Grand Central Liquors

National Labor Relations Board - Board Decisions

Oct 22, 1965

155 N.L.R.B. 295 (N.L.R.B. 1965)

GRAND CENTRAL LIQUORS, ETC. 295
APPENDIX C
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 Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT recognize or deal with Office and Professional Employees Local
No. 3, Office Employees International Union, AFL-CIO, unless and until such
organization is certified by the National Labor Relations Board.
WE WILL reimburse former or present employees for any amount of money
they may have been required to pay Local 3 by reason of the enforcement of a
union-security contract with Local 3, with interest at 6 percent per annum, from
the date of payment by the employees affected.
KILPATRICK'S BAKERIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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, 13050
Federal Building , 450 Golden Gate Avenue , Box 36047 , Telephone No. 556-3197.
David Gold and Harvey Tesler d/b/a Grand Central Liquors;
Anco Central Corporation ; Harry Pascal d/b/a Harry Pascal
Food Co.; Ben Weinman d/b/a Central Bulk Foods; Isao Hongo
and John Yamada d/b/a Isao Hongo -John Yamada Produce;
Robert B . Sloane d/b/a Robert B. Sloane Produce; J. Louis
'Cohen and Milton S. Cohen d/b/a L & M Bakery; Rafael
Penilla and Olga Penilla d/b/a Roast -To-Go, Petitioners and
Retail Clerks Union , Local 770, affiliated with the Retail Clerks
International Association , AFL-CIO.' Cases Nos. 21-RM-1163
.through 21-RM-1170. October ^H,1965
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a consolidated hearing was
held before Hearing Officer Orville S. Johnson .2 The Hearing Offi-
cer's rulings made at the hearing are free from prejudicial error and
are hereby affirmed.3 Briefs have been filed by the Employer-Peti-
tioners and the Union.
1 The names of the Union and all the Employer -Petitioners except Anco Central Corpo-
ration appear as amended at the hearing.
'After the hearing and pursuant to Section 102.67 of the National Labor Relations
Board Rules and Regulations , Series 8 , as amended , the Regional Director issued an
order transferring these cases to the Board for decision.
8At the hearing , the Hearing Officer, over the objection of the Union , revoked certain
Eubpenas requested by the Union in its attempt to present evidence in support of its con-
155 NLRB No. 33.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
Upon the entire record in the cases, the Board finds :
1. The Union contends that none of the Employer-Petitioners, with
the possible exception of Grand Central Liquors, meets the legal or the
Board's jurisdictional standard for the assertion of jurisdiction over
retail enterprises 4 and , therefore, that the petitions should be dis-
missed. The Employer-Petitioners assert that their combined opera-
tions should be considered in determining whether the statutory and
the Board's jurisdictional standards are met.
Each of the Employer-Petitioners operates a retail concession in the
Grand Central Public Market (Market) in Los Angeles, California,,
under a lease agreement and sells to the public a variety of edible com-
modities, including fruits and vegetables, dairy and bakery products,
prepared foods, dried beans, coffee and tea, tobacco products, and alco-
holic beverages. The Market is housed in a large enclosed structure
between two main streets with public entrances on both streets. Both
public entrances are marked "Grand Central Public Market." There
are no signs on the exterior of the Market designating the inside les-
sees. However, about half the lessees have their names above the stalls
they occupy; other stalls are identified only by a number.
The Market is owned by a company known as Grand Central Public
Market (Lessor). It employs a manager and two assistant managers
who are in charge of the entire market. The Lessor provides janitors
and maintenance men to keep the area clean and security men to police
it. The Lessor also has a pest control company come in once a week.
