White Castle System, Inc.

WHITE CASTLE SYSTEM White Castle System, Inc. and United Catering, Res- taurant, Bar and Hotel Workers, Local 1064, Retail, Wholesale and Department Store Union, AFL-CIO and United Labor Unions, Local 222. Cases 7-CA-19337, 7-RC-16536, 7-RC- 16537, and 7-RC-16538 September 29, 1982 DECISION ON REVIEW AND ORDER BE CHAIRMAN VAN DF> WAXI ER AND MEMBERS JENKINS AND HUNTER On November 13, 1981, the Regional Director for Region 7 issued his Decision and Direction of Election in Cases 7-RC-16536, 7-RC-16537, and 7-RC-16538 in which he found appropriate sepa- rate units of employees at three of the Employer's 16 Detroit, Michigan. area restaurants. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's deci- sion on the ground that, in finding the petitioned- for units appropriate, he made erroneous findings as to substantial factual issues and departed from officially reported Board precedent. The National Labor Relations Board, by tele- graphic order dated December 10, 1981, granted the request for review and stayed the election pending decision on review. Thereafter, on May 10, 1982, the Board notified the parties in White Castle Sysiem, Inc., 258 NLRB 1131 (1981), that it had decided, sua sponte. to reconsider its decision in that case, in which it found that the Employer violated Section 8(a)(5) and (1) of the Act by refus- ing to bargain with United Catering, Restaurant, Bar and Hotel Workers, Local 1064, Retail, Whole- sale and Department Store Union, AFL-CIO (hereinafter Local 1064), as the collective-bargain- ing representative of its employees at its Southgate, Michigan, facility known as castle unit #20.' Thereafter, the Employer and Local 1064 filed statements of position in Case 7-CA-19337, and the Employer filed a brief on review in Cases 7-RC- 16536, 7-RC-16537, and 7-RC-16538. In light of the identical issues presented in the above cases, the Board has decided, sua sponte, to consolidate these cases for decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three member panel. In £Cac 7-R( I12'r,, l.o al I{t4 xas .ecrlifeld 1s the co}ri se x-h.sr gaining reprc ic'nt.mi e I' Iotli [i, rnplo,h r l itipi\ tc tit the Sll ; , Michigan. hi.alil l 71 ?. I9Si 264 NLRB No. 43 The Board has considered the entire record2 in this proceeding and makes the following findings: The Employer operates a number of so-called fast food restaurants in the Detroit area. For ap- proximately 9 years prior to 1975, the employees in the Detroit area restaurants were represented in a single unit by the Hotel and Restaurant Employees and Bartenders International Union, Local 234. Said representation terminated in 1975, and since that time there has been no collective bargaining at any of the stores. The Petitioner in Cases 7-RC-16536, 7-RC- 16537, and 7-RC-16538, United Labor Unions, Local 222 (hereinafter Local 222), seeks separate units at the Employer's restaurants located at 17758 Fenkell (No. 14), 6301 Livernois (No. 18), and 1960 Michigan Avenue (No. 19). In Case 7-RC-16276, Local 1064 sought a separate unit at the Employ- er's Southgate, Michigan (No. 20), restaurant. The Employer contends that separate units at each of these restaurants are inappropriate. We find merit in this contention, since the Employer's centralized and uniform operating and personnel procedures, the lack of autonomy over day-to-day labor rela- tions by the supervisory personnel at the individual restaurants, the significant amount of employee in- terchange, the commonality of job skills and terms and conditions of employment of the employees. and the prior bargaining history rebut any pre- sumption as to the appropriateness of a single-store unit. All of the Detroit area restaurants are under the overall control of the area manager and assistant area manager, who operate out of the Employer's area office located in Farmington Hills, Michigan The area is divided into five districts consisting of from two to four restaurants, called "Castles," each of which is under the direction of a district super- visor. Each restaurant has a castle supervisor and assistant castle supervisor. All of the restaurants sell the same product at the same prices, have the same hours of operation and the same operating procedures, and operate with the same equipment. The Employer's adminis- trative process is highly centralized, with payroll. purchasing, distribution of supplies, advertising, and capital expenditures centrally controlled by the area manager and his staff. In addition, general per- sonnel policies are uniform and are centrally ad- ministered. In this regard. the evidence indicates that the area office, with the approval of the Em- At the hearing. the parties agreed, and the Regional Director ruled. that the record in Case 7-RC-lh7t2, and his Decislon and Direction of lectioin in that case, dated April 3, q9Sl. wSould firm Ihe asis ifor his decisi.o it Ihlis proceedi hg Accrdilngl. the record inl ( ase 7 RC Ih'7't f1,rmls ih' h:si of (-Wlr de. kis n herein 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer's Columbus, Ohio, headquarters, establishes overall personnel policy, including employees' clas- sifications, full-time work hours, wage rates, vaca- tion and holiday, dress code, and evaluation and disciplinary procedures, which are the same at all restaurants. Personnel files for all employees are kept in the area office, although copies of pertinent documents are maintained in personnel files at the individual restaurants. Although significant authority over the day-to- day operation of the individual stores is ostensibly vested in the store supervisor, that authority is in fact highly circumscribed, particularly with respect to labor relations. The record indicates that district supervisors make daily visits to each restaurant within their district to assure that the Employer's policies are being properly implemented. They pre- pare work schedules jointly with the supervisor and must approve employee changes from full-time to part-time status. They observ the conduct of the employees at the individual restaurants to see that employees are complying with the Employer's policies concerning service procedures, dress code, etc., and, if proper procedures are not being fol- lowed, will either nofify the supervisor or apprise the employee of the infraction directly. With respect to hiring and discipline, restaurant supervisors are permitted to interview