Barbers Local No. 635

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barbers and Beauticians Local Union No. 635 and F. A. Buttrey Co. and Pauline M. Adamson d/b/a In- stant Coiffures. Case 19-CP-143 January 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 25, 1970, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Par- ties filed exceptions to the Trial Examiner' s Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Ex- aminer, as modified herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR. Trial Examiner: Upon a charge filed on April 21, 1970, the General Counsel of the National Labor Relations Board, by the Regional Director for Re- Fon 19 (Seattle, Washington), issued a complaint on May 4,1 970, against Barbers and Beauticians Local Union No. 635, herein called the Respondent or the Union, alleging that it had engaged in unfair labor practices within the meaning of Section 8(bX7)(A) of the National Labor Rela- tions Act, as amended, herein called the Act. The Respon- dent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Trial Exam- iner John P. von Rohr in Butte, Montana, on June 30, 1970. resented by counsel and were afforded All parties were re opportunity to ad uce evidence, to examine and cross-ex- amine witnesses, and to file briefs . Briefs were received from the General Counsel and the Respondent on August 24, 1970, and they have been carefully considered. Upon the entire record in this case , and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT I JURISDICTIONAL FACTS F. A. Buttrey Co. is a Montana corporation engaged in the retail sale of merchandise at eight locations in the State of Montana. Its retail operation located at Butte , Montana, is the only facility involved in this proceeding. During its past fiscal year, Buttrey at its Butte, Montana, store did a gross volume of business in excess of $500,000 , and during the same period purchased goods from directly outside the State of Montana of a value exceeding $50,000. I find that the F. A. Buttrey Co. is an employer enga ged in commerce within the meaning of Section 2(6) and (7) of the Act.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order 2 of the Trial Examiner and hereby orders that the Respondent, Barbers and Beauticians Local Un- ion No. 635, Butte, Montana, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. ' The exceptions filed by the Charging Parties assert that the Trial Exam- iner (1) erred in finding that F. A. Buttrey was bound to the terms of the collective-bargaining agreement negotiated between the Silver Bow Employ- ers' Association and the Retail Clerks, alleging that, instead, Buttrey had a separate agreement with the Retail Clerks, and (2) erred in failing to specifi- cally find that Adamson was required to conform to Buttrey's labor relations policies. Even assuming, arguendo, that these exceptions are meritorious, they would not, in any event, affect the Trial Examiner's ultimate conclusion that the Respondent violated Section 8(b)(7XA) of the Act, to which conclusion the Respondent has not excepted. Accordingly, we find it unnecessary to pass on the points raised in the exceptions filed by the Charging Parties. 2 In footnote 17 of the Trial Examiner's Decision, substitute "20" for "10" days. II. THE LABOR ORGANIZATION INVOLVED Barbers and Beauticians Local Union No. 635 and Retail Clerks' Union, Local No. 4, are labor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Activities of the Respondent The Buttrey facility involved in this proceeding is a soft goods, family type department store and is located in a suburban shopping center at Butte , Montana . At all times material hereto Buttrey's employees have been represented by Retail Clerks Union, Local No. 4. Further, as a member of the Silver Bow Employer's Association, Buttrey is party to a collective-bargaining agreement between the Associa- tion and the Retain Clerks. On March 10, 1970, Buttrey and the Retail Clerks executed a document entitled "Memo- randum," an examination of which reveals it to be, I find, an agreement between the parties providing for certain modifications of the aforesaid master Association collec- tive-bargaining agreement. i The business of Pauline M Adamson d/b/a Instant Coiffures and its relationship with the F . A. Buttrey Co. and the employees involved herein is discussed in the factual statement of this case, as set forth below. 