The Welfare Association of the United States Department of Agriculture

National Labor Relations Board - Board Decisions

Oct 31, 1942

45 N.L.R.B. 285 (N.L.R.B. 1942)

in the Matter of THE WELFARE ASSOCIATION OF THE UNITED -STATES
DEPARTMENT OF AGRICULTURE and UNITED CAFETERIA EMPLOYEES
LOCAL INDUSTRIAL UNION No. 471, C. I. O.
Case No. B-4265.-Decided October 31, 1942
Jurisdiction : non-profit corporation operating eating establishments pursuant to
permit from Secretary of Agriculture.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition until Board should determine whether
Company was subject to the Act; election necessary.
Unit Appropriate for Collective Bargaining : all employees in all cafeterias and
lunchrooms operated by Company.
Definitions : Company held an employer within the meaning of the Act, notwith-
standing its charitable nature and the regulatory provisions of permit under
which it operated.
Mr. Anthony E. Molina and Mr. Earle K. Shawe, for the Board.
Mr. James K. Knudson, of Washington, D. C., for the Company.
Mr. James E. Harris and Mr. R. A. Bancroft, of Washington,
D. C., for the Union.
Mr. Oscar Geltman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Cafeteria Employees Local
Industrial Union No. 471, C. I. 0., herein called the Union, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of The Welfare Association of the United
States Department of Agriculture, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before E. G. Smith, Trial Examiner. Said hearing
was held at Washington, D. C., on September 4 and 5, 1942. The
Company and the Union appeared, participated, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. During the course
of the hearing, the Company moved to dismiss the petition on the,
45 N. L. R. B., No. 42.
285
i
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.. 1
ground that it is not an employer within the meaning of the National
Labor Relations Act. For the reasons stated below, the motion is.
denied. The Trial Examiner's rulings made at the hearing are-
free from prejudicial error and are hereby affirmed. The Company
thereafter filed a brief, which the Board has considered.
Upon the entire record-in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OI THE COMPANY
The Welfare Association of the United States Department of Agri-
culture is a ,District of Columbia corporation whose purposes are to,
provide for the welfare and mutual improvement of persons employed
by or on behalf of the Department of Agriculture, herein called the
Department. Since 1932, the Company has undertaken the operation
of various eating establishments located in Department buildings. At
the present time the Company operates six eating establishments and
one eating establishment and food store combined, in buildings of the
Department in Washington; D. C., and operates one eating establish-
ment in a Department building at Beltsville, Maryland.
. The-Company's gross income from all the facilities which it operates
amounts to approximately $600,000 per annum. It purchases approxi-
mately $360,000 worth of foodstuffs annually, at least 50 percent of
which is shipped to its eating establishments from points. outside the
District of Columbia.
II. THE ORGANIZATION INVOLVED
United Cafeteria Employees Local Industrial Union No. 471 is a
labor organization affiliated with the Congress of Industrial Organi-
zations, admitting to membership employees of the Company.
III. THE APPLICATION OF THE ACT TO THE COMPANY
The Company contends that its operations are so' integrated with
those of the Department that it is, in'effect, an-instrumentality of the
Department, and that it is therefore excluded from the operation of
the Act. It further maintains that, as a charitable organization, it has
no right or power to negotiate with the Union.
The Company operates its eating establishments pursuant to a per-
mit,' revocable at will, from the Secretary of Agriculture.' Pursuant
to this permit, space in Department buildings and certain government-
owned equipment are furnished, and the Company is required to pay
The permit also authorizes the Company to operate certain recreational facilities on the
premises of the Department.
THE WELFARE ASSOCIATION OF THE U. S. DEPT. OF AGRICULTURE 28T
to the United States 50 percent of its net profit from the operation of
these establishments. In accordance with the permit, the running,of
these establishments is governed by a committee of five, appointed.
subject to the approval of the Secretary of Agriculture and of the
Company, as follows: the majority are selected by the Company, one
member is appointed from the Bureau of Home Economics, and one
member is appointed from the Office of the Secretary. The permit re-
quires the Company to allow the Bureau of Home Economics to carry
on such experiments incident to the facilities, as may be approved by
the committee, and subjects the operation of the facilities to such regu-
lations as may be issued by the Secretary of Agriculture to safeguard.
the interests of the Government and of the Department. ,
At the time of the hearing, the Company employed approximately
187 persons in its eating establishments. ,The Company, pays unem-'
ployment Insurance and social security taxes on the wages of its em-;
liloyees, but does not pay District of Columbia or Federal income-
taxes.
The record discloses that the Company has been receptive to and
has complied with suggestions and requests made by officials of the
Department. However, neither by such conduct on the -part of the
Company nor by the regulatory provisions,of the permit, is the Com-
pany so controlled by or integrated with the Department, as to remove
the Company from the operation of the Act.2 Nor does the fact that
the Company is a charitable organization remove it from the operation
of the Act.3 We ' therefore find that the Company is ' an employer
within the meaning of Section 2 (2) of the Act.
IV. THE QUESTION CONCERNING REPRESENTATION
On June 5, 1942, the Union advised' a representative of the Company
that it represented a majority of the employees of the Company
in a unit appropriate for the purposes of collective bargaining, and
requested that it be recognized as the representative of all the em-
ployees in said uliit. A number of conferences between representa-
tives of the Union and of the Company ensued, after which the Com-
pany replied that it would not bargin with the Union until such time
as the Board should decide that the Company is subject, to the Act.
2 See Matter of Salt River Valley Water Users Assn . and International Brotherhood of,
Electrical Workers Local B-266, A . F. L, 32 N L R B . 460; Matter of Panama Rail Road
