Hot Shoppes, Inc.

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ularly the close and intimate relationship of those at the airport with other establishments and facilities within the metropolitan area; (c) the standardization and uniformity of conditions of employment within the metropolitan area; (d) the proximity of the airport facil- ities to all other of Employer's establishment within the area; and (e) the substantial interchange of employees between the airport facilities and the balance of the Employer's operations within the metropolitan area. My colleagues seek here to rationalize their unit finding upon the principal ground that operations at the National Airport are` "func- tionally distinct." With this finding I cannot agree. Food prepara- tion and handling is the common connecting link that runs through the entire chain of the Employer's operations within the District of Columbia metropolitan area. I see no functional or any other realistic distinction to be drawn from the fact that in one instance the diner may be physically located in his automobile in a drive-in type estab- lishment, in another he may be seated at a table in a conventional type restaurant, in still another he may be at a group-sized table in an employee cafeteria,, and in 'a fourth,case;°he°may be -struggling.with a food tray while airborne. The employees who prepared and handled the food to the point of service must fairly in each instance be said to have performed the same basic functions. An alleged geographical separation of the airport employees from other Hot Shoppes establishments within the metropolitan area is asserted as o , additional:bAsis for my colleagues' unit.position. Prox- imity, or the lack thereof, is a relative concept. Here, it'is apparent that all of the Employer's District of Columbia operations fall within a very limited metropolitan area. In the factual context of this case, emphasis upon an asserted separation of employees is completely unwarranted. Tlt majority's decision to cut up the overall District of Columbia metropolitan area unit, and carve out a separate National Airport unit,; necessarily makes the Union's "extent of organization" the de- cisive factor in this case. This fact cannot be, obscured by a routine recital of certain of the Board's traditional criteria for unit formula- tion, for those criteria do not comport to the facts of this case. Hot Shoppes, Inc. and Chicago Truckdrivers, Chauffeurs and Helpers Union of Chicago and Vicinity (Independent), Peti- tioner. Case No. 13-RC-7143. Febrwary 10, 1961 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Albert Kleen, hearing of- 130 NLRB No. 23. HOT SHOPPES, INC. 145 ficer. The hearing officer's ruling made at the hearing are free from prejudicial error and are hereby affirmed. 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 above claims to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) and Section 2(6) and (7) of the Act for the reasons hereinafter indicated. The Petitioner seeks to represent a unit composed of all truck- drivers and helpers at the Employer's operation at Midway Airport in Chicago, Illinois. The Employer contends that the unit sought is inappropriate, as the only appropriate unit is one including all em- ployees of the Employer in Chicago. Hot Shoppes, Inc., is a Delaware corporation engaged primarily in the retail sale of food in a chain of restaurants with its central offices located in the District of Columbia. It operates, through 60 wholly owned subsidiaries, establishments located in 11 States and the Dis- trict of Columbia. Hot Shoppes Caterers, Inc., a wholly owned sub- sidiary of Hot Shoppes, Inc., operates airline catering services in various cities of the United States.' In Chicago, the Employer operates airline catering services at Midway Airport and O'Hare Air- port. These airline catering operations involve the preparation, in so-called flight kitchens, of hot meals for airline passengers, the de- livery of these meals to the airport by means of trucks, and the load- ing of the meals on the airplanes. These catering operations are the Employer's only operations in the Chicago area. There is no history of collective bargaining with respect to the employees of the Em- ployer in the Chicago area. The record discloses that O'Hare Airport is located 20 miles from Midway Airport. The Employer's Midway and O'Hare operations are each supervised by a manager, who, in turn, is supervised by a district manager who is in charge of the entire Chicago area. The district manager spends his time on an almost equal basis between Midway and O'Hare, supervising management personnel at each of these operations. While each of the individual managers is authorized to hire employees, the record shows that the manager who hires an employee may refer him to the manager of the other operation for ' In view of the foregoing and as the record indicates that the officers of the subsidiary corporations are the same persons who are the officers of the parent corporation, we find for unit purposes that Hot Shappes, Inc., and its subsidiaries constitute a single Employer. Gibbs Oil Company, et