Macy's San Francisco

MACY'S SAN FRANCISCO 69 in the pooled group, the Regional Director is instructed to issue a certification of representatives to such labor organization for a unit of production and maintenance employees, which the Board, in such circumstances, finds to be an appropriate unit for the purposes of collective bargaining. 5. The hearing officer rejected an offer of proof made by the Employer to support its contention that the Joint Intervenor, if cer- tified, would not represent the employees in its unit jointly but that each of the two constituent unions would separately represent particu- lar categories of employees. In its brief the Employer renews this contention and urges it as a ground for excluding the Joint Inter- venor from this proceeding. We find no merit in this contention. The two unions involved are seeking joint certification for the same unit of employees. In so doing, they are impliedly representing to the Board that if certified they will jointly represent all the employees in the unit; and, if they are certified, the Employer may insist that they do in fact bargain jointly for all the employees in the unit. Accordingly, we find that the rejection of the Employer's offer of proof was, in any event, not prejudicial and we will place the Joint Intervenor on the ballot. Vanadium Corporation of America, 117 NLRB 1390,1391; The Stickleas Corporation, supra. [Text of Direction of Elections omitted from publication.] Macy's San Francisco and Seligman & Latz, Inc., jointly and Barbers' & Beauticians' Union, Local 148, AFL-CIO, Peti- tioner. Case No. 930-RC-3377. March 7, 1958 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Shirley N. Bingham, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1. Macy's San Francisco, the Employer named in the petition, is engaged in commerce within the meaning of the National Labor Re- lations Act. At the hearing intervention was allowed on behalf of two other entities who claim to be the employer of the employees in question, that is, Seligman & Latz , Inc., a New York corporation which is the parent company for a nationwide chain of beauty salons operating as leased departments in various department stores, in- cluding Macy's San Francisco ; and the San Francisco Retailers' 120 NLRB No. 7. ^'70 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD Council, an unincorporated association which engages in collective bargaining for its member stores, of which Macy's San Francisco is one. At the close of the hearing Petitioner amended its petition "to conform" with whatever the Board's finding might be concerning the Employer or Employers. We find on this record that Seligman & Latz, lessee, is engaged in commerce within the meaning of the Act- We also find because of their joint control of the labor relations policy concerning these employees as detailed in paragraph numbered 4, that Seligman & Latz and Macy's, San Francisco are joint employers of the employees sought. In view of this finding we further find that the Council is` not an employer of these employees for the purposes of this proceeding.' 2. The labor organization involved claims to represent certain employees of the Employers. 3. A question' affecting commerce exists concerning the represen- tation of employees of the Employers within the meaning of Section 9 (c) (1) and'Section 2 (6) and (7) of the Act. 4. Petitioner seeks a unit of beauty shop employees at Macy's San Francisco store. This is a leased department run by Seligman & Latz, who'-have similar shops operated on a leased basis in other San Francisco stores, as well as many more throughout the country. The record ^ indicates that the lease arrangement between Macy's and Seligman & 'Latz cedes bargaining 'rights for the beauty salon em- ployees to Macy's, and also that Macy's has in turn ceded these rights to the San Francisco Retailers' Council. The latter group includes as members numerous San Francisco retail stores, including department stores. Apparently 8 other employer members of the Council employ beauty operators in a total of 12 beauty shops, some at suburban stores. In San Francisco there is a 20-year history of multiemployer bar- gaining with the Retail Clerks covering retail salespeople, but ex- cluding beauty parlor operators, and other specialized categories. The beauty parlor employees were included only in the 1938 contract, which ran until 1940. Since then they have been excluded from the multiemployer contracts. In the interim their salaries have been the subject of unilateral bulletins issued by the policy committee of the Council to affected members, covering minimum rates of pay for beauty shop operators. Each Seligman & Latz salon is separately incorporated, with the stock held by the parent corporation. The salon at Macy's has approximately 25 beauty operators. These are skilled operators, licensed by the State. The seven San Francisco salons of Seligman & 1 See Franklin Simon & Co, Inc ., 94 NLRB 576 ; cf. Duane's Miami Corporation, 119 NLRB 1331. , MACY'S -SAN, FRANCISCO 71 Latz' are- part of its - North California division, -which has an area supervisor in -charge. This supervisor interviews, applicants, who •may have been screened by a salon manager, and makes the final .decision as to_ hiring except that- she clears-with the personnel depart- ment of the store involved, for instance, with Macy's for the employees .here concerned. -. Termination of