C. R. Brown Cafeterias

National Labor Relations Board - Board Decisions

Jun 29, 1956

115 N.L.R.B. 1772 (N.L.R.B. 1956)

1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adjustment of a jurisdictional dispute, his election to intervene or not
to intervene in the proceeding is of no legal significance, and does not
relieve the Board from its obligation under the Act to afford the
parties to the dispute a real opportunity to settle the dispute without
the Board's intervention.
As the requirement that the parties to a jurisdictional dispute must
be served with the Board processes in the 10 (k) proceeding before it
could proceed with determining the dispute was intended to limit the
Board's.power over such disputes, I would find that the failure to
serve the employers involved in the dispute with a notice of hearing in
the instant proceeding is a jurisdictional error requiring the quashing
of the notice of hearing.
C. R. Brown d/b/a C. R . Brown Cafeterias 1 and Hotel, Restau-
rant Employees & Bartenders Union #59, AFL-CIO, Peti-
tioner. Cases Nos. 1-RC-4402 and 1-RC-4403. June 29,1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert S. Fuchs, 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 :
The Employer operates 12 cafeterias in the State of Connecticut for
the primary purpose of serving employees of United Aircraft Corpo-
ration, herein called United. All of the cafeterias are located in
United plants and the. physical facilities are leased by the Employer
from United under an agreement whereby the Employer assumes all
obligations and liabilities for their operation and retains the commis-
sary profits for its own purposes. United has no voice in the actual
management and operation of the facilities. The record shows that
during the last fiscal year the Employer had total sales of $3,042,000.
During the same period the Employer made purchases totaling
$1,794,335 of which $346,007 was expended for produce and other
supplies shipped directly to the Employer from outside the State of
Connecticut. In addition, the Employer made purchases from local
suppliers of materials shipped to them from outside the State of
Connecticut totaling $666,164. The evidence also reveals that United
manufactures annually products having a total value in excess of $700,-
000,000 of which approximately $630,000,000 represents the value of
products manufactured or services performed under contract with
the United States Government. The evidence further reveals that
1 The name of the Employer appears as amended at the hearing.
115 NLRB No. 276.
C. R. BROWN CAFETERIAS 1773
during the last fiscal year, the Employer received $30,485 directly
from United for meals, and catering services furnished United.
The Board has carefully considered the commerce data adduced at
the hearing and the commerce stipulation executed by the parties,
and finds that the Employer's operations do not meet any of the
Board's established jurisdictional standards.2 However, our dissent-
ing colleagues would have us modify the Board's decision in Bickford
and assert jurisdiction herein on the ground that the Employer is
engaged in industrial catering and thus not governed by the jurisdic-
tional standards applicable to restaurant operations. Even before
the Bickford case and the establishment of the current jurisdictional
standards, in a strikingly similar factual situation and over the dis-
sent of Member Murdock in which he took substantially the same
position as advanced by the dissent herein, the Board declined to assert
jurisdiction 3 Again, in Bickford, in establishing the standard which
we find governs the instant case, the Board, over the objection of our
dissenting colleagues, declined to distinguish between restaurant op=
erations serving the public generally and those serving employees of
industrial concerns over which the Board would assert jurisdiction.
We find no basis in this case for modifying existing precedent by the
application of an alleged distinction twice before rejected by the
Board. Accordingly, in these circumstances, we find that it will not
effectuate the purposes of the Act to assert jurisdiction in this case.
We shall therefore dismiss the petition.
[The Board dismissed the petition.]
MEMBERS MURDOCK and PETERSON, dissenting :
We dissent from the majority's refusal to assert jurisdiction herein.
The refusal to assert jurisdiction necessarily rests on the ultimate con-
clusion that the Employer's operations do not exert a substantial
impact on commerce. Such a conclusion is clearly negated by the facts
here present. Consequently, if the present jurisdictional standards
do not permit assertion of jurisdiction, what is indicated is not the
dismissal of the petition, but a revision of the standards to conform
to the realities of industrial life and to attain the goals which the
standards purport to seek.
