Petition for Writ of Certiorari — Local 300, United Industrial Workers v. Marriott In-Flite Services Division of Marriott Corp.

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JAN 5 1970 :

| im. 88 7 JOHN F, BAVi8, Co {

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fal supreme Court of the United tates |

Ocroser TERM, 1969.

1 we. 1089 :

< LOCAL 300, UNITED INDUSTRIAL WORKERS OF E

AMERICA, SEAFARERS INTERNATIONAL UNION ]

OF NORTH AMERICA, AFL-CIO,

. Petitioner, E

VS.

“MARRIOT (1N-FLITE SERVICES DIVISION OF |

MARRIOTT CORPORS ATION,

Respondent. ag

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS mG ek

“ FOR THE FIFTH CIRCUIT. — ; ji

Harotp A. Katz,

Irvine M. FrreDMAN,

- CHaRLEs Barna, JR, : e.

7 South Dearborn Street, ;

Chicago, Illinois 60603, i

Attorneys for Petitioner.

Katz & FrrepMAN, » | é

7 South Dearborn’Street, :

Chicago, Minois 60603. |

- Howarp, ScHULMAN, .

1250 Broadway, ie

New York, New York 10001,

a. a Of Counsel.

THE GUNTHORP-WARREN PRINTING COMPANY, CHICAGO AED 556

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i * INDEX

7 femeee* PAGE

Opinions Dee ooo. ms Sepak aoe eA Pemakea eas ma |

Jurisdiction ....7..... ee ee ee ee 2

Questions Presented 55. ......00856: Ses gue cee ate ae 2

Statutes and Regulations Involved. .-...és. 04.5.2. 2

, Statement of the Case..... piso: ep ack CVSROOT eT UN Os 3

Reasons for Granting the Writ....... cyaisauas Sie 5

Conclusion ....... ear SU NAM AS OW UA oak sed mse 15

Appendix A—Notices of Election . :

Pie cee eats ey Pitan ba ee eek ete Al

Naeem aeraie” Aare ({ebis Lhe ee uk homes AQ

_ Apperidix B—Opinion of the Court of Appeals for the

Fifth Circuit....... US CRVKCANS Me Ck ERASED CRN A3

Appendix C—Judgment........... be ivan oe etwas Al4

Appendix D—Decision and Order of the National

Labor Relations Board............-....++sseeeeee A16

. Prisl Eixamisier’s Decision. .:.....6...6.0.s.0%6 A31

Appendix E—Statutes and Regulations............. , A52

Crrarions. > 2

Accelerated Transport- Pony Express, Ine. v. U. S., 227

F. Supp. 815, 820-821 (D. C. Vt., sesh affirmed 379

U. S. 4 (1964)... cee cece cee cece eee ete eee 7

Braniff Airways Incorporated v. C. A. B., 379 F. 2d

453, 466 (D. C. Cir., 1967)..... 2.0... cece eee eens 10

Craft Manufacturing Co., 122 NLRB 341 (1958)...... 9

F.C. C. v. Pottsville Broadcasting Co., 309 U. S. 134,

TES (TOED)-. oc cece ce seeesereesscncesontegeces d

\“

: \

F. C. C. -v. Schreiber, 381 U. S. :279, 290-291, 292-293

LEB No. 105 (1968)... eon ree nt

(19GB) cnc ee cee cee ce tape nee eww beac gt ees ene des 7

Fibre Leather Mtg. Corp., 167 NLRB No. 51 (1967).. Ny)

Kerner v. Celebredze, 340 F. 2d 736, 740 (2d Cir., 1965),

cert. denied, sub. ‘nom. Kerner v. Gardner, 382 U.S

BGR CAGGEB) «case ve ec cgpacs ee tices eee ee ee iee. "yp

_Laars Engineers, Ine; 173 NLRB No. 90 (1968)....-.. 9

Massachusetts: Trustees of Eastern Gas & Fuel Asso-

ciates v. U. 8, 377 U. S..235, 248 (1968) ......6..... 12

N. L. R. B. v. American Art. Industries, 415 F. 2d 1223,

1229 (Sth Cir., 1969)......... eee e rece eee eee eens 12

N. L. R. B. v. Carolina Natural Gas Corp., 386 F. 2d

571, 575 (4th Cir., 1967)......... RUNES Shee S 12

N. L. R. B. v. Gissel Packing Co., 395 U. 8. 575 at 608

(POGBY os ccna ediee ved es tev ew esas ees ee eee ees

N. L.:R. B. v. Mattison Machine Works, 274 FI. 2d 347

(7th Cir., 1960), reversed per curiam 365 U. S. 123 .

(OGL). nce ce eee cec ceed oceeses Wee lr cee antes 11

N. L. R. B. v. Parkhurst Manufacturing Company, 37

F. 2d 513, 518 (8th Cir., 1963)...... 0020s esse pees

N. L. R. B. v. Red Bird Bunda: 399 F.2d 600, 602 “(ith

Cir., 1968) ..... a see ere a eris Ha Aw wa ee A A Ne 12

N. L. R. B. v. Seine and Line Fisherman’ s Union of

San Pedro, 374 F. 2d 974, 981 (9th Cir., 1967), cert.

denied, sub. nom. Paul Biazwich v. N. L. R. B., 389

U. S. 913 (1967)......---- gyicersastegeececesncens 12

N.L.R.B.v. A. J. Tower Co., 329 U. S. 324, 330, 331,

332, 330-333, 334-335 (1946)... . 20-60 sees eee. .. 5, 9, 10

Thomas A. Nelson d/b/a Trio Metal Cap. Co., 168

ili

Polymers, Inc., 170 NLRB No. 33 (1968)........+++. 8

Virginian Railway Company v. U. S., 272 U. S. 658, 663,

- 665-666 (D. W. Va., 1926)... .............06 EE Eke i

Yale Transportation Corp. v. U. S., 185 F. Supp. 96,

107 (D. C. S. D. N. Y., 1960), affirmed: per curtam,

365 U. S. 566 (1961).../....... peeeiae ah pate 12

STATUTES.

Administrative Precedure Act, 5 U. 8. C. §706.....A58,10

Labor Management Relations Act, as amended 61 Stat.

136, 73 Stat. 519, 29 U.S. C. $151 et seq.

PRONE CS is Sebo ean egy 9 Ne Goce ep iva A52, 2

Section 9 ...... PO POST Te rs ea te Net iee eee A53, 5

96:0. BCS SER ices es Gomis orn eae 2

Constitution of Illinois, 1870, Sched. $ 18, 1967 Ill. Rev.

iad OF os rs ee eas Osea 8

National Labor Relations Board:

Rules and Regulations and Statements of Proce-

> dure $§ 102.62, 102.69, 26 F. R. 3885

Scotian TID or. Ge wet cee log eus AD4, 5,6

PCE FU oS oso 6b we wc shs PEA ee cays A56, 5

‘Section 101.20 ............ SV usbAnaeces EOS

Section 101.21 (d) aiekwd eu es eee ae

Section 102.68'.......2.5... cee eees per aes ees |

Jc. => ERR SRT OT 10) isin sy oko ese bs ta ea os 14

National Labor ‘Relations Board, Regional Directors |

Delegation of Authority 26 F. R. 3911............ A57, 5

‘

National Labor Relations Board:

MISCELLANEOUS, ”

‘Twenty-Ninth Annual Report, 1964..............

- Thirtieth Annual Report, 1965

Thirty-First Annual Report, 1966

Thirty-Second Annual Report, 1967.......... ee

Thirty-Third Annual Report, 1966 .../. gee eee

. .

° ‘

; \

4 ”

¥ O28 67 0) 8 618 6 2 6 s- B86. S

a°

Court of the Girited States

October TERM, 1969. {

LOCAL 300, UNITED INDUSTRIAL WORKERS OF

AMERICA, SEAFARERS INTERNATIONAL UNION

OF NORTH AMERICA, AFL- CIO,

. Petitioner,

: nee: ne SS

oak IN-FLITEC SERVICES DIVISION OF

: MARRIOTT CORPORATION, %

Rlspondent

| PETITION FOR,A WRIT ‘OF CERTIORARI TO. THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

2 To: The Honorable Chief Justice of the United States and

the Associate Justices of the Supreme — of the

~ United States.

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

* the sla Circuit Ts on October 7, 1969.

OPIN IONS BELOW

The opinion. of the court below is under the caption

Marriott In-Flite Services, Division of Marriott Corpora-

tion v. National Labor Relations Board. (and reverse title)

reported pee PF. 2a... {Gh Gr. 1969), 61 L. ce

10388, and appears in Appendix B below.

ri 4

2 ot he

f The decision and order of the National Labor Relations’

| Board from which the petition for review and cross-petition

| for enforeement were filed in the court of appeals, is re-

ported at 171 NLRB No. 102 (1968), and appears in Ap-

~ pendix ” below.

. JURISDICTION

Jurisdiction of this Court 1 is invoked under the provisions

of 28 U.S. C. § 1254(1). oy

! QUESTIONS PRESENTED

1. Whether the Court of*Appeals.erred in setting aside

the Board election because of the Board’s failure to follow

uniform election procedures relating to foreign-language ~

ballots, where the varying election procedures grow out of

the fact that the Board under its statutory power has dele-

gated to its regional directors the authority to conduct elec-

tions. - =e

2 Where the Union received a majority of approxi-

mately sixty per cent of the votes in a unit which included

both English-speaking and Spanish- -speaking employees,

did the Court of Appeals err in setting aside the election on

the sole ground thatthe Board’s regional director had’ used

English-language ballots, where none of the employees had

-any difficulty in voting in the election.

STATUTES AND REGULATIONS INVOLVED

The Labor Management ‘Relations Act, 1947, as amended,

61 Stat. 136, 29 U. S. . § 151 et seq,, Sections 3, 9.

AdmM*histrative Procedure Act, 5 . C. § 706.

National Labor Relations Board Rules and Regulations

and Statements of Procedure, Seri: 8,.as amended, 26

. FR. 3885 § 102.62 and 102.69. o ,

“ 3 )

Regional Directors Delegation of Authority, 26 F. R.

a is :

The pertinent sections of the above are printed below in,

Appendix E,

STATEMENT OF THE CASE \

The petitioner, Local 300, United Industrial, Workers of

America; Seafarers’ International Union of Nérth America,

“AFL-CIO, a labor organization, seeks review of a judgment

of the United States Court of Appeals for the Fifth Cir-

cuit. The respondent, Marriott In-Flite Services Division

of Marriott Corp., an employer, had petitioned the court

below pursuant to Section 10(¢) of the National Labor Re-

lations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.

C. § 151 et seq., for review of the decision and order of the

Board finding the respondent in violation of Section 8(a)

(1) and (5) of the Aet by refusing to bargain with the

Union. Although the Company’s plants, the employees,

and the Board’s regional office which was involved in this

proceeding were all located in Chicago, Illinois, the court

below had jurisdiction under Section 10(e) and (f) of the

Act, as the Company is also engaged in business within

that judicial cireuit,

On February 21, 1966, the petitioner, a labor organiza- ©

tion, and the respondent, an employer, entered into a Stipu-

lation providing for a representation election among the

Company’s employees in Chicago, to be conducted under

the supervision of the Thirteenth Region of the Board

(R. 3).’ Before signing the election Stipulation the Employ-

er had requested multilingual ballots and election notices.

The Regional Director agreed to furnish Spanish-English

notices but denied the request for Spanish-English ballots.

1. References’ to the printed record in the court below are

shown as R. ....; references to the Appendix herein are shown as

£ 7

The Employer did not insist upon sugh ballots as a condi-

tion of signing the election Stipulati , nor did it-ask for a

pre-election hearing on this issue. The Stipulation con-

tained a waiver of any hearing prior to the election (R.

0). In advance of the election, the Board’s Regional Office ©

furnished Notices of Election which were printed in Eng-

lish and Spanish and reproduced a: sample ballot in the

form. actually used in the election, for posting in the plant

(A 1, 2). The Kmployer raised no objection prior to the

election concerning the use of Knglish-language ballots,

even though it w as aware in advance of the election that

such ballots wete to be used. The election, conducted on

March 18, 1966, resulted in a majority vote of 299 to 203 for

the Union (R. 8). No employee complained of any difficulty

in understanding or in voting the ballots, which contained

simply a choice of ‘‘Yes’’ or ‘‘No”’ (A 1, 2).

The Kmployer filed post-election objections, 4ncluding an

objection based upon the use of English- language ballots.

Following a hearing, the objections were overruled and the

Union was certified on June 16, 1967. The Employer re °

fused to bargain. Unfair labor practice proceedings fol-

lowed. The Board held that the Regional Director had

acted within his diseretion in furnishing Ballots in the Eng-

lish language (R. 247- 248). The Board found the Com-

pany in violation of Section 8(a) (1) and (5) of the Act and

ordered the Company to bargain. The Company petitioned

the Court of Appeals for the Fifth Circuit to set aside the

Board’s order. The Board cross-petitioned for enforce-

ment and the Union intervened. The Court of Appeals de-

nied enforcement of the order, on the sole ground that the

ballots were printed only in English. ;

REASONS FOR GRANTING THE WRIT

1.’ The decision of the court below conflicts directly with

decisions of this Court respecting the authority of the Na-

tional Labor Relations Board in the conduct of representa-

tion elections, and with decisions of this Court limiting the

fi scope of judicial review of administrative

agency action. One of the critical functions of the Board in

the area of labor-management relations is its conduct of

representation elections. The décision below creates a

serious impediment to the Board’s exercise of its statutory

authority in this field. Review of the case by this Court is

important in oPder to eliminate this problem in the ad-

ministration of the Act. : :

At the core of the statutory scheme for determining col-_

lective bargaining representatives, Congress, in Section

9(B) of the Act, vested in the Board exclusive authority to

conduct representation elections. This Court settled early

in the history of the<Act that it is the function of the Board

to determine how to conduct representation elections, for

‘*... Congress has entrusted the Board with a wide degree

of discretion in establishing the procedure and safeguards

necessary to insure the fair and free choice of bargaining

representatives .. .’’; and the Court affirmed the Board’s

authority to fashion election procedures which are in ac-

cord with election practices generally. N.L. R. B. v. A. J.

Tower Co., 329 U. 8. 324, 330-332 (1946). -

The Congress also gave express authority to the Board

in Section 3(b) of the Act to delegate to its regional direc-

tors the authority to conduct elections, which the Board has

proceeded.to do. Regional Directors Delegation of Au-

thority, 26 F. R. 3911; N. L. R. B. Rules and Reg-

ulations and Statements of Procedure, Sections 102.62,

102.69, 26 F. R. 3885. In fact, such delegation with its de-

centralization of authority is the heart of the Board’s °

scheme for discharging its election functions under the Act.

With respect to ions following a stipulation between

the employer Bae untoy, as in this case, the delegation °

is very broad: ‘‘Such electioiskall be conducted under the

direction and supervision of the onal Director. The

_ method of conducting the election and the postelection pro-

cedure shall be consistent with that followed by the Re-

gional Director in conducting elections pursuant to Sections

102.69 and 102.70.’? Board’s Rules and Regulations, See-

tion 102.62(b). |

The importance and virtual necessity of such a delegation

to the regional directors is manifest. In the past five years

alone, the Board’s thirty-one regional offices have con-

ducted a total of over thirty-eight thousand elections in-

volving more than two and three-quarter n&llion employees

in every part of the United States (Twenty-Ninth through

Thirty-Third Annual Reports of the National Labor Rela-

tions Board, for the years 1964-1968). This huge volume of:

elections in a wide variety of industries and under varying

local conditions could hardly be conducted other than by

means of the regional offices, which are in a unique position

to adapt the election procedures to the individual condi-

tions of “ach case.

