Spruce Up Corp.

National Labor Relations Board - Board Decisions

Mar 18, 1970

181 N.L.R.B. 721 (N.L.R.B. 1970)

SPRUCE UP CORP. 721
Spruce Up Corporation and Journeymen Barbers,
Hairdressers , Cosmetologists and Proprietors'
International Union of America, AFL-CIO, Local
844. Case 11-CA-3979
March 18, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Upon a charge filed by Journeymen Barbers,
Hairdressers, Cosmetologists and Proprietors'
International Union of America, AFL-CIO, Local
844, herein called the Union, the General Counsel of
the National Labor Relations Board, by the
Regional Director for Region 11, issued a
complaint, dated September 29, 1969, against
Spruce Up Corporation, herein called Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices within the
meaning of Sections 8(a)(5) and (1), and 2(6) and
(7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before a Trial Examiner were duly
served upon Respondent.
With respect to the unfair labor practices, the
complaint alleges that, on August 4, 1969, the
Regional Director for Region 11 certified the Union
as the exclusive collective-bargaining representative
of Respondent's employees in the unit found
appropriate,' and that, on or about August 19, 1969,
and at all times thereafter, Respondent has refused,
and continues to refuse, to bargain with the Union
as such exclusive bargaining representative, although
the Union has requested and is requesting it to do
so On October 6, 1969, Respondent filed its answer
to the complaint denying the commission of the
unfair labor practices alleged and asserting that the
election and certification are invalid.'
On October 30, 1969, the General Counsel filed
with the Board a Motion for Summary Judgment
and a supporting memorandum, asserting in effect
that there are no issues of fact or law in dispute
since all matters raised in the answer were
considered in the prior representation case; that the
facts admitted or affirmatively pleaded suffice to
establish the violations alleged in the complaint; and
that therefore the Board should grant his Motion for
Summary Judgment and issue a Decision and Order
finding the violations alleged and remedying the
unfair labor practices so found. Subsequently, on
'Case II -RC-2924
On October 9, 1969, Respondent filed a Motion for Consolidation of
the subject case with Case 11-CA-3949 (1-3) The General Counsel filed a
Memorandum in Opposition thereto Trial Examiner Schneider ordered
that Respondent ' s Motion be held in abeyance pending disposition of the
subject case , in which the General Counsel stated he would file a Motion
for Summary Judgment For the reasons stated infra , the Motion is hereby
denied
November 6, 1969, the Board issued an Order
Transferring Proceeding to the Board and a Notice
to Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted.
Respondent thereafter filed a Motion to Strike
Motion for Summary Judgment. The General
Counsel filed a Motion in Opposition to
Respondent's motion.
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.
Ruling on the Motion for Summary Judgment
The record before us establishes that on May 2,
1969, the Union filed a petition in Case
11-RC-2924, seeking to represent all employees
employed in the Employer's barber shops at Fort
Bragg, North Carolina, excluding shoe shine
employees, office clerical employees, guards and
supervisors as defined in the Act. After a hearing,
the Regional Director for Region 11 issued a
Decision and Direction of Election on June 27,
1969, in which he found appropriate the following
unit for bargaining-
All employees performing barbering services,
including shop managers and co-managers, in the
Employer's barber shops on the United States
military base of Fort Bragg, North Carolina,
excluding office clerical employees, shoeshine
employees, guards and supervisors as defined in
the Act.
The Employer filed with the Board a Request for
Review of the Regional Director's findings that its
operations satisfied the Board's jurisdictional
standards and that the managers and co-managers
of its barbershops were employees and not
supervisors. On July 24, 1969, the Board denied the
Request as raising no substanital issues warranting
review.
On July 25, 1969, pursuant to the Direction, an
election was held in which 47 votes were cast for the
Union and 13 against. There were 3 challenged
ballots. The challenges being insufficient in number
to affect the results and no objections having been
filed, the Regional Director, on August 4, 1969,
certified the Union as bargaining representative of
employees in the appropriate unit.
