Food Fair Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1967

163 N.L.R.B. 365 (N.L.R.B. 1967)

ADELSON, INC. 365
Adelson, Inc., d/b/a Food Fair Stores, Inc.
and Teamsters, Chauffeurs, Warehousemen
and Helpers Local Union No. 631,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 31-CA-336
March 13,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 19, 1966, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, 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 Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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
Exminer made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Adelson, Inc.,
d/b/a Food Fair Stores, Inc., Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
We do not adopt the Trial Examiner 's finding that the
discharge of the three drivers was not subject to the grievance
procedure . However, we find no merit in Respondent 's exception
that the circumstances herein are appropriate for the exercise of
the Board 's discretion in deferring to arbitration Smith v Evening
News Association , 371 U S. 195, 197; Westinghouse Electric
Corporation , 162 NLRB 768; Fiasco Manufacturing Co , 162
NLRB 611, Cloverleaf Division of Adams Dairy, Co , 147 NLRB
1410,1415-16
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Nevada, on September 7, 1966, on complaint of the
General Counsel against Adelson, Inc., d/b/a Food Fair
Stores, Inc., herein called the Respondent or the
Company. The issue litigated is whether the Respondent
has violated Section 8(a)(5) of the Act. Briefs were filed by
the General Counsel and by the Respondent.'
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Adelson, Inc., is a wholly owned subsidiary of Food Fair
Stores, Inc., a corporation which operates retail
supermarkets in California and Nevada. This case is
concerned solely with seven supermarkets operated in the
Las Vegas area in the name of Adelson, Inc., where
during the past year the Respondent sold and distributed
products of a gross value in excess of $500,000. During the
same period the Respondent received goods at these Las
Vegas stores valued in excess of $50,000, all transported to
the State of Nevada in interstate commerce directly from
States other than the State of Nevada. I find that the
Respondent is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen and Helpers
Local Union No. 631, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issue in Brief
For the six stores it operates in Las Vegas and the
seventh in nearby Henderson, the Respondent purchases
dry groceries from Certified Grocers, among other
suppliers. The merchandise comes from Certified's
warehouses in Los Angeles, California, about 300 miles
distant. For some time the Company has used its own
drivers to truck this merchandise from Los Angeles to Las
Vegas and its environs. On March 2, 1966, it finalized an
arrangement with Certified to have truckdrivers employed
by Certified, instead of the Respondent's own employees,
make these deliveries, and, in direct consequence, it
discharged three of its employees. The Respondent did
this without notice to the Union, which was the exclusive
bargaining agent of the employees so adversely affected.
Because such unilateral action, in the face of its statutory
duty to bargain with Local 631-the representative of all
truckdrivers under existing contract-deprived the Union
of any opportunity to bargain with the Company on the
subject, and because it resulted in so substantial a loss of
employment, the complaint alleges that the Respondent
thereby refused to bargain in violation of Section 8(a)(5) of
the Act.
The answer denies all of the essential allegations of the
complaint. Affirmatively it sets out a number of
affirmative defenses, chief among them the assertion that
the Union ought to have arbitrated the dispute under the
THOMAS A. RICCI, Trial Examiner: A hearing was held ' An unopposed motion by the General Counsel to correct
in the above-entitled proceeding before me in Las Vegas, transcript is hereby granted.
163 NLRB No. 53
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms of the existing collective-bargaining agreement, and
that therefore the Board should decline to hear and decide
the case.
The Facts
The facts are clear, there is no meaningful conflict in
testimony, and the record as a whole proves a prima facte
case in support of the complaint.
