Westchester Apartments, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1939

17 N.L.R.B. 433 (N.L.R.B. 1939)

In the Matter of WESTCHESTER APARTMENTS, INC. and UNITED
BUILDING SERVICE EMPLOYEES, LOCAL 675
Case No. R-1566.-Decided November 8, 1939
Apartment House Operating Industry-Investigation of Representatives: con-
troversy concerning representation of employees : controversy concerning ap-
propriate unit and majority status of petitioner : rival organization-Unit Ap-
propriate for Collective Bargaining : no dispute as to inclusion of elevator
operators , bellmen, doormen , hallmen, receiving-room employees , switchboard
operators , storeroom employees , desk clerks , maids, garagemeu , and dining-
room employees and exclusion of supervisory and office employees ; Union requests
exclusion , and Company inclusion of engineers , firemen , carpenters , painters,
paper hangers , plasterers , cleaning men, gardeners , and playground directors ;
engineers , firemen, carpenters , painters , paper hangers and plasterers excluded,
and cleaning men, gardeners and playground director included-Rcpresenta-
tives: petitioning union claims substantial membership , but offers no docu-
mentary proof and requests election-Election. Ordered : rival organization not
on ballot; contract with Company expired prior to hearing ; no appearance at
hearing ; no evidence of present claim to represent employees.
Mr. Samuel M. Spencer, for the Board.
Mr. James E. Shifflette, of Washington , D. C., for the Company.
Mr.. Jack Zucker, of Washington, D. C., for the United.
Mr. David Findling, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 19, 1939, United Building Service Employees, Local
675, herein called the United, filed with the Regional Director for the
Fifth Region (Baltimore, Maryland) a petition, and on August 31,
1939, an amended petition, alleging that a question affecting com-
merce had arisen concerning the representation of employees of
Westchester Apartments, Inc., Washington, D. C., herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On September 21, 1939, the
National Labor Relations Board, herein called the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2,
17 N. L. R. B., No. 32.
433
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice.
On September 29, 1939, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
United, and Building Service Employees International Union, Local
82, herein called Local 82, described in the petition as a labor organ-
ization claiming to represent employees of the Company directly
affected by the investigation. Pursuant to the notice, a hearing was
held on October 19, 1939, at Washington, D. C., before Earl S. Bell-
man, the Trial Examiner duly designated by the Board. The Board
and the Company, represented by counsel, and the United, represented
by a duly authorized representative, participated in the hearing;
Local 82 did not attend or participate. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. During the course of
the hearing the Trial Examiner made several rulings on motions
and on objections to the admission of evidence. The Board has re-
viewed the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Westchester Apartments, Inc. is a Delaware corporation, licensed
to do business in the District of Columbia, and is engaged in the
business of operating an apartment house containing 555 apartments,
at 4000 Cathedral Avenue, N. W., in Washington, D. C. The Com-
pany, in connection with its operation of the apartment house, also
maintains and operates on the premises .a garage for the storage of
automobiles, and a restaurant. At the time of the hearing it employed
approximately 140 persons.
If. THE ORGANIZATIONS INVOLVED
United Building Service Employees, Local 675, is a labor organiza-
tion affiliated with the Congress of Industrial Organizations. It
admits to its membership all service employees in apartment houses
in the District of Columbia, with the exception of supervisory and
office employees.
Building Service Employees International Union, Local 82, is a
labor organization affiliated with the American Federation of Labor.
The record does not indicate what employees it admits to its
membership.
WESTCHESTER APARTMENTS, INCORPORATED
III. THE QUESTION CONCERNING REPRESENTATION
435
On August 18, 1938, the Company and Local 82 entered into a
written contract which expired by its terms on August 31, 1939, and
in which the Company recognized Local 82 as "sole representative
of all employees covered by this agreement until and to such time as
the National Labor Relations Board by proper action certifies some
other organization."
On or about August 15, 1939, the United, claiming to represent a
majority of the Company's employees in an appropriate bargaining
unit, requested the Company to recognize it as the exclusive repre-
sentative of such employees for the purposes of collective bargaining.
The Company replied that it was not at liberty to do so because of
its contract with Local 821
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce within the District of
Columbia, and tends to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
As we have stated above, the contract between Local 82 and the
Company, which expired on August 31, 1939, provided that Local
82 was recognized as "sole representative of all employees covered by
this agreement." However, the contract does not purport to define
the employees covered by it, and the testimony indicates that there
was no oral understanding upon the point between the parties.
Under the circumstances, reference to the contract is of no assistance
in determining the appropriate bargaining unit.
At the hearing, the Company and the United agreed, and we find
that the elevator operators, doormen, bellmen, hallmen, maids, re-
ceiving-room employees, switchboard operators, desk clerks, store-
room employees, garage employees, and dining-room employees of
1 Local 82 has not attempted to bargain for the Company 's employees since the expiration
of Its contract with the Company and, as has been stated , did not attend or participate
in the hearing herein.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company, excluding supervisory and office employees,' should be
included within the bargaining unit. The Company also requests
.the inclusion, and the United, the exclusion, of the engineers, fire-
men, carpenters, painters, paper hangers, plasterers, four named
cleaning men,3 gardeners, and playground director employed by the
Company.
The engineers, firemen, carpenters, painters, paper hangers, and
plasterers constitute well-defined crafts, and are eligible to member-
ship in other available labor organizations through which they may
exercise their rights under the Act. As has been stated, the United
does not wish to represent them. We shall exclude them from the
unit.