There are approximately 35 lessees operating concessions in the Mar-
ket. Each is signatory to a master form of lease with the Market and
operates his concession subject to the terms of the lease. Through these
agreements, which are uniformly applicable to all concessions, the Les-
sor retains control over all advertising on a marketwide basis 5 to the
extent even of selecting the products that will be advertised and the
prices at which they will be sold; has authority to inspect the lessees'
premises at all times for cleanliness and to order any corrective meas-
ures; must approve all alterations, fixtures, and signs; and has author-
tention that the operations of the Employer-Petitioners do not affect interstate commerce
within the meaning of the Act. In its brief , the Union states that "if the Board is of the
opinion that there is jurisdiction , then it is requested that the subpenas be reinstated and
the case remanded for further hearing" on this issue or otherwise the Union " is deprived
of its right to a full and fair hearing." We deny this request of the Union since, as we
find below, it is clear that the Board has statutory jurisdiction over these Employer-
Petitioners and that the Union was accorded a full and fair hearing.
' Carolina Supplies and Cement Co., 122 NLRB 88.
r, Three or four lessees also do some advertising of their own.
GRAND CENTRAL LIQUORS, ETC. 297
ity to decide which articles the lessees may sell. Under the rules and
regulations (which are an addendum to the lease agreement) the Lessor
establishes conditions which all market employees must follow with
respect to cleanliness, dress, use of tobacco and liquor, gambling, pro-
fanity, and arguments. The rules and regulations give the Lessor sole
authority to settle disputes between customers and lessees. Also, the
Lessor is given the right to set the days and hours the lessees must oper-
ate their concessions in the Market.6
Thus, it appears that the net effect of the lease agreements is to create
the impression among store customers that they are dealing with a
single integrated company and not with. individual enterprises sharing
space in a single-store building.
As is evident from the above, the Lessor not only exercises sub-
stantial control over the operational policies of the lessees, but it also
exercises control over the labor policies of the lessees by setting the days
and hours the latter must operate and by establishing what the dress,
appearance, and conduct of employees shall be. In addition, the Lessor
reprimands employees for not dressing properly or for not treating
customers politely. The Lessor may also report such misconduct to the
employees' employer. An official of the Lessor testified that it has the
right to dismiss employees of lessees but has not done so for several
years.7 The Lessor also has requested that lessees discharge employees,,
and the lessees have complied with these requests." Further, an article
of the large agreement gives the Lessor "exclusive direction and con-
trol" over the industrial relations of the lessees.9 Finally, the rules
and regulations provide that the Lessor "may from time to time add
to or make changes in the rules and regulations deemed necessary to
the proper conduct of the market."
6 some of the lessees requested that the Market close on the national day of mourning
after the assassination of the late President Kennedy. The Lessor refused the request,
and all lessees had to be open for business on that day.
4 One lessee testified that he was told to discharge an employee , apparently because of
an overcharge complaint, but that he thought the employee was right and that when he
took the employee's part, the Lessor "wanted to throw me out of the market on that
account." Finally , the Lessor agreed that the lessee did not have to fire the employee.
$ The lessees , however, have exclusive control over the hiring of their employees and
set their wages and other terms of employment. Each of the lessees also decide whether
he will enter into a collective-bargaining agreement with a union In the past, some
lessees have entered into collective -bargaining agreements and others have not.
9 This grant of authority is contained in the article covering advertising . The relevant
sentences state: "All advertising . . . shall be under the exclusive direction and control
of the Lessor . Advertising as here used includes public relations , sales and promotions,
display, industrial relations and like activities as well as ordinary advertising." The
Employer-Petitioners explain this placement by stating that "it is clear evidence that the
Market owners believe that any labor dispute involving a concessionaire affects the busi-
ness of the entire market." It does appear, however , that the Lessor has chosen not to
exercise this control over the past few years and has permitted the lessees to establish
their own industrial relations . Yet, it is clear that the Lessor could exercise such author-
ity at any time it chose to do so.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the terms of the lease relationship between the Lessor and
the lessees , and on the basis of the entire record, it is clear that the Les-
sor is in a position to influence the labor policies of the lessees. Thus,
we find that the Lessor and each of the lessees are associated as joint
employers in a common enterprise,10 and that'it is appropriate to com-
bine the gross revenues of all Employer-Petitioners for jurisdictional
purposes."