On March 2, 1966, immediately preceding the events in
question, there were five long-haul and three short-haul
truckdrivers in the Respondent's employ, all on the payroll
of Adelson, Inc. These were Elmer Conn, Orville Green,
Richard Giannoni, Walter Harris, Roscoe Risley, Jack
Shaffer, Joseph Burleson, and Gilbert Dees. The Union's
dues payment records show that at that time seven of
these-i.e., all but Dees-were regular paid-up members
of the Union. There was also then in effect a contract
between the Respondent and Local 631 covering the
foregoing employees. The agreement consisted of two
documents, one dated April 1, 1962, and signed by Market
Town, a predecessor in ownership over the stores before
the Respondent, and an amendment supplement dated
April 19, 1965, signed by the Respondent under the name
Food Fair Markets. The 1962 document describes the
bargaining unit as "all drivers of trucks loading, unloading,
storing and warehousing." The substantive terms of the
agreement, as well as of the 1965 supplement, concern
themselves solely with the work and wage rate of drivers of
trucks. There is no indication in either document, or in the
record otherwise, that any employee in any other category
is covered by the total contract. The supplement
agreement provides that the contract shall remain in effect
until April 1, 1968.
I find that all long-haul and short-haul drivers employed
by the Respondent in the Las Vegas area, excluding all
supervisors as defined in the Act, constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the statute, and that at all
times material herein the Union has been and is the
exclusive bargaining representative of all employees in
that bargaining unit within the meaning of Section 9 of the
statute.
Sometime in February 1966 the Respondent approached
Certified Grocers with the proposal that drivers of the
latter company haul dry groceries purchased by the
Company to the Las Vegas area instead of those employed
by Food Fair. On March 2, agreement was reached to start
doing so on March 7.
The same day, March 2, Morris Glass, Food Fair
personnel director stationed in Los Angeles, telephoned
Joe Folsom, the Company's district manager in Las Vegas,
informed him that, as of the 7th, Certified would start
doing the hauling, and instructed him to serve notice on
drivers Burleson and Shaffer that they were discharged as
of Saturday, March 5.2
At 10 a.m., the same day, Benny Bautista, business
agent of Local 631, who had heard a rumor from Burleson,
called Glass to tell him about it. When Glass answered he
knew nothing, Bautista suggested "that we sit down and
negotiate it and discuss it before any changes were made
for the well-being of our people." Glass restated his
ignorance of the matter. By afternoon Bautista had
learned of the projected discharges-Burleson and
Shaffer had heard of it from certain Los Angeles drivers at
Certified-and again called Glass and asked him to come
to Las Vegas. Glass said "the machinery was in action,
and he couldn't hold off Certified," and that in any event
he could not meet Bautista before March 15.
The foregoing is Bautista's testimony of his
conversations with Glass that day, which I fully credit. As
Glass recalled, he had only one talk with the business
agent, and his testimony is as follows:
The Witness: Mr. Bautista called me approximately
10:00 o'clock that morning, and said to me, "I
understand that you fellows-I hear that you fellows
are going to start hauling by Certified."
And I said, "that is correct, Benny."
And he said, "Why didn't you let me know?"
And I said, "We didn't know about it until this
morning ourselves as to when we were going to start."
Mr. Bautista said, "We ought to talk about this," or
words to that effect.
And I said, "Any time, Benny."
He said, "How about coming down here on the
8th?"
I said, "I have a prior commitment on the 8th. I
couldn't get away."
He said, "How about the 15th?"
I said I had some commitments for that date, too,
but I will see.
Glass also admitted having told Bautista that day "the
machinery is in motion .... Certified is geared to start
operations on Monday, and I cannot stop it." He further
admitted Bautista asked him to defer action for a week so
they could discuss the question, and that his answer was:
"I can't delay it now."
The next time Glass spoke to Bautista was on March 23
when he chanced to run into him in Las Vegas.
It is conceded the Unioon was given no advance notice
of the contemplated change or discharges. Burleson,
Shaffer, and Conn were dismissed by the end of the week.
From March 7, 1966, to date the groceries purchased by
Food Fair from Certified Grocers have been hauled by
employees of Certified in that Company's vehicles.
