Hotel & Restaurant Employees Local 274 (Warwick Caterers)

HOTEL & RESTAURANT EMPLOYEES LOCAL 274 (WARWICK CATERERS) 939 Hotel and Restaurant Employees' and Bartenders' International Union, Local 274 and Hospitality Catering, Inc. t/a Warwick Caterers and Elan of Philadelphia Ltd. t/a Elan. Cases 4-CP-355, 4-CB-4477, and 4-CB-4478 3 February 1987 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFr On 19 October 1984 Administrative Law Judge Michael O. Miller issued the attached supplemental decision. ' The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief and cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The National Labor Relations Board has consid- ered the decision, the supplemental decision, and the record in light of the exceptions, cross-excep- tions, and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Supplemental Deci- sion and Order. In his original and supplemental decisions, the judge considered whether the Respondent (the Union or Local 274) violated Sections 8(b)(1)(A), (2), and (3) and 8(b)(7)(C) as a result of its picket- ing to force or require Hospitality Catering, Inc. t/a Warwick Caterers to recognize and bargain with it and by insisting on arbitration of its claim that Warwick' Caterers' employees were included in the unit covered, by the collective-bargaining agreement with Elan of Philadelphia Ltd. t/a Elan. The judge considered the Respondent's alter ego and single-employer defenses and concluded that they were without merit. The Respondent has excepted to the judge's fail- ure to consider its defense that Warwick Caterers was a successor to an entity known as R & K Ca- terers, Inc. The Respondent correctly observes that the Board's prior decision in this case was a broad decision that reversed Food & Commercial Workers Local 576 (Earl Engle), 252 NLRB 1110 (1980), enf. denied 675 F.2d 346 (D.C. Cir. 1982). The prior decision stands for the proposition that a party is privileged to present, and the judge is bound to hear, receive, and consider its defense, notwithstanding the fact that the General Counsel ' On 18 April 1983 the judge issued the original decision. On 28 March 1984 the Board issued a Decision and Order to 269 NLRB 482 remanding the proceeding to the judge The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an answering brief. had previously considered the same evidence in-re- fusing to issue an unfair labor practice complaint. The Board in its remand, and the judge follow- ing those guidelines, focused on the alter ego and single-employer defenses. These were the defenses that the Respondent relied on in its exceptions to the judge's decision. The Respondent was allowed, however, to present evidence in support of any and all defenses, including successorship, in the first hearing. Under our earlier holding, the Respondent is entitled to have its successorship defense consid- ered on the merits. The record shows that R & K Caterers, Inc. per- formed kosher catering in the Warwick Hotel. R & K is headed by Ken Kaufman. R & K purchased the assets of Rosenthal and Kaufman Kosher Cater- ers, which was headed by Ken Kaufman's father, Henry Kaufman, and managed by Ken Kaufman. Rosenthal and Kaufman had a collective-bargaining agreement with Local 274 effective 15 January 1980 to 14 January 1983 that covered Rosenthal and Kaufman's "cooks, kitchen employees, bartend- ers, waiters, waitresses, busboys, captains, and head waiters working in the establishment or on a job .. . serviced by the Employer. . . ." The agree- ment specified that it was to apply to Rosenthal and Kaufman's successors; however, the word "successors" applied "only to a successor for the kosher catering business." In 1980 the elder Kauf- man retired, and R & K Caterers, Inc. was activat- ed and, as stated earlier, purchased the assets of Rosenthal and Kaufman and continued to perform kosher catering. Although R & K never entered into a collective- bargaining agreement with Local 274, it made con- tributions to the various health and welfare funds and functioned as a union shop. Ken Kaufman had also formed Warken Caterers (Warken) to perform nonkosher catering at the Warwick Hotel. The record indicates that six employees were doing work for both Warken and R & K. Initially they were issued two separate paychecks for the kosher and nonkosher work performed. Eventually, they received only a Warken check for both types of work. In November 1981, Steven Morgan of Hospital- ity Catering Inc. t/a Warwick Caterers entered into an agreement of sale with Warken Caterers to purchase the assets of the nonkosher catering oper- ation. As