With respect to legal jurisdiction, in 1964, Employer-Petitioner
`Grand Central Liquors purchased at auction Spanish wine from United
States customs in the amount of $3,400 and purchased $750 worth of
cigars directly from outside the State of California. Employer-Peti-
tioner Central Bulk Foods purchased beans directly from Idaho in the
amount of $40,000. In addition, Employer-Petitioner Roast-To-Go
purchased pork products imported from Denmark in the amount of
$3,042 from a firm which, in turn, purchased such goods directly from
outside the State, and five other Employer-Petitioners 12 purchased an
indeterminate amount of goods from firms which, in turn, received
such goods directly from outside the State. Such amounts of inter-
state operations, being more than de minimis, are sufficient to establish
legal jurisdiction in the Board.
The joint operations of the Employer-Petitioners also satisfy the
Board's $500,000 jurisdictional standard for retail enterprises since
their combined gross revenues for 1964 exceeded $1.5 million.
Accordingly, we find that the Employer-Petitioners are engaged in
commerce within the meaning of the Act and that it will effectuate
the purposes of the Act to assert jurisdiction herein.13
10 See Checker Cab Company and its Members , 141 NLRB 583 ; Freda Redmond, Sir
James, Inc., 147 NLRB 1025; Spartan Department Stores, 140 NLRB 608 ; Frostco Super
Save Stores, Inc., 138 NLRB 125. The cases of S.A.G.E., Inc. of Houston and its
Licensees, 146 NLRB 325, and Esgro Anaheim, Inc., 150 NLRB 401 , are distinguishable.
In those cases, the licensors had not exercised substantial control over the labor policies
of the licensees . Further, in Esgro, the license agreement specifically provided that it
was "not intended to create and shall not be considered as creating any partnership
relationship between the parties hereto, or any relationship between them other than that
of Licensor or Licensee " while in S.A . G.E., the license agreement specifically provided
that neither party shall hold itself out to be or act as the agent , servant, or employee of
the other , and that the relationship between the two parties shall he only that of the
licensor and licensee.
n See, e.g., Checker Cab Company , 141 NLRB 583, 587.
v Grand Central Liquors ; Harry Pascal Food Co.; Central Bulk Foods ; Isao Hongo-John
Yamada Produce ; and Robert B. Sloane Produce.
'a Although Chairman McCulloch concurs in the finding that the Lessor and lessees are
joint employers , he would also find that the operations of these Employer -Petitioners
satisfy the Board ' s jurisdictional standard for retail enterprises on the theory expressed
in Trade Winds Motor Hotel & Restaurant , 140 NLRB 567. Here, as in Trade Winds,
the enterprises are held out to the public as one single , integrated enterprise , occupy a
common sites, serve essentially the same class of customers , and supplement each other.
Due to the great amount of business the Market does ( approximately $6 million annually),
the impact exerted upon commerce by a labor dispute involving one of the lessees in the
Market would be much greater than that exerted upon commerce by a labor dispute at a
separately located retail business.
GRAND CENTRAL LIQUORS, ETC. 299
2. Retail Clerks Union, Local 770, affiliated with the Retail Clerks.
International Association, AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. The Employer-Petitioners seek elections in separate units of
their employees. The Union contends that it has never demanded the
right to represent any of the employees of the Employer-Petitioners,
that it has also specifically disclaimed any interest in representing
such employees, and that, therefore, no questions concerning repre-
sentation exist.
Some of the lessees in the Market have in the past signed collective-
bargaining agreements with the Union and with other unions. The
Union has never represented all employees in the Market, and the
number of lessees with whom it has had collective-bargaining agree-
ments has varied from time to time. On March 31, 1964, a collective-
bargaining agreement between the Union and various lessees in the
Market expired. From March 1964 to January 1965, the Union was
successful in getting some of the lessees to sign new collective-
bargaining agreements. Other lessees, however, refused to sign new
agreements. In mid-January, the Union began to picket both en-
trances to the Market with signs that stated :
Please Do Not Patronize Except For Those Employers Who Dis-
play The Union Store Card At Register. All Other Employers
In The Grand Central Market Have Refused To Negotiate A New
Collective Bargaining Agreement Affecting Their Employees.
