply in asserting jurisdiction over the hotel and
motel industry. In Floridan Hotel, the Board reversed
its policy of not asserting jurisdiction over the hotel
industry as a direct consequence of the Supreme
Court's decision in Hotel Employees' wherein the
Court held that the Board could not decline to assert
jurisdiction over all hotel employees as a class. How-
ever, the Board concluded that it was not required to
assert jurisdiction in all such cases, and it announced
that it would limit its assertion of jurisdiction to those
cases involving hotel and motel enterprises, exclusive of
permanent or residential hotels and motels, which re-
ceive at least $500,000 in gross revenues per annum.
And for purposes of application of this standard, the
Board stated that a permanent or residential hotel or
motel is one as to which 75 percent of its guests may
be regarded as permanent guests; that is, they remain
for a month or more.'
In support of their contention that the Keystone is
a residential hotel, and not a transient hotel, the Em-
ployer and the Intervenor assert that in excess of 75
percent of the Keystone's guests have resided in the
hotel in excess of 1 month, that many of its guests have
resided at the Keystone for many years, and that for the
most of the guests it is their voting resident, their mail-
ing address, and the only home many of them know.
Further, they contend that it is purely a permanent
residential hotel, a place of domicile and abode for
' Floridan Hotel of Tampa, Inc., 124 NLRB 261
4 Hotel Employees, Local No. 225 [Miami Beach Hotel Assn.] v Leedom,
358 U S 99
5 See also Spink Arms Hotel Corporation, 133 NLRB 1694, where the
Board clarified its Floridan Hotel standard by announcing that if in an
annual period a hotel or motel rents 75 percent or more of its rental units
to guests who remain for a month or receives 75 percent or more of its rental
income from such guests, it is a permanent or residential hotel or motel over
which the Board will not assert jurisdiction
191 NLRB No. 105
PENN-KEYSTONE REALTY CORP. 801
people who are without families, many are advanced in
years and retired from employment and of limited in-
come, and that some of its residents receive assistance
from the welfare authorities.
The record clearly indicates that more than 75 per-
cent of the Keystone's guests have resided in the hotel
in excess of 1 month, and that for many of the guests
it is the only home they have known for many years.
Moreover, although the Keystone's records as pre-
sented at the hearing are somewhat haphazard and
inconclusive, such records, in addition to the oral tes-
timony of the Employer's witnesses, support a finding
that more than 80 percent of the Keystone's guests pay
for their rooms by the day rather than by the week and
do not retain the same room, they do so for a variety
of reasons, including the fact that the sheets are
changed daily in rooms which are rented by the day.
Although the Employer and the Intervenor have pre-
sented evidence which would appear to support their
contention that the Keystone is a residential hotel and
not a transient hotel, we find that such distinction is no
longer controlling in view of our decision in Parkview
Gardens 6 wherein we established an appropriate juris-
dictional standard for the residential apartment indus-
try, and announced that we would assert jurisdiction
over apartment housing projects which receive at least
$500,000 in gross revenues per annum. In addition, we
noted that it was desirable to have a fixed dollar stan-
dard of general applicability to the industry, rather
than to determine the impact on commerce on some
other basis.
Since we no longer decline to assert jurisdiction over
residential apartment buildings, we deem it unneces-
sary to continue to distinguish between residential and
transient hotels and motels and find that there is no
longer any reason to follow the distinctions set forth in
our holding in Floridan Hotel.' Thus, as the Keystone
operation receives gross revenues in the approximate
amount of $500,000, we find that it meets the $500,000
standard for hotels and motels as set forth in Floridan
Hotel, as well as the $500,000 standard for the assertion
of jurisdiction over residential apartment buildings, as
set forth in Parkview Gardens. Accordingly, we find
that, in these circumstances, the Employer is engaged
in commerce as defined in Section 2(6) of the Act, and
that it will effectuate the policies of the Act to assert
jurisdiction herein. We therefore deny the Employer's
and the Intervenor's motions to dismiss the petition.
2. The Petitioner and the Intervenor' claim to repre-
sent certain employees of the Employer.
6 Karl Gerber, Max Taetle, Nathan Metz & Estate of Bernard Katz, Co-
Partners d/b/a Parkview Gardens, 166 NLRB 697.
7 Floridan Hotel, supra, and succeeding cases relying thereon are hereby
overruled to the extent they are inconsistent with our decision herein
6 The parties stipulated that the Stationary Engineers, Firemen, Mainte-
nance and Building Service Union, Local 670, AFL-CIO, is a labor organi-
The Intervenor asserts that the Petitioner is "front-
ing" for another labor organization, Local 144, New
York Hotel and Motel Trades Council, herein called
Local 144, in order to circumvent a "No-Raiding"
agreement, and hence Petitioner does not have the
status of a petitioner as encompassed by the Act, which
requires that a petitioner seek representative status for
the purpose of collective bargaining.'