part of the agreement of sale, Warwick Caterers agreed to use food, provided by R & K Caterers for all strictly kosher affairs in the War- wick Hotel. Under this provision, R & K would supply all chefs, cooks, pantry help, a management representative, and rabbinical supervision for the preparation of the food. Warwick Caterers would 282 NLRB No. 1'39 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supply all service personnel, such as waiters, bar- tenders, a maitre d', and dishwashers. From about 13 November 1981 through 26 January 1982, War- wick Caterers managed the nonkosher catering business for Warken pending the transfer of the liquor license. Warwick employed 39 persons during this period. Six Warken service employees were retained during this period. It is not clear from the record whether these same six, employees had also performed work for R & K. The Respondent excepts to the judge's failure to consider its defense that Warwick Caterers was a successor to R & K Caterers and, therefore, obli- gated to bargain with the Union on request. The record shows that there was no sale or transfer of assets between R & K and Warwick Caterers; the latter is not engaged in kosher catering and even assuming the 6 Warken service employees had also worked for R & K, a majority of Warwick's 39 employees were not former R & K employees. Thus, under any view of the facts, Warwick Cater- ers was not a successor to R & K Caterers. The judge also found that Warwick Caterers and Elan constitute a single employer. We agree. He also found, however, that there has been no accre- tion of Warwick Caterers' employees to the Elan unit and, therefore, there is no bargaining obliga- tion on the part of Warwick Caterers. We agree with the judge's finding on this issue as well. The judge's analysis of this issue focused on a recitation of the factors the Board had identified as being es- pecially important to a finding of accretion. These factors include the degree of actual interchange of employees between the affiliated companies and whether there is common day-to-day supervision of the employees.2 An examination of the record reveals that Steven Morgan sets overall labor relations policies for both Elan and Warwick Caterers, including wages and hours. The day-to-day management and super- vision of Warwick Caterers' service employees at the time of the dispute was handled by Robert Schulman. His counterpart at the Elan was Tom Maas. Similarly, the kitchen help at each facility were hired, supervised, and assigned work by their respective chefs. A few employees were on the payrolls of both corporations, however. The record indicates that around 22 January 1982 Elan discon- tinued its luncheon service and five of these Elan waitresses were hired to work at Warwick Cater- ers. Those same five persons also continued to work at Elan about twice a month serving Sunday brunch, for which they were paid separately. As far as interchange of employees between the two 2 Towne Ford Sales, 270 NLRB 311 (1984), affd. 759 F.2d 1477 (9th Cir. 1985) corporations is concerned, Steven Morgan's uncon- tradicted testimony reveals that it was only in emergency situations that an employee from one facility would work in the other. It is also apparent that the daily operations of the two entities are sep- arate and autonomous. When the Elan Club is not open for its regular business, its facilities are also used by Elan and Warwick for catered functions. Warwick Caterers sometimes books a party to take place in the Elan, in which case Warwick rents space from the Elan, including the use of the kitch- en. Warwick Caterers' employees cook, serve, and wash the dishes. Thus, what we have here is a situation in which the employees of Elan and Warwick Caterers are separately supervised and assigned work. Employ- ee interchange is limited to emergency situations only. Moreover, the daily operations of the two en- tities are separate and autonomous. In view of the foregoing, we conclude that the Warwick Caterers employees do not constitute an accretion to the Elan unit, but constitute a separate unit. Therefore, the Union violated Section 8(b)(7)(C) of the Act by its recognitional picketing. The judge also found that Local 274 violated Section 8(b)(3) by insisting on arbitration of its demand that Warwick Caterers recognize it as the representative of its employees. He further found that the Union violated Section 8(b)(2) and (1)(A) by seeking, through grievance arbitration, to compel application of all the terms of its collective- bargaining agreement with Elan, including a union- security clause, to