at., 120 NLRB 1783; Hot S'hoppes, Inc., 130 NLRB 138. Hot Shoppes , Inc., and Hot Shoppes Caterers , Inc , are sometime referred to herein as the Employer 597254-61-vol. 130-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD actual placement, if, for example, the employee lives closer to the other airport. Each manager is authorized to discharge employees, but only with the approval of the district manager, who "generally" follows the recommendations of the manager. On occasion, a driver may be required to transport supplies from one operation to the other operation. Both Midway and O'Hare em- ploy the same classifications of employees; the duties of the employees in both operations are identical. Wage scales and employees benefits, established nationally by the Employer from Washington, D.C., are identical for both operations. Similarly, labor relations policy for both the Employer's Chicago operations, as well as for its operations throughout the United States, are handled by the Employer's per- sonnel department, which is located in Washington, D.C. The per- sonnel department also handles other personnel matters for all of the Employer's operations in the United States, including those in Chicago. During the 18 months preceding the hearing, there were 16 per- manent transfers of nonsupervisory employees between O'Hare and Midway, and, of these, 13 transfers involved drivers and helpers.-' Nine of these transfers were from Midway to O'Hare in order to take care of the expanding business at O'Hare, and other transfers were made to accommodate employees who lived nearer to one of the air- ports and because employees were required by the Employer for par- ticular jobs. A representative of the Employer testified that it had "occasions" to send employees from O'Hare to assist Midway em- ployees in performing their functions. In view of the foregoing, particularly the fact that the Midway and O'Hare operations are the Employer's only operations in the Chicago area, the fact that both operations are under the same supervision, the extent of employee interchange between the two operations, and the further fact that wage rates and working conditions are identical for both operations, we find no plausible reason for establishing a separate unit of employees employed at Midway.3 The only reason for separating the employees at Midway from the employees of O'Hare would be the extent of Petitioner's organization .4 In this connection, the record indicates that the Petitioner has three times sought to represent employees of the Employer at the Chicago area. ' At the time of the hearing, the Employer employed at Midway 134 nonsupervisory employees of whom approximately 40 were drivers and helpers , and at O'Hare it employed 170 nonsupervisory employees of whom approximately 37 were drivers and helpers. ' See Franck G Shattuck Company, 106 NLRB X838; Robert Hall Clothes, Inc, 118 NLRB 1096; Haas Brothers, Inc, 119 NLRB 568 In view of this finding, we find it unnecessary to determine whether the drivers and helpers here may constitute an appropriate unit separate from other employees of the Employer 4 Member Kimball agrees that for the various factors linking the O'Hare and Midway operations a unit limited to the Midway operations is inappropriate However , he does not rely upon the facts concerning the Union 's past attempts to organize employees at the operations in Chicago as indicating the inappropriateness of the limited unit sought. HOT SHOPPES, INC. 147 On July 7, 1955, in Case No. 13-RC-4431 (not published in NLRB volumes), a consent election was held in a unit of flight attendants b at the Midway Airport. However, at that time, the O'Hare Airport was not yet in operation, and, of course, the Employer had no em- ployees there. On August 10, 1956, in Case No. 13-RC-5126 (not published in NLRB volumes), a consent election was held in a unit composed of flight attendants at both Midway and O'Hare. Again, on June 19, 1958, in Case No. 13-RC-6029 (not published in NLRB volumes), a consent election was held involving flight attendants at both Midway and O'Hare. Petitioner failed to win a majority in any of these elections. Moreover, in the instant case, a representative of Petitioner testified that as recently as last year the Petitioner was at- tempting to organize drivers and helpers at O'Hare, although it did not attempt to organize O'Hare employees in its most recent cam- paign which culminated in its filing the instant petition. In light of these facts, we find that the Petitioner chose to seek an election in a unit of Midway employees alone solely because it had failed to or- ganize the employees at O'Hare.' A finding that the unit sought is appropriate under these circumstances would give controlling weight to Petitioner's extent of organization and would directly contravene the specific prohibitions of Section 9 (c) (5).1 As there is no basis for finding the unit sought herein appropriate, we find that it is inappropriate and we shall dismiss the petition. [The Board dismissed the petition.] MEDIBElB FANNING, dissenting : I dissent from the majority's refusal to direct an election in the unit of truckdrivers and helpers at the Employer's Midway Airport opera- tions. In my opinion such refusal does violence to the statutory com- mand of Section 9 (c) that : The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed i The record here indicates that "flight attendants" is another term for drivers and helpers. 