Your Cooperation Is Appreciated. Retail Clerks' Union, Local
770, AFIr-CIO.
At the same time or about February 1, the Union used the following
sign :
Grand Central Market Employer Unfair to the Retail Clerks.
Except Meat Departments 14 and the following Employers :
B-6 Hiron Cebrario
D-8 Yoshio Tamaka
3-Crown G-14
Richard Vogel
The names of 11 other lessees of the Market were added to the sign
after they had entered into collective-bargaining agreements with the,
Union.
14 Apparently the employees of the meat department lessees are represented by the Meat
Cutters Union.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In conjunction with the latter picket sign, the Union also passed
out leaflets which stated :
DEAR FRIENDS :
PLEASE REMEMBER TO SHOP WHERE
YOU SEE THE UNION STORE CARD
ON DISPLAY.
WE ARE HAPPY TO REPORT THAT A
NUMBER OF THE EMPLOYERS OF
GRAND CENTRAL HAVE NOW AGREED
TO THE FOOD INDUSTRY AGREEMENT-
SO WE'RE BACK ON THE JOB.
LOOK FOR US IN THE DEPARTMENTS
AND STALLS DISPLAYING THE UNION
STORE CARD.
THANK YOU FOR YOUR PATRONAGE.
RETAIL CLERKS UNION, LOCAL 770.
In mid-February 1965, apparently after the Employer-Petitioners
had filed the present representation petitions, the Union began using a
different sign reading as follows :
PLEASE
PATRONIZE
Local 770
(Retail Clerks' Seal)
As of the date of the hearing, the Union continued to picket the
Market entrances with the last sign.
During the picketing from January to mid-February, a number of
employees of various employers in the market walked out and some of
them walked the picket line. As soon as their employers signed the
contract, the employees returned to work and their employers' names
were added to the picket signs as having signed a contract with the
Union.
Some of the employees of the Employer-Petitioners walked out
during this period of time, and some of them walked the picket line.
Also, the owner of Employer-Petitioner Harry Pascal Food Co."
heard a union organizer tell one of his employees (who walked out
later) that "it is better for you to walk out right now" and that the
union organizer told a second employee that "you walk out, otherwise
you will be sorry." Further, approximately 3 months before the hear-
ing, the Union expressly requested recognition of Employer=
Petitioners Harry Pascal Food Co. and Central Bulk Foods.
At no time during the picketing did the Union, by its pocket signs
or handouts, advise the public that it was picketing only for publicity
a< It appears that Harry Pascal Food Co. was the only Employer -Petitioner which had
entered into the contract with the Union which expired on March 31, 1964.
GRAND CENTRAL LIQUORS, ETC. 301'
purposes or that it was not seeking immediate recognition of the lessees
in the Market who had not signed collective-bargaining agreements.
Although the Union now claims that it was picketing only for pub-
licity purposes and disclaims any interest in representing the employ-
ees of the Employer-Petitioners, it did not so advise them until date
of the hearing which, of course, was after the Employer-Petitioners
had filed these representations petitions.
