Denny's Restaurant #3

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 702 (N.L.R.B. 1969)

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.