Pariseau's, Inc., et al.

National Labor Relations Board - Board Decisions

Jul 27, 1950

90 N.L.R.B. 1458 (N.L.R.B. 1950)

In the Matter of PARISEAU'S, INCORPORATED, ET AL.,1 EMPLOYERS and
AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, PETITIONER
Case No. 1-RC-1227.-Decided July 27,1950
DECISION, ORDER, 'AND DIRECTION OF ELECTIONS
Upon a petition duly filed, a hearing was held before Robert E.
Greene, 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 2
Upon the entire record in this case, the Board finds :
1. The business of the Employers :
The Employers (except Pariseau's). are engaged in the retail sale
of women's and children's apparel and the conduct of a beauty salon
in a women's specialty store in Manchester, New Hampshire. During
the year 1948, total sales for the entire store amounted to over $742,000,
all of which constituted local sales.
. Pariseau's, a New Hampshire corporation, operates a store. building
in which all the floor space, which consists of one floor and a basement,
is leased to the other Employers for the conduct of their selling and
'service departments, and offices used in conjunction therewith. Pari-
seau's furnishes the heat, light, maintenance, and local telephone
service to all the tenants in return for rentals based on a fixed per-
centage of sales of the lessees.. In addition, it supplies the tenants a
billing and cashiering service for which it charges 21/2 percent of the
amount billed. During 1948 Pariseau's received as income from
rentals approximately $125,000.
Wilbar's Inc., a Massachusetts corporation, is engaged in the retail
sale of women's shoes. It operates 40 sales outlets located in New
Hampshire and other States. All its purchasing is done by its execu-
tive office in Boston, Massachusetts. During 1948 gross sales of this
' In addition to Pariseau's, Incorporated , hereinafter referred to as Pariseau 's, the fol-
lowing Employers are involved in this proceeding : Wilbar ' s, Inc . ; Marcelle, Inc . ; Desmonde
Shops, Inc. ; Hylda, Inc. ; Youth Centre, Inc. ; and Stephen Squillace.
At the hearing, Pariseau ' s objected to the action of the hearing officer in permitting
,he Petitioner to amend its petition to include office clerical employees , claiming "surprise"
and moving for a continuance on that ground . The motion was denied by the hearing
officer. In its brief , Pariseau 's contends that these rulings of the hearing officer deprived
it of a "fair hearing." In view of our decision , infra, dismissing the petition with respect
to Pariseau 's, we find it unnecessary to pass upon the propriety of the rulings In question.
90 NLRB No. 190.
1458
PARISEA J'S, . INCORPORATED, ET AL. 1459
Employer exceeded $1,000,000, of which more than 50 percent repre-
sented the sale of products received from outside the State of Massa-
chusetts. In the same period, sales of its department in Pariseau's,
all made locally, amounted to over $25,000.
Marcelle, Inc., a Massachusetts corporation, with its executive office
in Boston, Massachusetts, sells ladies' millinery. It operates 10 shops
in Massachusetts, Connecticut, New Hampshire, and. Rhode Island.
Its gross annual sales amount to over $100,000, of which more than
50 percent represents the sale of products received from suppliers in
New-York City. The total annual,sales for its leased department at
Pariseau's amount to more than $30,000, all of which were local.
Desinonde Shops; Inc., a New York corporation, is engaged in the
retail sales of women's ready-to-wear garments, in New Hampshire
and other States. All its purchasing is 'done through its executive
office in New York City. Its gross income for the year 1948 amounted
to over $500,000, of which approximately $300,000 represented income
from the outlet at Pariseau's. All its sales were made locally.
Hylda, Inc., a New Hampshire corporation, has its only place of
business at Pariseau's, where it is engaged in the retail selling of
ladies' sportswear and accessories. The major portion of its mer-
chandise is received from outside the State of New Hampshire. Dur-
ing 1948, its total income amounted to over $300,000, all of which
constituted local sales.
