Greenhoot, Inc.

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Greenhoot, Inc. and Local 99-99A, International Union of Operating Engineers, AFL-CIO, Peti- tioner. Case 5-RC-8304 August 6, 1973 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 18, 1973, the Regional Director for Region 5 issued his Decision and Direction of Elec- tion wherein he directed an election among all li- censed and unlicensed engineers, apprentice engineers, and maintenance men at 14 office build- ings managed by Greenhoot in the District of Colum- bia. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regu- lations, Series 8, as amended, the Employer filed a timely request for review on the grounds that the Re- gional Director in concluding Greenhoot was the sole Employer herein made findings which are clearly er- roneous and departed from officially reported preced- ent. By telegraphic order dated February 13, 1973, the National Labor Relations Board granted review and stayed the election pending the decision on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this matter with respect to the issues under review and makes the following findings: Greenhoot, Inc., is a District of Columbia corpora- tion engaged in real estate sales and leasing and pro- perty management in the Washington metropolitan area. The Union seeks a unit limited to the engineers and maintenance employees employed in 14 separate office buildings in the District of Columbia.' Green- hoot contends that the separate building owners are 1 All owners of the buildings involved herein were served with a notice of hearing. One attorney appeared representing two owners and one individual appeared representing four owners The buildings and the owners involved are as follows (1) Trans Lux Building owned by 14th & H Street Corp, (2) 2021 L Street owned by 2021 L Street Associates, (3) Vanguard Building owned by Vanguard Associates, (4) 1020 Vermont owned by Pearlberg Hold- ing Co, (5) Pennsylvania Building owned by Pennsylvania Associates, (6) McLachlen Bank Building owned by M C L. Associates, (7) National Center for Higher Education owned by the American Council on Higher Education, (8) 1411 K Street owned by National Real Estate Investment Trust, (9) 818 18th Street owned by 18th Street Associates, (10) Vermont Building owned by Vermont Building Associates, (11) Imperial Building owned by Imperial Building Limited Partnership (alternately referred to as 1441 L Street Associ- ates), (12) Federal Building owned by Intereal Holding Co, (13) 1019 19th Street owned by C.A G Associates, and (14) American Institute of Archi- tects Building owned by the American Institute of Architects the sole employers of the employees sought herein or, in the alternative, that it is a joint employer together with the building owners of the employees sought and, accordingly, a multiple location unit is not appropri- ate. We agree with the alternative contention. Greenhoot's building management operations are conducted pursuant to a standard written contract with the building owner which provides that Green- hoot is the owner's agent employed to rent and man- age the owner's building. For its services, Greenhoot receives a fee which is a fixed percentage of the building's gross rental income. Greenhoot, which col- lects the rentals from the tenants, deducts its fee from the rentals and uses the remaining amount to pay other building expenses. Any amounts remaining are then remitted to the building owner; but if rental income is insufficient to cover the building expenses and Greenhoot's fee, the building owner is required to make up the difference. Moreover, under the agree- ment, Greenhoot is authorized to hire, discharge, and pay the wages of the building employees in accor- dance with a schedule approved in advance by the building owner. Although Greenhoot is responsible for the supervision of building employees, the owner retains the right to determine if a building superinten- dent is to be employed and to approve the hiring and retention of all building employees. Finally, the agree- ment provides that the owner is responsible for pro- viding various types of liability insurance including workmen's compensation and that the owner will hold Greenhoot harmless for employee injuries. The key supervisor of the employees sought by the Petitioner is the chief engineer employed in nearly all of the several buildings involved herein. When Green- hoot becomes the management agent at a building it normally continues to utilize the chief engineer and other engineers already working at the building and they ordinarily remain employed at the building when Greenhoot's management contract terminates. If, however, it becomes necessary to employ a new chief engineer, Greenhoot will recruit and screen applicants and then make a recommendation to the building owner who will ordinarily interview and hire the chief engineer. Thereafter, the day-to-day building maintenance functions are directed by the chief engineer. In nearly all instances he hires, discharges, recommends pay increases, and schedules the work of the building maintenance employees and guards. There is evi- dence that in at least one instance the chief engineer, will consult on a daily basis with the building ow aer on operational problems including labor matte- s, and in some other instances the chief engineer consults with the building owner for similar reas'jns once a month. Although it appears that Greenhoot provides 205 NLRB No. 37 GREENHOOT, INC. some direction and control of the chief engineer, the record is silent with respect to the nature and extent thereof. Greenhoot's wage budget for each building is