# Petition for Writ of Certiorari — Local 300, United Industrial Workers v. Marriott In-Flite Services Division of Marriott Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1246%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 920 ## Text LIBRARY { a ¢ : : fee], | 1) 7 A i JAN 5 1970 : i | im. 88 7 JOHN F, BAVi8, Co { J as fal supreme Court of the United tates | Ocroser TERM, 1969. 1 we. 1089 : , ‘ ~ - , oi ‘ 4 . - -*, . A u ° . . . ; ; . - 4 2 -= . . - n~ a ‘ . _! - . ‘ , . é ‘ ‘ e . i ; ° . ’ » ° s 2 « = - . ’ ~ : ‘ As: © . 3 ’ . » ° . , 5S se - ‘ m3 ay - . ’ Pd ™~ ~ * % * . . * ‘ AA) Q Fs oo OY ays ste i pe ‘i ¢ . « . ' » * , . > ‘ a & ny ¢ ; ; acy A ’ e a s 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 \“ e : \ il 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 ‘ er iv 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 © © GS 0/6 8 « ae a a° a8 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. a 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 , yf “ 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. ; 4) 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 o~ ~~ 15 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 : ee ‘ 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 e, 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 ent prepares liquor kits for.the airline, the liquor is pur- 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. See also 49 U.S. C. A. § 1(3) (b). A52 / APPENDIX E. STATUTES sk meavtarions / v4 Labor Management Relations Act, iva, as Aimended. 61 Stat. 136, 29 U.S. C. Lol et seq.: ‘ * * * : % * - NaTIONAL Lasor RELATIONS Boarp. * a * . te * ; + ~ Sec. 3. * * * (b) The Board is authorized to. delegate to any group of three or more members any or all of the powers which it may itself exercise. The Board is also au- thorized to delegate to its regional directors its powers under section 9 to determine the unit appropriate for the purpose of collective bargaining, to investigate and provide for hearings, and determine whether a question of repre- sentation exists; and to direct ap election or take a secret ballot under subsection (¢c) op’(e).of section 9 and certify the results thereof, except that upon the filing of a request therefor with the Board by .any interested person, the Board may review any action*of a regional director dele-. gated to him under this paragraph, but such a review shall not, unless specifically ordereg-b¥ the Board, operate as-a? stay of any action taken by the regional director.