Strauss Stores Corp.

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketing by its members on the Redondo Beach project for the purposes of forcing or requiring Westinghouse to assign work heretofore performed by the Machinists to the Millwrights, and further, that the Respondents notify its members that Respondents have taken such action. On the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW (1) International Association of Machinists, and its Local Lodge No. 1235; Los Angeles Building and Construction Trades Council, A. F. L.; and Millwright and Machinery Erectors Local 1607 of the United Brotherhood of Carpenters and Joiners of America, A. F. L, are each labor organizations within the meaning of Section 2 (5) of the Act. (2) By inducing and encouraging employees of Stone and Webster, Engineer- ing Corporation, certain employees of Westinghouse Electric Corporation, and the employees of other contractors and subcontractors engaged in construction work on the Redondo Beach project, hereinabove more particularly referred to, with the object of forcing or requiring Westinghouse to assign particular work to employees in a particular organization, namely, Millwrights Local 1607, rather than to employees in another labor organization, namely, International Associa- tion of Machinists, Local Lodge 1225, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. (3) The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] STRAUSS STORES CORPORATION and MERCHANDISE DELIVERY DRIVERS AND EMPLOYEES, LOCAL 804, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL RETAIL AND WHOLESALE EMPLOYEES UNION, LOCAL 830 (INDEPEND- ENT), FORMERLY KNOWN AS UNITED RETAIL AND WHOLESALE EMPLOYEES OF AMERICA, CIO, LOCAL 830, AND `65', THE WHOLESALE, RETAIL AND WAREHOUSE WORKERS' UNION OF NEW YORK AND NEW JERSEY and MERCHANDISE DELIVERY DRIVERS AND EMPLOYEES, LOCAL 804, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. Cases Was. 2-CA-793 and 2-CB-257. May 15,1951 Decision and Order On December 20, 1950, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the 94 NLRB No. 80. STRAUSS STORES 'CORPORATION 441 Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent Unions and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.' 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications and additions noted below. 1. In agreement with the Trial Examiner, we find, contrary to the 'Respondent Unions' contention, that the Respondent Company, by renewing the 1948 agreement containing an unauthorized union-shop provision, interfered with, restrained, and coerced employees in the exercise of their statutory rights in violation of Section 8 (a) (1) of the Act and lent support and assistance to the Respondent Local 830 in recruiting and maintaining its membership in violation of Section 8 (a) (2) of the Act.2 Additionally we find, as the General Counsel contends, that the renewal of the foregoing agreement also constituted a violation of Section 8 (a) (3).3 2. We also agree with the Trial Examiner that the Respondent Local 830 in renewing the 1948 unauthorized union-shop contract, joined the Respondent Company in creating discriminatory conditions of em- ployment and thereby violated Section 8 (b) (2) 4 As the complaint I At the request of the Respondent Unions, the parties' time to file exceptions was extended to January 29, 1951. On January 25, the General Counsel filed timely ex- ceptions with the Board. On January 29, the Respondent Unions filed their exceptions and requested an extension of time to file briefs , which was granted. The General Counsel served his exceptions and briefs on the Respondent Unions on February 1, attributing the delay in serving the exceptions to a mistaken belief that the second extension applied to the exceptions as well as to the briefs. The Respondent Unions argued that the General Counsel's exceptions should be rejected on the ground that they were not immediately served as required by Section 102 46 of Board Rules and Regulations. As the General Counsel filed his exceptions with the Board in time, and as it does not appear that the Unions were prejudiced by the incon- sequential delay in the service of the exceptions on them, we find no persuasive reason for refusing to consider the exceptions 2 The Respondent Company did not file any exceptions to these findings or to the Trial Examiner 's other 8 (a) (1) findings which we also adopt. 3 See, for example, New York State Employers Association, Inc, and Red Star Express etc., 93 NLRB 175. • In agreement with the Trial Examiner we find, contrary to the General Counsel's con- tention, that the Respondent "65" neither committed any unfair labor practices nor was otherwise responsible for the renewal of the 1948 contract . For this reason , and in view of the fact that "65" as Local 830's successor , omitted the unlawful union-security provi- sion from the contract which it executed with the Company on March 9, 1950 , we shall not direct a remedial order against "65," as the Trial Examiner did. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against Local 830 does not also allege this conduct to be in violation of Section 8 (b) (1) (A) we, like the Trial Examiner, shall not make such a finding. The Remedy Having found, among other things, that the Respondent Local 830 was an illegally assisted Union whose disability to function as the exclusive bargaining representative of the Respondent Com- pany's employees devolved upon its successor, "65," the Trial Ex- aminer recommended in substantial accordance with the principles of the Resnick and related cases,' that the Company be ordered to withdraw recognition from Local 830 and its successor "65" and, with certain qualifications, to cease giving effect to its agreement with "65," unless and until either organization has been certified by the Board. The Respondent Unions urge, in effect, that this remedy is not warranted by the facts of the case. We do not agree. In our opinion the recommended order is necessary and appropriate to dis- sipate the coercive effects of the Company's unlawful assistance s The Trial Examiner also recommended a broad cease and desist order against the Respondent Company because it executed the un- authorized union-security agreement mentioned above. We adopt this recommendation, but in doing so, we also rely on the Trial Exam- iner's other 8 (a) (1) findings. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby.orders that: 5 Julius Resnick, Inc., 86. NLRB 38; Salant f Salant, Incorporated, 87 NLRB 215, and other cases cited in the Intermediate Report We do-riot agree with Chairman Herzog that the remedy of the Resnick and Salant cases, supra, which requires withdrawal of recognition of the Union until certification and abrogation of the unlawful union-security agreement, is not necessary to rectify the unfair labor practice in question and that only deletion of the unlawful union-security clause is appropriate. Furthermore, we cannot accept his general strictures against the doctrine of these cases on the theory that they went "too far" and that "a lesser remedy should ordinarily suffice." As the Board pointed out in the Resnick case, the effect of the unfair labor practices in question is to coerce employees into becoming or remaining members of the assisted Union ; and, "It would not effectuate the purposes of [Section 8 (a) (2) and (1)] merely to order the eradication of the illegal provisions from the contract, and permit the [assisted union] to continue to enjoy a representative status which it has strengthened by virtue of these illegal provisions " A remedy limited to the deletion of the illegal clause, as the Chairman proposes, is not adequate to be "commensurate with the offense," because it does not deal with the problem of coerced membership stemming from the prior existence of the illegal clause Moreover, not only would the limited remedy be inadequate to purge fully the unfair labor practices, but its adoption would actually serve to encourage unions to use such illegal clauses to achieve the coercive effects which the Board recognizes flows from their mere presence, knowing that all they would have to lose if unfair labor practice charges were filed would be the loss of the provision. STRAUSS STORES CORPORATION 443 I. The Respondent, Strauss Stores Corporation, Maspeth, Long Island, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interrogating its employees concerning their union affiliation, activities, or sympathies, or those of other employees. (b) Encouraging its employees by promises and offers of financial assistance or ther benefits to form an independent union. (c) Recognizing Retail and Wholesale Employees Union, Local 830 (Independent), formerly known as United Retail and Whole- sale Employees of America, CIO, Local 830, its successor, 65, The Wholesale, Retail and Warehouse Workers' Union of New York and New Jersey, or any other successor, as the representative of its em- ployees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organization shall have been certified by the National Labor Relations Board. (d) Entering into, renewing, or giving effect to any agreement with Retail and Wholesale Employees Union, Local 830 (Inde- pendent), formerly known as United Retail and Wholesale Employees of America, CIO, Local 830, or with any other labor organization of its employees, which requires its employees to join or maintain mem- bership in such labor organization as a condition of employment, unless such agreement has been authorized, and only to the extent permitted, under the National Labor Relations Act. (e) Performing or giving effect to its contract of March 9, 1950, with 65, The Wholesale, Retail and Warehouse Workers' Union of New York and New Jersey, or to any modification, extension, sup- plement, or renewal thereof, or to any other contract, agreement, or understanding, entered into with the said labor organization relating to grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until the said labor organization shall have been certified by the National Labor Relations Board. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Merchandise Delivery Drivers and Employees, Local 804, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Retail and Whole- sale Employees Union, Local 830 (Independent), formerly known as United Retail and Wholesale Employees of America, CIO, Local 830, or any successor labor organization, including 65, The Whole- sale, Retail and Warehouse Workers' Union of New York and New Jersey, as the representative of the Respondent Company's employees for the purpose of dealing with the Respondent Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organi- zation shall be certified by the National Labor Relations Board. (b) Post at its warehouse in Maspeth, Long Island, New York, copies of the notice attached hereto as Appendix A.7 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent Company's repre- sentative, be posted by the Respondent Company immediately upon receipt thereof and maintained by it for sixty (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 Company to insure that the said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, as to what steps Respondent Company has taken to comply herewith. II. The Respondent, Retail and Wholesale Employees Union, Local 830 (Independent), formerly known as United Retail and Wholesale Employees of America, CIO, Local 830, New York, New York, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Entering into, renewing, or participating in the enforcement of any agreement or arrangement with the Respondent, Strauss Stores Corporation, its officers, agents, successors, or assigns, which requires the employees of the said Company to join or maintain membership in said Union or in any successor labor organization, as a condition of employment, unless such agreement has been authorized, and only to extent permitted, under the National Labor Relations Act. (b) In any like or related manner causing or attempting to cause the Respondent, Strauss Stores Corporation, its officers, agents, suc- 4 In the event this Order is enforced by decree of a United States Court of Appeals, these shall be inserted before the words "A Decision and Order" the words "A Decree of the United States Court of Appeals Enforcing." STRAUSS STORES CORPORATION 445 cessors, or, assigns, to discriminate against its employees in violation of Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business offices and meeting halls in New York, New York, copies of the notice attached hereto as Appendix B.8 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall , after being duly signed by the official repre- sentative of the Respondent Local 830 , be posted by the said Respond- ent immediately upon receipt thereof and maintained for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the said Respondent Local 830 to insure that the said notices are not altered , defaced, or covered by any other material. (b) Mail , to the Regional Director for the Second Region signed copies of the notice attached hereto as Appendix B, for posting, the Respondent Company willing, in the warehouse of the Respondent Company in Maspeth, Long Island, New York, in places where notices to employees are customarily posted. (c) Notify the said Regional Director for the Second Region in writing, within ten (10 ) days from the date of this Order, as to what steps the Respondent Local 830 has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent, 65, The Wholesale, Retail and Warehouse Workers' Union of New York and New Jersey, has engaged in any unfair labor practices , and insofar as it alleges that Retail and Wholesale Employees Union, Local 830 ( Independ- ent), formerly known as United Retail and Wholesale Employees of America, CIO, Local 830, has violated Section 8 (b) (1) (A) of the Act. CHAIRMAN IIERZOG, dissenting in part: I disagree with my colleagues in this case only with respect to the remedy they think appropriate for the violations of Section 8 (a) (2) and 8 (b) (2). I would not order withdrawal of all recognition from "65" or its predecessor Local 830. It appears to me that that all- encompassing remedy is not necessary in this, or in similar cases, to free the employees from the effect of the mere presence of an unlawful union-security clause in a contract. Here, indeed , the arguments for applying it are particularly weak, for the majority status of Local 830 was independently attained , and maintained, in the face of the coer- cive attempt of Respondent Company to undermine it, before the il- 8 See footnote 7. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legal clause was agreed upon by the parties. That clause could have had no effect upon the establishment of that majority. Although I originally joined in the Resnick and Salant decisions,9 I have concluded that they went much too far in the direction of re- quiring employers to put an end to all bargaining relations with an incumbent majority representative, where the only vice in those re- lations was the presence of a security clause which, although unen- forced, went beyond the statute. A lesser remedy should ordinarily suffice. In the interest of not disturbing existing relationships, except to the extent that they must be annulled because unlawful, I would not set the entire contract aside or order withdrawal of all recognition until certification. Instead, I would leave the employees, if they so chose, to the exercise of their right to file a decertification petition, or to seek other representation, under Section 9 (c) of the Act. I would, of course, order the parties to cease and desist immediately from giving effect to the illegal clause or any similar arrangement. To that extent the remedy is not only necessary to correct the violation of law, but is-unlike the drastic one endorsed by my colleagues-commensurate with the offense. MEMBER STYLES took no part, in the consideration of the above De- cision and Order. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union affiliation, activities, or sympathies, or those of other employees. WE WILL NOT encourage our employees by promises and offers of financial assistance or other benefits to form an independent union. WE WILL NOT enter into, renew, or give effect to any agreement WITH RETAIL AND WHOLESALE EMPLOYEES UNION, LOCAL 830 (IN- DEPENDENT), FORMERLY KNOWN AS UNITED RETAIL AND WHOLESALE EMPLOYEES OF AMERICA, CIO, LOCAL 830, or with any other labor organization of our employees, which requires our employees to join or maintain membership in such labor organization as a condition of employment, unless such agreement has been au- thorized, and only to the extent permitted, under the National Labor Relations Act. 9 Footnote 5, supra. STRAUSS STORES CORPORATION , 447 WE WILL NOT perform or give effect to our contract of March 9, 1950, with 65, THE WHOLESALE, RETAIL AND WAREHOUSE WORKERS' UNION OF NEW YORK AND NEW JERSEY, or to any modification ex- tension, supplement, or renewal, thereof, or to any other contract agreement, or understanding, entered into with the said labor or- ganization relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said organization shall have been certified by the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist MERCHANDISE DELIVERY DRIVERS AND EMPLOYEES , LOCAL 804, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Section 8 (a) (3)• of the National Labor Relations Act. WE WILL withdraw and withhold all recognition from RETAIL AND WHOLESALE EMPLOYEES UNION, LOCAL 830, (INDEPENDENT), formerly known as United Retail and Wholesale Employees of America, CIO, Local 830, or any successor labor organization, in- cluding 65, THE WHOLESALE AND WAREHOUSE WORKERS' UNION OF NEW YORK AND NEW JERSEY, as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until such labor organization shall have been certified by the National Labor Relations Board. STRAUSS STORES CORPORATION Employer. Dated--------------------- By -------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NOTICE TO ALL MEMBERS OF RETAIL AND' WHOLESALE EMPLOYEES UNION, LOCAL 830 (INDEPENDENT), FORMERLY KNOWN AS UNITED RETAIL AND WHOLESALE EMPLOYEES OF AMERICA, CIO, LOCAL 830 AND TO ALL EMPLOYEES OF STRAUSS STRES CORPORATION Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT enter into, renew , or participate in the enforcement of any agreement or arrangement with STRAUSS STORES CORPORA- TION, its officers, agents , successors, or assigns, which requires the employees of the said company to join or maintain membership in our union, or any successor labor organization , as a condition of 'employment, unless such agreement has been authorized, and only to the extent permitted , under the National Labor Relations Act. WE WILL NOT in any like or related manner cause or attempt to cause STRAUSS STORES CORPORATION , its officers , agents, succes- sors, or assigns, to discriminate against its employees in violation of Section 8 (a) (3) of the Act. RETAIL AND WHOLESALE EMPLOYEES UNION, LOCAL 830 ( INDEPENDENT), formerly known as United Retail and Wholesale Employees of America, CIO, Local 830. Labor Organization. Dated-------------------- By------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof and must not be altered , defaced, or covered by any other material. Intermediate Report Lloyd S. Greenidge, Esq., for the General Counsel.. Philip Davis, Esq., of New York, N. Y., for the Respondent Company. Neuberger, Shapiro, Rabinowitz , and Boudin, by Victor Rabinowitz, Esq., of New York, N Y., (Sameul A. Neuberger, Esq., of New York, N. Y., of counsel), for the Respondent Unions. Upon separate charges duly filed by Merchandise Delivery Drivers and Em- ployees, Local 804, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL, herein called Local 804, the General Counsel of the Nationhl Labor Relations Board,' by the Regional Director for the The General Counsel and his representative at the hearing are referred to herein as_ the General Counsel. The National Labor Relations Board is referred to as the Board STRAUSS STORES CORPORATION, 449 Second Region (New York, New York), issued a consolidated complaint 2 dated July 20, 1950, against Strauss Stores Corporation, Maspeth, Long Island, New York, herein called the Respondent Company, and Retail and Wholesale Em- ployees Union, Local 830 (Independent), formerly known as United Retail and 'Wholesale Employees of America, CIO, Local 830, New York, New York, herein