The Horn & Hardart Co.

National Labor Relations Board - Board Decisions

Jun 24, 1964

147 N.L.R.B. 654 (N.L.R.B. 1964)

654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The "pretext" argument was separately made and has been discussed above; no
citation of authority is required for the proposition that an employer may discharge°
an employee for a good reason , a poor reason , or no reason at all, so long as the
terms of the Act are not violated . Accordingly , further discussion of this subject
seems unnecessary.
Summing up , it appears that Wade and Lamont clashed over a matter involving
the operation of Respondent 's business and that Lamont discharged Wade . It also
appears that, despite the efforts of Tubbs and Stanley , Lamont chose , for reasons
of his own not shown to be illegal under the Act, not to reinstate Wade . The record
contains, in my opinion , no substantial evidence that union animus was a factor in
either of these decisions by Lamont and I cannot find that Respondent 's discharge
of Wade or its failure to reinstate him constituted discrimination violative of Section
8(a)(3) or ( 1) of the Act . Accordingly, I shall recommend dismissal of the
complaint.
Upon the basis of the foregoing findings of fact, and upon the entire record in the-
case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material to the issues . in this
proceeding , an employer within the meaning of Section 2 (2) of the Act , engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
3. The evidence fails to establish that Respondent discharged or refused to rein-
state Earnest Wade for union or concerted activities in violation of Section 8(a)(3)
and (1 ) of the Act.
RECOMMENDED ORDER
The complaint should be , and hereby is, dismissed.
The Horn & Hardart Company and Bakery and Confectionery
Workers' International Union of America , Local 3, Petitioner.
Case No. 2-RC-13147. June 24, •1964
. DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) (1) (A) of the
National Labor Relations Act, a hearing was held before Hearing
Officer Haywood E. Banks. The Hearing Officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board fords
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert jurisdic-
tion herein.
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) (1) and Section 2 (6) and (7) of the Act.
147 NLRB No. 88.
THE HORN & HARDART COMPANY 655
4. The Petitioner seeks an election among all production and main-
tenance employees including plant clericals at the Employer's com-
missary where the employees are engaged primarily in the preparation
of food for sale, in restaurants and cafeterias and in related activities:
The Employer agrees that the proposed unit is appropriate; the
parties are, however, in sharp disagreement concerning the proper
unit placement of certain individuals variously classified, all of whom
the Petitioner, contrary to the, Employer, would exclude.
Assistant foremen, shift foremen, and relief assistant foremen. The
Employer's commissary operations are divided into some 10 produc-
tion and maintenance departments having a total of about 1,000 em-
ployees, ranging from 319 employees in the cake department down to
about 20 in assembly. The commissary is in operation 24 hours a
day, 7 days a week. Some of the departments work around the clock,
on three shifts, while others work only part of the day, on one or
two shifts. Aside from general plant supervision, each department
is under its own supervisor or foreman who the Employer agrees
should be excluded. Additionally, each department except for assem-
bly and general porters includes individuals classified as assistant fore-
man and/or shift foreman; several of the larger departments also
include individuals classified as relief assistant foreman. The Peti-
tioner asserts that these assistant, shift, and relief foremen are statu-
tory supervisors, basing this assertion largely on the ground that they
reponsibly direct employees.
None of the disputed foremen can hire, discharge, or directly disci-
pline employees. Their authority to make effective recommendations
with respect to such matters is, on the record before us, ambiguous.
However, each of the disputed "foremen" to some extent directs the
work of employees. Essentially, the difference between a shift fore-
man and an assistant foreman is that the former works on a shift dur-
ing the foreman's off-hours, while the latter, working at a time when
the foreman is present, directly oversees the work of a particular
group or section of employees. This distinction is apparently, not
always observed in practice. The relief foremen regularly work as
assistant or shift foremen at least 1 day a week, and at various other
times when the other classifications of foremen are absent. In any
event, the record shows that the duties and responsibilities of the shift,
assistant, and relief foremen are all substantially the same.
