Twenty-First Century Restautant of Nostrand Avenue Corp.

National Labor Relations Board - Board Decisions

Aug 23, 1971

192 N.L.R.B. 881 (N.L.R.B. 1971)

TWENTY-FIRST CENTURY RESTAURANT 881
Twenty -First Century Restaurant of Nostrand Avenue
Corp., Licensee of McDonald 's Corporation and
Local 325, Cooks, Countermen, Soda Dispensers,
Food °Checkers, Cashiers and Assistants Union,
AFL-CIO, Petitioner. Case 29-RC-1631
August 23, 1971
DECISION,ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On February 26, 1971, the Regional Director for
Region 29 issued his Decision and Direction of
Election in the above-entitled proceeding, in which
he found appropriate a unit of-all employees of the
Employer at its Nostrand Avenue, Brooklyn, New
York, location. Thereafter, in accordance with
Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Employer timely filed a request for review of the
Regional Director's Decision, contending that the
unit sought by the Petitioner is not an appropriate
unit.
On April 7, 1971, the National Labor Relations
Board by telegraphic Order, granted the request for
review. Thereafter, the Employer filed a brief on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act,, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the entire record in this
case, including the request for review, the Petitioner's
statement in opposition to the request for review, and
the Employer's brief on review, and makes the
following findings:
The Petitioner seeks an election in a unit limited to
all of the employees at the Employer's Nostrand
Avenue, Brooklyn, New York, location., The Em-
ployer contends that the only appropriate unit is a
unit encompassing all of the Employer's 22 locations
in the New ` York New Jersey area, or alternatively,
all 7locations in the New York area. Contrary to the
Regional Director, we find merit in the Employer's
ontention that the unit sought is inappropriate.c tention'
The record reflects that the Nostrand Avenue
location is, one of 22 separately incorporated restau-
rants in the New York-New Jersey area operated
under a common franchise arrangement with McDo-
nald's Corporation.'All 22 locations have identical
exterior, and interior designs and offer the same
limited number of food and beverage items at a
uniform price. All locations observe identical hours
of operation.
192 NLRB No. 103
Although each location is separately -incorporated,
overall policy for all corporations is established by a
six-man, executive committee which operates out of
the headquarters of the Twenty-First Century corpo-
rate structure at Rahway, New Jersey. The` policies
established by the committee, including labor rela-
tions policies, are applied uniformly throughout the
entire chain. All administration, payroll, and record-
keeping functions are centralized at the corporate
headquarters, and a uniform fringe benefits program
is applied to all locations.
The 15 New Jersey restaurants and the 7 New York
City restaurants are in separate administrative
divisions, each headed by a general manager..All of
the New York restaurants are located ; within a -10-
mile radius of each other. The New York, area
general manager is assisted by two field supervisors.
The New Jersey general manager is assisted by three
field supervisors. Each restaurant has a manager who
is responsible to the- field supervisors and -ultimately
to the general manager.
It is the responsibility of the general manager to
insure that each location within his area is operated
in accordance with predetermined corporate policies
and standards. He sets uniform hours and prepares
the labor schedule formula which determines' the
crew size working at each location each dayAn the
event the circumstances warrant, the general manag-,
er transfers employees from location, to location to
handle unusual changes in the volume of business at
particular outlets. The general manager reviews
employee timecards to insure that location managers
comply with- corporate policies limiting the ' number
of hours of overtime worked by employees and
establishing the criteria for equitable distribution of
working hours among employees. The general
managers make regular visits to the locations within
their area, and the field supervisors normally are
expected to visit each of their locations daily.
Either the general manager or field supervisor must
approve all hiring at any rate above, the_ state
minimum wage, all discharges of,permanenttemploy-
ees, all wage increases, all promotions, and all
transfers of employees between locations. In addi-
tion, only a field supervisor or general manager may
approve an employee request for a leave-of absence.
