Hot Shoppes, Inc.

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the M.I.T. case, and likewise noted that Congress had placed its im- primatur on the Board policy of not asserting jurisdiction over the activities of nonprofit employers or their employees other than "in ex- ceptional circumstances and in purely commercial activities." 11 Moreover, neither the 1959 amendments to the Act, nor their under- lying legislative history, indicate any change in the congressional ap- proval of this doctrine. In the M.I.T. case it was at least shown that the employer's activities had a real impact on national defense. No such showing has been made in this case. In line with congressional policy, I would decline to assert jurisdiction over Woods Hole. 3s See Office Employees International Union, Local 11 (Oregon Teamsters) v N L R B , 353 U S. 313, 318-319 Hot Shoppes, Inc. and Hotel-Motel Service Workers, Drug Store, Sports Events and Industrial Catering Employees Union, Local 593, AFL-CIO, Petitioner. Case No. 13-RC-8969. June 28, 1963 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 Albert Kleen, hearing officer.' The hearing officer's rulings 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 a Delaware corporation which operates a res- taurant and airline catering business in a number of States in the United States. This proceeding involves the Employer's airline cater- ing operations located in Chicago, Illinois. The Employer's gross volume of business during the year preceding the filing of the petition exceeded $1 million. During the same period, the Employer sold goods whose value exceeded $500,000 to firms engaged in interstate commerce and it purchased materials and supplies which were shipped into Illinois from outside the State whose value exceeded $50,000. The Employer stipulated, and we find, that it is engaged in commerce within the meaning of the Act. However, the Employer moved that the petition be dismissed on the ground that the employees covered by the petition are subject to the jurisdiction of the Railway Labor Act, and, therefore, under Section 2(2) and 2(3) of the Act, the 'At the hearing the petition and the other formal papers in this proceeding were amended to show the correct names of the Employer and the Union as they appear in the caption. 143 NLRB No. 59. HOT SHOPPES, INC. 579 Board lacks jurisdiction over this proceeding.2 In the alternative, the Employer, relying on such cases as Wings £ Wheels Inc.,3 moved that the Board certify the entire matter to the National Mediation Board for a determination of its jurisdiction over the Employer under the Railway Labor Act. The Petitioner, on the other hand, contended that the Employer's employees are not under the jurisdiction of the Railway Labor Act, and that even an administrative submission of the issue to the National Mediation Board is unnecessary. The Employer's Chicago operations involve the preparation of food at its commissaries at Harper Drive and Schiller Park, the transporta- tion of food to O'Hare Airport, the loading of food on planes, and the return of soiled equipment to the commissaries. Although the Employer provides food and catering services to airlines, it has not been certified by the Civil Aeronautics Board as a common carrier by air. The only customers of the Employer at the airport are the airlines to which it supplies food and services.' Except for such commissary equipment as refrigerators, ranges, and other incidental equipment needed to process and produce food items, which the Em- ployer owns, the airlines own all the other equipment used in trans- porting food to and from the field, including such items as trucks, silverware, dinnerware, and ovens. At Schiller Park, the Employer services a number of airlines, including TWA, its largest customer at that location. At Harper Drive, the Employer services only American Airlines. Airline personnel regularly inspect the Em- ployer's commissaries, supervising the food preparation to make cer- tain that the airline's specifications are observed; they also supervise the transportation of food to the field and the loading of food on planes. Airline personnel are authorized to give direct orders to the Employer's employees on the airfield, with respect to the Employer's other operations. However, airline personnel may only make recom- mendations to the Employer's supervisors or to the employees them- selves, which the Employer's supervisors and employees have been instructed to follow. Airline personnel also have the right to recom- mend removal of the Employer's employees or to suggest disciplinary 2 The Railway Labor Adt, Section 151 (Fifth ), defines employees covered by that At as including "every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of the rendition of his service ) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Com- merce Commission now in effect, and as the same may be amended . . . Section 181 . 11 of the Railway Labor Act provides that the provisions of Section 150 et seq. of that Act "are extended to and shall cover every common carrier by air engaged in interstate com- merce, and every carrier by air transporting mail for or under contract with the United States Government, and every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or their con- tinuing authority to supervise and direct the manner of rendition of his service " 3 139 NLRB 578. 4 The agreements between the airlines and the Employer were not produced at the hearing. 