Fairchild Cafeteria

In the Matter of LEE E. STINE D/B/A FAIRCHILD CAFETERIA AND FAIR- CHILD ENGINE AND AIRPLANE CORPORATION, EMPLOYERS and UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., PETITIONER Case No. 5-RC-303.-Decided December 15, 1949 DECISION DIRECTION OF ELECTION AND ORDER Upon a petition duly filed, a hearing was held before LeRoy W. C. Mather, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed? 1. Fairchild Engine and Airplane Corporation, hereinafter referred to as "Fairchild," is a Maryland corporation engaged in the manufac- ture and sale of aircraft, aircraft engines, and aircraft accessories at Hagerstown, Maryland; Farmingdale, New York; and Oak Ridge, Tennessee. Fairchild is engaged in commerce within the meaning of the Act.2 Lee E. Stine d/b/a Fairchild Cafeteria, hereinafter referred to as "Stine," operates a cafeteria which is located in the basement of Fairchild plant No. 2 at Hagerstown, Maryland. The cafeteria is operated pursuant to the terms of a 1-year contract dated July 1, 1948, which was renewed for a further term of 1 year on July 1, 1949. The Petitioner seeks to represent all production employees, with specified exclusions, in the cafeteria. The Petitioner contends that Fairchild is a joint employer with Stine of these employees; whereas, the Employers contend that Stine alone is the employer of the cafe- teria employees. The contract under which Stine operates the cafe- teria, among other things, provides : (a) Fairchild shall furnish heat, electricity, steam, gas, water, and cafeteria equipment. However, Stine is required to maintain and replace all sundry cafeteria equipment; . (b) Any manager selected by Stine shall receive the approval of Fairchild ; I The names of the parties appear as amended at the hearing. 2 Fairchild Engine and Airplane Corporation , 73 NLRB 154. 87 NLRB No. 95. 667 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Stine may not increase the prices charged for food without the prior approval of Fairchild ; (d) Fairchild shall prescribe a minimum diet acceptable to it and has the right to inspect all food delivered to the cafeteria and reject for use any food which is not a good quality; (e) New employees of Stine are required to undergo physical ex- aminations by a physician approved by Fairchild, and are required to be examined at 90-day intervals to insure their suitability for the preparation and handling of food. The cost of such examinations shall be borne by Stine; (f) Stine's profits are limited to $1,000 per month, and he is required to submit monthly profit and loss statements to Fairchild. However, Fairchild does not undertake to reimburse Stine for any losses he may suffer from the operation of the cafeteria; and (g) The contract may be terminated by either party on 30 days' written notice to the other party. The evidence shows that in December 1948, when Stine negotiated with Fairchild for an increase in the prices of food, Fairchild objected to, and prevented, Stine from granting the cafeteria employees any general increase in wages in excess of 10 cents per hour. However, the contract, under which Stine operates the cafeteria, does not entitle Fairchild to control the labor relations affecting the cafeteria em- ployees or to influence their conditions of employment. With the single exception mentioned above, Fairchild has never attempted to exercise any such control. Moreover, the cafeteria employees are carried on the pay roll of Stine, who not only pays social security taxes, unemployment compensation taxes, and workmen's compensa- tion insurance premiums for such employees, but also directs their work and hires, discharges; and transfers the cafeteria employees without consulting Fairchild. Upon the basis of the foregoing and upon the record in this pro- ceeding, we do not believe that Fairchild has the right to exercise that degree of control over the cafeteria employees required to establish an employer-employee relationship between Fairchild and such em- ployees.3 Therefore, in accordance with the contention of the Em- ployers, we find that Stine is an independent contractor and that the employees of the cafeteria are the employees of Stine and are not em- ployees of Fairchild. Accordingly, we shall dismiss the petition inso- far as it alleges that Fairchild is an employer of the employees involved herein. 