Gino Morena Enterprises

National Labor Relations Board - Board Decisions

Mar 25, 1970

181 N.L.R.B. 808 (N.L.R.B. 1970)

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gino Morena d/b/a Gino Morena Enterprises and
American Federation of Government Employees,
Local 1085 , AFL-CIO, Petitioner. Case
21-RC-1 1360
March 25, 1970
DECISION ON REVIEW
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN AND J,ENKINS
On September 26, 1969, the Regional Director for
Region 21 issued a Decision and Direction of
Election in the above-entitled proceeding.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
filed a timely Request for Review of the Regional
Director's Decision on the grounds that he
erroneously found the Petitioner to be a labor
organization within the meaning of Section 2(5) of
the Act despite the fact that certain provisions of
Petitioner's constitution appear to restrict its
membership solely to employees of the federal
government.
By telegraphic Order dated October 20, 1969, the
National Labor Relations Board granted the
Employer's Request for Review and stayed the
election pending its decision on review. Thereafter,
the Employer and the Petitioner filed briefs on
review.
The Board has considered the entire record in this
case with respect to the issues under review,
including the briefs on review, and hereby affirms
the Regional Director's Decision, attached hereto,
with the following modifications:'
As mentioned, supra, the Employer contends that
the Petitioner is not a competent labor organization
under the Act primarily because it is a specially
constituted union whose membership is restricted to,
"all civil employees of the United States
Government and the District of Columbia." While it
is true that certain provisions of the Petitioner's
Constitution indicate that its membership is to be
drawn from the ranks of government employees, we
agree with the Regional Director's finding that the
import of these provisions does not restrict
membership exclusively to such government
'Although not set forth in the attached Decision and Direction of
Election, the record contains a stipulation by the parties establishing the
essential commerce facts indispensable to the Board's assertion of
jurisdiction . Thus, according to the record , the Employer 's gross volume of
business exceeded $500,000 during the 12-month period antedating June
1969, derived from retail services purveyed to military personnel Further,
during the same reference period, the Employer received over $3,000 worth
of business supplies from points outside of California Consequently the
Employer's operations satisfy the Board's jurisdictional standard for retail
enterprises [Carolina Supplies and Cement Co , 122 NLRB 88], as well as
the standard for enterprises whose operations exert a substantial impact on
the national defense [Ready Mixed Concrete and Materials . Inc . 122
NLRB 318]
employees. Further, like the Regional Director, we
find that it is the Petitioner's willingness to function
as a bargaining agent under the Act, apart from its
constitutional provisions, which is the controlling
factor in these circumstances.'
The Employer also maintains that the petition
should be dismissed because the Petitioner fails to
qualify under the Act as a labor organization in
which employees participate We note that the
Petitioner has given assurances in the record that
the employees in the prospective bargaining unit will
be entitled to all of the rights and prerogatives of
full membership status should they select the
Petitioner as their agent for collective bargaining '
Consequently, any certification which may eventuate
as a result of this proceeding is subject to revocation
upon a showing that the Petitioner has not complied
with its statutory duties relating to adequate
representation and membership rights in behalf of
the subject employees.4
Accordingly, we shall remand the case to the
Regional Director in order that he may conduct an
election pursuant to his Decision and Direction of
Election,' as modified herein, except that the
eligibility payroll period therefor shall be that
immediately preceding the date of this Decision on
Review.
'See American Buff Company, 67 NLRB 473, F C Russell Company,
116 NLRB 1015, fn 5, of International Paper Company, Southern Kraft
Division , 172 NLRB No 100
'Air Line Pilots Association , 97 NLRB 929, in 2, where the Board
directed an election among the Association ' s own employees , is inapposite
'Cf Selzer's Super Markets of Georgia , Inc, 145 NLRB 1500, 1502,
Hughes Tool Company, 104 NLRB 318, 321-322 and in 10, Berghuis
Construction Company, 116 NLRB 1297
'The Regional Director's contrary findings with respect to the
Employer's earlier contention that the subject barbers are not employees
within the meaning of Section 2(3) of the Act because they are independent
contractors , were not placed in issue before the Board on review
'The Employer shall file the election eligibility list specified in footnote 5
of the Decision and Direction of Election within 7 days of the date of this
Decision on Review
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, a hearing was held before
a hearing officer of the National Labor Relations Board
The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed
Pursuant to the provisions of Section 3(b) of the Acd,
the Board has delegated its powers in connection with this
case to the undersigned Regional Director.
Upon the entire record in this case, the Regional
Director finds:
I The Employer' is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein
2 The labor organization2 involved claim(s)to represent
'The name of the Employer appears in the caption as amended at the
hearing
'The name of Petitioner appears in the caption as amended at the
hearing
181 NLRB No. 128
GINO MORENA ENTERPRISES 809
certain employees of the Employer' '
3 A question affecting commerce exists concerning
representation of certain employees of the Employer
within the meaning of Section 9 (c)(1) and Section 2(6) and
(7) of the Act
4 The following employees of the Employer constitute
a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
All barbers employed by the Employer in barber