and hire new employees subject to the approval of the dis- trict supervisor and if within the staffing levels pre- scribed by the area manager. However, their au- thority to discipline employees for infractions of the Employer's rules is quite limited. Although the castle supervisors have authority to discharge an employee for serious offenses such as stealing or for a fourth specified infraction under the Employ- er's established progressive discipline system, the district supervisors or the assistant area manager is often asked by either the employee or the supervi- sor involved to investigate the incident and make a final decision. The record contains evidence of sev- eral instances in which either a castle supervisor has asked higher management to take disciplinary action or an employee has challenged a restaurant supervisor's disciplinary action. On at least several occasions the restaurant supervisor's disciplinary action has been rescinded after an independent in- vestigation and evaluation by higher management.3 1 The record conltains testimony of two instances in the recent past in which employees were summarily discharged by their restaurant supervi- sol- for serious oflenlses only to be reinstated by Assistant Area Manager Brown. who conducted an investigation and found that mitigating cir- cumstances warranted revocation of the discipline. On another occasion, Brown denied a supervisor's request to discharge two employees for a serious offense (fighting) because Brolwn considered them to be good em- ployees In addition, employees have been encouraged by area management to take their complaints to the district supervisors. Similarly, although the restaurant supervisors prepare employee evaluations for the prescribed review periods and will recommend raises, they do so in conjunction with the district supervisors who, because of the frequency of their visits to each store, are often familiar with the individual em- ployees being evaluated. Finally, the restaurant supervisors' authority to grant time off is also subject to specific guidelines. Moreover, in some matters, as with granting time off when unrelated to illness, the supervisor must obtain the approval of the district supervisor. With respect to employee interchange among the various area stores, the Employer presented evi- dence that, in a I-year period, there were in excess of 60 permanent transfers and more than 700 tem- porary transfers. 4 The Regional Director discount- ed this evidence since a new store had been opened during the period involved. However, the record indicates nearly 80 percent of the temporary trans- fers and 25 percent of the permanent ones were to locations other than the newly opened store. The foregoing evidence, in our view, sufficiently rebuts the presumption that single-location units are appropriate here. We particularly note that the reg- ular visits of the district supervisors to the stores, 6 which involve both personally ascertaining wheth- er the Employer's policies are being carried out7 and taking corrective action, coupled with the close supervision of the castle supervisors' disci- plinary and other personnel actions, evidence the lack of autonomy of the castle supervisors over the day-to-day labor relations at the individual restau- rants. 8 We also find that the evidence of substantial employee interchange,9 the Employer's uniform personnel and operating procedures, the similar job skills, classifications, and work conditions of em- ployees at all locations,'° and the bargaining histo- 4 This temporary transfer figure reflects the number of wseek, employ- ees were on temporary assignment Thus, an employee temporarily as- signed to another location Ibr 5 weeks would count as five teniporar) assigntments. Nevertheless, the exhibit introduced by the E[mployer con- tains over 2?00 different names, indicating a significant amount of inter- change in a group which has 350 400 employees at any given time. 5 We recognize. liowescr, that permanent transfers are of little rel- evance in these cases absent eidence of the teason for transfer. See Lip- man's, a Division of Dayton-ltudion Corporarion, 227 NL.RB 1436, 1438 (1977). 6 See, e.g., I.TI: Con(inental Baking Company. Inc., 231 NLRB 326 (1977): The Lawson Milk Company Divion. Cornsolidarred roods Corpora- tion, 213 NLRB 3t0 (1974); Waiukamilo Corporation. d/b/a .lcDonald's, 192 NLRB 878 (1971). 7 Bad' Food Stores. Inc., dh/'a Brud' Thrifr-T-Wis-, 236 NLRB 1203, 1205 (1978) (Member Jenkins' dissenting opinion). " See, e.g., 1. : T Continenral Baking Compony, Inc[. supra. 9 See e g., Waiakamilo Corporation. d/b/a MmDonnald's. upra. A0 See. e g . Petrie Str,,rs Corporation. 212 NL .R 130 (1974) 268 WHITE CASTLE SYSTEM ry in a areawide unit further rebut the presumption that a single-location unit is appropriate. Accordingly, as we have found that the single- store units sought are not appropriate units for the purposes of collective bargaining, and as Local 222 has not indicated any desire to represent the Em- ployer's employees in any broader unit, I we shall dismiss the petitions in Cases 7-RC-16536, 7-RC- 16537, and 7-RC-16538. In addition, we shall vacate our Decision and Order in Case 7-CA- 19337 (258 NLRB 1131), dismiss the complaint, I In finding the requested single-store units to be inappropriate, we need not pass upon the Employer's contention that the only appropriate unit herein must encompass employees in all of the Detroit area stores. In agreeing with his colleagues. Member Jenkins does not rely on Waiakamilo Corporation d/b/a VMcDonald's, 192 NLRB 878. He also notes that here, as in his dissent in Bud'e Food Stores. Inc., d/ba Bud's Thrift-T- Wise, 236 NLRB 1203, 1204, the presumptive appropriateness of the single-store units had been rebutted revoke the certification issued in Case 7-RC-16276, which found appropriate a single-location unit at the Southgate restaurant, and dismiss the petition in that case. ORDER It is hereby ordered that the petitions in Cases 7- RC-16536, 7-RC-16537, and 7-RC-16538 be, and they hereby are, dismissed. IT IS FURTHER ORDERED that the Board's Order in Case 7-CA-19337 (258 NLRB 1131) be vacated and the complaint be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the certification issued in Case 7-RC-16276 be, and it hereby is, re- voked. IT IS FURTHER ORDERED that the petition in Case 7-RC-16276 be, and it hereby is, dismissed. 269