Bolton & Hay

National Labor Relations Board - Board Decisions

Jul 24, 1952

100 N.L.R.B. 361 (N.L.R.B. 1952)

BOLTON & HAY 361
J. B. SPEICHER , L. M. BOLTON , L. R. BOLTON , E. B. McKASSON, J. B.
MCMILLEN , AND JAMES SPEICHER , JR., CO-PARTNERS , D/B/A BOLTON
& HAY; J . B. SPEICHER , L. M. BOLTON , L. R. BOLTON , E. B. McKAS-
SON, J . B. MCMILLEN, JAMES SPEICHER , JR., AND ART E.-GORDON, CO-
PARTNERS , D/B/A BOLTON & HAY RESTAURANT, 212 4TH ST., DES
MOINES, IOWA ; J. B. SPEICHER , L. M. BOLTON, L. R. BOLTON, E. B•.
MCKASSON , J. B. MCMILLEN, JAMES SPEICHER , JR., AND HENRY
SILLMAN , CO-PARTNERS, D/B/A BOLTON & HAY RESTAURANT , 116 6TH
AVE., DES MOINES, IOWA; J. B. SPEICHER , L. M. BOLTON, L. R.
BOLTON, E. B. McKASSON , J. B. MCMILLEN , JAMES SPEICHER, JR.,
AND MELVIN N. LAWSON, CO -PARTNERS , D/B/A BOLTON & HAY RES-
TAURANT, 416 E. 6TH ST., DES MOINES , IOWA; J . B. SPEICHER, L. M.
BOLTON, L. R. BOLTON , E. B. MOKASSON , J. B. MCMILLEN, JAMES
SPEICHER , JR., AND GLEN DUNBAR , CO-PARTNERS , D/B/A BOLTON &
HAY RESTAURANT, 415 5TH ST ., DES MOINES , IOWA ; J. B. SPEICHER,
L. M. BOLTON , L. R. BOLTON, E. B. McKASSON , J. B. MCMILLEN,
JAMES SPEICHER , JR., AND ALBERT L. FLEMMING , CO-PARTNERS, D/B/A
BOLTON & HAY RESTAURANT , 607 GRAND, DES MOINES , IOWA; J. B.
SPEICHER , L. M. BOLTON , L. R. BOLTON , E. B. McKASSON, J. B.
MCMILLEN , JAMES SPEICHER , JR., AND DON WARNER, CO-PARTNERS,
D/B/A BOLTON & HAY RESTAURANT, 417 7TH ST., DES MOINES, IOWA;
J. B. SPEICIIER , L. M. BOLTON , L. R. BOLTON , E. B. McKASSON, J. B.
MCMILLEN , JAMES SPEICHER , JR., AND KENNETH WENDELL, CO-
PARTNERS D/B/A BOLTON & HAY RESTAURANT , 823 LOCUST, DES
MOINES, IOWA and LOCAL 247 , HOTEL, RESTAURANT EMPLOYEES AND
BARTENDERS INTERNATIONAL ALLIANCE , A. F. OF L., PETITIONER.
Case No. 18-RC-1378 . July 24,1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Clarence A . Meter, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case , the Board finds :
1. Bolton & Hay is a partnership consisting of six men, one of
whom, J. B. Speicher , acts as managing partner. The partnership of
Bolton & Hay is itself a partner in seven separate partnerships, each
of which does business under the name Bolton & Hay Restaurant.
100 NLRB No. 60
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Each of these seven partnerships is exclusively engaged in the opera=
tion of one of the seven restaurants in Des Moines in which the
employees sought to be represented by the Petitioner-work. Bolton
& Hay has a two-thirds interest in each of the restaurant partnerships;
the remaining one-third interest is held in each instance by an indi-
vidual partner who acts as manager of the restaurant. Each manager
receives a salary from the partnership of which he is a member as well
as a one-third interest in its profits.'
Each manager renders a daily report to the managing partner of
Bolton & Hay reflecting all transactions for the day. Bolton & Hay
does all the bookkeeping, accounting, and auditing for the restaurants,
charging each restaurant $50 a month for the service. Although each
restaurant partnership has its own bank account, no manager has
ever drawn on such an account. All checks, including those for rent
and for the manager's salary, are signed by Speicher or by his assistant,
who is also one of the partners of Bolton & Hay. Cancelled checks
are not sent to the restaurant manager, but to Bolton & Hay. The
employees in the restaurants are paid in cash. Bolton & Hay lists all
of them as its employees on income tax withholding statements and
social security tax returns, although each manager does the actual
hiring and discharging of employees in the restaurant he manages.
Each manager selects the daily menu for his particular restaurant
which is then mimeographed in the offices of Bolton & Hay. Bolton
& Hay discusses from time to time with each manager any proposed