We find without merit the contention of the Inter-
venor that the petition should be dismissed because of
the "No-Raiding" provision of the constitution of the
AFL-CIO. The Board has clearly indicated that the
obligations, if found to exist, of a "No-Raiding" con-
vention are insufficient ground under Board policy for
a dismissal of a representation proceeding. North
American Aviation, Inc., 115 NLRB 1090. In any
event, the record does not support the Intervenor's
contention that the Petitioner is fronting for another
labor organization, Local 144. The Petitioner, Dorothy
McKeever, an individual, filed the instant petition and
participated in the hearing, whereas there is no evi-
dence that Local 144 participated in the hearing or that
it was the real party in interest in this proceeding. The
Petitioner indicated its intention at the hearing to
represent the Employer's employees for purposes of
wages, hours, and working conditions. It is Petitioner's
willingness itself to function as a bargaining agent
which is the controlling factor in these circumstances.
The applicable provision of the Act, Section 2(4), states
that "The term `representatives' includes any in-
dividual or labor organization." In addition, Section
9(c) of the Act permits not only labor organizations but
also, among others, any individual, acting in behalf of
employees, to file a petition for certification as bargain-
ing representative. Petitioner's name, not Local 144,
will appear on the ballot to be used in the election, and
if the Petitioner wins, she alone will be certified and the
Employer will have the right to refuse to recognize any
other labor organization claiming to represent its em-
ployees in the unit for which the Petitioner is certified."
Accordingly, upon the basis of the above facts, we find
that the Petitioner is a representative within the mean-
ing of Section 2(4) of the Act.
zation within the meaning of Section 2(5) of the Act
' On June 4, 1970, the Petitioner filed a union-security deauthorization
petition in Case 2-UD-192. A hearing was held on July 14, 1970 Local 144
filed an RC petition, Case 2-RC-15443, but withdrew its petition on Sep-
tember 11, 1970. The Petitioner filed the instant petition, Case 2-RC-
15457, on September 4, 1970. The Petitioner subsequently withdrew the
UD petition. The parties stipulated that the transcript in the UD proceeding
be made a part of the proceeding herein.
11 In these circumstances, we find the Hearing Officer properly denied the
Intervenor's request to permit it the right to go into the representative status
of the Petitioner, Dorothy P. McKeever, as to whether she in fact was a
representative for collective bargaining, or I whether she was fronting for
Local 144 or merely seeking to oust the Intervenor.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Petitioner filed the instant petition on Septem-
ber 4, 1970, wherein it seeks to represent all employees,
excluding supervisors and executives within the mean-
ing of the Act, at the Employer 's Keystone hotel. The
unit sought is similar to that which the Intervenor
represents as a result of proceedings before the New
York State Labor Relations Board ," which unit is pres-
ently covered by its collective -bargaining agreement
with the Employer.
The Employer contends that its current contract
with the Intervenor, effective from November 5, 1967,
until November 5, 1973 , should be a bar to the instant
petition which was filed on September 4, 1970 . 11 Fur-
ther, the Employer contends that it has had contracts
with the Intervenor since 1956 , and that while the con-
tracts were for periods of 3 to 5 years , they were in
essence 1 -year contracts in view of the wage renegotia-
tion each year , with the exception of the period from
November 1, 1969, to November 1, 1971 , when the
contract covers a 2-year period . Finally, the Employer
contends that the instant petition was instituted during
the effective period of the 2-year contract from Novem-
ber 1, 1969 , to November 1, 1971 . We find no merit in
these contentions.
The Board in Leonard Wholesale Meats, Inc., 136
NLRB 1000 , announced that although it was modify-
ing the rule established in the Deluxe Metal case" by
changing the open date for the filing of petitions from
150 to 90 days before the termination of a subsisting
contract, such change did not in any way modify the
length of the 60-day insulated period established in
Deluxe Metal. In a later decision , General Cable Corpo-
ration . 14 the Board extended its basic 2-year contract-
bar rule to 3 years and stated that "Contracts of definite
duration for terms , up to 3 years will bar an election for
their entire period; contracts having longer fixed terms
will be treated for bar purposes as 3-year agreements
and will preclude an election for only their initial 3
years." And' in another decision, the Board refused an
employer 's request to extend the 3 -year contract-bar
rule to 5 years and stated its intention to adhere to the
3-year rule established in General Cable.11
Since the petition herein was filed 61 days before the
third anniversary date of the Employer -Intervenor con-
tract , we find that the petition is timely.