The Employer operates 12 cafeterias in 8 plants of United Aircraft
Corporation, hereinafter referred to as United. These cafeterias are
operated exclusively for the purpose of serving employees and guests
of United. They are operated pursuant to agreements between the
2 Hogue and Knott Supermarkets, 110 NLRB 543; Bick ford's Inc., 110 NLRB 1904;
Jonesboro Grain Drying Cooperative, 110 NLRB 481, 484; cf. Maytag Aircraft Corp.,
110 NLRB 594.
3Local 1083, United Automobile, Aircraft and Agricultural Implement Workers of
America, CIO, 107 NLRB 470.
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer and United which require the Employer to provide meals
and other commodities at a price as reasonable as possible, consistent
with the prevailing general average of the cost of foods and other
commodities to restaurants in the area. The agreements limit the
Employer's cafeteria net profits to a sum not to exceed $1,666.67 per
month. If the net profits exceed this amount the Employer is re-
quired to reduce its prices accordingly. The agreements require the
Employer to pay to United 21/2 percent of its gross receipts to cover
costs incidental to maintaining and furnishing cafeteria facilities.
United employs approximately 48,000 employees in its 8 plants,
24,000 in its largest plant, and 800 in its smallest plant. There are
no satisfactory restaurant facilities in the vicinity of United 's plants.
The few small restaurants that do exist can take care of the needs
of no more than 5 percent of United's employees. In the past, moves
to new plant facilities by United have been accompanied by corre-
sponding moves of the Employer's cafeteria facilities. During 1955,
the Employer's sales of food and other commodities to United and
United's employees totaled $3,042,000.
United manufactured products valued at approximately $702,000,-
000 during 1955. Products valued at approximately $630,000,000
were manufactured pursuant to contracts with the United States
Government and were for the most part delivered to the Government
at points outside the State of Connecticut. These products consisted
of airplane engines, propellers, helicopters, and other aircraft equip-
ment.
It is immediately obvious from the foregoing that the Employer's
operations exert not only a substantial impact on commerce but also
on the national defense . The Employer's operations exist only by
virtue of a contract with United for the sole purpose of providing
necessary cafeteria facilities to employees of United, 95 percent of
whom are dependent upon this service. United is a huge industrial
enterprise which ships daily, on the average, aircraft products valued
at $1,726,027 directly in interstate commerce, products which the
United States Government has deemed to be essential to an effective
national defense program. As has been noted before
In the production of [these] goods, the feeding of employees who
operate the machines is just as important as the fueling of the
boilers which run the machines, and it cannot be denied that the
feeding of employees conveniently and quickly and without their
being required to leave the plant is an effective step in maintaining
production .4
* See Member Murdock's dissenting opinion in Local 1083, United Automobile, Aircraft
and Agricultural Implement Workers of America, CIO , 107 NLRB 470 ; also Members
Murdock's - and Peterson 's dissent in Bickford's, Inc., 110 NLRB 1904, 1908, for in-
dustrial authorities on the importance of cafeterias in maintaining a stable labor force
in armament and other plants.
C. R. BROWN CAFETERIAS 1775
Certainly United has recognized the truth behind that observation and
acted consistent therewith by acting jointly with the Employer to
provide these facilities at each of its plants. Furthermore, in addition
to the intrinsic importance of cafeterias in maintaining production
and a stable labor force, it may be noted that a labor dispute among
the Employer's employees resulting in a strike and picketing of the
plants could conceivably bring United's production operations to a
complete standstill. In terms of obstructing commerce, such. a labor
dispute would obstruct the movement of products in commerce each
day of an average value of $1,726,027. The prevention of labor dis-
putes which would have such an impact on the free flow of commerce
is the precise task placed upon this Agency by the congressional
declaration of policy in Section 1 of the Act. In refusing to assert
jurisdiction here, thereby denying the use of the election machinery of
the Board for the peaceful selection of a collective-bargaining repre-
sentative, the majority is refusing to take the preliminary steps neces-
sary to avoid just such labor dispute. We consider this an abdication
of the Board's statutory responsibility in an area where the conse-
quences to the free flow of commerce and the national defense could
be serious.
