Hotel New Yorker

National Labor Relations Board - Board Decisions

Apr 24, 1962

136 N.L.R.B. 1290 (N.L.R.B. 1962)

1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which is performed prior to such effective date which did not constitute an unfair
labor practice prior thereto." Certainly the spirit, at least, of this saving clause
would be violated if "independent and controlling weight" were given to events which
occurred at any time before November 13, 1959, quite in the same manner as such
controlling significance accorded to "background " evidence would do violence to
Section 10(b).
Upon consideration of all the foregoing , and of the entire record, I find that the
General Counsel has not proved , by the necessary substantial and affirmative evi-
dence, that the object of the Respondents ' picketing on or after November 13, 1959,
was to force or require either recognition by the Company, or acceptance of Local
344 as their bargaining representative by the Company's employees . All of the
evidence indicative of illegal object long antedates the period covered by the com-
plaint, and I deem it too remote to satisfy the burden of proof required by the stat-
ute. I shall therefore recommend dismissal of the complaint.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Alton Myers Brothers , Inc., Alton, Illinois, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 344, Retail Clerks International Association , AFL-CIO, and Retail
Clerks International Association, AFL-CIO, are labor organizations within the
meaning of Section 2 (5) of the Act.
3. The allegations of the complaint that the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(b) (7) (B)
of the Act , as amended , have not been sustained.
RECOMMENDATION
It is hereby recommended that the complaint against the Respondents be dismissed.
New Yorker Towers, Ltd. d/b/a Hotel New Yorker and Glenn
Shannon. Case No. 2-CA-8116. April 24, 1962
DECISION AND ORDER
On January 5, 1962, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondent has not engaged in the unfair labor practice alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and the Respondent filed a reply brief.
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
Fanning].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
[The Board dismissed the complaint.]
136 NLRB No. 126.
HOTEL NEW YORKER
INTERMEDIATE REPORT AND RECOMMENDED ORDER
1291
STATEMENT OF THE CASE
Upon a charge and amended charge filed respectively on August 21 and November
11, 1961, by Glenn Shannon, the Acting Regional Director for the National Labor
Relations Board for the Second Region, on November 17, 1961, issued a complaint
against New Yorker Towers, Ltd. d/b/a Hotel New Yorker, herein called Respondent,
alleging that Respondent had violated Section 8(a)(1), (3), and (4) of the National
Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519). Respondent filed an
answer, denying that it had engaged in any of the unfair labor practices alleged.
Thereafter, a hearing, at which all parties were represented, was held before Fannie
M. Boyls, the duty designated Trial Examiner, in New York City on December 4
and 6, 1961.
At the conclusion of the hearing, counsel for the General Counsel and for
Respondent argued orally on the record. All parties waived the filing of briefs.
Upon the entire record in the case, my observation of the witnesses, and a considera-
tion of the arguments advanced by each side, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent 's answer does not deny or otherwise challenge,
and I therefore find I that Respondent is a New York corporation engaged in
providing hotel and related services in connection with its operations of the Hotel
New Yorker in New York City; that during the past year , which is a representative
year, Respondent , in the course and conduct of its hotel operations , had a gross
income from those operations in excess of $500,000 , and less than 75 percent of
the guests of the hotel remained at the hotel for a period of 1 month or more; and
that during the same period , Respondent purchased linens, food , fuel, and other
articles, materials , and supplies valued at in excess of $50,000 which were received
from suppliers located outside the State of New York or from suppliers located in the
State who had received said articles, material , and supplies directly from outside
the State . I further find that Respondent is engaged in commerce within the mean-
ing of the Act and that it will effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 144, Hotel and Allied Service Employees Union of Building Service Em-
ployees International Union, AFL-CIO, herein called Local 144, and Hotel and
Club Employees Union, Local No. 6, of the Hotel & Restaurant Employees &
Bartenders International Union, AFL-CIO, herein called Local 6, are each labor
organizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The sole issue presented is whether Respondent, in terminating the services of
package room employee Glenn Shannon on August 19, 1961, was motivated by the
fact that he had engaged in certain union and other protected concerted activities.