188 NLRB No. 44 BARBERS LOCAL NO. 635 Pursuant to a lease arrangement with Buttrey , the terms of which are hereinafter discussed , Instant Coiffures, a sole proprietorship, commenced operation of a synthetic wig department in Buttrey's Butte, Montana, store on March 20, 1970. On March 23, 1970, Pauline M. Adamson , the owner and sole proprietor of Instant Coiffures, signed the original of the March 10, 1970, "Memorandum," referred to above, on behalf of Instant Coiffures . Adamson testified without contradiction that she signed this agreement in the presence of and with the acquiescence of representatives , of Buttrey and the Retail Clerks? On March 25, Pauline Adamson received a telephone call at the store from John Sarsfield , secretary-treasurer of the Respondent Union, at which time one or two employees were employed in the wig department . Beginning by re- ferring to a classified help wanted ad for employees in the wig department which appeared in a local newspaper on March 22, Sarsfield asked Adamson if she was aware that she was breaking the law and that anyone working on wigs must belong to the Barbers and Hairdressers Union. After some further discussion of this nature, Sarsfield concluded by telling Adamson that she had to employ hairdressers and that her employees "had to belong to the Hairdresser Un- ion.913- On the evening of March 25 , Sarsfield telephoned Paul J. Wagner, the Buttrey store manager, at the store . He first asked, "Where is that broad , Pauline Adamson?" Wagner replied that she had returned to her home in Billings , Mon- tana. Upon Sarsfield's further inquiry as to when she would be back at the store, Wagner advised that it would probably be later in the week. According to Wagner, Sarsfield then asked if he was aware "that we were breakingg' the law in operating a wig department inasmuch as we did not have licensed beauticians from the Barbers and Beautician's Un- ion styling and setting the wigs." On March 30, a Monday, Sarsfield, accompanied by two other men, came to the store and spoke to Adamson in the presence of the two wig department employees who were employed at this time. Adamson testified that Sarsfield be- gan by speaking to her "in a very belligerent manner" and that he again accused her of breaking the law. When Ad- amson thereupon told one of the girls to get the store man- ager, Sarsfield stated "We do not talk to the store manager. We talk to his supervisors ." In any event, Sarsfield and the two men then departed, with Sarsfield stating, "You will have a picket. We know how to deal with people of your kind." On about the same date, March 30 , Sarsfield called Wag- ner and at this time told him that the Union had voted to picket the store, but that "he could reverse the. decision." Wagner advised Sarsfield to contact the company attorney and take the matter up.with him. On or about March 31 , 1970, the Respondent Union began picketing the Buttrey Store .4 The legend on the picket signs carried by the pickets stated as follows: 2 The representative of Buttrey on this occasion was Paul ) Wagner, manager of the Butte store , while Union Representative Zier acted for the Retail Clerks The agreement, a copy of which is in evidence, reflects the signature of William G . Dobb appearing directly beneath the signature of Adamson on behalf of Instant Coiffures. Dobb, however, is not identified in the record. 7 This conversation is set forth in accordance with the unrefuted and credited testimony of Adamson . Sarsfield was not called to testify. 4 By agreement of the parties the picketing ultimately ceased pending determination by the Board or Courts of the dispute herein. ATTENTION 267 Wigs are styled at . Buttreys Suburban by NON-UNION Operators Barbers & Beauticians Local 635 Wagner testified without contradicition that he had a conversation with another representative of the Respondent Union, one Mr. Mernan, while Meman and representatives of certain other unions belonging to the Silver Bow Labor Council were engaged in picketing the store on the morning of April 11, 1970.5 Stating, inter alia, that he had read in the paper that the wig department employees had' joined the Retail Clerks Union, Mernan asked Wagner why he did not "let these people join the Barbers and Beauticians Union." The conversation ended after some further brief discussion which` need not be related here. B. The Wig Department and Its Operations A shoe department in the Buttrey store is operated by the Wohl Shoe Company pursuant to the terms and conditions of a concession license agreement between Buttrey and Wohl. In February 1970, Pauline Adamson and officials of Buttrey reached an oral understanding whereby the wig department (Instant Coiffures) would be operated pursuant to substantially the same terms and conditions as set forth in the aforesaid Wohl license agreement.6 Relevant pro- visions of this agreement are noted below. The wig department is located on a main aisle in the front-center part of the store 7 and is adjacent to the dress department and handbag department. There are no parti- tions between the departments. Located within the wig de- partment are two mirror styling units, four hydraulic chairs for cutting and styling, a show case, a display table, the work area, and a cash register. All advertising of the wig