Szabo Food Service

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees at a regularly constituted meeting voted to withdraw and dis- affiliate from the Intervenor and to affiliate with the Petitioner. The Employer refused to recognize the Petitioner because of its existing contract with the Intervenor. On the basis of these facts, particularly the grave extent of the intraunion split in the representative of the Employer's employees, we find that the bargaining relationship between the parties to the 'existing contract is in a state of serious confusion and that a recog- nizable schism exists in the contracting union at the Employer's plant. Accordingly, we find that. the contract is not a bar to a present deter- mination .of representatives. A question affecting commerce exists concerning the representation of the Employer's employees within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act,, 4. We find that all production and maintenance employees at the Employer's plant #7, excluding section men, watchmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act .s [Text of Direction of Election omitted from publication in this volume.] 4 BostonMachine Works Company, 89 NLRB 59 ; Wade Manufacturing Company, supra, and cases cited therein. 6 The description of the unit was amended at the hearing to conform to that found appropriate by the Board in an earlier case involving this Employer , The Erwin Cotton Mills Company, supra, not reported in printed volumes of Board decisions. The Petitioner and Employer would exclude, and the Intervenor include, section men in the bargaining unit. The record indicates that the duties and authority of these individuals at the time of the hearing had not changed since the Board excluded them as supervisors from the established production and maintenance unit. JOSEPH C. SZABO AND RAYMOND A. LONGWORTH, PARTNERS, D/B/A SZABO FOOD SERVICE i and HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, A. F. L., PETITIONER. Case No. 10-RC-2002. November 14, 1952 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 Morgan C. Stanford, 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-member panel [Members Houston, Styles, and Peterson]. 1 The Employer's name appears as amended at the hearing. 101 NLRB No. 78. SZABO FOOD SERVICE 319 Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees 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. The Employer has moved to dismiss the instant petition on the ground that it is not an employer within the meaning of the Act because a contract which it executed with the Tennessee Valley Au- thority, herein called TVA, governs the operation of the Employer's cafeteria at the TVA operation at Wilson Dam, Alabama. This contract reserves to TVA the right to approve the wages paid to the cafeteria employees employed there, as well as to control other incidentals of the employer-employee relationship. The Employer operates industrial cafeterias in Illinois, Indiana, Ohio, Wisconsin, Missouri, and Alabama? Annual gross revenues from all these operations exceed $5,000,000. Since its acquisition in January 1952 of the Wilson Dam cafeteria, the only one involved in this proceeding, the Employer has derived gross revenues from this operation exceeding $50,000. Approximately 85 percent of this cafe- teria's patrons are employees of TVA, while the remaining 15 percent are employed by contractors doing business with TVA. Pursuant to its contract with TVA, the Employer is granted the exclusive right and license to operate cafeteria facilities on the site of Wilson Dam for the purpose of making food and commissary serv- ices available to employees during such hours as TVA may designate. The contract further provides : (a) All cafeteria employees in specified job classifications must be paid the rate prescribed by TVA, and any other wage schedules must be approved by TVA. (b) All cafeteria employees must undergo physical examinations given by TVA medical personnel. (c) Vacation benefits shall be accorded to the cafeteria employees on bases prescribed by TVA. (d) The right to deny admittance upon the Wilson Dam site to any person, and the right to remove any person from the site, shall be reserved to TVA. (e) TVA shall assure the Employer a fixed profit during each accounting period. n See Joseph C. Szabo and Raymond A. Longworth, Partners, d/b/a Szabo Food Service, 10-RC-2001 ; J. C. Szabo d R. A. Longworth, d/b/a Szabo Food Service, 9-RC-1673. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) The contract between TVA and the Employer may be termi- nated at any time by either party. However, other than as specified above, the Employer retains con- trol over the working conditions of the cafeteria employees. Thus, the Employer retains the right to hire, discharge, promote, discipline, and supervise the cafeteria employees, as well as co participate in processing their grievances. Moreover, these employees are carried on the Employer's payroll, and are covered by workmen's compensa- tion insurance carried in the Employer's name and for which the Em- ployer pays the premiums. Upon the basis of the foregoing and the entire record in this pro- ceeding, we find that the Employer retains the degree of control over the working conditions of the cafeteria employees required to establish an employer-employee relationship .3 Accordingly, we find that the Employer is the employer of the cafeteria employees at Wilson Dam within the meaning of the Act. We shall therefore deny the Em- ployer's motion to dismiss. 