Eschenbach-Boysa Co.

National Labor Relations Board - Board Decisions

Jan 17, 1984

268 N.L.R.B. 550 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eschenbach-Boysa Management Company, Inc., Es-
chenbach-Boysa Management Company of Wau-
kesha, Inc. and Hotel Employees and Restau-
rant Employees International Union, Local No.
122, AFL-CIO, Petitioner. Case 30-RC-4143
17 January 1984
DECISION ON REVIEW AND
DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, a hearing was
held before Hearing Officer Paul Bosanac of the
National Labor Relations Board. Following the
close of the hearing the Regional Director for
Region 30 issued a decision. Thereafter, the Em-
ployer filed a request for review of the Regional
Director's decision and brief in support thereof and
the Petitioner filed briefs in support of the Region-
al Director's decision.
On 20 July 1982 the National Labor Relations
Board by telegraphic order granted review as to
the appropriateness of the unit.1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the hearing officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are affirmed. Ad-
ditionally, the Board has reviewed the record in
light of the request for review and briefs, and
adopts the Regional Director's findings and recom-
mendations.
The Employer consists of two franchise restau-
rants located respectively in Milwaukee and Wau-
kesha, Wisconsin. The Petitioner seeks to represent
the employees at the Milwaukee location. The Em-
ployer asserts that the appropriate unit should in-
clude both stores.
The Employer's restaurant in Milwaukee opened
in July 1979 and the restaurant in Waukesha in
March 1981. The restaurants are 20 miles apart and
each employs about 25 employees. Each restaurant
is a separate corporation. Lee Martin Eschenbach
owns 50 percent of the stock in each corporation.
Steve Boysa owns the remainder of the stock in the
Waukesha restaurant and 34 percent of the stock in
the Milwaukee location. Bill Heilen owns the re-
mainder of the stock in the Milwaukee location. A
central business office for the Employer is at a sep-
arate location in Milwaukee.
i The Board has been administratively advised that an election was
conducted on 23 July 1982 in the unit found appropriate by the Regional
Director and the ballots were impounded.
268 NLRB No. 77
The two restaurants have identical menus, food
prices, and hours of operation and are promoted
through the same advertising. One workmen's com-
pensation policy covers both locations and employ-
ees at both restaurants receive the same insurance
and vacation benefits and the same 50-percent dis-
count on food purchased prior to the employee's
shift. Wage ranges are similar ($2.01 to $4.50 per
hour at the Waukesha restaurant and $2.01 to $5
per hour at the Milwaukee restaurant) and employ-
ee classifications are identical except that Milwau-
kee has two quality control supervisors and Wau-
kesha has none. Employees in the various classifi-
cations have the same duties, the same paydays,
and the same probationary period. Seniority ac-
crued at one location is honored at the other loca-
tion. All personnel records are kept on the prem-
ises of the respective restaurants and each restau-
rant has a separate payroll and timecards.
Managerial responsibility is split between Es-
chenbach and the two managers employed at each
store. In addition to spending 3 days a week at
each store, Eschenbach calls the managers at the
store where he is not present three to six times a
day. Eschenbach makes the major managerial deci-
sions concerning the restaurants such as setting
menus and choosing vendors and also decides the
number of people to be hired. Additionally, Es-
chenbach sets pay rates and overall terms and con-
ditions of employment. Although the managers do
most of the training of employees, when Eschen-
bach decided to alter the meatcutting technique at
the restaurants, he personally taught the employees
the new technique. Similarly, when a fruit bar was
added to the salad bar, schenbach showed the em-
ployees how to set up and maintain it. Appeal to
schenbach constitutes the third step of the griev-
ance procedure, although employees do call him
directly at home or at the other restaurant concern-
ing their problems.
The managers solve employee problems and
complaints and grant time off. The managers make
up the employee work schedules although such
schedules must be reviewed and approved by Es-
chenbach. Significantly, the managers interview job
applicants and can and have hired employees on
their own. They may discharge an employee for a
severe violation of company policy such as intoxi-
cation or threatening violence but otherwise must
obtain Eschenbach's approval before firing an em-
ployee. As to such terminations that require Es-
chenbach's approval, the managers make effective
recommendations. Occasionally, the managers rec-
ommend employee promotions and raises but most
often they are initiated and determined by Eschen-
bach based on his own observation. The managers
550
ESCHENBACH-BOYSA CO.
do much of the training of the employees, often
