The Westchester Corp.

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD makes it difficult, if not impossible, to rectify the situation which calls for redress or to effectuate the congressional mandate in Section 10(c) of the Act which requires that the remedy should expunge the effects of these illegal activities and return the parties to the status quo ante the unfair labor practices. Hence, an effective remedy can neither be fashioned to meet the situation which calls for redress nor a deter- minative order issued which will effectuate the policies of the Act or eradicate and dissipate the resultant effects of the particular conduct revealed by this record.58 CONCLUSIONS OF LAW 1. The business operations of Respondent constitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2(6) and (7) of the Act. 2. New Jersey Guards Union and Independent Guards Union are labor organiza- tions within the meaning of Section 2(5) of the Act.59 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By forming, assisting, and interfering with the administration of the Inde- pendent Guards Union, and by recognizing and entering into a contract which pro- vides for a union-security clause and a dues-checkoff provision and by according continuing effect to its contract with said IGU, Respondent has engaged in and is engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. [Recommendations omitted from publication.] 51 See L'ichaleap Corporation V. N L It B., 206 F. 2d 799, 804-806 (C.A 3). 51 N L.I?.B v Standard Coil Products Co , Inc., 224 F. 2d 465, 467-469 (C A. 1), cert. denied 350 U S 902 The Westchester Corporation i and International Union of Oper- ating Engineers, Local 99-99A-99C, AFL-CIO, Petitioner. Case No. 5-RC-2737. July 20, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert W. Knadler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer moved to dismiss the petition upon the ground that it is not subject to the Board's jurisdiction, because it is not en- gaged in trade, traffic, or commerce. The Employer is a nonprofit membership cooperative corporation organized under the laws of Delaware. It is engaged in the District of Columbia in furnishing maintenance and other general services to its apartment owner- members at cost.2 1 The name of the Employer appears as corrected at the hearing 2 The Employer and the Westchester Management Corporation have entered into a contract under which the latter , for a fee, has agreed to act as the Employer's agent in 124 NLRB No. 21. THE WESTCHESTER CORPORATION 195 On January 1, 1954, the Realest Corporation, which owned 4 ad- jacent apartment buildings in Washington, D.C., deeded to the Employer its apartment properties comprising 560 apartments, the lobbies, elevator shafts, corridors leading to the apartments, and por- tions of the basement which contained heating facilities. It retained title to three basement garages, a basement commercial area in the center and main building, as well as a dining room, cocktail lounge, barber, and beauty shop. In addition, Realest owns 51 of the 560 apartments as an owner-member of the Employer, and leases these apartments on a short-term basis. Prior to taking title to the 560 apartments, the Employer executed contracts of sale for all of the apartments with the prospective owner-members, which became effec- tive upon passage of title to the Employer on January 4, 1954. The Employer retained ownership of the lobbies, elevator shafts, the heating area of the basement area, and the corridors leading to the 560 apartments it had conveyed to its owner-members. The Employer employs a general manager, a building superintend- ent, a service superintendent, and 65 employees of various classifica- tions for the operation of the 4 buildings. It pays local real estate taxes, deducts social security, and withholds income taxes from the salaries of its employees, and carries employer liability insurance. Each apartment owner is billed monthly for his aliquot share of maintenance and other general costs, as determined by the proportion- ate value of his apartment to the value of all the apartments. All of the apartments were conveyed by the Employer to its owner- members, including Realest, under perpetual use and equity contracts. All members, except Realest, are required to use their apartments only as private residences. Leasing or sale of an apartment can be effected only with the written consent of the Employer. In addition, the Em- ployer does not permit its members to maintain other residences in the District of Columbia or its suburbs. Members are permitted to lease their apartments by application to the Employer's board of direc- tors, upon showing that their jobs require them to leave the District, or that they are taking an extended vacation. Such leases are ap- proved for periods up to 1 year, while the owner-member remains liable for his share of maintenance and general expenses. The Employer contends that this case is distinguishable from Rut- land Court Owners, Inc.,' where the Board took jurisdiction over a cooperative stock corporation engaged in the operation of an apart- ment house in the District of Columbia. In Rutland, the Board found the collection of maintenance charges and in the general operation of the apartments and their appurtenances. The management firm is wholly owned by the Realest Corpo- ration. The management contract provides that the management firm shall hire, dis- charge, and supervise employees, but that the employees are to be considered as solely in the employ of the Employer. 3 44 NLRB 587, 590. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that most of the 90 apartments were not occupied by their owners but were rented out for investment and profit. Thus, the Employer con- tends that its situation is distinguishable from that in Rutland be- cause its activities are not for profit and do not assist its owner- members in making a profit. However, it is well settled that the com- mercial nature of an activity does not depend upon whether it seeks a profit therefrom, or makes no distribution of its profits to its owner- members 4 In the instant case, the Employer contracts with a profit- making firm for management of its properties, purchases fuel oil and other supplies from commercial suppliers, and renders services to Realest, an owner-member engaged in a profit making venture-the leasing of its 51 apartments. These transactions are no less commercial in character because the Employer seeks no profit. In these circumstances, we find the asserted variance from Rutland insufficient to require a different result. Accordingly, we find that the Employer is engaged in commerce as defined by Section 2(6) of the Act, and as the Board has plenary jurisdiction over enterprises en- gaged in trade, traffic, or commerce within the District of Columbia, we find that it will effectuate the policies of the Act to assert jurisdic- tion herein.5 The Employer's motion to dismiss the petition is denied. 