It appears that the disputed foremen, unlike the departmental fore-
men and supervisors, work along with the employees and are the
persons. immediately responsible for seeing that the work is done prop-
erly on their shift or in their section. Further, it is clear that in
carrying out their duties they. do not, for the most part, work under
the close, continuing, immediate supervision of any superior. Thus,
as noted, a shift foreman is usually on duty only when his depart-
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mental supervisor is off duty, while the assistant foreman is usually
in charge of one section of a large department having several sections
at different locations on various floors of the commissary. In fact,
as the Employer's vice president testified, it is the assistant foreman
who is "on the floor" immediately directing the work of the employees.
Although the operations are largely routine, it appears that the shift
and assistant foremen have discretion to decide nonroutine matters
within limits not too clearly defined in the record. In addition, the
assistant or shift foremen report disciplinary matters, along with their
recommendations, to higher management which usually acts on their
suggestions. The record further shows that the shift and assistant
foremen attend supervisors' meetings; that they are paid somewhat
more than regular employees; and that such employees have been noti-
fied concerning the "foreman" status of these individuals. Lastly, if
the Employer's position were accepted, there would be in such large
departments as "cake" only 1 statutory supervisor for some 319 em-
ployees working on both night and day shifts; in "bread" there
would be 1 supervisor for 69 employees; while in "kitchen" the ratio
would be 1 to 257. In all these circumstances, we find that the assist-
ant and shift foremen responsibly direct employees and are therefore
supervisors within the meaning of the Act; we shall accordingly ex-
clude them from the unit.' As the relief assistant foremen regularly
perform the duties of assistant foremen at least 1 day a week, we shall
for similar reasons exclude them from the unit .2
Leadmen. The Petitioner takes the position that certain individ-
uals classified as leadmen are in effect assistant foremen and should
be excluded as Such.' The evidence does demonstrate some similarity
between the responsibilities of the leadmen in question and those of
the assistant foreman. Thus, all the leadmen direct to some extent
the work of other employees, and certain of them exercise their lead-
man functions when the foremen are absent. However, there is no'
evidence that the leadmen at any time take over the functions of the
foremen, that their responsibilities include anything other than carry-
ing out set instructions, or that they in general possess the responsi-
bilities and authority of shift or assistant foremen to whom they are
compared by the Petitioner. In these circumstances, we find that the
record fails to show that the disputed leadmen are supervisors. They
are, therefore, included in the unit.
Material control, order, and inmentory department employees. The
Petitioner would exclude employees in the three foregoing depart-
ments as office clericals, while the Employer contends they are plant
See Monarch Rubber Company, Inc., 129 NLRB 482; West Virginia Pulp and Paper
Co., 122 NLRB 738, 741-744, 752.
2 United States Gypsum Company , 120 NLRB 906, 909.
3 The Petitioner contends that leadmen Hughes , Wright, Hoyles, Baldeon, Moeller, and
Alvarez should be excluded.
THE HORN & HARDART COMPANY 657
clericals, and thus, as agreed,. included. • The employees in material.
control spend 50 percent or more of their time in production areas
actually handling various food materials in order to determine how
much of the finished food products are realized from the materials
used. The work involves among other things weighing and keeping
records of the results. Order employees handle orders received from
the Employer's various retail restaurants and cafeterias. They total
orders for and deliver them to the production departments, and handle
for such departments any "adds or cuts" intheir orders. Employees
in the inventory department maintain a, running inventory of, mer-
chandise and stock and its disbursement to various departments. Their
work involves not only keeping records but the actual counting of
stock in production areas for inventory purposes, which is done either
monthly or weekly depending on the particular item. Thus, it is
apparent that employees in the material control, order, and inventory
departments are all directly concerned with production activities,
that their work carries them 'regularly into production areas, and that
at least in material control and inventory their work involves the
actual handling of stock and materials. Further, none of these em-
ployees work in or out of the main office clerical area on the sixth
floor of the commissary building, but are headquartered close to pro-
duction areas.4 Accordingly, we find that material control, order,
and inventory employees are plant clerical employees included in the
unit.'
Payroll employees. We find contrary to the Petitioner's position
that the two payroll employees are plant clericals. They work under
the payroll clerk, a conceded supervisor, in an area unconnected with
the Employer's office clerical location. They are concerned with
matters affecting the payroll of production and maintenance employ-
ees only, and pay some of these employees in cash. One of the pay-
roll clerks also prepares employee food orders which involves writing
up and distributing such orders. As the payroll employees are plant
clericals,' they, too, are included in the unit.
