Davis Cafeteria, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1966

160 N.L.R.B. 1141 (N.L.R.B. 1966)

DAVIS CAFETERIA, INC. 1141
is a nonprofit, mutually owned water company which supplies all of
its water for farm use. Therefore, we further find that the employees
involved are "agricultural laborers" and that the Board is precluded
from asserting jurisdiction over them.
Accordingly, we shall dismiss the petition.4
[The Board dismissed the representation petition.]
* In its answer to the Board 's notice to show cause , the Petitioner opposed dismissal of
the petition on the sole ground that the record does not establish that 95 percent or more
of the water stored or supplied by the Employer is used for farming purposes In view of
the record facts, we cannot agree.
Davis Cafeteria , Inc., and Polly Davis Broward Cafeteria, Inc.
and Hotel and Restaurant Employees & Bartenders Union,
Local 339, AFL-CIO. Case 12-CA-2606. September 14, 7966
SUPPLEMENTAL DECISION AND ORDER
On November 20, 1963, the National Labor Relations Board issued
its Decision and Order in the above-entitled proceeding,' finding that
the Respondents had violated Section 8(a) (5) and (1) of the
National Labor Relations Act, as amended, by refusing to recognize
and bargain with the Union as collective-bargaining representative
of the Respondents' employees in two separate units, namely, employ-
ees at the Respondents' Hollywood, Florida, cafeteria, and those at
the Respondents' Fort Lauderdale, Florida, cafeteria. Thereafter, the
Board filed a petition with the United States Court of Appeals for
the Fifth Circuit for enforcement of its Order. The court denied
enforcement of the Board's Order, and, citing 11letropolitan Life
Insurance Company,2 remanded the case to the Board to further
explicate the basis for its unit determination in the underlying
representation proceeding.
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 McCulloch and Members Brown and
Zagoria].
The essential facts, which are not in dispute, are as follows : The
Respondents herein, Davis Cafeteria, Inc., located in Hollywood,
Florida, hereinafter referred to as Davis, and Polly Davis Broward
Cafeteria, Inc., located at Fort Lauderdale, Florida, hereinafter
referred to as Broward, are wholly owned subsidiaries of Miami
Cafeteria, Inc. The latter has its gelieral offices in Miami, and oper-
1145 NLRB 82.
2 N L.R B. v. Metropolitan Life Tnsuranee Company, 380 U.S. 438
160 NLRB No. 80.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ates, in addition to the foregoing, six cafeterias in and around Miami
(Dade County).3 Davis and Broward are 18 and 25 miles, respec-
tively, from the general offices of Miami, and are 8 miles from each
other. The general manager of Miami has overall supervision for the
chain, and, for some administrative purposes, the eight cafeterias are
grouped into districts, each of which is headed by a district super-
visor. Davis and Broward are in the same administrative district as
the cafeterias of Davis Colonial, Inc., and Polly Davis Cafeteria, Inc.,
both of which are in the Miami area (Dade County), about 20 miles
from the Broward County cafeterias.
Each cafeteria is under the management and direction of a local
manager, who is ultimately responsible for all aspects of his cafe-
teria's day-to-day operation. He represents his store in district and
general management meetings. He is personally responsible for the
placing of all orders, whether for foods, supplies, decorations, main-
tenance, advertisements, or other miscellaneous items, subject only to
his use of the approved list of suppliers furnished each cafeteria by
the general office. Each local manager has the authority independently
to hire, discharge, and discipline employees, and may initiate pay
raises, although he cannot grant them. Local managers direct the
preparation of food from master menus, provided by the general
office, which also sets food prices. Each cafeteria has a separate bank
account, although only general office personnel can draw checks on
the account, and each manager can obligate the credit of the Company
in purchases of miscellaneous supplies. The general office maintains
personnel, payroll, and social security records of all cafeteria employ-
ees, and makes up their pay checks. A separate account is maintained
in the general office for each cafeteria. General labor policy, rates of
pay, hours of employment, insurance benefits, and overtime' and
vacati0115 periods are fixed by the general office, which also tabulates
suppliers' competitive bids on "bid sheets," which govern local cafe-
teria managers in purchasing food and supplies. There is little or
no employee interchange between the various cafeterias, and no
collective-bargaining history.
