Szabo Food Services, Inc.

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Szabo Food Services, Inc. and Local 217, Hotel & Restaurant Employees and Bartenders Union, AFL-CIO, Petitioner. Case 2-RC-16612 July 25, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 19, 1974, the Regional Director for Region 2 issued a Decision and Order in the above- entitled proceeding, in which he found inappropriate the Petitioner's requested unit of all food service em- ployees employed by the Employer at three cafeterias operated by it at the Stratford and Bridgeport, Con- necticut, plants of the Sikorsky Aircraft Division of United Aircraft Corporation. Thereafter, in accord- ance with Section 102.67 of the National Labor Re- lations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for re- view of the Regional Director's decision, on the grounds, inter alia, that in finding the petitioned-for unit inappropriate he made erroneous findings as to substantial factual issues and departed from official- ly reported Board precedent. Thereafter, Employer filed a statement in opposition thereto. The National Labor Relations Board, by tele- graphic order dated February 19, 1975, granted the request for review and stayed the election pending decision on review. Thereafter, Employer filed a brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding with respect to the issues under review, including the Employer's brief on review, and finds, contrary to the Regional Director, that a question affecting commerce exists concerning the representa- tion of employees of the Employer within the mean- ing of Sections 9(c)(1) and 2(6) and (7) of the Act, for the following reasons: The Petitioner contends that the record supports a finding that its requested three-cafeteria unit is ap- propriate. We agree. The Employer is an industrial food service con- tractor. Under its contract with United Aircraft, it operates cafeterias. dining rooms, and kitchens for feeding the employees at the latter's Connecticut plants.' It employs approximately 415 employees at 1 The Employer refers to these operations as its United Aircraft District. these facilities. There are about 50 employees in the Petitioner's requested unit. There is no history of col- lective bargaining for any of the Employer's United Aircraft District employees. Headquarters for the Employer's United Aircraft District is at East Hartford, Connecticut? Also locat- ed there is a central kitchen where baked goods are prepared for the district food service facilities. The various food service facilities are for purposes of ac- countability subdivided into cost centers or units, generally confined to single-plant locations. Howev- er, the three cafeterias located at the two Sikorsky Division plants, here sought to be combined as a sep- arate bargaining unit, comprise a single cost center or unit, referred to herein as the Sikorsky unit. Each of these units is directly under a "unit" manager, who reports to one of three area supervisors. The area supervisor over the Sikorsky unit also oversees the Norwalk, Southington, and North Haven units? Geographically, the Sikorsky plants are but 5 miles apart, and the range of distances separating them from other district facilities is 14 to 65 miles. The food programs are administered uniformly pursuant to the contract with United Aircraft. All menus and prices are the same at all cafeterias. The Employer's management in Chicago chooses food vendors and negotiates prices with the vendors. The unit manager purchases foodstuffs from a list which has been approved by central management in Chica- go. The district manager sets the pay rates and terms and conditions of employment for the Employer's United Aircraft District. He decides the number of employees needed at each facility and makes the fi- nal decision in the resolution of grievances and, ex- cept as noted below, with regard to changes in em- ployee status. Unit managers make effective recommendations through their area supervisors to the district manager as to discharge, promotion, and pay increases concerning employees under them. In cases of gross misconduct the unit manager may dis- charge an employee. The unit manager may also is- sue written reprimands with the approval of his area supervisor. Within the personnel complement allot- ted to his cost center, a unit manager can hire re- placements. There were only four instances cited involving per- manent transfers affecting the Sikorsky unit. During United Aircraft at present has plants in 10 towns or cities in Connecticut, and the Employer operates 19 different food service facilities at these plants 2 Centralized management for all of the Employer's operations is in Cho- cago, Illinois. The record contains little evidence as to the specific duties of the area supervisors and does not indicate how frequently they visit the various units within their respective areas It appears that they act as liaisons between district headquarters and the units, especially with regard to matters as detailed below, which are closely controlled by headquarters. SZADO FOOD SERVICES, INC. the year immediately prior to the hearing, there were 700 temporary transfers of I day or less among the different cafeterias. These temporary transfers repre- sented less than 1 percent of the man-hours worked per year, and only about 16 percent of them affected the Sikorsky