Ogden Food Service Corp.

OGDEN FOOD SERVICE CORPORATION Ogden Food Service Corporation and General Truck- drivers and Helpers Local No. 92, a/w Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 6-RC-7888 January 18, 1978 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS MURPHY AND TRUESDALE Upon a petition duly filed on June 6, 1977, under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on June 29 and July 6, 1977, before Hearing Officer Paul C. Fink. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended, the Regional Director for Region 6 transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs, which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record, the Board finds: I. The Employer, Ogden Food Service Corpora- tion, is a Delaware corporation engaged in the business of retail food service operations at various locations throughout the United States, including its location at Waterford Park, a horseracing track in Chester, West Virginia. The Employer operates three restaurants and several concession stands at Water- ford Park. In the past 12-month period, the Employer received gross revenues in excess of $500,000 from the operation of its business, and purchased goods valued in excess of $50,000 for use at its Chester, West Virginia, facility from locations outside the State of West Virginia. The threshold question in this case is whether the Board should assert jurisdiction in a matter involving an employer who operates a retail food service establishment at a horseracing track. This issue has I Hotel & Restaurant Employees d Bartenders International Inion, Local 343, AFL-CIO (Resort Concessions., Inc.), 148 NLRB 208 (1964). 2 Harry M. Stevens, Inc., 169 NLRB 806 (1968). 3 Stevens operated establishments at parks and stadiums for baseball and other sporting events, convention and exhibit halls, a hotel, bowling alley, county fairs, and thoroughbred, harness. and dogracing tracks. ' The Employer has establishments at industnal plants, institutions, 234 NLRB No. 69 been dealt with by the Board in two prior cases, Resort Concessions I and Harry M. Stevens. 2 In Resort Concessions, the Board declined to assert jurisdiction over Resort's restaurant and concession business at a particular racetrack. In that case, the employer's annual business barely met the Board's monetary standard for the assertion of jurisdiction over retail establishments. Moreover, the operations of the racetrack were conducted exclusively at the Monticello, New York, harness racetrack and only during a 4-month racing season. The Board conclud- ed that Resort's operations were inextricably associ- ated with the operation of a racetrack, over which the Board, as a matter of policy, did not exercise jurisdiction. In Harry M. Stevens, the Board asserted jurisdic- tion over the employer and its subsidiaries who operated food service establishments at more than 30 locations in 13 States.3 Stevens also operated not only at racetracks but at nonracetrack locations as well, and did so on a year-round basis. Furthermore, the Board determined that Stevens and its five wholly-owned subsidiaries constituted a single em- ployer for jurisdictional purposes. Lastly, the Board concluded, in effect, that Stevens' operations were not integrally related to the operations of the racetracks at which it was located. In the instant case, the Employer's operations are strikingly similar to those presented in Harry M. Stevens and quite different from the operations of the employer in Resort Concessions. For example, Ogden Food Service operates at Waterford Park virtually on a year-round basis-its regular employees work approximately 300 days per year. The Employer and its subsidiaries also operate on a multistate basis- they service approximately 17 States at a large number of locations. Moreover, the Employer oper- ates both racetrack and nonracetrack establish- ments. 4 Furthermore, for jurisdictional purposes, we find that the Employer and its many subsidiaries constitute a single employer. Finally, as in Stevens, we conclude that the Employer's operations are not integrally related to the operations of the racetracks at which it is located. In these circumstances, we find that Harry M. Stevens controls the result in this case, and, as in that case, it will effectuate the purposes of the Act to assert jurisdiction over the Employer and its subsidi- aries as a single employer. 5 Accordingly, we find that stadiums, auditoriums, racetracks, airports, theaters, amusement parks, department stores, bowling alleys, and turnpike rest stops. I Member Murphy joins her colleagues here in asserting jurisdiction over the Employer because she finds its operations are not such an integral part of the racetrack as to bring the restaurant within the munbit of Sec. 103.3 of the Board's Rules and Regulations, Series 8. as amended, pursuant to which the Board has declined to assert jurisdiction over horse and dogracing tracks (Continued) 303 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner is a labor organization within the meaning of Section 2(5) of the Act, and claims to represent certain employees of the Employer. Thus, a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 3. The Petitioner filed its petition seeking to represent a unit of all bartenders, waitresses, host- esses, kitchen helpers, concessionaires, salad girls, cashiers, busboys, and dishwashers employed by the Employer at its various facilities at the Waterford Park racetrack. The Employer contends that the hostesses are supervisors within the meaning of Section 2(11) of the Act. The record indicates that there are three hostesses, also called dining room managers: Bonnie Cunningham, Irene Jackson, and Marge Watson. Cunningham and Jackson are employed on a regular full-time basis. They have the authority to assign work, discipline employees, grant time off, and recommend effectively that employees be trans- ferred, hired, discharged, or laid off. Thus, we conclude that hostesses Cunningham and Jackson are supervisors within the meaning of Section 2(11) of the Act, and we shall exclude these two regular hostesses from the unit sought to be represented by the Petitioner. Watson's position, however, differs from that of the other two hostesses. Watson's job is better described as a relief hostess-she works only 2 days per week, when Cunningham and Jackson are on their days off. Watson has no authority to recommend effectively that employees be hired, discharged, or disciplined. In fact, the manager in charge of the Employer's operations at Waterford Park does not take any action with regard to Watson's recommendations as a class. Nevertheless, she believes that, if future cases of this kind come before the Board, the Board should first resort to its rule-making processes to consider afresh the broader issue of whether it should continue to adhere until after he consults with the regular hostesses. Thus, it does not affirmatively appear from the record that Watson possesses supervisory authority. Nevertheless, the record does not contain sufficient evidence for us to find conclusively that Watson is not a supervisor. Accordingly, we shall permit Watson, the relief hostess, to vote subject to chal- lenge in the election directed below. The parties also contested the supervisory status of Herbert Howard, whose job classification is chef. The evidence adduced at the hearing clearly demon- strates that he has the authority to hire, discharge, promote, transfer, discipline, assign, and lay off employees. Accordingly, we find that Herbert How- ard, chef, is a supervisor within the meaning of Section 2(11) of the Act, and we shall exclude him from the unit sought to be represented by the Petitioner. We find that the following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer including bartend- ers, waiters and waitresses, kitchen helpers, con- cessionaires, salad persons, cashiers, busboys, dishwashers, and all other employees of the Employer at its Waterford Park, Chester, West Virginia, facility; excluding all office clerical employees, professional employees, and guards and supervisors as defined in the Act. As we have concluded that the Board should assert jurisdiction over the Employer's operations and that the above-described employees constitute an appro- priate bargaining unit, we shall issue the following: [Direction of Election and Excelsior footnote omit- ted from publication.] to Sec. 103.3 or rescind or modify that rule and then, only after deciding that issue, should it determine the question similar to the one posed herein. 304