Denny's Restaurant #3

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Milco Importers, Inc., d/b/a Denny's Restaurant #3 and Bartenders' & Culinary Workers, Local No. 368, Hotel & Restaurant Employees and Bartenders' Union affiliated with AFL-CIO International Union , Petitioner. Case 20-RC-8642 June 30, 1969 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, BROWN, AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Jerrold C. Schaefer. Following the hearing, this case was transferred to the National Labor Relations Board in Washington, D.C., pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended. Thereafter, Denny's Restaurants, Inc.,' filed a brief, which has been duly considered. 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The partnership which owns and operates the Foothills Motel also owns an adjacent building complex which includes a restaurant, a cocktail lounge, two offices, and a beauty salon. The partnership has leased the restaurant and cocktail lounge areas to Denny's Restaurant, Inc., a national restaurant chain, at a fixed rental plus a percentage of profits, the term of which had approximately 15 years to run at the time of the hearing. Milco Importers, Inc., the Employer herein, operates the restaurant under a franchise agreement with Danny's Do-Nuts #3,2 a wholly owned subsidiary of Denny's Restaurants, Inc. Moreover, since March 1, 1968, Milco has operated the adjoining cocktail lounge pursuant to an informal arrangement with Denny's similar to the franchise agreement for the restaurant operation. In its brochure, Foothills Motel advertises to the public that there is a cocktail lounge and a Denny's restaurant on its premises. Photographs of both the inside of the cocktail lounge and the inside of the restaurant are included in the brochure along with 'Denny's Restaurants, Inc , the parent of Danny's Do-Nuts #3, the franchiser, appeared and participated in the hearing. '-Danny's Do-Nuts #3, a California corporation, is engaged in the operation of restaurants and the franchising of restaurant operations in California and other States. interior shots of different motel rooms. The caption under the photograph of the interior of the cocktail lounge reads as follows: Lavishly appointed Cocktail Lounge in OUR OWN decor featuring the elegant Piano Bar, and unique bar of natural rock. The Cocktail Lounge is the most fabulous between San Francisco and Reno. Its beauty and atmosphere are unforgettable. Similarly, the caption under the interior photograph of the restaurant states: In beautiful modern decor. Relax and enjoy your favorite food and beverage to the restful background music - 24 hour service. The outside signs of the lounge bear only the legend "Cocktails," and the restaurant is designated as a Denny's Restaurant. A nearby billboard sign advertises both Denny's restaurant and the Foothills Motel. It is also clear that a substantial number of the motel's clientele use the restaurant and lounge facilities, which are located on the highway directly in front of the Motel, and that the two businesses complement one another. The gross receipts of the Foothills Motel for the calendar year 1968 were $96,205.35. The Employer's gross receipts in the restaurant operation for its fiscal year ending October 31, 1968, were $410,000, while its gross receipts in that operation for the calendar year 1968 were $430,000. The gross receipts for the cocktail lounge average about $4,000 per month. The combined annual revenue of the Motel and the Employer is therefore well over $500,000. On the basis of the foregoing, we find that the operations of the Employer affect commerce within the meaning of the Act. We find further that, although the Employer's gross volume of revenues received in 1968 fell short of the Board's standard for the restaurant industry, under the circumstances of this case, it will effectuate the policies of the Act for the Board to assert jurisdiction herein.' Although the partnership which owns and operates the Foothills Motel and the Employer which operates the restaurant and cocktail lounge are separate business entities, with no common ownership, direction, or control, it is clear that they are held out to the public as a single integrated enterprise. Their advertising brochures and billboard sign indicate not only the complementary nature of the businesses but also the unitary nature of the enterprise as presented to the public; namely, a motel with a restaurant and cocktail lounge. The operations occupy a common situs, share entrances and exits, are connected by footpath, serve essentially the same class of customers, and by and 'Sands Motor Hotel, 162 NLRB 863, Trade Winds Motor Hotel & Restaurant, 140 NLRB 567. 177 NLRB No. 86 MILCO IMPORTERS, INC. large supplement the business interests of each other. In view of these factors, we find that the impact exerted upon commerce of a labor dispute at the Employer's operation is certainly equal to, if not appreciably greater than, that exerted by the normal restaurant operation with gross revenues of $500,000, over which we are required to assert jurisdiction. Accordingly, we shall assert jurisdiction over the Employer's operations. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. We find, in accordance with the stipulation of the parties, the following unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer (Milco Importers, Inc.) at its 400 Train Avenue, Auburn, California location , including waitresses, bartenders , cooks, dishwashers, and busboys, excluding guards and supervisors as defined in the Act. The supervisory status of Bartender Mange asserted by the Employer has been challenged by the Petitioner . Although Mange has "not at this time" been granted the authority to hire and fire 703 employees in the cocktail lounge by the Employer, he does have authority to make work schedules, assign work, grant time off, and make purchases of liquor for the bar. His wages are higher than the other employees, and he is paid on a salary basis while the other cocktail lounge employees are paid on an hourly basis. He has been referred to as the "sole person in charge of the lounge" by the Employer, subject only to the authority of its president, Russell. Under all these circumstances, we find that Mange, who exercises independent rather than routine judgment, is a supervisor within the meaning of the Act and is, therefore, excluded from the unit. [Direction of Election' omitted from publication.] 'in order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear inc., 156 NLRB 1236; N L R B. v. Wyman-Gordon Company, 394 U S. 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all eligible voters, must be riled by the Employer with the Regional Director for Region 20 within 7 days of the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election. No extension of time to rile this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are riled.