the Warwick Caterers' employ- ees, a separate and distinct unit. The judge rea- soned that, for the Union to prevail, he would have to find that Warwick Caterers' employees were ac- creted to the Elan bargaining unit. Contrary to the view of the judge, the Union's action in insisting on application of the terms of its collective-bargaining agreement with Elan, includ- ing the arbitration clause, was not a violation of the Act because the question of representation had not been previously determined by the Board.3 Again, we reiterate our earlier finding in this case that the Regional Director's dismissal of the Union's prior 8(a)(5) charges in which it raised the single-em- ployer allegation did not serve' as a determination of the unit issue, even though the dismissal was upheld on appeal. Therefore, at that point, it was not unreasonable for the Union to continue to maintain its position on the single-employer and ac- cretion issues and attempt to have an arbitrator re- 3 Stage Employees TASTE Local 695 (Vidtronics Co.), 269 NLRB 133 (1984) HOTEL & RESTAURANT EMPLOYEES LOCAL 274 (WARWICK CATERERS) solve the dispute.4 Accordingly, `we reverse "thie judge and find that the Respondent did not violate Section 8(b)(1)(A), (2), and (3), as alleged. ORDER The National Labor Relations Board orders that the Respondent, Hotel and Restaurant Employees' and Bartenders' International Union, Local 274, Philadelphia, Pennsylvania, its officers, agents, and representatives, shall 1. Cease and desist from picketing or causing to be picketed, or threatening, to picket or cause to be picketed, Warwick Caterers where an object there- of is forcing or requiring the employer to recog- nize or bargain with it as the representative of its employees in violation of Section 8(b)(7)(C) of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its business offices and meeting halls in Philadelphia, Pennsylvania, copies of the at- tached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Direc- tor for Region 4, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 4 signed copies of the attached notice marked "Ap- pendix"' for posting by Warwick Caterers, the latter willing, at its premises in Philadelphia, Penn- sylvania, in places where notices to employees are customarily posted. Copies of the notice, on forms provided by the Regional Director for Region 4, after ' being duly signed by Respondent's representa- tive, shall be returned to the Regional Director for such posting. (c) Notify the Regional Director in writing within' 20 days from the date of this Order what steps the Respondent has taken to comply. 4 Carey P. Westinghouse, 375 U.S. 261 (1963), clearly holds that repre- sentational issues may be submitted to arbitration despite the fact that the Board may have concurrent jurisdiction It is interesting to note that in his decision dated 7 June 1983 the arbi- trator, on ruling on the merits of the Respondent Union's grievance, con- cluded that the issue was arbitrable yet he dismissed the grievance He ruled there was no showing in the contract of any intent by the parties for the contract to cover more than the Elan operation 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 941 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT under conditions prohibited by Section 8(b)(7)(C) of the Act picket or cause to be picketed, or threaten to picket or cause to be pick- eted, Hospitality Catering, Inc. t/a Warwick Cater- ers, where an object thereof is to force or require the employer to recognize or bargain with us as the representative of its employees or to force or require employees of the employer to accept and select us as their collective-bargaining representa- tive. HOTEL AND RESTAURANT EMPLOY- EES' AND BARTENDERS' INTERNA- TIONAL UNION, LOCAL 274 Margaret R. Brogan, Esq., for the General Counsel. Ira B. Silverstein, Esq. (Meranze, Katz, Spear & Wilder- man), of Philadelphia, Pennsylvania, for the Respond- ent. SUPPLEMENTAL DECISION Introduction--Background MICHAEL O. MILLER, Administrative Law Judge. In the initial decision of these consolidated cases, dated April 18, 1983, I found Hotel and Restaurant Employees' and Bartenders' International Union, Local 274 (the Union or the Respondent) in violation of Section 8(b)(1)(A), (2), and (3), and Section '8(b)(7)(C) as a result of its picketing to force or require Warwick Caterers' to recognize and bargain with it and by insisting on arbitra- tion of its claim that Warwick Caterers' employees were included within the unit covered by Respondent's collec- tive-bargaining agreement with Elan .2 In so concluding, I held, under then current Board law (Food & Commer- cial Workers Local 576 (Earl Engle), 252 NLRB 1110 (1980), enf. denied 675 F.2d 346 (D.C. Cir. 1982)), that I was precluded from considering whether Warwick Ca- terers and Elan constituted a single employer or were alter egos of one another, because as those contentions had formed the basis of Section 8(a)(1), (3), and (5) charges that the Union had filed against Warwick, Elan, and others. Those charges had been dismissed by the Board's Regional Director and that dismissal had, in turn, been upheld by the Board's General Counsel on appeal. i Hospitality Catering, Inc. t/a Warwick Caterers. 