New York Hilton at & Rockefeller Center

NEW YORK HILTON AT ROCKEFELLER CENTER 313 Rock-Hil-Uris, Inc. d/b/a the New York Hilton at Rockefeller Center and Security Officers, Guards, Patrolmen, Watchmen, Timekeepers Union of Greater New York, Local 12, Petitioner. Case 2-RC-15538 September 22, 1971 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 2, 1971, the Regional Director for Region 2 issued his Decision and Order in the above-entitled proceeding, in which he dismissed the petition herein on the ground that the Petitioner, a guard union, is affiliated directly or indirectly with an organization which admits to membership employees other than guards. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner timely filed a Request for Review of the Regional Director's Decision, contending that the Regional Director erred in finding an affiliation based on the facts established at the hearing. The Intervenor filed a statement in opposition to the Request for Review. On June 25, 1971, the National Labor Relations Board by telegraphic order granted the Request for Review. Thereafter the Petitioner and the Intervenor filed briefs on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the entire record in this case, including the Request for Review, the statement in opposition thereto, and the briefs on review, and makes the following findings: The Petitioner seeks to represent a unit consisting of all of the Employer's house officers, security officers, guards, patrolmen, and watchmen. The Intervenor i urges that the petition be dismissed because the Petitioner is affiliated with a nonguard union and, i Local 18, International Union of Police and Protection Employees, Independent Watchmen's Association (hereinafter referred to as Intervenor), was permitted to intervene on the basis of a contract alleged to bar the proceedings The Intervenor alleged that its original contract covering the employees in the unit sought , which was to expire on December 15, 1970, was subsequently extended to January 15, 1971, by oral agreement on December 14, 1970, as evidenced by a letter to that effect dated December 24, 1970, from the Employer to the Intervenor. The petition herein was filed on January 13, 1971 In view of his decision to dismiss the petition on other grounds , the Regional Director found it unnecessary to determine the contract -bar issue. However, we find that the contract relied on by the Intervenor will not bar the election herein A contract which is not signed by both parties will not bar an election, Appalachian Shale Products Co, 121 NLRB 1160, nor will a written therefore, is prohibited by Section 9(b)(3) the Act from being certified as the collective-bargaining representative of a unit of guards.2 The Employer operates a Hilton Hotel at Rockefel- ler Plaza in New York City. In 1967 the New York City Hotel and Motel Trades Council, AFL-CIO, consisting of several unions representing various classifications of hotel employ- ees, sought to organize the security personnel at the Plaza and Americana hotels in New York City. At that time Anthony Tronolone was an organizer for the Trades Council's security personnel division. Petitions for elections among the security personnel at the two hotels were filed by the Intervenor herein, whereupon the Trades Council, jointly with the Office and Professional Employees Union Local 153, inter- vened. Elections were held and the joint intervenors won both elections. However, the Regional Director certified only the arithmetic results of the elections, having previously determined that the Trades Council admitted to membership both guards and nonguards.3 As a result of the failure to secure certification, a decision was made to separate the security personnel division from the Trades Council and to form an independent guard union. The Petitioner herein was formed in December 1968, with Tronolone as its president. The guards at the Plaza and Americana hotels then became members of the Petitioner. The Petitioner has its own constitution and bylaws which express its policy to organize only security personnel. Petitioner's officers are not members of, nor officers of, any other union, nor are they paid money by any other union. Petitioner's offices are located on the same floor as the offices of the Trades Council, in a building apparently owned by the Trades Council. Petitioner pays the Trades Council $400 per month for office rent, and for clerical and reception services which are performed by employees on the payroll of the Trades Council. Tronolone testified that, subsequent to the estab- lishment of the Petitioner, he had been present at meetings with officers of the Trades Council; howev- er, no discussion of wages or other working conditions took place. He was asked to attend the meetings to agreement which is extended orally Container Corporation of America, 83 NLRB 424 ; Cleveland Pneumatic Tool Company, 143 NLRB 1 165 2 Section 9(b)(3) provides that "no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards" 3 Certification of such a union as the collective -bargaining representa- tive of a unit of guards is prohibited by Section 9(b)(3) of the Act. However, certification of the arithmetic results is appropriate when the petition is filed by a qualified labor organization and the nonqualified labor organization intervenes . See The Wackenhut Corporation, 169 NLRB 398. 