The court below set aside the election in this case and

’ denied enforcement of the Board’s bargaining order on the

sole ground that the regional director failed to furnish

multilingual ballots (Spanish and English) in accordance

with what the court deems to be the uniform practice in the

other regional offices of the Board.

Assuming, arguendo, that the practice of all of the other

regional offices was to use multilingual ballots, the court

below is nevertheles$ in fundamental error. Neither the

Act nor the Board’s Rules require the use of multilingual

ballots. The Board, within its statutory authorization, has

delegated to the regional director the authority to conduct

the election in a method consistent with his own practice.

Board’s Rules and Regulations, Rule 102.62(b). It has

long been the rule of this Court that the reviewing courts

may not require consistency or uniformity of avency action.

In Virginian Railway Company v. U. S., 272 U. S. 658, 663,

665-666 (1926), the Court, through Mr. Justice Brandeis,

said, ‘‘To consider the weight of the evidence before the

Commission, the soundness of the reasoning by which ‘its

conclusions were reached, or whether the findings are con-—

sistent with those made by it in other cases, is beyond our

province.’? 272 U. S. at 663! The Court has eontinued to

approve that standard of judicial review. Accelerated

Transport-Pony Express, Inc.'v, U. &., 227 F.. Supp. 813,

820-821. (D. C. Vt., 1964), affirmed$79 U. S. 4 (1964).

The court below holds that the Board’s regional directors

;nust adhere to an agency wide procedure instead of exer-

cising their discretion concerning the details of election

procedures. Thereby the court erroneously asserts the

power to substitute its own procedural rules for those

adopted by the Board. But this is in direct conflict

with the repeated holdings of: this Court in mat-

ters of administrative agency review. In FY C. C. v.

Pottsville Broadcasting Co., 309 U. S. 134 (1940), the Court

overruled a court of appeals which had substituted its own

tule of procedure in place of that adopted by the F. C. C.

This-Court held that if a change in agency procedural rules

is desirable, it is for Congress to accomplish this by legis-

lation, and that the court of appeals was not authorized to

write its own principles into the statute. The Court. said,

309 U. S. at 143, that administrative agencies ‘‘should be

free to fashion their own rules of procedure and to pursue

methods of inquiry capable oLermitting them to discharge

their multitudinous duties.’? The decision below conflicts

also with the recent decision of this Court in F. C. C. v.

Schreiber, 381 U. S. 279, 290-291 (1965), where the Court

held that judicial action ‘‘to establish administrative pro- °

cedures de novo would.of course render nugatory Congress’

effort to insure that administrative procedures be designed

by those most familiar with the regulatory problems in-

.volved. Thus in providing for judicial review of adminis-

’ trative procedural rule-making, Congress has not em-

4 a? S

powered district courts to substitute their Judgment for

that of the ageney.””

The test’ of - the validity of the Board’s action is not

whether the court of appeals could fashion a better election ~

procedure. The proper tests for judicial review under the

teaching of this Court as in Schreiber, supra, 381 U. 8S. at -

291, ane whether the Board has the statutory power to

decide what kind of ballots to use in elections, and whether

it acted arbitrarily. Unquestionably the Board; does have.

authority to decide what kind of ballots to use. The statu-

tory delegation of authority to conduct elections necessarily

includes the authority to decide on the kind of ballots.

The Board also was autliorized by Congress to delegate

that authority to the regional director, which it did.

In approving the regional director’s decision to use

English ballots, in this ease, the Board did not act arbitrar-

ily. Its decision in this case adequately sets forth reasons

for its ruling (A 19-20). In advance of the election, Notices

of Election, adequately explainirfy the clection in both Span-

ish and English, were posted by the employer throughout

the plant on the bulletin boards customarily used for notices

to employees, with sample ballots attached in the form ac-

tually used at the polls (A 1, 2). The ballots stated a

simple ‘*Yes’’/‘*No’’ choice. The Board noted that the

word ‘‘No’’ is the same in both languages, and_ that

gainfully employed persons in an American plant in

Chicago would know the meaning of the word ‘Yes’’.

The Board also pointed out that the Company and the

Union had each provided observers at the election who

spoke both English and Spanish and that the observers

‘.-

_ certified on the tally that the election was fairly conducted.

Significantly, as the Board observed, there was no showing

that any voter misunderstanding had occurred during the¢ :’

election. The fact that more than five, hundred employees

voted without any instances of difficulty over the language

on the ballot is of course.the most eloquent refutation of

any speculation about possible prejudice. _— A. J. Tower,

supra, 329 U.S. at 334-335.

The Board approved the Regional Director’s choice of

English- language ballots, holding that he had acted within

his discretion.? The Board reviewed the conduct of the

election and approv ed it by applying its usual standards,

“2.€., whether the election assured an adequately informed

expr ession by the employees, and whether ‘on facts pre-

sented in each case, the election has been earried out in a

manner which assured the secreey and security of the

balloting.’’ Polymers, Inc.. 170 NURB No. 33 (1968) ;

Fibre Leather Mfa. Corp., 167 NLRB No. 51 (1967):

Thomas ‘A. Nelson d/b/a Trio Metal Cap Co., 168 NLRB

No. 105 (1968); Laars Engineers, Inc., 173 NLRB No. 90

ee Craft Manufacturing Co., 122 NLRB 341 (1958).

In setting aside the election because of the regional direc-

tor’s failure to follow a so-called uniform policy, the court “

below seriously endangers the statutory scheme for Board

elections. It would be a practical impossibility for the

thirty-one regional directors to follow identical election

practices in the multitude of different situations they face

in thousands of elections every year. Congress must be as-

sumed to have known what it was doing when it authorized

the Board to delegate election-handling to its regional

2. Publie elections in Tilinois are conducted in the English

language. The Illinois Constitution requires all official documents

and records to be in the English language. Constitution of Tlinois

1870, Sched. § 18, reproduced in 1967 Ill. Rev. Stat: 27. In the

Tower case, supra, 392 U. S. at 331, 332, this Court approved the

Board’s use of standards which conform to those followed in

elections generally.

~~,

+ ~ 10 ©

directors. If consistency as to the details of election prac-

tice among the various regions is to become the test for

upholding elections, it is certain that a tremendous burden

will be placed upon the agency personnel, to adhere slav-

ishly to a myriad of bureaucratic devices. Objections to

elections will multiply, based upon fly-specking comparisons

of region-by-region procedures. Regional Directors will

tend to avoid the legitimate exercise of diseretion“ in

fashioning election procedures to meet case by: case re-

. quirements, for indeed the use of discretion will have be-

come per sea basis for setting an election aside.- Had

Congress intended total uniformity it would have so pro-

vided. “If, however, such a rule. were to be imposed, it is

for Congress and not the courts to do so. The clear intent

of Congress in delegating the entire election. process to the

- Board,_and in leaving the Board:free to fashion procedures

through its delegation to regional directors, should be given

effect. Thé writ should. be granted in this case to review

the deciston which~is not merely incorrect but which en-

dangers the expeditious and effective discharge of the

Board’s vital functions in the conduct of’eélections under

the Aet. :

2. The decision of the court below is in conflict with the

provision of the Administrative Procedure Act, 5 U.S. C.

§ 706, that administrative action:is not ‘to be overturned

merely because of non-prejudicial error.’ Braniff. Airways

Incorporated v. C. A. B., 379 F. 2d 453, 466 (D. C. Cir.,

1967). Assuming, arguendo, that the regional director here

failed to follow a uniform policy of providing multilingual

ballots, there is no showing that this resulted in any preju-

dice or harm in the conduct of the election. No ‘eligible,

voter complained of any difficulty in voting the simple

‘““Yes’’/‘‘No”’ ballot. Cf. N. L. R. B. v. A. J. Tower, supra,

329 U. S. at 334-335, wherein this Court adverted to the

importance of the absence of actual voter complaints in a

a 11 . ; ze

consideration of the Board’s election procedures. The wide

margin of 299 to 203 by which the voters expressed their

* choice makes it clear that they well knew what. the issue

was. But the court below erroneously holds that prejudice

or harm eed not be shown, and that there is no hurden

upon the Company in attacking the election to show that

there was prejudice (Opinion, A 11). This holding is con-

trary to the command of the Administrative Procedure

, Act, and it.confliets with the holdings on this issue in this

Court and in other courts of appeals. InV.L. R. B. v. Mat-

tison Machine Works, 274 F. 2d°347 (7th Cir., 1960), the

corrt of appeals set aside a Board election- because of an

error in the employer’s name. on the election notices and .

ballots, holding in effect, like the court below, that even

though the objecting employer was unable to show that

the error caused confusion among the voters, the Board

had the burden of proving there was no prejudicial error.

This Court rev ersed, 365 U. S. 123 (1961). The Court Wa’

per curiam opinion held that the burden rested on Ne

ployer to show that the érror had affected the fairness vf

the election, and that ‘‘in the absence of proof by the em-

. ployer that, there has been prejudiee to the fairness of the

election such trivial irregularities of administrative pro-

cedure do not afford a basis for denying enforcement to

an otherwise valid Board-order.”’. ‘In- Mattison, the margin

in the election was very close: 157 to’155 in favor of the

Union. A ortiori, in this case ves We margin was sub-

stantial, the rule against interfering\ with administrative

_ action for\harmless error should have been followed by

the court below. The solicitude af the court below for en-

forcing literal adherence to formula, to the point ‘of setting

aside an election for harmless deviation, results in a frus- ;

tration of the Congressional policy, and deprives those

very people about whom the court expresses concern, of

the bargaining agent which they chose by majority vote and

it deprives them of the fruits of collective bargaining.

Because the Court of Appeals decided this case in flat con-"

flict with the rule of this Court in Mattison, the writ should

be\ granted in order that the error may be reviewed?

With no pre, dicial error shown in the record, the court

below reaches its conclusion by speculation about a hypo-

thetical possibility that some of the voters may not have

understood the ballot (Opinion, A 11). Yet the Fifth

Circuit has approved of the use of English-language au-

thorization ecards, signed by non- English speaking em-

ployees, to prove a union’s majori ity status. N. L. R. B. v.

American Art Industries, AtS F. 2d 1223, 1229 (5th Cir.,

°1969). The court in that case applied the decision of this

Court in N. L. R. B. vy. Gissel Packing Co., 395 U. S. 575,

608 (1969), where the Court said ‘‘We therefore reject any

rule that requires a probe of an employee’s subjective mo-

. tivation as involving an. endless and unreliable inquiry.’’

Nev Srp in the present case the eirpuit court engages

ina hypotHetical probe of the state of mind of non- objecting

voters to reach a conclusion that the voters may not have

known what was involved in a simple ‘‘Yes’’-‘‘No’? choice

on the ballot. It is unthinkable that the court would con-.

sider itself free to invalidate a carefully controlled Board

election because of the use of English-language’ ballots

under the discretion of the experienced regional director,

while approving authorization cards in the English dan-

3. N. ZL. R. B. v. Seine and Line Fisherman’s Union of San

Pedro, 374 F. 2d 974, 981 (9th Cir., 1967), cert. denied, sub. nom.

Biazevich v. N. L. R. B., 389 U.S. 913 (1967) ; N. L. R. B. v. Park-

hurst Manufacturing Company,,317 F. 2d 513, 518 (8th Cin, 1963) ;

N. L. R. B. v. Red Bird Foods, 399 F. 2d 600, 602 (7th Cir.,

1968) ; N. L. R. B. v. Carolina Natural Gas Corp., 386 F. 2d 571,

575 (4th Cir., 1967); Kerner v. Celebrezze, 340°F. 2d 736, 740

(2d Cir., 1965), cert. denied sub. nom. Kerner v. Gardner, 382

U.S. 861 (1965) ; see also Yale Transportation Corp. v. U. S. 185

'F. Supp. 96, 107 (D: C. S.-D. N. Y., °1960) affirmed per curiam;

365 U. S. 566 (1961) ; Massachusetts Trustees of Eastern Gas &

Fuel Associates v. U. 8., 377 U. S. 235, 248 (1964).

‘guage which were obtained without any government super-

vision and without any bilingual notices.

_ 3. The conclusion of the court below that there is

a uniform Board policy concerning the use of multilingual

ballots is erroneous.‘ The court bases its conclusion solely

upon a series of letters which were solicited by the Com-

pany some nine months after the election® (R. 71-104).

4. An analysis of the record_reyeals that :

(a) four regional oftices of the Board did not set forth any.

policy (Regions 1, 6, 11,26; R. 75, 80,-84, 99).

(b)*eighteen regional offices indicated in substance that they

would exercise discretion depending on the facts in each

case (Regions 2, 4, 5, 7, 10, 12, 14, 15, 16, 17, 18, 19,

20, 21, 24, 25, 29, 31; R. 75, 76, 78, 79, 81, 83, 85, 87-94,

. 97, $8, 103). -

~ + (e) two regions and one Subregion peniye multilingual notices

but ballots are in English, excepf that when all voters

‘are Spanish one of these regions furnishes Spanish notices

av ballots (Regions 8, 13, subregion 38; R. 82, 86, 104).

(d) one regional office will furnish foreign language notices ;

and ballots on a ease by vase basis where a ma jority of

- the voters do not speak or jinderstand English (Region —

30; R. 102).

(e) four regional offices provide multilingual notices and bal-

lots when the parties so request (Regions 3, 22, 23, 28;

R. 76, 95, 96, 100).

(f} two regional offices and two subregional offices did not

reply (Regions 9, 27, subregions 36, 37).

As Region 8 furnishes Spanish language ballots only when all

voters are Spanish speaking, and Region 30 cid Gens Spanish lan-

guage ballots only when a ma jority are Spanish speaking, neither

of those offices would have furnished Spanish language ballots in

the circumstances of this case. The failure of the court below to

deal with the actual facts is thus glaringly illustrated. The opinion

below (A 7) specifically refers to Milwaukee, assuming incorrectly

that in Milwaukee the employees would have had Spanish ballots.

In fact Milwaukee; which is Region 30, would have denied Spanish

ballots because fewer than a majority of the employees herein were

Spanish speaking (R.102). - - .. :

5. The Company waived the right to a pre-election hearing

when it signed the stipulation for an election (R. 5). The question

of multilingual ballots could have been raised in such a hearing,

and in the event of an adverse ruling by the Regional Director

aence yee | rae

The letters are from a number of regional Board offices and

from an assistant executive secretary of’ fhe’ Board and

what the letters reveal is that the Board has both permitted

ynd encouraged its Regional Directors to establish diversi-

fied approaches to the problem of language differences

among voters,

-The letter from the assistant executive secretary, while

referring toa ‘“‘uniform policy’’, indicates that the regional

directors decide the question a’ the} deem it necessary

(R. 74). The ‘tuniform policy’’ thus consists of uniformly

leaving the question to the discretion of the teiogl Dre

tor, a policy clearly jeopardized by the decision ” Jin

‘The Thirteenth Region éentering .in. Chicago coyers

one of the most heavily industrialized and fnost diverse

ethnic areas in the country. From the tobaptife of the Act

until the time of this case, huge steel mills, auto plants and

countless offer industries have had elections of bargaining

agents in elections conducted pursuant to the policy of the.

regional director of: that office, and collective bargaining

has developed as the Cc ongress intended. This Court would

certainly take judicial notice of the fact that in.an area such

as Chicago the work force in a single plarit’ may include

numerous ethnie groups. Obviously jn such cases disere-

tion must be exercised, and Congress has directed that the

discretion should be that of the Board and not of the

Court of Appeals. '

It.is late in the day for the court below to substitute its

judgment for that of the Board to invalidate an election

conducted with the expertise that only this agency possesses.

the Company could have appealed it to the Board. Rules and

Regulations and Statements of Procedure, §§ 101.20, 102.63,

102.67(b), (c); 101:21(d). The Company made no .protest over

the Regional Director’s decision to use English ballots until the

election was over.