2 Elan of Philadelphia Ltd t/a Elan 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its Decision and Order herein3 the Board reconsid- ered and overruled the holding in Earl J. Engle, thus holding that consideration of the Respondent 's alter ego and single-employer defenses was warranted . The Board remanded the proceeding to me to consider the effect of those defenses on my conclusion that Respondent 's pick- eting was violative of Section 8(b)(7)(C).4 The Board further authorized, on my discretion, the reopening of "this proceeding for the limited purpose of obtaining evi- dence concerning the single-employer or alter ego status" of Warwick Caterers and Elan. FINDINGS OF FACT I. EVIDENCE CONCERNING RESPONDENT'S DEFENSES In the initial hearing, I had permitted the Respondent to raise its alter ego and single-employer defenses on the record. Pursuant to the terms of the Board's remand, I reopened the hearing on July 11, 1984, to permit the par- ties to supplement that record on those issues. Consider- ation of both the original and supplemental records, to- gether with the original briefs filed by the parties and their oral arguments before me, establish the following: Hospitality Investments, Inc. is a corporation owned in equal shares by four individuals, including Steven Morgan. Hospitality Investments owns 62 percent of the limited partnership known as Elan and is the general partner; Morgan is the managing partner. Warwick Ca- terers is a separate corporation owned by the same four investors; Steven Morgan is its president . Hospitality In- vestments provides management services, including bookkeeping and payroll, to Warwick Caterers, Elan, and other similarly owned corporations , from its New Jersey office for a fee. Morgan negotiates collective-bar- gaining agreements for those of the commonly owned corporations that have union agreements and sets the overall labor relations policies, including wages and hours, for all the corporations. Each corporation has in- dividual managers who exercise day-to-day supervision over the operations and the employees. Morgan manages the managers, not the employees. The various entities are separately incorporated in order to limit liability under the liquor licensing laws. Warwick Caterers operates the banquet facilities, con- sisting of five banquet rooms and two kitchens located on the second floor of the Warwick Hotel . Its principal income is derived from the sale and service of food from fixed banquet menus. Warwick Caterers had entered into an agreement to purchase this catering business , previ- ously owned and operated by Warken, in mid-November 1981 and Warwick Caterers' note was guaranteed by Hospitality Catering. Because of the delay necessitated by the transfer of liquor licenses, the sale by Warken to Warwick Caterers was not completed until January 26, 1982. From mid-November 1981 until the closing of that transaction, Warwick Caterers managed the catering service, replacing virtually all the kitchen help but re- taining at Warken's request (because of the possibility a 269 NLRB 482 (1984) 4 In light of its remand concerning the 8(b)(7)(C) issue, the Board deemed it premature to rule on the other issues raised by the case. that the deal would not be finalized) the service staff, i.e., the waiters, waitresses, and bartenders. When the transaction was finalized, those service employees were offered an opportunity to continue working for Warwick Caterers, but under different terms and conditions of em- ployment, and they declined the offers. Warwick Cater- ers then hired about 20 new waiters and waitresses. In- cluding among those hired were about five who had worked for Elan until Elan discontinued its luncheon service around January 22,, 1982. Those same five per- sons also continue to work at Elan, serving Sunday brunch, about twice a month, for which they are paid separately, by Elan. The service employees of Warwick Caterers serve from fixed menus at "sit-down" dinners. They do not take individual orders from individual diners. They do not serve liquor and they do not collect money from the diners for the meals they have been served. Their earn- ings come from their hourly wage, paid by the employer, and gratuities billed to the purchaser of the banquet as a percentage of the food cost, and not from tips derived directly from the diners. They are interviewed, hired, and supervised on a day-to-day basis by the manager of Warwick Caterers; similarly, the kitchen help at War- wick Caterers are hired, supervised, and assigned by the chef of that facility: Warwick Caterers is not party to any collective-bar- gaining agreement with the Respondent, the Union, and Warken, the prior owner, had never executed a collec- tive-bargaining agreement with the Respondent Local 274. However, since 1978, when its operations at the Warwick Hotel began, the waiters and waitresses who were steadily employed by Warken were union members and Warken honored the economic obligations of the Union's contract with the Hotel and Restaurant Associa- tion. Warken also secured additional waiters and wait- resses, as needed, through the Union. The president of Warken was also president of R & K Caterers, Inc., the kosher caterer at the Warwick Hotel. Rosenthal and Kaufman, from whom R & K had purchased the kosher catering business, had a formal collective-bargaining agreement with the Unions Elan is a singles bar and restaurant located on the first floor of the Warwick Hotel. The bulk of its income comes from the sale of liquor but it also features an a la carte menu serving food prepared in its own ' kitchen. Elan and the Union have had a collective-bargaining re- lationship since at leat April 1979. The current collec- tive-bargaining agreement is effective from April 9, 1982, through April 8, 1985 . Its recognition clause reads: The Employer, Elan Philadelphia, hereby recog- nizes the Union . . . as the exclusive bargaining representative for the unit that includes all waiters- waitresses, cocktail servers, bus persons, bartenders, bar backs, buffet runners, porters, room service per- sons, cooks, pantry persons, and utility employees, at its Hotel Warwick . . . location but excluding all office clerical employees, hosts-hostesses , front desk 5 I have taken official notice of G C Exh 2, R & K Caterers, Inc, JD-175-84. HOTEL & RESTAURANT EMPLOYEES LOCAL 274 (WARWICK CATERERS) employees, reception desk employees, coat cheek employees, sales employees, chefs and assistant chefs . . . music programmers , guards and supervi- sors as defined in the Act. Elan, unlike Warwick Caterers, is basically a standup facility with limited table space. Its waiters and waitress- es take a la carte food and drink orders, collect for those sales, and derive a substantial portion of their income from tips. In addition to its own service staff, Elan has its own chef and kitchen staff. Elan's employees are interviewed, hired, and supervised by Elan's manager or its chef,, depending on their jobs. Robert Stein, a waiter for Warken until November 1981, when he became a maitre'd for Warwick Caterers, observed that, on occasion, the chefs, dishwashers, and kitchen steward from Warwick Caterers would work at Elan or vice versa. He had no role in any such assign- ments. He also observed that a stairway between Elan on the first floor and Warwick Caterers on the second, which had been sealed off prior to November 1981, was opened. Stein's observations began with the start of his employment as maitre'd and ended with his termination in January 1982. Morgan testified that he was at the hotel generally overseeing the operations of Warwick Caterers and Elan on the two or three busiest days of the week. According to his uncontradicted testimony, it was only in emergen-, cy situations, as when someone was injured, that an em- ployee from one facility would work in the other. Approximately 6 to 15 times per month, at times when it is not open for its 'regular business, the Elan facilities are used for catered functions.. About one-half of these are booked by the Elan sales staff; about one-half are booked by Warwick Caterers, usually after all of its own facilities are booked. If Elan books the party, Elan em- ployees work it. If Warwick Caterers books the party, Elan rents the space including possibly the kitchen to Warwick Caterers and Warwick Caterers' employees cook, serve, and wash the dishes. All the catering func- tions scheduled in the hotel are listed on' a single "War- wick'Catering Weekly Function" sheet. Weekly meetings to consider the menus, attended