called Local 830, and '65', The Wholesale, Retail and Warehouse Workers' Union of New York and New Jersey,' New York, New York, herein called '65',' alleging that the Respondent Company and the Respondent Unions had engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3), and Section S (b) (1) (A) and (2), respectively, and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, the consolidated com- plaint, and the order consolidating the cases and notice of hearing were duly served upon the Respondents and upon Local 804. With respect to the unfair labor practices, the complaint alleged in substance that : (1) On or about March 22, 1949, Local 830 was merged with '65'; (2) from in or about February 1949, the Respondent Company interrogated its employees concerning their union affiliations and activities and suggested and encouraged, by promises and offers of financial assistance and other benefits, that they form an independent union; (3) on or about March 28, 1949, the Respondents executed an agreement modifying and continuing a former agreement executed on or about February 2, 1948, which required as a condition of employment by the Respond- ent Company membership in good standing in the Respondent Unions; (4) the said agreement is invalid and in violation of the Act; (5) neither of the Respond- ent Unions has ever been certified by the Board as a labor organization authorized by the employees of the Respondent Company to make an agreement requiring membership in either of the Respondent Unions as a condition of employment by the Respondent Company; and (6) from on of about March 30, 1949, the Respondent Unions have threatened to inflict and have inflicted bodily injury upon certain of the Respondent Company's employees for the purpose of com- pelling them to abandon or reject Local 804, and/or support the Respondent Unions. The Respondent Company duly filed its answer which, in effect, denied certain facts with respect to commerce, admitted that on or about March 28, 1949, it entered into a written agreement with the Respondent Unions, denied that the said agreement was illegal, denied that it had interrogated its, employees or en- couraged the formation of an independent union by promising benefits, and denied the commission of any unfair labor practices. The Respondent Unions filed a joint answer which, in effect, denied knowledge or information sufficient to form a belief with respect to certain commerce facts, admitted that Local 830 had been merged into '65', denied that they had entered into a contract with the Respondent Company on March 28, 1949, denied that they had threatened to inflict or had inflicted bodily harm on employees of the Respondent Company for the purpose of compelling them to abandon Local 804 or support the Respond- ent Unions, and denied the commission of any unfair labor practices. On August 2, 1950, '65' filed a request for a bill of particulars. On August 15, 1950, Trial Examiner Albert P. Wheatley issued an order granting the request in part and denying it in part. In compliance with this order, the General Coun- sel filed a bill of particulars on August 24, 1950. 2 By appropriate order these cases were consolidated for hearing on July 20, 1950 a The name of '65' appears in the caption as amended at the hearing Local 830 and '65' are referred to collectively as the Respondent Unions. 953841-52-vol 94-30 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held on September 14 and 15, 1950, at New York, New York, before Sydney S. Asher, Jr., the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Re- spondent Company, and the Respondent Unions were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the hearing, the Respondent Unions moved to dismiss the complaint with respect to Local 830, and also with respect to `65'. The Respondent Company moved to dismiss the complaint with respect to the Respondent Com- pany. These motions are disposed of herein. All parties were afforded an op- portunity to present their contentions orally upon the record, and did so. All parties were granted time after the close of the hearing to file briefs and/or proposed findings of fact and conclusions of law. Briefs have been received from the General Counsel and the Respondent Unions, and have been duly considered. After the close of the hearing, the General Counsel moved to amend the plead- ings to conform to the proof with respect to names, dates, and other formal and nonsubstantive matters. The motion was granted on October 3, 1950. Upon the entire record in these cases, and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY' The Respondent Company is a New York corporation with its principal office and place of business in Maspeth, Long Island, New York. It is engaged in the retail selling of automobile parts and accessories , radio and television parts and accessories , appliances , sporting goods, and similar merchandise. It maintains and operates a warehouse in Maspeth and 61 retail stores, all located within the State of New York. During the year immediately preceding the hearing herein, the Respondent Company, in the course and conduct of its business operations, caused to be purchased, transferred, and delivered to its Maspeth warehouse merchandise valued in excess of $3,000,000, of which more than 50 percent was transported to Maspeth from outside the State of New York. During the same period, the Respondent Company sold at its retail stores in New York products valued at over $6,000,000, all of which were sold within the State of New York. Strauss Merchandising Corporation is a New York corporation which is a wholly owned subsidiary of the Respondent Company. During the year immedi- ately preceding the hearing herein, Strauss Merchandising Corporation shipped merchandise exceeding $1,000,000 in value from within the State of New York to points outside the State of New York. In view of the above facts, it is found that the Respondent Company is engaged in commerce within the meaning of the Act. II. THE ORGANfZATIONS INVOLVED Merchandise Delivery Drivers and Employees, Local 804, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and '65', The Wholesale, Retail and Warehouse Workers' Union of New York and New Jersey, are labor organizations within the meaning of Section 2 (5) of the Act. G The facts contained in this section are based primarily on the uncontradicted testimony of Leonard S Strauss , vice president of the Respondent Company. STRAUSS STORES CORPORATION, 451 Local 830 and '65' were both affiliates of an organization known as the Dis- tributive Trades Council. Local 830 had jurisdiction over retail operations of the merchandising industry, and '65' over wholesale operations. In February or March 1949, negotiations took place looking toward increased cooperation between them. As a result of these negotiations, the membership of Local 830, on March 22, 1949, passed the following resolution : We, the members of Local 830, at a special general membership meeting on Tuesday, March 22nd, 1949, hereby authorize and direct the officers of Local 830 to take all steps necessary to accomplish the following purposes : 1. Local 830 members will abide by and operate under all the rules, regu- lations, by-laws, policies, and practices of Local 65, including but not limited to : a. Attendance at and form of membership meeting. b. Dues. c. Collective bargaining. d. Rights and duties of membership (as set forth in Local 65's Con- stitution). e. Leadership. 2. Local 65, in consideration of Local 830's turning over all dues and other funds received by or for it will meet all costs arising from the defense of the membership of Local 830. 3. In consideration of 1 and 2 above, the members of Local 830 will have identical privileges with those afforded the members of Local 65. The General Council of '65' approved the above resolution of Local 830 on March 28, 1949. On April 3, 1949, '65' undertook all the financial obligations of Local 830, and Local 830 transferred its treasury to '65'. Since then, Local 830 has never had a treasury in its own name. All funds thereafter received by Local 830 under the checkoff provisions of contracts with various employers were paid directly into the treasury of '65'. In May 1950, '65' amended its constitution to include jurisdiction over retail shops, a jurisdiction formerly exercised by Local 830. ' At the, time of the effectuation of the understanding outlined above, Local 830 held collective bargaining contracts with various employers. Pending their expiration, Local 830 continued to administer them. But as each individual contract was about to expire, the employees involved voted to transfer their membership to '65', and the contract was then renewed in the name of '65', unless there was determined opposition on the part of the employer involved. Local 830 did not attempt to organize any new shops, but continued to exist for the purpose of administering any contracts still in its name. At the time of the hearing herein, there were only a few collective bargaining' contracts re- maining in the name of Local 830, and the membership of Local 830 had dwindled to approximately 400. In short, Local 830 has been allowed to atrophy, but is nevertheless still in existence as a separate entity.' In view of the above facts, it is found that Local 830 was, at all times material herein, and still is, a labor organization within the meaning of Section 2 (5) of the Act. "The facts contained in the last few paragraphs of this section are based primarily upon the uncontradicted testimony of Victor Rabinowitz, attorney for the Respondent Unions. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Chronology of events' On February 2, 1948, the Respondent Company and Local'830 entered into a collective bargaining agreement effective until February 1, 1950, covering, among others, a unit of warehouse employees. This contract provided that either party could reopen the contract on February 1, 1949, for the purpose of renegotiating wages. It further provided that, if agreement was not reached on wages on or before February 1, 1949, either party could elect to terminate the contract in its entirety by giving notice to the other party of its intentions. Other provisions of this contract will be discussed in greater detail hereafter. During January and February 1949, Local 830's negotiating committee for the Respondent Company's employees met several times with representatives of management to discuss the modification of wage rates provided for in the con- tract. The parties were unable to teach agreement. The final negotiation meeting took place on February 16, 1949. At that time, a representative of the Respondent Company (either Philip Davis, the Respondent Company's attorney, or Rube Farmer, its general manager) told Local 830's negotiating committee that he had heard of an impending merger between '65' and Local 830. Farmer then stated that he had been contracting with Local 830 and that now another union-'65'-was entering the picture and that he was therefore terminating the contract with Local 830 as of February 1, 1949. On the following payday, the warehouse employees of the Respondent Company received written notices to the effect that the Respondent Companv had terminated its contract with Local 830. Approximately a week later, Farmer and other representatives of the Respond- ent Company called certain warehouse employees to a meeting in Farmer's office. When asked why he would not deal with Local 830, Farmer replied that `65' was entering the picture, and he did not want to do business with "a Communist union." Farmer then told the employees to "go out and get any American union" which would comply with the Act and sign the required affidavits,' and that if they did so, he would be glad to do business with them. When one of the employees asked Farmer if he had any particular union in mind, Farmer replied : "No, any union that you choose." On that day or the next, the warehouse employees met and decided to seek another union to represent them, in line with Farmer's desires. Accordingly, a committee of employees contacted Louis Sunshine, a representative of Local 804. Sunshine met with the employees and obtained signed application cards from them for membership in Local 804. On March 4, 1949, Local 804 filed a representation petition with the Board seeking certification as the bargaining agent of the Respondent Company's warehouse employees.' On June 23, 1949, the Regional Director for the Board's Second Region dismissed this petition on the ground that the unit sought was inappropriate for the purposes of collective bargaining. No appeal was taken from the Regional Director's dismissal. 7 The facts contained in this subsection are based primarily upon the undenied testimony of Michael Widico, George Levine, and Ralph DePierro The parties stipulated that Paul Giambalvo would substantially corroborate the testimony of Widico and Levine in this respect. Rube Farmer, who left the employ of the Respondent Company in May 1949, did not testify. ' 8 The employees present understood that, at the time, '65' had not filed the affidavits provided for in Section 9 of the Act. 9 Strauss Stores Corp , Case No. 2-RC-1143. STRAUSS STORES CORPORATION 453 A few days after the last meeting between Farmer and representatives of the employees, described above, the employee representatives were again called to a meeting by Farmer . Farmer announced that he had met Sunshine and in- vestigated his background , that he was of the opinion that Sunshine was not a reliable person and that the men had not chosen wisely in selecting a bargaining representative. He added that he would not deal with Local 830 nor with Local 804. The employees replied that they could not see any solution. Farmer responded that there must be a solution. An employee representative then asked Farmer if he meant a company union. Farmer replied : "No, a company union is no good. We have had one. It doesn't work out." Another employee representative asked Farmer if he meant that the employees should form an independent union, and Farmer replied : "Yes, why not ? Yes, that is an idea. After all, why should the shop employees spend an amount of $10,000 a year in dues to just some union men when they could keep it and bank it and hold it as a fund for themselves?" When the employee representatives demurred, Farmer said : "Well, after all, what is a union? Men out of a job. So they start collecting dues, and that is a union. Why can't you fellows do it? Why can't you fellows go ahead and form your own union, a separate, inde- pendent union? Choose a name, get a charter." Farmer said he would advise the employees about getting a charter, and that he "had a hundred of the damn things" around his office, and that it was a simple matter. He further stated • "You go out and hire a hall and put a sign on it, such and such a union. You come into me as a body. I will sign a contract for 3 or 4 years. You can build up your sum. Ask for good terms. I will give them to you." The em- ployee representatives replied that getting a charter, hiring a hall, and retain- ing an attorney would cost money. Farmer replied : "No, labor lawyers are pretty cheap They are not too expensive." 10 The employee representatives protested that they would need immediate cash. An employee representative estimated that it would require about $1,000, and asked Farmer if he would lend that much money to the employees. Farmer replied : "Yes, I would loan you $1,000." The employee representatives then told Farmer that they would explore the matter and report back to him The employee representatives then took an informal poll of their fellow workers, and determined that the employees were not favorably inclined toward an independent union. A few days later, Farmer called in three of the employee representatives-Michael Widico, George Levine, and Paul Giambalvo-and inquired if they had spoken to the other employees about an independent union. Each of the three replied individually that, so far as he could determine, the men were not favorably disposed toward the idea of an independent union.'' Within the next few days, Victor DeLizia, the Respondent Company's upstairs manager, asked Widico if he had sounded out the thought of an independent union, and whether he considered it a good idea . The record does not show Widico's reply.l2 "Levine , one of the employee representatives present at this meeting, testified that he asked Farmer if the employees could get their own lawyer , and the Farmer answered that that would not be necessary, and that he ( Farmer ) would take care of that This part of Levine's testimony is not credited. 11 Levine testified that all the meetings between Farmer and the employee representatives "took place quite some time before March 30 " Although Widico placed the time of one of the meetings as Aptil, his testimony in this respect is not credited. It is found that all the meetings took place before the end of March 1949. 12 Widico testified that he discovered that DeLizia had asked the same question of several other employees , and that he had also discovered that Norman Stoller, the warehouse man- ager, had interrogated employees on another floor in a similar manner As this testimony was obviously hearsay and was not corroborated, no finding NN ill be based thereon. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent Company and Local X530 resumed contract negotiations during March 1949. Early In April 1949, they executed a written agreement which pro- vided for a wage increase and other modifications of the 1948 contract, not here material." As modified , the 1948 agreement was "in all respects confirmed, ratified, and approved." 14 On March 30 and April 6, 1949, incidents occurred involving George Levine which will be described in more detail hereafter. Early in March 1950, the employees of the Respondent Company who were members of Local 83015 voted to transfer their membership to '65' in accord- ance with the arrangement described in Section II, above, Thereafter, on March 9, 1950, the Respondent Company and '65' entered into a collective bar- gaining agreement which is still in effect, covering, among others , the Respond- ent Company's warehouse employees. B. Interference, restraint, and coercion The complaint alleges that the Respondent Company, from on or about Feb- ruary 1949, interrogated its employees concerning their union affiliations and activities and suggested and encouraged, by promises and offers of financial assistance and other benefits, that they form an independent union. It is clear, from the facts outlined above, that Farmer suggested to the employee repre- sentatives that they form an independent union and offered to advise them about obtaining a charter. He also offered to sign a contract with such an independent union for 3 or 4 years, and indicated that he would give the em- ployees "good terms." Furthermore, he expressed his willingness to lend the employees $1,000 to finance the independent union's formation. The Respondent Company maintains that it committed' no overt act with respect to the formation of an independent union, and that it did not actually k nd any money to the employees for that purpose. It argues that there was "merely general talk about a plan, which they were merely mulling over in their minds. It was just an idea that they were considering together." This con- tention lacks merit. It is perfectly clear from the record that Farmer did, in fact, offer to lend a specific amount of money to the employees for a specific pur- pose, namely, for the formation of an independent union. While an employer undoubtedly may, as pointed out by the Respondent Company, make suggestions l' The complaint alleges that the modification agreement was executed "on or about March 28, 1949." The contract, on its face, purports to have been signed on March 28, 1949 However, it is found that the 1949 contract was actually executed early in April 1949, but was dated back to March 28, 1949, for reasons not appearing on the record. This finding is based on the following: (1) Widico's testimony that in May or June 1949, Leonard S. Strauss, vice president of the Respondent Company, told the assembled em- ployees that the Respondent Company had a contract with '65' (sic), and that this con- tract had been dated back; (2) the testimony of Harry Busch, an organizer for '65', that on March 30, 1949, Local 830 was negotiating with the Respondent Company, and that on April 6, 1949, the contract had already been signed ; and (3 ) a telegram sent by an organizer of Local 830 to a member of Local 830' s negotiating committee for the Respondent Company calling a meeting for 9 p m. on March 28, 1949, "to act on manage- ment's newest written proposals." 