Analysis, Defenses , and Conclusions
These facts, undisputed , picture a clear violation of
Section 8 (a)(5) of the Act under established Board law, and
I so find .3 Despite its statutory obligation to bargain with
the Union on all matters pertaining to terms and conditions
of employment , the Company , without notice to the Local,
eliminated a quantity of work normally performed by
employees in the truckdriving unit by arranging to have it
performed by the seller of its merchandise instead of by
itself as purchaser using its own employees . Requested
specifically to discuss the matter with a union
representative , even before the change was implemented,
it flatly refused to do so. As the Board has recently stated,
because the Respondent "unilaterally transferred this
work, constituting a change in, and caused significant
detriment to employees in the driver ... unit in terms of
their wages, hours and other terms and conditions of
employment ... [ it] violated Section 8(a)(5) and (1) of the
Act."4
2 These were long-haul drivers It was also stipulated by the ' East Bay Union of Machinists, Local 1304, Steelworkers
Respondent that at the same time Conn, a short-haul driver, was (Fibreboard Paper Products Corp.) v. N.L R B , 379 U S 203
discharged in like manner and for the same reason. 4 Cities Service Oil Company, 158 NLRB 1204
ADELSON, INC. 367
When Bautista realized that Glass was going to
discharge the men and not talk to him at all, he threatened
to picket the store in retaliation . The next day he received
a telegram from Robert Fox , president of Food Employers
Council, centered in Los Angeles, apparently an employer
organization of which the Respondent is a member. The
telegram warned the Union that picketing in the
circumstances would be unlawful and violative of the
existing contract ; it also "invoked the grievance and
arbitration procedure of the collective -bargaining
agreement."
In consequence of the telegram, the next day William
Carter, secretary-treasurer of the Union, talked to Fox on
the telephone. Fox said he knew little of the "problem,"
and repeated his urging that the Union do no picketing.
The two argued a bit, Carter said the Company was in
violation of the contract , and Fox that the contract
authorized the Respondent to subcontract away unit work.
They spoke of trying to settle the "problem ," and Fox
invited Carter to arbitrate the question . Nothing came of
their talk. Between March and August, shortly before the
hearing, they spoke on the telephone several times and
once met in Las Vegas and once in Los Angeles. They
spoke of possible settlement but there were no results.
The charge in this proceeding had been filed on March 7
and the complaint issued on May 27.
On March 9 , after the men had been discharged, Fox
sent an assistant , Mel Dauber, to talk to Carter. Dauber
said he wanted to discuss the problem; at first Carter re-
fused to recognize his authority, but then did talk. The
discussion centered primarily about the possibility of
arbitration , and Carter suggested five or six names,
apparently none acceptable to the Company 's agent. Fox
also suggested some names , all rejected by the Union,
which insisted that if there was to be arbitration the
central figure would have to be a Nevada man. This was
the inconclusive state of affairs at the time of the hearing.
In its answer the Respondent sets out a number of
defenses , and I find each of them without merit in the light
of the entire record.
The Respondent asserts that it did bargain with the
Union as the statute demands. This is a reference to the
attempt made to settle the "problem " with Secretary-
Treasurer Carter. The Respondent misconceives the
statutory duty to bargain with the exclusive majority
representative. The duty arises before unilateral action by
the employer ; the vice in the Respondent 's conduct lay in
the refusal of Glass, its personnel director , to discuss the
change made at the special request of Bautista before it
was made. Indeed , all talk between Carter and Fox, or his
representative , after the fait accompli, was but an attempt
to avoid the consequence of the charge which had already
been filed . Carter did suggest at one point that the status
quo be first restored , but Fox would have none of that. At
no time during these conversations after the fact did Fox
permit any discussion of whether or not the Company
should make the change , or whether some other method
for achieving its economic purposes might be found. And
whatever conversations may have taken place in January
1965, when the possibility of this change was first
considered , but before the contract extension amendment
of April 1965 , cannot fill the void of the failure and refusal
to bargain in 1966.5
There is no factual support for the assertion in the
answer that the change of delivery method in this instance
was permitted by "past practice ." The contract is silent on
the subcontracting and there is no evidence of previous
experience.
