S. & W. Cafeteria of Washington, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1940

20 N.L.R.B. 259 (N.L.R.B. 1940)

In the Matter of S. & W. CAFETERIA OF WASHINGTON, INCORPORATED
and UNITED CAFETERIA EMPLOYEES LOCAL INDUSTRIAL UNION
#471
Case No. R-168..-Decided February 6, 19.10
Cafeteria Industry-Investigation of Representatives: controversy concerning
representation of'eiuployees: refusal of employer to recognize union as exclusive
representative; consent election held approximately 6 months prior to hearing
no har to determination of representatives, under circumstances-Unit Appro-
priate for Collective Bargaining: all dining-room and kitchen employees, exclud-
ing nmanagers, supervisors, cashiers, checkers, and clerical help-Election Ordered
lllr. Samuel M. Spencer, for the Board.
Mr. Julian I. Richards, of Washington, D. C., for the Company.
Mr. Jack Mink, of Washington, D. C., for the Union.
M/,. Bonnl.ell Phillips, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 20, 1939, United Cafeteria Employees Local Indus-
trial Union #471, herein called the Union, filed with the Regional
Director for the Fifth Region (Baltimore, Maryland) a petition alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of S. & W. Cafeteria of Washington,
Incorporated,, Washington, D. C., herein called the Company, and re-
questing an investigation and certification of representatives pursuant
to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449',
herein called the Act. On December 22, 1939, the National Labor Rela-
tions Board, herein called the Board, acting pursuant to Section 9 (c)
of the Act and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 2, ordered an investigation and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
'Incompletely designated in the formal papers herein as S. & W. Cafeteria , Inc. It
was stated and agreed at the hearing that the full name of the Company is S. & W.
Cafeteria of Washington , Incorporated.
20 N. L. R. B., No. 22.
259
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 29, 19;39, the Regional Director issued a notice Of,
hearing, copies of which were duly served upon the Company and the
Union. Pursuant to the notice, a hearing was held on January 8„
1940, at Washington, D. C., before Charles E. Persons, the Trial
Examiner duly designated by the Board. The Board, the Company,
and the Union were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. During the course of the hearing the Trial Examiner
niacle several rulings on motions and objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is a Delaware corporation with its principal place
of business at 15th and New York Avenue, N.W., Washington, D. C.
It is engaged in the general cafeteria business. During the course and
conduct of its business for the year 1939, the Company served in.excess
of 25,000 meals per month, and received a gross income per month in
excess of $10,000. The Company normally employs from 200 to 220
employees.
The Company admits that it is subject to the jurisdiction of the
Board.
II. THE GRGANIZATION INVOLVED
United Cafeteria Employees Local Industrial Union #471 is a
labor organization affiliated with the Congress of Industrial Organiza-
tions, admitting to membership all employees in the dining room and
kitchen of the Company, but excluding managers, supervisors, cashiers,
checkers, and clerical help.
III. THE QUESTION CONCERNING REPRESENTATION
On June 8, 1939, a consent election, conducted under the auspices of
the Board's Fifth Regional Office, was held among the employees of
the Company to determine whether they desired to be represented for
purposes of collective bargaining by the Union, by the Building
Service Employees Union, a labor organization affiliated with the
American Federation of Labor, or by neither. This election was not
sought by the Union and it made no claim of a majority at that time.
S. & W. CAFETERIA OF WASHINGTON 261
It asked and was accorded a place upon the ballot only after an
agreement had been entered into between the Company and the Build-
ing Service Employees Union providing for, the election. At the
election a majority of the Company's employees within the agreed
unit 2 voted that neither union should represent them.3
-On September 22, 1939, the Union informed the Company that it
represented a majority of the employees in an appropriate bargaining
unit, and requested the Company to recognize it as exclusive bargain-
ing representative for the employees within such unit. The Company
insisted that the Union be certified as exclusive bargaining representa-
tive by the Board. After fruitless endeavors to obtain recognition
without a Board election, the Union filed its petition on November 20,
1939. At the hearing the Company objected to the holding of an
election upon the ground that the Union had not produced proof that
its employees had granted it sufficient authority to justify an election 4
especially in view of the results in the previous consent election. As
stated above, however,, that election was not sought by the Union, nor
was any claim of majority representation advanced by it at that time.
The Union now, makes claim to such a majority.
We find that a question has arisen concerning representation of em-
ployees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
C0\! \MERC E
We find that the question concerning representation which has
arisen. occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce within the District of Columbia,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The unit sought by the Union is composed of dining-room and
kitchen employees, such as bus employees, counter attendants, cooks,
2 The unit in this election was the same as petitioner now urges : namely , all dining-
room and kitchen employees , except managers , supervisors , clerical help, cashiers, and
checkers . See Section V, infra.
