NLRB v. Davis Cafeteria, Inc.

• Decision Date: 05 June 1968
• Docket Number: No. 21578.,21578.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DAVIS CAFETERIA, INC., and Polly Davis Broward Cafeteria, Inc., Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

396 F.2d 18 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DAVIS CAFETERIA, INC., and Polly Davis Broward Cafeteria, Inc., Respondents.

No. 21578.

United States Court of Appeals Fifth Circuit.

June 5, 1968.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Richard P. Lawlor, Elliott Moore, Attys., N.L.R.B., for petitioner.

J. Frank Ogletree, Jr., Atlanta, Ga., for respondents.

Before WISDOM, BELL and DYER, Circuit Judges.

DYER, Circuit Judge:

This is the second petition¹ by the National Labor Relations Board for enforcement of its order finding respondents in violation of sections 8(a) (5) and (1) of the National Labor Relations Act² for their refusal to bargain with the union as representative of the employees of two of the parent company's³ eight south Florida cafeterias. We pretermit a detailed exposition of the facts as they are fully stated in our previous opinion in this case. N.L.R.B. v. Davis Cafeteria, Inc., 5 Cir. 1966, 358 F.2d 98, 98-99. Briefly, the controversy centers on the Board's determination that two of the eight Davis cafeterias in the Miami area administrative district constitute an appropriate bargaining unit. We initially denied enforcement of the Board's petition because the Board had failed to articulate the basis of its order. On remand the Board, without further hearing, entered a supplemental decision reaffirming its position.

We recognize that in determining appropriate bargaining units "a wide discretion has been vested in the Board," N.L.R.B. v. Belcher Towing Co., 5 Cir. 1960, 284 F.2d 118, 120, and that this court may not "displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo," Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456. However, in this case the record considered as a whole clearly shows that the Board has abused its discretion, its decision is not supported by susbtantial evidence in the record or by judicial decisions, and its order must, therefore, be set aside.

In its supplemental decision⁴ the Board itself recognized:

There are, concededly, a number of factors which would appear to militate in favor of the appropriateness of a multi-cafeteria unit. Thus, there is a degree of functional integration between the central office and the eight cafeterias operated by the Respondents, as evidenced by the facts that personnel, payroll, and Social Security records are kept by the general office; the general office determines labor policy, rates of pay, hours of work, and insurance benefits; and the general office supplies a master menu for the assistance of the local managers, and determines the food prices to be charged to customers.

(Emphasis added.) Notwithstanding these most compelling facts, the Board determined that each cafeteria manager had sufficient autonomy to render each cafeteria an appropriate unit. An examination of the factors upon which reliance was placed, in light of the entire record, demonstrates that they do not constitute any sort of local managerial authority over substantive subjects of collective bargaining. While the local manager does have authority to order food and supplies for his cafeteria, the record is clear that he may only use a list of suppliers and prices issued by the general office. Both the general office and the local managers have authority to hire and fire employees, but the fact that the local manager has this authority does not alone make his cafeteria an appropriate unit. N.L.R.B. v. Frisch's Big Boy Ill-Mar, Inc., 7 Cir. 1966, 356 F.2d 895, 897. The manager may obligate the company's credit, but only for certain cleaning supplies within a limit set by the general office. Managers do not have authority to grant wage increases, but may recommend raises to the general office. Each cafeteria has a separate bank account, but the manager has no authority to draw on it.

The Board's supplemental decision was rendered on September 14, 1966, and placed almost total reliance on its decision in Purity Food Stores, Inc., 160 N.L.R.B. 53, which involved a factual situation nearly identical to that in the case sub judice. However, on May 8, 1967, the Board's petition for enforcement in Purity Foods was denied by the First Circuit and its order was set aside. N.L.R.B. v. Purity Food Stores, Inc., 1 Cir. 1967, 376 F.2d 497. Here, as in that case, "the `independence' of the stores * * * amounts to no more than a few miles of physical separation and the consequent division of a few ministerial responsibilities. This is far from enough." Id. at 501. In view of the elucidating opinions in the Purity...