The Regional Director found that "despite the centralization of
labor policies and certain other aspects of the cafeterias' operations,"
separate units composed of employees of the Davis and Broward
cafeterias were appropriate. He relied on the high degree of local
autonomy of each cafeteria, the lack of employee interchange, and
the geographical separation of the operations. The Board denied
3 All eight cafeterias are operated under the trade name "Polly Davis."
4 Each manager, however , decides when overtime is to be worked , and which employees
are to do it , after consulting with the district supervisor.
5 Each manager , however , schedules the vacation period of each of his employees.
DAVIS CAFETERIA, INC. 1143
review, and, in the subsequent unfair labor practice proceeding, found
that the Respondents had violated Section 8(a) (5) of the Act by
refusing, on the ground of inappropriate units, to recognize and
bargain with the Union. As stated, the court remanded the case to
the Board, upon the ground that neither "the Regional Director,
the Examiner nor the Board has disclosed the basis for the unit
determination."
The crux of the Respondents' argument, in the Board proceedings
and before the court, was that the appropriate unit in this case should
comprise all of the eight cafeterias in the chain, or, in the alternative,
that the unit should embrace the administrative grouping of the
Respondents' cafeterias comprising the Davis and Broward cafe-
terias in Broward County and the two Miami area cafeterias in Dade
County. In this connection, it is argued that Respondents' operation
is a completely integrated one, and that to find appropriate single
cafeteria units, as the Board has done in the instant case, is to seg-
ment and fragrnentize into single units a completely and totally inte-
grated cafeteria chain operation. Finally, it is contended that the
single cafeteria units established by the Board's decision is based
upon extent of organization, and, thus, is contrary to Section 9(c) (5)
of the Act.6
The sole affirmative guide as to what constitutes an appropriate
bargaining unit is contained in Section 9(b) of the Act, which reads:
The Board shall decide in each case whether, in order to assure
to employees the fullest freedom in exercising the rights guaran-
teed by this Act, the unit appropriate for the purposes of collec-
tive bargaining shall be the employer unit, craft unit, plant unit,
or subdivision thereof ... .
As the Court of Appeals for the Fifth Circuit observed in N.L.R.B.
v. Belcher Towing Company ,7 Congress authorized the Board to make
the determination as to what is an appropriate unit, and, in making
this determination, a wide discretion has been vested with the Board.
Under this broad delegation of authority, the Board, in determining
whether the unit petitioned for in a particular case is appropriate,
has, with court approval, traditionally looked to such factors as the
community of interest among the employees sought to be represented;
whether they comprise a homogeneous, identifiable, and distinct
group; whether they are interchanged with other employees; the
extent of common supervision; the previous history of bargaining;
and the geographic proximity of the various parts of the employer's
9 Section 9 (c) (5) provides : "In determining whether a unit is appropriate for the pur-
poses specified in subsection ( b) the extent to which the employees have organized shall
not be controlling."
7 284 F.2d 118, 120.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation.' Moreover, it is well settled that there is more than one
way in which employees of a given employer may appropriately be
grouped for purposes of collective bargaining.9
In Sav-On Drugs, Ine.,10 the Board reexamined its unit policies in
the retail chain industry and modified its prior rule that the appro-
priate unit in retail chain operations must be coextensive with the
employer's administrative decision or the geographical area involved.
The Board there affirmatively stated that it would apply to retail
chain operations the same unit policy that it applies to multiplant
enterprises in general, that is, that it would determine the appropri-
ateness of a proposed unit confined to one of two or more retail
establishments in a chain in the light of all the relevant circumstances
of the particular case.