unit. These temporary 1-day transfers are mainly for monthly foremen's dinners. Others oc- cur sporadically, in connection with "family days," "fly-ins," and "division president dinners." While it appears that the broader districtwide unit favored by the Employer would be appropriate for purposes of collective bargaining, we are persuaded by the foregoing facts and our review of the record that the requested unit, confined to employees at the three Sikorsky Division cafeterias, is also appropri- ate. That these employees have a community of in- terest separate and distinct from the broader one they share with other district employees, sufficient to support an appropriate unit finding, is amply demon- strated by the following factors: First, and foremost, the requested employees are under the common im- mediate supervision of a single manager by virtue of the fact that the three Sikorsky Division cafeterias are grouped together as a single unit or cost center for purposes of accountability. Also, despite the inte- gration of all operations of the district, the Sikorsky unit manager retains significant control over day-to- day operations, especially with regard to discharge of employees for serious misconduct and the hiring of replacements. Geographically, the Sikorsky plants are but 5 miles apart and the next closest cafeteria is 14 miles away.4 Temporary interchange of employees appears to involve for the most part special functions and does not occur on a regular or frequent basis. Finally, there is no history of bargaining for employ- ees in the district and no labor organization is seek- ing to represent the broader unit favored by the Em- ployer. Accordingly, we shall direct an election in the fol- lowing unit, which we find to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:' We are unable to understand how our partial reliance on geographic separation is "improper" because the cafeterias are "located in an arc lead- ing Northeast," as characterized by our dissenting colleague . The cafeterias in the unit sought are located within 5 miles of each other; whereas over half of the employees in the Employer's proposed unit are located more than 50 miles away from Petitioner's proposed unit. The Board has long held (see, e.g., Dixie Belle Mills, Inc., 139 NLRB 629 (1962)) that geographic separa- tion is a very real consideration in an issue concerning unit scope. It remains a factor notwithstanding the geometric configuration and juxtaposition of the cafeterias involved. 5 See Motts Shop Rite of Springfield, Inc and Motts Shop Rite of Chicopee, Inc., 182 NLRB 172 (1970), and cases cited therein at In. 3. The cases cited by our dissenting colleague to support his contrary view are, in our opinion , factually distinguishable. The Lawson Milk, Company Division, Consolidated Foods Corporation, 213 NLRB 360 (1974), to which he refers as support for his argument that the degree of temporary interchange 539 All food service employees at the Employer's food service operations in the Stratford and Bridgeport, Connecticut, plants of Sikorsky Air- craft, excluding office clerical employees, guards, and supervisors as defined in the Act. [Direction of Election omitted from publication.]6 MEMBER KENNEDY, dissenting: I agree with the Regional Director's conclusion that the three cafeterias sought cannot stand alone as an appropriate unit and that the petition should be dismissed. The Regional Director was correct in con- cluding that all of the Connecticut cafeterias servic- ing employees of United Aircraft Corporation at its 10 separate locations constitute the smallest unit ap- propriate for purposes of collective bargaining. In my judgment, reversal of the Regional Director by my colleagues is not justified by the facts or the prec- edent and is contrary to the prohibition in Section 9(c)(5) of the Act that the Board shall not establish bargaining units solely on the basis of extent of orga- nization. Like the Regional Director, I think it highly signif- icant that all cafeteria employees of the Employer are engaged in the performance of a single contract with United Aircraft. Pursuant to that contract, all menus and all prices are the same in all cafeterias. The dis- trict manager who administers this contract estab- lishes the same wages, hours, and working conditions for all the employees in all the cafeterias in the Unit- ed Aircraft facilities. Thus, under one contract with the Employer, United Aircraft sets identical condi- tions and requirements for the operation of all the cafeterias, and it appears that all complaints or mat- ters pertaining to that contract are handled at the district manager level. In the long run, I do not think that the decision of the majority furthers the interest of the employees sought by Petitioner. While the decision to permit some 50 employees out of a work force of 415 em- ployees to be represented separately may make initial organization of the employees easier, it is difficult to conceive of meaningful bargaining taking place if the employees choose Petitioner as their bargaining agent. An employer who has established wages, fringe benefits, and other labor relations policies on a much broader basis is hardly likely to be willing to let a tail this size wag the dog. The Board stated in Kalamazoo Paper Box Corporation, 136 NLRB 134, 137 (1962), that "each unit determination, in order to is significant as it affects the requested unit herein, involved incidents of temporary transfers of store employees to perform day-to-day operations, unlike the instant case where the transfers , of I day or less in duration, were mainly for special functions and not for the day-to-day operations of the cafeterias 6 [Excelsior footnote omitted from publication.] 