The complaint alleges that Respondent refused,
and continues to refuse, to bargain collectively with
the Union in that: (1) on or about August 19, 1969,
it refused to meet with the Union; (2) on or about
August 27, 1969, it unilaterally changed employee
commission percentages; and (3) on or about
September 2, 1969, it unilaterally changed salaries
of employees in the unit. Respondent's answer
denied generally these allegations and contended
affirmatively that the shop managers and
181 NLRB No. 108
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comanagers are supervisors. It also asserted in its
answer to the complaint that the duties performed
by the disputed employees had changed since the
hearing and therefore alteration of their
commissions and/or salaries was lawful. Thereafter
the General Counsel filed his Motion for Summary
Judgment, asserting in view of admissions contained
in Respondent's answer and in correspondence with
the Union annexed as an exhibit to the moving
papers, that there were no triable issues.
Respondent contends in its motion to strike that
the complaint alleges violations other than failure to
honor the certification, allegations which
Respondent denies, and therefore a hearing must be
directed.
We deny Respondent's Motion to Strike the
General Counsel's Motion for Summary Judgment
but will treat it as an answer to the Notice to Show
Cause. Respondent's answer to the Order to Show
Cause, read in conjunction with its answer to the
complaint, clearly shows that Respondent does not
deny specifically the first complaint allegation of
unfair labor practice. Apart from the general denial
in its answer, Respondent does not deny that it has
refused to meet with the Union. Exhibit J, attached
to the Motion for Summary Judgment, proves
Respondent's refusal to recognize the Union. It is a
letter, dated August 19, 1969, from Respondent's
attorney to the Union refusing the Union's request
for negotiations on the ground that the Union's
certification was invalid.3 Respondent's answer to
the Notice to Show Cause does not refute this.
Respondent argues, however, that it is entitled to
a hearing in an adversary proceeding on the issue
whether the shop managers and comanagers are
supervisors. This was the unit issue decided
adversely to it by the Regional Director in his
Decision and Direction of Election and by the
Board's determination denying Respondent's
Request for Review. Respondent asserts in support
of its argument that the Regional Director made
credibility resolutions in deciding that those working
in the disputed classification were employees and
therefore it is entitled to relitigate the issue. We
have again examined the Decision and Direction of
Election in Case 11-RC-2924 and made an
independent review of the record of the hearing in
the representation case and conclude that the
Regional Director's findings were correct. The unit
issue was fully litigated in the preelection
proceedings.
Respondent contends that another case is pending
that "places in issue the supervisory status of three
(3) shop managers. Summary Judgment in the
instant case, which must be prefaced upon a Board
conclusion that shop managers and comanagers are
supervisors rather than employees, will deprive
'More specifically , the August 19, 1969 , letter from Respondent read,
"The basis for this action by the Company [refusing to commence
negotiations ] is fully set forth in its Petition for Review of the Board's
Decision and Direction of Election "
Respondent of fair and impartial review when Case
11-CA-3949 ( 1-3) reaches it." The complaint in the
cited case alleges violations of Section 8(a)(1) by
certain conduct of Respondent ' s agents, and it
alleges Section 8(a)(3) violations in the discharge of
three employees . It does not allege any violation by
Respondent based on the conduct of any manager or
comanager . Accordingly , there can be no possible
inconsistency between the holding in this case that
the managers and comanagers are employees
properly included in the unit for which the Union
has been certified and the complaint allegation in
Case 11-CA-3949 ( 1-3) that Respondent has
committed unfair labor practices by discharging and
refusing to reinstate three named employees.
