Stouffer Management Food Service

National Labor Relations Board - Board DecisionsApr 18, 1974

210 N.L.R.B. 119 (N.L.R.B. 1974)

STOUFFER MANAGEMENT FOOD SERVICE Stouffer Management Food Service and Local 775, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 26-RC- I,4620 April 18, 1974 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On October 29, 1973, the Regional Director for Region 26 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appropriate a unit of all of the employees of the Employer at its cafeteria and dining rooms in the National Life and Accident Insurance Company's' Nashville, Tennessee, office building, including, in accord with the Petitioner's request, certain "extra" employees. In accordance with Section 102.67 of the National Labor Relations Board Rules and Regula- tions , Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the grounds, inter alia, that in including five extra employees, he made erroneous findings as to substantial factual issues and departed from officially reported precedent. The National Labor Relations Board, by telegraph- ic order dated November 29, 1973, granted the request for review and stayed the election pending decision on review. Thereafter, the Employer filed a brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding with respect to the issues under review, including the Employer's brief on review, and makes the following findings: The Petitioner seeks to include, in the unit of cafeteria and dining room employees here involved, those extra employees who have worked with sufficient regularity to constitute regular part-time employees. The Regional Director, examining the employment records of such "extra" employees, found that most were casual employees but conclud- ed that five of them worked with sufficient regularity to be classified as regular part-time employees; i.e., "they averaged working on at least one day a week in the immediately preceding quarter." The Employer contends that there is no basis in the present record 1 Referred to herein as National Life. 2 Regular meals provided by the Employer include breakfast, morning coffee break , and lunch for employees of National Life Special functions involve breakfasts, lunches, dinners, and other events such as cocktail 119 for departing from the definition of regular part-time employees which it uses, i.e., employees regularly scheduled to work 18 or more hours per week; and that, therefore, all extra employees who do not meet that definition should be excluded from the unit as casual employees. We find merit in this contention. As indicated, the Employer operates a cafeteria and dining rooms in National Life's office building in Nashville. At these facilities, the Employer provides food and service for regularly scheduled meals as well as for special functions held by National Life.2 The Employer has 22 regular employ- ees. As stated, it defines a regular employee as one regularly scheduled to work at least 18 or more hours per week. At special functions, the Employer may supplement its regular complement of employees with extra waiters. Depending upon the type of special function involved, these extras are required to work from 2 to 5 hours.3 It obtains such extras by contacting Theodore Acklin, headwaiter for King Arthur Foods, a catering service in Nashville, and specifying the number required. For each extra waiter supplied, the Employer pays Acklin $1. These extra waiters are full-time employees of King Arthur Foods, and their use by the Employer is wholly dependent on Acklin's selecting them. As a result, the Employer has no control over obtaining particu- lar individuals as extra waiters, and no individual can fairly be said to have any expectancy of reemploy- ment. The Employer here has made no commitment to any such individual nor could it, since the choice of extras is made solely by a third party. The fact that a few of these individuals may have averaged 1 day a week of employment with the Employer is, under these circumstances, not sufficient to create a permanent or noncasual relationship with the Em- ployer. We also note that regular and extra employees enjoy different conditions of employment. Regular employees are paid by weekly payroll check and are eligible for various fringe benefits provided by the Employer, such as retirement and insurance pro- grams and vacation and holiday benefits. Extra employees are paid per function worked from petty cash, and do not qualify for any fringe benefits. Further, unlike regular employees, extras do not use timecards and social security contributions are not withheld from their earnings. In the circumstances of this case, therefore, we conclude that the "extra" waiters utilized by the Employer for special functions are casual and intermittent. We find, therefore, contrary to the parties and receptions 3 Breakfast functions and receptions require 2 hours of work, lunches and dinners, 4 hours; and cocktails and dinner functions , and certain special events , 4-5 hours 210 NLRB No. 21 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director, that the extra employees utilized by the Employer are ineligible to vote and are excluded from the unit. Accordingly, we shall remand the case to the Regional Director in order that he may conduct an A In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc, 156 NLRB 1236; N.LR.B. v. Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is hereby directed that a corrected election eligibility list, containing the names and addresses of all the eligible voters , must be election pursuant to his Decision and Direction of Election, as modified herein, except that the eligibili- ty period therefore shall be that immediately preced- ing the date of this Decision on Review.4 filed by the Employer with the Regional Director for Region 26 within 7 days of the date of this Decision on Review . The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.