department is placed through the Buttrey account (on a reimbursable basis) and such advertising appears in the: ads under the name of Buttrey. The wig department employees are hired by Instant Coif- fures, it alone having the authority to hire. However, these employees are subject to discharge by the Buttrey store manager if they are found to be objectionable or if they violate the rules and regulations applicable to the Buttrey store employees.8 In about the first week of the opening.of the wig department, and at all time thereafter material here- to, there were only two employees in the wig department, neither of whom is a supervisory employee. If either of these employees wished time off, such request would be made to the, Buttrey store manager who could grant the requiest 9 S Since this testimony is undented , I find that Mernan was a representative and agent of the Respondent. 6 To date the oral agreement between Instant Coiffures and Buttrey has not been reduced to writing. The only modification of the Wohl agreement testified to by Adamson concerned paragraph 22 of the said agreement which provides for mutual discounts to Wohl and Buttrey employees. Adamson testified that it was orally agreed that Buttrey employees would be granted a discount in the wig department but that the wig department employees would not have a discount in the rest of the store. i Except for rest rooms and offices located upstairs, all selling departments are located on one floor at the ground level. I The latter is set forth in Article 20 of the License Agreement. 9 Instant Coiffures operates wig departments in six other Buttrey stores in the State of Montana . One Carolyn Badura acts as a "traveling supervisor" and assists in overseeing all of the operations, including the one in the Butte store Arrangements for longer periods of time off by the employees, such as vacations, would be taken up with Badura. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The wig department employees punch the same timeclock utilized by the other Buttrey employees and both groups keep the same store hours. They are interchangeable with other Buttrey sales employees in the sense that for courtesy purposes they can accommodate customers by making cash sales in other Buttrey departments when the occasion arises.10 In these situations the wig employees use the cash register in the department where the sale is made. While employees of other departments are usually not expected to service wig department customers, they are authorized to sell a hair piece to a customer if the customer wished to purchase one without further alteration or styling . In this connection, it is noteworthy that customer credit purchases of wigs are made with a Buttrey credit card. Appropriate adjustments and reimbursements between the parties for credit purchases (as well as for ticketed cash sales made at the various cash registers) are made on the end-of-the- month basis. The wig department employees are paid by check by Instant Coiffures and it also withholds tax and makes other appropriate deductions. The wig employees are covered by the same health and accident insurance policy as the But- trey, employees, although the premiums are paid by Instant Coiffures on the basis of its end-of-the-month adjustment with Buttrey. C. Conclusions A principal issue in this case is whether Buttrey and In- stant Coiffures are joint employers of the wig department employees, as contended by the General Counsel, or wheth- er, as contended by the Respondent, Instant Coiffures is the sole employer of these employees." Just as in the cases involving the status of individuals as independent contractors or employees, there is a close ques- tion in cases such as the one at bar as to whether a depart- ment store and the licensees of its various departments are joint employers of the latter's employees. Thus, for example, in Frostco Super Save Stores, Inc., 138 NLRB 125, the Board found a joint employer relationship to exist and particularly noted that "long-established policy in cases involving retail department stores is to find storewide units appropriate." However, in Esgro Anaheim, Inc., 150 NLRB 4(ll the Board in a three to two decision refused to find a joint employer relationship, this apparently largely on the ground that the license agreement between the parties did not provide for the common handling of labor relations. Upon consideration of all the facts in this case, I am persuaded and find, that the F. A. Buttrey Co. and Pauline M. Adamson, d/b/a Instant Coiffures are joint employers of the wig department employees. While the question is not one of easy resolution, I base this finding on the following: 10 Presumably this occurs when other sales people are absent or when they are unusually busy. 11 Aside from the relevancy of this issue to the Board's jurisdiction herein (the General Counsel presented no evidence to show that Instant Coiffures was independently engaged in commerce within the meaning of the Act) I think that, in view of the conduct by the parties in granting recognition to the Retail Clerks Union as the collective-bargaining agent for the wig depart- ment employees, a resolution of this question is necessary to a determination of the legality of the picketing herein. Thus, Section 8(b)(7)(A) provides, in relevant part, that it shall be an unfair labor practice for a union to picket or threaten to picket any employer with an object of forcing an employer to bargain with a labor organization as their representative "where the employer has lawfully recognized in accordance with this Act any other labor organiza- tion and a question concerning representation may not appropriately be raised under Section 9(c) of the Act " To the extent indicated above, Buttrey retains the right to discharge the wig department employees, it exercises some supervision over them, and the wig department employees are interchangeable with the Buttrey employees. Further, the wig employees punch the same timeclock as the Buttrey employees, share the same rest room facilities and other common facilities, work the same hours, are covered by the same health and welfare plan, must abide by the same em- ployee store rules and regulations, are subject to the same general working conditions, and exercise the same general skills.12 In addition, the Buttrey store to all outward appear- ances, including its advertising, holds itself out to the public as the sole entrepreneur for the entire store , including the wig department. Although not specifically raised by the Respondent as a defense in this case, I am mindful of the fact that when Adamson signed the heretofore noted Memorandum Agreement on March 23, 1970, the employees of the wig department at this time concededly had not become mem- bers of the Retail Clerks and had not authorized the Union to represent them. Nevertheless, inasmuch as I found But- trey to be a joint employer of the wig department employ- ees, I find that Buttrey s contract with the Retail Clerks covered the wig department employees 13 and that therefore the Retail Clerks was the lawullyy recognized collective- bargaining representative for the Employer's employees, as contemplated by Section 8(b)(7)(A), at the time of the con- duct found to be unlawful herein. In this connection, it is noteworthy that included in the appro2riate bargaining unit set forth in the aforesaid contract are salespeople" and "all persons who are actively en aged in handling or selling merchandise." Since the wig department employees clearly come under either or both of these classifications, I would find the addition of these employees to constitute nothing more than normal accretion to the then-existing bargaining unit.14 As to the objective of Respondent's conduct herein, in- cluding the ppicketingg,, from the heretofore related conversa- tions which Respondent Representative John Sarsfield had with Adamson and Store Manager Wagner, from the con- versation which Wagner had with Respondent Representa- tive Mernan on the picket line, as well as from the language on the picket sign itself, I find that Respondent's object throughout the period from March 25, 1970 (when Sarsfield first spoke to Adamson), until the cessation of picketing in early June 1970, was to force or require the joint employers (Buttrey and Instant Coiffures) to recognize or bargain with it as the representative of the wig department employees and to force or require the wig department employees to accept or select it as their barpamin representative. As the existing contract barred the raising of a question concerning representation, I find that Respondent s hereinabove de- 12 As in the Esgro case, supra the lease adopted by the parties does not provide for a common handling of labor relations . However, as witnessed by the fact that a Buttrey representative participated in the setting of the pay scale for the wig department employees, it is clear that Buttrey participated in the handling of Instant Coiffures labor relations. Further, Adamson refer- red Respondent Business Representative Sarsfield to the Buttrey store man- ager on the occasion of his coming to the store on March 30 ... and, as set forth above, Sarsfield in fact broached the Buttrey store manager with Res3pondent's demands on March 25 and again on March 30. 1 This contract contains a valid union -security clause. 