Marriott Corp.

National Labor Relations Board - Board Decisions

May 24, 1968

171 N.L.R.B. 742 (N.L.R.B. 1968)

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marriott In -Flite Services , Division of Marriott Cor-
poration ' and Local 300, United Industrial Work-
ers of America , Transportation Services and Al-
lied Workers , Seafarers International Union of
North America , AFL-CIO. Case 13-CA-7971
May 24, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Upon a charge filed by Local 300, United Indus-
trial Workers of America , Transportation Services
and Allied Workers , Seafarers International Union
of North America , AFL-CIO, herein called the
Union , the General Counsel of the National Labor
Relations Board , by the Regional Director for Re-
gion 13, issued a complaint dated August 9, 1967,
against Marriott In-Flite Services, Division of Mar-
riott Corporation , herein called Respondent , alleg-
ing that the Respondent had engaged in and was
engaging in unfair labor practices within the mean-
ing of Sections 8(a)(5) and ( 1) and 2 ( 6) and (7) of
the National Labor Relations Act, as amended. Co-
pies of the charge, complaint , and notice of hearing
before a Trial Examiner were duly served upon the
Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance , that on or about
June 16, 1967, the Union was duly certified by the
Board' as exclusive representative of Respondent's
employees in the unit found appropriate by the
Board and thereafter on June 26 , 1967, requested
that the Respondent bargain with it ; that since on
or about June 27, 1967 , and thereafter the Respon-
dent has refused and is refusing to recognize or bar-
gain with the Union as such exclusive bargaining
representative , although the Union has requested
and is requesting it to do so. On August 21, 1967,
the Respondent filed its answer , denying the com-
mission of the unfair labor practices and alleging as
affirmative defense that the National Labor Rela-
tions Board lacks jurisdiction because the Respon-
dent is not an employer within the meaning of Sec-
tion 2(2) of the Act and its employees are not em-
ployees within the meaning of Section 2(3) of the
Act, but are employees under the Railway Labor
Act, and further that it should have been granted a
new election , particularly with respect to its Objec-
01
tion 10 wherein the Regional Director refused to
supply foreign language ballots, and that the elec-
_,,tion held did not give rise to a valid election or cer-
tification.
On August 24, 1967, the General Counsel filed
with the Board a Motion for Summary Judgment,
asserting , in view of the admissions by the Respon-
dent contained in its answer, Respondent's failure
to deny or explain certain other allegations of the
complaint, and its written admissions annexed as
appendices to the moving papers, that there are no
issues of fact or law requiring a hearing, and pray-
ing the issuance of a Decision and Order finding the
violations as alleged in the complaint. Shortly
thereafter, the Charging Party filed a Motion for
Summary Judgment joining in the General Coun-
sel's argument in support of its motion. In addition,
it moved that the Board's remedy for the violation
include compensation for all employees of the
Respondent for the "monetary value of the
minimum additional benefits, if any, including
wages, which it is reasonable to conclude that the
Union would have been able to obtain through col-
lective bargaining with the (R)espondent" as
recommended by the Trial Examiner in Ex-Cell-O
Corporation, Case 25-CA-2377.''
On August 29, 1967, the Board issued an order
transferring proceeding to the Board, and on the
same date, a Notice to Show Cause on or before
September 12, 1967, why the General Counsel's
Motion for Summary Judgment should not be
granted. On September 27, 1967, the Respondent
filed an answer to said Notice to Show Cause and a
brief in support.
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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
RULING ON MOTION FOR SUMMARY JUDGMENT
In its answer to show cause and memo in support,
Respondent contended that the question of its
status as an employer under Section 2(2) of the Act
should be certified to the National Mediation
Board, or the proceeding remanded to a Trial Ex-
aminer for hearing on this question; that the under-
lying certification is invalid because foreign lan-
' Pursuant t0 a stipul.mon of the parties at the hearing, the name of the
Respondent was amended to reflect the successorship of Marriott Corpora-
tion to the business of Marriott-Hot Shoppes. inc , in 1967
Decision and Certification of Representative in Case 13-RM-831, un-
published
' We deem it inappropriate in this case to depart from our existing policy
with respect to remedial orders in cases involving violations of Section
8(a)(5), and therefore deny the remedy requested Monroe Auto Equip-
,new Coinpani, 164 NLRB 1051
171 NLRB No. 102
MARRIOTT IN-FLITE SERVICES 743
guage ballots were not provided as the Board has October 5 , 18, 20, and 26 , following which the
since seen fit to provide in Fibre Leather Mfg. Co., '-' Hearing Officer issued his "Report on Objection
167 NLRB 393; that Respondent is entitled to a No . 12," dated January 6 , 1967, concluding that
hearing at some stage of the proceeding to deter-
mine whether the totality of the conduct objected
to destroyed laboratory conditions for the underly-
ing election; that summary judgment is inap-
propriate because of new evidence with respect to
Respondent's Objection 10 concerning foreign lan-
guage ballots in that the same Region now provides
foreign language ballots ; and that Respondent,
since July 1, 1967, is entitled under section 3 of the
Administrative Procedure Act to consult internal
directives of the Board "some of which undoubt-
edly pertain" to Board procedures with respect to
foreign language ballots, which Respondent views
as previously unavailable "evidence" entitling it to
a hearing on its Objection 10.
Respondent's request for a hearing on the Sec-
tion 2(2) question has since been granted with the
results hereinafter indicated: The other contentions
constitute an attempt to' relitigate matters fully
litigated during the representation proceeding, in-
cluding the Respondent 's contention that it is now
entitled to a hearing on Objection 10.1
The record before us establishes that on Februa-
ry 11, 1966, the Employer filed a petition in Case
13-RM-831, seeking to determine whether the
Union represents employees in the unit found ap-
propriate herein. An election was conducted March
18, 1966. The tally of ballots showed that there
were approximately 618 eligible voters, and that
563 ballots were cast, of which 299 were for the
Union, 203 were against the Union, 60 were chal-
lenged, and 1 was void.
