Frank G. Shattuck Co.

National Labor Relations Board - Board Decisions

Aug 21, 1953

106 N.L.R.B. 838 (N.L.R.B. 1953)

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FRANK G. SHATTUCK COMPANY and CHAIN SERVICE
RESTAURANT, LUNCHEONETTE AND SODA FOUNTAIN
EMPLOYEES UNION, LOCAL 11, HOTEL AND RESTAURANT
EMPLOYEES AND BARTENDERS INTERNATIONAL UNION,
AFL, Petitioner. Case No. 2-RC-5106. August 21, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Meyer Reines
and I. L. Broadwin, hearing officers. The hearing officers'
rulings made at the hearing are free from prejudicial error
and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, the Board has delegated its powers in
connection with this case to a three -member panel [Members
Houston, Murdock , and Peterson].
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act.
4. The Petitioner seeks to represent a unit of all employees,
including regular part-time and relief employees , working in
the Employer' s 36 stores located in the City of New York, and
excluding all temporary and seasonal employees , guards,
watchmen, and supervisors as defined in the Act. The Employer
contends that the unit should include in addition the employees
of the 2 stores in adjacent Westchester County, New York,
and the commissary. In addition to the disagreement as to
the scope of the unit, the Petitioner would exclude, and the
Employer would include, the following job classifications:
Senior ushers ( also known as assistant head hostesses),
ushers ( also known as hostesses ), head waiters (also known
as captains to head hostesses), head candy sales girls, head
counter clerks ( also known as head sodamen and head fountain-
men), and serving room heads . There is no history of collective
bargaining involving any of these employees.
IIn accordance with our customary practice , we hereby deny the Employer ' s motion
that the petition herein be dismissed or deferred pending disposition of outstanding unfair
labor practice charges against it, because the charging Petitioner has filed an appropriate
waiver of any right to urge the alleged violations as a basis for objections to an election.
The hearing officer properly denied the application for leave to intervene by Candy and
Confectionery Employees Union, Local No. 50, CIO, andby Local 50, Bakery and Confectionery
Workers International Union of America, AFL, because of their insufficient showing of
interest. Both of these labor organizations claimed to represent commissary employees of
the Employer and not store employees.
106 NLRB No. 146.
FRANK G. SHATTUCK COMPANY 839
The Employer operates a chain of 45 combination stores,
each containing a restaurant , soda fountain , and counters for
display and sale of candy , baked goods , jams, canned goods,
and related food products . The stores are located in the States
of New York , New Jersey , Pennsylvania , and Massachusetts.
All the stores are under the general supervision of the stores
operations manager . The 36 stores located in the City of
New York and the 2 Westchester stores are under the direct
supervision of 2 district managers with respect to operations,
methods, and procedures .' Each store has its own store
manager . In addition , there are 16 field supervisors whose
duties are to see that personnel in the 38 stores are function-
ing in accordance with the Employer ' s rules and regulations.
There are frequent employee interchanges and transfers
between the Westchester stores and the New York stores.
Employees in these 38 stores receive the same rates of pay,
which are different from those of the other stores. The stores
are readily accessible to one another and have direct telephone
lines to the main office at 23rd Street , New York City. At the
main office , complete records are kept, payrolls are made,
and substantially all hiring is done.' Wages, hours, working
conditions , and benefits are established at the main office
and are uniformly applicable to all the employees in the stores.
While each store is an autonomous unit under the immediate
supervision of a store manager, all stores are interdependent
insofar as it is necessary to effectuate economies through
integrated chain store operations.
Except for the fact that the 36 stores are located in the City
of New York , the only other factor supporting the limited scope
of the Petitioner's unit is extent of organization ." We regard
as insignificant the fact that the Westchester stores are not
located in the same municipal subdivision as the New York
City stores . Further, under the Act, extent of organization may
not be controlling in the determination of an appropriate unit.