}

“a,

CONCLUSION.

For the reasons herein -set forth, this Petition for a

Writ of Certiorari to the Court of Appeals for the Fifth

Cireuit should be granted.

Respectfully submitted,

Haroup A. Karz,

Invite WH Friepmay,

| Cuartes Barnaul, Jr.,

es 7 South Dearborn Street,

Chicago, Illinois 60603,

Attorneys for Petitioner.

Karz & FriepMAN,

7 South Dearborn Street,

- Chicago, Ilinois 60603.

Howarp Scuutman,

1250 Broadway, ; Fra}

New York, New York 10001, i

‘

i y

Of Counsel. *

NERB Ter

2-6!

2 UNITED STATES OF AMERICA : Al

NATIONAL ‘LABOR RELATIONS‘BOARD

NOTICE OF ELECTION

RIGHTS OF EMPLOYEES

Under Section 7 of the Notional Labor Relations Act, employees have the right to self-

organization, to form, Join, or assist labor organizations, to bargain collectively through repre-

sentatives of thelr own choosing; and to engage in concerted activities, for the purpose of collective

bargaining or other mutual aid or protection, and shall also have the right to refrain from any oF

all such activities.

; PURPOSE OF ELECTION

An election by secret-bollot will be conducted, under the supervision of the Regional Director

of the National Labor Relations Board, among the eligible voters described herein, to determine the

2a if any, desired by them for the purpose of collective bargaining with their employer.

SECRET BALLOT

The election will be by SECRET ballot. Voters will be allowed to vote without interference,

restraint, or coercion. Electioneering will not be permitted at or near the polling place. Violo-

tions of these rules should be reported immediately to the Regional Director or his agent in charge

of the election. Your attention is called to Section 12 of the National Labor Relations Act:

ANY PERSON WHO SHALL WILLFULLY RESIST, PREVENT, IMPEDE OR

INTERFERE WITH ANY MEMBER OF THE BOARD OR ANY OF ITS AGENTS

OR AGENCIES IN THE PERFORMANCE OF DUTIES PURSUANT TO THIS ACT

SHALL BE PUNISHED BY A FINE OF NOT MORE THAN $5,000 OR BY

IMPRISONMENT FOR NOT MORE THAN ONE YEAR, OR BOTH.

An agent of the Board will hand a ballot to each eligible voter at the voting place. The

voter will then mark his ballot in secret in a voting booth and fold it. The voter will then personally

deposit the folded ballot in a ballot box under the supervision of an agent of the Board. A

majority of the valid ballots cast will determine the results of the election.

Incorporated herein, for your information only, is c copy of the official ballot.

: AUTHORIZED: OBSERVERS

Each of the interested porties may designate an equal number of observers, this number to

be determined by the Regiona) Director or his agent in charge of the election. These observers

» will (@) oct os checkers at the voting place and at the counting of ballots, (6) assist in the identi-

fication of voters, (c) challenge voters and ballots, and (d) otherwise assist the Regional Director

or his agent.

ELIGIBILITY RULES

Employees described under VOTING UNIT in this Notice of Election who did not work

during the designated payroll period because they were ill or on vacation or temporarily laid off

and employees in the military service of the United States who appear in person at the polls shall

be eligible to vote. Also eligible are those employees engaged in an economic strike which

commenced less than twelve (12) months before the election date and who retained their status as

such during the eligibility period, ond their replacements. Employees who have quit or been dis-

charged for cause since the designated payroll period and employees engaged in a strike who

have been discharged for cause since the commencement the:eof, and who have not been rehired

or reinstated prior to the date of the election,-and employees engaged in an economic strike which

commenced more than 12 months prior to the date of the election and who hove been permoa-

nently replaced, shall not be eligible to vote. t

CHALLENGE OF VOTERS %

The challenge of a voter MUST be made before the voter has deposited his ballot in the

ballot box.

INFORMATION CONCERNING ELECTION

The Act provides that only one valid representation election may be held in a 12-month._

period. Any employee who desires to obtain any further information concerning the terms and

conditions under which this election is to be held or who desires to raise any question concerning

the holding of an election, the voting unit, or eligibility rules may do so by communicating with

the Regional Director or his agent in charge of the election.

~*~

Marriott In-Flite Servies Division 13=RM-831

of Marriott-Hat Shoppes, Inc. VOTING UNIT Stipulation |

Those eligible to vote are all full time and regular part-time employees engage

in food, beverage, and equipment preparation, assembly, handling, receiving,

storage ard packing, including maintenanée employees, food and equipment handlers,

food and equipment helpers, dispatche:s, coordinators and plant clerical employees

employed at the Employ*r's Shoppes No. 392 and 395, O'Hare International Airport,

Chicago, illinois ani the Sup) cyer's Shoppe Ne. 391 at 9864 Leland Avenue, Schiller

Park, Illinois whe were employed during the payroll perica ending February 11, 1966,

but excluding office clerizal employees, guards, professional employees and super-

visors as defined in the Act.

DATE: Marci. 13, 1966

(1) Shorpe 392 (2) Shoppe 391 (3) Shoppe 395

9:00 am to 11:30 au P 7:00 am to 8:30 am 7:00 am to 8:30 an

4:00 pm to 6: pm 1:00 pai to 3:00 pm 1:00 pm to 3:00 pm

8:00 pm to 9:W0 pm 7:00 pm to 6:00 pm 7:00 pm to 8:00 pm

Procurement area near beck dock . Crear iivor Dry fooa storage

xveom, lower level

Employees may vote during working hours and wiil be released to vote by a Board

agent in accordance with a schedule to be posted by the Employer. Employees who

are unable to vote during their scheduled voting times will be released to vote

at other times during voting hours by a 304rd agent. If an employee is not working

during one or more of tne scheduled voting periods, he may vote at any time during

APPENDIX A.

hese. voting periods.

UNITED STATES OF AMERICA

National Labor Relations Board

OFFICIAL SECRET \_e

FOR CERTAIN EMP F

OTT-H :

‘ MARRIOTT IN-FLITE SERV

f collective bargaining by -

u wish epiesepii-

CAL 300, UNITED INDUSTRIAL WORKERS OF AMERICA, TRANSPORTATION

SERVICES AND ALLIED WORKERS, SkaFAKERS* INTERNATIONAL UNION OF

NORTH AMERICA, AFL-CIO

oe es

Pe ebee ey ete

MARK AN "X" IN THE SQUARE OF YCUR -HOICE

YES NO

i | P|

SP RIEEEIRETAtcdentte HORE HENRICO toe tote

DO NOT SiGN THIS BALLOT Fold and drop ir bailot box

If you spoil this baiict retura itt: cre Guard Ageiit for 2 new one

THIS IS THE ONLY OFFICIAL NOTICE OF THIS section AND MUST NOT BE DEFACED BY ANYONE

US GOVERNMENT PRINTING OFFICE 1968

o-n

LARUE TRE SOU RRIM ITS rg >

at Men Moa): 4

- ;

od | | ESTADOS UNIDOS DE AMERIGA

; ~ JUNTA NACIONAL DE RELACIONES DEL 16

VISO DE E

_ Marriott In-Flite Services Division |

DERECHOS DE LOS EMPLEADOS

Bajo el Articulo 7 de la Ley Nacional de Relaciones del Trabajo, los empleados tienen el derecho a

organizarse, constituir, ingresar en o ayudar a organizaciones obreras, negociar colectivamente a través

de representantes seleccionados por ellos mismos, y a participar en actividades concertadas con el propdsito

de negociar colectivamente u otro fin de ayuda o proteccién mutua, y también tendrin derecho a abstenerse

de participar en cualesquiera de dichas actividades o todas ellas.

PROPOSITO DE LA ELECCION. “Ra

Una eleccién por papeleca secreta se Ilevaré a cabo bajo la supervision del Director Regional de la

Junta Nacional de Relaciones del Trabajo entre los votantes elegibles aqui descritos, para determinar el

representante, si alguno, que ellos desean con el fin de negociar colectivamente con se patrono.

PAPELETA SECRETA

La eleccién seri por medio de papeleta SECRETA. A los votantes se les permitira votar sin interven-

cién, restriccién o coercién. No se permitiré hacer campafia electoral en o cerca del sitio de votar. Las

violaciones a estas reglas deberian ser informadas inmediatamente al Director Regional o a su agente a

cargo de la eleccién. Se llama su atencién hacia la Seccién 12 de la Ley Nacional de Relacibnes del Trabajo:

CUALQUIER PERSONA QUE VOLUNTARIAMENTE RESISTA, EVITE, IMPIDA O

INTERVENGA CON CUALQUIER MIEMBRO DE LA JUNTA O CUALQUIERA DE SUS

AGENTES O AGENCIAS EN EL DESEMPENO DE SUS DEBERES EN EL CUMPLIMIENTO

DE ESTA LEY, SERA CASTIGADA CON UNA MULTA DE NO MAS DE $5, _ O PRISON

QUE NO EXCEDERA-DE UN ANO, O AMBAS PENAS.

Un agente de la Junta entregara una papeleta a cada uno de los votantes elegibles en el sitio de votar.

El votante entonces marcaré la papeleta secretar-ente en una caseta de votar y If doblara. Entonces el

votante personalmente depositaré la papeleta doblada en una urna electoral bajo la supervision de un

agente de la Junta. La mayoria de las papeletas vilidas depositadas determinarén los resultados de la

eleccién.

Para su informacién Gnicamente se incorpora aqui una copia de la papeleta oficial.

OBSERVADORES AUTORIZADOS

Cada una de las partes i das puede brar igual namero de observadores, cuyo namero ha

de ser determinado por el Director Regional o su agente a cargo de la elecciédn. Estos observadores

tendrin que: (a) actuar como verificadores en el sitio de votar y al contarse las papeletas, (b) ayudar en

la identificacién de los votantes, (c) recusar votantes y papeletas, y (d) en cualquier otra forma ayudar

al Director Regional o a su agente.

“REGLAS DE ELEGIBILIDAD

Los empleados descritos bajo UNIDAD DE VOTANTES enveste Aviso de Eleccién que no trabajaron

durante el periodo de némina que se ha designado por haber estado enfermos o de vacaciones a suspen-

didos poral , y los empleados que estén en las fuerzas armadas de los Estados Unidos que acudan

personalmente a la eleccién, serin elegibles para votar. También son elegibles aquellos empleados que

participen en una huelga econémica que haya comenzado menos de doce (12) meses antes de la fecha

de la eleccién y que hayan retenido su status como tales durante el periodo de elegibilidad, y los em-

pleados que los han reemplazado. Aquellos se neat a8 han dejado el trabajo o que hayan sido

despedidos, por causa a partir del periodo de némina designado y aquellos empleados que participen en

una huelga quienes hayan sido despedidos por causa desde que comenz6 la misma, y quienes no han sido

reempleados © reinstalados antes de la fecha de la eleccién, y aquellos empleados que participen en una

huelga ec ica que ¢ 6 mas de 12 meses antes de la fecha de la eleccion y quienes han sido

reemplazados permanentemente, no seran elegibles para votar.

: RECUSACION DE VOTANTES

La recusacién de un votante DEBE ser hecha antes del votante deposi su papel en la urna

electoral.

INFORMACION CONCERNIENTE A LA ELECCION:

Le Ley dispone que sélo una eleccion valida de representacién podra celebrarse dentro de un periodo de

doce meses. Cualquier empleado que desee obtener informacién adicional concerniente # los términos y

condiciones bajo los cuales se Mevaré a cabo esta eleccién, o que desee plantear cualquier cuestion

concerniente a la celebracién de una eleccién, la unidad de o reglas de elegibilidad, lo podra

hacer comunicindose con el Director Regional o su agente a cargo de la eleccién.

940802

wks AP eal a,

| Shay és

Fi ¥ 2— wie <a ry

a 7% 4 fz " & | /

saiol? “

ECCION —

“RH Estipulaeiéo

of Marriott-Hot Shoppes, Inc. { DE VOTACION

Tendran derecho a votar todos los trabajadores trabajando sea todo el tiempi o

part-time en la preparacién de alimentos,bebidas o ecquipo,en cl montaje,mancjo,

rcecepcién,almacenaje y embalajc,incluyendo trabajadores de menteniniento, mane ja-

dores de alimentos y equipos,ayudantes en alimcntos y equips,despachadores,coor-

dinadores y oficinistas en la planta quienes trabajaron durant el perfodo de la

planilla de salapios qu° terminé el 11 de Febfero do 1966,en los Talleres de le

Compafifa Nos.392 y 395, 1 Aeropuerto Internacional O'Hare, Chicago,Illinois y cn

Feller No.391 de la Compafifa en 9864 Leland Avenue,Schiler Park,Illinois,ocro se

excluyen los oficinistas de la Administracién,los vigilantes,los empleados técni-

cos y los supervisores segtn lo dcterminady bufo la Ley.

FECHi: 18 de o de 1966

(1) Taller 392 (2) Taller 391 3) Taller 395 2

9:00 am a 11:30 am 7:00 am a 8:30 an 7:00 am a 8:30 an

4:00 pn a 6:00 pm 1:00 pm a 3:0 pn 1:00 pm a 3:00 pn

8:00 pm a 9:00 pm 7:00 pm a 8:00 pm 7:00 pm 2 8:00 ph

Almacén de aliméntos deshidrata-

dos, nivel inferior.

Arca de Procuramento

cerca de doque posterior Sela de Crem

Los trabajedores podrfn votar curante horas de travajo y obtendar permiso para

votar por un agente de la Junta de acuerdo e un norario que ensefiaré la Comparifa.

Los que no podrdn vetar curante las heras programadas :ie votacién recibirfn perni-

so para vctar durante otras hres de vstacién per el agente de la Junta. De no

trabajar Curante uno o més de les horarios de vtacién programados, tal obrero

podré vctar en cualquier riciwnto durante los perfodos de votacién sefialados.

UNITED STATES OF AMERICA

National Labor Relations Board

OFFICIAL oe B

FOR CERTAIN

MARRIOTT IN-FLITE oR ~

: Teh Aste Sarpeces df collective bargaining by -

300, UNITED INDUSTRIAL WORKERS OF AMERICA, TRANSPORTATION

SERVICES AND ALLIED WORKERS, SEAFARERS‘ INTERNATIONAL UNION OF

NORTH AMERICA, AFL-CIO

MARK AN "'X"' IN THE SQUARE OF YOUR CHOICE

YES NO

ESTE ES EL UNICO AVISO OFICIAL DE ESTA ELECCION Y NO DEBE SER MUTILADO POR NADIE

CO NO? SIGN THIS BALLOT. Foid and drop in nallot box.

urn it to the Board Agent for a new one

US GOVERNMENT PRINTING OFFICE 1061 OF —ee1E80

Sct, “ae ee

S Qe Uae bree a

APPENDIX B.