On March 25 the Respondent timely filed objec-
tions to the conduct of the election, and to the con-
duct affecting the results of the election. The Board
deferred ruling on the Regional Director's Report
and ordered a hearing before a Hearing Officer for
the purpose of taking testimony to resolve the issue
raised by the Respondent in its Objection 12.5 The
hearing was held September 26, 27, 28, and 30 and
' We distinguish Fibre Leather Mfg Corp, 167 NLRB 393, which issued
in September 1967, in that the notices of election posted in that case were
in English only, whereas here the notices were provided in Spanish as well
as English The sample ballot attached to both the Spanish and English
notices was printed in English, in the form distributed at the polls Thus a
sample ballot in English was available for advance consideration by the em-
ployees along with notices explaining the election procedure in both lan-
guages In addition, the ballot was a simple one , having the name of only
one union and the usual squares for marking by the voter , one with "yes"
written above and one with "no " The word "no" is the same in both
Spanish and English We are not persuaded that Spanish-speaking em-
ployees gainfully employed in the United States fail to comprehend that
"yes" and "si" mean the same thing In supplying ballots in English along
with notices in appropriate foreign languages. the Regional Director for
Region 13 has in the past proceeded on the principle that secrecy of the
ballot is, to a degree, violated whenever a block of votes, by reason of Ian-
the evidence of conduct presented by the Respon-
dent failed to support either of its theories of union
misconduct or an atmosphere of violence, and
recommending that the objection be overruled.
Thereafter, the Board considered the Hearing Of-
ficer's Report, the Respondent's exceptions to said
report, as well as the remaining objections, and on
June 16, 1967, overruled all the objections and cer-
tified the Union as representative of the employees
in the appropriate unit. Thereafter, on July 24,
1967, the Board denied the Employer-Petitioner's
(Respondent here) motion for reconsideration by
the full Board urging that the Regional Director's
failure to furnish ballots in Spanish, as well as En-
glish, was a departure from Board policy and prac-
tice in other Regions, and his refusal to set the elec-
tion aside was arbitrary inasmuch as Region 13 now
provides foreign language ballots; the Board also
denied the request of Employer-Petitioner for oral
argument.
In response to the Respondent's contention that
the Board lacks jurisdiction because Respondent al-
leges that it is not an employer within the meaning
of Section 2(2) of the Act, and its employees al-
legedly are not employees within the meaning of
Section 2(3) of the Act but are employees under
the Railway Labor Act, the Board on November
16, 1967, remanded the proceeding for a hearing
before a Trial Examiner "for the purpose of adduc-
ing evidence limited to the sole issue of whether or
not the Respondent is an `Employer' within the
meaning of Section 2(2) of the National Labor
Relations Act." After a hearing, Trial Examiner
David S. Davidson issued his Decision on February
6, 1968, in the above-entitled proceeding in which
he concluded that "Respondent is not a company
controlled by a carrier or carriers within the mean-
ing of the Railway Labor Act, is not subject to the
provisions of the Railway Labor Act, and is an em-
ployer within the meaning of the National Labor
guage, can be identified when counted The Regional Director , we believe,
was within his discretion in so proceeding The view that ballots and notices
should ordinarily be in the same language is also sound , Here we note the
lack of any showing that voter misunderstanding resulted from the English
ballots explained by the Spanish notices of election The Respondent's con-
tention that there "may" have been language confusion is entirely specula-
tive The official observers for both parties included observers who spoke
both Spanish and English , the Respondent having one such observer at all
voting sessions and the Union one at most sessions These observers cer-
tified on the tally that the election was fairly conducted We are satisfied
that it was See Thomas A. Nelson, dlh/a Trio Metal Cap Co , 168 NLRB
802, and Polymers, Inc., 170 N LRB 333 ,
' The objection, entitled "Violence and Coercion," alleged Certain em-
ployees were subjected to threats , coercion, and violence by persons sup-
porting the Union, including tire slashing , which created an atmosphere of
fear and interfered with free choice "
744 DECISIONS OF NATIONAL
Relations Act," as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions to the Decision and a supporting brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and the
brief, and the entire record in the case, and hereby
adopts the Trial Examiner's recommendation that
the Board reject Respondent's defense that it is not
an employer within the meaning of Section 2(2) of
the Act and that the Board proceed to rule on the
Motion for Summary Judgment.
As all the material issues have been previously
decided by the Board, are admitted by Respon-
dent's answer to the complaint, or stand admitted
by the failure of Respondent to controvert the aver-
ments of the General Counsel's motion, there are
no further matters requiring a hearing before a
Trial Examiner. Accordingly, the General Counsel's
Motion for Summary Judgment is granted.
On the basis of the record before it, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized and existing
by virtue of the laws of the State of Delaware, en-
gaged in the business of providing in-flight food ser-
vices for various airlines at O'Hare International
Airport, Chicago, Illinois, and Schiller Park, Il-
linois. During the past year, which is representative
of all material times herein, Respondent purchased
and received goods valued in excess of $50,000
directly from sources located outside the State of Il-
linois and shipped goods valued in excess of
$50,000 directly to sources located outside the
State of Illinois.
Although it stipulated to the above facts in the
stipulation for certification upon consent election
in the representation proceeding in Case
13-RM-831, Respondent now contends that its
relationship to common carriers by air bring it
within the coverage of the Railway Labor Act and
thus is exempt as an employer under Section 2(2)
of the National Labor Relations Act. Based on the
stipulated commerce facts and the finding of the
Trial Examiner, which we have adopted, we find
that Respondent is, and has been at all times
material herein, an employer within the meaning of
Section 2(2) of the Act and engaged in commerce
LABOR RELATIONS BOARD
within the meaning of Section 2(6) and ( 7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 300, United Industrial Workers of Amer-
ica, Transportation Service and Allied Workers,
Seafarers International Union of North America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(6) and ( 7) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees at the Respondent's
O'Hare International Airport, Chicago, Illinois, and
Schiller Park, Illinois, places of business, constitute
a unit appropriate for collective bargaining within
the meaning of the Act:
All full-time and regular part-time employees
engaged in food, beverage, and equipment
preparation, assembly, handling, receiving,
storage and packing, including maintenance
employees, food equipment handlers, food and
equipment helpers, dispatchers, coordinators,
and plant clerical employees, but excluding of-
fice clerical employees, guards, professional
employees, and supervisors as defined in the
Act.