using materials provided by the franchising compa-
ny.
The managers determine the quantity of goods to
order based on the previous week's volume. They
can reject merchandise if it does not meet the spec-
ifications of the order. Once or twice a week, uni-
forms, small equipment, or food is transferred be-
tween the two restaurants to relieve temporary
shortages.
There is evidence that the managers rotate be-
tween the two restaurants for training purposes and
to cover vacations and time off. However, there is
virtually no evidence of transfer of employees.
There have been no permanent transfers and three
temporary transfers since the second location was
opened in March 1981. Two of these transfers were
in order to assist in opening the new restaurant.
The third transfer involved emergency help for
one evening.
We agree with the Regional Director's conclu-
sion that the two corporations are a single employ-
er and as such the broader two restaurant unit
could be an appropriate unit. However, as the Re-
gional Director also finds, we conclude the Em-
ployer here has not rebutted the presumption of ap-
propriateness attaching to the single restaurant unit.
The restaurants here are 20 miles apart and there is
virtually no interchange among their employees.
Eschenbach does not make daily visits' to both lo-
cations and therefore, although he reserves for
himself many management prerogatives, he neces-
sarily must leave many of the day-to-day decisions
concerning the restaurants to his managers. These
managers, inter alia, interview and hire employees,
grant time off, and resolve employee problems and
complaints. It thus appears that the employees at
the Milwaukee restaurant have a separate commu-
nity of interest. There is no history of bargaining in
a broader unit. In view of all of the foregoing we
find that the employees employed at the Milwau-
kee restaurant constitute a separate appropriate
unit. 2
DIRECTION
It is directed that the Regional Director for
Region 30 shall, within 10 days from the date of
2 Big Y Foods, 238 NLRB 860 (1978), relied on by our dissenting col-
leagues, varies from the facts in this case in several important respects,
and therefore does not control our decision here. In Big Y, the local man-
agers had no authority to mete out discipline on their own, except for
occasional oral reprimands. They had authority to resolve only the most
minor employee complaints without referring them to the employer's
central officials. The local managers there were not involved in employee
evaluation. In short, the managers here possess far more authority to con-
trol or affect labor relations policy than did the local managers in Big Y
this Decision on Review and Direction, open and
count the impounded ballots cast in the election
held 23 July 1982, and thereafter prepare and serve
on the parties a tally of ballots, on the basis of
which he shall issue the apppropriate certification.
MEMBER HUNTER, dissenting:
I cannot agree with my colleagues that a single
restaurant unit here is an appropriate unit. In my
view, the administration of the restaurant is so
highly centralized in the person of Lee Martin Es-
chenbach that the single location unit presumption
is rebutted.
It is clear from the record that Eschenbach is
either present at or in touch with both restaurants
every day. Eschenbach sets the terms and condi-
tions of employment for both restaurants and they
are virtually uniform throughout. To the extent
that the managers exercise any autonomy, it con-
cerns matters that are largely routine and is exer-
cised consistent with preset guidelines. Although
personnel records of the two establishments are
kept separately as required by law, Eschenbach is a
consistent and important factor in virtually all per-
sonnel actions with the possible exception of the
initial hiring of employees. Thus, Eschenbach must
be consulted about all scheduling and discharges
(except in egregious cases), generally initiates all
raises and promotions, and is frequently involved
with problems and grievances even at their initial
stages. Eschenbach often decides to transfer equip-
ment and food between the two restaurants and has
on several occasions transferred employees from
one restaurant to the other. Indeed, one employee
was transferred for a period of 6 months to a year
when the second restaurant opened. Moreover,
there is evidence that the managers rotate between
the two restaurants to accommodate training needs,
vacations, and time off.
In my view then, the employees at the Milwau-
kee restaurant simply do not have a separate com-
munity of interest in any meaningful way.' Since
the Petitioner has agreed to go to an election in the
larger unit if that is deemed the only appropriate
one, I would direct an election in a unit consisting
of the Employer's employees at its restaurants in
both Milwaukee and Waukesha.
I See, for example, Big Y Foods. 238 NLRB 860 (1978), where the
Board found a single location unit inappropriate. There interchange was
also limited, but, as here, the local managers' autonomy was greatly cir-
cumscribed.
551