8 Swanson Brothers Logging Company, 71 NLRB 614 ; Consolidation Coal Company, 63 NLRB 169, 173; Mahoning Mining Company, 61 NLRB 792, 802; Canyon Lumber Com- pany, 59 NLRB 1512. FAIRCHILD CAFETERIA 669, . At the hearing, Stine made a motion to dismiss the petition on the: ground that he is not engaged in interstate commerce. During-1948, Stine's receipts from the sale of food in the cafeteria were approxi- mately $140,000. During the same period, his purchases amounted to approximately $75,000, of which 10 to 12 percent was shipped from points outside the State of Maryland. The cafeteria is patronized, exclusively by employees of Fairchild. Approximately 3,500 persons are employed in its Hagerstown plant, of whom about 35 percent regularly eat in the cafeteria. Most of the remaining employees bring, their lunches. - The only other restaurants in the vicinity of the plant are located approximately one-eighth and one-fourth of a. mile, respec- tively; from the entrance to the plant. Because hourly paid employees are allowed only 30 minutes for lunch, it is impractical for them to leave the plant for meals . Only a few salaried employees eat in either, of the afore-mentioned out-of-plant restaurants. Thus, the cafeteria provides the only practical eating facilities for a substantial number of Fairchild employees . In consequence, uninterrupted cafeteria service is.essential to Fairchild's own operations, which clearly affect com- merce. Under these circumstances we find, contrary to the contention of Stine, that the latter is engaged in commerce within the meaning of the National Labor Relations Act,4 and further that, because of the relationship of Stine's operations to those of Fairchild, it would effec- tuate the policies of the Act for this Board to exercise jurisdiction. Accordingly, we hereby deny Stine's motion to dismiss the petition. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The Petitioner and Stine are in general agreement that the pro- posed unit of all production employees is appropriate. However, the Petitioner contends that the baker, assistant baker, and candy counter girl are independent contractors and should be excluded from the unit, and that Helen D. Baker is a clerical employee and should also be ex- cluded. The record shows that , except for some variances in hours of employment, the working relationships between Stine and the baker, assistant baker, and candy counter girl are similar to those of the other employees in the cafeteria. There is no indication in the record that these employees exercise any independence in the perform- ance of their duties. At all times they are subject to the control and direction of the managerial representatives of Stine. In consequence, contrary to the contention of. the Petitioner , we find that the baker, 4 Air Terminal Services, Inc., 67 NLRB 702. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assistant baker, and candy counter girl are not independent contrac- tors, but are employees, and we shall include them in the unit. Helen D. Baker is the only clerical employee of Stine. She spends all her time taking charge of the cash registers, making deposits, and doing work of a similar nature. In accordance with our usual policy of excluding clerical employees from units of production employees, we shall exclude Mrs. Baker from the unit.' We find that the following employees of Lee E. Stine d/b/a Fair- child Cafeteria constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production employees' in the Hagerstown, Maryland, cafeteria, including cooks, counter girls, kitchen help, waitresses, butcher, baker, assistant baker, and candy counter girl, but excluding clerical em- ployeess watchmen, guards, professional employees, and supervisors' as defined in the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Lee E. Stine d/b/a Fairchild Cafeteria, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, includ- ing employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement,. to determine whether or not they desire to be represented, for purposes of collective bargaining, by United Automobile, Aircraft & Agricul- tural Implement Workers of America, C. I. O. ORDER . IT IS ORDERED that only insofar as the petition herein names Fair- child Engine and Airplane Corporation as an employer of the em- United States Gypsum Company, 81 NLRB 182. s Helen D. Baker is excluded from the unit as a clerical employee. in accordance with the stipulation of the parties Joseph R. Berkenbaugh, Grace Schmidt, and Nora P. Hawse are excluded from the unit as supervisors. FAIRCHILD CAFETERIA 671 ployees in the unit found appropriate in paragraph numbered 4, above, that the same be, and it hereby is, dismissed. MEMBER MURDOCK took no part in the consideration of the above Decision, Direction of Election, and Order.