Charlotte Barth Howell and Van Schaack & Co.

National Labor Relations Board - Board Decisions

Aug 8, 1951

95 N.L.R.B. 1028 (N.L.R.B. 1951)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHARLOTTE BARTH HOWELL AND VAN SCHAACK & COMPANY and BUILD-
ING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 105, AFL,
PETITIONER
BOETTCHER FOUNDATION AND VAN SCHAACK & COMPANY and BUILDING
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 105, AFL,
PETITIONER
DENVER NATIONAL BUILDING COMPANY AND VAN SCHAACK & COMPANY
and BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL
105, AFL, PETITIONER
PETROLEUM BUILDING CORPORATION AND VAN SCHAACK & COMPANY and
BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 105,
AFL, PETITIONER
STRAWN REALTY CORPORATION AND FREDERICK R. Ross INVESTMENT
COMPANY and BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 105, AFL, PETITIONER. Cases Nos. 30-RC-392, 30-RC-393,
30-RC-394,30-RC-395, and 30-11C-396. August 8,1951 .
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Margaret L. Fassig, 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-mem-
ber panel [Members Houston, Murdock, and Styles].
Upon the entire record in these cases, the Board finds :
1. The employees sought herein work in five office buildings, each
separately owned but all located in Denver, Colorado. The Peti-
tioner contends that the Employers of these employees are the realty
management organizations, Van Schaack & Company, hereinafter
called Van Schaack, and Frederick R. Ross Investment Company,
hereinafter called Ross. The respective building owners contend
that they are the Employers of the employees in question, and are
joined in this contention by Van Schaack and Ross.
The Equitable Building, the First National Bank Building, the
Denver National Bank Building, and the Continental Oil Building
are operated and managed by Van Schaack for the respective building.
owners under separate oral contracts of agency terminable at will.
'95 NLRB No. 132.
CHARLOTTE BARTH HOWELL AND VAN SCHAACK & CO. 1029
The'United States National Bank Building is operated and managed
by Ross under a similar oral contract of agency terminable at will.
As compensation for their services, Van Schaack and Ross receive a
percentage of the gross rent which they collect. Although manage-
ment of the buildings; including actual hiring and discharging, is
handled by Van Schaack and Ross as agents for the owners, major
policy determinations regarding terms and conditions of employment
are made by the building owners themselves. ,Thus, for example, a
representative of Charlotte Barth Howell, the owner of the Equitable
Building, testified that the employees' work schedule is submitted by
the building manager for approval by him and by Mrs. Howell. He
further testified that he has represented Mrs. Howell in the negotia-
tion of labor agreements for Equitable Building employees but that he
had made no commitments in connection with such agreements with-
out her prior approval. And, although a representative of Ross tes-
tified that Ross hired and discharged employees at the United States
National Bank Building without consulting Strawn Realty Corpora-
tion, a representative of the corporation testified that if its wishes
regarding discharge of an employee, for example, were not carried
out, its contract with Ross would be terminated. It is clear that such
authority as Van Schaack and Ross have over the employees involved
herein stems solely from the respective contracts . of agency which
may be terminated at will. In view of the fact that the essential right
of control over matters fundamental to the employment relationship
is retained by the building owners and is exercised by Van Schaack
and Ross only at the will of such owners, we find that, for purposes
of this proceeding, and with regard to the employees herein in-
volved, the building owners are the Employers.
Charlotte Barth Howell is the sole owner of the Equitable Build-
ing, a nine-story general office building containing approximately
113,000 square feet of rentable space. Among the tenants of the
building are Harris Upham & Co., J. A. Hagle & Co., and Peters,
Writer, and Christiansen, investment brokerage firms which are
members of the New York or Chicago Stock Exchanges; the Colo-
rado Milling & Elevator Company, which is engaged in the grain
business in several States of the United States; and The Western
Union Telegraph Company, which the Board has found to. be en-
gaged in. commerce. During 1950, this Employer received from these
and other tenants of the building who, the Employer in effect con-
cedes, are engaged in commerce, in excess of $50,000 in rent.