6Our dissenting colleague quotes the statutory language of Section 9 ( b), but in so doing he overlooks the mandate of Section 9(c) (5) : "In determining whether a unit is appropriate for the purposes specified in subsection ( b) the extent to which the employees have organized shall not be controlling." In Westinghouse Electric Corporation, 115 NLRB 1381 , the facts were strikingly simi- lar to those in the instant case. Petitioner there on two occasions participated in Board elections in which it sought to represent a broad unit of salaried employees. Petitioner failed to win a majority in either of these elections and subsequently it sought to sever certain employees from the broad salaried unit. The Board dismissed the petition on the ground that the unit was based on petitioner's "extent of organization ." While in 7iwik8et Locks, Inc., 116 NLRB 1648, the Board distinguished the Westinghouse case and rejected the "extent of organization' argument in a similar factual context , the Board there pointed out that the appropriateness of tiros narrow unit sought by petitioner was supported by factors unrelated to its "extent o. organizaion " Here, however , as we have already found, there are no independent factors establishing the appropriateness of a separate Midway unit. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by this Act, the unit appropriate for collective bargaining shall be the employer unit, craft unit, plant unit or subdivision thereof. [Emphasis supplied.] The Board has held, in view of the above language, that a plant unit is presumptively appropriate.' The Unit requested by the Peti- tioner and denied by the majority is just such a unit. It is therefore incumbent on the party opposing that unit, in this case the Employer, to rebut its presumptive appropriateness. This has not been done. The majority points to four factors as precluding the "plant" unit here : Midway and O'Hare Airports are the Employer's only opera- tions in the Chicago area, both are operated under the same overall supervision, the extent of employee interchange, and the identity of wage rates and working conditions for both operations. In the light of these, the majority concludes that the only reason for establishing a single unit limited to employees at Midway is the extent of the Peti- tioner's organization. This is demonstrably inaccurate. The record establishes that the Employer's Midway flight kitchen is an entirely separate operation from its O'Hare flight kitchen, it is located 20 miles from the O'Hare kitchen, it services only the Midway Airport, it is in charge of a sepa- rate manager, who has authority to hire and discharge employees, and the interchange between the flight kitchens cited by the majority involved only 7 out of more than 300 employees and occurred over an 18-month period. These are factors indicative of the apropriateness of the single plant units sought by Petitioner. In addition, the iden- tity of wage rates and working conditions at the two flight kitchens stems from the fact that labor relations policy is established for these operations and for all of the Employer's multitudinous operations throughout the country, at its District of Columbia central offices. This is a factor which is not itself determinative of the unit question s I do not maintain that a unit limited to the Employer's Midway operations is the only appropriate unit. I am sensible of the cases in which the Board has said in comparable situations, too numerous to require citation, that either a single plant or a multiplant unit may be appropriate. But since the petition seeks a single plant unit, and no other union is seeking to represent a larger unit, there is no war- s Beaumont Forging Company , 110 NLRB 2200; see also Schwien Engineering Co, 114 NLRB 173; General Shoe Corporation, 114 NLRB 381, Swift & Company, 124 NLRB 50 On September 8, 1959, the Board issued an opinion in Dobbs Houses, Inc, Case No 13-RC-6682 (not published in NLRB volumes) There the petitioner sought to represent in one unit employees working in two commissaries operated by a leading competitor of the Employer The two commissaries serviced Midway and O'Ilare airports The Board, in agreement with the Employer, found that only separate units were appropriate, relying on the lack of operational integration, geographical separation, lack of employee inter- change, and the extent of local supervision. No persuasive grounds have been urged for distinguishing the instant case from Dobbs Houses, Inc e See, for example , National Cates ers of New York, Inc., 129 NLRB 699 , involving other locations of the Employer. HOT SHOPPES, INC. 149 rant for denying the employees involved this opportunity to partici- pate in collective bargaining if they so desire.10 As I have already indicated, the Act directs the Board to