New Fashion Cleaners, Inc.

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Pursuant to Section 10 (k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, the National Labor Relations Board makes the following Determination of Dispute. 1. The stonemasons employed by Decora, Inc., who are represented by Local No. 32, Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, are entitled to perform the work of installing and erecting the exterior granite on the new addition to the Detroit Institute of Arts building, Detroit, Michigan. 2. Local No. 2 of Detroit, Bricklayers, Masons and Plasterers Inter- national Union of America, AFL-CIO, is not entitled, by means pro- scribed by Section 8(b) (4) (D) of the Act, to force or require Decora, Inc., to assign the above work to stonemasons represented by Local No. 2. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local No. 2 of Detroit, Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, shall notify the Regional Director for Region 7, in writing, whether it will or will not refrain from forcing or requiring Decora, Inc., by means proscribed by Sec- tion 8(b) (4) (D) of the Act, to assign the work in dispute to stone- masons represented by Local No. 2 rather than stonemasons repre- sented by Local No. 32. New Fashion Cleaners, Inc. and Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 52, Union-Peti- tioner. April 297 1965 DECISION AND ORDER GRANTING MOTION TO CLARIFY NONCERTIFIED BARGAINING UNIT Upon a motion for clarification of noncertified unit, filed by Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 52, herein called Local 52, and New Fashion Cleaners, Inc., herein called New Fashion, a hearing was held before Hearing Officer Barton W. Robertson of the National Labor Relations Board.' The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 l White Front Stores, Inc., was permitted to intervene in this proceeding because of its lease agreement with New Fashion, the Employer-Petitioner Retail Clerics Union, Locals Nos. 770 and 905 , AFL-CIO, herein referred to as the Retail Clerks, was permitted to intervene on the basis of its claim that it is a party to contracts covering the employees involved in this proceeding 2 The Hearing Officer referred to the Board the Retail Clerks' motion to dismiss the motion for clarification. For the reasons stated infra, this motion is hereby denied. 152 NLRB No. 16. NEW FASHION CLEANERS, INC. 285 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in the case, including the motion for clari- fication and the briefs filed by the parties subsequent to the hearing, the Board hereby makes the following findings : White Front Stores, Inc., herein referred to as White Front, is a discount department store chain engaged in retail selling. New Fash- ion, the Employer-Petitioner, operates a wholesale drycleaning estab- lishment and retail drycleaning stores in the Los Angeles area. In addition, it holds retail cleaning concessions in eight White Front stores, in southern California, under license agreements with White Front .3 New Fashion has subleased these concessions to individual concessionaires. New Fashion and Local 52 seek by their motion for clarification of bargaining unit to have the Board determine whether counter employ- ees, who comprise all the employees working in the above-mentioned leased cleaning concessions at the White Front stores, fall within the bargaining unit set out in a contract between Local 52 and New Fash- ion. New Fashion has had contracts with Local 52 and its predecessors since about 1936. The terms of these contracts have been applied to all New Fashion employees, including those working both at New Fashion's plant and at its retail stores. Local 52 and New Fashion contend that the employees working at the White Front stores are an accretion to the existing unit and that their current contract has been extended to cover the employees working at the White Front stores. Retail Clerks contends that the current collective-bargaining agree- ment between the Retail Clerks and White Front, construed in the light of the current lease agreement between White Front and New Fashion, bars this proceeding. It contends further that the motion should not be entertained because it is based on a contract containing several unlawful clauses. Retail Clerks and White Front argue that the only appropriate unit is one which includes all employees at the White Front stores, including the employees of the New Fashion concessions. The cleaning outlets operated by New Fashion at the White Front stores under a license agreement are, as indicated, subleased by New Fashion to individual concessionaires. The latter operate them under concession agreements for a percentage of the gross sales. The agree- 8 The employees in question work in leased departments in the following White Front stores* 21250 Hawthorne Boulevard, Torrance, 499 Orange Show Road, San Bernardino 7674 South Central Avenue and 5433 West Jefferson Avenue, Los Angeles ; 16040 Sherman Way, Van Nuys ; 21300 Roscoe Boulevard , Canoga Park ; 1151 North Azusa Avenue, Covina ; and 8725 Laurel Canyon Boulevard , Pacoima, all located in southern California. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments between New Fashion and the concessionaires are for indefinite periods of time, but the concessionaires have the right to terminate the agreements upon 90 days' written notice. The agreements provide that "Nothing herein contained shall constitute a partnership or joint venture between the parties hereto. [The concessionaire] shall not hold himself out as an agent or representative of [New Fashion]...." The agreement further provides that the concessionaire will take over the leased department from New Fashion and "maintain, carry on, conduct and operate ... the [leased department] as his own business for the sole and exclusive purpose of promoting, soliciting, receiving and accepting garments and other materials for dry cleaning ... and shall have the occupancy of said premises and the use of the facilities, furniture, furnishings and equipment now upon the said premises and equipment now upon the said premises and belonging to [New Fash- ion] for said operation." New Fashion owns and maintains all the equipment at these concessions. However, the concessionaire is obli- gated under the agreement "at his own cost and expense" to "keep the premises, fixtures and equipment in good order and repair" and to pay all costs and expenses in connection with the operation of the business. Notwithstanding the above contract provisions, New Fashion main- tains considerable control over the day-to-day operations of the con- cessions at the White Front stores. This is apparent from the follow- ing: When the retail cleaning outlets