Air Terminal Services, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1946

67 N.L.R.B. 702 (N.L.R.B. 1946)

In the Matter Of AIR TERMINAL SERVICES, INC. and UNITED CAFETERIA
AND RESTAITRANT W ORKERS, Local_ 471, UFWA (C. I. 0.)
Case No. •T-R-214 /.Decided April N3, 1946
Pierson c Ball, by Messrs Frederic J. Ball and Vernon C. Kohl-
ha7v, of Washington, D. C., for the Company.
Arnold and Fortas, by Mr. Milton. V. Freeman, of Washington,
D. C., for the C. 1. 0.
Mr. Charles E. Sands. of Washington, D. C., and Cincinnati, Ohio,
for the A. F. L.
Mr. Con rod A. Wickham. Jr.. of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon a petition duly filed by United Cafeteria and Restaurant
Workers, Local 471, UFWA, C. I. 0., herein called the C. I. 0., alleg-
ing that a question affecting commerce had arisen concerning the rep-
resentation of employees of Air Terminal Services, Inc., Alexandria,
Virginia, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Earle K. Shaw, Trial Examiner. The hearing was held at Washing-
ton, D. C., on February 18, 1946. The Coiupany, the C. I. O.,.and
Hotel and Restaurant Employees' International Alliance and Bar-
tenders' International League of America, A. F. L., herein called the
A. F. L., appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. The motion of the Company to divmiss the petition
for lack of jurisdict ion is denied for the reasons set forth in Section I.
infra. The request of the C. I. O. that the A. F. L. be excluded from
the ballot is hereby granted for the reasons set forth in Section V,
infra. All parties were afforded opportunity to file briefs with the
Board.
C7 N L. R. B., No. 90.
702
AIR TERMINAL SERVICES, INC. 703
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. TILE BUSINESS OF THE COMPANY
Air Terminal Services, Inc., a Virginia corporation having its main
office in Alexandria, Virginia, is engaged exclusively in the operation
of various restaurant concessions at the Washington National Airport.
The airport is located on lands situated within the Commonwealth
of Virginia, but owned and under the exclusive jurisdiction of the
United States Government. It is the only Federally owned and
operated civilian airport in the country. The Company operates its
concessions under an exclusive concessionaire's contract with the Gov-
ernment, acting through the Administrator of Civil Aeronautics.
These concessions nclnde the operation of three employee cafeterias,
a packing room, primarily 'et up to provide food to the airlines for
"ill-flight" service to passenger, and a dining room, coffee shop, soda
fountain, and other related concessions,' all set ill) to provide service
to patrons of the airport and the general public. In lieu of rent, the
contract provides that the Company shall pay the Government a
certain percentage of its gross business receipts.
Over one-third of the private employees at the airport; among whom
are air-line ticket agents and plane service personnel, depend upon
the Company's services for daily sustenance. No other food facilities
are convenient to the airport, the nearest restaurants being in Alex-
andria. Virginia, or iii Washington. 2 and 5 rules away, respectively.
Although the Army operates two cafeterias at the airport, the record
shows that these establishments are not open to the public.
The packing room supplies "in-flight" meals to 4 of the 8 air lines
using the airport. One of these four, Trans World Airlines, is en-
gaged in overseas flight operations which are required by law to have
food aboard. Out of an average of 1.50 flights per day, the Company
furnishes food to 34 of the 50 flights on which meals are served. This
service consists of preparing the fool in the packing room kitchen,
placing it in containers supplied by the air lines, and finally placing
the containers aboard the planes, all -uch operations being performed
by the Company's employees.
During the typical fi months period ending December .11,
foodstuffs and other related products, amounting ill value to $230,901.
were purchased by the Company for use in its various coilcessions,
'Other of these cone essions include a snack bar, newotand, novelty stand, and barber
shop
'These total approxnaately 2,300, as distinguished from some 3500 empno"ees of the
Aram Air Forces at the airport who ire provided with GoN ernment eatetertas
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 92 percent of which was purchased outside the Com-
monwealth of Virgniia. The gross volume of sales derived from the
food concessions in this period approached $630.000. Of this amount,
revenue from the packing room covering food-service to the air lines
amounted to about $163,000. The gross income thus derived from
"iii-flight" meals approaches 26 percent of the total revenue for this
period. In addition, the Company received approxunateIy $125,000
from its non-food concessions, bringing its total gross revenue for the
period to $759,226.
