National Food Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1950

88 N.L.R.B. 1500 (N.L.R.B. 1950)

In the Matter of NATIONAL FOOD CORPORATION, EMPLOYER and THE
LOCAL JOINT ExECuTIVE BOARD OF THE HOTEL & RESTAURANT EM-
PLOYEES & BARTENDERS INTERNATIONAL UNION, A. F. OF L., OF
WASHINGTON, D. C., PETITIONER
Case No. 5-RC-3641.-Decided March 28, 1950
DECISION
ORDER
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before H. Raymond
Cluster, 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. On November 27, 1942, the Secretary of War authorized the
Commanding General of the Military District of Washington, herein
called the Commanding General, to establish a post restaurant in the
Pentagon Building, in the State of Virginia, to be known as Pentagon
Post Restaurant. Acting on this authorization and appropriate Army
Regulations, the Commanding General established Pentagon Post
Restaurant, hereinafter called Pentagon, and, to ensure its proper
operation, appointed "The Pentagon Post Restaurant Council," con-
sisting of approximately six representatives of the various Federal
agencies housed in the Pentagon Building, and a Restaurant Officer.
The Restaurant Officer is responsible to the Council for the proper
operation of the restaurant, and the Council, in turn, is similarly
responsible to the Commanding General. The Council makes policy
recommendations which the Commanding General, as the final author-
ity, may accept or reject.
The restaurant facilities consist of a number of dining rooms, cafe-
terias, lunch bars, and refreshment counters, with approximately 600
employees. These facilities are managed by National Food Corpora-
tion, a New Jersey corporation hereinafter called National, under a
1 The notice of hearing issued upon the petition filed named Pentagon Post Restaurant
and National Food Corporation as coemployers in this proceeding. For reasons hereinafter
set forth, the petition is dismissed as far as it concerns Pentagon Post Restaurant.
88 NLEB No. 186.
1500
NATIONAL FOOD CORPORATION 1501
contract between Pentagon and National. National receives 1 per-
cent per month of the gross receipts of the business as its compensa-
tion. The contract between Pentagon and National provides, among
other things, that "The Manager [National] shall furnish, employ,
govern, discipline, and discharge all personnel necessary for the carry-
ing on of said business. Such personnel shall be employees of the
Manager." National also determines, under the contract, the rates of
pay for restaurant employees in conformity with job classifications
established by the Commanding General. While it appears from the
record that the authority of National, in virtually all respects, is
subject to the ultimate review and approval of Government officials,
there clearly remains with National an extensive area of effective
control over labor policies and over the basic subjects of collective
bargaining with the employees sought by the Petitioner 2
The petition herein names Pentagon as the employer of the em-
ployees involved in this proceeding; the notice of representation hear-
ing names Pentagon and National as coemployers. At the hearing,
at which representatives of both Pentagon and National appeared,
the Petitioner asserted that National was the employer of these em-
ployees. Pentagon took the position that, as a Government instru-
mentality, Pentagon was not an employer within the meaning of the
Act .3 Pentagon further asserted, in substance, that there was no
employer-employee relationship in this case and that the petition
in its entirety must therefore be dismissed. National took no posi-
tion, but submitted the whole question to the Board for its
determination.
National's status is that of a Government contractor and not that
of an agent of Government so as to entitle it to the immunity of
the Government under the Act. We are, moreover, of the opinion
that there is sufficient evidence of the existence of an employer-
employee relationship between National and the employees involved
herein. We therefore find that National is an employer within the
meaning of the Act 4 However, we shall dismiss the petition as to
Pentagon.
During the year ending June 30, 1949, the gross income of the
restaurant facilities amounted to approximately $2,867,000. During
the same year, the enterprise made purchases amounting to approxi-
2 The Board notes that a contract between National and United Cafeteria and Restaurant
Workers, Local No. 471, covering other restaurant employees at Pentagon, contains pro-
visions relating to seniority , grievances , wages, hours , leave , union activities , and the
arbitration of disputes between the parties.
B Section 2 (2) of the Act states, among other things, that "The term 'employer'-shall
not include the United States."
'Monsanto Chemical Company , Clinton. Laboratories , Oak Ridge, Tennessee , 76 NLRB
767, and cases cited therein.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately $1,500,000, about 75 percent of which were made in the District
of Columbia. The services performed by National are essential to
an uninterrupted flow of these products from the District of Columbia
to the Pentagon in Virginia.5 We find, therefore, that in its opera-
tion of the Post Restaurant, National is engaged in commerce within
the meaning of the Act.
Pentagon Post Restaurant provides the only practical eating facili-
ties for a substantial number of employees in the Pentagon Building.