OPINIONS BELOW. :

Ix rue Unitrep States Court oF APPEALS

For the Fifth Cireuit.

No. 26177. ¢

Geis Pinks Services Division oF MARRIOTT

CorPoraTION,

\ Sora 3 Petitioner-Respondent,

Vs.

NationaL Lasor ReLAtIons Boarp,

Respondent-Petitioner.

Anp ReEversE TITLE.

PETITION TO REVIEW AND CROSS-APPLICATION FOR ENFORCE-

MENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS

BOARD (FLORIDA CASE). F

Na a rar ET HN * B ie

(October 7, 1969) ae aoe

Before Wispom and CARSWELL Circuit Jud es, and

’ ®

RoBERTs, District J udge.

Wispom, Circuit Judge: Marriott In-Flite Services: Di-.

vision of Marriott Corp. challenges the manner in which the

Labor Board conducted a representation election, and par-

: A4 )

ticularly the Board’s refusal to provide ballots in Spanish

for Spanish-speaking employees. We agree with the em-

ployer that the Board’s policies do require that foreign-

language ballots be available where a substantial number of

eligible employees do not speak English, and that such bal-

lots must be provided to allow a fair election. We therefore

set aside the order of the Board.

Marriott, with its principal place of business in Georgia,

employs about 640 people in three ‘‘flight kitchens”’ at

O’Hare Airport near Chicago. The company provides food

and beverages for airlines to use on their flights.

On February 9, 1966, Local 300, United Industrial Work-

ers of America, Seafarers International Union of North

America, AFL-CIO asked for recognition by Marriott as_

the statutory bargaining agent for employees of the O’Hare

kitchens, on the ground that it had an authorization-card

majority. ‘Marriott withheld recognition, and filed a peti-

tion for an election with, the Board’s Office for Region 13 in

Chicago. “

“On ‘Sehiunty 21 lawyers for the union and the company

met with a representative of the Regional Office to agree

upon election procedures and details. Both sides asked

that the Board provide election notices and ballots in Span-

ish as well as English, since one-third of the employees in the

unit spoke and understood Spanish only. The Board rep-

resentative agreed with regard to the notices and said that

he would arrange for ballots in Spanish if the Board’s

policies permitted them. The union and the company then

signed a stipulation, incorporating the various procedures

to apply at the consent election. They agreed, among other

things, that |

. Said election shall be held in accordance with the

National Labor Relations Act, the Board’s Rules and

Regulations, and the applicable procedures and policies

of the Board, a

The election notices distributed by the Board were, ex-

cept for a sample ballot, bilingual. At the election on

March 18 however, only ballots in English were provided.

The union won the ballotting, 299 to 203 with 60 ballots

challenged and still unopened. The company filed objections

to the election on March 25, alleging 15 separate defects,

and requested a hearing on any relevant issues of fact. The

Regional Director recommended, without a hearing, over-

ruling 14 of the 15 objections on the basis of the evidence —

submitted by the parties. He directed a hearing on the

other issue, whether the election should be set aside because

of certain alleged threats, coercion, and violence. ' Under

Section 102.69 (d) and (e) of its rules, the Board ordered

the recommended hearing, after which the hearing exam-

iner concluded that the company’s objection should be over:

ruled..The Board then adopted the findings of the hearing

examiner as well as the findings of the Regional Director

on the remaining issues. It certified Local 300 as the bar-.

gaining agent for the unit on June 16, 1967. The company,

however, refused to bargain with the union. The union filed

unfair labor practice charges under § 8(a) (5) of the Act.

The Board held that the election had been valid, and or-

dered the company to bargain witlr Local 300 as the statu-

tory bargaining agent for the unit.

‘

Marriott directs our attention first to the Labor Board’s

policy and practice with regard to foreign-language ballots.’

The Board, in conducting representation elections, has al-

most uniformly provided such ballots where foreign speak-

ing employeés comprise a substantial portion of the eligible

1. The unfair labor practice procedure is, of course, a proper

method of obtaining review of the record of the representation

election proceedings. See, e.g., NLRB v. Tampa Crown Distrib-

utors, Inc., 5 Cir. 1959, 272 F.- 2d. 470.

A6 -

voters. The record in the case before us contains letters to

Marriott’s lawyer from the Board’s regional. offices about

their respective practice in this regard. ‘Of those regions

in which the question had been raised, only one, Region 13_

(where this case originated), replied that it does not pro-

vide foreignianguage ballots. The eighteen other regions

that had considered the problem stated unanimously that

they had or would, when the occasion arose, employ foreign-

language ballots.2. More importantly, the Associate Hxecu-

tive Secretary of the Labor Board declared that ‘‘the

Agency does have a uniform policy’? on such ballots, and

he went on to describe it:

‘*As the [Regional | Director deems it necessary, ‘elec-

tion notices in a foreign language may be posted and

in such eases, the foreign language used on the notite

should also appear on the ballot. Because many of our

Regions have no. recourse to sich a procedure, it is

undérstandable that some of them may have advised

you that their policy is contrary to that stated above.’

Further indication of the Board’s policy appears in

Fibre Leather Mfg. Corp., 1967, 167 NLRB No. 57, 66

LRRM 1056, in which the Board set aside an clection where

only English ballots had been available, and where less

than one-fourth of the eligible voters could not understand

English. There the Board said,

‘swe are not satisfied that the conditions under which

the election was conducted were such as to assure the

effective and informed expression by all employees of

their true desire.’’ 66 LRRM at 1057.

2. eave affirmatively were Regions 2 (New York), °

(Buffalo), 4 (Philadelphia), 7 (Detroit), 8 (Cleveland), ‘3

(Tampa), 15 (New Orleans), 16 (Fort Worth), 17 (Kansas City),

‘20 (San Francisco), 21 (Los Angeles), 22 (Newark), 23 (Houston),

24 (San Juan), 28 (Albuquerque), 29 (Brooklyn), 30 (Milwau-

kee), and 31 (Loh A Angeles). _

Region 8 said*that it provides foreign-language ballots only

when all members of the quit speak the same foreign language.

. 7 \ AT.

In contrast with the Board’s ‘‘uniform policy’’, Re-|

gion 13 at the time this case arose had a policy never

to grant foreign-language balloting. The regional office

wrote to Marriott’s lawyer that ‘‘all our ballots are

printed in English and we have made no exception to

this rule’’.. Region 13, in other words has refused in

the past to make even the case-by-case determination of

need mandated by the ‘‘uniform policy’’ of the Board in

Washington. (We should stress the reference to the past, ’

because Region 13 has more recently announced that it

will in the future provide foreign-language ballots where

a language problem exists. This about-face further points

up the isolated nature of the Region’s former ‘rule re-

quiring English ballots.)

From the record before us it appears, therefore, that

the Board, through its agents, allowed employees certain

rights in ‘one geographic area, and different, more exten-

‘sive, rights in all other geographic areas without offering

any justification for the disparate treatment. The agency

fails to explain why the difficulties Chicago employees

have with English condemn them to more restricted voting

rights than those enjoyed by similarly handicapped work-

ers in Milwaukee. If the agency establishes a general

policy and then departs from it, judicial approval of the

‘departure will be withheld in the absence of an explana-

tion. Thus jn Rayonier, Inc. v. NLRB, 5 Cir. 1967, 380

F. 2d 187, we denied enforcement of a Board order and

quoted approvingly the following language of Judge

Aldrich :

' “¢The Board is free, of course, to make changes in

policy, but the seridusness of this one, if that is what

it is, would call not only for deep and mature thought,

but for the assembly of the most cogent reasons. In the

Board’s opinion I \find neither.’ Northeast Airlines v.

C. A. B., 1 Cir. 1964, 331 F. 2d 589.’’ 380 F. 2d at 190.

- Similarly, Judge Brown, concurring in Mary Carter

Paint Co. v. FTC, 5 Cir. 1964, 333 F. 2d 654, rev’d.on other

grounds, 1965, 382 U. 8. 46, 86S, Ct. 219, 15 L. Ed. 2d

145, pointed out that

‘*{the] law does not permit an agency to grant to

one person the right to do that whick it denies to

another similarly situated. There may not be a rule

for 1 aren another for Tuesday, a rule for general

application, but denied outright in a specific case.’’

That deseription fits exactly the Board’s conduct here.

More recently, in Delta Drilling Co. v. NLRB, 5 Cir.

1969, 406 F. 2d 109, this Court set aside an election in which

the Board’s agent had stopped off at a union repre-

sentatives’s motel room while carrying the ballots away

from the polling place. No evidence of ballot-tampering

appeared. We noted, however, that the agent’s behavior

violated ‘‘established Board policy’’, .......... Ws ee Oe es

and that ‘*{s]uch policies are controlling until the Board

announces a change and its reasons for the change.’’

re A F.2d at... The Court in Delta Drilling also

stressed the binding nature of a consent agreement}, saying

that an employer who enters into it ‘‘relying upon the un-

flinching preservation of Broad policy, is entitled to the

benefit of the reliance””’. ......... F. 2d at.......... In our ease, As in

Delta Drilling, the consent agreement provided that election

procedures would follow Board policy, and the agreement

is therefore an added reason for requiring adherence to

that policy.

The Board in its brief denies that it follows the practices

and policies attributed to it by, Marriott. It notes that in

Fibre Leather Mfg. Corp., neither the election notices nor-

the ballots had been bilingual, while in the present case at

least the notices had been printed,in Spanish. The Board

also points to the decision in Thomas A. Nelson d/b/a Trio

Metal Cap. Co., 1967, 168 NLRB No. 105, as further proof

that the alleged policy does not exist. In Nelson the Board

refused to set aside an election where the ballots had been

in English only, but where the election notices had been

bilingual. | .

_ We do not find theye arguments persuasive. The grounds

for distinguishing. Fibre Leather; i.e. the absence of bi-

lingual election notices are clearly refuted by the letter of

the Associate Executive Director, which was written after

Nelson, and which speaks explicitly of the need for foreign-

language notices and ballots. Nor is it dispositive that

the Board approved, after the fact, the Regional Director’s .

denial of foreign-language ballots in Nelson. Nelgon arose

in Region 13, where the present case also originated. It

merely emphasizes that that region was out of step with

the rest of the country. The Board cannot, by retrospective

adjudication, will away the policy that is actually being

enforeed by its agents and officers in day-to-day practice.

After Nelson, as we noted, all regions save one continued to

provide ballots in foreign languages; the Board accepted

their policy as its own. As we said in Delta Drilling,

‘*Board policy is to be ascertained by its acts and de-

cisions’’. F. 2d _........ The aets deseribed by the

various regions and summarized by the Associate Execu-

tive Director are what we look to here, and we cannot

escape the fact that while Region 13 followed one rule,

Washington and the other regions were following another.

More fundamental than the hobgoblin of little minds

is the requirement that minimum standards of fairness

must be met for an election to be valid:

‘In election proceedings, it is the function of the

Board to provide ‘a laboratory’ in which an _experi-

ment to determine the uninhibited desires of the em-

ployees may be conducted under conditions as nearly

ideal as possible. When and if the standards of elec-

tion campaigning drop too low, the requisite laboratory

conditions are not present, and the experiment must

be conducted over again. General Shoe Corporation,

77 NLRB No. 18, 21 LRRM 1337, 1341 (1949).’’

See also Electra Mfg. Co. v. NLRB, 5 Cir. 1969, ....... F. 2d

ssciniots , Tyler Pipe and Foundry Co. v. NLRB, 5 Cir. 1969,

aki , F. 2d ........, and NLRB y. Monroe Auto Equipment

., Hartwell Div., 5 Cir. 1969, ........... tt eee ;

2 A10

An election in which one-third of the electorate has no

access to ballots in language that it can understand neces-

sarily falls below the minimum laboratory standards of

fairness. The ‘‘uniform policy’’ of the Board in providing

such ballots does not prove that they are required by

statute, but it is evidence of their importance. Even with-

out that evidence, however, common sense leads us to the

same conclusion: it would be whimsical to establish meticu-

lous safeguards against coercion,® misinformation,* and

corruption’ if a sizeable portion of the electorate, though

untrammeled in its choice, does not know how to exercise it.

We can think of few things more fundamental to a demo-

cratic selection of labor representatives that the ability of

the polity to cast an intelligent vote. — E

The Board’s brief does not dispute this point. It em-

phasizes instead the auxiliary methods, other than the

printed ballot, by which the Spanish-speaking voter might

have been managed to vote according to his choice. The

Board points to the bilingual election notices, the presence

of Spanish-speaking officials at the polls, and the simple

‘*ves-no’’ choice that appeared on the ballot. Even those

w who did not receive help from the officials, says the Board,

3. See, OMe» NLRB v. Tampa Crown Distributors, Inc., 5 Cir.

1959, 272 F. 2d 470.

)

4. See, ¢.q., Electra Mfg. Co. v. NLRB, 5 Cir. 1969, F. 2d.

5. See, ¢.g.. Delta Drilling-Co, v, NLRB, 5 Cir. 1969, F. 2d.

a»

All

could hardly have mistaken the basic English words ‘‘yes”’

and ‘‘no’’. ,

We do not find the curative effects of notices and

observers, or the simplicity of the ballot adequate to save

this election. Notices are not always read. (The ones here

contained no sample ballot in Spanish anyway.) Voters

may be embarrassed about their unfamiliarity with English

and may either vote in ignorance or stay away from. the

polls. Moreover, the voter’s ability to recognize ‘‘yes’’ and

‘no’? may not put an end to his problems. As Marriott

points out, he must read the questidn and instructions on

the ballot as well, and these may prove more troublesome.

These are possibilities that cannot be resolved by specula-

tion. Given the initial defect of improperly denied ballots,

the party challenging the election should not have to

prove actual prejudice to the outcome. That apparently

was the conclusion the the Board in Fibre Leather. In that

ease there were no void ballots east, in contrast to the.

80 percent of the eligible voters who cast ballots in the

Marriott election, more than 98 percent did so in Fibre

Leather. Furthermore, just as no one in the present case

asked for help in voting,.a factor cited by the Board, so too

in Fibre Leather ‘‘no employee approached either of the

bilingual observers to ask a question or request assist-

ance’’.®

6. In Delta Drilling, 406 F. 2d at 112 this Court quoted with

approval the following language from Athbro Precision Engineer-

ing Corp.. 166 NLRB No. 116, 65 LRRM 1699:

‘‘The Employer does not claim any violation of the integrity

of the ballot box, nor does it claim that the conduct of the

_ Board Agent had any effect upon the four employees who later

voted. Rather, it objects that the behavior of the Board Agent

gave an appearance of irregularity to the conduct of the

election thus departing from the standards of integrity which

the Board seeks to maintain.

“‘The Regional Director, while observing that a Board Agent

in charge of an election should not fraternize with a répre-

sentative of one of the parties in the interim between two

ps ae

The Board further suggests that in a labor election pro-

visions should not be read to grant voters’ rights that are

more liberal than those guaranteed in political elections,

citing NLRB v. A. J. Tower Co., 1946, 329 U.S. 324, ..........