make unit determinations which "assure to employees the fullest freedom in exercising the rights guaranteed by this Act." This is one of the clearest directives con- tained in the Act. It is not complied with merely by finding that the Petitioner has not sought an election in the larger of two possible appropriate units. Nor does the fact that the Petitioner has in prior cases agreed that a combined unit of Midway and O'Hare truckdrivers and helpers constituted a single appropriate unit prejudice in anyway its petition in this case, if the Board conforms its unit policies with the statutory directive to assure employees the fullest freedom to exercise the rights guaranteed by the Act. Indeed to deny the unit request solely because Petitioner previously had organized the employees of both operations and had sought a larger unit as the majority in the final analysis has done, is to give controlling effect to the extent of organization, con- trary to Section 9(c) (5). Dismissal of the petition on such grounds means, in effect, that where either a larger unit or a smaller unit may be appropriate, a union which in the first instance seeks to organize and represent the larger unit, but fails in its attempt is thereafter bound to continue organization only on that basis. The more it tries and fails the more it becomes bound to try again on that basis, or give up its organizational efforts. This is so even though a majority of employees in the smaller appropriate unit may actively be seeking to have that union represent them.11 The obstacle to employees exer- cising the rights guaranteed by the Act resulting from such deter- mination is obvious. Moreover, such a result is completely at odds with the congressional purpose in proscribing unit determination based on extent of organization as the controlling factor. Congress clearly intended by that proscription to insure that the Board's elec- tion machinery would not be utilized to foster collective bargaining in inappropriate units. It did not intend by that proscription to deny resort to such machinery to achieve collective bargaining rights in appropriate units. As I have shown, the appropriateness of the unit sought by Peti- tioner is supported by factors unrelated to its extent of organization, 11 That the drivers and helpers may constitute an appropriate unit separated from other employees of the Employer has already been affirmatively decided. See National Caterers of New York, Inc, ibtd. 11 To protect themselves from this effect of the majority's extent of organization doctrine, unions will be forced to attempt organization initially on the basis of the smaller of two appropriate units in order not to foreclose their opportunity to organize such employees in the event they fall to achieve bargaining rights in the larger unit Thus, the majority's decision will actually contribute to a fragmentation of an employer 's employee comple- ment into small units , and delay bargaining on the basis of the larger units which it apparently favors. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not the least of which is the presumptive appropriateness of single- plant units.12 Thus, it cannot validly be maintained that "extent of organization" is the controlling factor. To do so subverts, rather than effectuates, the policies of the Act. I would find the merit sought in the petition to be appropriate for purposes of collective bargaining within the meaning of Section 9(c) of the Act, and would direct an election accordingly. CHAIRMAN LEEDOM took no part in the consideration of the above Decision and Order. "Thus this case is controlled by Kwikset Looks, Inc., 116 NLRB 1648, and not by the Westinghouse case, cited by the majority. American Creosoting Corporation and Georgia Creosoting Com- pany and Georgia Creosoting Corporation and Local Union Number 2591, United Brotherhood of Carpenters and Joiners of America, AFL-CIO Georgia Creosoting Corporation and Local Union 2591 , United Brotherhood of Carpenters and Joiners of America , AFL-CIO. Oases Nos. 10-CA-4409 and 10-GA-1423. Februa2-g 13, 1961 DECISION AND ORDER On November 1, 1960, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that Respondent Georgia Creosoting Corporation 1 had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the aforementioned Respondent did not discriminate against Lamar L. Bennett in violation of Section 8 (a) (3) of the Act as alleged in the complaint. Thereafter, excep- tions to the Intermediate Report were filed only by the aforementioned Respondent. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions thereto, and the entire record, and 1 The complaint in Case No. 10-CA-4409 was originally issued against three Respond- ents : American Creosoting Corporation, Georgia Creosoting Company, and Georgia Creosot- ing Corporation. On June 10, 1960, prior to the hearing, American Creosoting Corpora- tion and Georgia Creosoting Company entered into a settlement agreement with respect to the charges in the complaint. Therefore, the Trial Examiner's Intermediate Report and this Decision and Order involve only Georgia Creosoting Corporation as Respondent. 130 NLRB No. 4.