There is an arbitration provision in the existing contract,
but it is expressly limited to "grievances arising out of the
interpretation of this Agreement , including layoffs and
rehires ...... There was nothing in the arbitrary
elimination of a substantial portion of the unit work in this
instance , or in the consequent discharge of the three
employees , that could fairly be said to involve any
"interpretation " of the existing contract . The "problem,"
therefore, was not one embraced within the scope of the
contractual grievance and arbitration provision. In any
event , even assuming the Union , or the employees
themselves , could have resorted to arbitration , but chose
instead to resort to the Board to redress the unfair labor
practices committed , the fact cannot serve as a defense to
the Respondent now.6
The last defense rests upon an assertion that bargaining
would have been "futile" in any event . Here the implied
assertion is that Local 631 or its agents were not truly
concerned with whether or not the Company gave them
advance notice of the change , or whether the Company
was willing to bargain about it before deciding the matter.
All that the Union wanted and still desires today,
according to the Company , is to retain exclusive juris-
diction over all trucking in Clark County, where the
city of Las Vegas is located. The theory of defense here is
that because bargaining in this situation would be
futile-the Union not really caring to discuss the projected
change-there was no point in consulting them in advance
and therefore the complaint must be dismissed.
But this is precisely the point of the rule of law which
makes bargaining mandatory before substantial unilateral
changes of this kind are made. "Experience has shown,
... that candid discussion of mutual problems by labor
and management frequently results in their resolution with
attendant benefit to both sides. Business operations may
profitably continue and the jobs may be preserved. Such
prior discussion with a duly designated bargaining
representative is all that the Act contemplates. But it
commands no less."7
Upon the basis of the foregoing considerations , and the
record as a whole, I find that by unilaterally altering the
method of deliveries by arranging to have Certified
Grocers deliver dry groceries from Los Angeles to Las
Vegas in place of its own employees, and by discharging
three of its own drivers, without advance notice to the
Union, the Respondent has violated Section 8 (a)(5) and (1)
of the Act.
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 Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
5 Cf. Hartman Luggage Company, 145 NLRB 1572, 1578. ' Town & Country Mfg. Co., Inc., etc, 136 NLRB 1022, enfd
6 Aerodex, Inc, 149 NLRB 192, Cloverleaf Division of Adams 316 F 2d 846 (C A. 5)
Dairy Co , etc , 147 NLRB 1410
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Effective redress of statutory wrongs means the remedy
must be tailored to fit the case. Here the Respondent must
be ordered to cease and desist from unilaterally reducing
the amount of work available for its employees without
bargaining with the Charging Union about its decision to
do so, and hereafter it must bargain with the Union in
advance of such changes in methods of operations. Three
employees having been discharged in direct consequence
of the unilateral action, the Company must also be ordered
to cancel its March arrangement for trucking merchandise
from Certified Grocers and resume its past practice of
having its own drivers perform the work. The Respondent
operates very extensively as a multistate , retail food-
marketing business . There is no reason to believe,
therefore, that reinstatement of three drivers, and perhaps
even resumed use of a truck or two, at least until such time
as it shall have fulfilled its statutory duty to bargain, will
be an undue burden. Each of the three drivers must be
reinstated to his former position and made whole for any
loss of earnings he may have suffered as a result of the
employer's bypassing of their bargaining agent and
unilaterally eliminating work previously performed by
them, in the manner set forth in F. W. Woolworth Co., 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. No less than restoration of the status quo will serve if
bargaining , as dictated by the Act, is to be other than an
exercise in futility.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Adelson, Inc., d/b/a Food Fair Stores, Inc., is an
employer within the meaning of Section 2(2) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and Helpers
Local Union No. 631, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By unilaterally altering its method of transporting
purchased groceries from Los Angeles to Las Vegas
without first bargaining with the Union as the exclusive
representative of the employees in the appropriate
bargaining unit, the Respondent has committed unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that Adelson, Inc., d/b/a Food Fair Stores,
Inc., Las Vegas, Nevada, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union
No. 631, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of all employees in the
appropriate bargaining unit in its Las Vegas, Nevada,
stores, and from unilaterally changing their wages, hours,
and other terms and conditions of employment without
prior consultation with the above-named Union, or any
other union which they may select as their exclusive
bargaining representative.
