Interstate Co.

INTERSTATE CO., GLASS HOUSE RESTAURANTS , ETC. 101 Interstate Co., Glass House Restaurants, Indiana Toll Road and Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, Petitioner. Case No. 13-RC-6581. Novem- ber 12, 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 John C. Sheeren, 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Fanning]. 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 named below claims to represent certain employees of the Employer. The Employer contends that the hearing should be reopened for the purpose of taking further evidence to determine whether Peti- tioner or some other labor organization is the real party in interest in this proceeding. There was evidence at the hearing that the organiza- tion of the instant employees on behalf of the Petitioner was con- ducted by a trustee of one of its locals, who was assisted by the president of a Teamsters' local.' However, since the Petitioner is the only union which will appear on the ballot and, as the Employer, if the Petitioner is certified, will not be required to bargain with any other union, we see no useful purpose in taking further evidence on the issue raised by the Employer. The request for reopening the hearing to take such evidence is therefore denied. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within Section 9(c) (1) and Section 2(6) and (7) of the Act. Scope of the Unit The Employer operates a chain of restaurants in several States. The instant case involves its Indiana Toll Road division which con- sists of 16 restaurants along the Indiana Toll Road located approxi- 1 The Employer does not contend that either of these locals is not in compliance with the filing requirements of the Act and the Board records show that they have, in fact, complied. 125 NLRB No. 11. 535828-60-vol. 125-8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mately 18 miles from one another,2 also, the Glass House Restaurant at Michigan City, Indiana, located approximately 61/2 miles from the Indiana Toll Road, and a commissary building at Elkhart, Indiana, which adjoins one of the restaurants. Petitioner seeks all the em- ployees in this division. The Employer, while suggesting that the record is deficient on this issue, asserts that if the Board is satisfied with the record, the overall bargaining unit would be appropriate. The record shows that the Employer's restaurants, including the Michigan City restaurant, are engaged in substantially the same operation, the preparation, sale, and service of food and the sale of merchandise in a gift shop which is a part of each restaurant. The commissary is engaged in the preparation of food for use in the restaurants and the shipment of food and merchandise to the restau- rants. The administrative offices of the division are located in the commissary building. The Indiana Toll Road division is under the supervision of the Employer's Divisional General Manager Gibbons. Two food supervisors and two service supervisors report directly to Gibbons. The two food supervisors, one assigned to the restaurants on the east portion of the Toll Road, and the other to the restaurants in the west, are in charge of the preparation of food, training of cooks, porters, dishwashers, and the general housekeeping of the restaurants. The two service supervisors, whose area of supervision is divided along the same geographic lines as that of the food super- visors, are responsible for the quality of service to patrons, and train waitresses, hostesses, cashiers, and new managers. The gift shop man- ager, who is in charge of gift shop operations at all the restaurants, also reports directly to Gibbons. The food and service supervisors give direct orders to the managers of the individual restaurants re- garding the operation of the restaurants and there is almost daily contact among them. Gibbons holds monthly meetings with the man- agers of the restaurants and the manager of the commissary. The job classifications and wage scales at the restaurants and the commissary are substantially the same, except that the following job classifications are found at the commissary but not at the restaurants : bake shop employees, ice cream preparation employees, shipping em- ployees, vegetable room employees, truckdrivers, butcher shop em- ployees, butcher packing employees, and gift shop storeroom employ- ees. There is a uniform policy with respect to vacations, insurance, 2 Ten of the sixteen Toll Road restaurants were in operation at the time of the hearing. Two of the remaining six were scheduled to open on the first day of the hearing (restau- rants 4E and 4W), two were scheduled to open several days after the hearing ( restaurants 2E and 2W), and the remaining two were scheduled to open before the end of June (restaurants GE and 6W). Approximately 75 percent of the employees who were to work at the four restaurants scheduled to open after the 'hearing had been hired and were in training at the time of the hearing. The Employer testified that the operations, job classifications, wage scales, and hours at these restaurants would be the same as those in the restaurants presently in operation. INTERSTATE CO., GLASS HOUSE RESTAURANTS, ETC. 103 profit-sharing plan, and other employee benefits for all employees. The regular workweek for all employees is 48 hours . There is a limited amount of interchange of employees among the Toll Road restaurants but there is presently little or no such interchange be- tween the Toll Road restaurants and the Michigan City restaurant. Employees are hired for each restaurant by the manager of the res- taurants, except that gift shop employees for all the restaurants in- volved are hired by the gift shop manager. Payroll records are kept by the Employer at its main office in Chicago. Wages are paid by check mailed from Chicago and distributed by truck to the various units from the commissary. In view of the foregoing, particularly the overlapping supervisory hierarchy, the substantial similarity in job classifications, wage scales and hours, the uniform employee benefits, and the fact that the Em- ployer and Petitioner are in essential agreement that a divisionwide unit would be appropriate , and as such a unit corresponds to an administrative segment of the Employer 's operations,' we find, upon the present record,' that the operations of the Employer's Indiana Toll Road division are sufficiently centralized and integrated to war- rant a finding that a single overall unit is appropriate.' Composition of the Unit 6 (a) Part-time employees: There are 43 regular part-time em- ployees and 6 on-call employees in the proposed unit. The parties agree that the regular part-time employees should be included in the unit. In accordance with our usual practice, since the parties have stipulated as to the inclusion of regular part-time employees, we will include them in the bargaining unit. The Employer would also include the on-call part-time employees and the Petitioner would exclude them or in the alternative, allow them to vote subject to challenge. As the record does not contain sufficient evidence regarding the regularity of their employment, we shall permit them to vote under challenge. 