Kapok Tree Inn, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kapok Tree Inn, Inc. and Hotel, Motel, Restaurant Employees & Bartenders Union, AFL-CIO, Local No. 104, Petitioner. Case 12-RC-5252 September 30, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTION BY MEMBERS JENKINS, PENELLO, AND MURPHY On March 30, 1977, the Regional Director for Region 12 issued a Decision and Direction of Election in the above-entitled proceeding. The Petitioner had sought a unit limited to the Kapok Tree Inn Restaurant located in Clearwater, Florida (hereinafter referred to as Clearwater), while the Employer contended that the appropriate unit ought to include its other facilities in Florida: the Kapok Tree Inn Restaurant in Madeira Beach (hereinafter referred to as Madeira Beach), the Kapok Tree Inn Restaurant in Fort Lauderdale (hereinafter referred to as Fort Lauderdale), and Baumgardner's Restau- rant in Clearwater. The Regional Director found the appropriate unit to encompass Clearwater, Maderia Beach, and Baumgardner's. Both the Employer and the Petitioner filed, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, timely requests for review of the Regional Director's decision. The Petitioner con- tends that the Regional Director departed from Board precedent in his determination of the scope of the unit and erred in his refusal to enlarge the time within which the Petitioner could submit a showing of interest within the unit expanded by the Regional Director's decision. The Employer argues on review that the Regional Director should have included the Fort Lauderdale restaurant in the bargaining unit. By telegraphic order dated May 17, 1977, the Board granted the Petitioner's request for review and denied the Employer's request. Both parties filed briefs 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 authority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings: Kapok Tree Inn Corporation, the parent corpora- tion, located in Clearwater, Florida, owns and operates five separately incorporated restaurants. Aside from the Peter Pan restaurant in Maryland, 'The Regional Director's decision to exclude the Fort Lauderdale restaurant from the unit is not at issue here since the Employer's request for review was denied. 232 NLRB No. III which is not involved in this proceeding, the remaining facilities are all situated in Florida. The Clearwater restaurant is located in the same building as the parent corporation, 100 yards from Baumgard- ner's restaurant. The Madeira Beach restaurant is approximately 19 miles and the Fort Lauderdale restaurant' is 250 miles from the Clearwater com- plex. There is no collective-bargaining history for the employees and no union seeks to represent them on a broader basis. The parent corporation centrally administers its facilities, prescribing in detail guidelines for their operation. Corporate supervisors oversee the imple- mentation of these policies by visiting the restaurants to confirm the quality of service and to evaluate the total operation. The corporate office performs all the major purchasing,2 advertising, accounting, book- keeping, and capital improvements. Logistical deci- sions involving the projected needs for food, employ- ees, and facilities are determined on a unit basis by the corporate supervisors. Employment conditions are also set by corporate policy. Employee benefits, workmen's compensation, hospitalization, insurance, pension, and stock-shar- ing plans are administered by the parent corporation. The general guidelines for wages, hours, job classifi- cations, and general working conditions are deter- mined centrally and may not be modified on a unit level. Nevertheless, under this administrative setup, each restaurant or unit has its own identity, balance sheet, supervisors, and employees. The local unit manager is responsible for the day-to-day operation of his restaurant. In addition to the normal ministerial tasks, such as opening and closing the restaurant, the unit manager translates the general corporate labor relations guidelines into the everyday specifics of the unit operation. Each restaurant advertises for, interviews, and hires its own rank-and-file employ- ees. The unit manager supervises the training of his employees. He has the authority to fire employees on the spot if egregious behavior is involved.3 Otherwise the local managerial staff periodically monitors the performance of its employees and makes recommen- dations relevant to discharge and promotion. When department head positions become vacant, the unit manager will interview and recommend employees. The unit manager has on occasion increased wages without the specific approval of the corporate office. The unit manager also schedules the vacations, working hours, and days off of the individual employees. Allocation of waitress stations and other daily activities are within the discretion of the unit The restaurant managers do some direct purchasing from vendor lists. :' The record revealed two such instances: an altercation between a waitress and a customer, and the filtenng of liquor by a bartender. 702 KAPOK TREE INN managerial staff. Absences must be cleared at the unit level and employees clock in where they work. When circumstances warrant it, the unit manager may initiate overtime. If a facility is overstaffed on a particular night, the unit manager has the authority to send employees home. Most labor relations problems appear to be resolved at the unit level. As a matter of general practices, which is reflected in the employees' manual (Empl. Exh. 3), employee grievances and requests are directed to the local supervisory staff. Management directives have been posted over the unit manager's signature and are sometimes con- cerned with only a single facility. Aside from this substantial authority of the separate managerial staff at Clearwater, the record contains other evidence of Clearwater's indepen- dence from Madeira Beach and Baumgardner's. Reflecting its geographic distance, Maderia Beach is operationally the least integrated of the three restaurants. It issues its own payroll checks and has its own checking account. Employee interchange and communication be- tween the employees at Madeira Beach and Clearwa- ter is insignificant. Excluding the initial staffing when Madeira Beach opened in December 1972, only 17 rank-and-file employees have been involved in permanent transfers between the two facilities. There are approximately 316 employees at Clearwater, and approximately 225 employees at Madeira Beach. Other rank-and-file intermingling