The gardeners, in addition to their gardening duties, clean the
driveways, sidewalks, and entrances, and, during the winter months,
the boiler room, elevator shafts, and other parts of the Company's
buildings. The principal duties of the four named cleaning men 4
are to prepare apartments for painting and decorating, and to clean
the apartments after such painting and decorating is completed.
When they are not required for the afore-mentioned work they are
assigned to do the same work as the Company's hallmen, and the
latter, when necessary, supplement the cleaning men in connection
with the painting and decorating. The duties and interests of the
gardeners and the four named cleaning men do not appear to be
distinguishable from those of the hallmen who, the parties have
agreed, should be included in the unit. The United has offered no
reason for the exclusion of these employees from the unit, and its
objection to their inclusion seems to be inconsistent with the character
of the unit sought by it. We shall include these employees in the
bargaining unit.
The Company maintains a playground for the use of children of
its tenants, and employs a playground director to supervise their
activities. As has been stated, the Company requests the inclusion
and the United requests the exclusion of this playground director
from the unit. During the hearing, however, the United stated that
it had no objection to his inclusion. We shall also include him in
the unit.
2 The parties agreed that the following persons were supervisory and office employees
Thornton , general manager ; Wilmot , assistant manager ; King, assistant manager ; Mrs.
Dixon , secretary to the manager ; Taylor , chief engineer ; Potts , night manager : Masero,
chef ; King, garage manager ; Rowland , head waiter ; Mrs. Matthews and McDonald.
3 The carpenters , painters , paper hangers , plasterers , and four named cleaning men are
classified on the Company 's pay roll as utility men. The cleaning men are Carter , Davis,
Lowry, and McCray.
4 See footnote 3, supra.
WESTCHESTER APARTMENTS, INCORPORATED 437
We find that the elevator. operators, doormen, hallmen, bellman,
maids, receiving-room employees, switchboard operators, desk clerks,
storeroom employees, garage employees, dining-room ' employees,
gardeners, the four named cleaning men,5 and playground director
of the Company, excluding supervisory and office employees,5
engineers, firemen, carpenters, painters, paper hangers, and plasterers
constitute a unit appropriate for the purposes of collective bargaining
and that said unit will insure to employees of the Company the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing, the organizer of the United testified that approx-
imately 66 employees of the Company in the unit claimed to be ap-
propriate had signed membership cards in the United. The United,
however, declined to offer documentary proof of membership, and
requested an election by secret ballot. We find that an election by
secret ballot is necessary to resolve the question concerning representa-
tion, which has arisen, and we shall direct the holding of such an
election.
The United requests that those eligible to vote in such election
should be determined on the basis of the Company's pay roll for the
pay-roll period from September 1 to 15, 1939. The Company states
that it has no preferences in this regard. The record indicates no
reason why eligibility to vote should not be determined on the basis
of the pay roll for the pay-roll period immediately preceding the
date of the Direction of Election herein. We shall, therefore, direct
that all employees in the appropriate unit Whose names appear on the
pay roll of the Company for the pay-roll period immediately pre-
ceding the date of our Direction of Election herein, including em-
ployees who did not work during such pay-roll period because they
were ill or on vacation and employees who were them or have since
been temporarily laid off, and excluding those who have since quit or
been discharged for cause, shall be eligible to vote.
As we have stated,, Local 82 has not attempted to bargain for any
of the Company's employees since the expiration of its contract on
August 31, 1939, and did not attend or participate in the hearing.
None of the evidence adduced at the hearing indicates that Local 82
at present represents any of the employees of the Company in the unit
See footnote 3, supra.
e See footnote 2, supra.
7 See footnote 1, supra.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which we have found to be appropriate . Accordingly , we shall not
direct that its name be placed upon the ballot.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the
representation of employees of Westchester Apartments Inc., Wash-
ington , D. C., within the meaning of Section 9 (c) and Section 2 (6)
and (7 ) of the National Labor Relations Act.
2. We find that the elevator operators , doormen, hallmen, bell-
men, maids, receiving -room employees , switchboard operators, desk
clerks, storeroom employees , garage employees , dining-room em-
ployees, gardeners , the four named cleaning men,8 and playground
director of the Company , excluding supervisory and office employees,9
engineers , firemen, carpenters, painters , paper hangers and plasterers
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 ( b) of the National Labor
Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as a part of the investigation authorized by the
Board to ascertain representatives for collective bargaining with
Westchester Apartments, Inc., Washington, D. C., an election by
secret ballot shall be conducted as early as possible but not later than
thirty ( 30) days from the date of this Direction , under the direction
and supervision of the Regional Director for the Fifth Region, acting'
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations,
among the elevator operators , doormen, hallmen , bellman, maids,
receiving -room employees , switchboard operators , desk clerks , store-
room employees , garage employees , dining-room employees , gardeners,
the four named cleaning men,"' and playground director of the
Company, whose names appear on the Company's pay roll for the
pay-roll period immediately preceding the date of this Direction,
including employees who did not work during such pay-roll period
B See footnote 3, supra.
° See footnote 2, supra.
10 See footnote 3, supra.
WESTCHESTER APARTMENTS, INCORPORATED 439
because they were ill or on vacation, and employees who were then
or have since been temporarily laid off, and excluding supervisory and
office employees," engineers, firemen, carpenters, painters, paper
hangers, and plasterers, and employees who have since quit or been
discharged for cause, to determine whether or not they desire to be
represented by United Building Service Employees, Local 675,
affiliated with the Congress of Industrial Organizations, for the
purposes of collective bargaining.
n See footnote 2, supra.
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