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further effective expression of the statutory purposes, must have a direct relevancy to the circumstances within which collective bargaining is to take place. For, if the unit determination fails to relate to the factual situation in which the parties must deal, effi- cient and stable collective bargaining is undermined rather than fostered." It seems to me that the unit found by the majority may well produce just the kind of employee frustration and resultant instability which effective collective bargaining should prevent. Contrary to my colleagues, I do not believe that the unit managers are vested with sufficient supervi- sory authority to justify the unit found by my col- leagues to be appropriate. The Employer's operations are highly centralized. The district manager is the only supervisor capable of negotiating wages, sala- ries, and other terms and conditions of employment since he is vested with most of the power in this area. The three supervisors directly beneath the district manager are further proof of the lack of autonomy of the unit managers. It appears that the only decisions a unit manager can make without prior approval are hiring replacements within an approved complement and firing an employee on the spot because of gross misconduct. In all other matters the supervisors and the district manager must be consulted. The district manager makes the ultimate decisions. More impor- tantly, he determines the wage scales, the focal point of all collective bargaining .7 Although the Employer does treat the Sikorsky unit as a separate cost center, this is done for purpos- es of accounting and budgeting rather than for pur- poses related to or concerning labor relations. Even if the minimal geographic separation in this case were considered important enough to warrant a single unit, the centralization of wage policy and key per- sonnel decisions compel finding the broader unit ap- propriate.' I disagree with the observations of my colleagues with respect to the interchange of employees. The Regional Director found that during the year preced- ing the hearing there were some 700 temporary trans- fers between various Connecticut locations. Indeed, during the hearing in this very case, the employees who attended the hearing were temporarily replaced by employees from other facilities. It also appears that employees are promoted to higher ranking posi- 7 Petrie Stores Corporation, 212 NLRB 130 (1974) 8 National Telephone Company, Inc, 215 NLRB No 17(1974). AMFCuno Division, AMF Incorporated, 205 NLRB 984 (1973). tions in other locations within the district. Under these findings, which are not challenged in the re- quest for review, I think my colleagues err in suggest- ing that the absence of "regular or frequent" tempo- rary interchange of employees is a factor in this record to justify their unit finding. In this connection, I note that in National Tele- phone Company, supra, we stated: We therefore shun any detailed attempt, on the basis of the incomplete sampling submitted, to discern precisely what percentage of man- hours may have been involved in temporary transfers or the precise nature or purpose of each transfer. We do conclude that it is plain enough, upon this record, that the movement of employees on a temporary basis from location to location within the division is far from an un- common experience and is resorted to, as the testimony clearly shows, not as a result of the growth or expansion of the Company, but "to accommodate for a heavier workload in one branch than exists in the branch from which the transfer takes place." In National Telephone there had been only 36 trans- fers in a 9- or 10-month period. In this case, there were 700 instances of transfers in a 12-month period. Similarly, in The Lawson Milk Company Division, Consolidated Foods Corporation, 213 NLRB 360 (1974), where a districtwide unit of retail food stores was found appropriate, we considered it significant that 204 temporary transfers had occurred in a unit of 334 employees in a 12-month period. In the in- stant case, the 700 transfers among 415 employees is a strong factor favoring the broader unit. The majority decision herein also improperly relies on geographic separation. Examination of the map of Connecticut received in evidence shows that the dif- ferent facilities of the Employer are all located in fairly close proximity. The cafeterias are not scat- tered at random over the State; rather they are locat- ed in an arc leading Northeast from Norwalk to Windsor Locks on excellent highways. Although the distance between the two cafeterias furthest apart is 79 miles, the maximum distance between any two cafeterias is 23 miles. Some are only 7 to 10 miles apart .9 Since I conclude that the factors present in this case compel finding a districtwide unit to be the only appropriate unit, I dissent.10 9 The Lawson Milk Company, supra 10 Gourmet, Inc, d/b/a Jackson's Liquors, et al , 208 NLRB 807 (1974).