The Horn & Hardart Co.

National Labor Relations Board - Board Decisions

Apr 2, 1968

170 N.L.R.B. 988 (N.L.R.B. 1968)

988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Horn & Hardart Company and Local 338, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America. Case 2-RC-14710
April 2, 1968
DECISION ON REVIEW AND ORDER
On August 16, 1967, the Regional Director for
Region 2 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding in which he
found that the employees of the Employer 's restau-
rant at the Cross County Shopping Center , referred
to herein as the Cross County restaurant , in Yon-
kers, New York, sought to be represented separate-
ly by the Petitioner , constituted an appropriate vot-
ing group , and he directed an election among such
employees to determine whether they wished to be
represented by the Petitioner as a separate unit or
by the Intervenor , Restaurant and Cafeteria Em-
ployees, Local 302, AFL-CIO, as part of its existing
chainwide , metropolitan area restaurant employee
unit. Thereafter , in accordance with Section 102.67
of the National Labor Relations Board Rules and
Regulations , Series 8, as amended, the Employer
and the Intervenor filed timely requests for review
of the Regional Director 's Decision on the ground,
inter alia, that he erred in finding that the requested
single restaurant unit may be appropriate . The Peti-
tioner filed opposition to the requests for review.
On December 19, 1967, the National Labor
Relations Board, by telegraphic order , granted the
requests for review and stayed the election pending
decision on review. Thereafter , the Employer and
the Petitioner filed briefs on review. The Intervenor
filed a letter stating it was relying on papers which
it had previously submitted , as well as the elabora-
tion of its position contained in the Employer's
brief on review.
The Board has considered the entire record with
respect to the issues under review , including the
briefs of the parties , and makes the following
findings:
In its restaurant division , the Employer operates
41 restaurants ' in the New York metropolitan area:
35 in the Manhattan , Brooklyn , and Queens
Boroughs of New York City; 2 in northern New
Jersey; 3 in Westchester County; and I in Nassau
County. The Petitioner, in its petition filed June 20,
1967, requested a unit of employees at the Em-
ployer's Cross County service restaurant. The Inter-
venor and the Employer opposed the request, con-
tending, inter alia, that a single restaurant unit was
inappropriate. We find merit in this contention.
The Employer and the Intervenor have had a bar-
gaining relationship with respect to restaurant divi-
sion employees dating from 1965. At that time,
they agreed to a card check by the American Ar-
bitration Association, and on the basis of such
check the Employer recognized the Intervenor as
the representative of a unit of all employees at the
35 restaurants in the New York City boroughs. The
Employer had rejected the Intervenor's request for
recognition in a unit of a:l 41 restaurants in the
chain. On March 6, 1966, they executed a 3-year
contract covering the agreed unit. Shortly
thereafter, the Employer agreed to extend the con-
tract coverage to employees at the two restaurants
in northern New Jersey and an automat cafeteria
located in Wanamaker's department store at the
Cross County Shopping Center. On June 14, 1967,
the Employer orally agreed to include in the con-
tract unit the remaining unrepresented employees
employed at the Cross County restaurant here
sought, at another located in Westchester County,
and at one in Nassau County, and on June 21,
1967, executed a supplemental agreement to that
effect.' The Employer mentioned as reasons why it
executed the supplement: (1) the problem of in-
terchange and transfer of personnel from one
restaurant to another; (2) the consistent and per-
sistent demands made by the Intervenor for recog-
nition; and (3) the establishment of uniform
benefits for personnel throughout the restaurant.
The record facts with respect to the several fac-
tors which the Board considers in deciding whether
a single outlet of a retail chain is an appropriate
unit for purposes of collective bargaining are as fol-
lows:
Bargaining history: As above indicated, since
March 6, 1966, all restaurants of the chain located
within the city limits have been covered by the In-
tervenor's contract with the Employer. Shortly
thereafter, the two suburban restaurants in New
Jersey and the automat in Wanamaker's at the
Cross County Shopping Center were added to the
contract unit; and on June 21, 1967, by supplemen-
' The Employer also operates restaurants in its industrial division Of the
41 iestauiant' in the ieuauiant division 9 pi ovide table service, 6 are
counter stool' iestauiants and the iemauung 21 are "automat" Late-
ten as
' The Employer extended recognition for the remaining unrepresented
employees after verification from the checkoff authorizations at the end of
May 1967 that the Intervenor 's membership was at least 2, 1 69 in the chain-
wide unit of approximately 2,600 employees There were approximately
170 NLRB No. 110
300 unrepresented employees, 143 of whom were located at the Cross
County restaurant Although the Petitioner stated at the hearing that, in the
alternative, it would accept a unit of all the unrepresented employees at the
three restaurants, we are advised administratively that its showing of in-
terest therefor submitted prior to execution of the supplemental agreement
was inadequate In the circumstances, we conclude that the alternative
request is barred by the supplemental agreement
THE HORN & HARDART COMPANY
tal agreement, the remaining three suburban restau-
rants were added. Thus, at present, the Intervenor
claims to represent a chainwide unit.'
Geographic proximity to other chain restaurants:
As above mentioned, all the chain restaurants are