2. The certification
On or about March 16, 1966, a majority of the
employees of Respondent in the unit, in a secret
election conducted under the supervision of the Re-
gional Director for Region 13, designated the
Union as the representative for the purpose of col-
lective bargaining with Respondent, and on June
16, 1967, the Board certified the Union as the ex-
clusive collective-bargaining representative of the
employees in said unit and the Union continues to
be such representative.
B. The Request To Bargain and the Respondent's
Refusal
Commencing on about June 26, 1967, and con-
tinuing to date, the Union requested and is
requesting the Respondent to bargain collectively
with it as the exclusive collective-bargaining
representative of all the employees in the above-
described unit . Since June 27, 1967, and continuing
MARRIOTT IN-FLITE SERVICES
thereafter , Respondent did refuse , and continues to
refuse, to bargain collectively with the Union as ex-
clusive collective -barganing representative of its
employees in the appropriate unit, and , by such
refusal, the Respondent has engaged in, and is en-
gaging in , unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with its
operations described in section 1, above, have a
close , intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found the Respondent has engaged in un-
fair labor practices within the meaning of Section
8(a)(5) and (I) of the Act, we shall order that it
cease and desist therefrom , and, upon request, bar-
gain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit and , if an understanding is reached, embody
such understanding in a signed agreement.
VI. CONCLUSIONS OF LAW
1. Marriott In -Flite Services , a Division of Mar-
riott Corporation, is an employer within the mean-
ing of Section 2 ( 2) of the Act, and is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 300, United Industrial Workers of
America, Transportation Services and Allied Work-
ers, Seafarers International Union of North Amer-
ica, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time employees
engaged in food , beverage , and equipment prepara-
tion, assembly , handling , receiving, storage and
packing , including maintenance employees, food
equipment handlers, food and equipment helpers,
dispatchers , coordinators, and plant clerical em-
ployees; but excluding office clerical employees,
guards, professional employees , and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since June 16, 1967, the above-named labor
organization has been the exclusive representative
745
of all employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about June 27, 1967, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
to them in Section 7 of the Act, and has thereby en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Marriott In-Flite Services, Division of Marriott Cor-
poration, Chicago, Illinois, its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with Local 300, United Industrial
Workers of America, Transportation Services and
Allied Workers, Seafarers International Union of
North America, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All full-time and regular part-time employees
engaged in food , beverage , and equipment
preparation, assembly, handling, receiving,
storage and packing, including maintenance
employees, food equipment handlers, food and
equipment helpers, dispatchers, coordinators,
and plant clerical employees; but excluding of-
fice clerical employees, guards, professional
employees, and supervisors as defined in the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the aforesaid ap-
propriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and , if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its O'Hare International Airport,
Chicago, Illinois, and Schiller Park, Illinois, places
of business copies of the attached notice marked
"Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 13, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13,
in writing , within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
" In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with Local 300, United Industrial Workers of
America, Transportation Services and Allied
Workers, Seafarers International Union of
North America, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain collectively
with the above-named Union as the exclusive
representative of all employees in the bargain-
ing unit described below with respect to wages,
hours, and other terms and conditions of em-
ployment and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
The bargaining unit is:
All full-time and regular part-time em-
ployees engaged in food, beverage, and
equipment preparation, assembly,
handling, receiving, storage and packing,
including maintenance employees, food
equipment handlers, food and equipment
helpers, dispatchers, coordinators, and
plant clerical employees; but excluding of-
fice clerical employees, guards, profes-
sional employees, and supervisors as
defined in the Act.
MARRIOTT IN-FLITE
SERVICES, DIVISION OF
MARRIOTT CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date,, of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 881 U.S. Courthouse and Federal Office
Building, 219 S. Dearborn Street, Chicago, Illinois
60604, Telephone 828-7570.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to
charges filed on July 24, 1967, by Local 300,
United Industrial Workers of America, Transporta-
tion Services and Allied Workers, Seafarers Inter-
national Union of North America, AFL-CIO,
hereinafter referred to as the Union, a complaint is-
sued on August 9, 1967, alleging that Respondent
had violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union after the Union
had been certified as the representative of em-
ployees in an appropriate unit in Case 13-RM-831.
Respondent in its answer admitted some allegations
of the complaint, denied others, and raised two af-
firmative defenses. On August 24, 1967, the
General Counsel filed a Motion for Summary
Judgment with the Board. The proceeding was
transferred to the Board, and a notice to show
cause why the General Counsel's motion should not
be granted issued on August 29, 1967. On August
31, 1967, the Union filed its separate Motion of
Charging Party for Summary Judgment, and on
MARRIOTT IN-FLITE SERVICES
September 27, 1967, Respondent filed its answer to
notice to show cause opposing summary judgment.
In it Respondent alleged , among other things, that
it is a "carrier " within the meaning of the Railway
Labor Act and therefore not an employer within
the meaning of the National Labor Relations Act,
as amended , so that the Board is without jurisdic-
tion in this matter.
By its order of November 16, 1967, the Board re-
manded the proceeding to the Regional Director
for a hearing before a Trial Examiner "for the pur-
pose of adducing evidence limited to the sole issue
of whether or not the Respondent is an `Employer'
within the meaning of Section 2(2) of the National
Labor Relations Act." The Board's Order provided
that "upon the conclusion of the hearing, the Trial
Examiner shall prepare and serve upon the parties a
Decision containing findings of fact, conclusions of
law, and recommendations which he finds war-
ranted by the evidence received at the hearing ...."
The hearing was held before me in Chicago, Il-
linois, on December 18, 1967. At the close of the
hearing oral argument was waived, and the parties
were given leave to file briefs, which the General
Counsel and Respondent filed.
FINDINGS AND CONCLUSIONS
1. THE FACTS
With one minor exception indicated below, the
facts were established either by stipulation or
through uncontradicted testimony of the senior
area supervisor of the Chicago operations of
Respondent's In-Flite Services Division, which are
the operations involved in this proceeding.
Marriott Corporation is a publicly held corpora-
tion licensed to do business in Illinois and a number
of other States. Sometime in 1967, Marriott Cor-
poration succeeded to the business of Marriott-Hot
Shoppes, Inc., and has engaged in substantially the
same business as the predecessor corporation.
Previously in 1964 Marriott-Hot Shoppes, Inc., had
succeeded to the business of Hot Shoppes, Inc.
