Szabo Food Services, Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1975

219 N.L.R.B. 538 (N.L.R.B. 1975)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Szabo Food Services, Inc. and Local 217, Hotel &
Restaurant Employees and Bartenders Union,
AFL-CIO, Petitioner . Case 2-RC-16612
July 25, 1975
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS , AND KENNEDY
On December 19, 1974, the Regional Director for
Region 2 issued a Decision and Order in the above-
entitled proceeding, in which he found inappropriate
the Petitioner's requested unit of all food service em-
ployees employed by the Employer at three cafeterias
operated by it at the Stratford and Bridgeport, Con-
necticut, plants of the Sikorsky Aircraft Division of
United Aircraft Corporation. Thereafter, in accord-
ance with Section 102.67 of the National Labor Re-
lations Board Rules and Regulations, Series 8, as
amended, the Petitioner filed a timely request for re-
view of the Regional Director's decision, on the
grounds, inter alia, that in finding the petitioned-for
unit inappropriate he made erroneous findings as to
substantial factual issues and departed from official-
ly reported Board precedent. Thereafter, Employer
filed a statement in opposition thereto.
The National Labor Relations Board, by tele-
graphic order dated February 19, 1975, granted the
request for review and stayed the election pending
decision on review. Thereafter, Employer filed a brief
on review.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
proceeding with respect to the issues under review,
including the Employer's brief on review, and finds,
contrary to the Regional Director, that a question
affecting commerce exists concerning the representa-
tion of employees of the Employer within the mean-
ing of Sections 9(c)(1) and 2(6) and (7) of the Act, for
the following reasons:
The Petitioner contends that the record supports a
finding that its requested three-cafeteria unit is ap-
propriate. We agree.
The Employer is an industrial food service con-
tractor. Under its contract with United Aircraft, it
operates cafeterias. dining rooms, and kitchens for
feeding the employees at the latter's Connecticut
plants.' It employs approximately 415 employees at
1 The Employer refers to these operations as its United Aircraft District.
these facilities. There are about 50 employees in the
Petitioner's requested unit. There is no history of col-
lective bargaining for any of the Employer's United
Aircraft District employees.
Headquarters for the Employer's United Aircraft
District is at East Hartford, Connecticut? Also locat-
ed there is a central kitchen where baked goods are
prepared for the district food service facilities. The
various food service facilities are for purposes of ac-
countability subdivided into cost centers or units,
generally confined to single-plant locations. Howev-
er, the three cafeterias located at the two Sikorsky
Division plants, here sought to be combined as a sep-
arate bargaining unit, comprise a single cost center
or unit, referred to herein as the Sikorsky unit. Each
of these units is directly under a "unit" manager,
who reports to one of three area supervisors. The
area supervisor over the Sikorsky unit also oversees
the Norwalk, Southington, and North Haven units?
Geographically, the Sikorsky plants are but 5 miles
apart, and the range of distances separating them
from other district facilities is 14 to 65 miles.
The food programs are administered uniformly
pursuant to the contract with United Aircraft. All
menus and prices are the same at all cafeterias. The
Employer's management in Chicago chooses food
vendors and negotiates prices with the vendors. The
unit manager purchases foodstuffs from a list which
has been approved by central management in Chica-
go.
The district manager sets the pay rates and terms
and conditions of employment for the Employer's
United Aircraft District. He decides the number of
employees needed at each facility and makes the fi-
nal decision in the resolution of grievances and, ex-
cept as noted below, with regard to changes in em-
ployee status. Unit managers make effective
recommendations through their area supervisors to
the district manager as to discharge, promotion, and
pay increases concerning employees under them. In
cases of gross misconduct the unit manager may dis-
charge an employee. The unit manager may also is-
sue written reprimands with the approval of his area
supervisor. Within the personnel complement allot-
ted to his cost center, a unit manager can hire re-
placements.
There were only four instances cited involving per-
manent transfers affecting the Sikorsky unit. During
United Aircraft at present has plants in 10 towns or cities in Connecticut,
and the Employer operates 19 different food service facilities at these plants
2 Centralized management for all of the Employer 's operations is in Cho-
cago, Illinois.
The record contains little evidence as to the specific duties of the area
supervisors and does not indicate how frequently they visit the various units
within their respective areas It appears that they act as liaisons between
district headquarters and the units, especially with regard to matters as
detailed below , which are closely controlled by headquarters.
