NLRB v. Red-More Corporation

• Decision Date: 14 November 1969
• Docket Number: No. 23428.,23428.
• Citation: 418 F.2d 890
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RED-MORE CORPORATION et al., Respondents. Retail Clerks' Union Local 899, Local Clerks International Association, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

418 F.2d 890 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RED-MORE CORPORATION et al., Respondents Retail Clerks' Union Local 899, Local Clerks International Association, AFL-CIO, Intervenor.

No. 23428.

United States Court of Appeals Ninth Circuit.

November 14, 1969.

Lynn D. Poole (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Glen M. Bendixsen, Atty., Washington, D. C., for petitioner.

Alvin F. Slaight, Jr (argued), Leonard S. Janofsky, Carl W. Robertson and Douglas C. Conroy, of Paul, Hastings, Janofsky & Walker, Latham & Watkins, John H. Nelson, Los Angeles, Cal., for respondents.

Laurence D. Steinsapir (argued), George L. Arnold, Jerome Smith, Kenneth M. Schwartz, of Arnold, Smith & Schwartz, Los Angeles, Cal., for intervenor.

Before HAMLEY and BROWNING, Circuit Judges, and BYRNE, District Judge.^*

HAMLEY, Circuit Judge:

This case is before the court upon the petition of the National Labor Relations Board (Board) for enforcement of its order of May 16, 1969, directed against respondents. The Board's decision and order, and a supplemental decision and order, are reported at 164 NLRB No. 93 and 169 NLRB No. 63. The charging party, Retail Clerks Union Local No. 899, Retail Clerks International Association, AFL-CIO (Union) has intervened in this enforcement proceeding.

In early 1965, respondent Disco Fair Operating Company, a wholly-owned subsidiary of respondent Red-More Corporation, operated a retail discount department store at Oxnard, California which was owned by respondent Red Crest Company. Red-More, Red Crest and Disco Fair are commonly owned and controlled and constitute a single employer under the Act and are hereinafter referred to collectively as Disco Fair.

Nineteen of the departments of the store were operated by licensees of Disco Fair. The remainder were operated by Disco Fair. On February 11, 1965, the Union demanded recognition as the representative of the employees of Disco Fair and of the licensees at the Oxnard store. The Union asserted that Disco Fair and the licensees were joint employers of all of the persons working in the licensed departments.

Disco Fair, apparently agreeing that it and the licensees at the Oxnard store were joint employers of the employees in the licensed departments, filed with the Board a representation petition requesting an election among all of the employees at the Oxnard store. A hearing was held before the Board's Regional Director. He found and concluded that, "in view of the close contractual relationship between Disco Fair and its licensees and, in particular, the substantial influence and control exercised by Disco Fair in labor relation policies affecting its licensees," Disco Fair and its licensees were joint employers of the employees in all of the licensed departments of the Oxnard store. The Regional Director accordingly directed an election as requested by Disco Fair. The election was held on May 14, 1965; however, the Union did not receive a majority of the valid votes cast.

In October, 1965, respondent Disco Fair opened another retail discount department store in Goleta, California. As in the case of the Oxnard store, Disco Fair operated some of the Goleta store departments but most of the departments were operated under license agreements. Thirteen of the nineteen Oxnard licensees were also Goleta licensees.

On March 18, 1966, the Union by separate petitions, applied to the Board for an election at both the Oxnard and Goleta stores. The petitions were consolidated and a hearing was held thereon before the Regional Director. At the hearing the Union amended its unit description to include both stores in a single bargaining unit. Consistent with its position in the 1965 proceedings with respect to the Oxnard store, the Union asserted that Disco Fair and the licensees at both stores were joint employers of the employees in the licensed departments and that such employees should therefore participate in the election. Disco Fair, however, which had shared that view in 1965 with regard to the Oxnard store, took the position in the 1966 proceedings that they were not a joint employer of the employees of the licensees and that an over-all multi-employer unit including the licensees was inappropriate.

A hearing was held before the Regional Director after which he issued a decision and direction of election. The director ruled that Disco Fair and its licensees (except Food Fair which was already under union contract) at both the Oxnard and Goleta stores were joint employers. Disco Fair's request for review of the Regional Director's decision and direction of election was denied. An election was held in which the Union received a majority of the valid votes cast. The Regional Director then certified the Union as the collective bargaining representative of all the employees.

One month later, the Union filed unfair labor practice charges against Disco Fair and its licensees at both stores, alleging that they were guilty of a refusal to bargain in violation of section 8 (a) (5) of the National Labor Relations Act, as amended (Act), 29 U.S.C. § 158 (a) (5). The Board issued a complaint and the matter was set for hearing. The hearing was later postponed indefinitely and the Board's General Counsel filed with the Board a motion for a summary judgment. The Board transferred the proceeding to itself and issued a notice to show cause. Respondents filed an opposition statement.

The Board thereafter granted the motion for summary judgment, holding that respondents violated section 8(a) (5) and (1) of the Act by refusing to recognize and to bargain with the Union after it had been certified as the bargaining agent in an appropriate unit. The Board's order, which it now seeks to enforce, directs respondents to cease and desist from the unlawful conduct found, to bargain with the Union upon request, and to post the usual notices. Following the filing of a motion for reconsideration, a hearing and reopening of the record, the Board issued a supplemental decision reaffirming its original decision.

Respondents argue here that the Board did not have authority to entertain, in the first instance, the General Counsel's motion for summary judgment. In support of this view, respondents cite sections 102.24, 102.25 and 102.26 of the Board's rules and regulations, 29 C.F.R. §§ 102.24, 102.25 and 102.26. Sections 102.24 and 102.25 are to the effect that all motions made prior to hearing shall be filed with the Regional Director and, with certain exceptions not here relevant, such motions must be referred to a trial examiner designated to conduct the hearing. Section 102.26 is to the effect that, unless expressly authorized by the rules and regulations, rulings on motions by the Regional Director and trial examiner shall not be appealed directly to the Board except by special permission. Rather, these rulings shall be considered by the Board in reviewing the record.

A motion for summary judgment was made to the Board. After the filing of that motion the Board transferred the proceeding from the trial examiner to the Board itself. It was empowered to do this under section 102.50 of its rules and regulations, 29 C.F.R. § 102.50. After such transfer the Board was...