Hat & Se , 91 L. Ed. 322. The Supreme Court in Tower

made no such holding, but did say, among other things that,

‘the Board must act so as to give effect to the principle

of majority rule set forth in § 9(a), a rule that ‘is sane-

tioned by our governmental practices by business pro-

cedure, and by the whole philosophy of the democratic

institutions. S. Rep. No. 573, 74th Cong. Ist Sess. p. 13.

It is within this ‘democratic framework that the Board

must adopt policies and promulgate rules and regula-

tions in order that employees’ votes may be recorded

accurately, efficiently and speedily.’ 329 U. S. at 331,

aes S. Ct. at .........,91 L. Ed. at 327.”’

The Court also stressed the need for ‘‘practical adjust-

ments designed to protect the election machinery from the

ever-present dangers of abuse and fraud.’’ 529 Ha at

331. The practical problems of providing ballots fof every

linguistic minority in a large state are quite different from

the practical. problems of providing 200 ballots in one lan-

guage and 440 in another. What comprises fairness to the

minority in the one case does not necessarily define fairness

balloting periods, nevertheless did not recommend setting

aside the election. Although the Board Agent’s conduct did

not affect the votes of employees, we do not agree that this

is the only test to apply.

‘‘The Board in conducting representation elections must

maintain and protect the integrity and neutrality of its pro-

cedures. The commission of an act by a Board Agent conduct-

ing an election which tends to destroy confidence in the

soard’s election process, or which could reasonably be inter-

preted as impugning the election standards we seek to main-

tain, is a sufficient basis for setting aside that election.

‘In the circumstances of this case we hereby sustain the °

Employer’s objections. Accordingly, we shall set aside the

election and direct that a second ‘election be held.’’

Al3

to the minority in the other. If nothing else, the ‘‘uniform

policy’’ of the Board attests to the feasibility of accom-

modating foreign-speaking employees.

Il.

The intervenor, Local 300, and the Board both argue that

even if the company had a valid objection to the balloting

procedure, the objection was lost when the company failed

to appeal before the election from the Regional Director’s

decision. The record shows, however, that the Stipulation

for Certification Upon Consent contained a commitment

from the Board to conduct the election according to the

‘‘applicable procedures and policigs of the Board’’. Since,

as we have said, the Boafd’s polis supported the request

made by both the union nd the epmpany at the time, and

sincd the Board ejaengs ad agreed to provide Spanish bal-

lots if policy: permittéd, there was no need to pursue the

matter farther.<"No waiver occurred.

Accordingly, we set aside the election of March 18, 1966

and direct that another election be held. We find no merit

to the employer’s other contentions.

ENFORCEMENT DENIED.

ie Alt

APPENDIX C.

Unirep Srates Court oF APPEALS

For the Fifth Cireuit.

Marriorr In-FLITE SERVICES, _)

Division oF Marriorr Corporation,

Petitioner-Respondent,

fa ’ No. 26177.

Nationa Lasor Revations Boarp,

Respondent-Petitioner. }

JUDGMENT. .

Before: Wuispom and Carswe., Circuit Judges, and Ros-

ents, District Judge. ;

Tus CAUSE came on to be heard upon the petition of

Marriott In-Flite Services Division of Marriott Corpora-

tion, to review an order of the National Labor Relations

Board dated May 24, 1968, directed against Marriott In-

Flite Services Division of Marriott Corporation, its officers,

agents, successors, and assigns, and upon the Board’s

éross-application for enforcement of its order. The Court

hcard argument of respective counsel on June 18, 1969, and

has considered the briefs and transcript of record filed in

this cause. On October 7, 1969, the Court, being fally ad-

vised in the premises, handed down its decision denying

enforcement of the Bogfd’s Order. * oo

5 | Al5

ON CONSIDERATION WHEREOF, it is ordered and adjudged

by the United States Court of Appeals for the Fifth Cir- -

cuit that enforcement of the order of the National Labor

Relations Board directed against Marriott In-F lite Serv-

ices Division of Marriott Corporation, its officers, agents,

successors, and assigns be and it hereby is denied. ©

E\nteren: October 7, 1969.

Al6

APPENDIX D.

171 NLRB No. 102 = -—-679

Chicago, Illinois

Unitep SraTes oF AMERICA

BEFoRE THE NaTIONAL LaBor RELATIONS Boarp.

Marriott In-FLIteE SERVICES,

Diviston or Marriort Corporation,’

and

Locate 300, Uniren Inpustriar j Case No.

Workers or AMERICA, TRANSPOR- [ 13-CA-7971.

TATION SERVICES -AND ALLIED

Workers, Seararers’ INTERNA-

TIONAL Union oF Norto AMERICA,

AFL-CIO. :

DECISION AND ORDER.

Upon a charge filed by Loegal 300, United Industrial

Workers of America, Transportation Semices and Allied

Workers, Seafarers International Union of North America,

AFL-CIO, herein called the Union, the General Counsel of

the National Labor Relations Board, by the Regional Di-

rector for Region 13, issued afcomplaint dated August 9,

1967, against Marriot In-Flite Services, Division of Mar-

riott Corporation, herein called Respondent, alleging that

1. Pursuant to a stipulation of the parties at the hearing, the

name of the Respondent was amended to reflect the suecessorship.

of Marriott Corporation to the business of Marriott-Hot Shoppes,

Inc., in 1967. ‘

; A17

; :

the Respondent had engaged in.and was engaging in un-

fair labor practices within the meaning of Section 8(a) (5)

-and (1) and Section 2(6) and (7) of the National Labor

Relations Act, as amended. Copies of the charge, com-

plaint, and notice of hearing before a Trial Examiner were

duly served upon the. Respondent.

With respect to the unfair labor practices, the complaint

alleges, in substance, that on or about June 16, 1967, the

Union was duly certified by the Board? as exclusive rep-

resentative.of Respondent’s employees in the unit found

appropriate by the Board and thereafter on June 26, 1967,

requested that the Respondent bargain with it; that since

on or about June 27, 1967, and thereafter the Respondent

has refused and is refusing to recognize or bargain with the

,Union as such exclusive bargaining representative, al-

though the Union has requested and is requesting it to do

so. On August 21, 1967, the Respondent filed its Answer,

denying the’commission of the unfair -labor practices and

alleging as affirmative defense that the National Labor Re-

lations Board lacks Jurisdiction because the Respondent is

not an employer within the meaning of Section 2(2) of the

Act and its employees are not employees within the mean-

ing of Section 2(3) of the Act, but are employees under the

Railway Labor Act; and further that. it should have been

granted a new election, particularly with respect to its

Objection No. 10 wherein the Regional Director refused to

supply foreign language ballots, and that the election held

did not give rise to a valid election or certification.

On August 24, 1967, the General Counsel filed with the

Board a Motion for Summary Judgment, asserting, in view

of the admissions by the Respondent contained in its An-

swer, Respondent’s failure to deny or explain certain other

_ allegations of the Complaint, and its written admissions an-

ag Decision and Certification of Representative in Case No.

3-RM-831, unpublished.

Als

nexed as appendices’ to the moving papers, that there are:

no issues of fact or law requiring a hearing, and praying _

the issuance of a Decision and Order finding the violations

as alleged in the Complaint. Shortly theraftter, the Charg-

ing Party filed a Motion for Summary Sutomest joining in

the General Counsel’s argument in support of its motion.

Jn addition, it moved that the Board’s remedy for the vio-

lation include compensation for all employees of the Re-

spondent for the ‘‘monetary value of the minimum addi-

ional benetits, if any, including wages, which it is reason-

able to conclude that the Union would have been able to ob-

tain through collective bargaining with the (R)espondent”’

as recommended by the Trial Examiner in E.x-Cell-O Cor-

poration, Case No. 25-CA-2377.2 On August 29, 1967, the

Board issued an Order Transferring Proceeding to the

Board, and on the same date, a Notice to Show Cause. on or

. before September 12, 1967, why the General Counsel’s Mo-

tion for Summary Judgment should not be granted. On

September 27, 1967, the Respondent filed an Answer to said

Notice to Show Cause and a brief in support.

Pursuant to the provisions of section 3(b) of the Act, the

Board has delegated its powers in connection with this case

to a three-member panel.

Upon the entire record in this case, the Board makes the

following:

‘Ruling on Motion for Summary Judgment.

In its Answer to Show Cause and Memo in Support,

Respondent contended that the question of its status as

an employer under Section 2(2) of the.Act should be certi-

.fied to the National Mediation Board, or the proceeding

3. We deem it inappropriate in this case to depart from our

existing poliey with respect to remedial orders in cases involving

violations of Section 8(a)(5), and therefore deny the remedy

requested. Monroe Equipment Company, 164 NLRB No. 144. ,

ee. :

remanded. to a Trial Examiner for hearing on this ques-

tion; that the underlying certification is invalid because

foreign language ballots were not provided as the Board‘

has since seen fit to provide in Fibre Leather Mfg. Co., 167

NLRB No. 51; that Respondent is entitled to a hearing at

some stage of the proceeding to determine whether the

totality of the conduct objected to destroyed laboratory

conditions for the underlying election; that summary judg- ;

ment is inappropriate because of néw evidence with respect

to .Respondent’s Objection No. 10 concerning foreign lan-

guage ballots in that the same Region now provides foreign

language ballots: and that Respondent, since July 1, 1967,

is entitled under Section 3 of the Administrative Procedure

Act to consult internal directives of-the Board ‘‘some of

which undoubtedly pertain’? to Board procedures With

respect to foreign language ballots, which Respondent

views as previously unavailable ‘evidence’? entitling it to

a hearing on its Objection No. 10. } -

Respondent’s request for a hearing on the Section 2(2)

question has since been granted with, the results herein-

after indicated. The other contentions constitute an at-

tempt to relitigate matters fully litigated during the repre-

sentation proceeding, including the Respondent’s conten-

tion that it is now entitled to a hearing on Objection No. 10.4

4: We distinguish Fibre Leather Mfg. Corp., 167 NURB No. 51,

which issued in September 1967, in that the Notices of Election

posted in that ease were in English only, whereas here the Notices ~

were provided in Spanish as well as English. The sample’ ballot

attached to both the Spanish and English notices was printed

in English, in the form distributed at the polls. Thus a sample

ballot in English was available for advance consideration by the

employees along with notices explaining the election procedure

in both languages. In addition, the ballot was a simple one, having

the name of only one union and the usual squares for marking&

by the voter, one with ‘‘ves’’ written above and one with ‘‘no’’.

The word ‘no”’ is the same in both Spanish and English. We are

not persuaded that Spanish speaking employees gainfully em-

ployed in the United States fail to comprehend that ‘‘yes’’ and

**si’? mean the same thing. In supplying ballots in English along

A20

The record before us establishes that on February 11,

1966, the Employer filed a petition in Case No. 13-RM-831,

seeking to determine whether the Union represents em-

ployees in the salt Some appropriate herein. An election

was conducted Métrch 18, 1945. The tally of ballots showed

that there were approximately 618 eligible voters, and that

563 ballots were cast, of which 299 were for the Union, 203

‘against the Union, 60 were challenged, and 1 was void.

Ou March 25, the Respondent timely filed objections to

the conduct of the election, and to the conduct affecting the

results of the election. The Board deferred ruling on the

Regional Director’s Report and ordered a hearing before

a Hearing Officer for the purpose of taking. testimony to

resolve the issue raised by the Respondent in its Objection

No. 12.° The hearing was held September 26, 27, 28, and 30

and October 5, 18, 20, and 26, following which the Hearing

Officer issued his ‘‘Report on Objection No. 12,’’ dated -

January -6, 1967, concluding thaf the evidence of conduct

presented by the Respondent failed to support either of its

with notices in “appropriate foreign languages, the Regional Diree-

tor for Region 13 has in the past preceeded-on the’principle that

secrecy of the bailot is, to a degree, violated whenever a block of

votes, by reason of language, can be identified when tounted. The

Regional Director, we believe, was within bis diseretion. in so pro-

ceeding. The view that ballots and notices og" ordinarily be in

the same language is also sound, Ilere we thote the lack of. any

showing that. voter misunderstanding resulted from the English

ballots explained by the Spanish Notices of Election. The Respond-

ent’s contention that, there ‘‘may’’ have been language confusion

is entirely speculative. The official observers for both parties ins

eluded observers who spoke both Spanish and English, the Re-y

spondent having one such observer at all voting sessions and the

I'njon one at most sessions. These observers certified on the Tally

that the election was fairly conducted. We are satisfied that it was.

See Thomas A. Nelson, d/b/a Trio Metal Cap Co., 168 NLRB No.

105, and Polymers, Inc., 170 NURB No, 33.

~5. The objection, entitled ‘* Violence and Cof#rcion,”’ alleged:

Certain employeesavere smbjected to threats, coercion, and violence

by persons supporting the J’nion,.inelfiding tire slashing. whieh

created an atmosphere’ of fear and- interfered with fret choice.’

. Ad1

theories of union misconduct or an atmosphere of violence,

and recommending that the objection be overruled. There-

after, the Board considered the Hearing Officer’s Report,

the Respondent's exceptions to said Report, as well as the

remaining objections, and on June 16, 1967, overruled, all

the objections and certified the Union as representative of

the employees in the appropriate unit. Thereafter, on July

24, 1967, the Board denied the Employer-Petitioner’s (Re-

spondent here) motion for reconsideration by the full

Board urging that the Regional Director’s failure to fur-

nish ballots in Spanish. as well as English, was a departure

from Board policy and practice in other regions, and his

refusal to set the election aside was arbitrary inasmuch as

Region 13 now provides foreign language ballots; the

Board also, denied the request of Employer-Petitioner for

oral argument.

In response to the Respondent’s contention that the

Board lacks jurisdiction because Respondent alleges that

it is not an employer within the meaning of Section 2(2)

of the Act, and its employees allegedly are not employees

within the meaning of, Section 2(3) of the Act but are em-

ployees under the Railway Labor Act, the Board on No-

vember 16, 1967, remanded the proceeding for a hearing

before a Trial Examiner ‘‘for the purpose of adducing

evidence limited to the sole issue of whether.or not the

Respondent is an ‘Employer’ within the meaning of See-

tion 2(2) of the National Labor Relations Act.’’ After a

‘hearing, Trial Examiner David $. Davidson issued his

Decision on February 6, 1968, in the above-entitled proceed-

ing in which he concluded that ‘‘Respondent is not a com-

pany controlled by a carrier or carriers within the meaning

of the Railway Labor Act, is not subject to the provisions

of the Railway Labor Act, and is 4n employer within the

meaning of the National Labor Relations Act,’’ as set forth

in the attached Trial Examiner's Decision. Thereafter,

/ ~~

A22

Respondent filed exceptions to the Decision and a sup-

porting brief.

The Board has reviewed the rulings of the Trial Exam-

iner and finds that no prejudicial error was committed.

The rulings are hereby affirmed. The Board has con-

sidered the Trial Examiner’s Decision, the exceptions, and

the brief, and hereby adopts the Trial Examiner’s recom-

mendation that the Board reject Respondent’s defense that

it is not an employer within the meaning of Section 2(2) of

the Act and that the Board proceed to rule on the Motion

for Summary Judgment.

As all the material issues have been previously decided

by the Board, are admitted by Respondent’s Answer to the

Complaint, or stand admitted by the failure of Respondent

to controvert the averments of the General Counsel’s mo-

tion, there are no further matters requiring a hearing

before a Trial Examiner. Accordingly, the General Coun-

sel’s Motion for Summary Judgment is granted.