first opened, they were run directly by New Fashion. The leased departments were staffed with a substantial number of individuals transferred from New Fashion's other operations. Thereafter, these leased departments were subleased by New Fashion to concessionaires who operate them. While the concessionaires hire, discharge, and pay the employees,4 New Fashion pays the workmen's compensation insurance and health and welfare benefits for these employees and has reserved a right of control over them, including the right of discharge. New Fashion has detailed its employees to the concessionaires to assist during sales and other busy periods.5 At such times, these employees are paid by New Fash- ion and no charge is made to the concessionaires. New Fashion formu- lates the labor policy, and the concessionaire is obligated to abide by that policy. The contract with Local 52 covers both plant and outside locations, and Local 52 has processed grievances with New Fashion * The concessionaires have the same authority with respect to the hiring and discharge of employees as do the managers of the retail outlets operated directly by New Fashion New Fashion checks to see that the employees hired by the concessionaires are competent New Fashion would assume responsibility for the wages of these employees in the event they were not paid by the concessionaires. The record shows that when employees transfer between stores or between the plant and a store, they retain their original seniority whether the transfer i a tempoi,uy of permanent one NEW FASHION CLEANERS, INC. 287 involving employees working in the leased departments at the White Front stores. In addition, New Fashion has periodic meetings at its plant with the concessionaires and frequently issues memos with respect to the operation of the concessions. It arranges for insurance for all locations, pays for the policy, and has an employee at the plant who handles the insurance claims. The concessionaires must operate the stores according to the New Fashion manual. New Fashion determines the retail pricing and when sales are to be held. It also has the ultimate responsibility for adjusting customer complaints. It is thus clear that New Fashion has retained substantial control over the manner and means by which the concessionaires operate the leased departments at the White Front stores, and that it maintains overall responsibility for the operations in these leased departments. The result to be accomplished by the concessionaires is determined by policies established by New Fashion alone. On the basis of the fore- going, and the entire record, we are satisfied that the concessionaires who operate the leased departments are neither independent con- tractors nor joint-employers with New Fashion. Rather they are, and function as, store managers for New Fashion with respect to its employees working in these departments.6 Inasmuch as these employees have the same classifications and work- ing conditions as those employees who are undisputedly included in the contract unit, they properly belong within that unit unless, as con- tended by White Front and the Retail Clerks, they are part of the White Front store units represented by the Retail Clerks. The current contracts, executed by White Front and the Retail Clerks, purport to cover the employees of White Front and those of any existing and future licensees, and are the same contracts which the Board described in its recent decision in Bab-Rand Company, 147 NLRB 247. White Front and New Fashion, in turn, have license agreements which are also substantially identical with those described by the Board in the same case. For the reasons stated in the Bab- Raad case, and subsequently in Esgro Anaheim, Inc., 150 NLRB 401, we find that, like the employees of the licensees in those cases, employees working in these New Fashion leased departments at the White Front stores are not covered by the White Front-Retail Clerks contract and are not part of a White Front storewide unit. We find instead, under all these circumstances and on the entire record, that the New Fashion employees working in the leased departments in the White Front stores constitute an accretion to the existing unit represented by Local 52. "CP. The Vindicator Printing Company, 146 NLRB 871: Bowman Transpo?taflon Inc., 142 NLRB 1093; Site Oil Company of Missouri , 137 NLRB 1274. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we shall clarify the noncertified unit by including these counter employees in the existing unit.7 [The Board clarified the existing contract unit represented by Laun dry, Dry Cleaning and Dye House Workers' International Union,, Local No. 52, by specifically including in the description of the unit, all counter employees employed by New Fashion Cleaners, Inc., at its dry- cleaning departments located in the stores of White Front Stores, Inc., at the following addresses: 21250 Hawthorne Boulevard, Torrance; 499 Orange Show Road, San Bernardino; 7674 South Central Avenue and 5433 West Jefferson Avenue, Los Angeles; 16040 Sherman Way, Van Nuys, 21300 Roscoe Boulevard, Canoga Park; 1151 North Azusa Avenue, Covina; and 8725 Laurel Canyon Boulevard, Pacoima, all located in Southern California.] MEMBER JENKINS, dissenting: The contention of the Employer-Petitioner and Union-Petitioner that the employees working in the leased cleaning concessions at the White Front stores are an accretion to the existing unit under their present contract is not, in my view, sufficient to overcome the funda mental, and I believe the controlling fact, that White Front and New Fashion are joint employers of the employees involved. Therefore,, for the reasons set forth in the dissent in Esgro Anaheim, Inc., 150 , NLRB 401, I would dismiss the motion for clarification. 7 See Brotherhood of Locomotive Firemen and Enginemen, 145 NLRB 1521 . The Retail Clerks contends that the Board should deny the motion for clarification because the con- tract between New Fashion and Local 52 contained an illegal union-security clause and other illegal clauses, which would prevent the contract from being a bar to an election. Prior to the hearing, the contract was amended so as to cure any existing illegalities. As the unlawful clauses were eliminated by a properly executed amendment to the con- tract, and as the issue before us is not one of contract bar but rather of defining the boundaries of the unit , we find no merit to this contention. Specialty Paper Mills, Inc. and United Papermakers and Paper- workers, AFL-CIO, C.L.C. Case No. 21-CA-5703. April 30,. 1965 DECISION AND ORDER On January 6,1965, Trial Examiner Irving Rogosin issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed a brief in support of the Trial Examiner's Decision. 152 NLRB No. 22.