Floridan Hotel of Tampa, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1959

124 N.L.R.B. 261 (N.L.R.B. 1959)

FLORIDAN HOTEL OF TAMPA, INC. 261
the Employer, testified in conclusionary language, that the laid-off
employees had no "reasonable expectation of recall in the near future."
Furthemore, there is no evidence that the laid-off employees are car-
ried on any seniority or formal preferential hiring list. However, the
plant superintendent for the Musgrave plant testified that, in hiring
for the busy season, he gave definite preference in recalling the "really
good" employees previously laid off. Moreover, the record shows that,
of those employees recently laid off at Musgrave, all had worked for
the Employer in previous years, had been laid off, and then recalled for
the past busy season. Under these circumstances, we find that these
employees have a reasonable expectancy of recall in the foreseeable
future and thus are eligible to vote in the election herein directed.'
'The record is not clear as to the actual practice relating to the recall
of laid-off employees at the Mast-Foos plant. It indicates that the
'employees recently laid off there had not previously worked at Mast-
Foos, but the witness who so testified did not know if they had pre-
viously worked at the Musgrave plant. Moreover, there is some evi-
dence that one of the employees allegedly recently laid off was, in fact,
discharged for cause. In these circumstances, we find the record in-
sufficient to determine whether employees laid off at Mast-Foos be-
cause of the seasonal cutback in operations have a reasonable expec-
tancy of recall in the foreseeable future, and thus retain their status
as employees. We shall, therefore, permit those who have been so
laid off at Mast-Foos in the recent reduction of employees to vote sub-
ject to challenge.10 In view of this determination no useful purpose
appears in support of our establishing an eligibility date in the elec-
tion directed below different from that prescribed in the usual case.
'The Petitioner's request that we do so is, therefore, denied.
[Text of Direction of Election omitted from publication.]
9 These employees are Charles Brubaker , Otis Cochran, Fern Major , Joseph Pagent,
and James Stelzer . H. Finney, who is on sick leave, is also eligible to vote. Foley
Manufacturing Company, 115 NLRB 1205.
10 See Radio Corporation of America, 121 NLRB 633 ; Massachusetts Mohair Plush
Company, 112 NLRB 41, 43.
Floridan Hotel of Tampa, Inc.' and Hotel and Restaurant Em-
ployees and Bartenders Union , Local No. 104 , Hotel and Res-
taurant Employees and Bartenders International Union, AFL-
CIO,z Petitioner. Case No. 12-RC-508. July 30, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 ( c) of the National Labor
Relations Act, a hearing was held before Joseph V. Moran, hearing
1 The Employer' s name appears as corrected at the hearing.
2 The Petitioner's name appears as corrected at the hearing.
124 NLRB No. 34.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.3
Upon the entire record in this case, the Board finds :
1. The Employer contends that the Board is without jurisdiction in.
this matter because its operations do not affect commerce within the
meaning of the Act. Alternatively, it contends that the Board should
adhere to its long-established policy of not asserting jurisdiction over-
the hotel industry. We find no merit in these contentions.
The Employer is engaged in the operation of a 345-room 19-story
hotel in Tampa, Florida. The hotel includes a taproom, a dining
room, a cocktail lounge, and banquet and party facilities. The Em-
ployer provides rent-free office space to the Pan American Commission.
It rents a counter in the lobby at which various retail items are sold,.
and it rents out garage and parking space to a private concessionaire.
None of the Employer's hotel rooms has apartment or housekeeping
facilities, and it appears that its guests, approximately 50 percent of
whom come from outside the State of Florida, are mainly transients.
The Employer's gross annual revenues during 1958 amounted to more
than $930,000 of which $540,000 was received from the rental of
rooms, $187,000 was received from food sales, and $209,000 was re-
ceived from the sale of beverages. The Employer purchased goods
valued in excess of $1,000 directly from out-of-State sources; the rec-
ord does not contain the total value of its purchases during this period
or the value of its indirect out-of-State purchases.4
It is now well settled that, in making the provisions of the Act
applicable to labor disputes which affect commerce or tend to affect
commerce, Congress undertook to regulate all conduct having such
consequences as might constitutionally be regulated under the com-
merce clause.5 There can be no doubt that the Employer's operations
come within this broad coverage of the Act. The Employer provides
necessary services to members of the travelling public who travel in
interstate commerce. In addition it purchases goods from points
outside the State of Florida. Whether the Board has jurisdiction
over the Employer's operations is not to be determined by confining
judgment to the quantitative effect of the activities immediately
3 We find no merit in the Employer's objection to the hearing officer's ruling permitting
Petitioner to amend the petition with respect to the unit description contained therein.
Contrary to the Employer, the alteration in the descripion of the unit does not amount
to the filing of a new petition without due notice to the Employer. Whether or not the
unit, as amended, is larger than that originally sought, the Petitioner's showing of in-
terest is adequate to support the petition, as amended.
4 That most of the beverages sold by the Respondent originate outside the State seems
apparent, in view of the absence of local sources of supply therefor. 'See 1954 Census
of Manufactures, U.S. II, pt. 1, Beverages Table 2; Bureau of the Census.
S Amalgamated Association of Street Electric Railway d Motor Coach Employees v.
Wisconsin Employment Relations Board, 340 U.S. 383; Polish National Alliance of the
United States of North America v. N.L.R.B., 322 U.S. 643; N.L.R.B. v. Fainblatt, at al.,
306 U.S. 601 ; N.L.R.B. v. Jones d Laughlin Steel Corporation, 301 U.S. 1.
FLORIDAN HOTEL OF TAMPA, INC. 263
before the Board in this case.6 The hotel industry is a $2,400,000,000
industry? Its primary function is to furnish lodging facilities, food'
and beverages, and other services to members of the travelling public.