Youth, Centre, Inc., a New Hampshire corporation, operates as its
sole place of business a retail outlet in Pariseau's for the sale of
children's and infants' wear. The major portion of its merchandise
is received from points outside the State. For the year 1948 its gross
sales totalled approximately $75,000, all of which were made locally.
Stephen Squillace is a sole proprietorship operating beauty salons in
Manchester and Concord, New Hampshire. This Employer annually
purchases beauty preparations worth about $1,500, all of which are
purchased from distributors within the State, but manufactured out-
side the State. His gross annual income amounts to about $17,000,
of which approximately $12,000 is received from the shop in Pariseau's.
The record shows that Pariseau's is held out to the general public
as a single store with a variety of departments specializing in women's
and children's apparel. The lessees are all situated in the same build-
ing, occupying adjacent areas of floor space. All lessees use the
billing service supplied by Pariseau's and are charged a percentage
of the amount billed to cover the cost of the service. It ' is evident
that all the Employers foster the impression that they operate as a
single store, for the only name which appears on. parcel bags and
wrapping material used for purchases bears the printed name
,1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•"Pariseau's." Whenever a dispute arises between a customer and one
of- the lessees as to merchandise purchased, an official of Pariseau's,
in accordance with the terms of the leases, is authorized to make a
final settlement. All advertising in the local newspaper is inserted
11uhder the name of Pariseau's. From the foregoing, it is apparent that
.the name "Pariseau's" is used to identify; in the mind of the customer,
.this ,particular. store as a single integrated enterprise. Some of the
-individual Employers which lease departments in the store are units
of interstate chain stores and are engaged in commerce within the
meaning of the, Act. 3 On the basis of the foregoing, we find that
Pariseau's and its lessees are engaged in operating the store as a unit,
the totality of whose business affects commerce within the meaning of
the Act .4
2. The P,titioner is a labor organization claiming to represent em-
ployees of the Employers. . .
3. A question affecting commerce exists concerning the representa-
tion of, employees of Employers Marcelle, Inc., Hylda, Inc., and
Desmo,nde Shops, Inc., within the meaning of Section 9 (c) (1) and
Section 2 (6) and (7) of the Act.
However, with respect to Pariseau's, Youth Centre, Inc., Wilbar's,
Ine., and Stephen Squillace, the Petitioner has made no showing of
interest among the employees of these Employers. We find, therefore,
that no question affecting commerce exists concerning the representa-
tion of the employees of these Employers, and shall dismiss so much
of -the petition as relates to them,.'
4. The appropriate units :
The Petitioner seeks a single unit embracing all sales and office
clerical workers employed within Pariseau's retail store, including
the employees in the leased departments, but excluding executives,
-guards, professional employees, and supervisors. In the alternative,
the Petitioner would establish separate units of the employees in
each leased department and of Pariseau's itself. Pariseau's and
the various lessees take the position that only separate department
units are appropriate.
The retail store involved herein is operated under the name of
Pariseau's and, as already mentioned, all the selling space is leased
by that concern to various specialty companies at rentals based on a
percentage of each lessee's sales. The lease arrangements, while vary-
a Johnson Optical Company , et at, 87 NLRB 539 ; Childs Company, 88 NLRB 720.
4 See Parks-Belk Company of Elizabethton , 77 NLRB 429. As noted in paragraph- num-
bered 4, infra, we have directed that separate elections be held among employees of each
of the individual lessees. However , as the Board has previously said , "The standards
used to decide what unit is appropriate are not necessarily those considered in determin-
ing whether or not to assert jurisdiction ." Tanner-Brice Company, 82 NLRB 477.
5 Kindy Optical Company, 85 NLRB 940.
PARISEAU'S, :ING'ORPORAT'ED, ET AL. - 146L
Ing as to durations contain essentially the same provisions for: each
lessee. Under these provisions it appears, inter alia, that, each;
lessee hires his own manager who, in general, is responsible for the
operation of his department and the hiring and discharge of em-,
ployees.7 Wage rates are fixed by each department manager, who
pays such wages directly to the employees in his department. Each.
lessee reports the wages of the employees in its department for the
purpose of social security and withholding tax records. . Although
the hours of business for the store are determined by the lessor, each
lessee fixes the hours and other conditions of employment of the
individual employees concerned.