Boettcher Foundation, a Colorado corporation operated solely for
educational and charitable purposes in the State of Colorado, is the
owner of The First National Bank Building. Among the tenants
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this building, which has a rentable area of 124,258 square feet, are
Merrill', Lynch, Pierce; Fenner, and Beane, and Otis & Co., members of
the New York Stock Exchange, and the First National Bank of
Denver, a national bank which is a member of the Federal Reserve
Bank and of the Federal Deposit Insurance Corporation. These and
other tenants of the building who, this Employer concedes, are en-
gaged in commerce, including Equitable Life Insurance Company of
Iowa, American Smelting and Refining Company, and U. S. Steel
Corporation, pay rent totaling in excess of $50,000 annually.,
Denver National Building Company, a Colorado corporation, is
the owner of the Denver National Bank Building. It is a wholly
owned, subsidiary of the Denver National Bank, which occupies ap-
proximately 38,000 square feet of the building's rentable area of
approximately 85,000 square feet. The Denver National Bank is a
national banking association organized under the laws of the United
States and is a member of the Federal Reserve System and of the
Federal Deposit Insurance Corporation. During 1950, rent totaling
more than $60,000 was paid. by the Denver National Bank and other
tenants who, this Employer concedes, are engaged in commerce
including American Surety Company, Westinghouse Airbrake
Company, Ideal Cement Company, and California Electric Power
Company.
Petrolewim Building Corporation, a Colorado corporation, owns the
Continental Oil Building, which has approximately 98,000 square
feet of rentable space. During 1950, this Employer received in excess
of $200,000 in rent from tenants of this building who, the Employer
concedes, are engaged in commerce. Among such tenants are Con-
tinental Oil Company, Colorado Fuel & Iron Company, General
Motors Corporation and General Motors Acceptance Corporation,
Republic Steel Company, Sinclair Oil & Gas Company, and Youngs-
town Steel Co.
Strawn Realty Corporation, a Delaware corporation, owns the
United States National Bank Building. This building has a rentable
area of 115,000 square feet for which, during 1950, this Employer
received in excess of $250,000 in rent. One of the tenants of this
building is the United States. National Bank of Denver, which is a.
national bank and a member of the Federal Reserve System and of
the Federal Deposit Insurance Corporation. Other tenants include
6 railroads and 10 national insurance companies. During 1950, this
Employer received over $120,000 in rent from these and other tenants
which it concedes are engaged in commerce.
The Board has asserted jurisdiction over many of the tenants in
these buildings, and, as to certain others; takes judicial notice that
their operations affect commerce within the meaning of the Act. We
CHARLOTTE BARTH HOWELL AND VAN SCHAACK & Co. 1031
find that each of the Employers, as defined above, is engaged in com-
merce within the meaning of the Act, and that it will effectuate the
purposes of the Act to exercise jurisdiction over these Employers.'
2. The Petitioner, a labor organization, claims to represent certain
employees of the Employers.
3. Questions affecting commerce exist concerning employees of the
Employers within the meaning of Section 9 (c) (1) and Section 2 (6)
and (7) of the Act.
4. The appropriate units; the determination of representatives :
The appropriate unit for each of the buildings involved herein is
discussed separately below. With regard to the watchmen, however,
although the parties disagree concerning their inclusion or exclusion,
they agree that these employees should be uniformly treated in all
five cases.
The watchmen do some janitorial work but most spend more than
half their time performing duties as guards and therefore may not
be included in the same unit with the other employees.2 We shall,
therefore, in accordance with the agreement of the parties to treat
these employees uniformly, exclude all the watchmen.
Case No. 30-RC-392
The parties agreed at the hearing that a unit of all janitors and
elevator pilots, excluding the building superintendent, pilot starter,
librarian, and part-time engineer, is appropriate at the Equitable
Building.