3 Frank G. Shattuck Company, 106 NLRB 838, 839. 4 while suggesting deficience in the present record insofar as it relates to the size of the unit, the Employer's brief fails to specify what these deficiencies are. In any event, we are satisfied that the record is adequate. 5 The Interstate Company, 118 NLRB 746, 747. This case involved the representation of employees working in the west Virginia Turnpike division of the same employer as in the instant case. The Board held that a single divisionwide unit was appropriate. At the hearing in the instant case, the Employer testified that its Indiana Toll Road opera- tion was "somewhat similar" to its west Virginia operation. See also, Frank G. Shattuck Company, supra ; Father & Son Shoe Stores, Inc., 117 NLRB 1479 ; Robert Hall Clothes, Inc., 118 NLRB 1096. Although the hearing officer erred in refusing to allow the Employer to examine its witnesses concerning their duties, the Employer was not prejudiced thereby since Peti- tioner stipulated as to the duties of these employees as stated in the Employer 's offers of proof. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Supervisors: The two food supervisors and the two service supervisors give direct orders to the managers of the individual res- taurants as to the operation of the restaurants and, together with the divisional general manager, hire these managers. We exclude them as managerial employees. The gift shop supervisor and the managers of the individual restaurants, including the commissary manager, are authorized to hire employees and they have done so in the past. As these individuals exercise supervisory authority within the meaning of the Act, we will exclude them from the unit. All but seven of the restaurants' have an assistant manager and each of the restaurant managers decides what authority his assistant manager will have. The record discloses that the assistant man- agers of restaurants 1E, 3W, 3E, 5W, and 7E have authority to hire and discharge employees; that the assistant manager of restaurant 8W has the authority to hire, discharge, transfer, and discipline em- ployees; that the assistant manager of the Michigan City restaurant has the authority to hire but not the authority to discharge employees. As these assistant managers exercise supervisory authority within the meaning of the Act, we shall also exclude them. The Employer would include the assistant managers of restaurants 1W and 8E and the Petitioner would exclude them on the ground that the "pattern of authority" in the Employer's hierarchy estab- lishes that assistant managers exercise independent discretion and direct other employees. The assistant manager of restaurant 1W has no authority to hire or discharge employees nor has she disci- plined or reprimanded employees; she does not make out work schedules, although she informs employees as to how to perform their duties; she does not attend the managerial meetings with the divi- sional general manager; and she is paid, like the manager and unlike the other employees, on a daily basis. Although employees may present grievances to her when the manager is not available, the record does not show what action, if any, she takes thereon. The assistant manager of restaurant 8E has no authority to hire, discharge, transfer, or discipline. Since there is no evidence that either of these assistant managers exercise the statutory authority of a supervisor, we shall include them. Although the testimony is contradictory, it appears that there is no assistant commissary manager but that a commissary shipping employee takes over the management of the commissary when the manager is absent. This employee does not have authority to hire or discharge employees, and, in directing employees, she follows the in- structions of the commissary manager. We shall therefore include her. 7 There are presently no assistant managers at restaurants 2E, 2W, 4E, 4W, 5E, 6E, and 6w. There is also no assistant gift shop manager. INTERSTATE CO., GLASS HOUSE RESTAURANTS , ETC. 105 A relief manager was hired at the beginning of June whose pri- mary duty at present is to supervise the opening of the new restau- rants. She also relieves restaurant managers on their days off and during their vacations with authority to hire and discharge em- ployees. The Employer would exclude the relief manager from the unit and the Petitioner takes no position. Since the relief manager regularly substitutes for supervisors and exercises the same authority, we find that she is a supervisor and we shall exclude her.' The shift managers and night managers are employed regularly as cooks and waitresses , but on certain occasions they are given some "detail work" by the managers . Since there is no evidence that they have authority to hire or discharge employees or that they possess any of the other statutory indicia of a supervisor , we will include them in the unit .9 (c) Other employees : The Employer takes no position and the Petitioner would exclude as "office-clerical and/or managerial" em- ployees the following employees : personal secretary to the divisional general manager, personal secretary to the purchasing agent, switch- board operator , comptometer operator , receiving and filing clerk, pay- roll clerk, assistant to the payroll clerk, bookkeeper, inventory control men, purchasing agent, gift shop buyer, public relations man, and cost control men. The personal secretaries, the switchboard operator, comptometer operator, receiving and filing clerk, payroll clerk, assistant to the pay- roll clerk, and the bookkeeper perform various clerical tasks in a large office in the commissary building . Contrary to the Petitioner's con- tention, we find that these employees are not managerial but office clerical employees. Although clerical employees are excluded from production and maintenance units, the Board normally includes office clerical employees in units of retail selling employees, absent a con- trary bargaining history and where no labor organization seeks to represent them separately , because of the "strong mutual interests which office clericals share with the sales personnel ." 