by the sales departments of both Elan and Warwick Caterers, the Warwick Cater- er' chef, Warwick Caterers' regional director Schulman, Robert Stein, and sometimes the supervisors from Elan, were held during Stein's brief tenure as maitre'd. When Morgan negoitated the 1979 agreement between Elan and the Union, Warken was the nonkosher caterer at the Warwick Hotel. The Union did not, at that time, seek to include Warken's employees in the bargaining unit with Elan. II. DISCUSSION In Carpenters Local 1846 Y. Pratt-Farnsworth, Inc., 690 F.2d 489, 507 (5th Cir. 1982),6 the court stated: 6 Pratt-Farnsworth was cited with approval, and quoted at length, by the administrative law judge in Samuel Kosoff & Sons, 269 NLRB 424 (1984) The Board affirmed the judge's rulings, findings, and conclusions in full 943 hi -deciding whether a company is an alter ego, the Board will often look to factors which bear some similarity to those involved in a single employer question; in particular, whether the two enterprises have substantially identical management, business purpose, operations, equipment, customers, supervi- sion and ownership. Hageman Underground 'Con- struction, 253 NLRB 60 (1980); Crawford Door Sales Co., 226 NLRB 1144 (1976), However, the focus of the alter ego doctrine, unlike that of ,the single em- ployer doctrine, is on the existence of a disguised continuance or an attempt to avoid the obligations of a collective-bargaining agreement through a sham transaction or a technical change in operation. [Citations omitted.] Similarly, the Supreme Court, in Howard Johnson Co. v. Detroit Joint Executive Board, 417 U.S. 249 at 259 (1974), stated that alter ego "cases involve a mere technical change in the structure of identity of the employing entity, frequently to avoid the effect of the labor laws, without any substantial change in its ownership or man- agement." Applying the "disguised continuance" test to the in- stant facts, it is clear that Warwick Caterers is not the alter ego of Elan, even if one were to assume that the other criteria for alter ego status were satisfied. Warwick Caterers did not create the catering business within the confines of the Warwick Hotel. That was a preexisting business that had, for a number of years, coexisted within the hotel with Elan. The two operations continue to exist side by side, each in its distinct aspect of the food and beverage service industry. In acquiring the catering busi- ness from Warken, Warwick Caterers made no effort to subsume any aspects of Elan, to operate in place of Elan, or to avoid any of the legal obligations imposed on Elan. Elan continues in existence ; in all material respects, its business is unchanged by Warwick Caterers' acquisition of Warken. In sum, as Warwick is not a disguised continuance of Elan, it is not Elan's alter ego such as might impose the obligations of Elan's contract with the Union on War- wick Caterers.7 Court decisions, quoted with approval by the Board, provide similar guidance in determining whether War- wick Caterers and Elan constitute a "single employer." Thus, in NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir, 1982),8 the court defined a " single 7 As I read the Board's remand, the issue of whether Warwick Cater- ers is the alter ego of or a single employer with Warken or any other employer is not before me Respondent, in its closing arguments, argued that there was no limitation on which issues I could determine on this remand. Although I would find the Respondent's argument in this regard to be without merit, I would ponnt out that the record contains no evi- dence that there was any continuity of ownership or management be- tween Warken and Warwick Caterers after the 3-month period during which Warwick Caterers managed the catering operations pending com- pletion of the sale. "Substantially identical" ownership between two en- terprises is a prerequisite to a conclusion that an alter ego status exists Morton's LG.A Foodliner, 240 NLRB 1246 fn 2 (1979), Crawford Door Sales, 226 NLRB 1144 (1976). B Cited by the Board in Aspen Leasing Systems, 271 NLRB 1536 (1984). 