Marriott Corporation has seven operating divi-
sions and a number of staff services all under the
supervision and control of the directors and officers
of Marriott Corporation. The hotel division is in the
business of operating nine Marriott Motor Hotels
and Marriott Motor Hotel Restaurants in seven
States , including one located in Chicago , Illinois,
near O'Hare International Airport. The Service
Restaurant Division is in the business of operating
approximately 40 Hot Shoppes table service restau-
rants in 8 States and the District of Columbia. The
food operations division is in the business of operat-
ing 25 cafeterias in 8 States and the District of
Columbia, including a location in Calumet, Illinois,
' Apart from those entities already identified, those named are either
predecessor corporations or former subsidiaries of them which have been
747
and is also in the business of operating food service
facilities in approximately 25 school, hospital, in-
dustrial, and commercial locations in 6 States and
the District of Columbia. The manufacturing, mar-
keting, and procurement division is in the business
of operating a central supply and quality control
facility known as Fairfield Farm Kitchens in Mary-
land to service other operating divisions. The thru-
way and turnpike division is in the business of
operating approximately 18 turnpike restaurants
and snack bars in 3 States. The Big Boy Restaurants
of American division is in the business of operating
18 restaurants in California and approximately 400
franchise operations on the West Coast.
The remaining division, the In-Flite Services
Division, is in the business of operating approxi-
mately 19 flight kitchens referred to by Respon-
dent as shoppes, in 8 States, including no. 391 in
Schiller Park, Illinois, and nos. 392 and 395, both
at O'Hare International Airport, the operations
directly involved in this proceeding.
All hourly paid employees of the operating divi-
sions of Marriott Corporation, except those of Big
Boy Restaurants of America, receive their
paychecks from the principal offices of Marriott
Corporation, are entitled to participate in the same
credit union, profit sharing, and group insurance
programs, and receive the same paid sick leave and
vacations.
In-Flite Services Division employs approximately
12 percent of the employees of Marriott Corpora-
tion's operating divisions. It does not own or
operate any airplanes, and from 1965 to the date of
the hearing did not carry any passengers or cargo
for hire or any United States mail by airplane. No
certificates of public convenience and necessity
have been issued by the Civil Aeronautics Board,
the Federal Aviation Agency, or the Interstate
Commerce Division to Marriott Corporation or any
of its predecessors or operating divisions. The Na-
tional Mediation Board had not asserted jurisdic-
tion over Marriott Corporation, Marriott-Hot
Shoppes, Inc., Hot Shoppes, Inc., Marriott In-Flite
Services Division, Hot Shoppes Caterers, Inc., Hot
Shoppes Food Services, Inc., National Caterers of
New York, Inc., or American Caterers, Inc.'
John Donald is area supervisor over the opera-
tions of the three Chicago shoppes, and he is also
the manager of shoppe 392. Shoppes 391 and 395
have separate managers. A central purchasing
agent located at shoppe 392 makes all the food
purchases for the three shoppes. Large equipment
purchases, such as trucks, ovens, and other kitchen
equipment, are made through Respondent's cor-
porate headquarters for the three shoppes. Respon-
dent has a central maintenance garage at which it
maintains and repairs its trucks under the supervi-
sion of a garage manager. The garage manager
involved in earlier NLRB proceedings All have been absorbed by Respon-
dent
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchases parts and fuel for the trucks. Another
central maintenance crew maintains Respondent's
kitchen equipment.
A single personnel manager located at shoppe
392 handles personnel matters for the three
shoppes pursuant to personnel procedures
established by Respondent's headquarters industrial
relations department. He is responsible for all hir-
ing for the three shoppes. Discharges of employees
at all three shoppes require the approval of Donald.
Employee assignments are determined by Respon-
dent's supervisors. Except as set forth below, the
airlines for which Respondent supplies food have
nothing to do with the hiring, discharge, assign-
ment, or direction of Respondent's employees:
Conversely, Respondent's supervisors have no
responsibility over airline personnel. Respondent's
employees at its three Chicago shoppes are con-
sidered to be covered by the provisions of the Fair
Labor Standards Act.
Respondent has a written contract entered into
by its predecessor, Hot Shoppes, Inc., with Amer-
ican Airlines which sets forth the relationship
between Respondent and American Airlines.'
Under this contract, Respondent agrees to perform
catering services to the satisfaction of American
Airlines in compliance with regulations,
procedures, standards, and specifications set forth
in American's Passenger Service Manual-Catering
Service Edition, its Food and Beverage Specifica-
tions, and its Catering Service Schedule. A
schedule of prices is incorporated in the agreement,
with provision for adjustment from time to time
upon reasonable demand by either party, with a
procedure provided for resolution of any disputes
by reference of the dispute to an independent firm
of certified public accountants for binding deter-
mination . The contract provides that such prices
are to be "reasonable, fair and equitable to both
parties in the light of all applicable factors includ-
ing cost of raw food, labor, equipment, and all
other basic costs related to the operation of the
catering service."
Under the agreement, Respondent is obligated to
secure all proper and necessary licenses and per-
mits for its operations and to abide by all applicable
Federal, state, local, and airport rules, regulations,
and ordinances. Respondent is obligated to obtain
and maintain statutory workmen's compensation in-
surance and public and automobile liability in-
surance with insurers satisfactory to American and
naming American as an additional assured. Respon-
dent is obligated to indemnify, defend, and hold
harmless American against all claims, liability,
losses, or expenses arising out of or in connection
with the performance of the catering services.
The agreement provides that it will remain in ef-
fect for a period of 5 years from September 6,
1962, with automatic renewal for additional periods
of 1 year in the absence of 90 days' notice of inten-
tion to terminate. In the event either party deems
the other to have failed substantially in per-
formance of its obligations, it may terminate the
agreement upon 30 days' notice specifying the na-
ture of the breach if the offending party fails to
take diligent and reasonable steps to remedy it. Any
disputes as to sufficiency of cause for termination
may be referred to final and binding arbitration.
Until final decision is rendered the agreement is to
remain in effect. Both parties are excused from any
failure of performance due to strikes, boycotts,
labor disputes, and other causes beyond control of
the parties. Respondent's obligations and rights
may not be assigned to a third party without the
consent of American.
