Fairchild Cafeteria

National Labor Relations Board - Board Decisions

Dec 15, 1949

87 N.L.R.B. 667 (N.L.R.B. 1949)

In the Matter of LEE E. STINE D/B/A FAIRCHILD CAFETERIA AND FAIR-
CHILD ENGINE AND AIRPLANE CORPORATION, EMPLOYERS and UNITED
AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, C. I. 0., PETITIONER
Case No. 5-RC-303.-Decided December 15, 1949
DECISION
DIRECTION OF ELECTION
AND
ORDER
Upon a petition duly filed, a hearing was held before LeRoy W. C.
Mather, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed?
1. Fairchild Engine and Airplane Corporation, hereinafter referred
to as "Fairchild," is a Maryland corporation engaged in the manufac-
ture and sale of aircraft, aircraft engines, and aircraft accessories at
Hagerstown, Maryland; Farmingdale, New York; and Oak Ridge,
Tennessee. Fairchild is engaged in commerce within the meaning of
the Act.2 Lee E. Stine d/b/a Fairchild Cafeteria, hereinafter referred
to as "Stine," operates a cafeteria which is located in the basement of
Fairchild plant No. 2 at Hagerstown, Maryland. The cafeteria is
operated pursuant to the terms of a 1-year contract dated July 1, 1948,
which was renewed for a further term of 1 year on July 1, 1949.
The Petitioner seeks to represent all production employees, with
specified exclusions, in the cafeteria. The Petitioner contends that
Fairchild is a joint employer with Stine of these employees; whereas,
the Employers contend that Stine alone is the employer of the cafe-
teria employees. The contract under which Stine operates the cafe-
teria, among other things, provides :
(a) Fairchild shall furnish heat, electricity, steam, gas, water, and
cafeteria equipment. However, Stine is required to maintain and
replace all sundry cafeteria equipment;
. (b) Any manager selected by Stine shall receive the approval of
Fairchild ;
I The names of the parties appear as amended at the hearing.
2 Fairchild Engine and Airplane Corporation , 73 NLRB 154.
87 NLRB No. 95. 667
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Stine may not increase the prices charged for food without the
prior approval of Fairchild ;
(d) Fairchild shall prescribe a minimum diet acceptable to it and
has the right to inspect all food delivered to the cafeteria and reject
for use any food which is not a good quality;
(e) New employees of Stine are required to undergo physical ex-
aminations by a physician approved by Fairchild, and are required to
be examined at 90-day intervals to insure their suitability for the
preparation and handling of food. The cost of such examinations
shall be borne by Stine;
(f) Stine's profits are limited to $1,000 per month, and he is required
to submit monthly profit and loss statements to Fairchild. However,
Fairchild does not undertake to reimburse Stine for any losses he may
suffer from the operation of the cafeteria; and
(g) The contract may be terminated by either party on 30 days'
written notice to the other party.
The evidence shows that in December 1948, when Stine negotiated
with Fairchild for an increase in the prices of food, Fairchild objected
to, and prevented, Stine from granting the cafeteria employees any
general increase in wages in excess of 10 cents per hour. However, the
contract, under which Stine operates the cafeteria, does not entitle
Fairchild to control the labor relations affecting the cafeteria em-
ployees or to influence their conditions of employment. With the
single exception mentioned above, Fairchild has never attempted to
exercise any such control. Moreover, the cafeteria employees are
carried on the pay roll of Stine, who not only pays social security
taxes, unemployment compensation taxes, and workmen's compensa-
tion insurance premiums for such employees, but also directs their
work and hires, discharges; and transfers the cafeteria employees
without consulting Fairchild.
Upon the basis of the foregoing and upon the record in this pro-
ceeding, we do not believe that Fairchild has the right to exercise that
degree of control over the cafeteria employees required to establish an
employer-employee relationship between Fairchild and such em-
ployees.3 Therefore, in accordance with the contention of the Em-
ployers, we find that Stine is an independent contractor and that the
employees of the cafeteria are the employees of Stine and are not em-
ployees of Fairchild. Accordingly, we shall dismiss the petition inso-
far as it alleges that Fairchild is an employer of the employees involved
herein.
8 Swanson Brothers Logging Company, 71 NLRB 614 ; Consolidation Coal Company, 63
NLRB 169, 173; Mahoning Mining Company, 61 NLRB 792, 802; Canyon Lumber Com-
pany, 59 NLRB 1512.
FAIRCHILD CAFETERIA 669,
. At the hearing, Stine made a motion to dismiss the petition on the:
