Westchester Apartments, Inc.

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. 247384-40-vol. 17-29