The agreement provides:
Persons employed or used by Hot Shoppes in
the performance of its obligations hereunder
shall not be considered employees of American
for any purpose, and particularly, but not ex-
clusively, they shall not be considered em-
ployees of American under the provisions of
any local, state, or federal unemployment com-
pensation act or other form of social security
legislation . Hot Shoppes hereby expressly ac-
cepts exclusive. liability for any and all such
taxes, contributions, or assessments imposed
by such legislation by virtue of Hot Shoppes'
employment or use of such persons.
The agreement requires Respondent to supply
and maintain at its expense all trade equipment, fix-
tures, and devices, including high-lift trucks
required for efficient operations. It provides that
American will supply and maintain at its expense
airplane service equipment required to serve food
and beverages in aircraft, with Respondent to
comply with reasonable instructions and specifica-
tions of American respecting the use of and clean-
ing of such equipment.
The agreement also provides:
American shall have the right at all reasona-
ble hours to inspect the flight kitchen, other
equipment, and facilities employed by Hot
Shoppes hereunder, and the food and services
supplied by Hot Shoppes hereunder. Hot
Shoppes shall use its best efforts to comply
forthwith with all reasonable requests of Amer-
ican for the improvement of the in-flight food
service furnished hereunder.
Shoppe 392 is located at O'Hare Airport near the
flight ramp. It employs approximately 360 em-
ployees. Its sole customer is American Airlines,
pursuant to the agreement just described. Shoppe
392 furnishes meal, snack, and beverage service for
American Airlines flights leaving O'Hare. At 392,
flight service equipment is received and cleaned,
" According to Donald, its terms substantially describe the relationship
between Respondent and other airlines served by it at O'Hare. Contracts
between Respondent and the other airlineswere not introduced.
MARRIOTT IN-FLITE SERVICES 749
and raw food items, are received, cleaned, cut,
cooked, portioned, and packed ready to be served
for delivery to aircraft. Respondent's employees
classified as food and equipment handlers and help-
ers,3 take food and beverages in carriers from the
dispatch area of shoppe 392 to the aircraft in high-
lift trucks owned by Respondent. At the aircraft,
they position the trucks at the aircraft, raise the
body of the truck so that it is level with the galley
door of the aircraft, unload dirty equipment from
the galley, and load the prepared food. Just before
each aircraft departs, food bank employees, who
have carts with limited food storage facilities, check
with the American Airlines gate agent to determine
whether any last minute additions or removals of
food are required and do whatever is required. Em-
ployees classed as coordinators, described as serv-
ing a public relations function, board some of the
aircraft to inquire of stewardesses whether flight
needs have been met.
As the agreement indicates, a number of the
procedures followed by Respondent and its em-
ployees are prescribed by American Airlines. The
airline specifies the sources from which about 90
percent of the food supplied it is to be purchased.
The airline also specifies the brand name, type, and
container to be purchased. Recipes, directions for
food preparation , and portion sizes are also
prescribed by the airline. Safety procedures for
operating trucks at the airport are prescribed both
by the airline and the airport management. In addi-
tion the airline also specifies safety equipment, such
as wheel chocks and lift controls, to be used on or
in conjunction with Respondent's trucks which ser-
vice aircraft. The airline makes periodic main-
tenance checks of Respondent's trucks to insure
that they comply with its standards. The food and
equipment handlers and helpers place food and
equipment in places in the aircraft galleys
prescribed by the airline.' On occasion
stewardesses make specific requests as to place-
ment with which the handlers and helpers comply.
Before leaving each aircraft, the food and equip-
ment handlers are required to obtain a receipt from
a stewardess, and in the event she discovers a
shortage, the handlers must remedy it before
getting the receipt.
All the equipment placed on aircraft in which
food is carried or served is owned by the airlin:,, as
are the mobile carts used by the food bank em-
ployees.-' Although Respondent prepares liquor kits
for the airline, the liquor is purchased and owned
by the airline.'
American Airlines has a catering representative
who spends about 60 percent of his working time at
shcppe 392.' While there he spends some of his
time in the office areas and some in production
areas inspecting the operations to determine
whether the airlines' standards are being met. Each
day he eats a sample meal.
If, during the course of his inspections , the cater-
ing representative observes anything which he be-
lieves requires change or correction he brings it to
the attention of Respondent 's manager , Donald, or
its assistant managers . Every Monday, the catering
representative has a menu meeting with Respon-
dent 's supervisors at which he reviews with them
any complaints he has received during the previous
week from flight stewardesses concerning Respon-
dent's food, service, or personnel. It is left to
Respondent's supervisors to determine what if
anything should be done in response to the com-
plaints. On occasion, the catering representative
makes written complaints concerning the per-
formance of Respondent's employees assigned to
work on the flight ramp or in aircraft. In some in-
stances he has requested that certain employees not
be allowed to work on or around aircraft. Donald
makes an independent investigation of these com-
plaints after which he may honor the request by
transferring an employee to another operation or
another part of shoppe 392 or he may discuss the
matter with the catering representative and explain
that he does not agree with the requested action.
The two other shoppes are operated in substan-
tially the same fashion as 392. Shoppe 395 is
located adjacent to 392 at O'Hare. It employs ap-
proximately 90 employees and prepares food for
Braniff International Airlines, Pan American,
BOAC, Air France, Lufthansa, S.A.S., and Air
Canada. The purchasing, preparation, handling,
transportation, and loading of food for these air-
lines is carried on in substantially the same fashion
as in shoppe 392. The airlines served by 392 do not
have full-time catering representatives, but Respon-
dent deals with port stewards who have additional
responsibilities apart from catering.' Braniff and
Pan American together account for approximately
60 percent of the volume of shoppe 395. Like
American Airlines, they specify the sources from
which Respondent must buy the food used on their
flights. The remaining airlines served by shoppe
395 do not.
