Bickford's Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1904 (N.L.R.B. 1954)

1904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BICKFORD'S INC. and BAKERY & CONFECTIONERY WORKERS INTER-
NATIONAL UNION OF AMERICA, AFL, PETITIONER. Case No. 2-RC-
6936. December 16, 1954
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 Arthur Goldberg,
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 Petitioner is seeking a unit of commissary employees at the
Employer's Long Island City, New York, commissary. The Em-
ployer, a Maryland corporation, owns and operates 45 restaurants in
New York City and Baltimore. In addition, the Employer wholly
owns the following subsidiaries, briefly described as follows : Foster
Lunch System Ltd., a California restaurant chain; Hayes-Bickford
Lunch System Inc., a Boston restaurant chain; and Bickford's Inc.
of New Jersey, which operates 2 restaurants and a hotel. The Bick-
ford brothers, S. L. and H. E., are members of each of the boards of
directors of these corporations. S. L. Bickford is chairman of the
Board of each corporation except the Hayes-Bickford Lunch System
Inc., in which corporation he is a vice president. H. E. Bickford is
president of the Employer and Bickford's Inc. of New Jersey, and is a
vice president of the Foster Lunch System Ltd. During the past year,
the total public restaurant sales of the Employer and the aforemen-
tioned subsidiary corporations were in excess of $10,000,000.
The Employer's Long Island commissary supplies food, both raw
and prepared, to the Employer's restaurants located in the New York
City area; and it sometimes sends food to the Employer's Baltimore
units. In addition, it supplies food sold by the New Jersey restau-
rants operated by Bickford's Inc. of New Jersey, and occasionally sends
food to the Boston restaurants operated by Hayes-Bickford Lunch
System Inc.
As always, in judging the degree to which the Board's jurisdiction
ought to be properly extended, our prime consideration must be the
measure of impact that any particular commercial operation has upon
interstate commerce.' Unquestionably, a single restaurant is ordi-
narily a purely local activity, furnishing a service performed on the
spot, for the most part with supplies from the environs, and catering
to the local citizenry. In these instances, restaurants are markedly
similar to retail selling establishments, and, as in the case of retail
stores, no persuasive reason appears for extending the Board's juris-
diction over them absent special facts affirmatively showing, in any
1 Breeding Transfer Company, 110 NLRB 493.
110 NLRB No. 252.
BICKFORD'S INC. (1905
particular case, that the particular restaurant's business in fact has
a substantial effect upon interstate commerce.
At the same time, as this case graphically shows, even the restaurant
business, in our complex industrial world, sometimes operates on a
scale so widespread and huge as to reveal, through interstate ship-
ments and integrated multistate organizations, a very marked and
truly substantial impact on interstate commerce. The Employer here,
through its many wholly owned and directly controlled subordinate
operating organizations, spans the country with its integrated com-
mercial venture. From a single commissary building in New York
City the Company supplies, through subordinate industrial catering
services, over $500,000 worth of food to manufacturing plants, and
ships products valued at about $319,000 directly across State lines.
Clearly then the broad operations of Bickford's compares to a single
locally owned restaurant as does a large multistate retail selling chain
to a single corner store. In view of the similarities between a restau-
rant and a retail store, no better rule could be devised for distinguish-
ing between essentially local restaurant activities. and those having
a substantial impact upon interstate commerce, than that announced
recently for the retail selling industry' Accordingly, we shall hence-
forth treat restaurants and restaurant operations as falling in the
same category as retail establishments, and shall apply the jurisdic-
tional standards set out in Hogue and Knott to the restaurant in-
dustry generally.
It is clear and we find that the Employer's commissary, here in-
volved, is an integral part of the Employer's public restaurant chain,
and that the Employer is engaged in interstate commerce within the
meaning of the Act. As the Employer's total volume of sales annu-
ally exceeds $10,000,000, we also find that it will effectuate the poli-
cies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
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. We agree with the stipulation of the parties that the unit sought
by the Petitioner is an appropriate one. Accordingly, we find that
all production and maintenance employees employed in the Employ-
er's commissary and bakery located at 45-31 Court Square, Long
Island City, New York, including regular part-time employees and as-
sistant foremen,' but excluding all office clerical employees, warehouse
employees, professional employees, guards, watchmen, and super-
2J. R. Knott and Hugh H . Hogue d/b/a Hogue and Knott Supermarkets, 110 NLRB 543.
3 The parties stipulated that the assistant foremen do not have supervisory authority,
and we so find.
3382 07-55-vol 110-121
1906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS MURDOCK and PETERSON, dissenting in part :
While we concur in the assertion of jurisdiction herein, we must dis-
sent from the determination of the majority that they will henceforth
exercise jurisdiction over restaurants only when such enterprises meet
the stringent minimum volume of business tests previously announced
with respect to retail stores.
This restriction, of course, is a part of a program of severe with-
drawal of Board jurisdiction. The body of standards adopted by the
majority to achieve this end were first announced by way of press re-
leases in July of this year. In our separate opinions in Breeding
Transfer Company, 110 NLRB 493, we set forth our basic positions
and points of difference with these new standards as a whole and these
objections, of course, apply in full to the standard utilized herein. In
the July press releases, however, it was specifically stated that "Juris-
diction will not be exercised over public restaurants regardless of
source and volume of materials and regardless of whether the restau-
rant is part of a multistate chain." The abrupt change of position on
this situation now undertaken by the majority requires, we believe,
some additional comment.
The majority now undertakes to assert jurisdiction, where the enter-
prise concerned is a restaurant, only when its minimum volume tests
for retail enterprises, announced in Hogue and Knott Supermarkets,
110 NLRB 543, are met. This position, as is true of the others now ef-
fectuated by the majority, is in marked contrast to the practice and
findings of the Board in the past. Previous to the adoption of these
severe restrictions, the Board has asserted jurisdiction over restaurants
whose operations met the general standards applicable to any other
type of business and contained in the 1950 jurisdiction plan. Thus,
jurisdiction was asserted over restaurants, or any other type of busi-
ness, which had sufficient inflow of goods across State lines, or were
parts of a multistate chain, or which offered an essential service to en-
terprises otherwise subject to our jurisdiction.4 The findings of the
Board with respect to the exercise of jurisdiction in such cases have
been sustained by the courts.5
The majority of our colleagues now reverse this policy in substan-
tial part and place special and considerable obstacles in the road of
assertion of jurisdiction over restaurants. These obstacles take the
4 E. g, Howard Johnson, 94 NLRB 1161, The Stouffer Corp., 101 NLRB 1331; Childs
Company, 88 NLRB 720; Bolton & Hay, 100 NLRB 361; Progressive Cafeterias, 100 NLRB
763.
5 See Childs Company, 93 NLRB 281 , enfd . as mod . 195 F. 2d 617 (C. A. 2).
BICKFORD'S INC. 1907
form of minimum volume of business requirements which are much
higher than those governing jurisdiction over nonretail or service es-
tablishments. This is done, we are told, on the ground that restau-
rants are essentially retail operations and that "no persuasive reason
appears for extending the Board's jurisdiction over them absent spe-
cial facts affirmatively showing, in any particular case, that the par-
ticular restaurant's business in fact has a substantial effect upon
interstate commerce." This, we submit, upon analysis amounts to no
reason at all.
The majority, in essence, place restaurants along with other retail
establishments in a special classification for enterprises which pre-
sumptively do not affect commerce. We, of course, have no objection
to considering restaurants to be a retail operation. But that determi-
nation has little or nothing to do with the question of whether juris-
diction should be exercised. At the risk of being unduly repetitive,
it is perhaps appropriate to note again that the Act defines our juris-
diction as occurring ovdr those unfair practices which "affect com-
merce." Whether or not the particular enterprise in which the unfair
labor practice occurs or may occur is a retail enterprise or not is ir-
relevant. What counts is if the unfair labor practice in that enter-
prise could affect commerce. As we pointed out in our dissenting opin-
ion in Hogue and Knott, we can ascertain no reason for finding that
a labor dispute which halts the passage of $500,000 of value in retail
goods into a State has any less effect than one which halts the passage
of $500,000 of value in other types of products. In short, there is no
reason, and none is set forth by the majority opinion, for distinguish-
ing between the effect caused by a halt of shipments to and from a
retail enterprise and those to and from most other enterprises of a
nonretail nature.
There is another ground for concern created by the majority de-
cision in this case. The Board previously asserted jurisdiction over
restaurants which met the dollar volume test for services rendered to
firms engaged in interstate commerce under the 1950 plan. No provi-
sion for taking jurisdiction on that basis is made in the "retail stand-
ards" by which restaurants are now bound nor is there any indication
herein, despite the fact that the Employer does extensive industrial
catering, that the majority will otherwise assert jurisdiction on this
basis. Moreover, a majority of the present Board within the past year
refused to take jurisdiction over a plant cafeteria servicing 1,700 em-
ployees in a plant producing $5,000,000 in goods for commerce, and
overruled cases which had previously done so under the 1950 plan.6
Adding emphasis to this confusion is the criticism by the majority
contained in another recent "lead" jurisdictional case as to a specific
case where the Board asserted jurisdiction over another restaurant on
6 Local 1083, UAW-CIO, 107 NLRB 598. (Member Murdock dissenting.)
1908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this basis.? Yet the importance of the role which the supply of food
frequently plays in the industrial scene has been frequently examined
and set forth by qualified commentators.8 This is particularly true
during periods of maximum industrial activity.
The Second World War put extraordinary demands upon the
restaurant industry. As hundreds of thousands of war workers
flocked into industrial centers, the existing food facilities were
taxed to the utmost; armaments manufacturers discovered that
they could not keep a stable labor force on the job without pro-
viding cafeterias to serve meals right within the walls of the
factory. [Emphasis supplied.] s
The sizable number of industries supplying such facilities within the
plant even in peacetime and the continual increase in that number are
a testimonial to the importance which industry gives to the provision
of food as a factor in the production of goods for commerce.10 It
would seem appropriate, accordingly, for the majority to either recog-
nize these facts and provide for the assertion of jurisdiction over such
industrial caterers or note plainly and clearly the reasons for refusing
to do so.
Accordingly, for the reasons set forth in our Breeding Transfer and
Hogue and Knott opinions as well as for those set forth herein, we
must dissent from the standards for assertion of jurisdiction over
restaurant operations here applied.
7 In Maytag Aircraft Corp. , 110 NLRB 594 , the majority of the Board , in adopting the
new standard as to enterprises engaged in national defense work, indicated disapproval
of a prior decision in Coburn Catering Company, 100 NLRB 1133 . In the Coburn case, the
Board asserted jurisdiction over a catering company which supplied the only practical
source of food for almost 27 , 000 employees of an aircraft plant.
8 See, for example , Management of Personnel & Labor Relations , Watkins, Dodd,
McNaughton , Prasow , 2nd Ed ., McGraw Hill, pp . 834-836.
8 Human Relations in the Restaurant Industry , Whyte, W. F., McGraw Hill , p. 5. For
other sources to the same effect, see The Feeding of War Workers , Princeton University,
Department of Economics and Social Institutions.
10 See Company Food Services, Studies in Personnel Policy No . 104, National Industrial
Conferences Board, Inc.
W. R. MOTE AND T. R. BARTELS, D/B/A REPUBLIC TRANSPORT COMPANY
and GENERAL DRIVERS, WAREHOUSEMEN & HELPERS , LOCAL UNION
No. 968, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA, AFL, PETITIONER. Case
No. 39-RC-860. December 16,1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before Wilton Waldrop, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
110 NLRB No. 247.