changes in the type of food served or in pricing policy.
Bolton & Hay sells at wholesale, restaurant and hotel equipment.
It also maintains a commissary which carries meat, butter, coffee, and
the products of a bakery which it operates on its premises, but none
of these food supplies are sold to any restaurants or commercial cus-
tomers 2 other than the Bolton & Hay restaurants. Although the
managers testified that they were free to purchase elsewhere items
carried by Bolton & Hay, the record establishes that in practice they
seldom do so.3
' None of the restaurant managers is a member of Bolton & Hay nor has any financial
interest in any of the restaurant partnerships other than the one in which he is a partner.
2 It appears that the managers and some other individuals , not identified in the record,
make some purchases at the commissary for domestic consumption.
' Although one of the managers testified that he bought some of his meat elsewhere,
most of the managers testified that they bought from outside sources items carried by
Bolton & Hay only when supplies ran short during the day Milk and some other dairy
products are purchased by Bolton & Hay from a local dairy and delivered directly to the
restaurants by Bolton & Hay in its own trucks . Bread is delivered directly by an outside
company which receives payment from Bolton & Hay which in turn debits the running
accounts of the individual restaurants as it does on items which it furnishes directly to
them.
BOLTON & HAY 363
Under a contract with the United States Army, signed by Speicher,
Bolton & Hay restaurants are obligated to serve meals to inductees
on presentation of meal tickets. During 1951 Bolton & Hay received
at least $67,000 under this contract and credited each restaurant in
proportion to the number of meal tickets turned in by it.
In these circumstances, we find that Bolton & Hay and the seven
restaurant partnerships constitute, contrary to their contention, a
single employer within the meaning of Section 2 (2) of the Act 4
During 1951 the Employer made purchases outside the State of
Iowa valued at $301,915.50, and sales to customers outside the State
valued at $31,082.90. We find that the Employer is engaged in com-
merce within the meaning of the Act and that, on the basis of the out-
flow and of the services rendered to the Armed Forces which substan-
tially affect national defense, it will effectuate the policies of the Act
to assert jurisdiction b
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a unit comprising all the non-
clerical employees in the restaurants of the Employer. These em-
ployees, numbering about 120, are all located in one city and are all
engaged in similar types of work which is not performed by any other
employees of the Employer. As there is nothing in the record detract-
ing from their apparent mutuality of interest, we.find that they may
appropriately be represented in a single unit.
Accordingly, we find that all waiters and waitresses, counter men
and women, bus boys and girls, cooks, and other kitchen help employed
in the Bolton & Hay Restaurants in Des Moines, Iowa, excluding man-
agers, cashiers, and all supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b).
[Text of Direction of Election omitted from publication in this
volume.]
4 Hollow Tree Lumber Company, 98 NLRB 493 ; Florida Jafra Steel Co. et al, 94
NLRB 386
" Stanislaus implement f Hardware Co. Ltd, 91 NLRB 618 ; Westport Moving of
Storage Company , 91 NLRB 902 . Our jurisdiction is not derived from the Fair Labor
Standards Act, so the Employer's assertion that the Administrator of that Act has ruled
that service establishments such as restaurants are not subject to its provisions is, there-
fore , immaterial . We have hitherto asserted jurisdiction over restaurants . Childs
Company, et al, 88 NLRB 720; Mil-Bur Inc. d/b/a Howard Johnson, 94 NLRB 1161.