Respondent ' s answer denied generally the
allegations in the complaint that it unilaterally
changed commission percentages and salaries. It
also raised certain affirmative defenses which it
argues should be resolved only after a hearing. The
record before us is insufficient to resolve the factual
and legal issues presented . Ordinarily, in such a
case, we would deny Summary Judgment and
remand for a hearing . However , as the alleged
unlawful unilateral action is unaccompanied by
special circumstances that would justify further
proceedings , we have decided , in the interest of
sound administrative practice, to dismiss the
allegations based upon such unilateral changes. In
doing so we have also relied upon the fact that
compliance with our bargaining order herein will
preclude Respondent from engaging in further
unilateral action . Accordingly , it does not appear
that further proceedings will effectuate statutory'
policies and therefore we shall dismiss the complaint
insofar as it alleges 8(a)(5) violations based upon
unilateral changes in commission rates and salaries.'
As all material facts respecting Respondent's
refusal to meet and bargain with the Union have
been previously decided by the Board, are admitted
by Respondent ' s answer to the complaint, or stand
admitted by the failure of Respondent to controvert
the averments of the General Counsel ' s motion,
there are no matters requiring a hearing before a
Trial Examiner . Accordingly, the General Counsel's
Motion for Summary Judgment is granted to this
extent, but denied insofar as based upon alleged
unilateral change in employment terms. On the basis
'It is possible that Respondent ' s pleading in answer to the Order to
Show Cause intends the converse argument that a Board holding in the
subject case - that shop managers and comanagers are employees - will
deprive it of the right to litigate the same issue in Case I I-CA-3949 (1-3)
The holding in this case that Respondent has violated Section 8 (a)(5) by
refusing to bargain with the Union certified as the collective -bargaining
representative for a unit of employees that includes managers and
co-managers does not conclusively resolve the issue whether managers and
co-managers are supervisors for the purpose of determining alleged
violations of Section 8 (a)(3) and ( I) in the other case Amalgamated
Clothing Workers of America v N L R B JSagamore Shirt Company) 365
F 2d 898, 904-905 (C A D C ), Leonard Niederr,ter Company, Inc, 130
NLRB 113, fn 2 at 115
'See e g New Enterprise Stone and Lime Co. Inc, 176 NLRB No 71
SPRUCE UP CORP.
of the record before it, the Board makes the
following-
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
- Respondent is a Florida corporation engaged in
the operation of barber shops upon the military base
at Fort Bragg, North Carolina, and at other
military installations in three other States. This
proceeding involves the barber shops at'Fort Bragg,
North Carolina. Since March 1969, when
Respondent began operations at Fort Bragg, it has
had monthly gross receipts at its Fort Bragg barber
shops of approximately $60,000, with a projected
gross annual income in excess of $500,000.
Its purchase of linens, napkins, and other barber
supplies from jobbers within the State has a
projected annual value of $7,000. Many of the brand
products which it purchases are manufactured
outside the State of North Carolina.
Respondent's services at Fort Bragg are supplied
exclusively to military personnel at a special rate
and are essential to members of the Armed Forces.
Respondent's operations exert a substantial impact
on the national defense.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Journeymen Barbers, Hairdressers,
Cosmetologists and Proprietors ' International Union
of America , AFL-CIO, Local 844 , is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees constitute a unit
appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
All employees performing barbering services,
including shop managers and co-managers, in the
Employer's barber shops on the United States
military base of Fort Bragg, North Carolina,
excluding office clerical employees, shoeshine
employees, guards and supervisors as defined in
the Act.
2 The certification
723
On July 25, 1969, a majority of the employees of
Respondent in said unit , in a secret election
conducted under the supervision of the Regional
Director for Region 11, designated the Union as
their representative for the purpose of collective
bargaining with Respondent, and on August 4, 1969,
the Regional Director certified the Union as the
collective-bargaining representative of the employees
in said unit and the Union continues to be such
representative.