As to the Employer's contention that the wage re-
opening and renegotiation provisions convert the exist-
ing 6-year agreement , November 5, 1967 , to November
5, 1973 , into 1-year contracts , with the exception of the
11 The Intervenor represents a unit of all service and operating and
maintenance employees, but excluding office employees and supervisors.
" The Intervenor does not contend that the current contract is a bar
" Deluxe Metal Furniture Company, 121 NLRB 995.
" 139 NLRB 1123
" General Dynamics Corporation, Pomona Division, 175 NLRB No.
154
period from November 1, 1969, to November 1, 1971,
when the contract purportedly covers a 2-year period,
and that the instant petition was instituted during the
effective period of such 2-year contract , we find no
merit in this contention . The Board in Deluxe Metal16
held that a midterm modification provision , regardless
of its scope, will not remove a contract as a bar unless
the parties actually terminate the contract , except
where a notice is given immediately prior to the auto-
matic renewal date of such a contract ." Clearly, there
was no termination of the contract herein , and there is
no issue that a notice was given immediately prior to
the automatic renewal date . Thus, the current agree-
ment is a 6-year contract which for bar purposes must
be treated as if it were only one for an initial fixed term
of 3 years . As the petition was timely filed on Septem-
ber 4 , 1970, 61 days before the termination date of the
first 3-year period of the contract , we find that the
contract is not a bar to an election.
Accordingly , in view of the foregoing conclusions,
we find that a question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Sections 9(c)(l) and 2(6)
and (7) of the Act.
4. The Petitioner seeks certification as representative
of a unit composed of all employees at the Employer's
Keystone hotel, including office employees , and a chief
engineer . The Employer and the Intervenor contend
that the appropriate unit should exclude the office em-
ployees and the chief engineer ." We find, in agreement
with the Petitioner , that an overall unit may also be
appropriate here.
Except for the inclusion of office employees , the unit
sought is similar to that which the Intervenor repre-
sents as a result of proceedings before the New York
State Labor Relations Board . Since 1956 the Intervenor
has been recognized as the bargaining agent for all of
the Keystone 's service , operating , and maintenance
employees , but excluding all office employees. The
most recent agreement covering these employees is
effective from November 5, 1967 , until November 5,
1973. There are approximately 39 employees in the unit
currently represented by the Intervenor.
16 Supra.
1' See J N Ellison and H. R. Ellison d/b/a Ellison Brothers Oyster
Company, 124 NLRB 1225, where a contract provision providing for mid-
term modification of the contract with regard to wages only did not remove
the contract as a bar.
1. The parties stipulated that the following employees, presently repre-
sented by the Intervenor , should be included in the unit . forelady , chamber-
maids, bedmakers-porters, linen room employees , elevator operator , watch-
man-fire-alarm clock, stair and outside porter and garbageman. Although
the handyman was not included in the stipulation, there is a handyman
classification in the Intervenor 's contract with the Employer.
PENN-KEYSTONE REALTY CORP. 803
The Board in Holiday Inn'9 overruled its prior hold-
ing in Arlington Hotel20 that all hotel-motel operating
personnel have such a high degree of functional inte-
gration and mutality of interests that they should be
grouped together for unit purposes, and announced
that it would consider each case on the facts peculiar
to it in order to determine the true community of inter-
est among particular employees since the degree of
integration varied considerably at each hotel or motel.
In a later decision, Regency Hyatt House," the Board
held that a unit of the hotel's manual operating person-
nel was appropriate, notwithstanding the exclusion of
clerical employees. The Board stated that while its new
decisional approach to hotel unit questions, i.e., apply-
ing general unit criteria, did not dispense with its policy
of treating clerical employees as "operating personnel,"
it did, however, treat that as just one of many factors
which the Board will consider in making hotel unit
findings. Additionally, it was stated that, in view of the
differences in the nature of their respective duties and
conditions of employment, the manual operating em-
ployees sought were the employer's "blue collar" force
and that the clerical personnel constituted its "white
collar" force. The Board concluded by noting its desire
to remain consistent with its policy in the analogous
area of apartment house units, where it has granted
separate units of "blue collar" employees.22
While the Board held in Holiday Inn that, although
hotel and motel employees have a basic mutuality of
interest, neither their functions nor their mutual inter-
ests are in all cases integrated to such a high degree that
an overall unit should be found the only appropriate
unit and, in Regency Hyatt House, that a unit of
manual operating personnel was appropriate, such
determinations do not compel a finding that clerical
employees are precluded in all instances from inclusion
in a unit of operating personnel.
The record supports a finding that the clerical em-
ployees herein have a sufficient community of interest
with the previously represented service operating and
maintenance employees to warrant their inclusion in
the unit. We note that the clerical employees have the
same supervision as the service operating and mainte-
nance employees, they have comparable benefits, they
work the same amount of days each week, they get the
same opportunity to work overtime, and they get the
same amount of vacation time each year. On the basis
of the foregoing, we find that the clerical employees
have a sufficient community of interest to warrant their
inclusion in the unit.
