S.A.G.E., Inc. of Houston

S.A.G.E., INC. OF HOUSTON 325 3. By discharging Theodore and Boano, and by thereafter failing unconditionally to reinstate Theodore, Respondent Youngstown engaged in discrimination to dis- courage membership in Local 377, thereby engaging in unfair labor practices proscribed by Section 8(a)(3). 4. By discharging Theodore and Boano because they filed charges and gave testimony under the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a) (4). 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent Youngstown did not engage in unfair labor practices by discharg- ing Howard Smith and Peter Dohollow. 7. Respondent Union did not engage in unfair labor practices as alleged. APPENDIX A ATTENTION-STEELHAULERS, YOU NEED A GOOD UNION JOIN THE ORGANIZATION THAT'S GOING TO HELP YOU JOIN THE FORMATION OF A NEW STEELHAULERS UNION THIS IS SOMETHING YOU NEED AND WANT * * STOP * GOING * BACKWARDS * 1. Stop rate and percentage cuts 2. Stop the hiring and bringing of new truckers in the steelhaul field,-to assure steady work 3. BETTER WORKING SECURITY 4. Better and honest representation Steelhauling is a large and active industry today, but the steelhauler is very badly dis- organized and subject to many bad labor practices. Stop being pushed around and join this organization which is starting in other area's and eventually will all be coor-dinated together. We can then affiliate with the teamster's as an organization on our terms, or affiliate with some other large labor organization. COME TO THE MEETING-SUNDAY-APRIL, 29TH. EAGLES HALL-CORNER OF-FIFTH & RAYEN AVE. 10:00 AM YOUNGSTOWN, OHIO S.A.G.E., Inc. of Houston and Its Licensees ,' Joint Employers and Retail Clerks Union, Local No. 455, AFL-CIO, affiliated with Retail Clerks International Association , AFL-CIO, Peti- tioner. Case No. 23-RC-1984. March 10, 1964 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer 1The petition was amended to include the following licensees: S.A.G.E. Sewing Center; Coastal Camera Company, Inc.; Topsy's Catering Co., Inc. ; Joches, Inc. ; BAE Sales, Inc. ; Goldan Division of Iowa Paint Manufacturing Company, Inc. ; Berlan's, Inc. of San Angelo ; Lack's Wholesale Distributors, Inc. ; Matt, Inc. ; Leased Departments of Texas, Inc. ; Linen Sales Company ; Murbil, Inc. ; Discount Records of Oklahoma, Inc., Hakone, Inc. ; Confectionery Cabinet Company, Sage Services, Inc. ; :Sege ,Liquor, Inc.,, Tex-Calmont, Inc. ; Harold Lipp, d/b/a Lipp Cleaners ; and Gulf Enterprises, Inc. 146 NLRB No. 35. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. L. Stephens.' The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board finds : 1. The labor organization involved claims to represent certain employees of the Employers. 2. No question affecting commerce exists concerning the repre- sentation of employees of the Employers within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act for the follow- ing reasons : The Petitioner seeks to represent in a single unit of all employees working in the S.A.G.E. store on the Gulf Freeway, Houston, Texas, including employees of licensees. The Employers contend that the licensees are separate employers and their employees cannot be joined together in a single bargaining unit. Alternatively, the Employers assert that if employees of the licensees can be joined in a single unit, then the unit should also include employees in the S.A.G.E. store at Post Oak, also in Houston. The S.A.G.E. store involved in this proceeding is a closed member- ship, retail, discount-type department store. Only persons holding membership cards from S.A.G.E. may purchase merchandise in the store. S.A.G.E. determines eligibility for membership and collects fees for issuing membership cards. S.A.G.E. owns and maintains the store building and furnishes cer- tain services to all the store licensees, e.g., utility services, maintenance for floors, aisles, and restrooms, advertising, and check cashing fa- cilities. However, it does not operate any of the selling departments. These are operated by independent businessmen under a license ar- rangement with S.A.G.E. The license agreement is intended to secure adherence by the li- censees to merchandising policies, standards, and practices formu- lated by the licensor, S.A.G.E. Thus the licensee agrees to conduct a first-class, up-to-date department in the name of the licensor devoted solely to the sale of department goods, to keep his department open for business during the times designated by the licensor, to stock his department with a complete line and salable inventory of current department goods in suitable price ranges, to display his goods at- tractively and mark the price thereof plainly on tickets of a type prescribed ' by the licensor, to conduct sales only when and in such manner as the licensor approves, to staff his department with an adequate and competent work fgrce, to keep all his fixtures clean and in good repair, to discontinue the sale of any merchandise which the licensor considers not to be department goods or to be in conflict with merchandise handled