At all times material herein, Respondent's employees were represented by Locals
144 and 6 and Respondent was operating under contracts made by those Unions
with a New York hotel operators association, of which Respondent was a member.
Shannon, believing that those Unions were not satisfactorily representing the in-
terests of Respondent's employees, first sought to pressure the union officials into
taking more vigorous action, next sought to have the Board decertify such labor
organizations as the employees' representatives, then petitioned the Board to hold
an election in which the employees might have an opportunity to select him as their
bargaining representative. It is this activity, the General Counsel contends, which
brought about Shannon's loss of employment.
Shannon's dissatisfaction with the Unions appears to have started early in May
1961 when he took an active part, through the union contract grievance procedures,
in urging the reinstatement, with backpay, of an employee, Stavros, whose services
as an elevator operator Respondent had dispensed with because of a suspicion that
he might have been an accomplice of another elevator operator who was ap-
prehended in the act of stealing meat from the hotel. Shannon attended a grievance
procedure meeting on June 13 at which Stavros' case was considered by representa-
1 See Section 102 20, National Labor Relations Board Rules and Regulations, Series 8.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives of management, the Hotel Association, and union representatives. While
Respondent's secretary and counsel, Sidney Roffman, was reading a statement,
defending Respondent's position, Shannon, who was stitting in the back of the room,
asked him to speak louder. One of Respondent's officials, Schwartz, thereupon asked
Shannon who he was and where he worked.2 Thereafter, during the course of the
hearing, Shannon, speaking in Stavros' defense, made the point that it was not
reasonable to suspect Stavros of being implicated merely because he operated an
elevator adjoining that operated by the apprehended employee, for Stavros' work
shift ended at 11 p.m. when the other operator came on duty and the theft did not
take place until 1 a in. Stavros was finally rehired after his case went to arbitra-
tion but he lost several months of work and received no backpay.3
On July 26 Shannon filed with the Board a petition requesting that Locals 144 and
6 be decertified as the employees' bargaining representatives and supported this peti-
tion with signatures of 137 employees, most of which he had obtained at the hotel as
employees were changing shifts. A notice of conference on that petition, dated
July 27, 1961, was thereafter served upon Respondent and the Unions, requesting
the interested parties to attend a conference at the Board's office on August 4.
On July 31 Shannon also filed a charge against the Unions, alleging that they had
violated Section 8(b)(1)(A) and (5) of the Act.4 On two occasions a representa-
tive of one of the Unions came to the hotel and talked to Shannon about his dif-
ference with the Unions. On both occasions, Shannon's supervisor, Joseph Troy,
knew of these visits, and on the first occasion, after the union representative had left,
Troy requested Shannon thereafter not to conduct such affairs in the package room.5
The scheduled conference on the decertification petition was held in the office
of a Board agent on August 4. It was attended by Shannon, by Respondent's counsel,
Roffman, and by representatives of the Unions.
Shannon normally took his vacation in December but during the afternoon of
August 4 he was summoned to the office of Personnel Director Bernstein and
informed that business was slow and that she wanted him to take a week's vacation,
starting on the following day and returning on Monday, August 14. Another pack-
age room employee, Kinzel, was similarly requested by Supervisor Troy on August
4 to take his week's vacation because business was slow.6
During the week when Shannon was on vacation, he prepared a representation
petition, seeking to have the Board certify himself as the employees' bargaining
representative. This petition was supported by 41 cards, the signatures on which
were obtained by Shannon from employees as they entered or left the Hotel He
filed the petition with the Board on the morning of August 14, before reporting to
work.