193 NLRB No. 47 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discuss security matters at a certain hotel, including fires, thefts, muggings, and the harassment of Trades Council members by hotel security personnel. The crux of the affiliation contention raised by the Intervenor concerns a master collective-bargaining contract effective from June 1, 1968, to May 31, 1973, between the Petitioner and the Hotel Association of New York City, Inc. Under the terms of the master contract, the Hotel Association agrees that any member hotel at which the Petitioner becomes the collective-bargaining representative for security per- sonnel will be bound by the terms of the contract.4 The contract further provides that Employers will make contributions in behalf of all employees who are members of the Petitioner to the New York Hotel and Motel Trades Council and Hotel Association Insur- ance Fund, the Hotel and Motel Trades Council and Hotel Association Pension Fund, and the Hotel and Motel Trades Council and Hotel Association Family Medical Fund. The benefits of these funds are available to Petitioner's members as well as members of the Trades Council unions. All three of the above funds are duly qualified tax exempt trust funds which are administered by an equal number of union and employer trustees. The trustees who represent the unions are all representa- tives or officials of the various unions affiliated with the Trades Council; no trustees are officers or representatives of the Petitioner. The funds are managed by professional managers, none of whom is an officer or employee of any union or employer. Based on the above facts, the Regional Director dismissed the petition, finding that the facts indicated that there still exists an affiliation between the Trades Council and Petitioner sufficient to make it question- able that, in an area of negotiations relating to the funds, the Petitioner can act independently of the Trades Council. Section 9(b)(3) prohibits the certification of a guard union where the guard union either admits nonguards as members or is directly or indirectly affiliated with an organization which admits both guards and nonguards to membership. Since none of the parties contend that Petitioner is disqualified because of any direct affiliation with a nonguard union or because it admits to membership 4 The security personnel presently sought by Petitioner are not yet covered by this contract since it only becomes effective as to those employees in the event Petitioner becomes their bargaining representative S 97 NLRB 1111 6 In applying this standard, the Board has permitted substantial latitude , particularly when guard unions are in their formative stages. Thus, no indirect affiliation was found in Inspiration Consolidated Copper Company, 142 NLRB 53 (assistance in soliciting authorization cards); Westinghouse Electric Corporation, 96 NLRB 1250 (chief steward participated in organizational meetings ); The Midvale Company, 114 NLRB 372 (assistance in preparation of unfair labor practice charges and selection of attorney), International Harvester Company 81 NLRB 374 (free use of employees other than guards, the only issue before us is whether or not there exists the prohibited indirect affiliation. In The Magnavox Company,5 the Board stated that an indirect affiliation exists when a nonguard union participates in guard affairs to such an extent and for such a duration as to indicate that the guard union has lost the freedom and independence to formulate its own policies and principles.6 Applying this principle to the facts of this case, we are not satisfied that there is an indirect affiliation between the Petitioner and the Trades Council sufficient to render the Petitioner disqualified under Section 9(b)(3). While it is true that the Petitioner and the Hotel Association have voluntarily agreed to participate in the trust fund arrangement contractually established by the Hotel Association and the nonguard Trades Council, the record fails to establish, as contended by the Intervenor, that, by such participation, the Petitioner has delegated its authority to administer the funds to members of the Trades Council unions, thereby depriving the Petitioner of the ability to act independently of the Trades Council in negotiations relating to the funds. As stated above, the funds are not exclusively administered by the Trades Council unions, but rather by an equal number of trustees designated by the Hotel Association and by the Trades Council unions. Nor does it appear that the Trades Council has utilized the participation of its representatives in the management of the trust funds in a manner to influence or interfere with Petitioner's affairs. Further, to infer any future influence or interference would be entirely speculative. And since we do not regard the renting of office space, use of clerical services, and Tronolone's attendance at Trades Council meetings as having any substantial significance in this case, we conclude that the Regional Director erred in dismissing the petition.? Accordingly, we find that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All of the house officers, security officers, guards, patrolmen, and watchmen employed by the meeting hall); and Brooklyn Piers, Inc., 88 NLRB 1364 (sharing of office space) However, the Board has found the existence of indirect affiliation in Mack Manufacturing Corporation, 107 NLRB 209 (assistance during organization continued after demand for recognition ), Willcox Construction Co., Inc., 87 NLRB 371 (individual was an officer in guard and nonguard union); International Harvester Company, Wisconsin Steel Works, 145 NLRB 1747 (advice and assistance in negotiations and money to pay pickets). I However, if it can be later established that the nonguard union has acted in some manner to deprive the Petitioner of its independence, the Board will entertain a motion to revoke any certification of representative which may issue herein See Ingersold-Rand Company, 119 NLRB 601, in 4 NEW YORK HILTON AT ROCKEFELLER CENTER 315 Employer, excluding all other employees and supervisors as defined in the Act. [Direction of Election8 omitted from publication.] 8 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 addresses which may be used to communicate with them . Excelsior Underwear Inc, 156 NLRB 1236, N L. R B v Wyman-Gordon Co., 394 U S. 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 on Review and Direction of Election 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 extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.