Quality control employees. The Petitioner would exclude the two
quality control employees on the grounds they are technical employees.
They work primarily in the laboratory on the third floor under the
supervision of the company chemist. One of these two employees
spends his time performing bacterial and fat analysis of various
food materials and has had either some special schooling or on-the-
4 Inventory is in an area on the second floor shared with the billing employees , who are
concededly office clericals . However, it is uncontradicted that billing was located on the
second floor solely because there was inadequate space for it in the sixth floor office
clerical area.
5 The Woodman Company, Inc ., 119 NLRB 1784, 1788.
6 See Solar Electric Corporation, 128 NLRB 35, 37.
756-236-65-vol. 147-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job training to qualify for his work. The other employee produces
samples of various new food items for possible sale in the Employer's
retail establishments, and her work presumably involves some train-
ing.or experience. The work of both employees takes them on occasion
into production areas , the analyst to obtain samples, the new food
developer to obtain materials , and sometimes to use certain equip-
ment. We need not decide whether or not these employees are techni-
cals; even assuming that they are, they clearly have, we find, sufficient
interests in common with the production and maintenance to warrant
their inclusion in the unit.7 They are, therefore, included.
The first-aid employee. The Petitioner would exclude this em-
ployee as a professional. Her principal job is to give first aid to
injured or ill employees by providing items such as minor bandages
and aspirin. Any person requiring more serious care is sent to the
company medical department which is not located in the commissary.
The employee's only training for her job has been a Red Cross first-
aid course. Clearly, she is not a professional." Further, as her first-
aid room is located on a production floor and as her first-aid work
carries her, throughout the plant, we find that the first-aid employee
has sufficient common interests with production and maintenance em-
ployees to warrant her inclusion in the unit. She is, therefore,
included.
Miscellaneous categories and individuals whom the Petitioner would
exclude. The chauffeur drives an automobile for the company presi-
dent. Although the record discloses that the chauffeur spends about
10 percent of his time working as a porter in the commissary, we
cannot determine from the testimony whether this is on a regular or
intermittent basis. Accordingly, we shall permit him to vote, sub-
ject to challenge." The student works as a production or maintenance
employee full time during the summer and 1 day a week during the
school term. We find he is a regular part-time employee and, thus,
in the unit.10 Employee Williams Gans works in the stationery de-
partment of the storeroom and stores and files various office and other
records. The Petitioner contends Gans is an office clerical file clerk.
M. Uminger and C.. Perzan do secretarial work for supervisors of
departments covered by the unit. Uminger also does regular work in
the storeroom.. The Petitioner contends these two employees are also
7 See The Sheffield Corporation , 134 NLRB . 1101, 1103-1105 . As Member Leedom finds
that these employees are not technicals ( see Victor Manufacturing & Gasket Company,
133 NLRB 1283,1285 ), he deems it unnecessary to determine their unit placement on the
assumption that they are technicals.
8 Reynolds Electrical c6 Engineering Company, 133 NLRB 113 . Moreover, in view of her
limited training she is, unlike the first-aid attendants in this cited case, also not a tech-
nical employee. .
e Cf. Berea Publishing Company, 140 . NLRB 510, 519. For the reasons stated in foot-
note 8 of the Berea decision, Member Leedom would exclude the chauffeur from the unit.
10 Taunton Supply Corp ., 137 NLRB 221, 222.
THE HORN & HARDART COMPANY 659
office clericals. As Gans, Uminger, and Perzan all work under plant
supervision, in production areas, and perform work in part related
to production work, we find that they are plant rather than office
clerical employees; 11 they are, therefore, included. The Petitioner
would exclude the maintenance engineers who work on the boilers
and other equipment, presumably because they hold engineer certifi-
cates, and would also exclude storeroom employees `Elvis and Rosado
because they work as printers. We find no merit in these contentions,
and these employees are included in the unit as they clearly are en-
gaged in regular production and maintenance work. The Petitioner
would also exclude James Murphy because he is a shipping and re-
ceiving employee, and the parties have agreed to exclude all shipping
and receiving employees. It appears from the record that except
for Murphy, all those working in shipping and receiving are either
supervisors or employees of an independent contractor. Murphy, on
the other hand, is an employee of the Employer performing plant
clerical work in an office adjacent to the receiving area. His immedi-
ate superior is the assistant to the shipping foreman and his work
is closely tied to the inventory department. In these circumstances,
we find that it was not the intention of the parties that Murphy be
encompassed within the stipulated shipping and receiving exclusion.