Upon arriving for work, Shannon found a notice attached to his timecard,
asking him to report to Personnel Director Bernstein. She told him that his job
s Shannon placed this inquiry as occurring later during the meeting but in this respect,
I believe that Stavros' account, which I accept, is the more accurate
3 The above findings aie based upon the credited testimony of Shannon and Stavros,
corroborated in part by the testimony of Respondent's ex-personnel director, Mrs Bernstein,
who attended the meeting Mrs Bernstein testified that Shannon "got up and asked some
questions concerning the case" but did not recall what they were Respondent's counsel,
Roffman, on the other hand, testified that although he -heard someone in the back of the
room asking him to speak louder, he did not know the identity of such person He denied
that Schwartz asked the identity of the speaker or that Shannon later made the remarks
to which he and Stavros testified Although I have no doubt as to the sincerity of
Roffman's belief in these respects, I believe that Roffman did not hear Schwartz inquire as
to Shannon's identity and position because Roffman himself was talking at the same time
and that Roffman did not remember Shannon later making the remarks in Stavros' behalf
because at that time Roffman did not know who Shannon was
4 The record does not show that Respondent knew of these charges against the Unions
5 Respondent denies, but I find, that Troy is a supervisor within the meaning of the Act.
He not only responsibly directed the work of the employees under him but had authority
to determine the number and identity of employees who were to work from day to day and
the number of extra employees to be hired for temporary work, to grant requests for vaca-
tions or other absences, and effectively to recommend the discipline of employees He was
considered one of Respondent's executives and attended all meetings of department heads.
8I believe that both Kinzel and Shannon were confused as to dates when at one point
during their testimony they indicated that they were informed on August 4 that their
jobs were to be eliminated I accept Mrs. Bernstein' s testimony that the first time she
mentioned their terminations to Shannon or Kinzel was on August 14 Her testimony is
In accord with that of Kinzel on redirect examination and with that of Shannon on direct
examination.
HOTEL NEW YORKER 1293
was being eliminated; that she was giving him his week's notice of termination; that
he could work that week if he desired but would not be needed after August 19.
Mrs. Bernstein similarly advised package room employee Kinzel that his employ-
ment was being terminated at the end of the week.
On Saturday, August 19, at the end of the workday, Package Room Supervisor
Troy handed Shannon his paycheck, explaining, "You know, Mrs. Bernstein told
you that this was your last week. So here is your check. You are through. .
From now on if you want, you have to shape up as an extra-extra." 7 On August 21,
Mrs. Bernstein wrote Shannon: "Please let me know if you are interested in any
future extra baggage porter jobs that may become available from time to time at
the Hotel New Yorker." The letter mailed to the last address which Shannon had
furnished Respondent, was returned to Respondent, with the notation, "Moved-
left no address," stamped on the envelope.8
Respondent contends that it was a mere coincidence that Shannon's activities on
behalf of Stavros, his filing of the petitions, and his other union or concerted activi-
ties occurred at a time when Respondent's business was slow and it was attempting
to curtail its working force to fit its needs. It is undisputed that Shannon had the
least seniority of any of the package room porters. The collective-bargaining agree-
ment under which Respondent was operating required that in the event of a layoff in
any department seniority would be observed insofar as compatible with efficiency.
Accordingly, if Respondent was motivated by economic considerations in effecting a
layoff, Shannon was the employee who would normally be selected
I am convinced, upon all the evidence, that Respondent was motivated by
economic considerations. I am particularly impressed by the testimony of former
Personnel Director Bernstein. Aside from the fact that she appeared to be a forth-
right and honest witness, I can perceive of no motive she would have had in not
telling the truth. She had resigned from her position on September 30 under circum-
stances indicating that it was not entirely voluntary and was called by counsel for
the General Counsel as his witness.
