NLRB v. Elias Brothers Big Boy, Inc.

• Decision Date: 11 December 1963
• Docket Number: No. 15180.,15180.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELIAS BROTHERS BIG BOY, INC., et al., Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

325 F.2d 360 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELIAS BROTHERS BIG BOY, INC., et al., Respondents.

No. 15180.

United States Court of Appeals Sixth Circuit.

December 11, 1963.

William J. Avrutis, N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, on the brief), for petitioner.

George N. Bashara, Jr., Detroit, Mich., for respondents.

Before WEICK and PHILLIPS, Circuit Judges, and DARR, Senior District Judge.

PHILLIPS, Circuit Judge.

Elias Brothers Big Boy, Inc., referred to herein as "Elias," sells and distributes in the Detroit area several restaurant products, featuring a special type of hamburger sandwich known as "Elias Brothers Big Boy." Elias operates eight restaurants and, in addition, has granted franchises to certain other restaurants under which the licensees are permitted to advertise and sell the "Big Boy" sandwiches and other Elias products. Among the licensees are respondents Greenfield Holiday, Inc., referred to herein as "Greenfield," and Holiday Drive-In, Inc., referred to herein as "Holiday."

The National Labor Relations Board filed complaints against Elias, Greenfield, Holiday and another Elias licensee known as Livonia Big Boy, Inc., charging certain unfair labor practices hereinafter set forth in more detail. The cases were consolidated for hearing, with the General Counsel contending that all four corporations constituted a single employer for jurisdictional purposes.

The Board ruled that Elias and Livonia would not be considered a single employer and dismissed the complaint as to Livonia. It further held that Elias, Greenfield and Holiday did not constitute a single employer. As to Greenfield and Holiday, however, the Board held that the ownership and operations of these two corporations were such that they should be treated as a single employer for jurisdictional purposes. It is not disputed that when its operations are considered separately, Elias is subject to the jurisdiction of the Board. Thus there are involved here two employers, (1) Elias and (2) Greenfield and Holiday.

Finding Elias and Greenfield guilty of certain unfair labor practices, the Board entered a cease and desist order, directed the reinstatement of three employees and required the posting of the customary notices. The decision and order of the Board are reported at 137 N.L.R.B. No. 116. The Board has filed a petition in this Court for enforcement of its order.

We grant enforcement in part and deny enforcement in part.

First we consider the action of the Board in treating Greenfield and Holiday as a single employer for jurisdictional purposes. It was found that in a representative year Greenfield made retail sales of goods valued at $405,146 and that its annual purchases from Elias of merchandise which the latter had received from outside the State of Michigan exceeded $20,000; and that during a similar twelve month period the retail sales of Holiday totaled $319,518 and its purchases from Elias of goods received directly from states other than Michigan were valued at $10,000. The General Counsel conceded at the hearing before the Board that if Greenfield and Holiday were considered separately, the Board would not assert jurisdiction.¹

The Board found that Greenfield and Holiday are Michigan Corporations, each of which operates two drive-in restaurants under Elias franchises in the Detroit area; that they have common officers and directors; that six individuals who are officers and directors of both corporations own all the shares of stock of Holiday and one-half the stock of Greenfield; that the same officer who serves as secretary of Greenfield and secretary-treasurer of Holiday is general manager for both companies, and that the same general manager is responsible for the overall operations of the two corporations and the establishment of personnel policies on such matters as wage rates and hours of employment; that the discharge of an employee in either corporation must be cleared through the same general manager before it is effective; that immediately below the general manager in line of authority is a supervisor who is on the payroll of both corporations and is responsible for the day to day management of both companies, and who goes to the restaurants operated by both companies almost daily; and that all corporate books and records for both corporations are kept at the same location, and the same clerical staff computes and maintains the payroll records for employees of both corporations.

Respondents deny the authority of the Board to treat the two corporations as a single employer, relying upon the fact that they keep separate bank accounts, maintain separate social security numbers, file separate tax returns and, in general, have preserved their separate corporate identities.