On the basis of the record before it, the Board makes

the following: \

Fixpines or Fact.

I. The Business of Respondent. -

Respondent is, and has been at all times material herein,

a corporation duly organized and existing by virtue of the

laws of the State of Delaware, engaged in the business of

providing in-flight food services for various airlines at

O’Hare International Airport, Chicago, Illinois,- and

Schiller Park, Illinois’ During the past year, which is —

representative of all material times herein, Respondent

purchased and received goods valued in excess of $50,000 |

directly from sources located outside the State of Illinois

and shipped\goods valued in excess of $50,000 directly to

sources located outside the ‘State of Illinois.

A23

Although it stipulated to the above facts in the Stipula-

tion for Certification Upon Consent Election in the repre-

sentation proceeding in Case No. 13-RM-831, Respondent

now conterfds that its relationship to common carriers by

air bring it within the coverage of the Railway Labor Act

and thus is exempt as amemployer under Section 2(2) of

the National Labor Relations Act. Based on the stipulated

commerce facts and the finding of the Trial Examiner,

which we have adopted, we find that Respondent is, and

has been at all times material herein, an employer within

the meaning of Section 2(2) of the Act and engageil in

commerce within the meaning of Section 2(6) and (7) of

the Act. :

II. The Labor Organization Involved.

Local 300, United IndustriaP Workers of America, Trans-*

portation Service and Allied Workers, Seafarers Inter-

national Union of North: Ameriea,. AFL-CIO, is a labor

organization within the meaning of Section 2(6) and (7)

of the Act.

II. The Unfair Labor Practices.

A. The representation proceeding.

1. The Unit.

The following employees at the Respondent’s O’Hare

International Airport, Chicago, Illinois, and Schiller Park,

Illinois, places of business, constitute a unit appropriate

for collective bargaining within the meaning of the Act:

All full-time and * regular part-time employees en-

gaged in food, beverage, and equipment preparation,

assembly, handling, receiving, storage and packing,

including maintenance employees, food equipment

handlers, -food and equipment. helpers, dispatchers,

coordinators, and plant clerical employees, but exelud-

‘

. .

’

A24

ing office clerical employees, guards, professional em-

ployees, and supervisors as defined in the Act.

2. The Certification.

On or about March 16, 1966, a majority of the employees

of Respondent in the unit, in a secret election conducted

under the supervision of the Regional Director for Region

13, designated the Union as the representative for the pur-

pose of collective bargaining with Respondent, and on June

16, 1967, the Board certified the Union as the exelusive col-

lective-bargaining representative of the employees in said

unit and the Union continues to be such representative.

B. The request to bargain and the Respondent’s refusal.

Commencing on about June 26, 1967, and continuing. to

date, the Union requested and is requesting the Respondent

to barg gain collectively with it as the exclusive collective-

bargaining representative of all the employees in the above-

described unit. Since June 27, 1967, and continuing there-

after, Respondent did refuse, and continues to refuse, to

bargain collectively with the Union as exclusive collective-

bargaining representative of its employees in the appro-

priate unit, and, by such refusal, the Respondent has en-

gaged in, and is engaging in, unfair labor practices within

the meaning of Section 8(a)(5) and (1) of the Act.

IV. The Effect of the Unfair Labor Practices

Upon Commerce.

The acts of the Respondent set forth in Section ITT,

above, occurring in connection with its operations as de-

scribed in Section I, above, have a close, intimate, and sub-

stantial relation to trade, traffic, and commerce among the

several States, and tend to lead to labor disputes burdening

and obstructing commerce and the free flow of commerce.

A25

V. The Remedy.

Having found the Respondent has ‘engaged in unfair

labor practices within the meaning of Section 8(a)(5) and

(1) of the Act, we shall order that it cease and desist there-

from, and, upon request, bargain collectively with the

Union as the exclusive representative of all employees in the

appropriate unit and,-if an understanding is reached, em-

body such understanding: ina signed agreement.

| VI. Conclusions of Law.

1. Marriott In-Flite Services, a Wisiaeh at “Marriott

Corporation, is an Kmployer within the meaning of Sec-

tion 2(2) of the Act, and is engaged in commerce within

the meaning of Section 2(6) and (7) of the Act.

2. Local 300, United Industrial Workers of America,

Transportation Services and Allied Workers, Seafarers

International Union of North America, AFL-CIO, is a labor

organization, within the meaning of Section 2(5) of the

Act. —

- 3. All full-time and regular part-time employees en-

gaged in food, beverage, and equipment preparation, assem-

bly, handling, receiving, storage and packing, including’

maintenance employees, food equipment handlers, food and

equipment helpers, dispatchers, coordinators, ‘and plant

clerical employees; but excluding office clerical employees,

guards, professional employees, and supervisors as defined

in the Act, constitute a unit appropriate. for the purposes

of collective bargaining within the meaning of Section 9(b)

of the Act.

4. Since June 16, 1967, the above-named labor organ- |

ization has been the exclusive representative of all. em-

ployees in the aforesaid appropriate unit for the purposes

of collective bargaining within the meaning of Section 9( a)

of the Act. |

9 A26

d. By refusing on or about June 27, 1967, and at all

times thereafter, to bargain collectively with the above-

named labor organization as the exclusive bargaining rep-

resentative of all the employees of Respondent in the appro-

priate unit, Respondent has engaged in and is engaging

in unfair labor practices within the meaning of Section

8(a) (5) of the Act.

6. By the aforesaid refusal to bargain, Respondent has

interfered with, restrained, and coerced, gadis interfer-

ing with, restraining, and coercing emplagees in the

exercise of the rights guaranteed to them in Section 7 of

the Act, and has thereby engaged in and is engaging in,

unfair labor practices within the meaning o Section 8(a) (1)

of the Act.

7. The aforesaid unfair labor practices are unfair labor

practices affecting commerce within the meaning of See-

tion 2(6) and (7) of the Act.

rae

"AQT

’

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

hereby orders that the Respondent Marriott In- Flight

Services, Division of Marriott Corporation, Chicago, Illi-

nois, its officers, agents, successors, and assigns, shall:

ORDER.

1. Cease and desist from:

(a) Refusing to bargain collectively concerning wages,

hours, and other terms and conditions of employment, with

Local 300, United Industrial Workers of America, Trans-

portation Services and Allied Workers, Seafarers Inter- -

national Union of North America, AFL-CIO, as the exclu-

sive bargaining representative of its employees in the

following appropriate unit:

Al] full-time and regular part-time employees engaged

in food, beverage, and equipment preparation, assem-

_ bly, handling, receiving, storage and packing, including

maintenance employees, food equipment handlers, food

and equipment. helpers, dispatchers, coordinators, and

plant clerical employees; but excluding office clerical

employees, guards, professional employees, and super-

visors as defined in the Act.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the rights guaranteed

to-them by Section 7 of the Act.

2. Take the following affirmative action which the Board —

finds will effectuate the policies of the Act:

(a) Upon request, bargain collectively with the above-

named labor organization, as the exclusive representative

of all employees in the aforesaid appropriate unit with

respect to rates of pay, wages, hours, and other terms and

conditions of employment, and if an understanding is

PER GFEAD IR SATIRE A

A28

’

reached, embody such understanding * in a signed agree-

ment.

(b) Post at its O’Hare International ‘Airport,. Chicago,

Illinois, and Schiller Park, Illinois, places of business,

copies of the attached Notice marked ‘‘ Appendix’’.’ Copies

of said Notice, on forms provided by the Regional Director

for Region 13, shall, after being dulyysigned by Respond-

ent’s representative, be posted by Respondent immediately

upon receipt thereof, and be maintained by if for 60 con-

secutive days thereafter, in conspicuous places, ineluding

all places where notices to emplovees are customarily

posted. Reasonable steps shall be taken by Respondent

to insure that said Notices are not altered, defaced, or

covered by any other material.

writing, within 10 days from the date of this Decision and

Order, what steps Respondent has taken, to comply here-

with.

Dated, Washington, D. C., May 24, 1968.

tL Frank W. McCutiocn,

| Chairman,

Joun H: Fannie,

Member,

Geratp A. Brown, ©

- Member,

Metiount Labor Relations Board.

(sEAn) |

6. In the event that this Order is enforced by a decree of the

United States Court of Appeals, there shall be substituted for the

words ‘‘a Decision and Order,’ the words, ‘‘a Decree of the

United States Court’of Appeals, Enforcing an Order.’’

’

APPENDIX.

NOTICE TO ALL EMPLOYEES

PURSUANT TO.

A DECISION AND ORDER

of the National Labor Relations: Board, and in order to

effectuate the policies of the National Labor Relations Act,

as amended, we hereby notify you that:

WE WILL NOT refuse to bar gain collectively with

LOCAL 300, UNITED INDUSTRIAL WORKERS OF

AMERICA, TRANSPORTATION SERVICES AND

ALLIED WORKERS, SEAFARERS INTERNA-

TIONAL UNION OF NORTH AMRRICA, AFL-CIO,

as the exclusive representative of the employees in

the bargaining unit described below. %

WE WILL NOT in any like or related manner inter-

fere with, restrain, or coerce our employees in the

exercise of the rights guaranteed them by Section 7

of the Act.

.WE WILL, upon request, bargain collectively with the |

above-named Union as the exclusive representative of

all employees in ‘the bargaining unit described below

with respect to wages, hours, and other terms and con-.

ditions of employment and, if an understanding is

reached, embody such understanding in a signed agree-

ment. ay,

The bargaining unit is:

All full-time and regular part-time employees engaged

in food, beverage, and equipment preparation, assem-

bly, handling, receiving, storage and packing, including

maintenance employ aap hoe: equipment handlers, food —

and equipment helpers, aie coordinators, and

plant clerical employees; but excluding office clerical

employees, guards, professional employees, and super-

visors as defined in the Act.

# «

Marriott In-FLItE SERVICES,

Division‘or Marriott Corporation

, (Employer)

(Representative) (Title)

—— a -_—

; ——— ————+—________———-

This notice must remain posted for 60 consecutive days

from the. date of posting, and must not be altered, defaced,

or covered by any other material.

Employees may communicate directly with the Board’s

* Regional Office, 881 U. S. Courthouse and Federal Office

Building, 219 S. Dearborn Street, Chicago, Illinois 60604

(Tel. No. 828-7570). 3

5! RE Ua S82 FFs ag ON a IN

A3l

TXD-70-68

Chicago, Ill.

Unrrep States oF AMERICA

BeroreE THE NatTionaL Laspor Revatrons Boarp

Division of Trial Examiners

S Washington, D.C.

Marriott Ix-Fiire Services, Drvt- )

sion OF Marriott CorPoRATrYon'

and

Loca. 300, Usrren Ixpvsrerat \ Case No. 13-CA-7971.

Workers oF America, TRANSPOR-

TATION SERVICES AND ALLIED

Workers, SEAFARERS INTERNA-

TIONAL Unton or Nortu AMERICA,

AFL-CIO. — |

w, s

Stephen B. Rubin, Esq., of Chicago, Ill., for the General

~ Counsel.

Irving Friedman, Esq., of Katz and Friedman, Chicago,

Ill., for the Charging Party. .

John T. Weise and R; Theodore Clark, Kf ee Pa of Sey-

farth, Shaw, Fairweather and Geraldson, Chicago, IIL,

for the Respondent.

TRIAL EXAMINER’S DECISION.

STATEMENT OF THE, CASE.

_ Davin 8. Davinson, Trial Examiner: Pursuant to charges

filed on. July 24, .1967, by Local 300, United Indus-

1. Pursuant to a stipulation of the parties at the hearing, the

name of the Respondent was amended to reflect the successorship

of Marriott Corporation to the business of Marriott-Hot Shoppes,

Ine. in 1967.

y pe

PS Tek: MDa eee ole Py eee a a RS ARMS Oh i “

A32

trial Workers of America, Transportation Services and

Allied Workers, Seafarers International Union of North

America, AFL-CIO, hereinafter referred to as the Union,

a complaint issued on August 9, 1967, alleging that Respond- _

ent had violated Section 8(a)(5) and (1) of the Act by

refusing to bargain with the Union after the Union had .

been certified as the representative of employees in an

appropriate unit in Case No. 13-RM-831. Respondent in

its answer admitted some allegations of the complaint,

denied others, and raised two affirmative defenses. On

August 24, 1967, the General Counsel filed a Motion for

Summary Judgment with the Board. The proceeding was

transferred to the Board, and a Notice to Show Cause why

the General Counsel’s Motion should not be granted issued

on August 29, 1967. On August 31, 1967, the Union filed its

separate Motion of Charging Party for Summary Judg-

ment, and on September 27, 1967, Respondent filed its

Answer to Notice to Show Cause opposing summary judg-

ment. In it Respondent alleged, among other things, that

it is a ‘‘carrier’’ within the meaning of the Railway Labor

Act and therefore not an Employer within the meaning of

the National Labor Relations Act, as amended, so that the

Board is without jurisdiction in this matter.

By its Order of November 16, 1967, the Board remanded

the proceeding to the Regional Director for a hearing be-

fore a Trial Examiner ‘‘for the purpose of adducing evi-

Mt dence limited to the sole issue of whether or not the

Respondent. is an ‘Employer’ within ‘the meaning of Sec-

tion 2(2) of the National Labor Relations <Act.’’ . The

Board’s Order provided that ‘‘upon the conclusion of the

hearing, the Trial Examiner shall prepare and serve upon

the parties a Decision containing findings of fact, conclu-

_ sions of law, and recommendations which he finds war-

~ ranted by the evidence received at the hearing, . . .”’ 4

A33

“The hearing was held before me in Chicago, Illinois, on

December 18, 1967. At the close of the hearing oral argu-

ment was waived, and the parties were given leave to file

briefs, which the General Counsel and Respondent filed,

FINDINGS AND CONCLUSIONS.

I. The Facts.

With one minor exception indicated below, the facts were

established either by stipulation or through uncontradicted

testimony of the senior area supervisor of the Chicago

operations of Respondent’s In-Flite Services Division,

which are the operations involved in this proceeding.

Mariott Corporation is a publicly held corporation

licensed to do business in Illinois and a number of other

states. Sometime in 1967, Marriott Corporation succeeded

to the business of Marriott-Hot Shoppes, Inc., and has

engaged in substantially the same business as the predeces-

sor corporation. Previously in 1964 Marriott-Hot Shoppes,

Inc., had succeeded to the business of Hot Shoppes, Inc.

Marriott Corporation has seven operating divisions and

a number of staff-services all under the supervision and

control of the directors and officers of Marriott Corpora-

tion. The Hotel Division is in the business of operating

nine Marriott Motor Hotels and Marriott Motor Hotel

Restaurants in seven states, including one located in Chi-

cago, Illinois, near O’Hare International Airport. The

Service Restaurant Division is in the business of operating

approximately 40 Hot Shoppes table service restaurants in

8 states and the District of Columbia. The Food Opera-

tions Division is in the business of operating 25 cafeterias

in 8 states and the District of Cglumbia, including a loca-

tion in Calumet, Illinois; and is also in the business of

operating food service facilities in approximately 25 school,

A34

hospital, industrial, and commercial locations in 6 states

and the District of Columbia. The Manufacturing, Market-

ing and Procurement Division is in the business of operat-

ing a’central supply and quality control facility known as

Fairfield Farm Kitchens in Maryland to service other

operating divisions. The Thruway and Turnpike Division

isin the business of operating approximately 18 turnpike

restaurants and snack bars in 3 states. The Big Boy

Restaurants of America Division is in the business of op-

erating 18 restaurants in California and approximately 400

franchise operations on the West Coast.