The majority seeks to avoid responsibility for its action by relying
on existing precedent which rejects any distinction between restaurant
operations serving the public generally and those serving employees
of industrial concerns, and applies the restrictive $10,000,000 gross
receipts retail standard to both. If the majority in fact can find no
basis in the record for such a distinction, it can only be because of its
failure to consider the actual impact of the Employer's operations on
commerce, despite the statement in the majority opinion in the
Bickford case that
As always, in judging the degree to which the Board's jurisdic-
tion ought to be properly extended, our prime consideration must
be the measure of impact that any particular operation has upon
interstate commerce.
As we have noted, a labor dispute at the Employer's cafeteria opera-
tions might exert a tremendous impact upon United's interstate com-
merce. If the measure of impact upon interstate commerce is truly
the touchstone which determines the extent of the Board's jurisdic-
tion, and if the majority persists in applying the retail standards to the
Employer's operations, those standards must obviously be revised.
For, as the retail standard presently stands, it provides no indirect
outflow test by which to measure the impact on commerce of the oper-
ations of a "retail" enterprise which provides services to enterprises
which are directly engaged in interstate commerce. The retail stand-
ard applied by the majority herein thus precludes the Board from
1776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even considering the factor, which the authors of the standards pro-
claimed to be of primary importance. The majority cannot claim
that its refusal to assert jurisdiction is based on its judgment that the
Employer's operations do not exert a substantial impact on com-
merce, when the standard it applies precludes it from even consider-
ing such impact. The deficiency of the retail standard as adopted in
1954 for cases such as this provides no permanent excuse for the pres-
ent majority's refusal to consider the impact of the Employer's opera-
tions on commerce.
Moreover, in the final analysis, we do not believe that the Employer
is properly treated as a retail enterprise. Its cafeterias do not serve
nor are they available to the public. They exist only to provide services
to United and to United's employees, and only because United deems
such facilities a necessary adjunct to its production operations. For
these reasons, the Employer's operations would be classified as non-
retail, under the Fair Labor Standards Act, which exempts retail es-
tablishments from the provisions of that Act. They do- not become
retail merely because the question is whether the provisions of the
Taft-Hartley Act should be applied to them.' As a nonretail enter-
prise, which furnishes meals and other commodities valued in excess
of $3,000,000 annually to employees of United, its operations satisfy
the Board's indirect outflow standards and jurisdiction should be
asserted herein.
5 See Federal Register , October 28 , 1950 ( 15 F. R . 7245 ), Part 779, Title 29-Labor,
Chapter V-Wage and Hour Division , Department of Labor, Section 779 9 (d).
° Jonesboro Grain Drying Cooperative , 110 NLRB 481.
Engine Rebuilding Corporation and Engine Parts Corporation 1
and United Industrial Workers, Local 976, UAW-AFL-CIO,
Petitioner . Case No. 21-RC-4342. June 29, 1956
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 Fred W. Davis, hearing
i As noted herein , the Employer , Engine Rebuilding Corporation , urged at the hearing
that the unit should embrace both its own employees and those of Engine Parts Corpora-
tion, thereby in effect moving to add Engine Parts Corporation as a party to the proceed-
ing. The Petitioner , in objecting to an enlargement of its requested unit to cover the
employees of both corporations , is apparently opposed to the addition of Engine Parts
Corporation Although no notice of hearing was served upon the latter corporation, in
view of the fact that we hereinafter find that Engine Rebuilding Corporation and Engine
Parts Corporation are together a single employer within the meaning of Section 2 (2) of
the Act, we believe that the notice of hearing served upon Engine Rebuilding Corporation
was sufficient notice to Engine Parts Corporation Accordingly, the amendment is hereby
granted. Smith Rice Mall, Inc. and DeWitt Bonded Warehouse Company, 83 NLRB 380,
footnote 1. See also Frost Lumber Industries , 101 NLRB 659 , 660, footnote 3; Maloney-
Chambers Lumber Co ., 104 NLRB 503 , footnote 2.
115 NLRB No. 279.