10 Similarly, the Board has included checkers and cashiers in a unit of cafeteria em- ployees despite the fact that, unlike the other cafeteria employees, they were deemed by the Board to be clerical employees." The office clerical employees here are subject to the same supervision and per- sonnel practices as other employees and enjoy the same employee benefits. We find that they have a community of interest with the other employees in the unit and will include them. 8 United States Gypsum Company, 120 NLRB 906, 909. 9 The Interstate Company, supra, at pp . 748-749. 19 S. H. Kress & Company, 92 NLRB 15, 17. See, Sears, Roebuck & Company, 112 NLRB 559. n The Rath Packing Company, 101 NLRB 96. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record discloses that the purchasing agent works at the com- missary office and is engaged in the purchase of food, equipment, and supplies for the restaurants. The gift shop buyer also works at the commissary and makes purchases for the gift shops, and, in addition, supervises the distribution of merchandise from the commissary and does inventory and display work in the various gift shops. In ac- cordance with customary Board policy, we will exclude these em- ployees as managerial employees because of their buying function.12 The public relations employee travels throughout the area of the Indiana Toll Road to publicize the Employer to automobile clubs, motels, and travel agencies. We find that the public relations em- ployee has sufficient community of interest with the other employees to warrant including him in the unit, and we will include him." The record shows that the inventory control men travel from res- taurant to restaurant taking physical inventory of food supplies and equipment and, at other times, assist at the restaurants in various capacities, including the preparation of food. The cost control man travels to the restaurants, taking inventory of food items in order to verify inventories against sales. We find that these individuals have sufficient community of interest with the other employees to warrant their inclusion, we will include them.14 The courier picks up money from the various restaurants and re- turns it to the commissary for deposit in the bank. On occasion, he carries messages and daily reports between the restaurants and the commissary and also delivers food. At the hearing, Petitioner con- tended that the courier should be excluded, possibly as a guard, since he is entrusted with transporting the money of the Employer. The Employer took no position as to the inclusion or exclusion of the courier. Since the courier is employed not to guard the money of the Employer but rather to transport it from place to place, we find that he is not a guard and include him in the unit.15 4. The following employees of the Employer constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All employees in the Indiana Toll Road division of the Interstate Co., including employees at the Glass Douse Restaurant in Michigan City, Indiana, the commissary at Elkhart, Indiana, part- time employees, on-call employees, the assistant managers at restau- rants 1W and 8E, the assistant commissary manager, shift managers, night managers, public relations employee, inventory control men, cost control men, courier, personal secretaries, switchboard operator, receiving and filing clerk, payroll clerk, assistant to the payroll clerk, " The Fair Department Store, 107 NLRB 1501, 1502. 13 The American News Company, Inc., 77 NLRB 1036; Bonwit Teller, Inc., 84 NLRB 414, 424. 14 Western Electric Company, Incorporated, 100 NLRB 420, 422. 15 Philadelphia Company and Associated Companies, 84 NLRB 115 , 118; Capital Transit Company, 105 NLRB 582, 586. KENNECOTT COPPER CORPORATION 107 comptometer operator, and bookkeeper, and excluding purchasing agent, gift shop buyer, food supervisors, gift shop supervisor, service supervisors, managers of the individual restaurants, commissary man- ager, assistant managers of restaurants 1E, 3W, 3E, 5W, 7E, 8W, and the Michigan City, Glass House Restaurant, relief manager, and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Kennecott Copper Corporation and United Steelworkers of America, AFL-CIO and International Association of Machin- ists, Local Lodge #1957, AFL-CIO, Petitioner. Cases Nos. 21-RC-5904 and 21-RC-5920. November 12, 1959 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before James W. Cherry, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are 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 Leedom and Members Bean and Fanning]. 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 named below claim to represent certain employees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The appropriate unit: Case No. 21-R.C-5920 Petitioner herein, International Association of Machinists, Local Lodge #1957, AFL-CIO, herein called the Machinists, seeks a unit (as amended at the hearing) composed, with the usual exceptions, of all mechanics, welders, their apprentices and helpers, steam cleaner operators, and laborers employed in the Employer's truck shop, small truck shop, company garage, and cat shop in its Ray Mines Division at Ray, Arizona.' Smelter Workers was certified in 1955' as IIn Case No. 21-RC-5920, International Union of Mine, Mill and Smelter Workers, Independent , herein called the Smelter Workers , was allowed to intervene on the basis of a contractual interest. 2 There are 34-35 mechanics , 4-5 helpers , 4 apprentices , 3 welders , a steam cleaner operator , and 5 laborers employed at the truck shop. There are three truck mechanics employed at the company garage , two truck mechanics employed in the cat shop, and 125 NLRB No. 12.