..
Under these circumstances, we are of the opinion, contrary to the
primary contention of the Petitioner, that each lessee constitutes the
"employer" of the employees in its department, and in the absence of
any history of bargaining on a joint basis, only separate units of the,
employees of each leased department and of Pariseau's itself are appro-
priate."
There remains for consideration the question as to whether the non-
selling employees should be included with sales personnel in the units
found appropriate. The record shows that both categories of em-
ployees receive comparable wages and are subject to similar conditions
of employment. Furthermore, no union seeks to represent the non-
selling employees on a separate basis. We shall, therefore, in accord-
ance with our usual practice, include the nonselling employees in the
units .9
We find that all sales and office clerical employees of Desmonde
Shops, Inc., Hylda, Inc., and Marcelle, Inc., excluding executives,
guards, professional employees, and supervisors as defined in the Act,
constitute separate units appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
5. The determination of representatives :
The Petitioner requested that only those part-time employees work-
ing more than 20 hours per week be permitted to participate in any
election directed herein. The Employers took no position on this
question. The record shows that such a limitation would exclude sev-
eral part-time employees who regularly work about 10-12 hours per
° In the assumption of the leases by Desmonde Shops, Inc ., and Hylda , Inc., both companies
agreed to take over the employees currently working , but were not restricted in their right
subsequently to discharge these employees or to hire new employees of their own selection.
° while the lessor has the right to request the discharge of any personnel whose reputa-
tion or character is deemed detrimental to the best interests of the store , this'right has
hetn° eatereised inly once. 1
°.I. M. High Company, 78 NLRB 876: B lock and Kulil Department Stores, 83 NLRB 418;
Darling 'Utah• Corporation, 85 NLRB 614; Maas -Brothers , Inc., 88 NLRB 129. - Cf. The
Robinson -Sehwenn Store, 83 NLRB 271. %
' The Robinson-Schwenn Store , supra; Spiegel Fashion Shops , 85 NLRB 437.
1462 DECISIONS_ OF NATIONAL LABOR RELATIONS BOARD
week and who have the same interests and working conditions as the
other employees in the units. Accordingly, in conformity with our
customary practice in such cases, we shall permit all regular part-time
employees to vote.10
ORDER
IT IS HEREBY ORDERED that the instant petition, insofar as it relates
to Pariseau's, Incorporated, Youth Centre, Inc., Wilbar's, Inc., and
Stephen Squillace, be, and it hereby is dismissed.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the pur.
poses of collective bargaining with Marcelle, Inc., Hylda, Inc., and
Desmonde Shops, Inc., elections by secret ballot shall be conducted as,
early as possible, but not later than' 30 days from the date of this Direc-
tion, under the direction and supervision of the Regional Director
for the Region in which this case was heard, and subject to . Sections.
203.61 and 203.62 of National Labor Relations Board Rules and Regu-
lations, among the employees in the units found appropriate in- para-
graph numbered 4, above, who were employed during the payroll pe-
riod immediately preceding the 'date of this 'Direction of • Elections,
including employees who '-did not work during said payroll period be-
cause they were ill or on vacation or temporarily laid off, butexcluding
those employees, who have since quit or been discharged for cause and-
have not been rehired or reinstated prior to the date of the elections,
and also excluding employees oh^ strike who are not . entitled to rein-
statement, to determine whether or not' they desire to be represented,
for purposes of collective bargaining,. by Amalgamated Clothing
Workers of America, CIO.
MEMBERS HOUSTON and MpRV,ocK,, dissenting in part :
We. disagree with our, colleagues', finding that the lessor-in this case
and its lessees constitute a: single enterprise for the purpose of deter-
mining jurisdiction, and, that, accordingly, the Board should assert
jurisdiction over all. .