ground that he is not engaged in interstate commerce. During-1948,
Stine's receipts from the sale of food in the cafeteria were approxi-
mately $140 ,000. During the same period, his purchases amounted to
approximately $75,000, of which 10 to 12 percent was shipped from
points outside the State of Maryland. The cafeteria is patronized,
exclusively by employees of Fairchild. Approximately 3,500 persons
are employed in its Hagerstown plant, of whom about 35 percent
regularly eat in the cafeteria. Most of the remaining employees bring,
their lunches. - The only other restaurants in the vicinity of the plant
are located approximately one-eighth and one-fourth of a. mile, respec-
tively; from the entrance to the plant. Because hourly paid employees
are allowed only 30 minutes for lunch, it is impractical for them to
leave the plant for meals . Only a few salaried employees eat in either,
of the afore -mentioned out-of-plant restaurants . Thus, the cafeteria
provides the only practical eating facilities for a substantial number of
Fairchild employees . In consequence , uninterrupted cafeteria service
is.essential to Fairchild 's own operations , which clearly affect com-
merce. Under these circumstances we find, contrary to the contention
of Stine, that the latter is engaged in commerce within the meaning
of the National Labor Relations Act,4 and further that, because of the
relationship of Stine's operations to those of Fairchild, it would effec-
tuate the policies of the Act for this Board to exercise jurisdiction.
Accordingly, we hereby deny Stine's motion to dismiss the petition.
2. The labor organization involved claims to represent certain
employees 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.
4. The Petitioner and Stine are in general agreement that the pro-
posed unit of all production employees is appropriate . However, the
Petitioner contends that the baker, assistant baker, and candy counter
girl are independent contractors and should be excluded from the unit,
and that Helen D. Baker is a clerical employee and should also be ex-
cluded. The record shows that , except for some variances in hours
of employment , the working relationships between Stine and the
baker, assistant baker, and candy counter girl are similar to those of
the other employees in the cafeteria. There is no indication in the
record that these employees exercise any independence in the perform-
ance of their duties. At all times they are subject to the control and
direction of the managerial representatives of Stine. In consequence,
contrary to the contention of. the Petitioner , we find that the baker,
4 Air Terminal Services , Inc., 67 NLRB 702.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistant baker, and candy counter girl are not independent contrac-
tors, but are employees, and we shall include them in the unit.
Helen D. Baker is the only clerical employee of Stine. She spends
all her time taking charge of the cash registers, making deposits, and
doing work of a similar nature. In accordance with our usual policy
of excluding clerical employees from units of production employees,
we shall exclude Mrs. Baker from the unit.'
We find that the following employees of Lee E. Stine d/b/a Fair-
child Cafeteria constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
All production employees' in the Hagerstown, Maryland, cafeteria,
including cooks, counter girls, kitchen help, waitresses, butcher, baker,
assistant baker, and candy counter girl, but excluding clerical em-
ployeess watchmen, guards, professional employees, and supervisors'
as defined in the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Lee E. Stine d/b/a Fairchild
Cafeteria, 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 pay-roll period
immediately preceding the date of this Direction of Election, includ-
ing employees who did not work during said pay-roll period because
they were ill or on vacation or temporarily laid off, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated 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 bargaining, by United Automobile, Aircraft & Agricul-
tural Implement Workers of America, C. I. O.
ORDER
. IT IS ORDERED that only insofar as the petition herein names Fair-
child Engine and Airplane Corporation as an employer of the em-
United States Gypsum Company, 81 NLRB 182.
s Helen D . Baker is excluded from the unit as a clerical employee.
in accordance with the stipulation of the parties Joseph R. Berkenbaugh, Grace
Schmidt , and Nora P . Hawse are excluded from the unit as supervisors.
FAIRCHILD CAFETERIA 671
ployees in the unit found appropriate in paragraph numbered 4,
above, that the same be, and it hereby is, dismissed.
MEMBER MURDOCK took no part in the consideration of the above
Decision, Direction of Election, and Order.