Gallenkamp Stores Co. v. NLRB
| Citation | 402 F.2d 525 |
| Decision Date | 08 August 1968 |
| Docket Number | 21632 and 21649.,No. 21621,21621 |
| Parties | GALLENKAMP STORES CO.; Mercury Distributing Company; Acme Quality Paints; and F. & G. Merchandising, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Clerks Union Local 770, Retail Clerks International Association, AFL-CIO, Intervenor. K-MART, a division of S. S. Kresge Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Clerks Union Local 770, Retail Clerks International Association, AFL-CIO, Intervenor. HOLLYWOOD HAT CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Clerks Union Local 770, Retail Clerks International Association, AFL-CIO, Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stanley E. Tobin (argued), Hill, Farrer & Burrill, Los Angeles, Cal., for appellant Hollywood Hat Co.
John C. Donnelly (argued), Hill, Farrer & Burrill, Stanley E. Tobin, Los Angeles, Cal., Clark, Klein, Winter, Parson & Prewitt, Detroit, Mich., for appellant K-Mart.
Carl W. Robertson (argued), of Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for appellants Gallenkamp Stores Co. and others.
Kenneth M. Schwartz (argued), of Arnold, Smith & Schwartz, Los Angeles, Cal., for intervenor.
Leonard M. Wagman (argued), Atty., N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, Jerrold H. Shapiro, Atty., N.L.R.B., Washington, D. C., Ralph E. Kennedy, Reg. Director, N.L.R.B., Los Angeles, Cal., for National Labor Relations Bd.
Before HAMLEY, ELY and CARTER, Circuit Judges.
These cases come before the court on petitions to review and set aside an order of the National Labor Relations Board, (hereafter the Board), issued against the petitioners, and on the Board's cross-petitions for enforcement of the order, pursuant to Section 10(e) and (f) of the National Labor Relations Act as amended, (hereafter the Act), 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 160(e) and (f). The Board's final decision and order are reported at 162 NLRB No. 41.
The Board's order is based in part on findings made in a representation proceeding under Section 9 of the Act, 29 U.S.C. § 159. The proceeding, Board Case No. 21-RC-9309 is part of the record pursuant to Section 9(d) of the Act, 29 U.S.C. § 159(d). The findings which go to the heart of the representation part of the case are not now reported.1
Two major problems are involved, — (1) whether the finding and decision that a licensor and his licensees in a retail department store are joint-employers, and the resulting establishment of a store wide unit for labor bargaining, are correct; (2) whether alleged irregularity and union misconduct voided the election.
There are three segments to the case here, (1) the representation hearing, (Case No. 21-RC-9309), (2) the proceedings challenging the election which followed and (3) the unfair labor practice proceedings when the employers refused to bargain with the Union, (Case No. 21 CA-6937). We do not reach the questions arising from the third segment of the case.
The case began with a representation petition filed in 1964 by the Retail Clerks Union Local 770, Retail Clerks International Association, AFL-CIO, (hereafter the Union, and now an intervenor in this appeal), in Case No. 21-RC-9309. The Union sought certification as bargaining representative of a store wide unit at the Commerce, California store of K-Mart, a division of S. S. Kresge Company, (hereafter K-Mart), one of petitioners herein.2 The proposed store wide unit included employees of licensees of K-Mart, to wit, Gallenkamp Stores, Mercury Distributing Company, Acme Quality Paints, F. & G. Merchandising, Hollywood Hat Co., and Besco Enterprises Inc., (hereafter the licensees). The licensees, except Besco, are petitioners herein.
There followed a hearing. The Regional Director issued a Decision and Director of Election, finding that the licensees and K-Mart were "joint employers of the employees in each of their respective departments," and that a store wide unit, including all employees at the Commerce store was appropriate. An election was directed.