717-672-64-vol. 143--38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action, and these recommendations are usually followed by the Em- ployer's supervisors. The Employer's employees, however, are hired and paid by the Employer and not by any airline. None of the air- lines otherwise controls the relationship between the Employer and its employees or determines the terms and conditions of employment of these employees. We note at the outset that it is not contended that the Employer itself is subject to the Railway Labor Act or that Section 2(2) of the Act, which excludes from the definition of "employer" "any per- son subject to the Railway Labor Act," requires our dismissal of the proceedings herein. The thrust of the Employer's argument appears to be that its employees herein are subject to the Railway Labor Act, and, therefore, under Section 2(3) of the Act, the Board is without jurisdiction. Section 2(3) of the Act in defining "employee," ex- cludes "any individual employed by an employer subject to the Rail- way Labor Act." But, as we have already emphasized, the Employer itself is not, nor does it contend that it is, subject to the Railway Labor Act. It is therefore apparent, and we find, that under the provision of the Act, the Board has jurisdiction over the Employer. It is likewise clear, and we find, that the employees themselves are not employees subject to the Railway Labor Act. Under Section 181 of the Railway Labor Act,5 the provisions of that Act are made ap- plicable to certain common carriers by air and "every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its continuing authority to supervise and direct the manner of rendition of his service." How- ever, the Employer herein is concededly not a common carrier by air and, while we may assume that the various airlines with which the Employer does business at the O'Hare Airport in Chicago are com- mon carriers by air, the record establishes that the employees of the Employer are employed by the Employer and not by the airlines and they therefore are neither "employees" nor "subordinate officials" of common carriers by air. Nor are the employees of the Employer covered by Section 151 (Fifth) of the Railway Labor Act-assuming that that section is applicable to the instant situation.6 In the first place, the employees herein are not "in the service of a carrier" nor, so far as appears from the record, do they perform "any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission...." Further, even assuming that Section 151 (Fifth) should be construed to include an employee "sub- 6 This section is quoted in footnote 2, supra. 6 ,Since the Employer contends that Its employees are subject to the Railway Labor Act only because of its relationship to the airlines at O'Hare Airport , it would appear that Section 181 which deals specifically with common carriers by air, rather than Section 151 (Fifth ) which describes generally the coverage of the Railway Labor Act, should govern this situation. Section 151 is also quoted above. HOT SHOPPES, INC. 581 ject to its [a carrier's] continuing authority to supervise and direct the manner of rendition of his service" even if such employee is not "in the service of a carrier," the record here makes it abundantly clear that the employees of the Employer are not subject to the "con- tinuing authority" of airline personnel. Thus, the authority of air- line personnel to "direct the manner of rendition of service" of em- ployees of the Employer is limited to those times that employees are physically on the airfield. And while, at other times, airline per- sonnel may make recommendations respecting the manner in which these employees perform their work and respecting their employment status, this authority may be exercised only through the Employer's supervisors.' In this connection, we also deem it significant that on a number of occasions the Board has exercised jurisdiction over the Employer's airline catering operations and that at no time in the past has the Employer contended that the Board was without jurisdiction over these operations on the ground that its airline catering employees were subject to the Railway Labor Act .8 In view of the foregoing, we find that the employees involved herein are not subject to the Railway Labor Act and we shall, accordingly, deny the Employer's motion to dismiss the petition on jurisdictional grounds. Further, since it is apparent that there is no tenable basis for the Employer's contention that the Board is without jurisdiction over the operations involved herein, we find that no useful purpose would be served by referring this proceeding to the National Media- tion Board for a determination of its jurisdiction under the Railway Labor Act.' 2. The labor organization herein claims to represent certain em- ployees of the Employer.lo P The Employer in its brief relies on the decision of the Interstate Commerce Commission, Ex parte 72, where dining car employees of the Fred Harvey Company, hired and paid by that Company, were found to be employees subject to the jurisdiction of the Railway Labor Act. However, in that case, unlike here, there was direct and continuous control by the conductor of the train over the dining car employees throughout the trip, and the contract between the railroad and Harvey specifically gave the railroad the right to super- vise and discharge the dining car employees. 8 See, for example, National Caterers of New York, Inc., 129 NLRB 699 (Idlewild Air- port) ; Hot Shopper, Ino., 189 NLRB 1253 (Friendship Airport) ; Hot Shopper, Inc, 130 NLRB 138 (Washington National Airport) ; Hot Shoppes, Inc, 130 NLRB 144 (Midway and O'Hare Airports). 9 The cases relied on by the Respondent in this connection are inapposite, since in those cases, the employer involved, unlike the Employer herein, was a common carrier which was at least arguably subject to the Railway Labor Act. Thus, for example, in Wings & Wheels Inc., supra, the employer was engaged in forwarding freight by truck to and from various airlines pursuant to a freight forwarder's authorization issued by the Civil Aeronautics Board, and in Bradley Flying Service, Ino., 131 NLRB 437, the employer was engaged in maintaining, fueling, and storing aircraft and in chartering flying services under a certificate issued by the Civil Aeronautics Administration. lO Local No. 713, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, was permitted to intervene at the hearing for the limited purpose of asserting its claim to the unit of the Employer's employees found appropriate in Case No. 13-RC-8021 (not published in NLRB volumes ) discussed infra. The Intervenor does not seek to represent any of the employees sought by the Petitioner herein. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. The Petitioner seeks a unit comprising all kitchen employees of the Employer at its O'Hare Airport operations including those em- ployed at its Harper Drive and Schiller Park, Illinois, commissaries, but excluding those employees in the unit found appropriate by the Board in Case No. 13-RC-8021.11 In that case, the Regional Direc- tor found appropriate a unit comprising "all flight equipment handlers and their helpers, setup men, and all regularly employed part-time employees in these categories engaged in the transportation of food from company premises to airplanes, installing and removing food from such airplanes, and transporting food from the airplanes to the company premises, at the Employer's Chicago, Illinois, plants at Midway Airport, O'Hare International Airport, and its Franklin Park, Illinois, plant but excluding field supervisors, supervisors as defined by the Act, and all other employees." 12 On November 14, 1961, a request for review of the Regional Director's Decision and Di- rection of Election filed by the Employer in that case was denied by the Board, and on December 1, 1961, an election was held in that unit. On April 2,1962, the Employer filed a motion seeking reconsideration of that decision, and, in an order being issued simultaneously here- with, the Board has denied the motion for reconsideration.13 The Employer contends that the only appropriate unit in this case should u More specifically, the Petitioner seeks to represent a unit composed of all full-time and regular part-time food preparation employees, cooks, dishwashers , porters, coffee men, food setup men, ice men, garbage men, utility men, storeroom and liquorroom employees, and packers, employed at the Employer's facilities located at Harper Drive, O'Hare Inter- national Airport, Chicago, Illinois, and at the Employer's facilities located at Schiller Park, Illinoits, but excluding all flight equipment handlers, their helpers, and loading setup men engaged in the transportation of food from the Employer 's premises to air- planes, installing and removing food from airplanes , and transporting food from airplanes to the Employer's premises, all other employees included in the unit in the Decision and Direction of Election in Case No . 13-RC-8021, guards, temporary employees , casual em- ployees, and supervisors as defined in the Act. 11 The record indicates that since the Direction of Election in Case No. 13-RC-8021, Midway Airport has been closed, the Employer has closed the Franklin Park commissary and transferred its food preparation operations to two new commissaries, one at Harper Drive, located about 21/2 miles from O'Hare Airport, and the other at Schiller Park, located about 11A miles from O'Hare Airport . On November 16, 1962, the Employer moved to consolidate the instant case with Case No. 13-RC-8021 on the ground that the two cases are interconnected and that major changes have taken place in the Employer's Chicago operations since the unit determination in Case No. 13-RC '5021. However, since the Board is now denying the Employer's motion for reconsideration of its unit find- ing in Case No. 13-RC-8021, and is also finding that the unit sought herein is separately appropriate , and since the record in Case No 13-RC-8021 was incorporated by the hear- ing officer in the record of the instant case, and, in an order being issued simultaneously herewith, the Board has incorporated the record in this case in Case No. 13-RC-8021, we shall deny the motion to consolidate. is However, a hearing is to be held with respect to several challenged ballots cast in the election held in that unit. Since in Case No. 13-RC-8021, the Employer challenged the ballot of employee Churchill on the ground that he properly belonged in the kitchen unit and not in the unit found appropriate therein, and since the issue as to this challenge has been included in the hearing to be held , we shall allow Churchill to vote in the elec- tion herein subject to challenge. NEWARK STOVE CO. 583 be an overall unit composed of all employees engaged in food, beverage and equipment preparation, assembly, handling, receiving, storage, packing and maintenance employees, including food and equipment handlers and food and equipment helpers at its commissaries and air- port operations at O'Hare International Airport, and its Harper Drive and Schiller Park commissaries. As the record indicates that the Petitioner herein seeks an election among all the employees employed by the Employer at its operations in Chicago, Illinois, other than those included in the unit which the Board found appropriate in Case No. 13-RC-8021, we find that the unit sought herein is appropriate as a, residual unit apart from whether it might be appropriate on other grounds. We shall, therefore, direct an election in such unit. Accordingly, we find that the following employees employed at the Employer's facilities located at Harper Drive and at O'Hare Inter- national Airport, Chicago, Illinois, and at the Employer's facilities located at Schiller Park, Illinois, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All full-time and regular part-time food preparation employees, cooks, dishwashers, porters, coffee men, food setup men, ice men, garbage men, utility men,, storeroom and liquorroom employees, and packers but excluding flight equipment handlers, flight equipment helpers, and loading setup men engaged in the transportation of food from the Employer's premises to airplanes and installing and remov- ing food from airplanes, and transporting food from airplanes to the Employer's premises, all other employees included in the unit in the Decision and Direction of Election in Case No. 13-RC-8021, tempo- rary employees, casual employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Newark Stove Co. and Office Employees International Union, AFL-CIO, Petitioner. Case No. 8-RC-787. June 28, 1963 DECISION AND ORDER CLARIFYING CERTIFICATION On June 19, 1950, the Board certified Office Employees Interna- tional Union, AFL-CIO, as the exclusive representative of the em- ployees of Newark Stove Co. in the following unit : i "All office and factory clerical employees including chief clerk, timekeepers, cost time clerks, production clerks, office janitors, senior clerks, stenographers, 1 This certification is not published in NLRB volumes. 143 NLRB No. 45.