The record indicates that a complete shut-down of the Company's
business caused by a strike of its employees would not affect the
continental flight-schedules of the air lines receiving company
services.' On the other hand, the Civil Aeronautics Administration
looks upon the restaurant facilities of the Company as essential to the
operation of the airport, and, if the services were discontinued, would
obtain another concessionaire immediately. The basic contract also
reserves to the Government the right to substitute another conces-
sionaire in the event that food or service in the employee cafeterias
proves unsatisfactory.
The Company contends, not only that the Board hacks jurisdiction,
but that, even if its jurisdiction can be sustained, it should not be
assumed on the grounds that the policies of the National Labor Re-
lations Act would not be effectuated by asserting jurisdiction over a
retail business essentially local in nature. In support of its position
it cites Matter of Consolidated Vultee Aircraft Corporation .4
It is true that we have not generally asserted jurisdiction over
restaurants, on the theory that their operations are essentially local
in character. However, the record of this case clearly indicates that
the present situation falls outside the scope of this policy. The oper-
ations here involved form an integral part, and are essential to the
proper functioning, of the Washington National Airport, the only
Federally owned and operated airport in the country. By assuming
the peculiar status of an exclusive concessionaire at this airport, under
contract with the Government, the Company has established a unique
position for itself in the restaurant business. The essential nature of
its services to employees who are themselves performing an interstate
function, plus the provision of "in-flight" meals to be served to air
line passengers, as well as its services to the patrons of the airport,
all serve to stamp the Company's operations as an important part of
interstate commerce. Although a strike shutdown might not affect
flight schedules, the resultant food stoppage would certainly have a
' A, to its possible effect on overseas flight schedules the record is silent
4 57 N L R B. 1680.
AIR TERMINAL SERVICES, INC. 705
detrimental effect upon both the efficiency of airport employees and the
comfort of passengers in interstate flight.
We therefore reject the Company's contention. We find that its
business is not essentially local in nature, but that it is actually a
part of, and substantially affects. interstate commerce, and that it
therefore is engaged in commerce within the meaning of the National
Labor Relations Act.
11. TIIF. ORG 1NIZ ATIONS INVOLVED
United Cafeteria and Restaurant Workers, Local 471. UFWA, is a
labor organization, affiliated with the Congress of Industrial Organi-
zations, admitting to membership employees of the Company.
Hotel and Restaurant Employees' International Alliance and Bar-
tenders' International League of America, is a labor organization, af-
filiated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
ITT. TIii, QUESTION- CONCERNING REPRESENTATION
The Company has refused to grant recognition to the C. I. O. as
the exclusive bargaining representative of its food-handling and re-
lated employees on the grounds that its operations do not come within
the purview of the National Labor Relations Act. This issue has
liereinbefore been decided in Section I, supra. .
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the C. I. O. represents a substantial number of
employees in the unit hereinafter found appropriate.5
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Company employs a total of 274 employees in its operations,
of which approximately 190 compose the unit requested by the C. I. O.
as appropriate. There has been no previous bargaining history con-
cerning these employees. The Company and the C. I. O. both agree
that, if an election is directed, all personnel employed in the various
concessions of the Company who are engaged in the preparation, han-
dling, and serving of food, including cooks, bakers, chefs, butchers, dish
5 The Field Examiner reported that the C . I 0 had submitted 164 authorization cards,
presumably bearing the names of employees of the Company . At the time of his investi-
gation the Company had declined to submit information regarding its employees , therefore
preventing a check against its pay roll . The Field Examiner was of the opinion, however,
that the cards were signed by employees of the Company.
There are approximately 200 employees in the appropriate unit
692148-46-vol. 67-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and pot washers, salad and sandwich employees , bus employees, counter
help, cleaners , waitresses , loaders, packers and porters , but excluding
carpenters , office employees , barbers , barber-shop bootblacks, pho-
tographers and managers , constitute an appropriate unit. There is
dispute, however , with respect to cashiers and checkers , lounge maids,
2 bootblacks , and "supervisors ," the Company desiring their inclusion
and the C. I. 0. their exclusion . The status of the "supervisors" de-
pends upon whether or not their duties bring them within the meaning-
of the term "supervisory employee " as construed-under the Act.. As to
employees in the other enumerated categories , the C. I. 0. contends
that their duties are not directly connected with the preparation and
handling of food, and should therefore be excluded , while the Com-
pany argues that it would be impractical to exclude them.