Thus, the operations of the industry facilitate the movement of per-
sons in this country, and labor disputes which interfere with hotel
operations also exert or tend to exert an impact upon the operations
of the various media of passenger transportation. In addition the
industry makes substantial purchases of foods, beverages, china, silver-
ware, linens, carpeting, furniture, and utility services such as heat,
power, and light, as well as various types of insurance and advertis-
ing.' In the case of a particular hotel, such purchases may or may
not directly involve interstate commerce, but in the aggregate, such
purchases of the industry clearly have a substantial impact on the
operations of the various supplying industries, and involve substantial
shipments of goods and materials in interstate commerce. As the
Employer's operations are representative of operations in the hotel
industry generally, and as the operations of that industry affect com-
merce within the meaning of the Act, we find that the operations in-
volved herein are within the Board's statutory jurisdiction .9
With respect to the Employer's contention that the Board should
adhere to its past policy of not asserting jurisdiction over the hotel
industry, the Board has concluded that the recent Supreme Court
decision in Hotel Employees, Local No. 255 v. Leedom, et al., 358 U.S.
99, requires reversal of that policy.10 In that decision the Court found
that the Board's application of that policy in a representation pro-
ceeding 11 involving the employees of the Miami Hotel Association,
was contrary to the principles expressed in Office Employees v.
N.L.R.B., 353 U.S. 313, 318, 320. In the O ice Employees case the
Court held that the Board's refusal to assert jurisdiction over labor
unions as a class, when acting as employers, was beyond the Board's
power. The Court pointed out that the Board sometimes properly
e Ibid. See also Wickard v. Filburn, 317 U.S. 111.
71954 Census of Business , vol. V , Selected Services, Summary Statistics , Hotels and
Motels. The industry employs more than 377 , 000 employees , and its annual payroll
amounts to approximately $800,000 , 000. The same source discloses that In 1954 there
were 15 ,070 motels , with annual gross receipts of approximately $365,000,000, employ-
ing 43 , 000 paid employees , with a payroll of more than $64,000,000.
sFor a breakdown of the typical hotel operating expenses see Horwath , Hotel Opera-
tions in 1.957 , and Trends in the Hotel Business--1957 , Harris Kerr Forster & Company.
0 Even were the Employer 's contribution towards meeting the demand of interstate
travelers for hotel accommodations trivial , as they are not, that fact would not by
itself remove its operations from the scope of the Act , where, as here, its contribution,
taken together with that of many others similarly situated , is far from trivial. Wick-
ard v . Filburn, supra.
10 On January 11, 1959 , the Board announced its determination to assert jurisdiction
in cases arising within the hotel industry , as a direct consequence of the Supreme
Court's Hotel Employees decision. Press Release (R-.586).
11 All Hotel Members of Miami Hotel Association, Case No . 10-RC-3135 (unpublished).
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declines to assert jurisdiction in a particular case, and that the Board's
jurisdictional standards exclude small employers whose operations'
affect commerce to an insufficient extent to warrant assertion of juris-
diction. But the Court held that the exercise of discretion in such
instances did not give the Board the power to remove unions as em-
ployers from the coverage of the Act nor "to decline jurisdiction over
all employers in other fields." These are the principles which the
Court held to govern the Board's jurisdictional determinations with
respect to the hotel industry, and it follows that, as the operations of
the industry affect commerce within the meaning of Section 2 (6) and
(7) of the Act, the Board cannot exempt that industry from the pro-
visions of the Act by declining to assert jurisdiction over all hotel
employers as a class.12
The Board is, therefore, required to exercise jurisdiction in cases
arising in the hotel industry. However, this does not mean that the
Board must assert jurisdiction in all such cases. In the Office Em-
ployees decision, the Supreme Court itself indicated that the Board
does have discretionary authority to decline to assert jurisdiction in
those instances where it finds that the policies of the Act will be
effectuated by such action. In Siemons Mailing Service,13 the Board
noted that the 1958 jurisdictional standards were an exercise of its
discretionary authority to decline to exercise its full statutory jurisdic-
tion, setting forth reasons why it believed the utilization of published
standards in making jurisdictional determinations was superior to a
case-by-case approach to the problem. We think the same considera-
tions apply here. Accordingly, though we have determined to assert
jurisdiction in cases arising within the hotel industry, we find that
it will effectuate the policies of the Act to limit assertion of jurisdic-
tion to those cases involving hotel and motel enterprises, exclusive of
permanent or residential hotels and motels, which receive at least
$500,000 in gross revenues per annum. For purposes of application
of this standard, a permanent or residential hotel or motel is one as
to which 75 percent of its guests may be regarded as permanent
guests, that is they remain for a month or more.
"The fact that the Office Employees case involved a class of employers , i.e., labor
unions, which Congress by "strikingly particular reference " included within the definition
of employer , whereas this case involves a class of employers not specifically mentioned
in the Act is an insufficient basis on which to ground disparate treatment . The Supreme
Court itself indicated as much, by holding that the same principles govern the Board's
jurisdictional determinations as to the two classes of employers. Moreover, it must
be noted that the specific inclusion of labor organizations "when acting as employers"
In Section 2(2) of the Act, is by way of qualifying a stated exclusion of labor organ-
izations in some other capacity from the definition of employer . The answer to the
question whether a particular labor organization , when acting as an employer comes
within the Board's jurisdiction, depends upon whether its operations affect commerce
within the meaning of Section 2 ( 6) and (7) of the Act. This is the same question
facing the Board in this case.
Is 122 NLRB 81 (Member Jenkins concurring specially).