In consequence, continued restaurant service is necessary for the
effective performance of the activities of the Federal Government
carried on in the Pentagon Building. Under these circumstances,
we also conclude that it would effectuate the policies of the Act to
exercise jurisdiction in this case.
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 certain employees of the Employer within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act s
4. The following employees of the Employer at the Pentagon Build-
ing constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act : Cafeteria
production assistants, cafeteria supervisors, salad supervisors, dish
room supervisors, counter supervisors, assistant cafeteria super-
visors, floor supervisors, hostesses, assistant bar managers, butchers,
supervisors of the bake shop, receiving clerks, accounting clerks,
cashier-clerks, head floor-cashiers, cashiers, part-time cashiers,
pastry clerks, the supervisor of the officers' pantry, head butcher,
chief clerk of the stores' register, assistant to the purchasing agent,
maintenance supervisor, carpenter, painter, mechanic, clerk-typist,
assistant to the comptroller, bookkeeper, assistant bookkeeper, time-
keeper, payroll and personnel clerk, assistant paymaster, second as-
sistant paymaster and machine operator, general office clerk, head bar
cashier, second assistant to the chief cashier, linen room attendant,
supervisor of the pot and pan room, assistant pastry shop manager,
part-time pastry clerk, and operator of the Donut machine, excluding
the hall guard,? and cafeteria floor managers, the general manager
and his confidential secretaries, assistant general manager, super-
visor of bars, assistant supervisor of bars, supervisor of the sandwich
' Lee E. Stine d/b/a Fairchild Cafeteria and Fairchild Engine and Airplane Corporation,
87 NLRB 667; and Air Terminal Services, Inc., 67 NLRB 702.
'Monsanto Chemical Company, Clinton Laboratories, Oak Ridge, Tennessee, supra.
7 The hall guard spends his working time protecting the property of the Employer against
theft and is therefore employed as a guard within the meaning of the Act. United States
Gypsum Company, 79 NLRB 536.
NATIONAL FOOD CORPORATION 1503
shop, manager and assistant manager of the production kitchen, comp-
troller, payroll and personnel chief, assistant chief of personnel and
safety director, chief cashier, assistant chief cashier, chief of the
general service department and maintenance, manager of the pastry
shop, and bar managers, the dry store manager, day supervisor and
night supervisor of the general service department, supervisory chef,
supervisor of the officers' dining room," supervisor of the butcher
shop,9 refrigerated supply manager,10 and other supervisors within
the meaning of the Act.
ORDER
Upon the entire record in this case, the National Labor Relations
Board hereby orders that the petition herein be, and it hereby is, dis-
missed as to Pentagon Post Restaurant.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later
than 30 days from the date of this Direction, under the direction and
supervision of the Regional Director for the Region in which this
case was heard, and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations, among the employees
in the unit found appropriate in paragraph numbered 4, above, who
were employed during the payroll period immediately preceding the
date of this Direction of Election, including employees who did not
work during said payroll period because they were ill or on vacation
or temporarily laid off, but excluding those employees who have since
8 Bar managers promote employees. The dry store manager, the day supervisor and the
eight supervisor of the general service department , and the supervisory chef discipline
employees. The supervisor of the officers ' dining room has authority to discharge employees.
We therefore find that bar managers, the dry store manager, the day supervisor and the
night supervisor of the general service department, the supervisory chef, and the supervisor
of the officers' (lining room are supervisors within the meaning of the Act.
9 The supervisor of the butcher shop , classified as a unit manager in the Employer's
organization , is in charge of the Employer ' s butcher shop. He is responsible for the storage
of meats and for the sanitation of the extensive area of the butcher shop. He receives and
fills requisitions from the production manager in the kitchen . He spends GO to 75 percent
of his working time in cutting meat , and directs two other meat cutters and a porter in the
performance of their duties. Because of his supervisory functions , his salary is approxi-
mately $600 to $800 higher per year than that of the next highest paid butcher under him.
Under these circumstances , and because he responsibly directs the work of the employees in
the shop, we find that the supervisor of the butcher shop is a supervisor within the meaning
of the Act.
11 The refrigerated supply manager , classified as a unit manager in the Employer's
organization , is in charge of the Employer 's refrigerated warehouse . He has approximately
six employees under him . His duties are similar to those of the dry store manager, whom
we have found ih footnote 8, above, to be a supervisor . We therefore find that the refrig-
crated supply manager is a supervisor within the meaning of the Act.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bar-
gaining, by The Local Joint Executive Board of the Hotel & Restau-
rant Employees & Bartenders International Union, A. F. of L., of
Washington, D. C.
MEMBER STYLES took no part in the consideration of the above
Decision, Order, and Direction of Election.