14 The 1949 contract was signed by Farmer on behalf of the Respondent Company,. and by Louis Basis, manager, on behalf of Local 830; the members of Local 830 's negotiating committee did not sign. Indeed, Widico, a member of the negotiating committee, testified that he had never seen the contract, had never been accorded an opportunity to vote as to whether or not it should be presented to the members for their approval, and that he first became aware of its existence in April 1949 when he discovered that he had been given a wage increase. 15 The warehouse employees of the Respondent Company who had joined Local 804 in February or March 1949, had thereafter continued to retain their membership in Local 830. STRAUSS STORES CORPORATION 455 to its employees concerning self-organization, and may advise them about the characteristics of the union they have chosen and its leaders, the Respondent Company here went much further. By offering the employees material aid as an inducement to form an independent union at a time when both Local 804 and Local 830 were seeking to organize them, the Respondent Company exceeded the bounds of permissible conduct. Moreover, Farmer's interrogation of Widico, Levine, and Giambalvo concerning the employees' reaction to the proposal to form an independent union and DeLizia's interrogation of Widico concerning Widico's opinion of an independent union constituted additional violations of the Act.1e Ac- cordingly, it is found that, by Farmer's offer to lend the employees $1,000 for the purpose of forming an independent union, his offer to advise them with respect to obtaining a charter, his offer to sign a 3- or 4-year contract with an independent union containing "good terms," his interrogation of Widico, Levine, and Giambalvo, and DeLizia's interrogation of Widico, the Respondent Com- pany, during February and March 1949, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act!' C. The legality of the contract of April 1949 The contract of February 2, 1948, between the Respondent Company and Local 830 contained the following clauses: 1. .. . The Employer further agrees that it will employ members of the Union, except as herein provided. 4. D. It is further agreed that new employees shall be required to become members of the Union in good standing after thirty (30) days of continuous employment and the Union agrees that it will accept such new employees into membership on the same terms as any other applicants. As has been pointed out above, this contract was "confirmed, ratified and ap- proved," with modifications not here material, in April 1949, by a written agree- ment executed by the Respondent Company and Local 830 The 1948 contract, having been executed after the effective date of the Labor Management Relations Act of 1947, is subject to the restrictions imposed by amendments contained therein. In order to determine the legality or illegality of the above-quoted clauses, it is therefore necessary to examine the statutory requirements of the Act, as amended, with respect to contracts providing for union security. Section 9 (e) of the Act, as amended, provides for Board- conducted elections and certifications of authority to bargain with respect to union security. Section 8 (a) (3) of the Act, as amended, in effect prohibits discrimination with respect to hire or tenure of employment to encourage or discourage membership in any labor organization, and contains the following proviso : 11 Standard-Coosa-Thatcher Company, 85 NLRB 1358 ; Empire Pencil Company , Division of Hassenfeld Bros., Inc., 86 NLRB 1187 ; and Joy Silk Mills v. N. L. R. B., 185 F. 2d 732 (C. A. D. C ), decided November 2, 1950. " No determination is made as to whether or not the Respondent Company committed' additional violations of Section 8 (a) (1) by: ( 1) Farmer's statement to the employee representatives that he would not negotiate either with Local 830 or with Local 804; or (2) executing a collective bargaining agreement with Local 830 on March 28, 1949, at a time when Local 804' s representation petition was pending before the Board, as this conduct was not alleged in the complaint as constituting additional violations of the Act. Farmer's statement that the employees had not chosen wisely in selecting their bar- gaining agent , his statement that Sunshine was not a reliable person, and his intimation that '65' was not "an American union" are found to be protected expressions of opinion not violative of the Act. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . . nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, which ever is the later, . . . if, following the most recent election held as provided in section 9 (e) the Board shall have certified that at least a majority of the employees eligible to vote to such election have voted to authorize such labor organization to make such an agreement . . . (emphasis supplied). Thus, an election under Section 9 (e) and a resulting Board certificate are ordinarily prerequisites to the execution of a valid union-security provision. The Board's records, of which I have taken judicial notice," show that neither of the Respondent Unions has been certified by the Board as a labor organiza- tion authorized to bargain with the Respondent Company with respect to union security. The 1948 contract therefore clearly violated the statutory require- ments. The mere existence of such a provision acts as a restraint upon those employees desiring to refrain from union activities within the meaning of Section 7 of the Act 19 Moreover, by assenting to an unlawful union-security clause, the Respondent Company lent its support to Local 830 in recruiting and -maintaining its membership. As the 1948 agreement was executed more than 6 months prior to the filing -and service of the charges herein, 2' no finding of unfair labor practices will be based thereon. However, after the Respondent Company terminated the con- tract of 1948, the parties reestablished their bargaining relationship in April 1949, a date well within 6 months prior to the filing and service of the charges. Thus, new life was breathed into the illegal union-security provisions. It is found that in April 1949, by renewing, continuing, and reaffirming its agreement with Local 830 which contained illegal union-security provisions, the Respondent Company imposed a restraint upon those of its employees who -desired to refrain from union activities within the meaning of Section 7 of the Act, as amended, and thereby violated Section 8 (a) (1) of the Act. I further find that, by the said acts, the Respondent Company lent support and assistance to Local 830 in recruiting and maintaining its membership and coerced its em- ployees to become and remain members of Local 830, thereby violating Section 8 (a) (2) of the Act.21 Accordingly, the Respondent Company's motion to dis- miss the complaint is denied as to violations of Section 8 (a) (1) and (2).n 11J. S Abercrombie Company, 83 NLRB 524, petition for review denied, 180 F 2d 578 (C A. 5). 19 C. Hager of Sons Hinge Manufacturing Company, 80 NLRB 163 f0 The charge against the Respondent Company was served on May 27, 1949, and that against the Respondent Unions on May 26, 1949 21 Julius Resnick, Inc, 86 NLRB 38; and Salant of Salant, Incorporated, 87 NLRB 215. 22 While the complaint also alleged the execution of the contract of March 28, 1949, -as violation of Section 8 (a) (3) of the Act, I find it unnecessary to pass upon this issue. Whether predicated upon a violation of Section 8 (a) (1), or of Section 8 (a) (3), or both, the remedy hereinafter recommended is necessary in order to effectuate the policies of the Act. Accordingly, the Respondent Company's motion to dismiss the complaint is granted as to the alleged violation of Section 8 (a) (3) only. See Pacific Maritime Association, et at., 89 NLRB 894 The Respondent Company's attorney stated at oral argument that the contract was executed "after bitter and lengthy, protracted negotiations and deliberations by both sides. " Assuming, without deciding that the record indicated that hostility existed between Local 830 and the Respondent Company, such fact is not inconsistent with a finding that the Respondent Company, by renewing a contract with Local 830 which STRAUSS STORES CORPORATION 457 With respect to Local 830, I find that when it executed the 1948 contract, and when it renewed that contract in April 1949, it,intended that the entire contract, including the unlawful union-security provisions, would be enforced to the end that employees failing to acquire or retain union membership would be dis- charged pursuant to its terms n Furthermore, it is beyond question that such enforcement of the unlawful union-security provisions would constitute discrim- ination in violation of Section 8 (a) (3) 24 It is accordingly found that, by renewing the 1948 contract containing unlawful union-security provisions, with the intention that such provisions be enforced, Local 830 joined with the Re- spondent Company in creating conditions which would result in future dis- crimination, and that it thereby attempted to cause the Respondent Company to discriminate against employees, in violation of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2) of the Actn The Respondent Unions' motion to dismiss the complaint is therefore denied, insofar as it alleges that Local 830 violated Section 8 (b) (2) of the Act. 1) The resyonsibihty of '65' and its staters I turn now to the question of the responsibility of '65' for the unfair labor practices committed by Local 830 in April 1949, when Local 830 renewed its con- tract with the Respondent Company, containing illegal union-security provisions. From the facts outlined in Section II, above, it is evident that the resolution adopted by the membership of Local 830 on March 22, 1949, was the first step in effectuating a close working arrangement between Local 830 and '65'. As has been