4. The appropriate unit : The Petitioner seeks a unit of all employees engaged in the prepara- tion, handling, and serving of food at the Employer's cafeteria at Wilson Dam, including four assistant chef managers, but excluding all office clerical employees employed full time in such capacity, watch- men, guards, and all supervisors as defined in the Act. The Employer contends that the assistant chef managers should be excluded from the unit on the ground that they are supervisors. We shall therefore consider the unit placement of these individuals. Alexander Robinson : Robinson, who is classified as assistant chef manager, is in charge of the cooking and baking operations in the kitchen. During his tour of duty, which extends from 4: 30 a. in. until 1 p. in., Robinson is assisted by an employee named Williams, who does the baking. The evidence discloses that Williams receives the same rate of pay as Robinson, that Robinson has no authority to alter Williams' working conditions or to recommend his promotion, and that Robinson possesses authority to supervise Williams' work only to the extent that such supervision is exercised by experienced em- ployees over those less skilled. The Employer's witness testified that Robinson possessed authority to recommend the hiring and discharge of employees, and that Robinson had recommended the hiring of three employees on one occasion when the Employer commenced operations at the cafeteria and was in need of personnel. However, the evidence is contradictory as to whether Robinson effectively recommended the 8 See Delco-Remy Division, General Motors Corporation, 89 NLRB 1334; Lee E. Stine d/b/a Fairchild Cateteraa, 87 NLRB 667. SZABO FOOD SERVICE 321 hiring of these individuals or whether he merely referred them to the chef manager who independently investigated their qualifications prior to hiring them. There is no recorded instance in which Robin- son has recommended the discharge of an employee. Upon the basis of the foregoing, and the entire record in this pro- ceeding, we find that Robinson is not a supervisor within the meaning of the Act, and we shall therefore include him in the unit.4 Ellon Mallon: Mallon is classified as assistant chef manager for the morning shift, which extends from 7 a. m. to 3 p. m. Two hours of Mallon's time is spent in preparing the breakfast meals. For 21/2 hours, Mallon operates a cash register on the cafeteria food line, and directs and assists four girls who serve customers at the food counter. The balance of her time is devoted to such chores as taking receipts to the bank, bookkeeping, receiving merchandise, and taking inven- tory. It appears that Mallon receives the same hourly rate of pay as do the countergirls, and that the work of these countergirls is of such routine nature that their direction does not require the exercise of independent judgment. On the basis of the foregoing, we find that Mallon is not a supervisor as defined in the Act. Accordingly, we shall include her in the units Lenore Hale: Hale, classified as second shift assistant chef manager, works from 3:30 p. m. to midnight. The duties of this individual include steam table dish-up work and any special cooking that might be required during the shift. Hale has no authority to order merchan- dise but may reject deliveries without contacting the chef manager if the deliveries do not conform to the orders. Aside from a general utility employee who works until 4: 30 p. m. on the second shift, Hale is the only individual employed by the Employer who is present in the cafeteria during that period of time. While it appears that Hale directs the general utility employee during the hour in which he works on Hale's shift, the duties of this employee are routine in nature. Under all the circumstances, we find that Hale is not a supervisor within the meaning of the Act. We shall therefore include Hale in the unit. James Drew: Drew is classified as third shift assistant chef manager and is in charge of all functions of the cafeteria, including the kitchen. During the third shift, which runs from 11: 30 p. m. to 7: 30 a. m., Drew is the sole person assigned to the cafeteria. As Drew has no ' See Bear Brand Hosiery Company , 93 NLRB 95 ; Gee Knight ct Co., 93 NLRB 1193. 'See Bear Brand Hosiery Company, 93 NLRB 95 The Employer alternatively con- tended that Mallon should be excluded from the unit as an office clerical employee because she performs clerical duties during her working (lay The Petitioner argues that she is not an office clerical employee. As Mallon spends a majority of her time in the cafeteria doing cafeteria work, we find that her duties and interests are sufficiently allied with the other cafeteria employees to warrant her inclusion in the unit 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subordinate working under him and therefore has no occasion to exercise any supervisory authority, we find that he is not a supervisor as defined in the Act. We shall therefore include him in the unit .6 Accordingly, we find that all employees engaged in the preparation, handling, and serving of food at the Employer's cafeteria at Wilson Dam, Alabama, including the four assistant chef managers, but excluding all office clerical employees employed full time in such capacity, watchmen, guards, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 6 The Kroger Company, 93 NLRB 274. JASPER SEATING COMPANY, PETITIONER and UPHOLSTERERS' INTER- NATIONAL UNION OF NORTH AMERICA, AFL AND FURNITURE & VENEER WORKERS LOCAL No. 331, UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL.' Case No. 35-RM-41. November 14, 1952 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 Charles Y. Latimer, 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- member panel [Chairman Herzog and Members Styles and Peterson]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees 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. ' Herein called the Upholsterers ' Union. 2 The Jasper Union moved to intervene at the hearing . The Upholsterers' Union contends that the Jasper Union is not a labor organization within the meaning of the Act. However, we find that the Jasper Union was organized , and exists, for the purpose of collective bargaining with respect to wages , hours , and working conditions of the employees of the Employer we find that it is a labor organization within the meaning of the Act. DeMay's Inc., 81 NLRB 1374 101 NLRB No. 81.