is also limited since Madeira Beach has a full complement of employee departments. A few gift shop employees are temporarily shifted to aid in annual inventory and restocking during the busy season. Two or three times a year between three and five waitresses temporarily transfer to Madeira Beach from Clear- water. Maintenance employees and equipment are borrowed from Clearwater only when major work is required. Even the working conditions vary between Ma- deira Beach and Clearwater, although officially those restaurants are identical in operation and format. According to the testimony of a waitress who works at Clearwater, there are differences in work station allocation, the number of tables worked by a team, cleanup procedures, workweeks, and rules for re- questing days off. Baumgardner's, however, due to its physical closeness to Clearwater, is not as self-contained as Madeira Beach. Baumgardner's obtains from Clear- water a number of services such as: maintenance, cleaning, gardening, laundry, food ordering, supplies, some stock and equipment storage, dinner reserva- 4 Occasionally temporary transfers of employees occur when an emergency need arises at one of the restaurants. There were. however, only approximately 41 permanent transfers from 19%8 to 1977 (Fimpl. Exh. 14A). tions, and security patrols. Employee interchange is slightly more significant between Baumgardner's and Clearwater than is the interchange between Madeira Beach and Clearwater.4 Employees at both restau- rants are paid with paychecks issued by Clearwater and they share the same parking lot. Nevertheless, working conditions at Baumgard- ner's are substantially different from those at Clearwater. Unlike Clearwater, which is basically similar to the other Kapok Tree Inn restaurants, Baumgardner's is unique among the Employer's facilities in Florida. The menus, service procedure, uniforms, and operating hours are different only at Baumgardner's. Baumgardner's is a more formal restaurant catering to a different clientele. The waitresses and waiters there wear fancier uniforms. The service procedure is traditional; orders are taken from the guests after they are seated at their tables. At Clearwater, however, the customers order before they are seated and their food is brought to them later at a table. Bar service is also different at the two restaurants. Clearwater is open continuously from 11:30 a.m. until 10 p.m. Monday through Saturday, and until 9 p.m. on Sunday. Baumgardner's, however, opens twice a day during the week; for lunch from 11:30 a.m. until 3 p.m., and then from 4:30 p.m. until 9:30 p.m. for dinner. On weekends the lunch hour is eliminated. These variations in operating hours are reflected in the working shifts of the employees. Based upon the above findings and the entire record, we conclude, in disagreement with the Regional Director, that the Employer's restaurants are not so integrated as to overcome the presumptive appropriateness of a single-facility unit limited to the Clearwater restaurant. When dealing with a multifacility operation, the well-established Board policy is to find a single- facility unit presumptively appropriate. This pre- sumption can be overcome, however, by a showing of functional integration so substantial as to negate the separate identity of the single-facility unit. In making determinations on this issue, the Board looks to such factors as prior bargaining history, the geographical proximity to other facilities of the same employer, the degree of day-to-day managerial responsibility exer- cised by the branch facility management, the frequency of employee interchange, and whether the requested single-facility unit constitutes a homoge- neous, identifiable, and distinct employee grouping. Haag Drug Company, Incorporated, 169 NLRB 877 (1968). Although the Employer's operations evidence the centralized administration that is often characteristic 703 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of multifacility enterprises, such centralized adminis- trative control does not by itself militate against finding the single-restaurant facility to constitute an appropriate unit. Allegheny Pepsi-Cola Bottling Com- pany, 223 NLRB 45 (1976); Michigan Bell Telephone Company, 216 NLRB 806 (1975). Clearwater is a distinct operation with its own work force, managerial staff, and balance sheet. Although restricted somewhat by corporate guidelines, the unit manager exercises substantial day-to-day authority in areas most directly affecting the employees. See Levitz Furniture Corporation, 223 NLRB 522, 524, fn. 23 (1976). The unit management represents the frontline authority to which employees are directed for their employment, their work conditions and assignments, and the resolution of their complaints. Aside from the autonomy of its unit managerial staff, Clearwater's independence from Madeira Beach is also demonstrated by their geographical distance, the functional independence of operation, and the lack of significant employee interchange between the employees at Madeira Beach and Clearwater. With respect to Baumgardner's, however, the geographic proximity and concomitant sharing of certain services and employees makes the inclusion of Baumgardner's in the unit a close question. Cf. Kirlin's Inc. of Central Illinois, 227 NLRB 1220 (1977). Nevertheless, the substantial differences in working conditions and hours, the lack of common supervision at the unit level, and the separate identities of the two restaurants, both administrative- ly as a division within the corporate structure, and commercially as a distinct consumer product, estab- lish that Clearwater has not been so effectively merged with Baumgardner's so as to have lost its individual identity. Thus, the Clearwater employees are an identifiable group with a separate and distinct community of interest. Accordingly, the presumption of the appropria- teness of a single-facility unit has not been overcome and a unit limited in scope to Clearwater is appropriate. We find, contrary to the Regional Director, that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by Kapok Tree Inn Corporation including dishwashers, waitresses, hostesses, waiters, cleaning crew, kitchen prepara- tion personnel, employed at its Kapok Tree Inn, Inc., Clearwater, Florida; but excluding unit managers, assistant manager, staff manager or dining room manager, waitress supervisor, hostess supervisor, cashier supervisor, assistant kitchen manager, gift shop manager, guards and supervi- sors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] 704