pointed out, the General Council of '05' approved the action of Local 830's membership on March 28, 1949, and the treasury of Local 830 was paid over to '65' several days later. However, from April 1949, until early March 1950, the contract with the Respondent Company continued to exist in the name of Local 830, and was administered entirely by Local 830. The policies of Local 830 continued to be determined by the members of Local 830, with the advice and assistance of the leadership of '65'. Indeed Victor Rabinowitz, attorney for '65', a witness for the General Counsel, testified without contradiction that the Respondent Company did not recognize '65' as the bargaining representative of its warehouse employees until the parties began to negotiate for the 1950 con- tract. While cooperation between Local 830 and '65' undoubtedly existed, there is insufficient evidence in the record to sustain the contention of the General Counsel that, prior to March 1950, '65' had assumed "effective control" over the operations of Local 830. It follows, therefore, that '65' cannot be held respon- sible for the unfair labor practices committed by Local 830 in April 1949, except contained illegal union-security provisions, contributed unlawful support and assistance to Local 830. The Respondent Unions contend that it is inconsistent to find that Farmer discouraged membership in Local 830 by offering benefits to the employees if they would form an independent union, and virtually simultaneously lent his support to Local 830 by renewing the contract with Local 830 which contained illegal union-security provisions. I find no merit in this contention. In my opinion, there is nothing inconsistent in a finding that Farmer first tried to dissuade the employees from continuing as members of Local 830 and later, when his efforts in this direction failed to bear fruit, renewed the contract which gave Local 830 a preferred position. 23 Although there is no evidence in the record that the union-security provisions have been enforced, to find otherwise would be to find that the parties entered into an agree- ment which they never intended would have any meaning. Such a finding would be- contrary to the realities of the collective bargaining relationship. Acme Mattress Company, Inc, 91 NLRB 1010, footnote 7. 24 See, for example, Clara-Val Packing Company, 87 NLRB 703. 25 Acme Mattress Company, Inc., supra. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by virtue of the fact that '65' may have become the successor to Local 830, with respect to the employees concerned herein. It will be recalled that in March 1950, the Respondent Company's warehouse employees voted to transfer their membership from Local 830 to '65'. Since then, Local 830 has not represented any of the Respondent Company's warehouse employees. This action of the employees, followed as it was by the Respondent Company's recognition of `65' as the collective bargaining representative of its warehouse employees, effectively established `65' as the successor to Local 830, so far as the employees involved herein are concerned. In view of the close cooperation between '65' and Local 830 after the end of March 1949, it is resason- able to infer that '65' succeeded Local 830 as the bargaining representative of the Respondent Company's warehouse employees in March 1950 with full knowledge that the 1948 contract between the Respondent Company and Local 830, as modified and continued in 1949, contained illegal union-security provisions. It is so found. Under well-established principles, where an employer takes over a business with knowledge of. his predecessor's unfair labor practices, the successor as- sumes the obligation to rectify those unfair labor practices, even though he did not originally participate in the proscribed conduct' This principle ap- plies equally to successor labor organizations. Thus, '65' assumed in March 1950 the duty to remedy the unfair labor practices previously committeed by its predecessor, Local 830 This obligation has been discharged. Rabinowitz testified without contradcition that winthin a month after '65' began to take over various contracts previously held by Local 830 as they expired, `65' adopted a policy of dropping from the renewed contracts any union-security clauses which were inconsistent with the Act. In accordance with this policy, when the contract with the Respondent Company with respect to its warehouse employees was renewed in the name of `65' in March 1950, the parties omitted the illegal union-security provisions. In short, '65' did every- thing possible, as soon as it was practical to do so, to eradicate the offending contract clauses. Under these circumstances, I perceive no justification for branding `65' as a violator of the Act. Nor do I conceive that '65' was in the least remiss in fulfilling its statutory obligations. Accordingly, I find that `65' has not violated Section 8 (b) (2) of the Act. The motion of the Re- spondent Unions that the complaint be dismissed is therefore granted, insofar as it applies to '65'. There remains the problem of the present status of '65' as the bargaining representative of the employees involved herein. It has been found that Local 830 was the recipient of illegal aid and support contributed by the Respondent Company, which assisted Local 830 in recruiting and maintaining its member- ship. When '65' succeeded to Local 830's bargaining rights in March 1950, it ,did not enter the picture as a total stranger. On the contrary, `65' stepped into Local 830's shoes in pursuance of an arrangement agreed upon almost a year before and carried out as planned . There was no hiatus in the transition .of bargaining rights from Local 830 to '65', and `65' was inexorably identified 26 N. L. R B. v. National Garment Company , et at , 1 66 F. 2d 233 ( C A. 8), cert. den. 334 U S. 845 ; Charles F. DeBardeleben, et at. v. N. L. R. B., 135 F 2d 13 (C. A. 5) ; N. L R B. v. Adel Clay Products Company, et al, 134 F. 2d 342 (C. A. 8) ; N. L. R. B. v. Weirton Steel Company, 135 F. 2d 494, 499 ( C A. 3) , Autopart Manufacturing Company, 91 NLRB 80 and 92 NLRB 30; Eva-Ray Dress Manufacturing Company, Inc, et at., 38 NLRB 361 ; The Alexander Milburn Company , 78 NLRB 747 ; M. M. Joffee Company, et al, 74 NLRB 1568; and compare N. L R. B. v. Colten, 105 F. 2d 179 (C A. 6) : N. L. R B. v. E. C. Brown Company, et at, 184 F. 2d 829 (C. A. 2 ), decided October 31, 1950. STRAUSS STORES CORPORATION 459 -with Local 830 in the minds of the employees." It is clear that after March 1950, '65' succeded to the preferred position previously occupied by Local 830, and thus reaped the benefit of the unlawful contract provisions. Under these cir- cumstances, '65' inherited the infirmities of Local 830. Accordingly, it is found that '65' has been since March 1950, and still is, an illegaly assisted and sup- ported labor organization. E. Alleged restraint and coercion The complaint, as detailed in the bill of particulars, alleges that the Respond- ent Unions, through their agents, Scotty Willen and Harry Busch, threatened to inflict and did inflict bodily injury upon certain of the Respondent Company's employees on March 30 and April 6, 1949, for the purpose of compelling them to abandon or reject Local 804 and/or support the Respondent Unions. For con- venience, the evidence relating to this allegation of the complaint will be divided into two parts, one dealing with the events of March 30, and the other with the incident of April 6. 1. The events of March 30, 1949 George Levine, a warehouseman employed by the Respondent Company, was a member of executive board of Local 830 and shop steward for the Respond- ent Company's warehouse until February 1949. He was also a member of Local 830's negotiating committee for the Respondent Company's warehouse. As such, he attended the negotiation meetings between the Respondent Com- pany and Local 830 in January and February 1949, previously described. When Farmer suggested that the employees seek another union, Levine was one of the employees who contacted Local 804 and arranged for Sunshine to meet the warehouse employees. In February or March 1949, Levine was among those employees who joined Local 804. Robert Denis Willen n was, in 1949, an organizer for Local 830 whose duties included the administration of Local 830's contract with the Respondent Com- pany, insofar as the warehouse employees were concerned. In February or March 1949, Willen learned of Levine's activities on behalf of Local 804. During this period, Willen visited Levine at Levine's home on several occasions and attempted to persuade Levine to remain loyal to Local 830 and to withdraw from any activities on behalf of Local 804. In the course of these visits to Levine's home, Willen made no threats of any kind to Levine. During the same period, Harry Busch was an organizer for '65' assigned to organizing the employees of Arch Bilt Corrugated, a plant near the Respondent Company's warehouse, the employees of which were members of '65.' As Busch was a more experienced organizer than Willen, and as Local 830 and '65' were cooperating at this time, Willen frequently invited Busch to accompany him on his regular visits to the warehouse of the Respondent Company, and to advise him with respect to organizational policies. On March 30, 1949, Willen, accompanied by Busch, made one of his regular, visits to the Respondent Com- pany's warehouse, during the course of which Willen and Busch saw Levine. As the testimony of the three men differs with respect to what occurred at that time, the testimony of each will be set out in some detail. 27 An example of employee confusion of the two unions is found in Widico's testimony that Strauss announced in May or June 1949 that the Respondent Company had a contract with '65'. At that time, the contract was, in fact, with Local 830. The test as to whether or not a challenged organization is employer assisted is not an objective one, but rather subjective , from the standpoint of the employees. Compare N. L. R. B. v. Thompson Products, Inc., 130 F. 2d 363, 368 (C. A. 6). 28 Referred to in the record and in the bill of particulars as Scotty Willen. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Levine, a witness for the General Counsel, testified that he had never,seen Busch before March 30. He further testified that on March 30, during working hours, Willen and Busch approached him together at the warehouse. Two of Levine's fellow workers, George Alzheimer and Rocco Rivello, were nearby, but not within hearing distance. According to Levine, Busch said to Levine : "I want to talk to you for a minute." Levine replied : "I am busy. I am working now." Then Busch, pointing his finger at Levine, said: "Within a few days they are going to find your body in the gutter. Members from Arch Bilt Corrugated will come and kill you," and that "everybody in the warehouse" was going to lose his job. Willen said nothing. Immediately after this incident, Levine reported what had happened to Herman Mintz, the Respondent Company's sales manager.29 Willen, a witness for the Respondent Unions, testified that on March 30, he and Busch visited the Respondent Company's warehouse together. There they met Levine and another employee of the Respondent Company, whose name Willen did not remember. A conversation followed in which Willen, Busch, Levine, and the other employee all participated. Willen reviewed the conversations which he had had with Levine in Levine's home, and generally appealed to Levine to remain loyal to Local 830. According to Willen, "There was arguments back and forth as we proposed one thing and George (Levine) would have another opinion or an addition to the opinion. This kept up for some time " Finally, Levine and the other employe said : "Look, we got work to do. We are going to take off," and thereupon left. Willen estimated that the conversation lasted approximately 15 minutes. He further testified that, during this conversation, he did not hear Busch make the threats attributed to him by Levine. On direct examination, Willen indicated that he might have raised his voice. Later, during examination by the Trial Examiner, Willen described the conversation as "friendly," and testified that there was no loss of temper. Busch, a witness for the Respondent Unions, testified that he had accompanied Willen to the Respondent Company's warehouse 5 or 6 times during the period around March iii, and during these visits accused certain members of Local 830's negotiating committee, including Levine, of "playing the company's game of splitting," and told them they should "mend their ways or resign." He testified that Levine's position was always one\of vacillation, never taking a definite stand At first, Busch assumed that Levine did not know better, but after 5 or 6 conversations with Levine at different times, Willen began to distrust Levine and became convinced that he was "in conversation with somebody for the com- pany and carrying out their dictates." - Busch further testified that on March 30 he accompanied Willen to the Respondent Company's warehouse and spoke to Levine, accusing Levine of knowingly or unknowingly being an agent of the Respondent Company. Levine denied the accusation, and said that he had not yet made up his mind whether to remain loyal to Local 830 or not, and that he needed time. Busch, pointing out that time works against the interests of the employees and plays into management's hands, urged Levine to reach a quick decision. He further pointed out to Levine that the neighboring plant of Arch Bilt Corrugated was organized by `65,' a "sister local" of Local 830, and that if the employees of the Respondent Company remained loyal to 830, they would have an ally nearby at Arch Bilt. Busch estimated that the conversation lasted 10 or 15 minutes. He denied making the threats attributed to him by Levine. ss Neither Rivello nor Mintz testified. Although Alzheimer testified, his testimony contained no reference to the incident of March 30. STRAUSS STORES CORPORATION 461 Willen impressed me as a forthright and accurate witness. I therefore adopt his version of the conversation, which was substantially corroborated by Busch, as the most accurate account of the occurrence. Accordingly, I find that Busch did not make any threatening statements to Levine on March 30, 1949. 2. The incident of April 6, 1949 Several witnesses for the General Counsel and several witnesses for the Re- spondent Unions testified with respect to the incident of April 6. Although the various witnesses did not agree in all details, together they gave a fairly com- plete picture of the events which transpired. From the entire record, it appears that the occurrence of April 6 took place substantially as follows : At 12 o'clock noon, the employees of the Respondent Company stopped work for the usual lunch hour. As employees Alzheimer, DePierro, and Levine left the warehouse to go to lunch, Willen was waiting on the sidewalk in front of the entrance, and approached them. He urged them, as he had done before with Levine, to remain loyal to Local 830. The employees were reluctant to listen to Willen's importunities. Nevertheless, Willen was persistent in speaking to Levine. According to Willen, "we were going a bit hot and heavy." This con- versation lasted less than 5 minutes In the meantime, Busch had gone to the nearby plant of Arch Bilt Corrugated on one of his regular visits to that plant. At 12 o'clock noon, Busch left the Arch Bilt plant for the purpose of going to lunch, accompanied by several workers from that plant3° Their route to the place where they intended to eat lunch led past the warehouse of the Respondent Company. As they passed the warehouse, Busch saw Willen talking to Levine, and went over to them. He told Levine that, as the Respondent Company had signed a contract with Local 830, Levine should stick with Local 830, and aban- don any efforts to interest his fellow workers in any other union. Employees of the Respondent Company and of Arch Bilt gathered around, closely packed in a small space. An argument ensued, 'voices were raised, and eventually matters built up to a crescendo. As tempers flared, Busch called Levine a "phony bastard" or a "union breakers" ; Levine retorted by terming Busch a "Communist rat." At this, Busch took a step or two toward Levine. Levine raised his arms with his palms open and, in doing so, dislodged Busch's glasses. The spectacles fell to the ground and were broken 91 Busch then struck Levine several blows on the face and head with his fist, and Levine struck back 32 While Busch and Levine were fighting, Willen moved toward them, but was restrained by De- Pierro, who said : "Let's stay out of it." Willen replied that he was not looking for trouble. A general altercation followed, in which Alzheimer was hit in the mouth by an employee of Arch Bilt, and DePierro was also struck, presumably likewise by an Arch Bilt man. The melee lasted only a few minutes, and the combatants were soon separated by others in the crowd. By this time, other em- ployees of the Respondent Company, including Paul Giambalvo, had come out of the warehouse. They saw Busch and the Arch Bilt employees walking back toward the Arch Bilt plant. Giambalvo called Busch to come back, and Busch 80 The testimony of Levine, Alzheimer, Willen, and Busch that Busch was accompanied by a group of Arch Bilt workers is adopted, and DePierro's testimony that Busch 'came down the street alone followed by a group of Arch Bilt workers is rejected. n Alzheimer's testimony that Busch's glasses were still on when Busch struck Levine with his fist is deemed inaccurate and is not credited. 1 31 There is some testimony that Levine was knocked down against a fence, and that his face was cut and bleeding. However, several witnesses testified that they did not see Levine knocked down or bleeding. I deem it unnecessary to resolve this conflict. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did so. Giambalvo then said to Busch : "If you feel so strong with the crowdl you have behind you, why don't you start something now? We are a little more down here, now." However, Busch declined to resume the fight. 3. Conclusions as to restraint and coercion Section 8 (b) (1) (A) of the Act provides that it is an unfair labor practice for a labor organization or its agents "to restrain or coerce employees in the exercise of the rights guaranteed in Section 7." Obviously, not every altercation between a union agent and an employee necessarily constitutes a violation of Section 8 (b) (1) (A) of the Act. In order to determine whether or not this section of the Act has been violated, it is necessary to ascertain whether the acts of the union agent reasonably tender to restrain or coerec the employees in question in the exercise of the rights guaranteed them by the Act. The General Counsel maintains that Willen and Busch had agreed in advance on the assault of April 6, that the employees of Arch Bilt were enlisted for this purpose, and that Busch did not leave the Arch But plant with the intention of going to lunch, but rather for the express purpose of assaulting those employees. of the Respondent Company who were not loyal to Local 830. He contends that Willen was assigned the task of holding Levine until Busch and the employees of Arch Bilt arrived on the scene. To substantiate this contention, the General Counsel points to the testimony of Levine that, during his conversation with- Willen, the employees of the Respondent Company did not want to listen to Willen, and kept walking away, but that Willen kept following them and stood in front of Levine in order to block Levine's exit. Willen did not recall that he had made any attempt to stop Levine from leaving. but admitted that he "must have been very persistent" in talking to Levine. Moreover, Willen credibly testified that he did not even know that Busch was in the neighborhood at the time. Furthermore, Busch testified that he did not remember having seen Willen on the morning of April 6, prior to the events described herein. The General Counsel also points to the fact that, after the fight was over, Busch and the Arch Bilt employees did not continue to lunch, but returned in the direction of the Arch Bilt plant. However, Busch explained that he de- cided to return to the Arch Bilt plant for the purpose of washing himself and arranging his hair, which had become mussed during the course of the scuffle. Moreover, it is significant that Busch refused to accept Giambalvo's invitation to continue the fight. Finally, it is significant that Willen made attempts to break up the fight, and that the fight did, in fact, break up within a few minutes. Under all the circumstances, I reject the contention of the General Counsel that the attack on the employees of the Respondent Company was in any way prearranged. Did Busch's fight with Levine nevertheless constitute restraint and coercion of Levine? In my opinion, this question must be answered in the negative. The picture presented is one of strained relations between Busch and Levine, arising out of Levine's activities on behalf of Local 804. Busch was extremely- anxious to bring Levine, and other employees of the Respondent Company, back into the fold. He encountered some reluctance on Levine's part. By April 6„ feelings were running high and the situation had become explosive. At this point, into the powder keg was dropped a lighted match in the form of name calling. Busch termed Levine a "union breaker" or a "phony bastard" andL Levine replied in kind by calling Busch a "Communist rat." The resentment which Busch felt at this epithet caused him to flare up and approach Levine. Levine, interpreting this move as hostile, threw up his arms to protect himself- STRAUSS STORES CORPORATION. 