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer" relationship as one that "exists where two nominally ' separate entities are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a `single employer.' The question in `single em- ployer' situations, then, is whether the two nominally in- dependent enterprises, in reality, constitute only one inte- grated enterprise." The court, following the Supreme Court's decision in Radio Union Local 1264 v. Broadcast Service of Mobile, 380 U.S. 255 (1965), and the Board's decision in Parklane Hosiery Co., 203 NLRB 597 (1973), noted at 1122 that the Board, in resolving the "single employer" question, considers four factors: (1) Functional integration of operations; (2) Centralized control of labor relations; (3) Common management; and (4) Common ownership. "Thus," the court said at 1122, "the `single employer' standard is relevant to the determination that `separate corporations are not what they appear to be, that in truth they are but divisions or departments of a single enterprise.' `Single employer' status ultimately depends on all the circumstances of the case and is characterized as an absence of an `arms length ' relationship found among unintegrated companies."' A finding of "single employer" depends on the circumstances of each case. Shellmaker, Inc., 265 NLRB 749 (1982). Having defined "single employer" and set forth the factors that establish such relationships, we must now apply those factors to the instant case. No one of the four factors listed above is deemed controlling and not all four of them need to be present in order to find "single employer" status. However, of the four factors, the most significant is common control of labor relations. Shellmaker, supra. NLRB v. Browning-Ferris Industries, supra. Here, the connections between the two corporate entities are the following: There is extensive common ownership. The president and managing partner of War- wick Caterers, Steven Morgan, is also the president of the corporation that is the general partner in the partner- ship owning Elan. Morgan provides overall management to both corporations, including the determination of labor relations policies. Warwick Caterers leases space, from time to time, from Elan of some of its catered func- tions, a few employees are on the payrolls of both corpo- rations, and there is sporadic interchange of employees to meet emergency needs. Counterbalancing these evi- dences of commonality, there is the following: The two entities maintain their own immediate supervisory and sales staffs, employee complements , and payrolls. Al- though both are engaged in food and beverage service, each operates a different kind of operation and, it ap- pears, serves a different clientele. Based on all the foregoing, I must conclude that be- tween Warwick Caterers and Elan there is not the "arms length relationship found among umntegrated compa- nies." Browning-Ferris Industries, supra. There is exten- sive common ownership . Although there is little func- tional integration of the operations beyond emergency interchanges of employees, the facts show that some em- ployees ' work for both corporations on a more or less regular basis, that one corporation regularly leases space from the other, that the two corporations have common management at least at the general manager's level, and that they both derive their management services, includ- ing payroll and bookkeeping , from the same commonly owned corporation, Hospitality Investments. Finally, it is undisputed that the labor relations of the two corpora- tions are under centralized control. Thus, I must con- clude that these "separate corporations are not what they appear to be, that in truth they are but divisions or de- partments of a single enterprise." NLRB Y. Deena Art- ware, Inc., 361 U.S. 398, 402 (1960). They constitute, therefore, a single employer as that term has been de- fined by the Board and the Courts. My finding of "single employer" status does not, how- ever, end this inquiry. Warwick Caterers would have no obligation to recognize or bargain with the Respondent, notwithstanding that "single employer" status, unless the employees of Warwick Caterers are part of the bargain- ing unit encompassing Elan's employees , i.e., constitute an accretion to the Elan unit .9 Peter Kiewit Sons' Co., 231 NLRB 76 (1977). In Towne Ford Sales, 270 NLRB 311 (1984), the Board recently reexamined and reiterated its policies concern- ing accretion. It stated as follows: The Board has followed a restrictive policy in find- ing accretion because it forecloses the employees' basic right to select their bargaining representative. We stated in Melbet Jewelry Co., 180 NLRB 107, 110 (1969), that the Board "will not, under the guise of accretion, compel a group employees, who may constitute a separate appropriate unit, to be includ- ed in an overall unit without allowing those em- ployees the opportunity of expressing their prefer- ence in a secret election." In that case, the Board identified the degree of actual interchange between the affiliated companies and wheth- er there is