The findings and conclusions of the Board with respect to the interlocking management and control of these two corporations are supported by substantial evidence on the record. We conclude that the Board was justified, under these facts, in treating the two corporations as a single employer for jurisdictional purposes. N. L. R. B. v. Stowe Spinning Co., 336 U.S. 226, 69 S.Ct. 541, 93 L.Ed. 638; N. L. R. B. v. Gibralter Industries Inc., 307 F.2d 428 (C.A.4), cert. denied, 372 U.S. 911, 83 S.Ct. 724, 9 L.Ed.2d 719; N. L. R. B. v. Concrete Haulers, Inc., 212 F.2d 477 (C.A.5).

We now consider the various unfair labor practices with which respondents are charged. The Board found that Elias in certain instances and Greenfield in others were guilty of unfair labor practices in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. Section 158 (a) (1) and (3), viz.: (1) a company rule by Elias against solicitations on the premises; (2) the action of Elias in soliciting and assisting an employee in withdrawing from the union; (3) interrogation by both corporations of employees concerning their union activities; (4) confiscation of union literature; and (5) the discriminatory discharge of three employees.

The Company Rule Against Solicitation

Some time prior to the union campaign to organize its employees, Elias adopted the following company rule against solicitations: "No solicitation allowed in any Big Boy Drive-In unless approved by the Main Office." A notice to this effect over the signature of Elias' general manager was posted in at least one of respondent's restaurants. In his intermediate report the trial examiner found that there was no showing that this rule was initially adopted for a discriminatory purpose and that the rule is not per se a violation of the Act. The Board reversed the trial examiner on this point and held that the rule was invalid and that by maintaining said rule in effect Elias violated Section 8 (a) (1). We find no evidence on the record in this case that Elias has ever questioned or denied the right of its employees to solicit support for a labor union or membership in a union on company premises during their non-working time. See Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; N. L. R. B. v. Monarch Tool Co., 210 F.2d 183 (C.A.6), cert. denied, 347 U.S. 967, 74 S. Ct. 778, 98 L.Ed. 1109. While the order of the Board goes no further than to prohibit such practice, this provision in the order is not appropriate under the facts of this case, because Elias is not shown to have been guilty of such a practice. Enforcement therefore is denied of this part of the Board's order.

Soliciting and Assisting Employee in Withdrawing from Union

The Board found that Martha J. Brooks, a waitress for Elias, signed a union authorization card early in the unionization drive; that on the following day the manager of the restaurant where this waitress worked questioned her as to whether she had been contacted by the union and whether she had signed a card; that when the waitress answered in the affirmative, the local manager suggested that she could withdraw from the union by writing a letter to that effect; that two days later Elias' general manager suggested that she could write a letter of resignation to the union if she chose and shortly thereafter the waitress told the general manager that she would sign a letter of withdrawal; and that the general manager thereupon produced the following prepared letter, which the waitress signed and handed back to him:

"AFL-CIO "Hotel and Rest. Employees Union "Local 705 "100 Selden "Detroit, Michigan

"Gentlemen

"I am employed by Ellias sic Brothers Big Boy Drive Ins as a waitress. On Friday, June 2 two men from your union approached me and gave me a brochure stating the advantages of belonging to your union. They said there was a time limit and without giving me too much information suggested I sign the agreement at that time.

"I did so, but I feel it was a mistake because I realize I am completely satisfied with my position at Elias Brothers and don\'t feel it necessary to join a union.

"Please accept this letter as a cancellation of the agreement I signed in haste.

"Sincerely,"

The Board further found that the waitress neither dictated this letter nor asked that it be prepared, but that she signed it when the finished letter was submitted to her by the general manager, and then had nothing further to do with it; and that shortly thereafter the letter was delivered to union headquarters via registered mail. These findings are supported by substantial evidence on the record. We hold that the Board was justified in concluding that this action on the part of Elias in soliciting and assisting its employee in withdrawing from the union constituted a deterrent to the employee's freedom of action and a violation of Section 8(a) (1) of the Act. N. L. R. B. v. United Biscuit Company, 208 F.2d 52, 55 (C.A.8), cert. denied 347 U.S. 934, 74 S.Ct. 629, 98 L.Ed. 1085. See also N. L. R. B. v. Valley...