On the other hand, the record indicates that the operations of
these 36 New York City and2 Westchester stores are conducted
in a highly integrated and centralized manner with uniform
personnel policies , wages, hours, and working conditions,
frequent interchange , and common supervision . In addition,
the Westchester stores belong with the New York City stores
in an administrative and functional subdivision of the Employer's
operations . In these circumstances , we conclude that the scope
of the unit requested by the Petitioner is too limited and that
the unit should include the Westchester stores' employees.
As the Petitioner has indicated that it is not unwilling to
2 The jurisdiction of the uptown district manager covers the two Westchester stores as
well as those New York stores north of 42nd Street; that of the downtown district manager
covers the stores south of 42nd Street.
3 Except for the 2 Westchester stores and 2 of the New York City stores ( in the Bronx and
Jackson Heights).
4 The Petitioner 's organizational jurisdiction is limited to New York City.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represent these employees,-' we shall not dismiss its petition,
The Employer also operates at 47 W. 22nd Street, New York
City, a combination storage warehouse , bakery, candy factory,
jam factory, ice cream plant, laundry and refrigeration plant,
butcher shop, and perishable food and related departments,
called the commissary. The commissary is under the separate
supervision of a superintendent of food production and has its
own supervisory hierarchy, separate and apart from that of
the stores. There is virtually no interchange between the
commissary and store employees, and job classifications and
functions are substantially different. The Employer contends
that the commissary should be included in the unit primarily
because its operations are highly integrated with and it
functions as a service organization and supplier for, the
stores. We do not agree. While the Employer' s operations
may be highly integrated, the record clearly indicates that the
commissary is a functionally different operation from that of
the stores--its primary function is manufacturing rather than
selling--and it is separately supervised and located. In these
circumstances, and in the absence of a history of bargaining
on a broader basis, we shall not include the commissary
employees in the unit found appropriate herein.'
There remains for consideration the unit placement of the
following six classifications of store employees whom the
Petitioner would exclude as supervisors but whom the Employer
would include as nonsupervisory employees: Senior ushers,
ushers, head waiters , head candy sales girls, head counter
clerks, and serving room heads.
Senior ushers ( also known as assistant head hostesses):
General operations of each store are under the supervision
of a store manager and assistant manager . In immediate charge
of service in the restaurant is a head hostess. The parties
have agreed, and the record indicates, that the head hostess
is a supervisor within the meaning of the Act. Working in
conjunction with the store manager and the head hostess
in the supervision and direction of all the ushers, waiters,
and waitresses in the 38 stores involved herein are approxi-
mately 23 senior ushers. The senior usher regularly substitutes
for the head hostess during the latter's absences.' At such
5 Moreover, on November 3, 1952, the Petitioner executed a "Stipulation for Certification
Upon Consent Election" including the Westchester stores with the New York City stores.
6 There are 15 store- maintenance employees attached to particular stores and approxi-
mately 25 employees in the repair department located at the commissary. The Employer
would include, and the Petitioner apparently would exclude, these employees The repair
department employees service the commissary and also supplement the work of the store-
maintenance employees. As indicated above, the repair department is separately located
from the stores It appears to be a separately supervised department not under the jurisdic-
tion of the stores operations manager. Under all the circumstances, we believe and find
that the repair department employees do not have, while the store maintenance employees
do have, a sufficient community of interest with the store employees to warrant their inclusion
in the same unit.
7 Thus, at one store, the senior usher substitutes for the head hostess everyday, for a total
of 33 hours out of the 77 1/2 hours that the store is open each week.
FRANK G. SHATTUCK COMPANY 841
times, the duties of the senior usher are the same as the
head hostess . The senior usher gives demonstrations andmenu
classes to the waitresses , trains ushers , and prepares schedules
of hours, days off, stations , and sidework8 for the waitresses.