SZADO FOOD SERVICES, INC.
the year immediately prior to the hearing, there were
700 temporary transfers of I day or less among the
different cafeterias. These temporary transfers repre-
sented less than 1 percent of the man-hours worked
per year, and only about 16 percent of them affected
the Sikorsky unit. These temporary 1-day transfers
are mainly for monthly foremen's dinners. Others oc-
cur sporadically, in connection with "family days,"
"fly-ins," and "division president dinners."
While it appears that the broader districtwide unit
favored by the Employer would be appropriate for
purposes of collective bargaining, we are persuaded
by the foregoing facts and our review of the record
that the requested unit, confined to employees at the
three Sikorsky Division cafeterias, is also appropri-
ate. That these employees have a community of in-
terest separate and distinct from the broader one
they share with other district employees, sufficient to
support an appropriate unit finding, is amply demon-
strated by the following factors: First, and foremost,
the requested employees are under the common im-
mediate supervision of a single manager by virtue of
the fact that the three Sikorsky Division cafeterias
are grouped together as a single unit or cost center
for purposes of accountability. Also, despite the inte-
gration of all operations of the district, the Sikorsky
unit manager retains significant control over day-to-
day operations, especially with regard to discharge of
employees for serious misconduct and the hiring of
replacements. Geographically, the Sikorsky plants
are but 5 miles apart and the next closest cafeteria is
14 miles away.4 Temporary interchange of employees
appears to involve for the most part special functions
and does not occur on a regular or frequent basis.
Finally, there is no history of bargaining for employ-
ees in the district and no labor organization is seek-
ing to represent the broader unit favored by the Em-
ployer.
Accordingly, we shall direct an election in the fol-
lowing unit, which we find to be appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:'
We are unable to understand how our partial reliance on geographic
separation is "improper" because the cafeterias are "located in an arc lead-
ing Northeast ," as characterized by our dissenting colleague . The cafeterias
in the unit sought are located within 5 miles of each other; whereas over half
of the employees in the Employer's proposed unit are located more than 50
miles away from Petitioner 's proposed unit. The Board has long held (see,
e.g., Dixie Belle Mills, Inc., 139 NLRB 629 (1962)) that geographic separa-
tion is a very real consideration in an issue concerning unit scope. It remains
a factor notwithstanding the geometric configuration and juxtaposition of
the cafeterias involved.
5 See Motts Shop Rite of Springfield, Inc and Motts Shop Rite of Chicopee,
Inc., 182 NLRB 172 (1970), and cases cited therein at In. 3.
The cases cited by our dissenting colleague to support his contrary view
are, in our opinion , factually distinguishable . The Lawson Milk , Company
Division, Consolidated Foods Corporation , 213 NLRB 360 (1974), to which he
refers as support for his argument that the degree of temporary interchange
539
All food service employees at the Employer's
food service operations in the Stratford and
Bridgeport, Connecticut, plants of Sikorsky Air-
craft, excluding office clerical employees,
guards, and supervisors as defined in the Act.
[Direction of Election omitted from publication.]6
MEMBER KENNEDY, dissenting:
I agree with the Regional Director's conclusion
that the three cafeterias sought cannot stand alone as
an appropriate unit and that the petition should be
dismissed. The Regional Director was correct in con-
cluding that all of the Connecticut cafeterias servic-
ing employees of United Aircraft Corporation at its
10 separate locations constitute the smallest unit ap-
propriate for purposes of collective bargaining. In
my judgment, reversal of the Regional Director by
my colleagues is not justified by the facts or the prec-
edent and is contrary to the prohibition in Section
9(c)(5) of the Act that the Board shall not establish
bargaining units solely on the basis of extent of orga-
nization.
Like the Regional Director, I think it highly signif-
icant that all cafeteria employees of the Employer are
engaged in the performance of a single contract with
United Aircraft. Pursuant to that contract, all menus
and all prices are the same in all cafeterias. The dis-
trict manager who administers this contract estab-
lishes the same wages, hours, and working conditions
for all the employees in all the cafeterias in the Unit-
ed Aircraft facilities. Thus, under one contract with
the Employer, United Aircraft sets identical condi-
tions and requirements for the operation of all the
cafeterias, and it appears that all complaints or mat-
ters pertaining to that contract are handled at the
district manager level.
In the long run, I do not think that the decision of
the majority furthers the interest of the employees
sought by Petitioner. While the decision to permit
some 50 employees out of a work force of 415 em-
ployees to be represented separately may make initial
organization of the employees easier, it is difficult to
conceive of meaningful bargaining taking place if the
employees choose Petitioner as their bargaining
agent. An employer who has established wages,
fringe benefits, and other labor relations policies on a
much broader basis is hardly likely to be willing to
let a tail this size wag the dog. The Board stated in
Kalamazoo Paper Box Corporation, 136 NLRB 134,
137 (1962), that "each unit determination, in order to
is significant as it affects the requested unit herein , involved incidents of
temporary transfers of store employees to perform day-to-day operations,
unlike the instant case where the transfers , of I day or less in duration, were
mainly for special functions and not for the day-to-day operations of the
cafeterias
6 [Excelsior footnote omitted from publication.]
