Colonial Catering Co.

National Labor Relations Board - Board Decisions

Jul 23, 1962

137 N.L.R.B. 1607 (N.L.R.B. 1962)

COLONIAL CATERING COMPANY 1607
Colonial Catering Company and Hotel and Restaurant Em-
ployees & Bartenders International Union , AFL-CIO; Hotel,
Motel , Restaurant and Club Employees Union . Case No. 16-
RC-3104. July 23, 1962
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 Hugh M. Smith, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a
three-member panel [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record, the Board finds :
1. The Employer, a Texas corporation, pursuant to a contract with
Bell Helicopter Company,' prepares and serves food to the latter's
employees in Bell's plant located near Fort Worth, Texas. The
Employer's gross sales of food to Bell's employees amounted to $196,-
000 last year. The contract provides that Bell will furnish the cafe-
teria facilities on its premises and all cafeteria equipment, including
cooking and serving utensils and tables and chairs for patrons. The
Employer in turn is required to supply operating personnel and food.
The contract further provides for a maximum and a minimum profit
for the Employer. In the event the maximum is exceeded, the Em-
ployer agrees to reduce food prices. If the minimum is not met, Bell
will make up the difference. In addition, the Employer must main-
tain certain minimum standards of food quality and is subject to
a semiannual inspection by Bell. Bell employs 3,200 employees, not
more than 10 percent of whom leave the plant for lunch during their
30-minute lunch period. Approximately 25 percent of the remaining
employees eat in the cafeteria, the remainder bring their own lunch
which is eaten at or near their machines. The only other eating
establishments available to Bell employees in the immediate vicinity
of the plant are two restaurants located across the street from the
plant, approximately 50 and 100 yards, respectively, from the main
gate. These restaurants together have a seating capacity of approxi-
mately 450.
The Employer and three public restaurant businesses, all located
in Fort Worth, Texas, namely, Colonial Cafeteria, Inc., a corporation,
Colonial Cafeteria No. 1 and Colonial Cafeteria No. 2, both partner-
ships, were, until several days before the hearing in the instant case,.
all controlled by members of the Horan family under a system of inter-
'Hereinafter referred to as Bell
137 NLRB No. 160.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
locking ownership, officers, and directors. Except for Colonial Cafe-
teria No. 2, each restaurant was and is separately managed by a
member of the Horan family. Just prior to the hearing, all of the
stock of the Employer, not then held by Robert R. Horan, was con-
veyed to him by the other shareholders. Robert R. Horan continues
to hold interests in the other restaurants. The four restaurants still
share the expenses and services of a common bookkeeping office which
employs two bookkeepers who prepare all bills and checks, including
payroll checks, for all four of the restaurants. The present book-
keepers were hired by Charles W. Horan, Jr., and are supervised by
him. He testified that he spends at least 5 to 6 hours each week at the
bookkeeping office and has authority to discharge the bookkeepers.
In addition, the services of a head baker and dietitian, both on the
payroll of Colonial Cafeteria No. 1, are available to the Employer for
it set fee. The head baker's services are also available to the other
two restaurants. The combined annual gross receipts of the four
restaurants exceed $500,000.
In view of the foregoing and the record as a whole, we find that
the Employer and the three other Colonial cafeterias constitute a
single employer within the meaning of the Act.' Furthermore, as
the Board has determined that restaurants are retail enterprises for
jurisdictional purposes,' and the combined annual gross receipts of
all four Colonial cafeterias exceed $500,000, we find their operations
meet the Board's volume of business standards for the assertion of
jurisdiction over employers engaged in retail enterprises.'
The record contains no evidence that either the Employer alone or
the four Colonial cafeterias combined receive or furnish goods or
services which cross State lines. We find, however, that the Em-
ployer's business is impressed with the elements of legal jurisdiction
of the following reasons :
Bell does an annual business of approximately $50,000,000, 85 per-
,cent of which is received from its production of helicopters for the
United States Armed Forces under Government contracts.
The Employer conducts its operations pursuant to a contract which
requires it to provide its services exclusively to Bell, on Bell's premises,
in facilities provided by Bell at a limited, but guaranteed, net profit.
Thus, although Bell does not own or operate the Employer, it sub-
sidizes the Employer by its substantial investment in the cafeteria
facilities and guarantee of a minimum profit, in order to provide its
2 See Levitz Service Company, 121 NLRB 205; and The Family Laundry Inc., et al.,
121 NLRB 1619.
81t is settled that restaurants generally are considered to be retail operations under
the Board's jurisdictional standards. Bickford's Inc, 110 NLRB 1904.
6 Carolina Supplies and Cement Co, 122 NLRB 88. The Employer moved to dismiss on
the ground that it and the other three restaurants do not constitute a single employer,
and therefore the Board is without jurisdiction because it, the Employer, alone does not
meet the Board's retail volume business test. In view of our finding above, we deny the
Employer's motion.
COLONIAL CATERING COMPANY 1609
employees with the benefits of a convenient and reasonably priced
food service. The Employer is, therefore, an integral and essential
participant in Bell's operational scheme. This is further emphasized
by the lack of sufficient nearby restaurant accommodations for Bell's
employees. Bell's considered judgment that the maintenance of the
cafeterias tends to promote its production more efficiently is exem-
plified by its willingness to subsidize not only the profits of the
Employer but also to furnish, at its own expense, the facilities oc-
cupied by the Employer. Since Bell's operations constitute a sig-
nificant segment of our total defense effort, a labor dispute among
the Employer's employees resulting in a strike and/or picketing at
Bell would inevitably cause a cognizable disruption in Bell's defense
production and have an impact on the total defense effort. As Bell
has defense contracts in excess of $42,000,000 this conclusion is clearly
warranted.
In these circumstances, we find that the Employer's annual busi-
ness is in excess of $500,000 and exerts a substantial impact on national
defense. Accordingly, we find that pursuant to the Board's retail and
national defense standards,' it will effectuate the policies of the Act
to assert jurisdiction over the Employer herein.'
2. The labor organization named below claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within Section 9(c) (1)
and Section (6) and (7) of the Act'
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within Section 9 (b)
of the Act.
All employees of the Employer employed at the Bell Helicopter
Company cafeteria, Tarrant County, Texas, excluding manager, assist-
ant manager, chief dietitian, head baker, and all other supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
5 Carolina Supplies and Cement Co ., supra; and Ready Mixed Concrete & Materials,
Inc, 122 NLRB 318, 320
6 F G. McFarland and S. R. Hullinger, d/b/a McFai land & Hullinger , 131 NLRB
745, 749-750.
In C R Brown , d/b/a C R. Brown Cafeterias , 115 NLRB 1772, Member Leedom joined,
in declining to assert jurisdiction over an employer similarly engaged in industrial cater-
ing at a defense plant, because that employer ' s operations did not satisfy the Board's
then -existing jurisdictional standards for retail enterprises . As set forth above, this
Employer 's operations satisfy the Board 's present standards for such enterprises The
instant case is therefore , in Member Leedom's opinion , distinguishable from the Brown
case, and he consequently concurs in the assertion of jurisdiction over the Employer herein.
7 The Employer also moved to dismiss on the grounds that (1) the petition did not
allege a request for recognition , and (2) the petition was not investigated prior to the
hearing. These motions are hereby denied . The Board has held that the filing of a peti-
tion in itself constitutes a sufficient demand for recognition to support a representation
petition ( Girton Manufacturing Company, Inc , 129 NLRB 656 , footnote 3), and investiga-
tion of a petition is an administrative matter, not litigable by the parties ( Florida Tilo
Industries, Inc., 130 NLRB 897, 898).