ap- proved in advance by the building owner. The record discloses that although there is sufficient leeway in the budget for minor increases, such as when an employee completes a probationary period, nearly all other wage increases require the building owner's approval before they can be placed into effect. Greenhoot is responsible for the preparation of the payroll and any employee tax deductions but in most instances Green- hoot prepares and files the tax returns for such mon- eys in the name of the owner. Most employees are covered by Greenhoot's health insurance contract but the premium payments for this purpose come from the individual building expense moneys. Holidays are established by the building owner but are, in effect, dictated by the schedule of the principal tenant. Uniforms are provided for from the building expense account but in some instances they bear Greenhoot's name while in other instances they bear the principal tenant's name and, in one instance, they bear both names. Although there is evidence of transfer and inter- change of a limited number of the chief engineers who are supervisors, there is no evidence of employee in- terchange among the buildings. The Regional Director concluded that the circum- stances here were indistinguishable from Herbert Har- vey, Inc., 159 NLRB 254, wherein we held that the building maintenance employees at the World Bank were employees of the building maintenance contrac- tor in circumstances that are similar in some respects to those herein. However, the Regional Director's reli- ance on that case is misplaced since the principal issue there was whether the building maintenance contrac- tor retained a sufficient degree of control over the employees to warrant finding the contractor was an employer within the meaning of Section 2(2) as the Bank, which exercised some control over the employ- ees, was exempt from the Board's jurisdiction. No such problem exists in this case since neither the building owners nor Greenhoot are in a class exempt from the Board's jurisdiction. Herbert Harvey, supra, is also distinguishable on an additional ground. Al- though the conditions of employment were subject to review and approval by the Bank in that case, a con- siderable area of effective control remained vested in the building maintenance contractor, whereas in the instant case each building owner in effect hires the chief engineer and the latter tends to confer with building owners on operational problems. Hence, both the individual owner and the management agent, Greenhoot, have significant employer functions. In these circumstances the Regional Director is in error 251 in his conclusion that the building owner plays no role in hiring and firing and exercises no daily control over employees. As we believe the facts set forth above sufficiently demonstrate that Greenhoot and the building owners at each building share or codeter- mine matters governing the essential terms and condi- tions of employment of the employees herein, we conclude that Greenhoot and each of the Building owners are joint employers at each of the respective buildings.2 In this circumstance, there is no legal basis for es- tablishing a multiemployer unit absent a showing that the several employers have expressly conferred on a joint bargaining agent the power to bind them in neg- otiations or that they have by an established course of conduct unequivocally manifested a desire to be bound in future collective bargaining by group rather than individual action.' As there is no consenual basis here for finding a multiemployer unit, we find that separate units at each location sought by the Peti- tioner of all licensed and unlicensed engineers, ap- prentice engineers, and maintenance men excluding all other employees, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act to be appropriate herein.4 Accordingly we remand this case to the Regional Director for the purpose of conducting an election at each location in accordance with his Decision and Direction of Election, as modified herein,' except that the eligibility payroll period therefore shall be that immediately preceding the date of issuance.' 2 Manpower, Inc, 164 NLRB 207, The Greyhound Corporation, 153 NLRB 1488 3 The Kroger Co, 148 NLRB 569, Bennett Stone Company 139 NLRB 1422; Chicago Metropolitan Home Builders Association, 119 NLRB 1184 Notwithstanding the existence of a contract at the Trans Lux Building, the Petitioner sought to include that building in order to obtain the benefits of certification In this circumstance we find that contract no bar to an election herein Montgomery Ward & Co, Incorporated, 137 NLRB 346, In 5 At the Pennsylvania Building a new contract had been negotiated but not executed at the time the petition was filed Accordingly we find no bar to an election at that building DeLuxe Metal Furniture Company, 121 NLRB 995 5In the event the Petitioner does not wish to proceed to an election in separate units, it shall so notify the Regional Director by written notice within 7 days of the date of issuance The Regional Director shall also determine the adequacy of the showing of interest for each location If it appears, as some record evidence indicates , that there are less than two unit employees at any of the locations sought, the Regional Director shall forth- with dismiss the petition as to such location See Cutter Laboratories, 116 NLRB 260 6 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 (1969) Accord- ingly, 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 5 within 7 days of this Decision on Review The Regional Director shall make this 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