Supervisors : The Company employs a total of 15 employees which
it classifies as "supervisors ." Two of these are employed as hostesses,
3 as fountain supervisors , eas newsstand supervisors and 7 as packing
room supervisors . The Company . has testified that their title is a
misnomer; that in reality they have no supervisory, authority, but are
`'more or less assistant managers in the operations ." The number
of employees under their supervision ranges from 2, under the super-
vision of the newsstand supervisor, to 43,under the supervision of the
hostesses . All of these "supervisors" have the right to make recom-
mendations with respect to hiring and discharging, and their recom-
mendations are usually-given weight by the management. Although
packing room supervisors spend more time working with their sub-
ordinates than the others , it is clear that the Company looks to them
for the proper conduct of operations and maintenance of discipline.
While they have no power to mete out discipline , they may reconniend
disciplinary action to the assistant manager of the packing room. The
supervisors of the Company 's other departments have substantially
the same authority . It is clear that these employees possess super-
visory authority within the meaning of our customary definition.
We shall, therefore , exclude them from the unit.
Cash iers and checkers : The Company employs a total of 31 cashiers
and checkers in its various concessions . Their duties are primarily
to check the food and take in cash . Although they may, in emergencies,
fill in as waiters or waitresses, they generally perform the same func-
tions as cashiers and checkers in other restaurants . We have pre-
viously held that such duties are largely clerical and are not directly
connected with the preparation and handling of foods We shall also
exclude them from the unit.
O See Matter of Bethlehem-Fairfield Shipyard, Inc. and M. & M. Restaurant Operating
Company. Inc., 53 N. L. It. B. 1428; Matter of Welfare Association, 45 N. L. R. B. 285;
Matter of 8 4 W Cafeteria of Washington, Inc., 30 N. L. R. B 1236, and 20 N. L. R. B. 259.
AIR Pj RMINAL SERVICES, INC. 707
Lounge Maids : The Company employs two lounge maids whose
work consists primarily of cleaning the rest rooms. Since their work
is not connected with the preparation and serving of food, we shall
exclude them.
Bootblacks : The Company employs three bootblacks . Though it
agrees to the exclusion of the barber -shop bootblack , it contends that
the other two should be included in the unit because, on occasion, they
do general porter work in connection with the Company 's restaurant
facilities . Conceding this to be true, the greater portion of their time
is spent performing the functions of a bootblack , which are not related
to the preparation and serving of food. We shall, therefore , exclude
them from the unit.
We find that all employees of Air Terminal Services , Inc., employed
in the various concessions operated by the Company at the Washington
National Airport, who are engaged in the preparation, handling, and
serving of food, including cooks , bakers , chefs, butchers , dish and pot
washers, salad and sandwich employees , bits employees , counter help,
cleaners , waitresses , loaders, packers and porters , but excluding all
cashiers and checkers. lounge maids, bootblacks , carpenters, office
employees. barbers , photographers , supervisors , managers and all or
any other supervisory employees with authority to hire, protppte. dis-
charge, discipline , or otherwise effect changes in the status of eni-
ployees . or effectively recommend such action , constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section A ( b) of the Act.
1. '1`IIP: DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representat ion which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
In accordance with the agreement of the pantie, we find, and direct,
that all regular part-time employees who fall within the classifications
,et forth -in the appropriate unit shall be eligible to vote at this
election.
It appears from a statement of the Board's Field Examiner that
although the A. F. L. oru November 19. 1915, was requested in writing
to submit representation evidence, it failed to do o. The record also
shows that the Trial Examiner :-rave the A. F. L. adequate opportunity
to Meseirt such evidence at the hearing, explaining the Board require-
ments ir1 this regard. but that it again failed to do so. Since it has
Build to substantiate its claims to iuembership among the employee,
of the Company, we hereby find, and direct. that the A. F. L, has no
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rightful status as an intervenor in this case, and that its name shall'
not appear on the ballot in the election hereinafter directed.
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 3, as amended, it
is hereby
Dn c'n D that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Air Terminal
Services, Inc., Alexandria, Virginia, 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 Director for the Fifth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including regular part-tinge employees, and
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, and including employees
in the armed forces of the United States who present themselves in
person at the polls, 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, to determine whether or not they
desire to be represented by United Cafeteria and Restaurant Workers,
Local 471, UFWA (C. I.0.), for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the considerat ion of the
above Decision and Direction of Election.