common day-to-day supervision of the em- ployees in the two groups as being especially important to a finding of accretion . The Board noted that the latter factor was particularly significant inasmuch as "the day- to-day problems and concerns among the employees at one location may not necessarily be shared by employees who are separately supervised at another location." (270 NLRB at 312.) In Towne Ford Sales, the two corporations constituted a single employer . Both were engaged in the retail sale, service, and distribution of automobiles, one foreign and one domestic. The foreign car sales operation was newly created while the domestic automobile operation had been in existence for a number of years, during which time its mechanics had been represented by a union and covered by collective-bargaining agreements. The two facilities were in close proximity to one another, they shared common officers, common ownership, and common management at the policymaking level. A single 9 Inasmuch as the accretion issue is essential to the Respondent's single-employer defense, which I have been directed to consider, I deem that issue to be incorporated within the remand. HOTEL & RESTAURANT EMPLOYEES LOCAL 274 (WARWICK CATERERS) 945 individual, their president, formulated the labor relations policies affecting the employees of both, and they shared advertising and sales forces. The mechanics employed to work on the imported cars used some of the equipment and tools from the domestic automobile operation and, on occasion, the mechanics from the domestic operation worked on the imported cars. The two groups of em- ployees possessed the same job skills and utilized similar tools and equipment. However, each operation had its own service manager who hired the mechanics and di- rected their work. There was no common immediate su- pervisor and no day-to-day contact between the two groups of employees. Based on these facts, the Board found no accretion and, therefore, no obligation by the employer to bargain with the union with respect to the employees of its newly created operation. The Board stated (270 NLRB at 312), in language that could be ap- plied almost verbatim to the instant situation, the follow- ing: In the instant case, although Towne Ford Sales me- chanics might occasionally work on Towne's im- ported cars, there is no evidence of "actual" inter- change of employees or of any regular contact be- tween the mechanics employed at the two locations. It is also apparent that the daily operations of the facilities are separate and autonomous and that the day-to-day control and supervision of matters of in- terest to the employees are handled entirely within each of the facilities by the respective service man- agers: The control by the Respondent's president of general policy does not detract from the signifi- cance of either the independent supervision of the employees on daily matters and concerns or the lack of 'interchange among the two groups of em- ployees. Accordingly, we find that other factors in the in- stant case are insufficient to establish accretion in the face of separate daily supervision and lack of interchange ... . I am bound by the Board's decision in Towne Ford Sales, and I find, based on the authority of that case, that there has been no accretion, and therefore there is no bargaining obligation, in the instant case. Inasmuch as I have, pursuant to the terms of the remand, considered and rejected Respondent's single em- ployer and alter ego defenses, my findings and conclu- sions with respect to Respondent's unlawful conduct remain unchanged. Pursuant to the terms of that remand I issue the following CONCLUSIONS OF LAW 1. Warwick Caterers has been, at no relevant time, the alter ego of Elan. 2. Warwick Caterers and Elan, at all relevant times, constituted a single employer. 3. The employees of Warwick Caterers, including its waiters-waitresses, cocktail servers, bus persons, bartend- ers, bar backs, buffet runners, porters, room service per- sons, cooks, pantry persons, and utility employees, may constitute a separate appropriate bargaining unit that may not be accreted to the unit of employees at Elan represented by the Union, without a secret ballot elec- tion. 4. The findings of fact and conclusions of law set forth above warrant no change in the conclusions of law, pre- viously set forth in my initial decision, which issued on April 18, 1983, JD-157-83, and the conclusions of law set forth in that decision are adopted and expressly incor- porated by reference in this supplemental decision. [Recommended Order omitted from publication.]