FLORIDAN HOTEL OF TAMPA, INC. 265
In making this determination 14 we have been guided by the fact
that well over 60 percent of the employees in the hotel industry will
be covered by this standard. Census Bureau statistics disclose that,
of the industry's 377,000 employees, over 207,000 or approximately
55 percent are employed in hotels which gross over $500,000 annually,
and that these hotels do in excess of 55 percent of the total business
done by the industry.15 In addition, there are numerous chain enter-
prises operating more than one hotel establishment,18 a factor which
should qualify certain smaller hotels and their employees for coverage
under the standard, as will the fact that, characteristically, collective-
bargaining negotiations in the industry are conducted by multiem-
ployer associations on a citywide or metropolitan-area basis." Under
well-established policy the Board treats chain enterprises and multi-
employer associations as single employers for jurisdictional purposes
and asserts jurisdiction over all their operations. Accordingly, it is
apparent that standard will require assertion of jurisdiction over
that part of the industry which exerts a significant impact on com-
merce, and which employs the great majority of employees, and does
so without danger of unduly burdening the Board's processes by in-
volving them in a multitude of cases involving employers whose total
economic significance is slight. This is a factor of importance. The
Board has indicated that the caseload resulting from adoption of the
1958 standards represented the maximum workload that can expedi-
tiously and effectively be handled by the Board and its staff within
existing budgetary limitations.18 We know of nothing that has hap-
pened since to alter the soundness of that judgment. Accordingly,
though the Board is bound to assert jurisdiction over the hotel in-
dustry, there are practical administrative reasons for seeking to limit
the increase in workload resulting from such action. This the $500,000
standard does, while at the same time ensuring effective regulation of
labor relations within the industry."'
14 We have taken into consideration the comments and suggestions submitted to the
Board in briefs and in oral argument by unions and employer groups active within the
hotel industry, and which were submitted in response to the Board's invitation set forth
in its January 11, 1959, announcement of its determination to assert jurisdiction in cases
arising in the hotel industry.
15 Total gross revenues of the industry amount to over $2,400,000,000 annually, of
which hotels receiving at least $500,000, receive over $1, 299,000,000, or 56 percent.
1" 1957 Directory of Hotel Operations lists 161 hotel chains operating 3 or more hotels
for a total of 1,387 hotels.
1'+ Characteristics of Major Union Contracts, U.S. Department of Labor, Bureau of Labor
Statistics , Monthly Labor Review, vol. 79 (July 1956) Table 3, p. 807 , which shows that
of 30 major contracts in the industry in 1956, 29 , covering over 150,000 employees, were
negotiated by multiemployer associations.
1s Siemens Mailing Service, supra.
11 Member Fanning's concurring opinion states that adoption of the $500,000 standard
means that the Board will assert jurisdiction over only 840 out of approximately 24,000
hotel establishments in the country-or 3.5 percent . It may be relevant to point out,
however , that this is not out of line with the comparable figures for the retail Indus-
try under -the jurisdictional standard which was adopted unanimously by the present
Board Members . Thus, according to the best available statistics , it appears that only
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, as the Employer receives in excess of $500,000 gross
revenue annually, and as it does not appear that its hotel operations
constitute a residential hotel or motel as defined herein, we find that
it will effectuate the policies of the Act to assert jurisdiction in this
proceeding.20
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2 (6) and (7) of the Act.
4. Petitioner seeks to represent all employees of the Employer
exclusive of office clerical employees'21 barber shop employees, guards,
and supervisors. The Employer and Petitioner agree that all em-
ployees in the executive, auditors office, front office and barber shop
departments, and the package shop operator are excluded and that
the superintendent of service, chef, hostess, housekeeper, engineer, and
chief telephone operator are excluded as supervisors within the mean-
ing of the Act. The Employer would, contrary to the Petitioner's
desires, exclude all employees in the telephone and the engineers and
6.5 percent of the retail establisments in the country , and only 36.8 percent of the retail
store employees in the country are covered under the present $500,000 standard for
that industry . While the percentage of covered establishments is somewhat higher than
in the case of the hotel industry , the percentage of covered employees in the retail in-
dustry is substantially lower than our estimate of more than 60 percent for the hotel
industry.
Contrary to the implication in Member Fanning 's concurring opinion , the Board's
original proposed $ 100,000 jurisdictional standard for hotels was not selected by us
because of the "link in commerce and public service aspects of the operations of the
hotel industry ," or because we deemed that figure necessary to assure more than token
coverage of the hotel industry . None of these matters was adverted to in any of the
Board 's public statements on the subject. In announcing its proposed $ 100,000 standard,
the Board stated merely that its action was a result of the Supreme Court's decision in
the Hotel Employees case , supra, which held that the Board had no authority to ex-
clude the hotel industry as such from the coverage of the Act . This announcement made
it clear that the $100 ,000 figure was merely tentative and subject to revision. While
it is true , as the concurring opinion points out, that, in the main, the comments on this
proposal by industry and employee representatives did not attack the $100 , 000 figure
on the ground that it was too low, we have selected the higher $500,000 figure , because,
as we have stated, we believe it will be more consonant with the effective discharge
of the Board's responsibilities , within existing budgetary limitations.
20 We are constrained to note that Board Member Jenkin's dissenting opinion is predi-
cated on the dubious premise that the Board lacks experience in dealing with hotels.
Board records show, however , that Mr. Jenkins is factually wrong in this assertion.
Since 1948 alone , the Board has conducted representation elections in approximately 50
representation cases involving hotels of various magnitude located in the District of
Columbia , Puerto Rico ,. the Virgin Islands, and Hawaii . In addition , during the same
period, the General Counsel has processed a considerable number of unfair labor practice
charges filed against hotels in the same areas.