14 From the record there appears little doubt but that the wig department employees are essentially engaged in the selling of wigs and that the trimming of the synthetic hair of which the wigs are composed is but a relatively unskilled adjunct to the selling operation. I think this quite different from the training, skills, and licensing required by regular barbers and hairdressers who are engaged in the cutting and styling of human hair. The latter are primarily engaged in the selling of their services, not a product. BARBERS LOCAL NO. 635 269 scribed conduct to achieve such objective was violative of Section 8(b)(7)(A) of the Act.I5 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the employer described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act. (a) Post at its offices, meeting halls, and all places where notices to its members are customarilyposted , copies of the attached notice marked "Appendix.' Copies of said no- tice, on forms to be furnished by the Regional Director for Region 19, after being duly signed by an official of the Respondent, shall be posted by it upon receipt thereof, and be maintained for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 19, in writ- ing, within 10 days for the receipt of this Recommended Order, what steps it has taken to comply herewith.l" Having found that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(bX7XA) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies from the Act. On the basis of the foregoing findings of facts and on the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. F. A. Buttrey Co. is an employer en aged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Barbers and Beauticians Local Union No. 635 is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing, causing to be picketed, and threatening to picket F. A. Buttrey Co., and Pauline M. Adamson d/b/a Instant Coiffures , with an object of forcing or requiring said employers to recognize and bargain with it as the collective- bargaining representatives of the wig department employ- ees, and with a further object of forcing or requiring said employers' employees to accept or select the Respondent as their collective-bargaining agent, at a time when Respon- dent was not certified as such representative and F. A. Buttrey Co. and Instant Coiffeurs had lawfully recognized Retail Clerks' Union, Local No. 4 as the collective-bargain- ing representative of said employees, and a question con- cerning representation could not be raised under Section 9(c) of the Act, Respondent has engaged in and is en aging in unfair labor practices within the meaning of Section 8(bX7)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices effecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclu- sions of law, and on the entire record in this case, it is recommended that Respondent Barbers and Beauticians Local Union No. 635, its officers, agents, successors, and assigns, shall: 1. Cease and desist from picketing, causing to be picketed, or threatening to picket F. A. Buttrey Co. and Pauline M. Adamson d/b/a Instant Coiffures under conditions prohib- ited by Section 8(b)(7) Of the Act, where an object thereof is forcing or requiring the said employers to recognize or bargain with it as the collective-bargaining representative of the wig department employees, or forcing or requiring said employees to select or accept Respondent as their collec- tive-bargaining representative. 15 I need not pass on Respondent's affirmative defense that the picket signs fall within the language of the proviso to Section 8(bX7XC), since it is well established that the informational proviso to Section 8 (b)(7XC) furnishes no defense in an 8(b)(7)(A) case. Local 7463, United Mine Workers of America (Harlem Fuel Co.), 160 NLRB 1589; Local 182, Intl Bro. of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (Woodward Motors, Inc), 135 NLRB 851, 858-9, Teamsters Local Union No. 5, et al. (Barber Brothers Contracting), 171 NLRB No. 9. 16 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order of the National Labor Rela- tions Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 17 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, under conditions prohibited by Section 8(b)(7) of the Act, picket, cause to be picketed, or threaten to picket the F. A. Buttrey Co. or Pauline M. Adamson d/b/a Instant Coiffures, where an object thereof is to force or require the said employers to recognize or bargain with us as the representative of their wig department employees, or to force or require the wig department employees of F. A. Buttrey Co. and Pauline M. Adamson d//b/a Instant Coiffures to accept or select us as their collective-bargaining representative. Dated By BARBERS AND BEAUTICIANS LOCAL UNION NO 635 (Labor Organization) (Representative) (Title) 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by or covered by any other material. anyone. Any questions concerning this notice or compliance with This notice must remain posted for 60 consecutive days its provisions, may be directed to the Board's Office, Re- from the date of posting and must not be altered, defaced, public Building, 10th Floor, 1511 Third Avenue, Seattle,