She also checks waitresses . She also checks waitresses in
and out of their stations , may permit waitresses to change their
partners when they work in pairs, has authority to grant a
day off , and takes up personnel problems with the store
manager . In general , she directs and supervises all the ushers
and waitresses in the store just as the head hostess would do
if she were present . As the senior usher regularly substitutes
for the head hostess and thus possesses and exercises the
supervisory authority of the head hostess , we find that senior
ushers are supervisors within the meaning of the Act and shall
exclude them from the unit found appropriate herein.9
Ushers ( also known as hostesses ): There are approximately
96 ushers in the restaurants , each of whom is in charge of
a floor or section of a floor , where from 10 to 15 waitresses'
work , depending on the size of the store . " The Employer
concedes that the ushers supervise the waitresses but, contrary
to the Petitioner , contends that such supervision is routine
in character and does not require the exercise of independent
judgment so as to endow the ushers with supervisory status
within the meaning of the Act.
Both ushers and waitresses are trained to perform their
duties in accordance with uniform procedures set forth in
great detail in the Employer ' s manuals of instructions for
ushers and waitresses . The waitresses ' manual provides for
a regulation uniform and appearance , daily checking in and
out, and menu study and inspection . It instructs the waitresses
how to set tables, how to approach guests , how to write checks,
how to fill orders, how to set up trays for service, how to
serve, how to clear tables , and how to load trays . There is a
similar manual for ushers . As in the case of the waitresses,
the ushers ' duties are set forth in great detail . The ushers
are given instructions as to their personal appearance and
dress, as to seating of guests , and as to the filling out of
reports on service in general , damage to customers ' clothing,
and foreign matter in food . They are told what to do before
going on duty and at closing . They are admonished to direct
waitresses in the proper taking of orders , serving guests,
clearing tables, and keeping order . Under the section of the
manual entitled "Supervision of Waitresses ," the usher is
advised to watch and give special help to new waitresses, to
see that the waitresses' trays and towels are always clean,
not to allow waitresses to stand in groups , and not to permit
8 Sidework is a word of art in the restaurant business designating such work as folding
napkins , filling salt and pepper cellars , and sugar bowls, etc.
9 Walgreen Co. of New York, Inc., 97 NLRB 1101; The Great Atlantic & Pacific Tea
Company, 96 NLRB 660.
10 According to an Employer witness, there are four categories of stores : large, medium,
small, and smaller.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
too many waitresses to serve one guest. In addition , the ushers
check to see that the waitresses are at their assigned stations
and that they perform their assigned sidework.
It is thus abundantly clear that the work of both ushers and
waitresses is highly standardized and routinized . However, the
Petitioner contends that the performance of these duties is not
routine but entails the exercise of independent judgment and
constitutes responsible direction of waitresses within the
meaning of the statutory definition of supervisor . It argues,
inter alia, that an usher can order a waitress to get a clean
towel , tray, or apron, to clean tables, to help another waitress,
and to perform her assigned sidework properly; that ushers
have settled minor personal complaints of waitresses and
have given them permission to leave the floor in an emergency;
that ushers wear different clothes, and addressed as "Miss,"
attend meetings of department heads, and receive a higher
rate of pay than waitresses ; that the waitresses obey the
usher ' s instructions ; and that a finding that ushers are not
supervisors would make a disproportionate ratio between
supervisors and employees ." We have considered all of the
foregoing , as well as the entire record , and we believe and
find that the direction of the waitresses by the ushers does
not involve the exercise of such independent judgment as to
warrant a finding that the ushers are supervisors within the
meaning of the Act. Absent evidence of other indicia of
supervisory status, we shall include them in the unit."
Head candy sales girls : The head candy sales girl, who is
usually promoted to that position from the ranks, is in charge
of the candy and bakery sales department, in which from 2 to 8
candy girls work. As the Petitioner concedes in its brief the
relationship between them is like that between an usher and
waitresses . Immediate supervisors are the store manager and
the assistant store manager , as well as the 6 field supervisors
who oversee the proper functioning of the candy and bakery
department personnel.