21 As stated on the record , Petitioner's amended unit request would exclude all "office
and clerical employees ." In the past the Board has used this term to include clerical
employees working outside of the office as well as those working in the office . It has,
however , discontinued such usage . As it is clear from the record that Petitioner would
include various employees , who, though their duties are clerical in nature , do not work
in the office , we construe the requested exclusion as embracing only office clerical em-
ployees . See D . M. Steward Manufactur ing Company , 102 NLRB 461.
FLORIDAN HOTEL OF TAMPA, INC. 267
.maintenance departments as technical employees,22 and certain other
employees in other departments either as supervisory or as clerical
employees. We turn now to a discussion of the disputed classifica-
tions.
Telephone operators and assistant engineers: The Employer em-
ploys six operators, who operate a telephone switchboard, which
handles all incoming and outgoing telephone calls. Practically all
of the calls are either to or from the various rooms furnished to guests.
The Employer charges guests for each call made by them. The
Employer employs four assistant engineers, who work under the
supervision of the engineer. They work in the engineroom and operate
heating and air conditioning equipment. They are licensed by the
city of Tampa. The Employer contends that the operators and
assistant engineers are technical employees and should, therefore, be
excluded from the unit. We disagree. Such employees are not tech-
nical employees within the meaning of that term as used in decisions
of the Board. Accordingly, we find that operators and assistant engi-
neers are properly included in the unit, which is essentially a hotel-
wide unit, and we shall include them.
Bell captains and assistant bell captains: The employer would
exclude these employees as supervisors. They work under the direc-
tion of the superintendent of the service who has general respon-
sibility over the service department, including the work of bellboys,
doormen, elevator operators, a presser, and a valet. There are 30 em-
ployees in this department, including the superintendent, to man 3
shifts. Each shift is under the direction of a bell captain, who is in
charge whenever the superintendent is off the floor. The authority to
hire, discharge, and discipline employees is lodged in the superintend-
ent, but bell captains' recommendations in this area are given some
weight. Bell captains may carry luggage and perform other similar
duties when no bell boys are available for such service. All employees
in the service department are salaried and all except the presser and
valet wear uniforms. On the basis of the foregoing, we are unable to
decide whether bell captains are supervisors within the meaning of
the Act. Accordingly, we shall permit them to vote in the election,
hereinafter directed, subject to challenge. We are satisfied however
that the assistant bell captains are not supervisors within the mean-
ing of the Act. Their assumption of the duties and responsibilities of
bell captains is too sporadic in nature to warrant a finding that they
are supervisors, even assuming that bell captains are supervisors.
Head cooks: The Employer employs two head cooks who work on
different shifts. They work under the supervision of the chef, and
they prepare and cook food with the help of assistant cooks. They
22 The Employer seeks to invoke the Board 's well-established rule of not including tech-
nical employees in units of other employees over the objection of one of the parties.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do not have authority effectively to recommend as to the hiring or
discharging of other employees. Such direction as they may give to
other employees is of a nonsupervisory nature. We find that the head
cooks are not supervisors within the meaning of the Act and we shall
include them in the unit.
Head waiter: This individual is in charge of the Employer's ban-
quet and party room facilities. He has authority to hire and fire
party waiters who work in the banquet rooms and also the bar waitress
and party waitress, who work in the cocktail lounge (Sapphire Room)
at night, and work parties in the day time when needed. We find that
the head waiter is a supervisor, and we shall exclude him from the unit.
Head bartender: This individual has authority to hire and dis-
charge bartenders who work in the tap room and the Sapphire Room.
The Employer employs four bartenders. We find that the head bar-
tender is a supervisor within the meaning of the Act, and we shall
exclude him from the unit.
Hostess and cashier and relief hostess and cashier: The two individ-
uals in the hostess and cashier classification work in the dining room
under the immediate supervision of the hostess. The dining room
is open for two meals a day. Each hostess and cashier works one
meal as a hostess and one meal as a cashier. When the hostess is
absent, the hostess and cashier on duty is "in charge" of the activities
of dining room personnel, but the record does not show that either
hostess and cashier has exercised supervisory authority during these
periods. Accordingly, in -view of the sporadic nature of the assump-
tion of such authority over the activities of other employees as they
may have, and in the absence of affirmative evidence to the contrary,
we find that neither hostess and cashier is a supervisor within the
meaning of the Act, and we shall include them in the unit 23 It follows
that the relief hostess and cashier is not a supervisor within the mean-
ing of the Act, and we shall include that individual in the unit.
Hostess in the tap room : The Employer contends that this individ-
ual is a supervisor. She works as a hostess or receptionist in the cock-
tail lounge at night. The record contains no evidence of supervisory
responsibilities on the part of this hostess. We find that she is not a
supervisor, and we shall include her in the unit.
Inspectoresses: The Inspectoresses work in the housekeeping de-
partment under the immediate supervision of the housekeeper. The
inspectoresses inspect guest rooms after the maids have finished pre-
paring them for occupancy, and report any defects in the work of the
maids to the housekeeper. Though the inspectoresses thus are instru-
mental in calling to the housekeeper's attention situations which may
21 Cf. Helms Motor Express Inc., 107 NLRB 132, 135. The Employer contends that the
cashier duties of these individuals are clerical in nature , and requires their exclusion
from the unit on that ground. We find no merit in this contention.
FLORIDAN HOTEL OF TAMPA, INC. 269
call for disciplinary action, it is the housekeeper who determines
the need for such action. We find that the inspectoresses have no
authority effectively to recommend disciplinary action and are not
supervisors within the meaning of the Act. We shall therefore include
them in the unit.
The Employer contends that two checkers and the food superin-
tendent who work in the kitchen department, the cashier in the dining
room department and the cashier in the tap room department, and the
receiving clerks in the miscellaneous department, should be excluded
from the unit on the grounds that they are clerical employees.