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further effective expression of the statutory purposes,
must have a direct relevancy to the circumstances
within which collective bargaining is to take place.
For, if the unit determination fails to relate to the
factual situation in which the parties must deal, effi-
cient and stable collective bargaining is undermined
rather than fostered." It seems to me that the unit
found by the majority may well produce just the kind
of employee frustration and resultant instability
which effective collective bargaining should prevent.
Contrary to my colleagues, I do not believe that
the unit managers are vested with sufficient supervi-
sory authority to justify the unit found by my col-
leagues to be appropriate. The Employer's operations
are highly centralized. The district manager is the
only supervisor capable of negotiating wages, sala-
ries, and other terms and conditions of employment
since he is vested with most of the power in this area.
The three supervisors directly beneath the district
manager are further proof of the lack of autonomy of
the unit managers. It appears that the only decisions
a unit manager can make without prior approval are
hiring replacements within an approved complement
and firing an employee on the spot because of gross
misconduct. In all other matters the supervisors and
the district manager must be consulted. The district
manager makes the ultimate decisions. More impor-
tantly, he determines the wage scales, the focal point
of all collective bargaining .7
Although the Employer does treat the Sikorsky
unit as a separate cost center, this is done for purpos-
es of accounting and budgeting rather than for pur-
poses related to or concerning labor relations. Even if
the minimal geographic separation in this case were
considered important enough to warrant a single
unit, the centralization of wage policy and key per-
sonnel decisions compel finding the broader unit ap-
propriate.'
I disagree with the observations of my colleagues
with respect to the interchange of employees. The
Regional Director found that during the year preced-
ing the hearing there were some 700 temporary trans-
fers between various Connecticut locations. Indeed,
during the hearing in this very case, the employees
who attended the hearing were temporarily replaced
by employees from other facilities. It also appears
that employees are promoted to higher ranking posi-
7 Petrie Stores Corporation, 212 NLRB 130 (1974)
8 National Telephone Company, Inc, 215 NLRB No 17(1974). AMFCuno
Division, AMF Incorporated, 205 NLRB 984 (1973).
tions in other locations within the district. Under
these findings, which are not challenged in the re-
quest for review, I think my colleagues err in suggest-
ing that the absence of "regular or frequent" tempo-
rary interchange of employees is a factor in this
record to justify their unit finding.
In this connection, I note that in National Tele-
phone Company, supra, we stated:
We therefore shun any detailed attempt, on
the basis of the incomplete sampling submitted,
to discern precisely what percentage of man-
hours may have been involved in temporary
transfers or the precise nature or purpose of
each transfer. We do conclude that it is plain
enough, upon this record, that the movement of
employees on a temporary basis from location
to location within the division is far from an un-
common experience and is resorted to, as the
testimony clearly shows, not as a result of the
growth or expansion of the Company, but "to
accommodate for a heavier workload in one
branch than exists in the branch from which the
transfer takes place."
In National Telephone there had been only 36 trans-
fers in a 9- or 10-month period. In this case, there
were 700 instances of transfers in a 12-month period.
Similarly, in The Lawson Milk Company Division,
Consolidated Foods Corporation, 213 NLRB 360
(1974), where a districtwide unit of retail food stores
was found appropriate, we considered it significant
that 204 temporary transfers had occurred in a unit
of 334 employees in a 12-month period. In the in-
stant case, the 700 transfers among 415 employees is
a strong factor favoring the broader unit.
The majority decision herein also improperly relies
on geographic separation. Examination of the map of
Connecticut received in evidence shows that the dif-
ferent facilities of the Employer are all located in
fairly close proximity. The cafeterias are not scat-
tered at random over the State; rather they are locat-
ed in an arc leading Northeast from Norwalk to
Windsor Locks on excellent highways. Although the
distance between the two cafeterias furthest apart is
79 miles, the maximum distance between any two
cafeterias is 23 miles . Some are only 7 to 10 miles
apart .9
Since I conclude that the factors present in this
case compel finding a districtwide unit to be the only
appropriate unit, I dissent.10
9 The Lawson Milk Company, supra
10 Gourmet, Inc, d/b/a Jackson's Liquors, et al , 208 NLRB 807 (1974).