Section 9 (c) (1) (B) of the Act provides in substance that the Board
shall entertain an election petition filed by an employer only when the
employer is presented with a claim for statutory recognition. How-
ever, the Board has long held that a union may properly withdraw its
claim to representation at the hearing on the employer's petition and
thereby foreclose a determination that a question concerning repre-
sentation exists, provided the union's disclaimer is clear, unequivocal,
and made in good faith, and the union's conduct is not otherwise incon-
sistent with its disclaimer to representation. Therefore the question
to be decided in each case is whether the Union has genuinely dis-
claimed or whether its alleged disclaimer is simply sham and for that
reason not to be given effective force.16
In the instant cases, the picketing at the outset was clearly aimed at
all lessees who had not signed collective-bargaining contracts with the
Union; was revised during its progress to exempt lessees only after
they had signed contracts; was attended by recognitional demands
upon two of the eight Employer-Petitioners and by inducements to
strike directed at the employees of at least one of the Employer-
Petitioners; and, although the picketing sign was revised again after
the RM petitions were filed, it was done without indicating an abandon-
ment of its prior recognitional claims made upon two of the Employer-
Petitioners. Further, the Union never clearly advised the public by
its handbills that it was picketing for publicity purposes only or that
it was not seeking immediate recognition from the Employer-
Petitioners, and it never so advised any of the Employer-Petitioners
until the date of the hearing. In view of the fact that the picketing at
its inception clearly was aimed at all lessees in the Market and the fact
that the Union presented two of the Employer-Petitioners with a
demand for immediate recognition, we attach no special significance
to the fact that the Union had not yet explicitly presented the other
six Employer-Petitioners with such a demand. In all the circum-
stances of these case, it is clear that the Union was demanding immedi-
ate recognition of all of the Employer-Petitioners.
Thus, based on the foregoing and on the basis of the record as a
whole, we are unable to conclude that the Union's disclaimers pre-
16 Queen's Table, Inc., d/b/a Rochelle's Restaurant, 152 NLRB 1401.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented at the hearing and in its brief were made in good faith. Rather,
we find that the Union's entire course of conduct was inconsistent with
its expressed disclaimers."
Accordingly, we find that questions affecting commerce exist con-
cerning the representation of certain employees of the Employer-
Petitioners within the meaning of Section 8(c) (1) and Section 2(6)
and (7) of the Act.
4. The Employer-Petitioners request elections in separate units of
their respective employees employed in the Market.18 The Union takes
no position on the scope of the appropriate units. In view of the posi-
tion of the parties, the history of bargaining in separate units in the
Market, and the fact that no claim is made that only an overall unit
is appropriate, we find the requested units to be appropriate and shall
grant the Employer-Petitioners' requests.
We find, therefore, that the employees of each Employer-Petitioner
employed at the Grand Central Public Market in Los Angeles, Cali-
fornia, excluding professional employees, guards, and supervisors as
defined in the Act, constitute separate units appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Elections omitted from publication.]
17 Roehelle's Restaurant, supra; Kenneth Wong, et al . d/b/a Capitol Market No 1, 145
NLRB 1430. Martin's Complete Home Furns8hcngs , 145 NLRB 604, Andes Candies, Inc.,
133 NLRB 758; Miratti's Inc., 132 NLRB 699, in which the Board accepted unions'
disclaimers , are distinguishable on their facts . In Martino's almost 2 years had elapsed
between the union's last demand for recognition and the date of the hearing ; here, on the
other hand , the Union's last demand for recognition was not more than 3 months prior
to the hearing ; moreover, in Martin's, unlike here , the union continually disclaimed a
present recognitional objective in its leaflets to the public . In Andes Candies, unlike
here, the employer had never been presented with a claim to recognize the union. And
in Miratti's, also unlike here, the union , prior to the commencement of the picketing and
before the hearing took place, informed the employer that it was not seeking to represent
its employees . See Capitol Market No . 1, supra, 1432, footnote 5.
18 At the hearing, Anco Central Corporation amended its requested unit to include "all
employees of the Employer at Grand Central Market and at its Hill Street and Broadway
stores." We find this amendment to be without merit and deny it.
The Standard Oil Company (an Ohio Corporation) and The Inde-
pendent Oil Workers Association Local #1. Case No. 9-CA-
3393. October 25,1965
DECISION AND ORDER
On August 2,1965, Trial Examiner Stanley Gilbert issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in certain unfair labor practices and recommending that
155 NLRB No. 38.