The checkers: These employees work at a station between the
kitchen and dining room and inspect trays to see that items on the
tray conform to the customer's order, and are properly priced.
Food superintendent: This employee keeps a record of the food
taken from the storeroom to the kitchen which record is sent to the
front office. The cashiers operate cash registers and receive payment
from dining room and tap room customers.
Receiving clerks : These employees are stationed in an office next
to the receiving entrance of the hotel. They check all invoices of
delivered materials with a receiving sheet, and check off items as
they are delivered to the hotel. The duties of the above employees
are clerical in nature, but they perform them at various stations in
the hotel away from the front office. They are not office clerical
employees. As they are not covered by the parties' agreement to
exclude office clerical employees, we find that they are appropriately
included in the hotelwide unit sought by the Petitioner.
We find that the following employees employed at the Employer's
Hotel Floridan, Tampa, Florida, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9(b) of the Act:
All employees including receiving clerks, checkers, food super-
intendent, hostess and cashiers, relief hostess and cashier, cashiers,24
assistant bell captains, hostess in the tap room, inspectoresses, tele-
phone operators, and assistant engineers, but excluding employees in
the executive, auditors office, front office, and Barber Shop depart-
ments, office clerical employees, the mail clerk'21 the house officer, the
head bartender, the head waiter, the superintendent of service, the
chef, the hostess in the dining room, the housekeeper, the engineer,
the chief telephone operator, the package store operator, guards, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
29 Except that the front office cashier is excluded by agreement of the parties.
25 The parties stipulated to the exclusion of the mail clerk.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER JENKINS, concurring in part and dissenting in part :
I would remand this case.
The Board does not have before it a full and complete factual
record on the nature and extent of the Employer's operations. From
the 75-page record before us, a few pages of which are devoted to
gross income and food and beverage sales for 1958, it is impossible
to form a reasoned conclusion as to what effect, if any, a stoppage of
work occasioned by a strike at the Employer's operations would have
on commerce as defined in Section 2 (6) of the Act or to what extent
it would "affect commerce" as defined in Section 2(7) of the Act..
While the Board may possess discretion to assert or not assert jurisdic-
tion, it is not empowered to adopt standards without a reasoned basis
for such standards. There is no reasoned basis for the standard
adopted here.
The recent Supreme Court decision in Hotel Employees, Local No.
255 v. Leedom, et al., 358 U.S. 99, prevents the Board from refusing
to exercise jurisdiction over the hotel industry as a class without as-
signing any reason therefor other than its long-standing policy of
not exercising such jurisdiction. This case, when read in conjunction
with Of/ice Employees v. N.L.R.B., 353 U.S. 313, where the Court
held that the Board could not refuse to assert jurisdiction over labor
unions as a class, when such unions were acting as employers, leads
me to the conclusion that while the Board has discretion to assert or
not to assert jurisdiction in any particular case, it cannot arbitrarily
refuse to do so. In other words, it is my opinion that while the
Supreme Court has said that the Board may not decline to exercise
jurisdiction over hotels as a class (absent a reasoned basis for such
refusal) it has not said that the Board must or must not exercise
jurisdiction over any particular hotel in a particular setting of
circumstances.
I am unable, from the record in this case, to find any factual basis
on which to form a reasoned conclusion as to whether or not it would
effectuate the policies of the Act to assert jurisdiction in this particu-
lar case. Indeed, the majority opinion of the Board merely proceeds
on the assumption that since this hotel does an annual gross business
of over $500,000 that it would effectuate the policies of the Act to as-
sert jurisdiction over this hotel. No reasoned basis for its adoption has
been set forth by the Board. My fundamental objection to the stand-
ard which the majority utilizes is that it is not arrived at by any rea-
soning process. In my opinion, this standard is open to the same ob-
jection that the Supreme Court found in the Board's declining to
exercise jurisdiction over hotels on the "sole grounds" that it had al-
ways done so, i.e., that it is a policy not reasonably related to the func-
tion of the Board in carrying out the purposes and policies of the Act.
In my opinion, the Board has wide discretion to assert or not to assert
FLORIDAN HOTEL OF TAMPA, INC. 271
jurisdiction provided that it exercises its discretion as a result of
rational and reasonable conclusions based upon facts. I do not believe
that this Board has the power to merely say that it will adopt a
standard of $500,000 a year gross business and then apply this stand-
ard without giving any reason or basis for its adoption.
On May 14, 1959, by means of a press release, the National Labor
Relations Board announced that it would exercise "jurisdiction over
hotels and motels, other than residential hotels, who do a gross an-
nual business of $500,000. (The Board defines a residential hotel as
one in which at least 75 percent of the guests reside therein for a month
or more during the preceding year.)" The press release did not in-
dicate why residential hotels were to be excepted and residential motels
were not to be excepted. The majority in this case now excepts resi-
dential hotels and residential motels. The very necessity of changing
the announced standard enforces my often-repeated objection to ad-
ministration by press release.
From 1935 to 1950 the National Labor Relations Board approached
other industries on a case-by-case basis. After 15 years of experience,
the Board in 1950 adopted certain jurisdictional standards which
were largely codifications of existing law or attempts to reconcile pos-
sible conflicting existing case law. I do not believe that the Board is
empowered to set jurisdictional standards which are not based on ex-
perience or anything else.
In my opinion, it would be wiser, at least at this time, for us to ap-
proach hotels on a case-by-case basis. The Board's actual experience
with labor relations in the hotel industry, whatever the individual
Board Member's knowledge of this industry may or may not be, could
scarcely be called extensive. Since the passage of the Taft-Hartley
Act the Board has handled approximately 99,611 representation cases.
