National Labor Relations Bd. v. Horn & Hardart Co., 191

• Decision Date: 01 February 1971
• Docket Number: No. 191,Docket 34714.,191
• Citation: 439 F.2d 674
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The HORN & HARDART COMPANY, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

439 F.2d 674 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The HORN & HARDART COMPANY, Respondent.

No. 191, Docket 34714.

United States Court of Appeals, Second Circuit.

Argued November 11, 1970.

Decided February 1, 1971.

COPYRIGHT MATERIAL OMITTED

Michael Barkow, Atty. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Paul J. Spielberg, Atty., on the brief), for N. L. R. B.

Robert E. Wachs, Philadelphia, Pa. (Richard S. Meyer, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., on the brief), for respondent.

Before SMITH and FEINBERG, Circuit Judges, and LEVET, District Judge.^*

FEINBERG, Circuit Judge:

The National Labor Relations Board asks us to enforce its order requiring respondent The Horn & Hardart Company to bargain with the Restaurant Cashiers Association as representative of the Company's cashiers. The issues before us all grow out of the Board's refusal to defer to an arbitration award which found that the cashiers were part of an overall unit already represented by another union, Cafeteria Employees Union, Local 302, AFL-CIO. For reasons set forth below, we hold that the Board's action was correct, and we enforce its order.

I.

The cashiers in question work at the Company's chain of restaurants in the New York City Metropolitan area. There are three types of restaurants: waitress-service, cafeteria, and automat-cafeteria. In each, money is handled in a slightly different way and the duties of employees vary accordingly. In the waitress-service restaurants, customers receive a check from the waitress and pay a cashier who makes change from a cash register. In the cafeterias, "checkers" at the end of the food line add up the customers' bills, receive payment, and give change from a cash register. In the automat portion of the automat-cafeterias, employees (who are also called "cashiers") make change for use in the vending machines; in the cafeteria portion, "checkers" operate as described above.

Each type of restaurant has a "head cashier" who receives money taken in by the restaurant, makes up the "bank" (the amount of cash given to each cashier or checker at the start of the day), and prepares the payroll once a week. Head cashiers alone of rank-and-file employees have the combination to the restaurant safe. Head cashiers and relief head cashiers comprise slightly over half of the certified unit involved here; the other employees are called "assistant cashiers," "relief cashiers," or "P. M. cashiers." The distinctive administrative duties of the head cashiers occupy two or three hours of their time each day. During the balance of their shift, the head cashiers' duties vary depending upon the type of restaurant. In the waitress-service restaurants, there are typically no assistant cashiers, and the head cashiers perform the cashiers' regular duties at the cash register in addition to their distinctive duties as head cashiers. In the cafeterias, the head cashiers relieve the checkers. In the automat-cafeterias, the head cashiers either serve as money changers or relieve the assistant cashiers. Checkers and other personnel relieve the cashiers in automat-cafeterias and waitress-service restaurants, but do not perform any of the distinctive duties of head cashier when doing so. Cashiers and checkers have the same workweek, vacations, holidays, leave policy, meal entitlement and supervision. All cashiers are salaried employees, however, while checkers are hourly-paid.

For many years, Local 302 has been trying to organize the Company's New York restaurants. Its efforts included four representation elections, two conducted by the New York State Labor Relations Board and two by the National Labor Relations Board. In each election, checkers were included in the units, but head and other cashiers were not. Although unsuccessful in these elections, Local 302 persisted. Finally, in March 1966, Local 302 and the Company entered into a three-year collective bargaining agreement. The contract unit expressly includes "full time and regular part-time employees" at the Company's restaurants, including "retail food employees, checkers, head busses and hostesses." However, "cashiers" are expressly excluded from the unit. The contract lists wage rates for various classifications, including the "checkers," but contains no rates for any salaried personnel.

In March 1968, Local 302 informed the Company that the exclusion of "cashiers" had been inadvertent, and that they should be included in the unit. The Company rejected this claim. By letter dated April 8, the dispute was submitted to Dr. Maurice S. Trotta, the permanent arbitrator under the collective bargaining agreement. The next day, the Company's Director of Personnel sent a notice through the mail to the managers of the various restaurants, informing the cashiers of the Local 302 demand and the arbitration. However, the notice did not mention when the hearing would take place.

