Jewel Tea Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1966

162 N.L.R.B. 508 (N.L.R.B. 1966)

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contend that the existing collective-bargaining contract covering
these employees is a bar.
The issue in this case is not, as contended by the Petitioner,
whether the Board would amend its certificate of representation to
substitute Local 306 and the International for Local 463.3 It is,
rather, whether there exists a collective-bargaining agreement which
under applicable principles constitutes a bar to the instant petition.
The facts set forth above establish that on March 28 and April 6,
1966, the Employer and the Intervenors executed documents which
constituted on their face a valid collective-bargaining agreement for
a period ending February 1, 1969. As to such agreement the petition,
filed thereafter on April 12, 1966, was clearly untimely.4 In these cir-
cumstances , and as no other reason appears why such contract is not a
bar, we shall dismiss the petition as untimely filed.'
[The Board dismissed the petition.]
S Cf. M. A. Norden Co., Inc, 159 NLRB 1730 ; Gulf Oil Corporation, 135 NLRB 184.
4 Appalachtan Shale Products Co., 121 NLRB 1160; Delume Metal Furniture Company,
121 NLRB 995.
5 As it is unnecessary to this Decision , we do not pass upon the question whether the
contract between the Employer and the Intervenors constituted a premature extension of
the contract between the Employer and Local 463 which has a terminal date of January 31,
1968. See Delume Metal Furniture Company, supra.
Jewel Tea Co. Inc. and Its Operating Divisions , Turnstyle Division
and Jewel Food Stores Division and Retail Clerks Union Local
No. 1470, Retail Clerks International Association , AFL-CIO,
Petitioner and Jewel Tea Co . Inc. and Its Operating Divisions,
Turnstyle Division and Jewel Food Stores Division, Employer-
Petitioner and United Retail Workers Union. Cases 38-RC-193
and 38-RM-8. December 30, 1966
DECISION ON REVIEW
On April 8, 1966, the Regional Director for Region 13 issued a
Decision and Direction of Election in the above-entitled proceeding,
in which he found appropriate a unit of all employees of the
Employer, herein called Jewel Tea, at its two stores located respec-
tively at Davenport, Iowa, and Moline, Illinois, excluding the repre-
sented meat department employees, certain other categories, and
employees of the licensed departments.
Thereafter, in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series 8, as amended,
the Petitioner in Case 38-RC-193, herein called the Retail Clerks,
filed a timely Request for Review of such Decision and Direction-of
162 NLRB No. 44.
JEWEL TEA Co. 509
Election, contending that the Regional Director erred in excluding
the respective employees of the licensed shoe department and the
automotive facility.'
Jewel Tea and Stylco, Inc., one of the licensees , filed statements of
opposition. By telegraphic order dated May 11, 1966, the National
Labor Relations Board granted the request for review and stayed the
election. Thereafter, the Employer filed a brief.
The Board has considered the entire record in this case with respect
to the Regional Director's determination under review, including the
Regional Director's decision, the request for review, statements in
opposition, and the Employer's brief, and hereby finds as follows :
The instant petition involves two retail stores operated by Jewel
Tea at Davenport, Iowa, and Moline, Illinois, respectively. All oper-
ations of each center, consisting of various departments either owned
or operated by Jewel Tea or operated by separate employers under a
license agreement, are housed under one roof with no floor to ceiling
partitions. Surrounding each center is a parking area , which displays
a large "Turnstyle Family Center" sign. All employees, including
those of the licensed departments, wear Turnstyle identification
badges, and use the same employees ' lounge, restroom facilities, and
lunchroom. They are subject to the same security and parking regu-
lations and with minor exceptions have the same working hours and
holidays.
At each center, Stylco, Inc., operates a licensed shoe department
within the general merchandising area, and United States Rubber
Company operates a licensed automative facility, which includes a
sales and service area.2 Each of these employers, respectively, has its
own manager, hires its own employees, and handles its own funds.
Apparently with the consent of the licensor, Stylco uses its own sales
slips marked "Stylecraft Quality Footwear," and its own package bags
marked "Stylco." 8
The license agreements herein involved establish a rental fee for
the licensee based in part on a percentage of sales; require the licen-
see to conform to the licensor's store hours, to provide liability cover-
age for employees and customers within the area of the licensed de-
partments, and for upkeep of its area; provide that all sales of the
licensee must be made in the name of the licensor, and, control the
right of the licensee to use store csutomers. The agreements expressly
1 The other licensed or leased departments at the two stores, a donut stand and a beauty
and/or barber shop are not in issue as the parties agreed to exclude such employees from
the unit found appropriate.
2 Although served with notice of hearing, the licensee of the automotive facility did not
appear.