employment is also subject to store clearance. The salon manager may- recommend hiring and dis- charge, and may herself discharge in case of gross misconduct. She is in active charge of the operation of the shop on a daily basis. Seligman, & Latz furnishes standard supplies for its shops and con- ducts refresher and training programs which, in the San Francisco area, are shared in by all operators who work, in the San Francisco salons. Employees are transferred to other salons in the area but this is generally upon request, and as a, convenience, to the employee concerned. These appear to be outright transfers rather than em- ployee interchange. Working conditions are similar in all shops, as are fringe benefits. However, salary checks are,paid to the employees by the store in which the salon is located and the employees participate in merchandise discounts on the basis prevailing at the store. Checks for additional commissions are given the employees by Seligman & Latz. Macy's contends that only a unit including, beauty shop employees of all member employers in the Council is appropriate., However, if the Board does not find that unit appropriate, it concurs in the alter- nate unit suggestion of Seligman & Latz that the unit consist of employees in all of the Seligman & Latz shops in San Francisco. In the event the Board finds this alternate unit appropriate rather than the multiemployer unit urged by Macy's, Seligman & Latz and Macy's are willing to amend their lease in order to restore bargaining rights over the employees here sought to Seligman & Latz. The Petitioner is willing to bargain with any employer entity the Board designates, but wishes the unit to be on the single-store basis here sought by it. It is clear on this record that the established pattern of multi- employer bargaining for retail store employees in the San Francisco area has not included beauty shop employees except for a brief period. This 2-year period is too short in duration and too long removed from the present proceeding to constitute an established bargaining history as to beauty shop employees. The unilateral employer actions concerning their minimum wage which followed the early bargaining history cannot be said to constitute bargaining at all. Nor can the fact that Petitioner in 1951 and 1955 consented to elections in the multiemployer unit now urged by Macy's be said to constitute effective bargaining history. Petitioner lost those elections and no bargaining resulted. It is well settled that single-employer units are presump- 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively appropriate 2 and that a history of multiemployer or multiplant bargaining for other employees does not preclude the establishment of a single unit of unrepresented employees in a different category .3 Also, despite the custom of establishing storewide bargaining units in the department store field, the Board has found appropriate separate units of beauty shop employees working within a department store, on the basis of craftlike skills.4 Here no union seeks a multiemployer or multiplant unit for the unrepresented beauty shop employees. As there is no established pattern of multiemployer bargaining for these particular employees, the Councilwide unit primarily urged by Macy's is not the only appro- priate unit. Nor do we find, in the circumstances here presented, that a unit of beauty operators employed at all Seligman & Latz salons in San Francisco is the only appropriate one. Although the Seligman & Latz salons are operated with ultimate supervision and hiring author- ity on an area basis, it is clear that each salon-such as the one sought at Macy's-is separately supervised on a day-to-day operating basis and that the department store in which the salon is located maintains at least clearance control of hiring and discharge, hence is actively concerned with the labor policy affecting the employees at the salon in question. Thus the question is not simply one of a setting up an area unit for a chain of retail stores, as Employers contend.' Rather the unit urged would comprise a chain of leased departments. On this record, which shows that lessor and lessee together control the labor relations policy, we think that a single salon rather than a unit of salons leased from various lessors in the area is appropriate. Accordingly, we find that the following employees of the Employers constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : 6 All licensed beauti- cians, including operators, manicurists, stylists, electrologists, hair driers, shampooists, facialists, and body masseuses working in the beauty salon in Macy's San Francisco, California, store, excluding maids, receptionists, guards, and supervisors as defined in the Act.7 [Text of Direction of Election omitted from publication.] MEMBER BEAN took no part in the consideration of the above Decision and Direction of Election. 2 See Arden Farms, et al , 118 NLRB 117. 3 See Lownsbury Chevrolet Company, 101 NLRB 1752; Pearl Brewing Company, 106 NLRB 192, 193, Sovereign Productions, Inc, 107 NLRB 359 4 See May Department Stores Company, 97 NLRB 1007. 5 Cf Robert Hall Clothes, Inc., 118 NLRB 1096. Father & Son Shoe Stores, Inc, 117 NLRB 1479, Food Fair Stores, Inc., 114 NLRB 521 8 The parties stipulated to the unit. Receptionists and maids are represented by other labor organizations 7 The parties stipulated that the salon manager is a supervisor,