The arbitration was actually held two days later on April 11, and lasted 2½ hours. At the hearing, the parties stated their positions and were questioned by the arbitrator. There was no sworn testimony and the principal written evidence was a copy of the contract between Local 302 and the Company. No cashiers were present, nor were they represented. On April 15, the Restaurant Cashiers Association wrote the Company that it represented a majority of the cashiers and asked to be recognized as bargaining representative. The letter also stated that the Association had filed a petition for certification with the National Labor Relations Board. On April 16, the Company sent a copy of the letter to the arbitrator. One week later, he issued his award, holding that "The job classifications Head Cashier and Cashier were not intended by the parties to be excluded from the bargaining unit."

Thereafter, proceedings commenced before the National Labor Relations Board on the Association's representation petition. The Company and Local 302 took the position that the cashiers belonged in the larger unit and urged dismissal of the petition on a number of grounds. The Board found that the cashiers constituted a "residual unit which may be appropriate for separate representation," but that an overall unit including the cashiers could also be appropriate if the cashiers preferred representation by Local 302 in the larger unit. Accordingly, the Board directed an election in which the cashiers were offered the alternatives of being represented by the Association, by Local 302, or by no bargaining agent at all. At the election in January 1969, 57 cashiers voted for the Association, and 45 voted against representation. Not a single employee voted for Local 302. Thereafter, when the Company refused to bargain with the Association upon its demand, the Association filed an unfair labor practice charge. Eventually, the Board granted the General Counsel's motion for summary judgment, found that the Company had violated sections 8(a) (5) and (1) of the Act by refusing to bargain with the Association, and ordered the Company to do so. That order is the subject of this proceeding.

II.

The Company offers a number of reasons why the Board's order should not be enforced. It claims that the Board should have deferred to the arbitrator's decision, that the Board abused its discretion in finding that the cashiers constituted a residual unit and in rejecting the Company's claim that the cashiers were an "accretion" to the current unit, and that, in any event, the Board should not have granted summary judgment. Both parties properly regard the first of these contentions as the most substantial, and to it we turn.

The Company argues that the Board has established rules as to when it will defer to an arbitration award, but in this case failed to follow them. The assertion that the Board must defer to an arbitrator in a particular case is startling at first blush, since the National Labor Relations Act, 29 U.S.C. § 160(a) provides:

The Board is empowered * * * to prevent any person from engaging in any unfair labor practice * * *. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise * * *.

The Company directs our attention to the familiar Steelworkers Trilogy,¹ which emphasizes the expertise of arbitrators and heaps lavish praise upon the arbitration process. We are familiar with those cases — indeed, we doubt if there is a federal judge who is not — and we have fully accepted their implications in the past. E.g., International Longshoremen's Association v. New York Shipping Association, 403 F.2d 807 (2d Cir. 1968). But the Supreme Court itself, quoting the statutory language above, has pointed out that "the relationship of the Board to the arbitration process is of a quite different order" from "the relationship of courts to arbitrators when an arbitration award is under review." NLRB v. Acme Industrial Co., 385 U.S. 432, 436, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967). It is quite clear from the cases that in absolute terms the Board is not "automatically" required "to defer to the primary determination of an arbitrator." Id. at 437, 87 S.Ct. at 568; Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964) ("Should the Board disagree with the arbiter * * * the Board's ruling would, of course, take precedence * * *."); Lodge 743, IAM v. United Aircraft Corp., 337 F.2d 5 (2d Cir. 1964), cert. denied, 380 U.S. 908, 85 S. Ct. 893, 13 L.Ed.2d 797 (1965). Nor is this surprising. The National Labor Relations Act guarantees certain rights to employees, employers, bargaining representatives, and the public, and the Board is charged with protecting these interests. An arbitrator is not. His function is to discern the intention of the parties to a contract, who have hired him to resolve their differences. The...