We find that all janitors and elevator pilots employed by Charlotte
Barth Howell at the Equitable Building, Denver, Colorado, excluding
the building superintendent, pilot starter, librarian, part-time en-
gineer, watchmen, and supervisors, constitute an* appropriate unit for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
Case No. 30-RC-393
The parties agree that all janitors and elevator. pilots at the First
National Bank Building, excluding the pilot starter, the building
superintendent, and the assistant building superintendent, comprise
an appropriate unit. They disagree regarding the following indi-
viduals whose inclusion is apparently urged by the Union and opposed
by the Employers.
1 See Cormax, Inc., d/b/a Southland Building and Annex, 94 NLRB 1150 : Hollow
Tree Lumber Company, 91 NLRB 635. In connection with Case No. 30-RC-393 herein, see
Illinois Institute of Technology , 81 NLRB 201, in which the Board found that an employer
was engaged in commerce even though it did not operate for profit.
a Lenoir Chair Company, 93 NLRB No. 196; C. V. Hill f Company, Inc., 76 NLRB 158.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The head janitor assigns and directs the work of the 12 janitors.
Although he occasionally does janitorial work, he has authority to
hire and discharge janitors and has hired and discharged the watch-
man-janitor. We find that the head janitor is a supervisor within
the meaning of the Act, and we shall therefore exclude him.
The maintenance man is a general handy man and also does clean-
ing work. We are of the opinion that his interests are. sufficiently
allied to those of the other employees in the unit to warrant his
inclusion 3
We find that all janitors and elevator pilots 4 employed by the
Boettcher. Foundation at the First National Bank Building, Denver,
Colorado, including the maintenance man but excluding watchmen,
the pilot starter, the building superintendent, the assistant building
superintendent, the head janitor, and all other supervisors, constitute
an appropriate unit for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
Case No. SO-RC-394
The parties agree that all janitresses and elevator pilots at the Denver
National Bank Building, excluding the building superintendent, con-
stitute an appropriate unit. They disagree as to the inclusion of the
head janitress.
Although the head janitress herself performs janitorial duties and
receives the same rate of pay as the other five janitresses, she assigns
and directs their work. She has hired "extra" janitresses.to fill in for
employees who may be absent for substantial periods of time, and she
has the power effectively to recommend the discharge of the'other j an-
itresses. We shall exclude her as a supervisor.
We find that all janitresses and elevator pilots employed by the
Denver National Building Company at the Denver National Bank
Building, excluding watchmen, the building superintendent, the head
janitress, and all other supervisors, constitute an appropriate unit for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
S Although the position of maintenance man was vacant at the time of the hearing, the
Employers indicated that a maintenance man is part of its normal employee complement
and the position would be filled. Accordingly, we shall include this category in the unit.
Armour c6 Co., d/b/a Armour Creameries, 63 NLRB 1214; Kincaid Manufacturing Com-
. pant/, 55 NLRB 1196; Westates Petroleum Corporation, 49 NLRB 1076.
4 The Employer 'alleged that Irma Dorugatti, an emergency relief pilot, is a temporary
employee. However, she worked from 16 to 48 hours in each 2-week pay period. in the
6 months preceding the hearing. We find that she has a sufficient interest in the condi-
tions of employment to warrant her participation In the election and therefore, in
accordance with an agreement of the parties, we shall permit her to vote.
Lucille Kerr, an emergency relief pilot. was employed for only 7 hours In the 6 months'
preceding the hearing. We find that she is a casual employee without sufficient interest
to entitle her to vote. Great Trails Broadcasting Company, 73 NLRB 396.
CHARLOTTE BARTH HOWELL AND VAN SCHAACK & CO. 1033
Case No. 36-RC-395
The parties agree that all janitors and elevator pilots at the Conti-
nental Oil Building, excluding the pilot starter and the building super-
intendent, constitute an appropriate unit. The Employers would
exclude, whereas the Petitioner would include, the assistant super-
intendent.