The remaining division, the In-Flite Services Division,

is in the business of operating approximately 19 flight

kitchens, referred to by Respondent as shoppes, in 8 states,

_ ineluding No. 391 in Schiller Park, Illinois, and Nos. 392

and 395, both at O’Hare International Airport, the oper-

ations directly involved in this proceeding. | :

All hourly paid employees of the operating divisions of

Marriott Corporation, except those of Big Boy Restaurants

of America, receive their paychecks from the principal

offices of Marriott Corporation, are entitled to participate

in the same credit union, profit sharing, and group insur-

ance ‘programs, and receive the same paid sick leave and

vacations. ,

In-Flite Services Division” employs approximately 12

percent of the employees of Marriott Corporation’s oper-

ating divisions. It does not own or operate any airplanes,

and from 1965 to the date of the hearing did not carry

any passengers or cargo for hire or any United States

mail by airplane. No certificates of public convenience and

necessity have been issued by the Civil Aeronautics Board,

the Federal Aviation Agency, or the Interstate Commerce

Division to Marriott Corporation Mr any of its predecessors

or operating divisions. The National Mediation Board had

A35

not asserted jurisdiction over Marriott Corporation, Mar-

riott-Hot Shoppes, Inc., Hot ‘Shoppes, Inc., Marriott In-

Flite Services Division, Hot Shoppes Caterers, Inc., Hot

Shoppes Food Services, Inc., National Caterers of New —

York, Inc., or American Caterers, Inc.” ;

John Donald is area supervisor over the operations of

the three Chicago shoppes, and he is also the manager of

shoppe 392. Shoppes 391 and 395 have separate managers.»

A central purchasing agent located at shoppe 392 makes all

the food purchases for the shoppes. Large equipment

purchases, such as trucks, ovens, and other kitchen equip-

ment, are made through Respondent’s corporate head-

quarters for the three shoppes. Respondent has a central

maintenance garage at which it maintains and repairs its

trucks under the supervision of a garage manager. The

garage manager purchases parts and fuel for the trucks.

Another central maintenance crew maintains Respondent’s '

kitchen equipment.

A single personnel manager located at shoppe 392 handles

personnel matters for the three shoppes pursuant to per-

sonnel procedures established by Respondent’s headquar-

ters industrial relations department. He is responsible for

all hiring for the three shoppes. Discharges of employees

at all three shoppes requfre the approval of Donald. Em-

ployee assignments are determined by Respondent’s super-

visors. Except as set forth below, the airlines for which

Respondent supplies food have nothing to do with the hir-

ing, discharge, assignment, or direction of Respondent’s

employees. Conversely, Respondent’s. supervisors have

no responsibility over airline personnel. Respondent’s

employees at its three Chicago shoppes are considered to

2. Apart from those entities already identified, those named

are either predecessor corporations or former subsidiaries of them

which have been involved in earlier NIURB proceedings. All have

been absorbed. by Respondent.

A36

be covered by the provisions of the Fair Labor Standards

Respondent has a written contract entered into by_ its

predecessor Hot Shoppes, Inc. with American Airlines

- which sets forth the relationship between Respondent and

Amercan Airlines.* Under this contract, Respondent agrees

to perform catering services to the satisfaction of Amer-

ican Airlines in compliance with regulations, procedures,

- standards, and specifications set forth in American’s Pas-

senger Service Manual—Catering Service Edition, its Food

Schedule. A schedule of prices is incorporated in the agree-

ment with provision for adjustment from time to time upon

reasonable demand by either party, with a procedure pro-

vided for resolution of ‘any disputes by reference of the

dispute to an independent firm of certified public account-

ants for binding determination. The contract provides that

such prices are to be ‘‘yeasonable, fair and equitable to

both parties in the light of all applicable factors including

cost of raw food, labor, equipment, and all other basic costs

related to the operation of the catering service.”’

Under the agreement, Respondent is obligated to secure

all proper and necessary licenses and permits for its oper-

ations and to abide by all applicable federal, state, local, and

airport rules, regulations, and ordinances. Respondent is

obligated to obtain and maintain statutory workmen’s com-

pensation insurance and public and automobile liability

insurace with insurers satisfactory to American and nam-

ing American as an additional assured. Respondent is obli-

gated to indemnify, defend, and hold harmless American

against all claims, liability, losses, or expenses ariging

3. According to Donald, its terms substantially deseribe the

relationship between Respondent and the other airlines served by it

at O’Hare. Contracts between Respondent and the other airlines

were not introduced. ,

—_—.

A37

out of or in connection with the performance of the catering °

services.

The agreement provides that it will remain in effect for

a period of 5.years from September 6, 1962, with automatic

renewal for additional periods of 1 year in the absence

of 90 days’ notice of intention to terminate. In the event

either party deems the other to have failed substantially in

performance of its obligations, it may te:minate the agree-

ment upon 30 days’ notice specifying the nature of the

breach if the offending party fails to take diligent and

reasonable steps to remedy it. Any disputes as to sufficiency

of cause for termination may be referred to final and

binding arbitration. Until final decision is rendered, the

agreement is to remain in effect. Both parties are excused

from any failure of performance due to strikes, boycotts,

labor disputes, and other causes beyond control of the

parties. Respondent’s obligations and rights may not be

assigned to a third party without the consent of American.

The agreement provides:

Persons employed or used by Hot Shoppes in the

performance of-its obligations hereunder shall not be

considered employees of American for any purpose,

and particularly, but not exclusively, they shall not be

considered employees of American under the pro-

visions of any local, state, or federal unemployment

compensation act or other form of social security legis-

elusive liability for any and all such taxes, contribu-

tions, or assessments imposed by such legislation by

virtue of Hot Shoppes’ employment or use of such

persons. ; es

‘The agreement requires Respondent to supply and main-

tain at its expense all trade equipment, fixtures, and de-

vices, including high-lift trucks required for efficient opera-

tions. It provides that American will supply and maintain

A38

at its expense airplane service equipment required to serve

food and beverages in aircraft, with Respondent to comply

with reasonable instructions and specifications of American

respecting the use and cleaning of such equipment.

The agreement also provides:

American shall have the right at all reasonable hours

to inspect the flight kitchen, other equipment, and

facilities employed by Hot Shoppes hereunder, and

the food and services supplied by Hot Shoppes here-

under. Hot Shoppes shall use its best efforts to com-

ply forthwith with all reasonable requests of American"

for the improvement of the in-flight food service fur-

nished hereunder.

Shoppe 392 is located at O’Hare Airport near the flight

ramp. It employs approximately 360 employees. Its sole

customer is American Airlines, pursuant to the agreement

just described. Shoppe 392 furnishes meal, snack, and

beverage service for American Airlines flights leaving

O'Hare. At 392, flight service equipment is received and

cleaned, and raw food items are received, cleaned, cut,

cooked, portioned, and packed ready to be served for de-

livery to aircraft. Respondent’s employees classified as

food and equipment handlers and helpers,’ take food and

beverages in carriers from the dispatch area of Shoppe

392 to the aircraft in high-lift trucks, owned by Respond-

ent. At the aireraft, they position the trucks at the air-

craft, raise the body of the truck so that it is level -with the

galley door of the aircraft, unload dirty equipment from

the galley, and load the prepared food. Just before each

aircraft departs, food bank employees, who have earts

with limited food storage facilities, check with the Ameri-

ean Airlines gate agent to determine whether any . last

minute additions or removals of food are reauired and do

whatever is required. Employees classed as coordinators,

4, About 60 employees fall in this category.

A39 . :

described. as serving .a public relations function, board

some of the aircraft to inquire of stewardesses whether

flight needs have been met.

As the agreement siioaien a number of the procedures

followed by Respondent and its employees are prescribed

by American Airlines. The airline gpecifies the sources

from which about 90 percent of the fod supplied it is to

be purchased. The. airline also specifies ‘the brand name,

type, and container “to be purchased. Recipes, directions

for food preparation, and portion sizes are also prescribed

by the airline. Safety procedures for operating trucks on

the airport are prescribed both by the airline and the air-:

port management. In addition the airline also specifies

safety equipment, such as wheel chocks.and lift controls, _

to be used on or in conjunction with Respondent’s trucks

which service aircraft. The airline makes periodic main-

-tenance checks of Respondent’s trucks to insure that they

comply with its standards. The food and equipment han-

dlers and helpers place food and equipment in places ‘in the

aircraft galleys prescribed by the airline.* On occasion

stewardesses make specific requests as to placement with

which the handlers and helpers comply. Before leaving

each aircraft, the food and equipment handlers are required

to obtain a receipt from a stewardess, and in the event she

discovers a shortage, the handlers must remedy it before

getting the receipt.

All the equipment placed on aircraft in which food i

carried or served is owned by the airline, as are the mobile

carts used by the food bank employees.° Althowgh Respond-

5. The food and equipment handlers and helpers v trained |

in the procedures to be followed in loading aircraft by/ Respond-

ent’s supervisors.

6. There are three such carts. Normally two ates ees are

“assigned at a time to the food hank service utilizing two of the

earts. There is evidence that~American Airlines’ reimburses Re-

spondent for. the wages paid the food bank emphoy ees apart from

payments for catering services.

he tal

os a

ent prepares liquor kits for.the airline, the liquor is pur-

<hased and owned by the airline.’ re ‘

American Airlines has a: catering representative -who

spends about 60 percent of his working time at shoppe

392.8 While-there he spends some: of his time in the office

areas and some in production areas inspeeting the opera-

tions to determine whether the airline’s standards are

being met. Hach day he eats a sample meal.

If during the course of his” inspections, the catering

representative observes anything whic ‘be believes requires

change or correction, he brings it 4o the attention of Re-

spondent’s manager, Donald, or/its assistant managers.

Every Monday, the catering epresentative has a menu

meeting with Respondent’s s ervisors at which he reviews

with them arly complaints hé has received during the previ-

ous sodas flight stewardesses concerning Respondent’s

food, s ice, or personnel. It is left to Respondent’s

supervisors to determine what if anything should be done

in response to the/complaints. On occasion, the catering

representative makes written complaints concerning the

performance of’ Respondent’s employees assivned to work

on the flight ramp or in aircraft. In some instances he has

requested that certain employees not be allowed to work

on or around aircraft. Donald makes an independent in-

vestigation of these complaints after which he may honor

the request by transferring an employee’ to another oper-

- 7, Respondent is responsible for the control and storage of the

airline’s liquor on its premises. The airline audits Respondent ’s

liquor supplies and accounts each month.

8. There was some dispute as to the amount of tinfe spent by

the catering representative at shoppe 392. I have accepted Donald’s

estimate as a rough estimate of the total amount of the catering

representative’s working time spent by him in all areas of the

shoppe premises. However, it is clear that the catering representa-

tive works only during the day, the shoppe operates 24 hours a

day, and the catering representative isnot in the shoppe between

the hours of 6 p.m. and 8 a.m. of the next day. 7

A41

‘ation or another part of shoppe 392 or he may discuss the

matter with the catering representative and explain that

he does not agree with the requested action.

The two other shoppes are operated in substantially the

same fashion as 392. Shoppe 395 is located adjacent to 392

at O’Hare. It employs approximately 90 employees and

prepares food for Braniff International Airlines, Pan

American, BOAC, Air France, Lufthansa, S.A.S., and’ Air

Canada. The purchasing, preparation, handling, transpor-

tation, and loading of food for these airlines is earyied on in .

substantially the same fashion. as in shoppe 392. The air-

lines served by 392 do not have full-time catering repre-

sentatives, but Respondent deals with port stewards who

have additional responsibilities apart from catering.”

Braniff and Pan American together account for aproxi-

mately 60 per cent of the volume of shoppe 395. Like

American Airlines, they specify the sources from which

Respondent must buy the food used on their flights. The

remaining airlines served by shoppe 399 do not.

Shoppe 991 prepares food for TWA flights. leaving

O’Hare and is located at Schiller Park, Illinois, about 13

miles from TWA airport operations. Approximately 190

employees wofk there. Its operations are substantially the

same as those at shopee 392 except that food and equipment

handlers and helpers do .not. enter TWA aircraft. Their

functions stop at the door of the aircraft where they hand

food carriers and supplies to TWA employees inside the

plane. TWA, like Xwmerican, has a catering Se

9. The amount of time spent by the port stewards ak shoppe '

395 is not indicated on the record but it is clear from ‘the smaller

volume of business which they, do with Respondent and their

additional duties that it is less than that spent by the American

Airlines catering. representative at 392.

A42

and he has bid office at shoppe 391 where he spends all

_of his time.’

IL. € ‘onclusions.

Section 2(2) of the National Labor Relations Act, as

amended, provides: ‘‘The term ‘employer’ includes any

person acting! as an agent of an employer, ‘directly or in-

directly, but shall not include ... any person subject to

” °

The Railway L

Section 1. When used in this Act and for the purposes

of. this. Act—First, the term ‘carrier’ includes any

express company, sleeping-car company,.-carrier by

_ railroad, subject to the Interstate Commerce Act, and

any company which is directly or indirgetly owned or

-eontrolled by or under common cont rol with any carrier

abor Act,'!. provides :

4 when in the possession. of the business—of_any such

Seanpier’: 5... -' aes

extended to and shall cover every common earrier by

aim engaged in interstate or foreign commerce, and

every carrier by air transporting mail for or under

contract with the United States Government, and every

ajr pilot or other person who performs any work as

an employee or subordinate official of such carrier or

10. As in the ease. of shoppe 392, shoppe 391 operates on shifts,

and its operations continue when the TWA catering representative

is not_on duty. Sy “ eink,

11. 45 U.S. C. § 151 ef seq.

“

- the Railway. Labor Act, as amended from time to time,

i ete

A43

carriers, subject to its or their continuing authority

to supervise and direct the manner of ‘rendition of his

service. |

Section 202. The duties, requirements, penalties, bene-

fits, and privileges prescribed and established by the

provisions of Title I, of the Act, except Section 3

thereof, shall apply to said carriers by air and their

employees in the same manner and to the same extent

as though such carriers and their employees were ,

specifically included within the definition of ‘carrier’

and ‘employee,’ respectively, in Section 1 thereof.

The sole issue before me is whether Respondent, other-

wise clearly an employer, is exempted from the definition

of ‘‘employer’’ in Section 2(2) of, the National Labor

Relation Act because it is subject to the Railway Labor Act.

The National Labor Relations Board has asserted juris-

diction over the airline catering activities of Respondent

and its predecessors, at O’Hare and elsewhere, on a number

of occasions in the past.’ The National Mediation Board

has never asserted jurisdiction over Respondent or its

predecessors, nor does it appear that it has ever been asked

to. However, until raised by Respondent herein, the precise

question before me does not appear to have been raised

in the prior proceedings. In the Jast proceeding involving

Respondent’s Chicago in-flight service operations, Respond-

~ent contended that-its-employees were subject to the Rail-

«way Labor Act and therefore not ‘‘employees’’ within the

12. National Caterers of New York, Inc., 129 NURB 699 (1960),

(Idlewild Airport); Hot Shoppes, Inc., 130 NLRB 138 (1961),

(Washington National A.rport); Hot Shoppes, Inc., 130 NLRB

144 (1961), (Midway and O’Hare Airports) ; Hot Shoppes, Inc.,

133 NLRB 3 (1961), (Idlewild Airport & Jamaica, New York) ;

Hot Shoppes, Inc., 139 NURB 1253 (1962), (Friendship Airport) ;

Hot Shoppes, Inc., 143 NLRB 578 (1963). (O’Hare Airport: and

Schiller Park, Illinois) ; Hot Shoppes, Inc., 146 NLRB 802 (1964),

(Jamaica, New York): Marriott In-Flite Services, a Division of

Marriott-Hot Shoppes, Inc., 168 NLRB No.9 (1957), (Kennedy

Airport and Jamaica, New York).