" John Hammonds & Roy Winegardner d/b/a 77 Operating Company,
d/b/a Holiday Inn Restaurant, 160 NLRB 927
20 Arlington Hotel Company, Inc., 126 NLRB 400.
" 171 NLRB No 172.
' Shannon & Luchs, etc, T/A Capitol Park Apartments, 162 NLRB
1381
The parties disagree as to the unit placement of the
following categories , all of whom the Petitioner would
include but the Employer and the Intervenor would
exclude.
Cashiers, relief cashiers, and mail clerks. The Peti-
tioner would include them , while the Employer and the
Intervenor would exclude them , as supervisors. The
Employer and the Intervenor contend that these in-
dividuals are responsible for the operation of the Key-
stone in the absence of superiors , and that they direct
and assign porters, elevator operators , guards, and
watchmen . However, the record indicates , and we find,
contrary to the contention of the Employer and the
Intervenor, that the direction of other employees by the
aforementioned office employees is essentially of a rou-
tine nature and does not require the use of independent
judgment within the meaning of Section 2 ( 11) of the
Act. We find also that the record does not establish that
these office employees have been given authority to
hire, discharge, or discipline employees, or effectively
to recommend any supervisory action . Accordingly, we
find that these office employees are not supervisors.
Chief engineer:. The Petitioner would include, while
the Employer and the Intervenor would exclude him
because he is a supervisor . The Employer contends that
the chief engineer supervises a handyman who assists
him in performing maintenance work. We find, con-
trary to the contention of the Employer and the Inter-
venor, that the chief engineer possesses none of the
indicia of supervisory authority set forth in the Act. It
appears that the direction he gives to the handyman is
routine and no more than that which might be expected
of a more experienced employee. We therefore include
him in the unit.
In the light of all the above circumstances , and since
the Board has in the past included employees in like
categories in overall units, we conclude that the cash-
iers, relief cashiers , and mail clerks may properly be
included in the same unit with the previously repre-
sented service, operating, and maintenance employees.
However, as the Intervenor does not seek to add them
to existing unit but does desire to limit the election to
the existing unit, we shall not make a final unit deter-
mination at this time . Rather, we shall conduct an
election among the employees in the existing unit to
ascertain whether they desire to continue to be repre-
sented by the Intervenor.
We shall therefore direct separate elections in the
two voting groups of employees at the Employer's Key-
stone hotel in New York, New York, as described be-
low, excluding from each voting group guards, confi-
dential employees , professional employees , officers of
the corporation ," and supervisors , as defined in the
1' The parties stipulated that Isaac Landau, who is an assistant manager
at the Keystone and an officer of the corporation, should be excluded from
(Cont)
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act:
Group (1)-All employees including chamber-
maids, forelady, bedmakers-porters, linen room
employees, elevator operator, watchmen-fire-
alarm clock, stair and outside porter, garbageman,
handyman, and chief engineer, but excluding the
employees in voting group (2).
Group (2)-All office employees including cash-
iers, relief cashiers, and mail clerks.
In the event a majority of voting group (1) selects the
Intervenor, we find that to be an appropriate unit. In
these circumstances, if a majority of voting group (2)
selects the Petitioner, we find that group is also a sepa-
rate appropriate unit.
If a majority of the employees in the existing unit do
not vote for the Intervenor, then we shall include the
employees in the two voting groups in a single overall
unit, which, under the circumstances, we find to be
appropriate, and we shall pool their votes.24 The Re-
gional Director is instructed to issue a certification or
certifications as described, depending on the results of
the elections.
[Direction of Elections25 omitted from publication.]
the unit Although the parties did not similarly stipulate as to Salvadore
Ruiz, the manager , we find that he is a supervisor.
" If the votes are pooled, they are to be tallied in the following manner
The votes for the Intervenor shall be counted as valid votes, but neither for
nor against the Petitioner which is seeking the more comprehensive unit All
other votes are to be accorded their face value, whether for representation
by the Petitioner or for no union In the event that the results show that a
majority of the valid ballots have not been cast either for the Petitioner or
against representation , it will be deemed to be an inconclusive election, and
a second election will be conducted among the employees in the broader
unit in which they will vote as to whether or not they desire to be repre-
sented by the Petitioner.
" 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 ad-
dresses which may be used to communicate with them Excelsior Underwear
Inc., 156 NLRB 1236 ; N.L.R.B. v. Wyman-Gordon Co, 394 US. 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 and Direction of Elections 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 extraordi-
nary circumstances Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are filed