Promotions to management positions -are the, -sole
responsibility of the area manager, in, conjunction
with the Employer's personnel director. -
The location manager is authorized to hire .new
employees at the state minimum wage, rate (subject
to veto by a supervisor), to discharge employees
within the 90-day probationary period, recommend
discharges after the probationary period, recommend
wage increases , and discipline employees; however,
disciplinary action involving- prolonged, suspension
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be approved_ by , the field supervisor. The
location .manager has no authority to .discipline or
discharge an, assistant, manager, nor does he have any
responsibility- ,for. hiring or evaluating assistant
managers:, While-, the location manager is. responsible
for, training new employees, the training program is
prescribed by corporate headquarters and-is uniform
throughout. the,chain,
The location, manager is authorized to purchase
certain nonperishable items and may borrow supplies
from other locations; however, the purchasing of all
perishable items and , all ' restaurant supplies is
centralized. Those items which the location manager
is authorized, to purchase must be purchased from
certain designated suppliers in accordance with
corporate policy. Similarly, the location manager has
no- authority to request or contact outside repair
services to remedy defects` in refrigeration,` plumbing,
or electrical systems. w
With respect to employee interchange, , the record
indicates that about 45 to 50 employees have been
temporarily transferred among New York locations
during 'the past year, out of a total-of approximately
350 'employees.
On the basis of, the foregoing, we find, contrary to
the Regional' Director and consistent with our
conclusion in another case involving a similar
restaurant,' ` `that' a unit limited, to a'single location at
Nostrand Avenue is not appropriate for the purpose
of collective ba-rgaining.2
In our 'opinion it is significant that all of" the
franchised food outlets' of the Employer, conduct
business under standarized policies, and procedures
subject to close centralized control. It is clear that the
location manager . is vested only with minimal
discretion with respect' to labor relations matters and
the method of operation, and the exercise of his
discretion is carefully-monitored by the field supervi-
sor who visits each location daily and the general
manager, who also makes frequent visitations. In
sum, any - meaningful decision governing labor
relations matters -emanates from established corpo-
ratewide policy, as implemented by the general
managers and field'supervisors. -
The close' geographic proximity of the Nostrand
Avenue outlet to the, other locations within the New
York'- division and the practice of , temporarily
transferring employees within the New York division
further militate against the separate appropriateness
of the unit'sought,
I- See Wolteknm,lo Corporation, d/b/a McDonald's, 192 NLRB No.
102, .issued_ this day, wherein,we affirmed the Regional Director's finding
that a single' location unit was inappropriate.
r See The Pep Bays' Manny, Moe &. Jack, 172 NLRB No. 23; ; and
Caribbean Restaurants, Inc.,, 162 NLRB 676.
Accordingly, it is hereby ordered that the, petition
filed, herein be, and it hereby is, ` dismissed.
MEMBER FANNING, dissenting,
The decision of my colleagues to ,require these
employees oft a nationwide restaurant chain operat-
ing in New York City to select a bargaining
representative on a multistore, basis, rather than the
single-store basis sought by the Petitioner and found
appropriate by the-- Regional Director, is a marked
departure from existing Board precedent. This
departure from precedent is ' emphasized by the
majority's contemporaneous denial of review in
another very, similar case3,. There the Regional
Director dismissed two petitions for single-store units
in the Honolulu, area, - The majority speaks of its
consistency in, these two cases . Consistency,would be
served equally well, of course, if my colleagues
affirmed,-the Regional Director in, this, case and
reversed the Regional Director,in the Honolulu case.
I find it necessary to dissent An both- ' cases.
Since the Sav-On case,4 unit criteria for retail chain
outlets require the examination of evidence not only
concerning groups of stores but also concerning the
day-to-day operation of individual stores. The
essential areas of concern are really only two where
as here we are dealing, with a store in a metropolitan
area, one of a,group of stores admittedly centrally
administered. The pertinent concerns are: Is there
sufficient local autonomy at the individual, store
sought? Is there temporary " , transfer of employees to
other locations and if so is'it frequent? Where there is
meaningful local' supervision and hiring authority at
a single store and infrequent interchange of employ-
ees from one store to' another, the Board has found
that the employees have a real community of interest
in their daily working conditions such as, to make a
single-store unit appropriates
To the rank-and-file worker, where and how he is
hired 'and disciplined 'looms important,' 'as 'do
recommendations from the same local boss for wage
increases and extended time off. To him the right of
self-organization vouchsafed'' by the Act 'seems a
myth if hundreds of other chain employees,he may
never see, whose' immediate employment problems
revolve around thew own local managers, must also
be a part of the same organizing effort. One cannot
dismiss the problem, as the, Employer would,, by
saying that'the-Board gives, undue weight "to minor
geographical diversity." hat the Board has' been
doing since Say-On is applying a longstanding
multiplant unit concept to retail chain operations
3 See Warakamrlo Corporation, d/b/a McDonald's, 192 NLRB No. 102.
4 Sav-On Drugs, Inc., 138 NLRB_ 1032,- 1033, where - the Board
reexamined earlier policy.
b See Haag Drug Company, `Inc., -169 NLRB 877.