Fifty of these representation cases involved hotels located in the Dis-
trict of Columbia, Puerto Rico, the Virgin Islands, and Hawaii. These
50 cases amount to approximately .0005 percent of the cases handled.
During the same period of time the Board has handled 69,593 com-
plaint cases, or a total of 169,204 cases of both types. Although the
Board may have a vast knowledge of labor relations in many areas
gained over many years, its experience in the hotel industry is limited.
In any given case I would like to know the labor relations history, if
any, of the hotel ; the existence or nonexistence in the course of its
history of labor disputes; the organized or unorganized position of
its workers, etc. Experience gained in the knowledge of labor rela-
tions in other industries may prove very helpful in dealing with
hotels, but the Board should not assume that this is true without con-
crete and reasonable proof.
The present Board standard by the majority's own statistics means
that only about 840 out of approximately 24,000 employers in the hotel
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
industry will be covered by the application of our Act. This means
that 23,160 employers out of 24,000 will be relegated to a "legal no-
man's land," where they will find themselves prevented from access
to State courts, and denied access to the Board for relief from "sec-
ondary boycotts," jurisdictional disputes, etc. Further, the majority's
own statistics indicate that only about 60 percent of the hotel em-
ployees will be covered. No reason is given as to why the remaining
40 percent should be denied the protection of the law, or should be
subject to the prohibitions of the law.
My opinions on jurisdiction and the development of the various
problems have been heretofore set forth at some length.26
I have repeatedly said that it is the duty of every citizen to obey
the law whether enforced against him or not. I have repeatedly said
that "the proper solution to the whole problem is congressional ac-
tion." I would personally leave much to the States, but unless and
until Congress decides to modify the outstanding law as interpreted
by the Supreme Court, I am still of the opinion that the relegation
of a substantial part of any industry to the law of the jungle is beyond
the power of this Board. I would approach the hotel industry on
a case-by-case basis, exercising jurisdiction where it would effectuate
the policies of the Act, learning from experience what units are ap-
propriate for the hotel industry, what their bargaining problems are,
what their economic position is in relation to their labor problems,
etc. I fail to see how it can prevent an interruption to the free flow
of commerce for us without a reasoned basis to assert jurisdiction
over only a segment of the hotel industry. Indeed, I feel it will be
more likely to disrupt the free flow of commerce, than to aid in estab-
lishing industrial peace.
We should approach the hotel industry on a case-by-case basis so
as to make it possible for the Board as an institution to develop in
relation to that industry the experience in dealing with hotels which
the Board has in dealing with other industries. I feel any other
approach is one not reasonably related to the Board's duty to accom-
plish the stated objectives of our Act, and that the Board's present
approach is not a proper exercise of quasi-judicial discretion.
I would remand this case to the hearing officer with instructions to
present to the Board a full and complete factual record on which the
Board could formulate a reasoned decision as to whether or not to
exercise jurisdiction.
20 Chicago Metropolitan Mutual Assurance Company, 119 NLRB 352, 353 , Member
Jenkins dissenting ; see also Shaver Transfer Company, 119 NLRB 939, 943 ( Member
Jenkins dissenting in part ) ; John TV. Galbreath & Co., 120 NLRB 625, 626 (Member
Jenkins dissenting ) ; Siemons Mailing Service , 122 NLRB 81 ( Member Jenkins concurring
specially ) ; Problems of Federal-State Jurisdiction in Labor Relations by Joseph A.
Jenkins, vol . 31, No. 3, Rocky Mountain Law Review , April 1959, pp. 315 through 340.
FLORIDAN HOTEL OF TAMPA, INC. 273 .
MEMBER FANNING, concurring specially :
I agree with the majority's decision to exercise jurisdiction in cases
arising in the hotel industry. The Supreme Court's Hotel Employees
decision leaves the Board with no alternative but to discard its past
policy of declining jurisdiction in such cases. I agree too, with the
majority's conclusion that it will effectuate the policies of the Act, to
exercise such jurisdiction on the basis of an appropriate jurisdictional
standard 27
However, I do not agree that the $500,000 gross revenue test selected
by the majority is appropriate. The Board initially proposed to
exercise jurisdiction on the basis of a $100,000 gross revenue test which
was selected with due regard to the link in commerce and public
service aspects of the operations of the hotel industry, and because it
would result in more than token compliance with the direction of the
Supreme Court as expressed in the Hotel Employees case. No serious
objection was entered against the $100,000 test by the various respond-
ents to the Board's invitation to submit comments, either in their writ-
ten briefs or in oral argument before the Board. The main thrust of
the comments was in opposition to the Board's conclusion that it was
required to assert jurisdiction over the industry. Aside from an im-
plicit analogy of hotel operations to retail operations, as reflected in
the selection of the retail $500,000 standard, the majority offers as
justification for its standard only "practical administrative reasons
for seeking to limit the increase in workload resulting from the exten-
sion of jurisdiction into the hotel industry," and the claim that over
60 percent of the employees of the industry will be included within
the Board's jurisdiction. I am not persuaded as to the desirability of
departing from the standard originally proposed by the Board.
The majority's decision to limit the Board's exercise of jurisdiction
in the hotel industry to those establishments which receive annual
gross revenues of $500,000 or more precludes the Board from discharg-
ing its full responsibilities as the administrator of the national labor
policies embodied in the Act. In enacting the provisions of the Act,
Congress meant to provide for a uniform regulation of labor manage-
ment relations,"' in order to protect the entire range of economic
27 Siemons Mailing Service, 122 NLRB 81 . While, for the reasons indicated below,
I share Member Jenkins' views that the majority 's $500,000 standard is inappropriate, I
do not share his belief that the Board has insufficient information upon which to base
a determination that it will better effectuate the policies of the Act to make jurisdic-
tional determinations in cases arising in the hotel industry on the basis of a properly
chosen jurisdictional standard , rather than on a case-by - case basis . As noted in
the Siemons Mailing Service decision , the Board's experience in making jurisdictional
determinations both without and with the aid of announced standards , has demonstrated
the superiority of the jurisdictional standard approach . I see no reason why the
Board must shut its eyes to such experience , merely because the Board has heretofore
followed the policy of not asserting jurisdiction over hotels generally.