He is, rather, within the stipulated plant clerical inclusion; accord-
ingly, we include him in the unit.
Pensioners. 't'here are a few employees whom the Employer has
pensioned, but who return each year to work only a sufficient num-
ber of hours to earn the $1,200 permitted annually while drawing
full social security benefits. We agree with the Petitioner that in
view of their special employment status such employees do not have
sufficient interests in common with regular production and mainte-
ance employees to warrant their inclusion. Consequently, we exclude
them.ia
Sick-leave employees. The Employer automatically places on leave
of absence anyone who has been sick for more than 2 months. The
Petitioner contends that 10 employees on the sick-leave list should
be excluded. Five 13 of these ten have not worked for the Employer
since 1958. It is apparent that none of these five employees can be
considered as having any present interest in the terms and conditions
of employment at the Employer's commissary; consequently, we ex-
uThe Petitioner contends also that Uminger should be excluded as a confidential em-
ployee. This contention is without merit as there is no evidence that Uminger assists or
acts in a confidential capacity to anyone engaged in the formulation, determination, and
effectuation of management policy in the field of labor relations . See Swift & Company,
129 NLRB 1391, 1393; The B . F. Goodrich Company, 115 NLRB 722, 724.
'Taunton Supply Corp ., supra; and Hoosier. Desk Company, 65 NLRB 785, 787.
is The five are Gregorius Kohoris, Frank Ballarin , Anton Mulyk, Michael McDonough,
and Peter Dachnowicz.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude them. The other five employees 14 whom the Petitioner opposes
left on sick leave in 1962 and their present interest in and oppor-
tunity for employment with the Employer is at best obscure on the
record before us. We shall, therefore, permit them to vote subject
to challenge.15
In view of the foregoing we find that the following employees of
the Employer at its commissary at 600 West 50th Street, New York,
New York, constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(c) of the Act: All pro-
duction and maintenance employees including plant clericals but ex-
cluding office clerical employees, professional employees, pensioners,
watchmen, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
14 Louis Buzau , Frank Bronte , Kathleen Kent , Emil Seiler , and Raul Diaz.
is In Its brief the Petitioner limited its objection to sick-leave employees to those listed
above. All other employees on the sick -leave list are included In the unit.
Newspaper Web Pressmen Local 6, International Printing Press-
men and Assistants Union of North America , AFL-CIO and
Columbia Typographical Union No. 101 , affiliated with Inter-
national Typographical Union , AFL-CIO, Party in Interest 1
and Labor Cooperative Educational and Publishing Society,
Inc., Charging Party . Case No. 5-CD-90. June 2If, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the Act following
a charge filed by Labor Cooperative Educational and Publishing
Society, Inc., herein called the Employer, alleging that Newspaper
Web Pressmen Local 6, International Printing Pressmen and Assist-
ants Union of North America, AFL-CIO, herein called Pressmen or
Respondent, had violated Section 8 (b) (4) (i) and (ii) (D) of the Act.
The charge alleges, in substance, that the Respondent induced and
encouraged employees to engage in a strike or refusal to work, and
threatened, coerced, and restrained the Employer with an object of
forcing or requiring the Employer to assign particular work to em-
ployees represented by Respondent rather than to employees repre-
sented by Columbia Typographical Union No. 101, affiliated with
International Typographical Union, AFL-CIO. Pursuant to notice,
a hearing was held before Hearing Officer Sidney Smith on Septem-
ber 25, 26, and 27, 1963. All parties appeared at the hearing and
1 The name of the Party in Interest , hereafter called the ITII or the Printers , appears as
amended at the hearing.
147 NLRB No. 72.