Company and Marine Engineers ' Beneficial Association, 2 N L R B 290 ; Matter of Cosmo-
politan Shipping Co , Inc and National Marine Engineers ' Beneficial Association , Local No.
33, 2 N. L R B . 759; Matter of H. K. Dickson , an individual doing business as'Navy Yard,
Cafeteria and United Cafeteria Employees, Local Industrial Union No. 471 , 41 N. L. R. B.
1230.
3 See Matter of The Central Dispensary it Emergency Hospital and Building Service Em-
ployees ' International Union, A . F. L, eto., 44 N L R. B 533
'288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A report prepared by the Board's Acting Regional Director, and
introduced into 'evidence at. the hearing, indicates that the Union
represents a substantial number of employees in the unit hereinafter
found to be appropriate .4
We find that a question affecting commerce has arisen concerning
-representation of employees of the Company within the meaning of
:Section 9 (c) and Section 2 (6) and (7) of the Act.
V. THE APPROPRIATE UNIT
The Union contends that employees in all cafeterias and lunch-
rooms operated by the Company in Washington, D. C., such as bus
,employees, head bus boys, waitresses, head waitresses, counter attend-
ants, cooks, bakers, salad room employees, and general helpers, but
excluding managers, supervisory employees, and employees who in
general perform no manual duties, such as cashiers, checkers, clerical
employees, and storeroom clerks, constitute a unit appropriate for
,the purposes of collective bargaining. The Company is in partial
agreement with the contention 'of the Union, but objects to.the exclu-
sion of working supervisors, cashiers, and checkers, and contends that
its employees at an eating establishment which it operates in a Depart-
ment research center in Beltsville, Maryland, should be included in the
unit.
The eating establishment at Beltsville is 15 miles from the District
-of Columbia and is under the management of the general manager
'of all of the company's Washington establishments. It employs 14
of the Company's 187 employees. When vacancies occur at Belts-
ville, employees are sent from the Washington units to fill in for
short periods of time. The Union contends that it does not deem it
desirable to organize cafeteria employees outside of the District of
'Columbia, and that its bylaws do not permit it to do so; and that for
-these reasons it has not organized such employees. The Union's con-
-stitution, however, provides that its membership shall include cafe-
teria workers employed in and around the vicinity of Washington,
D. C., and its bylaws, in evidence, contain no provision prohibiting
the inclusion of cafeteria workers employed in the vicinity of Wash-
ington. Since the duties of the employees in the Beltsville establish-
ment are similar to and closely connected with those of the employees
in the Washington establishments, and since to exclude them would
The Union submitted to the Acting Regional Director 77 authorization cards dated in
the months of March, April , May, and June 1942, and 1 undated, all bearing apparently
genuine signatures , 47 of which cards bore apparently genuine signatures of persons whose
names appear on the Company 's pay roll for the period ending June 26, 1942. A repre-
sentative of the Company testified that the Company had 187 employees at the time of the
hearing. A representative of the Union testified that there were approximately 130 em-
ployees in the unit deemed appropriate by the Union , as of June 5, 1942, and approximately
140 to 150 employees in said unit as of the time of the hearing.
THE WELFARE ASSOCIATION OF THE U. S. DEPT. OF AGRICULTURE 289
leave them unrepresented, we shall include the Beltsville employees
in the unit.
A representative of the Union testified that cashiers and checkers
are within the jurisdiction, of another labor organization. It appears
that their duties are clerical and are not directly connected with the
preparation and serving of food, and that'they have not been taken
into membership by the Union in other cafeterias where the' Union
has engaged in organizational activity. We find that the duties of
cashiers and checkers differ from those of other employees. In 'ac-
cordance with our practice in similar cases, we shall exclude them
from the unit.5
The Union contends that working supervisors should not be in-
cluded in the unit on the ground that all supervisors, including work-
ing supervisors, have authority to give orders to other employees and
to recommend discharges. There is no evidence indicating that the
authority of working supervisors differs from that of other super-
visors. We shall exclude them.
We find that all employees in all cafeterias and lunchrooms oper-
ated by the Company in Washington, D. C., and Beltsville, Mary-
land, such as bus employees, head bus boys, waitresses, head wait-
resses, counter attendants, cooks, bakers, salad room employees, and
general helpers, but excluding managers, supervisory employees,
cashiers, checkers, clerical employees and storeroom clerks, constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
VI., THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by, an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of our Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 25 as amended, it is
hereby
a See Matter of S. & W. Cafeteria of Washington, Incorporated and United Cafeteria
Employees Local Industrial Union #471, 20 N. L R. B. 259; Matter of S. & W. Cafeteria
of Washington, Inc and United Cafeteria Employees Local Industrial Union #471, 30
N. L. R. B. 1236.
493508-43-vol. 45-19
290- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTED that, as part of the investigation to ascertain represent-
atives for the- purposes of -collective bargaining with The Welfare
Association of United States Department of Agriculture , Washing-
ton, D. C., an election by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from the date of this
Direction , under the direction and supervision of the Regional Di-
rector for the Fifth Region, acting in this matter as agent for the
National Labor Relations Board and subject to Article III, Section
10, of said Rules and Regulations , 'among all employees of the Com-
pany in the unit found appropriate in' Section V, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction, including those employees who did not work dur-
ing such pay-roll period because they were ill or on vacation or in
the active military service or training of the United States, or tem-
porarily laid off, but excluding those employees who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented' by United Cafeteria Employees Local Industrial
Union No. 471, C. I. 0., for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.