According to Mrs. Bernstein's credited testimony, Respondent's president, Gross,
instructed her in July to see that the package room staff was reduced by at least one
employee. Nothing was done about this immediately. On August 7, at the
monthly staff meeting attended by all department heads, President Gross com-
plained that department heads had not been effecting layoffs when they should have
done so and instructed all of them to put into effect a layoff program immediately
after the conclusion of the gift show which was scheduled for the week beginning
August 19 9
All department heads except Supervisor Troy, who headed the package room,
furnished Mrs. Bernstein with proposed layoff schedules in July or August. When
Troy failed to furnish such a schedule even after the August 7 staff meeting, she
called him into her office for a talk, with the result that she, herself, decided to
handle the layoff problem in the package room. Upon ascertaining from Troy that
Shannon and Kinzel were the two employees having the least seniority, she gave them
their week's layoff notice on August 14. This layoff was effected before the end
of the gift show, but as Mrs. Bernstein explained, the extra work for the package
room occasioned by that show comes before and after the show, not during the week
the show is in progress In sending Shannon the letter dated August 21, which was
returned because Shannon had moved and left no forwarding address, Mrs Bern-
stein had in mind hiring him for extra work in connection with dismantling the gift
v Only one of the five package room employees was a regular, salaried employee The
other four, including Shannon, were regular, hourly paid, extra employees-regular in the
sense that they reported for work on each workday unless informed not to report In
addition, Respondent employed from time to time what were known as extra-extras to
assist in handling packages or freight when special shows were brought into and removed
from the hotel Normally Respondent put on about 24 such shows each year
8 Upon receiving his termination notice, employee I inzel, on behalf of himself and
Shannon, complained to Local 144, and its representative, 'organo, sought to persuade
Respondent to retain both employees Asa result, Respondent agreed to retain one of
them at least for a while longer Kinzel, having greater seniority than Shannon was
retained
e Minutes of the August 7 meeting show, inter alsa, the following notation:
Mr Gross instructed that in view of Mr Hurd's forecast that the staff in all depart-
ments be reduced accordingly Since there has been some confusion about the neces-
sity about giving notice to the union of proposed layoffs that all department heads
are cautioned that they be certain to comply with the union contract so that the
layoff discussed be put into operation immediately after the Gift Show.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
show. Mrs. Bernstein testified that the sole reason for terminating Shannon's
employment was management's desire to eliminate the overstaffing of its depart-
ments.10 I believe that, as personnel director, she was in a position to know the
reason.
Mrs. Bernstein's testimony was corroborated in material respects by that of
Supervisor Troy. He testified that on July 16 as well as at an earlier date, he had
been informed by management representatives that there should be a layoff in his
department but that he never carried out these instructions or submitted any pro-
posed layoff schedule. It was his practice, whenever there was an insufficient amount
of work to keep all of his men busy, to inform them of the number of men he needed
and they would arrange among themselves as to which of them would take time
off.
It is clear from Respondent's records that the amount of package room work had
declined in July and August, prior to Shannon's termination. Stanley Bruzgis, the
regular salaried employee, was absent from work for over a month prior to August 5
and Kinzel had been off from work for the week ending July 22, thus leaving only
three employees to perform the package room work during 1 week and only four for
the remainder of the month. And in August, with Stanley Bruzgis out until
August 5, with Shannon and Kinzel both on vacation between August 5 and 14, and
with Shannon in layoff status after August 19, the department was again operating
with three or four employees for most of that month. No one has been employed to
replace Shannon and some of the remaining employees have occasionally had to take
time off for lack of available work since Shannon was laid off.
For the reasons set forth above, I am convinced and find that Respondent was
motivated by economic considerations, and not by Shannon's union or other con-
certed activities, in effecting his layoff and failing to recall him to his regular job
prior to the hearing. I accordingly find that Respondent has not violated Section
8(a)(1), (3), and (4) of the Act, as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings, and upon the entire record in the
case, I hereby recommend that the complaint be dismissed in its entirety.
10 At one point Mrs. Bernstein referred to Shannon's termination as a discharge. Re-
spondent contends that it was only a layoff and that he will be recalled when there is need
for another regular extra package room porter. I do not regard it as important, in these
circumstances, whether the termination be labeled a discharge or a layoff but I shall treat
it as a layoff.
Carl Rocket and Charles Ruud , partners , doing business as
The Renton News Record , and Bellevue American Publishing
Company, Inc., and Northwest Business Machines Company,,
Inc., and The Production Company, Inc.' and Seattle Typo-
graphical Union No. 202, AFL-CIO. Case No. 19-CA-2043.
April 2/,, 1962
DECISION AND ORDER
On July 20, 1961, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and are engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions to the
Intermediate Report and supporting briefs.
1 Hereinafter referred to collectively as the Respondents and individually called Renton,
Bellevue, Northwest, and Production, respectively.
136 NLRB No. 55.