28 San Diego Building Trades Council v . J. S. Garmon, et al ., 353 U. S. 26. P . S. Gicss
d/b/a Photo Sound Products Manufacturing Company v . Utah Labor Relations Board,
525543-60-vol. 121-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity "affecting commerce" from the impact of labor strife 29 To
this end it invested the Board with primary responsibility for the
implementation and enforcement of that policy 30 It is now well
established that the States are excluded from regulating any activity
affecting commerce which is "arguably subject to Section 7 or Section
8 of the Act" 31 except of course such conduct as is marked by violence
or imminent threats to the public order 32 as to which State jurisdic-
tion has prevailed because of the "compelling State interest in the
scheme of our federalism, in the maintenance of domestic peace." 33
Save for that exception State jurisdiction is excluded even where the
Board declines to exercise its jurisdiction.34 This preemptive effect
of the Act places upon the Board a heavy responsibility. If it declines
to exercise jurisdiction it relegates the labor-management relations of
the enterprises involved to a legal no-man's-land subject to regulation
by no agency or court, and thus frustrates the congressional intention
of legislating a uniform national labor-management relations policy.
The Board has recognized that in these circumstances, only the most
compelling reasons of administrative necessity justify its refusal to
exercise its full statutory jurisdiction, declaring that
... its primary function is to extend the national labor policies
embodied in the Act as close to the legal limits of its jurisdiction
established by Congress as its resources permit.35
This is as true of jurisdictional determinations with respect to cases
arising in the hotel industry as it is to cases arising in other industries,
and a standard which limits the Board's jurisdiction only to the giants
of the hotel industry hardly seems in keeping with that function.
The majority relies on two basic claims to support its determination,
namely, (1) that the new standard will bring within the Board's
jurisdiction well over 60 percent of the employees in the industry, and
353, U . S. 1; Amalgamated Meat Cutters , etc. v. Fairlawn Meats , Inc., 353 U.S. 20 , ;
Joseph and Joseph A . Garner etc . v. Teamsters , Chauffeurs and Helpers Local Union
NO. 776 ( AFL), 346 U . S. 485; Amalgamated Association of Street, Electric Railway
Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383.
2e Joseph and Joseph A. Garner v . Teamsters , Chauffeurs and Helpers Union, etc., supra.
"In adidtion to cases cited in prior two footnotes, see also Bethlehem Steel Co. v.
New York State Labor Relations Board, 330 U.S . 767; LaCrosse Telephone Company v.
Wisconsin Employment Relations Board, 336 U.S. 18.
31 San Diego Building Trades Council v. J. S. Garmon supra; P. S . Guss d/b/a Photo
Sound Products Manufacturing Company v. Utah Labor Relations Board , supra.
32.1nternational Union United Automobile , Aircraft and Agricultural Implement Work-
ers of America (UAW-CIO) v. Russell, 356 U.S. 634; Youngdahl v. Rainfair, United
Construction Workers v. Laburnum , 347 U . S. 656.
33 San Diego Building Trades Council V . J. S. Carmen, supra.
34 P. S. Goss d/b/a Photo Sound Products Manufacturing Company v. Utah Labor Rela-
tions Board, supra ; Amalgamated Meat Cutters , etc. V . Fairlawn Meats, Inc., supra. Un-
less of course , the Board cedes jurisdiction to the States , pursuant to the proviso of
Section 10 ( a) of the Act . To date the Board has deemed cession to be impossible because
of the lack of consistency in the provisions of the Federal and State Acts.
115 Siemens Mailing Service, supra.
FLORIDAN HOTEL OF TAMPA, INC. 275
(2) that there are practical administrative reasons for seeking to limit
the increase in caseload resulting from the extension of the Board's •
jurisdiction to the hotel industry.
As to the first, even if we accept that estimate of employee coverage,
and it is only an estimate unsupported by appropriate citation, the
fact remains that the $500,000 standard will exclude the overwhelming
majority of employers in the industry, as well as it substantial number
of the industry's employees. The Census Bureau publications cited
by the majority disclose that only approximately 840 of the approxi-
mately 24,000 hotel establishments in the country receive annual
gross revenues in the required amount. The Act was enacted for the
protection of the rights of employers as well as of employees and labor
organizations, and it was intentionally drawn to include within its
coverage small employers. As Senator Taft so well. stated : 36
I myself feel that the larger employers can well look after them-
selves, but throughout the United States there are hundreds of
thousands of smaller employers, smaller businessmen, who under
the existing statutes, have come gradually to be at the mercy of
labor-union leaders, either labor-union leaders attempting to
organize their employees, or labor-union leaders interfering with
the conduct of their business for one reason or another.
Under the majority's standard, the smaller hotel employers can look
in vain for the protection which by right is theirs. Moreover accept-
ance of the majority's inference that the existence of hotel chains and
multiemployer bargaining patterns in the industry will bring addi-
tional hotel establishments within the Board's jurisdiction, merely
emphasizes the fact that the $500,000 standard covers only that por-
tion of the industry which has accepted the principles of collective
bargaining. I fail to see how it can effectuate the policies of the Act
to tailor the Board's jurisdictional policies to exclude precisely that
portion of the industry which most needs the opportunity to resort
to the Board's processes if the principles of collective bargaining and
the other objectives of the statute are to make any further headway.
