S. & W. Cafeteria of Washington, Inc.

In the Matter of S. & W. CAFETERIA OF WASHINGTON, INCORPORATED and UNITED CAFETERIA EMPLOYEES LOCAL INDUSTRIAL UNION #471 Case No. R-168..-Decided February 6, 19.10 Cafeteria Industry-Investigation of Representatives: controversy concerning representation of'eiuployees: refusal of employer to recognize union as exclusive representative; consent election held approximately 6 months prior to hearing no har to determination of representatives, under circumstances-Unit Appro- priate for Collective Bargaining: all dining-room and kitchen employees, exclud- ing nmanagers, supervisors, cashiers, checkers, and clerical help-Election Ordered lllr. Samuel M. Spencer, for the Board. Mr. Julian I. Richards, of Washington, D. C., for the Company. Mr. Jack Mink, of Washington, D. C., for the Union. M/,. Bonnl.ell Phillips, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 20, 1939, United Cafeteria Employees Local Indus- trial Union #471, herein called the Union, filed with the Regional Director for the Fifth Region (Baltimore, Maryland) a petition alleg- ing that a question affecting commerce had arisen concerning the representation of employees of S. & W. Cafeteria of Washington, Incorporated,, Washington, D. C., herein called the Company, and re- questing an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449', herein called the Act. On December 22, 1939, the National Labor Rela- tions Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 'Incompletely designated in the formal papers herein as S. & W. Cafeteria , Inc. It was stated and agreed at the hearing that the full name of the Company is S. & W. Cafeteria of Washington , Incorporated. 20 N. L. R. B., No. 22. 259 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 29, 19;39, the Regional Director issued a notice Of, hearing, copies of which were duly served upon the Company and the Union. Pursuant to the notice, a hearing was held on January 8„ 1940, at Washington, D. C., before Charles E. Persons, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner niacle several rulings on motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company is a Delaware corporation with its principal place of business at 15th and New York Avenue, N.W., Washington, D. C. It is engaged in the general cafeteria business. During the course and conduct of its business for the year 1939, the Company served in.excess of 25,000 meals per month, and received a gross income per month in excess of $10,000. The Company normally employs from 200 to 220 employees. The Company admits that it is subject to the jurisdiction of the Board. II. THE GRGANIZATION INVOLVED United Cafeteria Employees Local Industrial Union #471 is a labor organization affiliated with the Congress of Industrial Organiza- tions, admitting to membership all employees in the dining room and kitchen of the Company, but excluding managers, supervisors, cashiers, checkers, and clerical help. III. THE QUESTION CONCERNING REPRESENTATION On June 8, 1939, a consent election, conducted under the auspices of the Board's Fifth Regional Office, was held among the employees of the Company to determine whether they desired to be represented for purposes of collective bargaining by the Union, by the Building Service Employees Union, a labor organization affiliated with the American Federation of Labor, or by neither. This election was not sought by the Union and it made no claim of a majority at that time. S. & W. CAFETERIA OF WASHINGTON 261 It asked and was accorded a place upon the ballot only after an agreement had been entered into between the Company and the Build- ing Service Employees Union providing for, the election. At the election a majority of the Company's employees within the agreed unit 2 voted that neither union should represent them.3 -On September 22, 1939, the Union informed the Company that it represented a majority of the employees in an appropriate bargaining unit, and requested the Company to recognize it as exclusive bargain- ing representative for the employees within such unit. The Company insisted that the Union be certified as exclusive bargaining representa- tive by the Board. After fruitless endeavors to obtain recognition without a Board election, the Union filed its petition on November 20, 1939. At the hearing the Company objected to the holding of an election upon the ground that the Union had not produced proof that its employees had granted it sufficient authority to justify an election 4 especially in view of the results in the previous consent election. As stated above, however,, that election was not sought by the Union, nor was any claim of majority representation advanced by it at that time. The Union now, makes claim to such a majority. We find that a question has arisen concerning representation of em- ployees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON C0\! \MERC E We find that the question concerning representation which has arisen. occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce within the District of Columbia, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The unit sought by the Union is composed of dining-room and kitchen employees, such as bus employees, counter attendants, cooks, 2 The unit in this election was the same as petitioner now urges : namely, all dining- room and kitchen employees , except managers , supervisors, clerical help, cashiers, and checkers . See Section V, infra. 31t was brought out in the record that the Building Service Employees Union was notified of the investigation and hearing by the Regional Director, who was informed that it had no interest in the present proceedings. 