2. The Petitioner 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 Section 9 (c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of the Employer's engi- neers, firemen, and maintenance men. The Employer contends that the only unit which would be appropriate would include the Employ- er's plasterers, carpenters, painters, handymen, housemen, and gar- deners, in addition to the classifications sought by the Petitioner. The Employer's boilerroom crew consists of five licensed engineers and three firemen. The engineers are on duty around the clock, three on regular shifts, and two as reliefmen. In addition to their primary responsibility of maintaining and operating the Employer's boiler and heating facilities, the engineers perform general maintenance throughout the buildings on plumbing, electrical facilities, and the heating system. The firemen work exclusively in the boilerroom. Two of the firemen work regular 12-hour shifts and the remaining 4 Polish National Alliance of the United States of North America v. N.L.R.B., 322 U.S. 643; The Central Dispensary and Emergency Hospital, 44 NLRB 533, 539; 50 NLRB 393, enfd. 145 F. 2d 852 (C.A., D.C.). The Trustees of Columbia University, 97 NLRB 424, Philadelphia Orchestra Association, 97 NLRB 1548, and other similar cases relied on by the Employer are readily distinguishable. There, the Board although find- ing that the employers were engaged in commerce, declined to assert jurisdiction over their noncommercial activities because they support the cultural, educational, and religious values of the community. The Employer here is not, of course, engaged in activities of such it nature. 6 Press Release R-576, October 2, 1958; M. S. Ginn & Company, 114 NLRB 112. THE WESTCHESTER CORPORATION 197 fireman works a relief shift. None of these employees is licensed. However, their duties include boiler control and maintenance of proper water levels. Both the engineers and the firemen are super- vised by the building superintendent. The two maintenance employees sought by the Petitioner perform minor repairs to plumbing and electrical fixtures. About 95 percent of their time is spent in making repairs in individual apartments, and the remainder in assisting the engineers in the repair of heating equip- ment. They too are supervised by the building superintendent. De- spite common supervision and the occasional assistance they render to the engineers, it does not appear that the maintenance men possess interests, or exercise skills, sufficiently related to those of the engineers and firemen to warrant their inclusion in a unit of boilerroom em- ployees.6 We find, however, that the firemen and engineers consti- tute a unit such as the Board has generally accorded separate repre- sentation as a unit appropriate for collective-bargaining purposes 7 The Employer contends that all the engineers perform guard duties and thus can neither be represented by the Petitioner, a labor organi- zation which admits nonguards to membership, nor be included in a unit with other nonguard employees. It appears that of the five engi- neers, only one, John Mullis, employed on the night shift from 11 p.m. to 7 a.m. regularly performs guard duties. A second relief engineer, John Duncan, regularly performs these duties one night per week, when Mullis is off duty. In addition to their primary functions in connection with the boilerroom and the heating facilities, these em- ployees are required to make 2 rounds of the 12 clock stations located in the Employer's buildings during their working hours. They are instructed to check lobbies, basements, the parking area, and the corri- dors for strangers, and to report trespassers to the police. They also watch for fire and other hazards. When not making their rounds they are stationed in the main lobby at a telephone-equipped desk. Occupants have been advised to call this desk in the event of fire or if they observe suspicious persons in the buildings. Inasmuch as these two employees regularly perform watch duties during some of their working hours, we find that Mullis and Duncan are guards within the meaning of the Act and exclude them from the unit.,, The three remaining engineers, however, perform such duties infrequently and irregularly. We find that they are not guards.' We find that all engineers and firemen employed at the Employer's Washington, D.C., apartment buildings, excluding office clerical em- ployees, maintenance employees, all other employees, guards, and Schaffner Brothers Company, 102 NLRB 1010. a Ibid. 8The Vellumoid Company , 118 NLRB 1431. 'Barrett Division, Allied Chemical f Dye Corporation, 116 NLRB 1649, footnote 5 ; Gen Pro, Inc., 17.0 NLRB 12. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] Inland Steel Products Company and Technical Engineers As- sociation (Independent), Petitioner. Case No. 13-RC-6398. July 21, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Kenneth L. Keith, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner and the Employer stipulated that the following unit is appropriate for the purposes of collective bargaining : All technical employees at the Employer's Milwaukee, Wisconsin, plant, including checkers A and B, draftsmen detailer B, draftsmen detailer jr., estimator sr., product application draftsmen A, B, C, D, and E, product analyst, time-study man jr., time-study man sr., plant layout technician, product development draftsmen jr., group leader estimator, and product development draftsmen sr., but excluding office clerical employees, production and maintenance employees, guards, professional employees, and supervisors as defined in the Act. The Employer contends, however, that certain additional employees alleged to be technical should be included in the unit. The Petitioner opposes the inclusion of these employees on various grounds, as dis- cussed below. The tabulating machine operators sr., comprising seven employees, spend approximately 50 percent of their time wiring IBM panel boards for standard assignments and special projects. These assign- 124 NLRB No. 23.