31t was brought out in the record that the Building Service Employees Union was
notified of the investigation and hearing by the Regional Director, who was informed
that it had no interest in the present proceedings.
4 At the hearing the Company made objection to the Trial Examiner 's ruling that the
Union was not required to submit the signature cards upon which the Union makes claim
to represent a majority of the Company ' s employees within an appropriate unit. As
stated in the record , such documentary evidence was submitted to a Field Examiner of
the'Fifth Region , who in the course of the duly authorized investigation determined from
such evidence that the Union does represent a substantial number of the Company's
employees . The ruling of the Trial Examiner is hereby affirmed.
285031-41-vol. 20-18
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bakers, steam -table servers , and general helpers , but- excluding man-
agers, supervisors , cashiers , checkers , and clerical help. The Company
would include in this unit four cashiers and four checkers. It has
been the Company 's policy to choose these employees from the older
members , in point of service, of its doing -room staff. They are
returned to the serving lines during slack periods and while reserves
are being trained. They are , nevertheless , engaged in their present
capacities 90 to 95 per cent . of the time . As stated above, ' cashiers and
checkers were excluded from the unit agreed upon in the previous
consent election . Their membership has not been solicited by the
Union, and such employees are not represented by it in other plants of
a similar nature- where the Union has, been designated as a collective
bargaining agent. Employees in these categories are eligible to mem-
bership in another available labor organization through which they
may exercise their rights under the Act. Under the circumstances and
in view of the clerical nature of their work , we find that they should be
excluded from the unit.
We find that the dining-room and kitchen employees of the Com-
pany, such as bus employees , counter attendants, cooks, bakers, steam-
table servers , and general helpers , but excluding managers , super-
visors, cashiers , checkers , and clerical help, constitute a unit appro-
priate for the purposes of collective bargaining, and that said unit
will insure to employees of the Company the full benefit of their right
to self-organization and to collective bargaining and otherwise effectu-
ate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing the business manager of the Union testified that
approximately 115 employees of the Company in the unit claimed to
be appropriate had signed authorization and membership cards in the
Union. The Union, however, declined to introduce in evidence docu-
mentary proof of membership, and requested an election by secret
ballot. We find that an election by secret ballot is necessary to resolve
the question concerning representation which has arisen, and we shall
direct the holding of such an election.
The Union requests that those eligible to vote in such election shall
be determined on the basis of the Company's pay roll nearest the date
of the Union's petition of November 20, 1939. The Company, desires
the use of a more recent pay roll for the determination of eligibility.
We believe the purposes of the Act will be best effectuated by deter-
mining eligibility as of the present date. We shall direct that the
employees within the appropriate unit whose names appear on the
Company's pay roll immediately preceding this Decision and Direc-
5 See footnote 2, supra.
S. & W. CAF FTERIA OF WASHINGTON 263
tion of Election, including those who did not work during such pay-
roll period because they were ill or on vacation, and those who were
then or have since been temporarily laid off, but excluding those who
have since quit or been discharged for cause, shall be eligible to vote.6
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of S. &. W. Cafeteria of Washington, Incorpo-
rated, Washington, D. C., within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. The dining-room and kitchen employees of the Company, such
as bus employees, counter attendants, cooks, bakers, steam-table serv-
ers, and general helpers, but excluding managers, supervisors, cash-
iers, checkers, and clerical help, constitute a -unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the National Labor Relations Act.
DIRECTION OF ELECTLON
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, anld. pursuant to Article III,'Section 8,• of National Labor Rela-
tions Board Rules and Regulations-Series 2 as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with S. & W.
Cafeteria of Washington, Incorporated, Washington, D. C., an elec-
tion 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 Director for the Fifth
Region, acting in this matter as agent for the National Labor Rela-
tions Board and subject to, Article III, Section 9,.,of said Rules and.
Regulations, among the employees in the dining room and kitchen of
the S. & 'W. Cafeteria of Washington, Incorporated, such as bus em-
ployees, counter attendants, cooks, bakers, steam-table servers, and
general helpers, whose names appear upon the Company's pay roll
immediately preceding the date of this Direction, including those who
did not work during such pay-roll period because they were ill or on
GAs stated above (footnote 3, supra), the Building Service Employees Union, Involved
in the previous consent election , is not interested in the present proceedings . Accordingly_
we shall not.direct its name be peced upon the ballot.
264 .,DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation, and those who were then or have since been temporarily laid
off, but excluding managers, supervisors, cashiers, checkers, clerical
help, and those 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 #471, affiliated with
the C. I. 0., for the purposes of collective bargaining.