4 At the hearing the Company made objection to the Trial Examiner 's ruling that the Union was not required to submit the signature cards upon which the Union makes claim to represent a majority of the Company 's employees within an appropriate unit. As stated in the record , such documentary evidence was submitted to a Field Examiner of the'Fifth Region , who in the course of the duly authorized investigation determined from such evidence that the Union does represent a substantial number of the Company's employees. The ruling of the Trial Examiner is hereby affirmed. 285031-41-vol. 20-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bakers, steam-table servers , and general helpers, but- excluding man- agers, supervisors, cashiers , checkers , and clerical help. The Company would include in this unit four cashiers and four checkers. It has been the Company's policy to choose these employees from the older members , in point of service, of its doing -room staff. They are returned to the serving lines during slack periods and while reserves are being trained. They are, nevertheless , engaged in their present capacities 90 to 95 per cent. of the time. As stated above,' cashiers and checkers were excluded from the unit agreed upon in the previous consent election . Their membership has not been solicited by the Union, and such employees are not represented by it in other plants of a similar nature- where the Union has, been designated as a collective bargaining agent. Employees in these categories are eligible to mem- bership in another available labor organization through which they may exercise their rights under the Act. Under the circumstances and in view of the clerical nature of their work , we find that they should be excluded from the unit. We find that the dining-room and kitchen employees of the Com- pany, such as bus employees , counter attendants, cooks, bakers, steam- table servers, and general helpers, but excluding managers , super- visors, cashiers , checkers , and clerical help, constitute a unit appro- priate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectu- ate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing the business manager of the Union testified that approximately 115 employees of the Company in the unit claimed to be appropriate had signed authorization and membership cards in the Union. The Union, however, declined to introduce in evidence docu- mentary proof of membership, and requested an election by secret ballot. We find that an election by secret ballot is necessary to resolve the question concerning representation which has arisen, and we shall direct the holding of such an election. The Union requests that those eligible to vote in such election shall be determined on the basis of the Company's pay roll nearest the date of the Union's petition of November 20, 1939. The Company, desires the use of a more recent pay roll for the determination of eligibility. We believe the purposes of the Act will be best effectuated by deter- mining eligibility as of the present date. We shall direct that the employees within the appropriate unit whose names appear on the Company's pay roll immediately preceding this Decision and Direc- 5 See footnote 2, supra. S. & W. CAF FTERIA OF WASHINGTON 263 tion of Election, including those who did not work during such pay- roll period because they were ill or on vacation, and those who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to vote.6 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of S. &. W. Cafeteria of Washington, Incorpo- rated, Washington, D. C., within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The dining-room and kitchen employees of the Company, such as bus employees, counter attendants, cooks, bakers, steam-table serv- ers, and general helpers, but excluding managers, supervisors, cash- iers, checkers, and clerical help, constitute a -unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTLON By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, anld. pursuant to Article III,'Section 8,• of National Labor Rela- tions Board Rules and Regulations-Series 2 as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with S. & W. Cafeteria of Washington, Incorporated, Washington, D. C., an elec- tion by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Fifth Region, acting in this matter as agent for the National Labor Rela- tions Board and subject to, Article III, Section 9,.,of said Rules and. Regulations, among the employees in the dining room and kitchen of the S. & 'W. Cafeteria of Washington, Incorporated, such as bus em- ployees, counter attendants, cooks, bakers, steam-table servers, and general helpers, whose names appear upon the Company's pay roll immediately preceding the date of this Direction, including those who did not work during such pay-roll period because they were ill or on GAs stated above (footnote 3, supra), the Building Service Employees Union, Involved in the previous consent election , is not interested in the present proceedings . Accordingly_ we shall not.direct its name be peced upon the ballot. 264 .,DECISIONS OF NATIONAL LABOR RELATIONS BOARD vacation, and those who were then or have since been temporarily laid off, but excluding managers, supervisors, cashiers, checkers, clerical help, and those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Cafeteria Employees Local Industrial Union #471, affiliated with the C. I. 0., for the purposes of collective bargaining.