(b) In any like or related manner interfering with,
restraining, or coercing employees in their exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Reinstate its prior method of transporting dry
groceries purchased from Certified Grocers in Los
Angeles to its Las Vegas stores by use of its own
employees; offer Elmer Conn, Jack Shaffer, and Joseph
Burleson immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed; and make whole all three of those employees for
any loss of pay they may have suffered by reason of their
discharge on March 5, 1966, in the manner set out under
"The Remedy" section of this Decision.
(b) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all
employees in the appropriate bargaining unit in respect to
rates of pay, wages, hours of employment, or other terms
or conditions of employment, and embody any
understanding reached in a signed agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary or useful in determining the amount of
backpay due and rights of reinstatement under the terms
of this Recommended Order.
(d) Post at its stores in Las Vegas and Henderson,
Nevada, copies of the attached notice marked
"Appendix."$ Copies of said notice, to be furnished by the
Regional Director for Region 31, after being duly signed by
the Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees 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.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.9
8 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
9 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 Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
NORMANDY SQUARE FOOD BASKET 369
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Teamsters, Chauffeurs, Warehousemen and Helpers
Local Union No. 631, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive representative of all our
employees in the appropriate bargaining unit at our
Las Vegas and Henderson, Nevada, stores, or
unilaterally change the wages, hours, rates of pay, or
other terms or conditions of employment of such
employees without prior consulation with the above-
named Union, or any other union which they may
select as their bargaining representative. The
bargaining unit is:
All long-haul and short-haul drivers employed by
us in the Las Vegas area, excluding all
supervisors as defined in the Act.
WE WILL reestablish our prior system of
transporting dry groceries purchased in Los Angeles
from Certified Grocers to our stores in the Las Vegas
area by use of our own employees; we will offer
immediate and full reinstatement to Elmer Conn,
Jack Shaffer, and Joseph Burleson to their former or
substantially equivalent position; we will make each
of these drivers whole for any loss of pay they may
have suffered as the result of their discharge on
March 5, 1966, in the manner described in the Trial
Examiner's Decision.
WE WILL bargain, upon request, with Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union
No. 631, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of our
employees in the appropriate bargaining unit with
respect to wages, hours, and other terms and
conditions of employment.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named Union or any other labor organization.
ADELSON, INC., D/B/A FOOD
FAIR STORES, INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 10th Floor,
Bartlett Building 215 West Seventh Street, Los Angeles,
California 90012, Telephone 688-5850.
Normandy Square Food Basket , Inc. and
Retail Clerks and Mangers Union Local
1357, affiliated with Retail Clerks Inter-
national Association , AFL-CIO. Case 4-
CA-3988
March 14,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 17, 1966, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief. The General Counsel filed a brief
in general support of the Trial Examiner's Decision,
but also filed cross-exceptions to portions of the
Decision and a supporting brief in which the
Charging Party joined. The Respondent also filed an
answering brief to the General Counsel's cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner.
I Chairman McCulloch does not find it necessary to decide
whether the lessor and lessees herein are joint employers He
would assert jurisdiction on the theory expressed in Trade Winds
Motor Hotel & Restaurant , 140 NLRB 567 Here, as in Trade
Winds, the enterprises , although separately owned and operated,
are held out to the public as a single , integrated enterprise,
occupy a common situs, serve essentially the same class of
customers , and supplement each other Due to the great amount
of business done by the Mart, the impact exerted upon commerce
by a labor dispute at one of th6 lessees in the Mart would be much
greater than that exerted upon commerce by a labor dispute at a
separately located retail business Grand Central Liquors, 155
NLRB 295, 298.
' The General Counsel excepted to the Trial Examiner's failure
to find that Al Lipkin was an agent of the Respondent Inasmuch
as the record shows that at the time of the formation of
Respondent Corporation Al Lipkin was designated as its
president, and as Lipkin's own testimony at the Pennsylvania
Labor Relations Board hearing on March 28, 1966, disclosed that
he still occupies that position, we find that at all material times Al
Lipkin was an agent of the Respondent, and that the unfair labor
practices committed by him are attributable to the Respondent
We also hereby correct the Trial Examiner's inadvertent failure
to grant the "Joint Motion To Amend Stipulation Of The Parties
Known AsGeneral Counsel's Exhibit No 4 "
163 NLRB No. 45