B. The Request to Bargain and Respondent's
Refusal
On or about August 19, 1969, and at all times
thereafter, Respondent has refused, and continues to
refuse, to bargain collectively with the Union as the
exclusive collective -bargaining representative of all
employees in said unit, in that:
On or about August 19, 1969, Respondent refused
to meet with the Union for the purpose of collective
bargaining.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of Respondent in
the appropriate unit described above in the Board's
certification, and that the Union at all times since
August 4, 1969, has been and now is the exclusive
bargaining representative of all the employees in the
aforesaid unit within the meaning of Section 9(a) of
the Act. We further find that Respondent has, since
August 19, 1969, refused to bargain collectively with
the Union as the exclusive bargaining representative
of its employees in the appropriate unit, and that,
by such refusal , Respondent has engaged in, and is
engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of Respondent sgt forth in section III,
above, occurring in connection with its operations as
described in section I, above , have a close, intimate,
and substantial relation 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.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom, and, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit and , if an understanding is reached , embody
such understanding in a signed agreement.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to insure that the employees in the
appropriate unit will be accorded the services of
their selected bargaining agent for the period
provided by law, we shall construe the initial period
of certification as beginning on the date Respondent
commences to bargain in good faith with the Union
as the recognized bargaining representative in the
appropriate unit. See Mar-Jac Poultry Company,
Inc., 136 NLRB 785; Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d
600 (C.A. 5), cert. denied 379 U.S. 817; Burnett
Construction Company, 149 NLRB 1421, enfd. 350
F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
1. Spruce-Up Corporation, Miami, Florida and
Fort Bragg, North Carolina, is an employer engaged
in commerce within the meaning of, Section 2(6) and
(7) of the Act.
2. Journeymen Barbers, Hairdressers,
Cosmetologists and Proprietors' International Union
of America, AFL-CIO, Local 844, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All employees performing barbering services,
including shop managers and comanagers, in the
Respondent's barber shops on the United States
military base of Fort Bragg, North Carolina,
excluding office clerical employees, shoeshine
employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since August 4, 1969, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
5. By refusing on or about August 19, 1969, and
at all times thereafter* to bargain collectively with
the above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforementioned refusal to bargain,
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and has
thereby engaged in, and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
7. The aforementioned unfair labor practices are
unfair labor practices 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
Relations Board hereby orders that Respondent,
Spruce- Up Corporation , Fort Bragg, North
Carolina , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment , with Journeymen
Barbers, Hairdressers , Cosmetologists and
Proprietors ' International Union of America,
AFL-CIO, Local 844 , as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All employees performing barbering services,
including shop managers and co-managers, in the
Respondent ' s barber shop on the United States
military base of Fort Bragg, North Carolina,
excluding office clerical employees, shoeshine
employees , guards and supervisors as defined in
the Act.
(b) In any like or related manner interfering, with,
restraining , or coercing employees in the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request , bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment , and, if an
understanding is reached , embody such
understanding in a signed agreement.
(b) Post at its business office and at its respective
barber shops at Fort Bragg , North Carolina , copies
of the attached notice marked "Append ix ." 6 Copies
of said notice , on forms provided by the Regional
Director for Region 11, shall, after being duly
signed by Respondent's representative , 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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify said Regional Director for Region 11,
in writing , within 10 days from the date of this
Decision and Order , of the steps taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint,
insofar as it alleges unfair labor practices not found
'In the event that this 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 Relations Board " shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
SPRUCE UP CORP.
herein be, and it hereby is, dismissed.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Journeymen , Barbers, Hairdressers , Cosmetologists and
Proprietors ' International Union of America,
AFL-CIO, Local 844, as the exclusive representative of
the employees in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive representative of
all our employees in the bargaining unit described
below with respect to rates of pay, wages , hours, and
other terms and conditions of employment, and if an
understanding is reached , embody such understanding
in a signed agreement . The bargaining unit is:
725
All employees performing barbering services,
including shop managers and co-managers at our
barber shops on the United States military base of
Fort Bragg, North Carolina, excluding office clerical
employees, shoeshine employees, guards and
supervisors as defined in the Act.
SPRUCE UP
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
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.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
1624 Wachovia Building, 301 North Main Street,
Winston-Salem, North Carolina 27101, Telephone
919-723-2100.