in other departments, and.to adjust any complaint of a customer in 'a manner satisfactory to the licensor. The license agreement also places a limit on the sales prices that may be S.A.G.E., INC. OF HOUSTON 327 charged by the licensee, gives the licensor power to investigate cus- tomers' complaints against the licensee, and requires the licensee to keep books and records in a .form prescribed by the licensor. The net effect of the license agreements is to create the impression among store customers that they are dealing with a single company and not. with individual enterprises sharing space in a single,store building, In return for the space leased and services rendered; S.A.G.E. re- ceives -a percentage of each licensee's gross sales. Although S.A.G.E. exercises close control ,over the operational policies of the licensees, it does not exercise similar control over the labor policies of the latter.; Each licensee hires, discharges, and dis- ciplines the employees in his department, determines their wage rates and other monetary benefits, and establishes their working conditions. Each licensee also lists the employees in the department, on his own payroll and makes the standard payroll deductions for such items as social security and income tax withholding. The license agreement specifically provides that neither' party shall hold itself out to be or act as the agent, servant, or employee of the other and that the rela- tionship between the two parties shall be only that of licensor. and licensee. In arguing that the licensees together with the licensor, S.A.G.E., constitute a single employer within the meaning of the Act, and that a single unit of employees of the, licensor and licensees is appropriate, the Petitioner relies on a number of cases involving discount depart- ment stores with leased departments in which the Board found that a single-store unit was appropriate.2 However, in each of the cited, cases, the licensor maintained substantial' control over the labor rela- tions policies of the licensees. For example, in Frostco, which is typical of these cases, the licensor had the authority to require the discharge of an employee it considered objectionable, to prohibit the reemployment of .such discharged employee, by another department without its consent, and to. forbid the transfer, of employees-from one department to another without its prior approval. Most importantly, the license agreement in Frostco prohibited either the licensor or licensee to enter into collective-bargaining negotiations with any labor organization without the prior approval of the other, and gave the other party the right to participate in such negotiations. The license agreement concluded : "It is expressly understood and agreed that the best interest of LICENSOR and all LICENSEES shall be' best served by complete and harmonious cooperation with respect to all matters pertaining to labor relations and union contracts." Be- cause of the actual and potential control of labor matters retained by -. 2 Spartan Department' Stores, 140 NLRB 608 ;, Frostco Super Save Stores ,, -Inc., 138 NLRB 125; United Stores of America, 138 NLRB 383; Bargain City, U S.A., Inc, 131 NLRB 803. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the licensor over the employees of the licensees, the Board concluded in Frostco that the licensor and the licensees were joint employers and that a storewide unit could be appropriate. In contrast, S.A.G.E. does not have control over the personnel and labor policies of its licensees that were present in the cited cases. So far as appears from the license agreement, and other evidence, each licensee of S.A.G.E. is free to decide its own labor policies, to conduct its own collective-bargaining negotiations, and to make its own collective-bargaining contracts, free of any interference or control by S.A.G.E. In the absence of substantial control of labor relations by S.A.G.E., we find that S.A.G.E. and its licensees are not joint employers of the employees of the licensees and that a single storewide unit is there- fore inappropriate. As the Petitioner does not seek to represent the employees of licensees in separate units, we shall dismiss the petition.' [The Board dismissed the petition.] MEMBER BRowN took not part in the consideration of the above Decision and Order. 8 Although Member Leedom concurs in this result, he does not consider the absence of substantial control of labor relations by S.A.G.E. as the sole or even principal considera- tion supporting the conclusion that a single storewide unit is inappropriate. Instead he relies on various considerations , as more fully set forth in the dissenting opinion in Overton Markets, Inc., et al., d/b/a Overton Markets, 142 NLRB 615, and Checker Cab Company, etc., 141 NLRB 583. Electralab Electronics Corporation , Petitioner and International Association of Machinists, AFL-CIO. Case No. 21-ISM-980. March 12, 1964 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hearing Officer Barton W. Robertson. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 146 NLRB No. 36.