About 60 employees fall in this category
The food and equipment handlers and helpers are trained in the
procedures to be followed in loading aircraft by Respondent's supervisors
There are three such carts Normally two employees are assigned at a
time to the food bank service utili7ing two of the carts There is evidence
that American Airlines reimburses Respondent for the wages paid the food
hank employees apart from payments for catering services
Respondent is responsible for the control and storage of the airline's
liquor on its premises The airline audits Respodent's liquor supplies and
accounts each month
There was some dispute as to the amount of time spent by the catering
representative at shoppe 392 1 have accepted Donald's estimate as a rough
estimate of the total amount of the catering representative 's working time
spent by him in all areas of the shoppe premises However , it is clear that
the catering representative works only during the day , the shoppe operates
24 hours a day, and the catering representative is not in the shoppe
between the hours of 6 p in and 8 a in of the next day
' The amount of time spent by the port stewards at shoppe 395 is not in-
dicated on the record but it is clear from the smaller volume of business
which they do with Respondent and their additional duties that it is less
than that spent by the Americal Airlines catering representative at 392
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shoppe 391 prepares food for TWA flights leav-
ing O'Hare and is located at Schiller Park, Illinois,
about 1-1/2 miles from TWA airport operations.
Approximately 190 employees work there. Its
operations are substantially the same as those at
shoppe 392 except that food and equipment han-
dlers and helpers do not enter TWA aircraft. Their
functions stop at the door of the aircraft where they
hand food carriers and supplies to TWA employees
inside the plane. TWA, like American, has a cater-
ing representative, and he has his office at shoppe
391 where he spends all of his time.'
II. CONCLUSIONS
Section 2(2) of the National Labor Relations
Act, as amended, provides: "The term `employer'
includes any person acting as an agent of an em-
ployer, directly or indirectly, but shall not in-
clude . . any person subject to the Railway
Labor Act, as amended from time to time ... ."
The Railway Labor Act,10 provides:
Section 1. When used in this Act and for the
purposes of this Act-First, the term "carrier"
includes any express company, sleeping-car
company, carrier by railroad, subject to the In-
terstate Commerce Act, and any company
which is directly or indirectly owned or con-
trolled by or under common control with any
carrier by railroad and which operates any
equipment or facilities or performs any service
(other than trucking service) in connection
with the transportation, receipt, delivery,
elevation, transfer in transit, refrigeration or ic-
ing, storage, and handling of property trans-
ported by railroad, and any receiver, trustee,
or other individual or body, judicial or other-
wise, when in the possession of the business of
any such "carrier":... .
Section 201. All of the provisions of Title I of
this Act, except the provisions of Section 3
thereof, are extended to and shall cover every
common carrier by air engaged in interstate or
foreign commerce, and every carrier by air
transporting mail for or under contract with
the United States Government, and every aid
pilot or other person who performs any work
as an employee or subordinate official of such
carrier or carriers, subject to its or their con-
tinuing authority to supervise and direct the
manner of rendition of his service.
Section 202. The duties, requirements, penal-
ties, benefits, and privileges prescribed and
established by the provisions of Title I of this
Act, except Section 3 thereof, shall apply to
said carriers by air and their employees in the
same manner and to the same extent as though
such carriers and their employees were specifi-
cally included within the definition of "carrier"
and "employee," respectively, in Section 1
thereof.
The sole issue before me is whether Respondent,
otherwise clearly an employer, is exempted from
the definition of "employer" in Section 2(2) of the
National Labor Relations Act because it is subject
to the Railway Labor Act.
The National Labor Relations Board has asserted
jurisdiction over the airline catering activities of
Respondent and its predecessors, at O'Hare and
elsewhere, on a number of occasions in the past."
The National Mediation Board has never asserted
jurisdiction over Respondent or its predecessors,
nor does it appear that it has ever been asked to.
However, until raised by Respondent herein, the
precise question before me does not appear to have
been raised in the prior proceedings. In the last
proceeding involving Respondent's Chicago In-
Flight Service operations, Respondent contended
that its employees were subject to the Railway
Labor Act and therefore not "employees" within
the meaning of Section 2(3) of the National Labor
Relations Act.12 In that case, the Board concluded
that Respondent's employees were not "em-
ployees" within the meaning of the Railway Labor
Act and denied the employer's motion to dismiss
the proceeding on jurisdictional grounds.13
In the prior proceeding, focus was on the defini-
tion of "employee" under the Railway Labor Act.
Here attention is drawn to the definition of "carri-
er." The critical terms of Section 201, set forth
" As in the case of shoppe 392, shoppe 391 operates on shifts, and its
operations continue when the TWA catering representative is not on duty
45USC§151etseq
" National Caterer of Neu York, Inc u , 129 NLRB 699 (196 (1) (Idlest dd
Airport), Hot Shopper, Inc , 130 NLRB 138 (1961) (Washington National
Airport ). Hot Shopper , Inc , 130 NLRB 144 (1961 ) ( Midway and O'Hare
Airports), Hot Shoppes , Inc , 133 NLRB 3 (1961) (Idlewid Airport &
Jamaica, New York), Hot Shoppes , Inc , 139 NLRB 1253 (1962) ( Friend-
ship Airport ), Hot Shoppes , Inc , 143 NLRB 578 (1963) (O'Hare Airport
and Schiller Park , Illinois ), Hot Shoppes, Inc , 146 NLRB 802 (1964)
(Jamaica, New York ), Marriott ltt-Flue Serrtc es, a Dn isto,i of Marriott-Hot
Shoppes, Inc , 169 NLRB 365 (1967 ) ( Kennedy Airport and Jamaica, New
York)
" 143 NLRB 578 It is true that early in its Decision the Board stated that
the Employer contended that the Board lacked jurisdiction over the
proceeding under Section 2(2) and 2 ( 3) of the Act, from is hich it would
appear that Respondent's status as an employer as well as the status of its
employees was raised However, elsewhere in the Decision, the Board
specifically stated that "it is not contended that the Employer itself is sub-
ject to the Railway Labor Act or that Section 2(2) of the Act, which ex-
cludes from the definition of'employer"an) person subject to the Railway
Labor Act' requires our dismissal of the proceedings herein -
13 In its answer to the Notice to Show Cause herein Respondent con-
tended that ( I ) its entire business operation in Chicago and its relationship
with the air carriers has changed substantially since the time of the Board's
decision in 1963, (2) the location of Respondent's Chicago operations has
changed in that two of Respondent's flight kitchens are now located on O'-
Hare Airport proper, (3) the air carriers served by Respondent and the
terms and conditions under which service is provided have changed since
1963, and (4) the air carriers to whom Respondent provides service now
exercise a greater degree of control and supervision with respect to the
manner in which Respondent 's employees perform their work Except for
the second point , the record does not establish the other changes asserted
by Respondent
MARRIOTT IN-FLITE SERVICES 751
above provide for coverage of "every common car-
rier by air engaged in interstate or foreign com-
merce, and every carrier by air transporting mail
for or under contract with the United States
Government." The General Counsel contends that
Respondent fits neither branch of this definition of
carrier and that the inquiry should end at this point.
