Barbers Local No. 635

National Labor Relations Board - Board Decisions

Jan 29, 1971

188 N.L.R.B. 266 (N.L.R.B. 1971)

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 affordedAll 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 breakin gg' 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 a ged 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 laborpractices effecting commerce within the meaning of Section2(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,