TWENTY-FIRST CENTURY RESTAURANT 883
and directing- elections- on a single-location basis
where, the evidence, shows significant local control
over employees and their, day-to-day problems. ' hhis
record, in • my view, requires that approach,
The unit here sought is the Employer's restaurant
located on Nostrand`Avenue, Brooklyn, one of seven
locations in the New York City area. The employees
there number about 50, mostly part time. In fact- the
average of full-time employees at the New York
stores is only two.' Many of _ the rank-and-file
employees are young men at high school or in that
age bracket, although some women are now being
hired. Thirteen- employees testified, all current or
former employees ` at the Nostrand Avenue restau-
rant. Nine were students. All' considered the "boss"
to be Manager Folkes-, the ' manager 'at, Nostrand
Avenue. Folkes has one assistant -manager,., though
most stores have two.6 Folkes did not testify. The
Employer's only witness was general manager Kum-
mer, who became associated` with the Employer 6
months before the hearing and oversees the seven
New York stores.
The sense of the record is that Folkes runs a tight
ship, disciplining employees by sending `them home
for the remainder of a shift, for several days, or for as
long as a, week, making them wait to check in when
late, and not infrequently , assigning an onerous
task-sometimes for a "week in a row"-if they seem
too anxious to leave at the end of their shift. Folkes
has specifically, stated to employees _ that he is
"running the store," and the Employer's general
manager admits that the store does not run without a
"managerial person" present. Admittedly Folkes has
authority to hire at the minimum wage, at which rate
most crew members, as .they are called, are hired.
Maintenance employees may be hired by the local
manager at a higher rate. All employee witnesses
testified that they were hired by Folkes without
indication that he consulted anyone else. Many
employees were trained by him. One testified that he
was trained by Folkes to the extent the latter had
time to do so. Several testified that he had conducted
training meetings for the store employees. Many
stated that they had asked him for raises and got
them. None seemed to know of a 90-day probation-
ary period as such, or the work and salary review that
is said to come at the end of that period. The
Employer contends that a store manager may not
himself discharge an employee after he has served a
probationary period though he may suspend for
dishonesty or gross insubordination., During the first
90 days of employment he is specifically authorized
to discharge without clearance.
Only two employees , who testified considered
themselves to have been discharged. Both had
worked considerably more than 90;days when their
employment was severed. Testimony by a third
employee indicates that the discharge and/or sever-
ance of these two occurred during union organizing
activity at Nostrand Avenue. The general Tanager
described the incidents as "part °of an overall. general
appraisal of the personnel situation-at the Nostrand
Avenue Store," stating that he personally provided
the specific guidelines for ' action by Folkes. He
recalled no specific instance of his having overruled
Folkes on a termination, although observing that an
area supervisor might have. Thus the record throws
little light upon the typical discharge procedure for
employees after the 90-day' probationary period.
Manager Folkes makes up the weekly work
schedules, taking into account the season of the year,
special days, and similar considerations, as well as
the availability of his crew at various hours.? He
watches the "count," s that is, the public demand as
reflected by the cash register, and sends employees
home if business is slow, preferably asku_ ig'for a Show
of hands as to who' would like to go. - He also
telephones employees not scheduled to work and
asks them to come in' and work. 'Folkes also grants
time off and requests employees to work additional
time at the end of a shift. (The Employer does not
consider the latter overtime because it seldom results
in more than an 8-hour day or 40-hour-week.) He`has
threatened discharge if an employee does not wish to
work the extra time when asked. Extended'leaves of
absence are recommended by him. Concededly the
"good advice of the man closest to the employee" is
given consideration by higher management in ap-
proving such leave.
Folkes and his assistant managers assign work to
the crew. Several witnesses testified that this was true
even though an area supervisor, or the general
manager, might happen to be in the restaurant at the
time. In fact, the area supervisor is described by a
crew member as spending his time during store visits
"checking around, looking behind things to see
whether they were clean or not, things like that,
looking for the books."
6 The stores are staffed from 8 a .m. to midnight, though open to the
public for less time . There are also "swing managers" or "crew leaders" who
work 15 to 20 hours a week except during the Christmas holidays when they
may work 40 hours. Some have keys to open a store, although the Employer
perfers to have this done by a manager or assistant manager. A swing
manager, or crew leader, may assign work , particularly when the manager
or an assistant manager is not persent . However, his "real function overall,"
according to the Employer , is to pay attention to quality service and to
cleanliness.