Respondent contends , however, that its relationship
to common carriers by air brings it within the
coverage of the Railway Labor Act.
Section 1, first, defining carriers by railroad in-
cludes within that term "any company which is
directly or indirectly owned or controlled by or
under common control with any carrier by railroad
and which operates any equipment or facilities or
performs any service (other than trucking service)
in connection with the transportation, receipt,
delivery, elevation, transfer in transit, refrigeration
or icing, storage , and handling of property trans-
ported by railroad ...." It is true, as the General
Counsel points out, that when Congress extended
the provisions of the Railway Labor Act to carriers
by air it did not add a similar provision for coverage
of companies owned or controlled by carriers by
air. However, Section 202 provides, with an excep-
tion not here material, that the provisions of Title I
of the Railway Labor Act shall apply "to said car-
riers by air and their employees in the same manner
and to the same extent as though such carriers by
air and their employees were specifically included
within the definition of `carrier' and `employee'
respectively in Section 1." While an argument can
be made that the application of the Railway Labor
Act to carriers by air provided in Section 201 does
not expand the definition of a carrier by air con-
tained in that section and the question is not free of
doubt, there is authority to support coverage of
companies owned or controlled by carriers by air as
a result of a conjunctive reading of Sections 1, 201,
and 202.14 1 find it unnecessary for purposes of this
decision to resolve this question, and will assume,
without deciding, that Respondent would come
within the definition of carrier by air if it were
"directly or indirectly owned or controlled by or
under common control with" any carrier by air.15
Respondent is not directly or indirectly owned by
any carrier by air. But the question remains
whether it is controlled by or under common con-
trol with any carrier by air. Respondent relies
heavily upon the decision of the National Media-
tion Board in Ohio & Western Pennsylvania Dock
Company NMB C-3748 (June 21, 1967) in support
of its contention.16 In Ohio & Western the NMB as-
serted jurisdiction over an independent contractor
performing services for the Pennsylvania Railroad
Company, a carrier by rail. In that case the dock
company operated ore unloading equipment on a
dock, unloading iron ore from vessels arriving at
the dock onto railroad cars for direct shipment or
onto the dock for storage and reloading for later
shipment. The premises and dock on which the
contractor operated and the equipment used by the
contractor were owned by Pennsylvania Railroad.
The services of the dock company were performed
exclusively for Pennsylvania Railroad. The dock
company acquired no interest, title, or ownership in
the ore being handled. The dock company was paid
monthly at a fixed rate per ton for ore transferred,
with agreement to renegotiate the rate from time to
time. The railroad did not tell the dock company
how to perform the work or supervise its em-
ployees. The dock company acted as agent for the
railroad in collecting from owners or shippers of
lading amounts designated by the railroad. Major,,
repairs, replacements, and renewals were to be
made by the dock company at the railroad's ex-
pense or by the railroad at its option. The railroad
paid a portion of the wages of any employees taking
scale readings in conjunction with the unloading
operations. The railroad company paid costs of
maintenance and operation of electric locomotives
operated and maintained by the dock company, in-
cluding reimbursement for social security, work-
men's compensation, and other taxes. The railroad
fixed the amount of insurance to indemnify the rail-
road against damage due to fire or tornadoes, ap-
proved the insurer, and received an executed copy
of the policy.17 The dock company was not per-
mitted to sublet or underlet any of the work
without written approval of the railroad company.
" See Air Line Stewards etc v North iteit Airlines, Inc , 267 F 2d 170
(C A 8), Bert denied 361 U S. 901, Air Line .Sreuardi etc v Traits World
Airlines, inc., 173 F Supp 396, affil 273 F 2d 69 (C A 2), cert denied 362
U S. 988 . See also Official Answer of the Assistant Solicitor, Department of
Labor, 91 Wage Hour Manual (BNA) 909-911
"See Hot Slwppes, Inc., 143 NLRB 578, 580. In this connection, I also
assume without deciding, that Respondent performs a service of the kind
which Section I provides must be performed by companies owned or con-
trolled by carriers as the second half of the test of coverage
i" Other NMB and NLRB decisions relied upon by Respondent are of lit-
tle aid or precedential value . In ICC Ex Parte No 72 ( Sub No I)
(December 7, 1938), the question was whether dining car employees on
trains were "employees " within the meaning of the Railway Labor Act, and
its facts are moreover distinguishable from those before me See Hot
Shappes, Inc., 143 NLRB 578, 581, fn 7 In Airline Cuisine, Inc-, NMB
Case 3489 ( June 30, 1961 1, Ward Sky Cap Porter Service, NMB Case
R-3416 (May 2, 1960); Thaddeus Johnson Porter Service, Inc , NMB Case
R-3278 (July 11, 1958 ), and International Air Services, inc., NMB Case
R-3555 (June 14, 1962), the decisions disclose no facts as to ownership or
control on which assertion of Jurisdiction was based nor do they indicate
whether jurisdiction was raised as an issue before the NMB In Sky Chefs,
Inc , Cases 2-RC-1645, 2-RC-2122 ( June 6, 1950), which is unpublished,
the General Counsel and Respondent agree that the corporation over
which the NLRB declined to assert jurisdiction and over which the NMB
subsequently asserted jurisdiction (Sky Chefs , Inc, NMB Case R-2601,
September 24, 1953, Sky Chefs, Inc, NMB Case R-2670, May 15, 1953)
was a wholly owned subsidiary of American Airlines Similarly in Oakland
Aircraft Engine Service , Inc, Case 20-RM-208, 39 LRRM 1368, the em-
ployer over which the Board declined to assert jurisdiction and a carrier by
air were commonly owned Contrary to Respondent's contention the fac-
tor of ownership is significant To come within the definition of a carrier, a
company which is not a carrier must be directly or indirectly owned or con-
trolled by a carrier and engaged in related services
17 The agreement between the parties provided that the same was to be
true of liability policies but the amount was fixed
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The decision does not indicate the duration of the
agreement between the contractor and the railroad.