in-the New York,City metropolitan area and the
Cross County restaurant is close to an automat
located in a Wanamaker's department store in the
same shopping center. The next closest restaurant
in the chain is 20 miles distant, and the average
distance between any two chain restaurants is 5 to
7 miles. The two New Jersey restaurants are more
than 20 miles from New York City.
Integration of restaurant division operations: All
policies for the restaurant division are formulated
at a central office in New York City where all ac-
counting, bookkeeping, and personnel records are
kept. There is a central purchasing agency and a
central commissary from which the Employer's
trucks deliver most of the foods the restaurants
serve. Bakery products and many of the vegetable
dishes and soups are prepared at the commissary.
Menus and prices are determined centrally. The
restaurant managers have standing orders for food
from the commissary and can modify them only by
calling within a specified time. After this time they
must contact the district superintendent to change
the order. In emergencies, they may obtain food
from the commissary or borrow from other restau-
rant managers. Also a manager can order perisha-
bles, such as milk and ice cream, directly from a
centrally approved supplier. A single maintenance
department and a special plumbing department
handle all repairs in the restaurants. The Employer
has a central medical office for its employees,
although it utilizes the services of a doctor located
at the Cross County Shopping Center for physical
examinations for new hires and in emergencies.
Degree of local autonomy: Administratively, a
vice president and a general manager are in charge
of restaurants in the division. Below them are two
regional directors, who, with the assistance of dis-
trict superintendents, supervise the restaurants.
One of the regional directors is over four district
superintendents (one for the a.m. shift, one for the
p.m. shift, and two swing men) who give directions
to the managers of the six suburban restaurants,
Joe's in Brooklyn,' and Nell Gwyn's in the city, a
specialty restaurant. The district superintendent on
duty contacts each restaurant under him daily by
telephone and at least twice a week by personal
visit. The Cross County restaurant has a head
S Other employees in the restaurant division, the drivers and food
preparation employees, are separately represented by other labor organiza-
tions The Employer also has a chain of retail stores in the New York City
989
manager, a night manager, and 'a swing or relief
manager.
The local managers all have the same duties.
They receive directions from their district superin-
tendent on a daily basis; in addition, they follow ex-
plicit directions contained- in comprehensive policy
manuals supplied by the Employer. The managers
at the six suburban restaurants may interview and
recommend the hire of employees and, in emergen-
cies, may reassign employees within their restau-
rants. They- do not have authority to hire, fire, or
take disciplinary measures against employees,
without prior approval of the personnel depart-
ment. All grievances are handled by the personnel
department. Store hours and employee comple-
ments are determined centrally.
Employee interchange: The Cross County restau-
rant has been operating for about 10 years. It was
initially staffed with 100 employees who transferred
from the Employer's city restaurants. Of the 143
now there employed, an estimated 40 percent had
transferred from other restaurants in the chain; 65
percent live in New York City. The Wanamaker au-
tomat, which has a regular complement of only 10
employees, depends upon the Cross County restau-
rant for extra employees when needed. Such tem-
porary transfers average more than one employee
per week throughout the year. On at least six occa-
sions during the year, 10 or 20 Cross County em-
ployees transfer to Wanamaker's automat; approxi-
mately 1 automat employee per month works at the
Cross County restaurant on a holiday or a Sunday
when Wanamaker's is closed. In emergencies, an
employee may work at the Cross County restaurant
and automat on the same day. With respect to tem-
porary transfers from other restaurants generally to
the Cross County restaurant, although the amount
fluctuates with the volume of business, the Em-
ployer made a rough estimate that over the entire
year the average was three to four employees each
day. Further, about 12 to 15 times a year, three to
four Cross County restaurant employees work at
other chain restaurants. The Employer also in-
terchanges its restaurant managers among the
restaurants. All three managers at Cross County
had previously worked at other chain restaurants.
On the basis of the foregoing, especially the geo-
graphic cohesion of restaurants in the Employer's
chain within the New York City metropolitan area,
the high degree of integration of the chain opera-
tions, the lack of substantial autonomy in the
restaurant managers with respect to labor relations
area whose employees are separately represented on a chamwide basis
' The Employer, upon acquisition of Joe's restaurant, continued to
operate it under the same name
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other matters, the extent of interchange of em-
ployees between the requested Cross County
restaurant and other restaurants in the chain, and
the Intervenor 's present desire to represent the
requested employees as part of a chainwide unit,
we find that a unit limited to the employees at the
Employer's Cross County restaurant is inap-
See Caribbean Restaurants , Inc , 162 NLRB 676
e In view of our finding that the requested single restaurant unit is map-
propriate.s Accordingly, we shall dismiss the peti-
tion.6
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
propriate , we find it unnecessary to consider other issues raised by the Em-
ployer and the Intervenor