K-Mart and licensees F. & G., Gallenkamp and Mercury requested Board review of the Regional Director's Decision and Direction of Elections. The Board denied the request for a review on the ground that they raised "no substantial issues warranting review." This constituted an affirmance of the Regional Director's unit determination.3
The election was conducted by the Regional Director; out of 80 eligible voters, 79 ballots were cast, 37 in favor of and 33 against representation by the Union. 9 ballots were challenged. The Regional Director conducted an administrative investigation of the challenges and objections without a hearing, and issued his Supplemental Decision and Direction. He ruled on the challenges and ordered the remaining ballots be opened and counted. He found all the Union objections and all but K-Mart objection No. 3, to be without merit. He further ordered that if the revised tally showed a majority of valid ballots had been cast for the Union, the election should be set aside on the basis of the objection No. 3 of K-Mart, which he had found meritorious, and a new election conducted at a later date to be specified.
The employers (K-Mart and the licensees) and the Union, filed timely requests for review of the Regional Director's rulings. The Board granted the Union's request for review insofar as it related to the Regional Director's sustaining of the employer's objection No. 3, and denied the requests for review in all other particulars on the ground that they raised "no substantial issues warranting review." The Board directed the Regional Director to open and count the challenged ballots. The Board also provided that it would review the Regional Director's disposition of K-Mart's objection No. 3 in the event the Union won the election. The Regional Director opened and counted the five remaining ballots and issued a revised tally showing that of 80 eligible voters, 75 cast ballots, of which 38 were for and 37 against the Union.
On September 9, 1965, the Board issued its Decision on Review and Certification of Representative, reversing the Regional Director's disposition of the employer's objection No. 3. The Board certified the Union as the collective bargaining representative for the employees in the store wide unit at K-Mart.
There followed an unfair labor practice proceeding (Case No. 21-CA-6937), when K-Mart and the licensees refused to bargain with the Union, resulting in a Board order to cease and desist from the refusal to bargain. In view of our disposition of other issues in the case, we do not reach the question of the unfair labor practice proceedings.
The Finding that K-Mart and its Licensees are Joint-Employers and the Finding that a Store Wide Bargaining Unit was Appropriate.
The Regional Director found, and the Board adopted and approved his finding, that K-Mart and its licensees were joint employers.
K-Mart's Commerce store here involved, includes various departments operated by licensees under uniform lease agreements with K-Mart. Among the licensees were: Gallenkamp, selling shoes; Mercury, selling clothing; Acme, selling paints and household items; F. & G. Merchandising, selling auto accessories and servicing automobiles; Hollywood Hat, selling hats; and Besco, selling jewelry and cameras.
There followed findings as to how the licensees operated as an integral part of the K-Mart store and the findings on control of labor relations upon which the Board's decision was based.
Each licensee agreement contained a declaration by the parties that the success of their "enterprise is dependent upon compliance with common standards hereafter referred to as Rules and Regulations for the conduct of the business as established from time to time by (K-Mart)." Paragraph 10 provided:
"The licensor (K-Mart) shall from time to time * * * establish, amend, modify or revise uniform Rules and Regulations consistent with this License Agreement which shall govern but not be limited to the following subjects: order and appearance of the store * * * employment practices, personnel and store policies * * *".
The Rules and Regulations, (hereafter the Rules), thus promulgated by K-Mart provide that K-Mart's manager is "responsible for the over-all operation" of the store, and he may request "immediate action" from the licensee if he believes that the licensee has not provided "sufficient help, or if any employees are inefficient or objectionable." Under the heading "General Operation of Store," a licensee is directed "Not to permit the continuance of a labor dispute involving its department which materially affects the sales or threatens the operation of other licensees or licensor."
Although the Rules declare all hiring and terminations to be under the supervision of each licensee's manager, they authorize K-Mart's personnel supervisor to receive applications from persons desiring employment. Such applications are to be made available to the licensees on request. The Rules include provisions for employee discipline, smoking restrictions, rest periods, places where employees are permitted to keep their personal belongings, employee purchases, employee wearing apparel and identification badges, and the greeting of customers.
Under the Rules, each party to the licensing agreement agrees that it will not "hire an employee or former employee of the other without first checking" with the other. The Rules also require licensees' employees to attend briefing and training sessions "to familiarize themselves with store policies and regulations pertaining to the conduct of the business in their department, as well as the entire operation." In addition, the Rules require each licensee to operate its department during hours fixed by K-Mart. K-Mart controls advertising, merchandising and the physical...
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