As with the ushers and waitresses , the Employer has rules
and regulations covering the routine of the head candy sales
girl and candy girls. It is the responsibility of the head candy
sales girl to conform to these rules and regulations, and to
see to it that the candy girls under her also conform, and to
that end she directs their activities . Following the weekly
display sheet sent from the main office, the head candy sales
ti The record does not substantiate the Petitioner ' s contention that there is but 1 supervisor
to more than 100 waitresses . We note that more than half of the stores involved herein--22
out of 38 to be exact--each have a total of less than 100 employees in all departments
Further, in addition to the head hostesses and senior ushers , there are 2 field supervisors
who visit the stores to oversee and supervise personnel.
12 See Marshall Field & Company , 93 NLRB 182 . The parties stipulated that the founctions,
duties and responsibilities of the head waiters ( also known as captains to head hostesses)
are the same as those of the ushers and that the Board's disposition of head waiters should
be the same as that of the ushers . Accordingly , we shall include the head waiters in the
unit.
FRANK G. SHATTUCK COMPANY 843
girl is responsible for the window decorations and the training
of girls to decorate windows. She takes inventory of stock at
hand and submits to the store managers estimates of supplies
to be requisitioned from the commissary . The store manager
prepares a work schedule assigning the hours and duties of
the candy girls and the head candy sales girl follows that
schedule rountinely.
As in the case of the ushers , we believe that the direction
of the candy girls by the head candy sales girl does not require
the exercise of independent judgment within the meaning of
the Act . Although the head candy sales girl is looked up to as
the department head and the girls obey her orders , and although,
on occasions , the store manager may follow the head candy
sales girls' recommendation for promotion , the record satisfies
us that such activity is routine in character and is not sufficient
to endow the head candy sales girl with supervisory status.
Absent other indicia of supervisory status, we find that the
head candy sales girls are not supervisors and shall include
them in the unit.
Head counter clerks ( also known as head soda men and head
fountain men): The head counter clerk , who is usually promoted
from the ranks, is in charge of the serving of food and drink
at the soda fountain and counters , where a maximum of 9 soda
men work . The immediate supervisor of the head counter clerk
is the store manager and the assistant store manager as well
as the 2 field supervisors who daily check the store . The head
counter clerk is responsible for the care and proper operation
of the fountain . He checks the setting up of the fountain, sees
to it that there are adequate supplies and food, and that the
soda men are at their proper stations . He directs the activities
of the soda men in the performance of their routine duties for
which they have been thoroughly trained . A trained and exper-
ienced soda man requires little such direction or supervision
by the head counter clerk . In addition to the store manager
and assistant store manager , field supervisors check directly
with the head counter clerk and the soda men with respect to
the quality of the food and drinks sold and with respect to the
operation of the fountain in general . The manager schedules
the working hours and vacation for the soda men, and the head
counter clerk follows this established routine. As in the cases
of the ushers and the head candy sales girls, we believe that
the supervision and direction of the soda men by the head
counter clerk is routine in character . Although the head
counter clerk is considered a department head , is obeyed by
the soda men , attends department head meetings, handles
minor complaints , and may change an employee ' s lunch hour,
we are satisfied on the record that such activity does not
require the exercise of independent judgment within the
meaning of the Act, and is not sufficient to endow the head
counter clerk with supervisory status. In these circumstances
and absent other indicia of supervisory status, we find that the
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
head counter clerks are not supervisors within the meaning
of the Act and shall include them in the unit.