As to the second factor cited by the majority, a moment's reflection
indicates the lack of any practical administrative reasons for choosing
$500,000 rather than $100,000 as the minimum standard. The Board's
experience indicates that it is highly unusual for more than 10 per-
cent of the number of employers in any particular industry whose
operations come within the Board's jurisdictional standard, to become
3'93 Daily Congressional Record 3950, Apr. 23, 1947. See also the views of Senators
Taft, Ball, Donnell, and Jenner, as expressed in S. Rept. 105 on S. 1126, Supplemental
Views, p. 45.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in a Board proceeding during any particular year.37 Con-
.sequently the true measure of the practical administrative problems
involved in the extension of jurisdiction to hotel operations can be
rather accurately gauged. The majority's $500,000 standard should
produce an increase of only one-half of one percent of the Board's
current caseload. The number of additional cases to be expected from
application of the $100,000 standard initially proposed should amount
to an increase of only about 1.3 percent of the Board's current case-
load.38 In terms of administrative problems the difference between
the two standards is certainly inconsequential, and does not furnish
the necessary justification for selection of the more restrictive stand-
ard. Nor does the majority's reliance upon the fact that the percent
of coverage under the $500,000 standard compares favorably with the
percent of coverage under the Board's retail standard alter this con-
clusion. The total number of retail establishments in this country,
according to the 1954 U.S. Census of Business published by the U.S.
Bureau of the Census is 751,453, as contrasted with the approximately
24,000 hotel establishments. Indeed the 6.5 percent coverage of the
industry adverted to by the majority is more than the total number of
hotel establishments, and it is at once apparent that in selecting the
appropriate retail industry standard, the Board was faced with. the
type of practical administrative problem urged by the majority as
the reason for its action herein, whereby any significant reduction in
the minimum monetary amount required would bid fair to flood
the Board with cases from the retail industry, thus hampering its
administration of the Act with respect to other industries. No such
problem is faced by the Board in this matter.
Finally I can see no justification for applying the same standard
to the hotel industry as is applied to the retail industry. There is no
essential similarity between the two industries to require uniformity
of treatment. The retail industry purchases goods for resale to local
customers. The hotel industry furnishes essential services to guests
who have traveled to the local community for pleasure or business
purposes, or who are passing through on their way to a further desti-
nation. As such the industry serves as a link in the interstate trans-
portation of its guests and its operations are colored with a public
interest, in that the furnishing of essential services to travelers in-
47 The number of Board cases occurring in any one industry is well within the 10 per-
cent of the total number of employers in the industry whose operations meet the appli-
cable jurisdictional standard. For example, during fiscal 1958, the Board processed
16,659 cases, of which 9,440 involved manufacturing enterprises, 417 involved mining
employers, 1,848 involved construction enterprises , 1,028 involved wholesale enterprises,
1,428 involved retail enterprises , and 2 ,033 involved enterprises in the transportation,
communication, and public utility industries . Twenty-third Annual Report of the Na-
tional Labor Relations Board, 1958.
Is The Census Bureau publications cited by the majority disclose that approximately
2,084 hotel establishments receive annual gross revenues in excess of $100,000.
FLORIDAN HOTEL OF TAMPA, INC. 277
duces them to stop and engage in commercial and business transactions
in the community.39 The industry does purchase substantial amounts
of goods, but aside from food and beverage purchases, not for the
purpose of resale, but rather to enable it to perform its basic function
of providing services to travelers. And even with respect to food and
beverage sales, an analogy to retail restaurant operations is of only
limited application. As noted by Horwath and Horwath : 40
... the fact remains that the independent restaurant is operated
purely for profit on food sales or on food and beverage sales, while
the hotel restaurant is operated for the double purpose of profit
on food and beverages and service to room guests. If an inde-
pendent restaurant finds that it is not profitable to open for
breakfast, it remains closed; if it finds that it is not profitable
to keep open after 8 p.m., it closes at that time. But the hours
of a hotel restaurant must be governed by the demands for serv-
ice of the room guests, within reason.
Accordingly, because the hotel industry's operations are tailored
almost wholly towards meeting the needs of the traveler, commer-
cial or otherwise, and because their revenues are derived mostly from
guests who come from outside the local community, with the result
that labor disputes within the industry tend to exert an impact on
the transportation industries and on cominerce generally, I find that
the $500,000 gross revenue standard which was initially adopted with
the needs and characteristic of the retail industry in mind, is inap-
propriate for the hotel industry. And in the absence of more per-
suasive reasons why the $500,000 test will effectuate the policies of
the Act better than the $100,000 test initially proposed by the Board,
I would apply the $100,000 standard to cases arising in the hotel in-
dustry. I therefore believe that it will effectuate the policies of the
Act to assert jurisdiction herein.
For the reasons stated in the majority opinion I find that the unit
of employees as described in paragraph 4 therein is an appropriate
unit for purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act, and I concur in the Direction of Election.
s' If it be true as asserted in the majority opinion, that the majority did not consider
the "link in commerce and public service aspects " of the hotel industry in selecting the
original proposed $100,000 jurisdictional standard , it must follow that such considera-
tions can have played no part in its selection of the more restrictive $500,000 retail
standard as the applicable standard . This is a surprising admission , in view of the fact
that the Board plainly relies upon those aspects of the industry 's operations , in finding
that the operations of the hotel industry and of the Employer involved herein, affect
commerce within the meaning of the Act. Aside from any other factors, the failure to
consider these significant and salient aspects of the hotel industry's impact upon com-
merce makes the $500,000 standard an inappropriate yardstick by which to judge the
operations of particular employers within the industry.
d0 Hotel Operations in 1955, 24th Annual Study ; Horwath & Horwath, Hotel Account-
ants and Consultants.