NLRB v. Frisch's Big Boy Ill-Mar, Inc.

• Decision Date: 11 February 1966
• Docket Number: No. 15328.,15328.
• Citation: 356 F.2d 895
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRISCH'S BIG BOY ILL-MAR, INC., an Indiana corporation, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

356 F.2d 895 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRISCH'S BIG BOY ILL-MAR, INC., an Indiana corporation, Respondent.

No. 15328.

United States Court of Appeals Seventh Circuit.

February 11, 1966.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Michael R. Brown, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Glen M. Bendixsen, Atty., N. L. R. B., Washington, D. C., for petitioner.

Alan T. Nolan, Jack R. Snyder, Indianapolis, Ind., for respondent, Ice, Miller, Donadio & Ryan, Indianapolis, Ind., of counsel.

Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

National Labor Relations Board, by its petition, seeks enforcement of its order¹ issued against Frisch's Big Boy Ill-Mar, Inc., an Indiana corporation, respondent, under date of March 5, 1965, which, inter alia, directed respondent to bargain with a union² as the representative for respondent's employees.

A regional director to whom the Board had delegated its powers pursuant to § 3(b) of the Labor-Management Relations Act, held a hearing and found, inter alia, that employees of respondent's restaurant at 51 North Illinois Street, Indianapolis, Indiana, constituted an appropriate unit for collective bargaining purposes within the meaning of § 9(b) of the Act, 29 U.S.C.A. §§ 153(b), 159(b).

The Board agreed and found that respondent corporation violated § 8(a) (5) and (1) of the Act by refusing to recognize and bargain with the union which had been certified as the statutory representative of its employees. The Board rejected respondent's contention that the bargaining unit certified was inappropriate.

Respondent operates a single restaurant (store). The persons who own it also own ten other corporations, each of which corporations likewise operates a single restaurant. Ten of these restaurants (including that of respondent) are located in Indianapolis, Indiana. Respondent's store is geographically located among the others in the group.³

It is agreed that Frisch's stores (restaurants), including respondent's, at all times relevant herein have been affiliated businesses with common officers, owners, directors and operators, and constitute a single integrated enterprise, whose principal office is located in Indianapolis.

The evidence in the record clearly establishes that Frisch's stores constitute a chain operation. Each store in the chain is similar in all respects to each of the other stores as far as the impact of labor relations is concerned. They are as much alike in this respect as peas in a pod. Whatever advantage was sought by the creation of an individual corporation for each store is of no concern in this case. In fact, no attempt has been made by the Board to show that the multi-corporate form of the employer here involved has any actual relevancy to the question before us in this proceeding.

The only factual contention made by petitioner which requires notice is that each restaurant has "autonomy" because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indidianapolis restaurants to cover. These area supervisors visit the restaurants frequently. The managers' duties include the telephoning to local suppliers who have been selected and have entered into agreements negotiated by the president. The managers receive supplies and forward invoices and cash sales records to the general office each day.

Payrolls, accounts and other records are maintained in the general office, although separately for each restaurant. All restaurants sell the same food from the same menu and operate in essentially the same manner. Employees have identical terms and conditions of employment: (a) same application for employment is used at all the restaurants; (b) same vacation system; (c) same Christmas bonus; (d) all regular shift hours at all restaurants are approximately eight hours per day; (e) all restaurants have time clocks; (f) six days' work is the maximum for one week for each employee; (g) all employees receive two meals per day at the cost of the employer; (h) uniforms are supplied for all restaurant employees; (i) all waitresses are...