Serving room heads : The preparation of food for service in
the restaurant and at the soda fountain is under the supervision
of the lunch manager assisted byan assistant lunch manager. is
Between the kitchen and the restaurant , there is a serving
room where the waitresses place their orders and receive
the dishes so ordered . The serving room is under the direction
of the serving room head , under whom there are 6 to 12 girls
classified as follows : Salad girl , sandwich girl , steam table
and shortorder cook , coffee girl , barmen , and dish table
attendants . The Company ' s recipes are standard and are
never changed . Each day the lunch manager issues detailed
instruction to the serving room head and to the serving room
girls as to service --"how much to put on each plate and how
to arrange it." The serving room head , who is trained by the
lunch manager in the routine of her duties , must see that
the orders of the waitresses are filled as promptly as possible
and in accordance with the lunch manager ' s instructions and
the Employer ' s rules and regulations . For that purpose, the
serving room head sees to it that there is an adequate supply
of food and that the serving room girls are at their stations.
When necessary , she may assign one girl to help another. The
serving room head will check with the girls to see that they
know the menu, and will settle minor disputes between the
girls and the waitresses. Further, she orders the food and
supplies for the serving room and sees to it that it is avail-
able for the girls . Along with the lunch manager and the
more experienced girls, the serving room head will help train
new girls . The lunch manager grants time off to the girls
and prepares their relief and vacation schedules, which the
serving room head follows . The lunch manager and the
assistant lunch manager also assist in the serving room and
occasionally will relieve the serving room head . As in the
case of the ushers , head candy sales girls, and head counter
clerks, we believe that the direction and supervision of the
serving room girls by the serving room head does not require
the exercise of independent judgment within the meaning of
the Act . Although the girls consider the serving room head
as the department head and obey her orders , and although
the manager may ask her opinion as to whether a girl should
get a pay raise or be discharged , the record satisfies us that
such activity is routine in character and does not endow the
serving room heads with supervisory status within the meaning
of the Act. In these circumstances and in the absence of other
indicia of supervisory status, we find that serving room heads
are not supervisors and shall include them in the unit.
We find that all employees working in the Employer's 38
stores in the City of New York and in Westchester County,
New York , including regular part -time and relief employees,
13 The parties agree that these managers are supervisors withm the meaning of the Act.
HIGGINS, INC. 845
ushers (also known as hostessess), head waiters ( also known
as captains to head hostesses ), head candy sales girls, head
counter clerks ( also known as head soda men and head fountain
men), serving room heads , and store maintenance employees,
but excluding temporary and seasonal employees , employees
in the repair department , commissary employees , guards,
watchmen, managerial personnel , head hostesses , senior
ushers ( also known as assistant head hostesses ), and all other
supervisors as defined in the Act , constitute aunt appropriate
for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.14
[Text of Direction of Election omitted from publication.]
14Except for the categorids discussed herein , the parties are in agreement as to the job
classifications covered by the unit description.
HIGGINS, INC. and INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF
AMERICA, LOCAL 37, AFL, Petitioner. Case No. 15-RC-
886. August 21, 1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
. REPRESENTATIVES
On April 24, 1953, pursuant to the Board's Decision and.Di-
rection of Election,' an election by secret ballot was conducted,
under the direction and supervision of the Regional Director for
the Fifteenth Region, among the employees of the Employer in
the unit designated in the Decision and Direction of Election, to
determine whether or not they wished the Petitioner to represent
them for the purposes of collective bargaining. Thereafter, a
tally of ballots was furnished to the parties which shows that 956
eligible employees, 730 cast ballots, of which 506 were for the
Petitioner, 182 were against the Petitioner, 5 were void, and 37
were challanged. The challenges are insufficient in number to
affect the results of the election.
On May 22, 1953, the Employer filed timely objections to the
election, contending that: (1) The Petitioner electioneered within
close proximity to the polling booths; (2) the Petitioner made
illegal promises of benefits to the employees participating in the
election; (3) the Petitioner threatened and coerced the said em -
employees; (4) the handbills circulated by the Petitioner were
both scandalous and inflamatory; (5) the Petitioner's address
to the employees over loudspeakers on the morning of the
election deprived the Employer of an equal opportunity to ad-
dress the employees; and (6) by reason of all of the foregoing the
election was not conducted under the proper laboratory con-
ditions.
1104 NLRB 364.
106 NLRB No. 145.