As set forth in the majority opinion, Pariseau's is the lessor of the
building in which the lessees rent space for the conduct of their busi-
ness . As .lessor, Pariseau's supplies the necessary utilities and local
telephone service in return fora rental based on a percentage of each
lessee 's total sales. The real relation between Pariseau's and its lessees
is that of landlord and tenant. To assert juridiction over Pariseau's,
lop. W. Woolworth Company, 83 NLRB 439; J. C. Penney Company, 86 NLRB 920;
Baker's Shoe Store, 86 NLRB 1305.
PARISEAU'S, INCORPORATED, ET AL. 1463
the lessor, in these circumstances is contrary to recent Board deei-
sions.11
The leases are executed on an individual basis, and vary as to dura-
tion and conditions of occupancy. Each of the six lessees is engaged
in a_•:distiinctly separate business. Four of them sell, respectively,
women's shoes, millinery, clothing, and sportswear, the fifth sells chil-
dren's apparel, and the sixth operates a beauty salon. Three of the
lessees conduct wholly intrastate businesses.
Each lessee, independently of the lessor, determines its personnel
and merchandising policies, prepares its advertising programs, and
arranges its stock for display and sales purposes. Although some of
the bags and wrapping paper used is imprinted with the name "Pari-
seau's" the lessees frequently use wrapping paper and bags which have.
no name printed on them and which vary in appearance from depart-
ment to department. The lessees also use sales slips on which no store
name apears. There is no common stockroom or delivery service used
by the lessees. Moreover, although our colleagues find that the lessor
and the lessees are held out to the public as a single enterprise, there is
uncontradicted testimony in the record that it is common knowledge
in Manchester that Pariseau's is merely the lessor, and that the various
departments are individually owned and operated. Nor are we con-
vinced that, even where several employers do appear to the public as
one enterprise, we should therefore determine jurisdiction as though
they were one enterprise. It has been our understanding that the
actual effect of employers' operations on commerce is the real test of
jurisdiction. We are not aware in what way a public impression as to
whether a mixed aggregation of intrastate and interstate firms housed
in one building constitute a single or separate enterprise alters the
actual effect on commerce of the several operations.
We find it indeed anomalous, that after the majority has concluded
that the Board is confronted with a department store which is a "single
integrated enterprise"-Pariseau's-our colleagues then establish
separate -units for each employer, dismissing the petition as to
Pariseau's and 'two others for lack of representational interest. The
fact that the majority finds it necessary to set up separate units for
each employer instead of a single unit, is compelling evidence that
there does not exist that close degree of integration of operations or
labor relations between the intrastate and the multi-State firms which
would justify treating them together for jurisdictional purposes.
We are of the opinion that the lessor and each lessee in this case
constitutes a separate employer, not a single joint enterprise, and,
11 Corrigan Properties,. Inc., 87 NLRB 252; Central Tower, Inc., 84 NLRB 357
1464. DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
therefore, that jurisdiction should be asserted only over those em-
ployers whose business individually affects commerce in a substantial
sense. This was the view of the Board in S. L. Bird and Sons, Inc.,
89 NLRB No. 158, in which we refused to assert jurisdiction over the
owner of a men's, boys', and women's wearing apparel store despite the
fact that the women's and shoe departments were leased out, as in the
instant case, to multistate chains over which we would clearly assert,
jurisdiction. Accordingly, following well-established precedents we
would assert jurisdiction only over Wilbar's, Inc., Marcelle, Inc., and
Desmonde Shops, Inc., each of whom are foreign corporations oper-
ating retail chain stores on a multistate basis. We would not assert
jurisdiction over the other lessees, Hylda, Inc., Youth Centre, Inc., and
Stephen Squillace, which are exclusively local retail or service enter-
prises, nor over Pariseau's, Inc., which operates the building.