In the recent Purity Food Stores case,1' the Board further defined
its policy in connection with the appropriateness of single store units
in a retail chain operation. In Purity Food, the Board found that the
evidence demonstrated that the employer's Peabody, Massachusetts,
store, which, as a retail outlet, was the analogue of the industrial
plant, possessed significant autonomy within the employer's overall
operations, and was composed of employees closely and distinctly
related in location and function. The Board held, essentially, that
despite a substantial degree of centralized control in the employer's
operation, a common attribute of all chain store operations, the
employer's Peabody store constituted "a distinct, self-contained eco-
nomic unit," and was, therefore, an inherently appropriate bargain-
ing unit. The Board stated that "to regard Respondent's adminis-
trative structure as defeating the appropriateness of the single store
unit would artificially disadvantage the organizational interests of
these and other chainstore employees, simply because their employer
operates a chain rather than a single store enterprise" and would
undermine the principles stated in Sav-On Drugs. In finding appro-
priate a unit limited to the Peabody store employees, the Board said :
The Peabody store employees regularly work together and have
common interests in relations to their Employer, some of which
are separate and apart from those of employees in other locations.
The freedom of choice of this one cohesive group of employees
to have or not to have a bargaining representative should not
be dependent upon the interest or lack of interest in such repre-
8 See, for example , May Department Stores d/b/a Famous-Barr Company v. N.L R.B.,
326 U.S. 376, 380.
0 See, for example , General Instrument Corp . v. N.L.R.B., 319 F 2d 420, 422,423 (C A.
4), cert. denied 375 U.S. 966; Mountain States Telephone and Telegraph Co. v. N.L R.B.,
310 F.2d 478 , 480 (C .A. 10).
10138 NLRB 1032.
n Purity Food Stores Inc . ( Sav-More Food Stores ), 160 NLRB 651.
DAVIS CAFETERIA, INC. 1145
sentation on the part of other employees in separated, and in this
case somewhat distant, retail chain outlets serving other markets
in a populous area. As heretofore indicated, there is a substantial
amount of hiring done at the Peabody store and of autonomy in
the direction of day-to-day operations, reflecting the Respond-
ent's own allocation of distinct responsibilities there .... [T]he
impact of any labor dispute at the Peabody store is not likely
to be felt at Respondent's other outlets which serve different
markets. In our judgment, the institution of localized bargaining
on behalf of the separate, identifiable group of Peabody employ-
ees, involving, inter alia, such matters as the establishment and
administration of local work rules, grievance protections, vaca-
tion programs, seniority and pension rights, as well as the setting
of wage rates, is not only entirely feasible, but would not unduly
encroach on the Employer's various administrative controls.
(Footnotes omitted.)
Applying the principles stated in Sav-On Drugs and Purity Food
Stores to the facts in this case, we reaffirm our finding that sepa-
rate units of employees at the Davis and Broward cafeterias are
appropriate.
There are, concededly, a number of factors which would appear to
militate in favor of the appropriateness of a multi-cafeteria unit.
Thus, there is a degree of functional integration between the central
office and the eight cafeterias operated by the Respondents, as evi-
denced by the facts that personnel, payroll, and social security records
are kept by the general office; the general office determines labor
policy, rates of pay, hours of work, and insurance benefits; and the
general office supplies a master menu for the assistance of the local
managers, and determines the food prices to be charged to customers.
On the other hand, as in Purity Food, we do not believe that the
record here discloses that degree of functional integration necessary
to defeat the separate identity of the Davis and Broward cafeterias.