Ad4

meaning of Section 2(3):of the National Labor Relations

Act.® In that case, the Board concluded that Respondent’s

employees were not ‘‘employees’’ within the meaning of

the Railway Labor Act and denied the Employer’s motion

to dismiss the proceeding on jurisdictional ¢rounds."*

In the prior proceeding, focus was on the definition of

‘‘employee’’ under the Railway Labor Act. Here attention

is drawn to the definition of ‘‘carrier.”’ The critical terms

of Seetion 201, set forth above provide for coverage of

‘every common carrier by air engaged in interstate or

foreign commerce, and every carrier by air transporting

mail for or under contract with the United States Govern-

ment.’? The General Counsel contends that Respondent

fits neither branch of this definition of carrier and that the

inquiry should end at this point. Respondent contends,

however, that its relationship to common carriers by air

brings it within the eoverage of the Railway Labor Act.

13. 143 NLRB 578. It is true that early in its Decision the

Board stated that the Employer eontended that the Board lacked

jurisdiction over the proceeding under Section 2(2) and 2(3) of

the Act, from which it would appear that Respondent’s status

as an employer as well as the status of its employees was raised.

However, elsewhere in the Decision, the Board specifically stated

that ‘‘it is not contended that the Empleyer itself is subject to the

Railway Labor Act or that Section 2(2) of the Act, which excludes.

from the Alefinition of ‘employer’ ‘any person subject to the Rail-

way Labor Act’ requires our dismissal of the proceedings herein.”’

14. In its Answer to the Notice to Show Cause herein Respond-

ent contended that (1) its entire business operation in Chicago

and its relationship with the air carriers has changed substantially

since the time of the, Board’s decision, in 1963; (2) the location of

Respondent’s Chicago operations has changed in that two of

Respondent’s flight kitchens are now located on O’Hare Airport

proper; (3) the air carriers served by Respondent and the terms

and conditions under which service is provided have changed since

1963; and (4) the air carriers to whom Respondent provides serv-

ice now exercise a greater degree of control and supervision with

respect to the manner in which Respondent’s employees perform

their work. Except for the second point, the record does not

establish the other changes asserted by Respondent.

AAS

Section 1, First, defining carriers by railroad includes:

within that term ‘‘any company which is directly or in-

directly owned or controlled by or under common control

with any carrier by railroad and which operates any

equipment or facilities or performs any service (other than

trucking service) in connection with the transportation,

receipt, delivery, elevation, transfer in transit, refrigera-

tion or icing, storage. and handling of property transported

by\railroad ...’’ It is true, as the General Counsel points

out, that when Congress extended the provisions of the

Railway Labor Act fo carriers by air it did not. add a

similar provision for coverage of companies owned or con-

trolled by carriers by air. However, Section 292 provides

with an exception not here material that the provisions

of Title I of the Railway Labor Act shall apply ‘‘to said

‘earriers by air and their employees in the same manner

and to the same extent as though such carriers by air and

their employees were specifically included within the defini-

tion of ‘carrier’ and ‘employee’ respectively in Section. 1.”’

While an argument can be made that the application of the

Railway Labor Act to carriers by air provided in Section

201 does not expand the definition of a carrier by air con-

tained in that section and the question is not free of doubt,

there is authority to support coverage of companies owned

or controlled by carriers by air as a result of a conjunctive,

reading of Sections 1, 201, and 202." I find it unnecessary

for purposes of this decision to resolve this question, and

will assume, without deciding, that Respondent would come

within the definition of carrier by air if it were ‘‘directly

15. See Air Line Stewards, etc. v. Northwest Airlines, Inc., 267

KF, 2d 170 (C. A. 8), cert. den. 361 17, 8..901; Air Lines Stewards,

cte. V. Trans World Airlines, Inc., 173 F. Supp. 396, aff’d 273 F.

2d 69 (C. A. 2), cert. den. 362 U.S. 988. See also Official Answer

of the Assistant Solicitor, Department of Labor, 91 Wage Hour

Manual (BNA) 909-911.

A46 _

or indirectly owned or controlled by or under common con-

trol with’’ any carrier by air.”®

Respondent is not directly or indirectly owned by any

carrier by air. But the question remains whether it is

controlled by or under common control with any carrier by

air. Respondent relies heavily upon the decision of the

National Mediation Board in Ohio & Western Pennsylvania

Dock Company, NMB No. C-3748 (June 21, 1967) in sup-

port of its contention.’ In Ohio & Western the NMB

asserted jurisdiction over an independent contractor per-

forming services for the Pennsylvania Railroad Company,

16. See Hot Shoppes, Inc., 148 NLRB 578, 580. hr this connec-

tion, I also assume without deciding, that Respondent performs

a service of the kind which Section 1 provides must be erformed

: \

by companies owned or controlled by earriers as the second half

of the test of coverage.

17. Other NMB and NLRB decisions relied upon by Respond-

ent are of little aid or precedential value. In JOC Er Parte No. 72

(Sub No. 1) (December 7, 1938), the question was whether dining

car employees on trains were ‘‘amployees’’ within the meaning of

the Railway Labor Act, and its facts are moreover distinguishable

from those before me. See Hot Shoppes, Inc., 143 NLRB 578,

581, n.°7. In Airline Cuisine, Inc.. NMB Case No. 3489 (June

30, 1961) ; Ward Sky Cap Porter Service, NMB Case No. R-3416

(May 2, 1960) ; Thaddeus Johnson Porter Service, Inc., NMB

Case No. R-3278 (July 11, 1958) ; and International Air Services,

Inc., NMB Case No. R-3555 (June 14, 1962) ; the decisions disclose

no facts as to ownership or control on which assertion of jurisdic-

tion was based nor do they indicate whether jurisdiction was raised

as an issue before the NMB. In. Sky Chefs, Inc., Cases Nos. R-RC-

1645, 2-RC-2122 (June 6, 1950), which is unpublished, the General

Counse® and Respondent agree that the corporation over which

the NLRB declined to assert jurisdiction and over which the NMB

subsequently asserted jurisdiction (Sky Chefs, Inc., NMB Case

No. R-2601, September 24, 1962; Shy Chefs Inc., NMB Case No.

R-2670, May 15, 1953) was a wholly-owned subsidiary of American

Airlines. Similarly, in Oakland Aircraft Engine Service, Inc.,

Case No. 20-RM-208, 39 LRRM 1368, the employer over which

the Board declined to assert jurisdiction and a earrier by air were

commonly owned. Contrary to Respondent’s contention the factor

of ownership is significant. To come within the definition of a

_earrier, a company which is not a carrier must be directly or

indirectly owned or controlled by a carrier and engaged in related

services.

A47

a carrier by rail. In that case the dock company operated

ore unloading equipment on a dock, unloading iron ore

from vessels arriving at the dock on to railroad cars for

direct shipment or on to the dock for storage and reloading

for later shipment. The premises and dock on which the

contractor operated and the equipment used by the con-

tractor were owned by Pennsylvania Railroad. The serv-

ices of the dock company were performed exclusively for

Pennsylvania Railroad. _The ddck company acquired no

interest), title or ownership in the ore being handled. The

dock company was paid monthly at a fixed rate per ton for

ore transferred, with agreement to renegotiate the rate

from time to time. The railroad did not tell the dock com-

pany how to perform the work or supervise its employees.

The dock company acted as agent for the railroad in collect-

ing from owers or shippers of lading amounts designated

by the railroad. Major repairs, repladements, the renewals

were to be made by the dock company at the railroad’s ex-

pense or by the railroad at its option. The railroad paid a

portion of the wages of any employees taking scale read-

ings in conjunction with the unloading operations. The

railroad company paid costs of maintenance and opera-

tion of electric locomotives operated and maintained by the

dock company, including reimbursement for Social Secur-

ity, Workmen’s Compensation and other taxes. The rail-

road fixed the amount of insurance to indemnify the rail-

road against damage due to fire or tornadoes approved the

insurer and received an executed copy of the policy.!®

The dock company was not permitted to sublet or underlet

any of the work without written approval of the railroad

company. The decision does not indicate the duration of

the agreement between the contractor and"the railroad.

The NMB-found that although none of the above facts

18. The agreement between the parties provided that the same

was toibe true of liability policies but the amount was fixed.

A48

standing alone would be sufficient to establish control,.

taken together, they established that the dock company

‘‘has an intimate connection with the actual transportation

concept and function’’ and that it rendered “its services

for no other Company or carrier aside from the Pennsyl-

vania Railroad, concededly a carrier subject to Section 1,

First of the Act.’’ The NMB concluded the dock company

was properly subject to its jurisdiction.

Although some of the factors present in this case are

similar to those disclosed by the NMB’s. Ohio & Western

decision, there are a number of others which are dissimilar

or not present in the Ohio & Western case.

There is no evidence that the airlines own or control the

premises o¢eupied by Respondent. Respondent owns the

kiteien fixtures and equipment used in preparing food for

the airlines and the trucks used in delivering it. Respond-

ent purchases and owns at the time of preparation all the

food and beverages, except liquor, which it sells to the

airlines. Respondent performs and bears the cost of the

maintenance of all its equipment. It does not act as’an

agent for the airlines for any purpose in their dealings with

‘the public. While it is true that in this case unlike Ohio &

Western, the airlines do tell Respondent in considerable

detail how to perform the work and inspect to make certain

that their specifications are met, they do net supervise the

employees involved, and, if anything, the record before

me shows less direction of Respondent’s employees by

airline personnel than disclosed by the-earlier decision in-

volving the same employees when their status as ‘‘em-

ployees’’ within the meaning of the Railway Labor Act was

at issue.’®

In Ohio & Western the service performed by the dock

company was itself a direct step in the transportation of

19. 143 NLRB 578. : .

€

A49

freight by the railroad. The dock company performed only

_ this work and performed it only for a single carrier. Here

the food service provided by Respondent to the airlines is

ancillary to the transportation of passengers and freight.

- Respondent is a corporation generally engaged in the hotel

_and restaurant business, and the function it performs for

airlines is related to its activities in providing food to in-

dustrial plants, schools, hospitals, highway travelers, and

the general public.”” Respondent does not perform its air

catering services for a single airline, but does so for a

number of airlines in Chicago and elsewhere.

Although Respondent’s contract prices with American

Airlines are subject to renegotiation and the contract is

terminable upon 30 days’ notice in the event of a substantial

breach, the contract. provides for means of resolving dis-

putes over prices and performance through impartial

arbitration, thus giving stability to the relationship be-

tween Respondent and the airline for the contractual term

and diminishing the likelihood of indirect control which

might flow from opportunity to terminate the contract | uni-

laterally on short notice.

As set forth above, the par eenient between Respondent

and American Airlines provides specifically that persons

employed or used by Respondent to perform its obligations

under the contract are not to be considered the airline’s

employees for any purpose. Respondent’s employees at

shoppes 391, 392, and 395 are paid, like employees in all

20. While I deem the operations of Respondent not here di-

rectly involved relevant to the issue of Respondent’s control by

the carriers by air, it would not follow, as I understand the General

Counsel to contend, that a finding that Respondent’s operations

at shoppes 391, 392, and 395 were subject to the Railway Labor

Act woud deprive the NLRB of jurisdiction over Respondent’s

other operations. See Northwest Airlines, Inc., 47 NLRB 498;

Northern Pacific Transport Company, 89 NLRB. 1561; Jackson v.

Northwest Airlines, Inc., 70 F. Supp. 501, aff’d 185 F. 2d 74

(C. A. 8), cert. den. 342 U.S. 812. -

eee A50 .

but one of Respondent’s operating divisions, from its head-

quarters. They are entitled to receive the same fringe

benefits as Respondent’s other employees, and they are

subject to the same,-centrally originated, personnel policies

as Respondent’s other employees. Respondent independ-

ently hires, discharges, and supervises employees for the

three shoppes, and although the airlines may on occasion

request that individual employees not be allowed to work

on or around aircraft, the basis for such requests is inde-

pendently investigated and the requested action is not

invariably taken.

Although several statutes employ definitions of carrier

not materially different from that contained in the Railway

Labor Act or incorporate its definition by reference,”' there

appears to have been little oceasion for judigial considera-

tion of the nature of the control intended by Congress to

bring a company not itself operating as a carrier within °

the coverage of the Railway Labor Act. Howevr, I am

persuaded from those authorities that I have found that

control does not mean simply specification in some detail

as to the naturé of the services to be performed and the

method used, but ‘control of the management ‘and business

policy of the subordinate company.2 Such control is not

present here. °-

21. 26 U.S.C Br ha .S. C. A. § 213(b) (3) ; 42

U.S. C. A. § 410(a) (9), 45 U.S. c. . § 288(a); 45 U.S. C. A.

§ 351(a). There is a common thread tieing these statutes together

into a comprehensive scheme for regulating labor relations, work-

ing conditions, and retirement policy with respect to carriers as

a class apart from other employers covered by a different system

of regulation. It appears that Congress intended uniformity of

interpretation of the definition of carrier in this legislation. See

Northern Pacific Railroad Co. v. Reynolds, 68 ie Supp. 492, 494,

aff’d 168 F. 2d 934 (C. A. 8), cert. den. 335 U.S. 828; Martin v.

Federal Security Agency, 73 F. Supp. 482, 494, aff’ d\174 F. 2d

- $64 (C. A. 3).

22. Martin v. Federal Security Agency, 174 F. 2d 364 (C. A.

3), affirming 73 F. Supp. 482; Railroad Retirement Board Regula-

NER LE LL SS LSE SRLI LID, SP RRLALELTT ARIAT

A5dl

I conclude on the facts set forth above that Respondent

is not a company controlled by a carrier or carriers within

. the meaning of the Railway Labor Act, is not subject to the .

provisions of the Railway Labor Act, and is an employer

within the meaning of the National Labor Relatidns Act.

Upon the basis of the above findings of fact and the entire .

record in this case, [ make the following: |

’

ConcLusIOoN oF Law.

1. Respondent is an employer within the meaning of

Section 2(2) of the National Labor Relations. Act, as

amended.

RECOMMENDATION.

Upon the basis of the foregoing findings of fact and con-

clusion of law, I recommend that Respondent’s defense

that it.is not an employer within the meaning of Section

2(2) of the Act be rejected and: that the Board proceed to

rule on the General Counsel’s Motion for Summary Judg-

ment in the light of the findings and conclusion herein.

Dated at Washington, D. C. :

/s/ Daviy §. Davinson,’

David S. Davidson,

| Trial Examiner.

tions 20 CFR 202.4, 202.5; Federal Tax Regulations under IRC

1954, § 31,3231(a)-1(b) ; Official Answer of the Assistant Solicitor,

Department of Labor, 91 Wage Hour Manual (BNA) 909-911.