The assistant superintendent takes over the duties of the building
superintendent each afternoon when the latter goes off duty. Al-
though he takes care of the heating plant and does minor plumbing
and repair work, he also assigns and directs the work of the janitors.
He has power effectively to recommend the hire of janitors, and pos-
sesses and has exercised the authority to discharge janitors. We find
that the assistant superintendent is a supervisor within the meaning
of the Act, and we shall therefore exclude him from the unit.
We find that all janitors and elevator pilots employed by the Petro-
leum Building Corporation at the Continental Oil Building, Denver,
Colorado, including the regular part-time elevator pilot,5 but excluding
watchmen, the building superintendent, the assistant building super-
intendent, the pilot starter, and all other supervisors, constitute an
appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
Case No. 30-RC-396
The parties agree that all elevator pilots and janitors at the United
States National Bank Building, including, the regular part- time ele-
vator pilot but excluding the elevator starter, the building superin-
tendent, and the assistant building superintendent, constitute an
appropriate unit. The Petitioner would however include, whereas.
'the Employers would exclude, the head janitor.
The head janitor assigns and directs the work of the other 10
janitors. Although he assists them for about half his working time,.
he has power to, hire janitors who are referred to him by management
for approval, and he has effectively recommended their discharge.
His pay rate is 12 cents an hour higher than that of the janitors. We.
find that the head janitor is a supervisor within the meaning of the
Act, and we shall therefore exclude him.
5 Eleanor Daniels works as a relief elevator pilot for 5 hours every Sunday. As she
is a regular part -time employee , we shall, in accordance with our usual practice, permit
her to vote in the election . There are also three "extra" elevator pilots who are called
upon to fill in for the regular elevator pilots when the latter are ill ,, on vacation, or
otherwise temporarily absent. As their employment is casual and sporadic and the
number of hours they work in any period is irregular , we find that they do not have
sufficient interest to entitle theme to vote. J. C. Penney Company, 86 NLRB 920;
P. W. Woolworth Company, 83 NLRB 439; t lr eat Trails Broadcasting Company, supra.
. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all elevator pilots and janitors employed by the Strawn
Realty Corporation at the United States National Bank Building,
including the regular part-time elevator pilots but excluding watch-
men, the elevator starter, the building superintendent, the assistant
building superintendent, the head janitor, and all other supervisors,
constitute an appropriate unit for the purposes of collective, bargain-
ing within the meaning of Section 9 (b) of the Act.
[Text of Direction of Elections omitted from publication in this.
volume.]
We find that two elevator pilots, Eileen Furman and Agnes Graydon , who are called
upon only in emergencies to fill in for regular pilots who are absent , do not have sufficient
interest to entitle them to vote. Great Trails Broadcasting Company, supra.
ALICE B. HAZEN, C. P. JAEGER, H. W. RYMOND, AND C. E. GILMAN,
CO-PARTNERS, DOING BUSINESS AS HAZEN & JAEGER FUNERAL HOME,
AND ITS SUCCESSOR ALICE B. HAZEN, C. P. JAEGER, HELEN RYMOND
IN HER OWN RIGHT AND AS EXECUTRIX OF THE ESTATE OF H. W.
RYMOND, C. E. GILMAN, AND PATRICIA JAEGER DIBLEE, CO-PARTNERS,
DOING BUSINESS AS HAZEN & JAEGER FUNERAL HOME 1 and LICENSED
EMBALMERS ' DIVISION OF WAREHOUSEMEN, GARAGE AND SERVICE STA-
TION EMPLOYEES LOCAL UNION No. 334, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS,
A. F. of L. Case No.19-CA 325. August 13, 1951
Decision and Order
On May 4, 1951, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the.
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a supporting brief 2
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondents' exceptions and brief, and the,
entire record in the case, and hereby adopts the findings, conclusions,
The names of the Respondents appear as amended at the hearing.
s The Respondents have requested oral argument before the Board. As the record and
the Respondents' exceptions and brief fully present the issues involved herein and the
position of the parties , the Respondents ' request is hereby denied.
95 NLRB No. 137.