8 The license agreements , fully described below, provide that unless the licensor agrees,
licensees may not use boxes, bags , or other supplies that bear any name other than that
of the licensor.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provide that no joint-employer relationship but only a licensee-
licensor relationship is intended.
As to employee relations, the agreements provide that the licensee
shall comply with all labor, social security, and employment laws;
that , its employees shall be subject to the general supervision of the
licensor and shall comply with such rules and regulations as may be
established by the licensor; 4 that the licensor shall engage qualified
and competent employees; that such employees shall be approved by
the licensor (such approval not to be unreasonably withheld) ; that
the licensee shall at all times conform to a uniform store policy with
reference to wages, hours and terms, and conditions of employment
for all sales and stock personnel ; that the licensor may request dis-
charge and the licensee will immediately comply with such request;
that the licensee will supply upon request any payroll information
as to its employees; and, that the licensee will follow the licensor's
policy as to paid vacations and holidays.' The agreements also pro-
vide that the licensor shall have the absolute right to terminate and
cancel the agreement upon the licensee's default or failure to perform
any of the terms or conditions of the lease, which default shall con-
tinue for a period of 10 days after written notice thereof.6
It is clear beyond doubt, and we find, that the license agreements
here involved expressly give Jewel Tea the power to control effec-
tively the hire, discharge, wages, hours, terms, and other conditions
of employment of employees of the two licensees in dispute. That the
licensor has not exercised such power is not material, for an opera-
tive legal predicate for establishing a joint-employer relationship is
a reserved right in the licensor to exercise such control and we find
such right of control adequately established by the facts set out above.
Accordingly, we find, contrary to the Regional Director, that Jewel
Tea is a joint-employer with Stylco and United States Rubber Com-
pany, respectively, of the employees of these two licensees at the two
centers.
The Retail Clerks, contrary to the Employer and Stylco, would
include the employees of the two licensed departments here involved
in the unit of other store employees found appropriate. There is no
history of bargaining and no labor organization seeks to represent
4 The Employer has established rules and regulations which regulate employees entering
or leaving the stores , employee purchases , and employee use of the parking area. These
rules and regulations apply to all employees at the centers, including the employees of the
licensed departments.
5 Testimony was presented which showed that Jewel Tea had not exercised its powers
under the license agreements except that it has required licensed department employees
to be subject to its security regulations and to regulations as to the parking lot.
6 The license agreements covering the automotive department provide for a period of
20 days after written notice of default.
JEWEL TEA Co. 511
separately such employees. In its physical aspect the centers, as
found above, appear to be a single retail department store, and, all
employees at the respective centers are subject to common overall
control of Jewel Tea, use common facilities, and have similar working
conditions. In these circumstances, and on the record as a whole, we
find that the disputed employees of the licensees have a sufficient
community of interest to be included in the unit of other store employ-
ees. In all other respects we agree with the Regional Director's unit
determination.
We therefore find that the following employees constitute an
appropriate unit for the purpose of collective bargaining within the
meaning of Section 9(b) of the National Labor Relations Act:
All full-time and regular part-time selling and nonselling employ-
ees of the Employer at its two retail centers located respectively at
Davenport, Iowa, and Moline, Illinois, including cashroom employ-
ees, service desk employees, and employees of the licensed depart-
ments operated under license agreements with Stylco, Inc., and
United States Rubber Company; but excluding, (1) the employees
of the licensed or leased departments operated under license or
lease agreements with Tank's Kof-E-Brake Donut, Donald J. Berg
(Beauty and Barber Shop), and Mr. Andre's Coiffure Salons, Inc.;
(2) the following individuals employed by Jewel Food Stores Divi-
sion : managers, night managers, perishable managers, service man-
agers, personnel assistants, meat department employees; (3) the
following individuals employed by Turnstyle Division: managers,
assistant store managers, section managers, front end supervisors,
department managers in jewelry, camera, hardware, and appliance
departments, personnel assistants, pharmacists, assistant pharmacists,
and pharmacists trainees; and (4) the following individuals em-
ployed by either or both divisions : carpenters, millworkers, and
steamfitters, other craftsmen, security personnel, the night janitors,
seasonal and casual employees, management trainees, confidential
employees, guards, and supervisors as defined in the Act.
Accordingly, the case is hereby remanded to the Regional Director
for Region 13 for the purpose of holding an election pursuant to his
Decision and Direction of Election, as modified herein, except that
the payroll period for determining eligibility shall be that immedi-
ately preceding the date below.?
4 An amended election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director for Region 38
within 7 days after the date of this Decision on Review The Regional Director shall make
the list available to all parties to the election . No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances . Failure to comply
with this requirement shall be grounds for setting aside the election whenever proper
objections are filed Excelsior Underwear Inc., 156 NLRB 1236.