Bab-Rand Co.

National Labor Relations Board - Board Decisions

Jun 3, 1964

147 N.L.R.B. 247 (N.L.R.B. 1964)

BAB-RAND COMPANY 247
Bab-Rand Company, Petitioner and Los Angeles Joint . Executive
Board of the Hotel and Restaurant Employees and Bartenders
Union, AFL-CIO and Retail Clerks Union Local 770, Chartered
by the Retail Clerks International Association , AFL-CIO
Bab-Rand Company, Petitioner and Hotel , Motel and Restaurant
Employees and Bartenders Union , Local 694, AFL-CIO and
Retail Clerks Union Local 770, Chartered by the Retail Clerks
International Association , AFL-CIO
Bab-Rand Company and Los Angeles Joint Executive Board of
the Hotel and Restaurant Employees and Bartenders Union,
AFL-CIO, Petitioner
Bab-Rand Company and Hotel, Motel and Restaurant Em-
ployees and Bartenders Union , Local 694, AFL-CIO, Peti-
tioner. Cases Nos. 21-RM-973, 21-RM-974, 21-RC-8719,_21-RC-
8720, and 21-RC-8721. June 3, 1964
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, 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.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
Upon the entire record in these cases, 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 jurisdic=
tion herein?
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. Questions affecting commerce exist concerning the representa-
tion of certain employees of the Employer within the meaning of Sec-
tion 9(c) (1) andSection2(6) and (7) of the Act.
1 The petition and other formal papers were amended at the hearing to show the correct
names of the labor organizations involved in this proceeding.
2 We find no merit in Local 770's contention that "the record does not establish the fact
that the employer (a retail establishment ] meets the commerce standards as required by
the Board ." The record shows that the Employer 's gross volume of business is in excess
of $500,000.
147 NLRB No. 38.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White Front Stores, Inc., herein called White Front, is a discount
department store chain engaged in retail selling. The Employer, Bab-
Rand Company, operates retail snackbars on a leased department
basis in several White Front Stores in the Los Angeles area. At the
time of the hearing, the Employer operated six snackbars in White
Front stores 3 Only the operations at Canoga Park, West Jefferson
Boulevard, and Pacoima are involved in this proceeding. Each snack-
bar is operated under a separate license agreement with White Front.
The Employer started operations at the West Jefferson Boulevard
store on November 18, 1962, and entered into a license agreement with
White Front on January 28, 1963. Operations at the Canoga Park
store began on May 31, 1963, and a license agreement between the
Employer and White Front was executed on July 3, 1963. The
Pacoima store did not open until October 31, 1963, after the filing of
the Employer's petitions with respect to the Canoga Park and West
Jefferson Boulevard stores. At the time of the hearing, no license
agreement had been executed between White Front and the Em-
ployer covering the Pacoima store.
Los Angeles Joint Executive Board of the Hotel and Restaurant
Employees and Bartenders Union, AFL-CIO, herein called the Joint
Board, seeks to represent the Employer's snackbar employees em-
ployed at the West Jefferson Boulevard location. Hotel, Motel and
Restaurant Employees and Bartenders Union, Local 694, AFL-CIO,
herein referred to as Local 694, seeks to represent, in separate units,
the snackbar employees employed at the Employer's operations at
Canoga Park and Pacoima. White Front and Retail Clerks Union
Local 770, Chartered by the Rarail Clerks International Association,
AFL-CIO, herein called Local 770, contends that a current collective-
bargaining contract between White Front and Local 770 is a bar to
these petitions. They further contend that the requested snackbar
units are inappropriate. The Employer filed petitions with respect
to its facilities at Canoga Park and West Jefferson Boulevard be-
cause it had conflicting requests for recognition and did not know if
the contract between White Front and Local 770 is a bar. The Peti-
tioners argue that the provisions of the contract in question, with re-
spect to new leased departments, are coercive and discriminatory, in
that they attempt to subject employees of another employer to a union-
security clause regardless of their wishes, and without giving them an
opportunity to designate their collective-bargaining representative.
The contract between White Front and Local 770, urged as a bar,
is effective from July 1, 1962, to June 30, 1967. The bargaining unit
covers "all retail store employees and office clerical employees whose
work is related to the operation of the retail stores (including, subject
3 These stores are located at Canoga Park, West Jefferson Boulevard , Pacoima, San
Bernardino, Covina, and Torrance.
BAB-RAND COMPANY 249
to the provisions of Section E hereof, employees of lessees, licensees
and concessionaires) employed in the retail stores and offices of the
Employer [White Front] located within the present geographic juris-
diction of the Union." The contract further provides that "should the
Employer acquire, establish or operate an additional store or depart-
ment . . . this Agreement shall apply to the retail store employees
employed in such store or department." Section E of the con-
tract, referred to in the recognition clause, provides that the Em-
ployer will require operators of leased departments to agree to be
bound by the terms of the agreement and, "upon request of the Union,
to execute a copy thereof, provided that such requirement is not con-
trary to law." An appendix C to the contract amends section E so as
to provide that the provisions of section E shall take effect, with re-
spect to any new leased department, "immediately upon execution of
the lease, sublease, license or concessionaire agreements"; and with
respect to "any,-present leased department, which agrees in writing
to be bound by the terms of this agreement, immediately upon so
agreeing in writing." Appendix C further provides that wage rates
and commissions for employees of any leased department shall be
subject to negotiations between Local 770 and the operator of the
leased department.
Under the license agreement between White Front and the Em-
ployer herein, the Employer agreed "to be bound by the terms and
provisions of the White Front-Retail Clerks Agreement and any
amendment or extension thereof and further agrees, upon request of
said Retail Clerks Union Local 770 to execute a copy of said agree-
ment." During August and September 1963, the Employer and Local
770 discussed wage rates for the snackbar employees, but came to no
agreement. Local 770 has not obtained authorization cards from the
employees involved in this proceeding, and the contract between
White Front and Local 770 has never been applied to the snackbar
employees. Nor is there any evidence to show that the snackbar em-
ployees are aware of the existence of any contract covering their con-
ditions of employment. At the time of the hearing, the Employer had
not executed a contract with any labor organization covering these
employees.
The record clearly establishes, and we find, that White Front and
the Employer pare not joint employers' Thus, the license agreement
executed by them specifically provides that "this agreement is not
intended to create and shall not be considered as creating any partner-
ship relationship between the parties hereto, or any relationship be-
tween them other than that of Licensor and Licensee . . . ." In
addition, neither the contract nor the license agreement provides for
the common handling of labor relations for the Employer's employees.
4 S.A.G.E., Inc. of Houston and its Licensees, 146 NLRB 325.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To the contrary, the agreement provides that if the licensee becomes
involved in any labor difficulty as a result of which the store is threat-
ened with being picketed, the licensor shall have the right to terminate
the license agreement upon 24 hours' written notice, given at any time
after such threat is received by it or such picketing is commenced.
Further, the Employer hires and discharges the snackbar employees
and sets their wage rates; 5 there is no interchange of snackbar em-
ployees with any White Front employees; and their seniority is sep-
arate from that of White Front employees. The fact that the Em-
ployer's employees have certain working conditions in common with
the employees of White Front is due to the fact that the operations
of both employers are housed in the same stores, and does not arise
from the license agreement.
Although, under its license agreement, the Employer agreed to be
bound by the contract between White Front and Local 770, the Em-
ployer was never a party to this contract. Nor has the Employer ever
entered into any oral or written agreement with Local 770. The only
agreement affecting the Employer's employees is between the Em-
ployer and i Thite Front. The agreement between White Front and
Local 770 states that White Front's obligation with respect to opera-
tors of leased departments is limited to requiring "the operator of a
leased department to agree to be bound by the terms of this Agree-
ment, and, upon request of the Union, to execute a copy thereof, pro-
vided that such requirement is not contrary to law." The contract
further provides that White Front "shall not be liable for any breach
of contract or failure of a leased department to abide by the wages,
hours and working conditions set forth in this Agreement."
It is clear from the foregoing that Local 770's contract with White
Front does not bar the present petitions. The mere fact that the Em-
ployer agreed with White Front, under its license agreement, to be
bound by the White Front-Local 770 contract does not constitute a
consummated agreement as envisioned by the Appalachian Shale doc-
trines Moreover, both the contract between White Front and Local
770 and the license agreement between the Employer and White Front
contemplate that the licensee would execute a copy of the agreement.
The Employer is not a party to any written agreement with Local 770.
The only agreement affecting its employees is with White Front alone.
As noted above, the terms of White Front's contract with Local 770
have never been applied to the Employer's employees, and Local 770
has no representation among these employees. As White Front and
the Employers are not joint employers, and in the absence of any
separate agreement between the Employer and Local 770, we find that
5 The license agreement between the Employer and White Front provides- that the Em-
ployer shall "employ and be responsible for help in [its] department."
B Appalachian Shade Products Co., 121 NLRB 1160, 1161.
FAMILY LAUNDRY & DRY CLEANING, INC. 251
there is no agreement covering the Employer's employees sufficient to
constitute a bar.7
4. The Petitioners seek to represent in separate units the Employer's
snackbar employees working in the West Jefferson Boulevard, Canoga
Park, and Pacoima stores. White Front and Local 770 contend that
only storewide units are appropriate. The Employer takes no posi-
tion with respect to the composition of the units.
The record does not show that the Employer has any other em-
ployees working in these stores. As the snackbar units sought by the
Petitioners comprise all of the Employer's employees working at the
White Front stores involved in these proceedings, we find that they
constitute separate appropriate units.
We find that the following employees constitute separate units ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
(1) All snackbar waiters and waitresses, cooks, and dishwashers
employed at the Employer's facilities at 5433 West Jefferson Boule-
vard, Los Angeles, California, excluding all other employees, guards,
and supervisors as defined in the Act.
(2) All snackbar waiters and waitresses, cooks, and dishwashers
employed at the Employer's facilities at 213 Roscoe Boulevard,
Canoga Park, California, excluding all other employees, guards, and
supervisors as defined in the Act.
(3) All snackbar waiters and waitresses, cooks, and dishwashers
employed at the Employer's facilities at 9727 Laurel Canyon, Pacoima,
California, excluding all other employees, guards, and supervisors as
defined in the Act.
[Text of Direction of Elections omitted from publication.]
4 We note that, although the Employer executed the same type of license agreement with
white Front for its facilities at the San Bernardino store, the Employer executed a
collective-bargaining contract with a labor organization other than that representing the
White Front employees . Cf. Bargain City, U.S.A., Inc., 131 NLRB 803. Inasmuch as we
hold that the contract is not a bar , we find it unnecessary to consider other contentions
made by the Petitioners in connection with the contract-bar issue.
Family Laundry & Dry Cleaning , Inc. and Laundry & Dry
Cleaning International Union , AFL-CIO. Cases Nos. 5-C9.-
2652 and 5-RC-4324. June 3, 1964
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On February 28, 1964, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respondent
147 NLRB No. 30.