Trade Winds Motor Hotel & Restaurant

TRADE WINDS MOTOR HOTEL & RESTAURANT 567 Trade Winds Motor Hotel & Restaurant and Building Service Employees' International Union, Local No. 245, AFL-CIO, Petitioner. Case No. 16-RC-3196. January 9, 1963 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 Charles H. Steere, 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 McCulloch and Members Rodgers and Fam'ine]. 1. The Employer is an operation owned by one Robert Mitchell, A, ho built it in 1958 or 1959. It does business under the name of "'1"ie Trade Winds Motor Hotel and Restaurant." In fact Mitchell operates only the motel portion and leases to one Don Fuiiston the restaurant and a banquet hall. Funston pays, as rent to Mitchell, 5 percent of his gross revenues from the restaurant operation and 25 percent of his gross revenues from the banquet hall operation. Under the terms of the lease, Funston may not place any signs upon the building or premises except signs which contain the words "Trade Winds" with- out the prior written consent of the lessor. Both operations share the same parking facilities. In 1961 the gross dollar volume of revenue received by Mitchell from the rental of motel rooms amounted to $461,013 and from the rental of the leased space to Funston amounted to another $32,575. The parties also stipulated that Mitchell received another $2,515.67 from miscellaneous sources (postcards and travelers checks). Mitchell testified that in any given year he makes purchases in the amount of $500 to $600 directly from out of State and also does business with American Express and Carte Blanche to the extent of 10 to 15 percent of his gross volume of business (which would amount to $45,000 to $68,000 in 1961). As part of his business he makes reservations for his guests anywhere in the United States. Funston's operations received a gross volume of revenue somewhere in the $450,000 to $500,000 range in 1961.1 The total annual revenue of the enterprises is therefore well over $500,000, about half of which goes to Mitchell and the other half to Funston. ' Although no direct testimony was given as to Funston's receipts , the record reveals the following facts • Funston paid $4,623 to Mitchell as repayment of a loan and this amounted to 1 percent of his gross revenues from the restaurant , his rental for the restaurant would appear to be approximately $23,000 ( 5 percent of $460,000) leaving some $9,000 of rental payments from the gross revenues for the banquet hall ( 25 percent of which would be $9,000, or $36,000 of gross revenues from the banquet ball). 140 NLRB No. 60. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing, we find that the operations of the Employer affect commerce within the meaning of the Act .2 We find further, though Mitchell's gross volume of revenues received in 1961 fell short of the Board's standard for the hotel industry,' that, under the circumstances of this case, it will effectuate the policies of the Act for the Board to assert jurisdiction herein. The enterprise in this case, albeit separately operated by Mitchell and Funston, is held out to the public as one single integrated enterprise, i.e., Trade Winds Motor Hotel and Restaurant, the name under which Mitchell admittedly does business and which the restaurant may not change without Mitchell's permission. The operations occupy a common situs, share the same parking facilities, serve essentially the same class of custom- ers, and supplement each other. In view of these factors, we find that the impact exerted upon commerce of a labor dispute at the Em- ployer's operation is certainly equal to, if not appreciably greater than, that exerted by the normal motel operation with gross revenues of $500,000, over which we are required to assert jurisdiction.' Ac- cordingly, we shall assert jurisdiction over the Employer's operations. In exercising jurisdiction herein, we are not departing from our pol- icy, applied in normal cases, to utilize the jurisdictional standards as the dividing line between assertion and nonassertion without regard to the closeness of the actual amount to the minimum set by the standard in question.' We are merely finding in an unusual case that it is not "subversive" of the standards to assert jurisdiction where there is a substantial effect upon commerce notwithstanding the fact that Mitchell's revenues separately fall below the standards in monetary values 2. The labor organizations' involved claim 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 Section2(6) and (7) of the Act. 4. We find, in accordance with the stipulation of the parties, the following unit constitutes a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act : 2 Floridan Hotel of Tampa, Inc , 124 NLRB 261 $ Ibid. AIbid., Labor Management Relations Act of 1947, as amended , Section 14 (c) (1). 6 See, for example , Charles and Henry Berterman d/b/a Western Machine & Tool Com- pany, 115 NLRB 978 6Cf. NLRB. v. W B. Jones Lumber Company, Inc , 245 F 2d 388 (CA 9) 7 Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, Local No. 135, was permitted to intervene in the proceedings . On December 21, 1962, the Inter- venor filed a motion requesting the Board to reopen the record and remand the proceed- ings to the Regional Director for the taking of additional evidence on the jurisdictional issue, which evidence, it alleges, will demonstrate that the Employer 's operations satisfy the Board's jurisdictional standards . In view of our determination that it will effectuate the policies of the Act to assert jurisdiction over the Employer's operations on the basis of the existing record, we deny the motion. EASTERN CAMERA AND PHOTO CORP. 569 All building service employees, including maids, porters, yardmen, window washers, PBX operators, desk clerks, combination desk clerks and PBX operators, and laundry help; excluding all office clerical em- ployees, engineers, professional employees, watchmen, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER RGDGERS, dissenting:. I am not persuaded that the factors relied upon by my colleagues warrant the departure from Board policy. As the Employer's gross revenues do not meet the Board's minimum standard of $500,000 for the hotel industry, I would not assert jurisdiction. I would, however, grant the Intervenor's motion to remand the case for a further hear- ing on the question of jurisdiction. Eastern Camera and Photo Corp. and District 65, Retail, Whole- sale and Department Store Union , AFL-CIO, Petitioner. Case No. 2-RC-12030. January 9, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Julius Altman, a hearing officer of the National Labor Relations Board. 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 McCulloch and Members Leedom and Fanning]. 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization named below claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain 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 all office clerical, stock control, production, maintenance, and sales employees at the Em- ployer's main store in Hempstead, New York, and 11 subsidiaries, located in the counties of Queens, Nassau, and Suffolk, excluding the Hempstead store manager and other customary classifications. The Employer would also exclude all the other store managers and assist- ant managers, audiovisual employees, the manager and assistant man- ager of camera repair, the stock control manager, the photofinishing 140 NLRB No. 58.