located at the United States Marine Corps Recruit
Depot , San Diego , California; excluding all office
clerical employees , professional employees, guards,
watchmen , and supervisors as defined in the Act
[Direction of Election ' omitted from publication ]
'The Employer contends that Petitioner is not a labor organization
within the meaning of Section 2(5) of the Act, since under its cons t itution
membership in Petitioner is restricted solely to employees of the United
States Government , and such persons are not "employees " within the
meaning of Section 2(3) of the Act Although the parties stipulated that
the employees involved in this proceeding are not United States
Government employees as that term is used in Petitioner ' s constitution,
examination of that constitution discloses that the provision for
membership by Government employees is not exclusive and there is
nothing prohibiting membership by non-Government employees Indeed,
numerous employees involved in this proceeding are members of Petitioner,
participate in its meetings and pay dues to Petitioner Moreover , Petitioner
has expressed a willingness to represent the employees if it is certified
Failure to represent employees in any other industry or maintain a
collective-bargaining agreement with any other employer is not sufficient to
prevent an organization from qualifying as a labor organization under
Section 2(5) of the Act Wrought Iron Range Company , 77 NLRB 487,
489 Petitioner has expressed a willingness to represent these employees if
certified and it is Petitioner 's willingness , rather than its constitutional
ability, to represent these employees which is the controlling factor F C
Russell Company, 116 NLRB 1015, fn 5 Accordingly, I find that
Petitioner is a labor organization within the meaning of Section 2(5) of the
Act N L R B v Cabot Carbon Company, 360 U S 203, Victor
Manufacturing and Gasket Company, 133 NLRB 1283, fn 2, Donaldson
Sales, Inc , 141 NLRB 1303, 1304, fn I Moreover, Petitioner is a
"representative" within the meaning of Sections 2(4) and 9 of the Act
Campbell Offset Printing Co. Inc, 92 NLRB 1421, fn 2, Pennsylvania
Greyhound Lines , et al. 3 NLRB 622, 642-643
'The Employer is a sole proprietorship engaged in the operation of
barber shops on a number of military installations in California, including
the Presidio of San Francisco and the United States Marine Corps Recruit
Depot in San Diego, California The Employer contends , contrary to
Petitioner , that the barbers are independent contractors and, therefore, are
not employees within the meaning of Section 2(3) of the Act
At the time they are hired by the Employer, the barbers sign an
employment contract , which sets forth the wage rate at which the barber is
to be compensated , reserves the right to the Employer to terminate the
barber's employment at any time , (whether it be for unsatisfactory
performance on the part of the barber or because the Employer' s business
may become unprofitable ) and incorporates rules and regulations of the
Employer which govern the barber 's conduct while on the job Prices
charged for various services performed by the barbers are set pursuant to
an agreement between the Employer and the United States Government
The hours worked by the barbers are set by a supervisor of the Employer,
who also processes complaints from customers dissatisfied with services
performed by the barbers Although the barbers must provide their own
tools, the Employer furnishes the barber chairs, haircloths , tissues,
disinfectants , hair tonics , and lotions The Employer pays the barbers by
check , deducting withholding and social security taxes , as well as State
disability insurance Barbers have no proprietary interest in the business of
the Employer Inasmuch as the prices charged for barbers' services are
predetermined by an agreement between the Employer and the United
States Government , the Employer has the authority to terminate a barber
from employment at any time , the Employer withholds social security
contributions and State disability insurance premiums from the barbers'
pay checks, the Employer controls the hours of work and conduct of the
barbers while on the job, and in view of the fact that barbers have no
proprietary interest in the Employer ' s business , I find, based upon the
record as a whole, that the barbers ' compensation is not primarily
controlled by their efficiency or industry in performing the work required,
but, rather , is substantially affected by the decisions and actions of the
Employer, who has reserved the right to control the manner and means of
their work Therefore, the barbers are not independent contractors , but are
employees of the Employer within the meaning of Section 2 (3) of the Act
Mister Softee of Indiana , 162 NLRB 354, 356 , El Mundo , 167 NLRB No
107
Although the parties stipulated at the hearing that a clause in each
barber's employment contract which requires each barber to be his own
representative during the duration of the contract is no longer in effect, I
find that even if such clause were in effect, it would not constitute a
contract bar to an election It has long been held that individual contracts
which interfere with employees' rights to organize and bargain collectively
do not relieve an employer from the duty of collective bargaining with a
union once the latter proves its majority status J I Case v N L R B , 321
U S 332 Accordingly, there is no contract bar
The unit description is in accord with a stipulation of the parties
There are approximately 17 employees in the unit
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director within 7 days of the date
of this Decision and Direction of Election The Regional Director shall
make the list available to all parties to the election (Accordingly, two
copies should be submitted ) In order to be timely filed, such a list must be
received in the Regional Office, 849 South Broadway , Los Angeles,
California 90014 , on or before October 3, 1969 No extension of time to
file this list may be granted except in extraordinary circumstances, nor
shall the filing of a request for review operate to stay the filing of such list
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed