Kapok Tree Inn, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 702 (N.L.R.B. 1977)

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.
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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 1
9%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