The NMB found that although none of the above
facts standing alone would be sufficient to establish
control , taken together , they established that the
dock company "has an intimate connection with
the actual transportation concept and function"
and that it rendered " its services for no other Com-
pany or carrier aside from the Pennsylvania Rail-
road , concededly a carrier subject to Section 1,
First of the Act." The NMB concluded the dock
company was properly subject to its jurisdiction.
Although some of the factors present in this case
are similar to those disclosed by the NM B's Ohio &
Western decision , there are a number of others
which are dissimilar or not present in the Ohio &
Western case.
There is no evidence that the airlines own or con-
trol the premises occupied by Respondent . Respon-
dent owns the kitchen fixtures and equipment used
in preparing food for the airlines and the trucks
used in delivering it. Respondent purchases and
owns at the time of preparation all the food and
beverages , except liquor , which it sells to the air-
lines. Respondent performs and bears the cost of
the maintenance of all its equipment . It does not
act as an agent for the airlines for any purpose in
their dealings with the public . While it is true that
in this case unlike Ohio & Western , the airlines do
tell Respondent in considerable detail how to per-
form the work and inspect to make certain that
their specifications are met , they do not supervise
the employees involved , and, if anything, the record
before me shows less direction of Respondent's em-
ployees by airline personnel than disclosed by the
earlier decision involving the same employees when
their status as " employees " within the meaning of
the Railway Labor Act was at issue.18
In Ohio & Western the service performed by the
dock company was itself a direct step in the trans-
portation of freight by the railroad. The dock com-
pany performed only this work and performed it
only for a single carrier . Here the food service pro-
vided by Respondent to the airlines is ancillary to
the transportation of passengers and freight.
Respondent is a corporation generally engaged in
the hotel and restaurant business , and the function
it performs for airlines is related to its activities in
providing food to industrial plants , schools,
hospitals , highway travelers , and the general
public.19 Respondent does not perform its air cater-
ing services for a single airline, but does so for a
number of airlines in Chicago and elsewhere
Although Respondent 's contract prices with
American Airlines are subject to renegotiation and
the contract is terminable upon 30 days' notice in
the event of a substantial breach , the contract pro-
vides for means of resolving disputes over prices
and performance through impartial arbitration, thus
giving stability to the relationship between Respon-
dent and the airline for the contractual term and
diminsihing the likelihood of indirect control which
might flow from opportunity to terminate the con-
tract unilaterally on short notice.
As set forth above, the agreement between
Respondent and American Airlines provides
specifically that persons employed or used by
Respondent to perform its obligations under the
contract are not to be considered the airlines' em-
ployees for any purpose. Respondent 's employees
at shoppes 391, 392, and 395 are paid, like em-
ployees in all but one of Respondent 's operating
divisions , from its headquarters . They are entitled
to receive the same fringe benefits as Respondent's
other employees , and they are subject to the same,
centrally originated , personnel policies as Respon-
dent 's other employees . Respondent independently
hires, discharges, and supervises employees for the
three shoppes, and although the airlines may on oc-
casion request that individual employees not be al-
lowed to work on'or around aircraft, the basis for
such requests is independently investigated and the
requested action is not invariably taken.
Although several statute employ definitions of
carrier not materially different from that contained
in the Railway Labor Act or incorporate its defini-
tion by reference , 2' there appears to have been lit-
tle occasion for judicial consideration of the nature
of the control intended by Congress to bring a com-
pany not itself operating as a carrier within the
coverage of the Railway Labor Act. However, I am
persuaded from those authorities that I have found
that control does not mean simply specifications in
some detail as to the nature of the services to be
performed and the method used , but control of the
management and business policy of the subordinate
company.21 Such control is not present here.
I conclude on the facts set forth above that
Respondent is not a company controlled by a carri-
er or carriers within the meaning of the Railway
143 NLRB 578
While I deem the operations of Respondent not here directly involved
relevant to the issue of Respondent 's control by the carriers by air, it would
not follow, as I understand the General Counsel to contend , that a finding
that Respondent 's operations at shopper 391, 392, and 395 were subject to
the Railway Labor Act would deprive the NLRB of jurisdiction over
Respondent 's other operations See Nortm est Airlines , Inc , 47 NLRB 498,
Northern Pactftc Transport Company, 89 N LRB I56I,Jacdson v Northusect
Airlines , Inc , 70 F Supp 501, affil 185 F 2d 74 (C A 8), cert denied 342
US 812
"' 26 USCA §3231(a), 29 USCA §213(b)(3), 42 USCA §410(a)(9),45
USCA §288(a) 45 USCA §351(a) There is a common thread tieing these
statutes together into a comprehensive scheme for regulating labor rela-
tions, working conditions , and retirement policy with respect to carriers as
a class apart from other employers covered by a different system of regula-
tion It appears that Congress intended uniformity of interpretation of the
definition of carrier in this legislation See Northern Pacific Railroad Co v
Resnold,, 68 F Supp 492, 494, atfd 168 F 2d 934 (C A 8), cert denied
335 U S 828, Martin s Federal Security Agency, 73 F Supp 482, 494, affd
174F2d364(CA 3)
" Mainn v Federal Seutrhti Agents, 174 F 2d 364 (C A 3), affg 73
F Supp 482, Railroad Retirement Board Regulations 20 CFR 202 4,
202 5, Federal Tax Regulations under IRC 1954, §31 3231 (a)-I(h), Offi-
cial Answer of the Assistant Solicitor, Department of Labor, 91 Wage Hour
Manual (BNA) 909-91 1 See also 49 USCA § 1(3)(b)
MARRIOTT IN-FLITE SERVICES
Labor Act, is not subject to the provisions of the
Railway Labor Act , and is an employer within the
meaning of the National Labor Relations Act.
Upon the basis of the above findings of fact and
the entire record in this case , I make the following:
CONCLUSION OF LAW
Respondent is an employer within the meaning of
Section 2(2) of the National Labor Relations Act,
as amended.
RECOMMENDED ORDER
753
Upon the basis of the foregoing findings of fact
and conclusion of law , I recommend that Respon-
dent 's defense that it is not an employer within the
meaning of Section 2 ( 2) of the Act be rejected and
that the Board proceed to rule on the General
Counsel 's Motion for Summary Judgment in the
light of the findings and conclusion herein.