We note, initially, that local cafeteria managers possess considerable
autonomy. Thus, they may hire, discharge, and discipline employees,
initiate wage increases, schedule individual employee vacations, and
determine overtime needs. Each cafeteria has a separate bank account,
and each manager may obligate its credit in purchasing supplies
necessary to the conduct of the business. The substantial autonomy
of the Respondents' Davis and Broward cafeterias compels us, as in
Purity Food, to conclude that these cafeterias are distinct, self-
contained economic units. In view thereof, and in the light of the
geographical separation of the Davis and Broward cafeterias from
the other cafeterias in the Respondents' chain, the lack of any
1146 DECISIONS OF,NATIONAL LABOR, RELATIONS BOARD
employee interchange among the various cafeterias, the absence of
any bargaining history at any of the Respondents' facilities, and the
fact that, no labor organization is seeking to represent-employees on
a broader basis, we find that separate units of employees at the
Respondents' Davis and Broward cafeterias are appropriate. This
unit, we believe, conforms fully with the provisions of,the Act, and,
in our opinion, assures to employees the fullest freedom in exercising
their rights guaranteed under the Act .112
We find no merit in the Respondents' contention that this finding
is based on the extent of union organization, and therefore, contrary
to Section 9(c) (5) of the Act. It is now well established that Sec-
tion 9(c) (5) was intended only to preclude the Board from basing
its unit determination solely on extent of organization when other
relevant criteria of appropriateness are absent. It was not intended
to invalidate units which, as here, qualify under other tests of
appropriateness.13
In remanding the case, the court pointed out that the Board did
not indicate what effect, if any, it gave to testimony by the union
agent that the Union would not accept a unit which included cafe-
terias outside Broward County, because it had no jurisdiction in Dade
County. In making unit determinations, the Board must, of course,
consider which unit or units of employees the union seeks to repre-
sent. But this is true only because it is a union petition which nor-
mally sets in motion the Board's representation procedure. It is also
clear that a union's unit request may be based on any number of
factors, including the extent of its jurisdiction. However, the issue
before the Board in a representation case is not why the union seeks
to represent the employees, in a particular unit but, rather, whether
i he unit of employees it seeks to represent is appropriate. Here, on the
basis of the factors set forth above, and without regard to the geo-
graphical limitations of the Union's jurisdiction, we find that sepa-
rate units of employees at the Davis and Broward cafeterias are
appropriate.14
-. The court also indicated that it found it "difficult to reconcile" the
unit.finding in this case with that of the - Regional Director in the
contemporaneous unreported decision in Rick f ord's Inc15 In our view,
the facts- in' Bick f ord's are significantly different from those in the
instant case, particularly since there, unlike here; the Regional Direc-
'2 Sun Drug Co., Inc., ,147 NLRB 669, enfd. 359 F .2d 408 (C.A. 3).
zs N.L.R.B. v.' Metropolitan Life Insurance Co., supra; Metropolitan Life Insurance Co.
( Woonsocket, R.I.), 156 NLRB 1408, footnote 20.
is See, for example, Associated Grocers, Incorporated , 142 NLRB 576 , 577-578; A. F. Pub-
licover and Company,,134 NLRB 573, 575; Paxton Wholesale Grocery Company, 123 NLRB
316,317. -
15•Bick'ford'a ' Inc., d/b/a M & M Cafeteria , Cases 12-RC-1617 and 1618 ( not' published
in NLRB volumes).
LANE DRUG CO . 1147
tor found a "lack of every-day autonomous control in the operation
of the local cafeterias." We acknowledge, however, that the court
characterized as "futile" any attempts to distinguish the two cases
on factual grounds. But the court apparently has overlooked the
differing procedural posture of the two cases. In Bick f ord's, the
Regional Directors found the units sought inappropriate, and the
parties did not seek Board review of this determination. In this case,
on the other hand, the Employer requested the Board to review the
Regional Director's determination that the units sought were appro-
priate and the Board denied the Employer's request. We have now
considered the Respondents' contentions a second time in light of the
court's decision remanding this case and in light of the Regional
Director's determination in Bick f ord's, and we again find him to be
without merit.'6
Accordingly, we reaffirm our previous finding that the Respondents
violated Section 8 (a) (5) of the Act by refusing to bargain with the
Union as the exclusive bargaining representative of the Respondents'
employees.
[The Board reaffirmed its Order of November 20, 1963, in this
proceeding.]
19 We need not and therefore do not decide whether, if review had been requested in
the Bickford's case, we would have affirmed the Regional Director 's unit findings.
Lane Drug Co., Division of A. C. Israel Commodity Corporation;
Lane's of Sylvania , Inc.; Lane's of Bowling Green , Inc.; Lane's
of Oregon, Inc. and Retail Store Employees Union Local 954,
Retail Clerks International Association , AFL-CIO. Case 8-CA-
3885. September 15,1966
DECISION AND ORDER
On April 26, 1966, Trial Examiner Stanley N. Ohlbaum issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that the
Respondents had not engaged in certain other unfair labor practices
and recommended that the complaint be dismissed with respect
thereto. Thereafter, the Respondents filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the General Counsel
filed a brief in answer to the Respondents' exceptions. The Charging
Party filed a brief in support of the Trial Examiner's Decision.
160 NLRB No. 86.