7 For events such as feeding a charter bus group coining from out of
town to attend a ball game, the Company has advance notice and the
general manager or even an area supervisor may assist, both in scheduling
and in handling the event.
8 One witness described this as a "money reading every hour" to see if
the "labor count" is too high.
884 DECISIONS OF NATIONAL LABORRELATIONS BOARD
The majority in reaching its conclusion stresses the
standardized method of operation at these restau-
rants, the, "minimal discretion a of the location
manager," and 'the "careful monitoring" ,by higher
management of, any exercise of, that discretion.
Unquestionably ,the "operation" is standardized.
Uniforms appearance,, uniformity of product and
quality,, and uniform prices are, the stock-in-trade of
,these."fast food" restaurants. In minute detail the
Employer has provided procedures for cleanliness
and , .food preparation. ' Buying, ,,warehousing, and
accounting ; are. conducted centrally. However, I
cannot agree that these "operational" tactics leave
the local manager with little discretion in day-to-day
labor -relations at, Ngstrand Avenue. Instead the
record reflects an, authority in him to provide a
steady,, efficient, obedient work force - with all the
judgment and initiative this implies, and contains
numerous examples of the exercise of that authority.9
The resulting crew, many , of whom live in the
neighborhood and I are recommended, for jobs by
fellow Iworkers, surely considers itself as hired,
assigned to work, and disciplined "on the spot." This
repetitive, " exercise local managerial authority,
including, 'the effective recommendation of wage
raises--_ even though limited to step increases set by
higher authority-m my_ view, creates in local
management meaningful autonomy.10
As for interchange--the criterion which tends to'
divest local autonomy of its'meaning if evidence of
teniporaiy; 'transfers is substantial-the showing on
9 Asked" about certain`", examples ' of discipline imposed by Folkes,
Employer,'s ; general manager said it was "common practice by all
McDonald's management "-
- 10 'Compare Molt's=Shop-Rite Of Meriden, 174 NLRB No. 157, where
employee - recruitment -was,carsied'out by the central, office, and discipline
by the ,locaLmanager was limited. -
11 Some -6f the employees had experienced a Ronald McDonald Day at
the NostrandAvenue restaurant . At such time it appears that the working
atmosphere is rushed, unduly crowded at,least for the crew , and in general
this record, can - only be, described as ;sketchy. No
compilation of. the instances occurring in the New
York restaurants was' ,available . Forty-five to fifty
employees are said to have temporarily transferred
"among,, New York--locations during the past year,"
out of, a total of three hundred ,fifty employed.
Assuming. the correctness- of this, estimate by the
general manager, its significance is not , easily
assessed . He, knew of no transfers to , Nostrand
Avenue on , a day-to-day basis. =The record. strongly
suggests that - most of these estimated , New York
transfers were a matter,of several hours' duration
incident to new store openings or special, promotions
such as a ;"Ronald McDonald Day." li Transfers of
this sort the Board has minimized in., assessing the
extent of interchange.12 Normally it, also requires
specific information rather than generalized testimo-
ny.
The Board has always recognized the need for
centralized administration in the operation of as chain
of retail outlets, but in recent years has tried not, to
overemphasize the-internal organizationfactor at the
expense of , factors, most closely related to employees'
relationships with each other.13 The result? The right
of employees , in'these industries to select a bargain-
ing,agent has become meaningful. By hopping on the
bandwagon of centralized control, my colleagues
place substantial obstacles in the way of, these
employees' , efforts _ to exercise " rights supposedly
guaranteed them by Section 7 of the Act.
I would` affirm the Regional Director in this case.
geared entirely to the special event . The situation affords the temporary
transferee comparatively , little opportunity to enlarge his employee
community of interest beyond that of his regular work location.
12 See Lou deYoung's Market Basket, 159 NLRB 854, enfd. after Gissel
remand 430 F.2d 912, (C.A. 6); 'Primrose Supermarket of Salem, Inc., 148
NLRB 610, 616, affd. without opinion 58 LRRM 2863 (C.A. 1), cert. denied
382 U.S. 830.
13 See Kostel Corporation, d/bla Big-Ben Shoe Store, 172 NLRB No. 167,
where the Board discussed Say-On Drugs, and Haag Drug. -