463 Busch's glasses were knocked to the ground." Busch reacted immediately by striking Levine.. In this posture of the case, it is clear that the violence was set off, not by Busch's attempt to intimidate or coerce Levine into remaining loyal to Local 830, but by mutual name calling and by the accidental knocking off of Busch's eye glasses. The combat between the Arch Bilt men and Alzheimer and DePierro was touched off by the Busch-Levine fight, and must also be regarded as spontaneous. This, in my opinion, falls short of con- stituting a violation of the Act. Accordingly, the Respondent Unions' motion to dismiss the complaint is granted, with respect to the allegations that they violated Section 8 (b) (1) (A) of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Local 830 and the Respondent Company set forth in Section III, above, occurring in connection with the operations of the Respondent Com- pany described in Section I, above, have a close, intimate, and substantial rela- tion 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 Since it has been found that the Respondent Company and Local 830 engaged in and are engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effecu- ate the policies of the Act. It having been found that the Respondent Company has engaged in certain acts of interference, restraint, and coercion, it will be recommended that the Respond- ent Company cease therefrom. It has further been found that-the Respondent Company violated Section 8 (a) (1) and (2) of the Act by renewing, continuing, and reaffirming its 1948 contract with Local 830, containing illegal union-security provisions. The effect of such violation was to coerce its employees into becoming and remaining mem- bers of Local 830, a vice which Section 8 (a) (3) and Section 9 (e) were intended to avoid Accordingly, I shall recommend that the Respondent Company cease and desist from such conduct. Normally, it would also be recommended that the Respondent Company cease and desist from giving effect to the illegal union- security provisions of the 1948 contract. However, it would serve no useful purpose to do so here, as that contract has now expired and has been replaced by a new contract with `65,' which does not contain the objectionable union- security provisions. The General Counsel requests that the Respondent Company be ordered to cease and desist from enforcing its present contract with '65' in its entirety. Relying on the Salant and Resnick cases,' he points out, that, where there are unlawful union-security clauses in an agreement, the Board has not been con- tent to order the parties to cease performing the offending clauses, but has gone farther and prohibited the enforcement of the entire contract. On the other hand, the Respondent Unions argue vigorously that, as the present con- 33 Referring to Levine raising his hands and knocking off Busch's glasses, Busch testified : "I don't know whether or not he meant it intentionally ," and "my glasses were thrown off, which is not difficult." It Is found that Levine knocked off Busch's glasses accidentally. '" In view of my disposition of the allegation of violation of Section 8 (b) (1) (A) of the Act, it is unnecessary to pass upon the contention of the Respondent Unions that Busch was not an authorized representative of either `65' or Local 830 at the time 11 See footnote 21, supra. See also Pacific Maritime Association, et al., 89 NLRB 894. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract contains no illegal union -security clauses, it should not be disturbed. While admitting that the Salant and Resnick cases stand for the proposition for which the General Counsel cites them, the Respondent Unions nevertheless rely upon decisions in which a more limited remedy was applied , particularly the Pinkerton and Clara-Val" cases, in which the Board merely ordered the parties not to enforce the illegal clauses, but otherwise permitted the contracts to stand. The Respondent Unions contend that there are therefore two diver- gent lines of decisions with respect to the proper remedy to be applied. At first blush , this argument seems persuasive . Upon careful examination of the cited authorities , however, it appears that the Pinkerton and Clara-Val cases, unlike the instant case, involved no allegations of the violation of Section 8 (a) (2) of the Act. The Resnick and Salant cases, on the contrary, were similar to the instant case in that violations of Section 8 (a) (2) had'been found. I therefore find no merit in the contention of the Respondent Unions. To permit the' Respondent Company to continue contractual relations with `65' in the face of a finding that `65' was an illegally supported and assisted labor organization would subvert the policies of the Act . The effect of the coercive conduct would not be eradicated were Local 830, or its successor union, `65 ,' permuted to continue to enjoy a representative status strengthened by virtue of the illegal contract . Therefore, in order to effectuate the purposes and policies of the Act, it will be recommended that the Respondent Company withdraw recognition from Local 830 and its successor labor organization, '65,' and cease giving effect to its present contract of March 9, 1950, with `65,' or to any modification, ex- tension, supplement, or renewal thereof, unless and until either of the said organizations has been certified by the Board." Nothing contained herein shall, however, be deemed to require the Respondent Company to vary or abandon those wage, hour, seniority, or other substantive features of its relations with its employees, established in the performance of the said contract, or to prejudice the assertion by the employees of any rights they may have under the said contract. In my opinion , the renewing, continuing, and reaffirming of the illegal union- security provisions of the 1948 contract was a flagrant attempt by the Respond- ent Company to avoid its statutory obligations. Such contract clauses clearly constitute violations of the letter and spirit of the Act. I therefore find that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent Company's conduct in the past." 36 International Union, United Mine Workers of America, et al. (Jones & Laughlin Steel Corporation, et al ), 83 NLRB 916; Clara-Val Packing Company, 87 NLRB 703; Pinkerton's National Detective Agency, Inc., 90 NLRB 205 ; International Longshoremen's and Warehousemen's Union (Waterfront Employers Association of the Pacific Coast), 90 NLRB 1021 ; National Union of Marine Cooks and Stewards (Pacific American Ship- owners Association, 90 NLRB 1099. In the Longshoremen's and Marine Cooks and Stewards cases, the Board did not pass upon the propriety of the Trial Examiner's limited remedy, as no exceptions were taken thereto. 21 The Respondent Unions argue that the entry of an order requiring the Respondent Company to withdraw recognition from Local 830 and '65' unless and until certified by the Board would leave the employees temporarily without a bargaining representative, and would be "disasterous to the labor relations between the parties " In my opinion, however, the slight disadvantage entailed in such a course is more than counterbalanced by safeguarding the employees' freedom of choice through selection of a bargaining agent in a secret election. 38 N L R B. v. Express Publishing Company, 312 U. S. 426. While the offending provisions have been eliminated from the present contract, it Is significant that that agreement was executed after the Respondents were served with copies of the charges herein, alleging the former contract's Invalidity. Compare Salant & Salant, Incorporated, supra. STRAUSS STORES CORPORATION 465 The preventative purposes of the Act will be thwarted unless the order is co- extensive with the threat. In order, therefore, to make effective the inter- dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac- tices, and thereby to minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that the Respondent Company cease and desist from in any manner infringing upon, the rights guaranteed in Section 7 of the Act. As it has been found that the Respondent Company has not violated Section 8 (a) (3) of the Act, it will be recommended that the complaint be dismissed, insofar as it alleges that the Respondent Company violated that section of the Act. It has further been found that Local 830 has violated Section 8 (b) (2) of the Act by renewing, continuing, and reaffirming the offending contract with the Respondent Company. Accordingly, it will be recommended that Local 830 cease and desist therefrom. Like the Respondent Company, Local 830 has thus flagrantly attempted to avoid its statutory obligations. There is danger that Local 830 or its successor or successors may attempt in the future to obtain similar illegal union-security arrangements with the Respondent Company, either through contract provisions or otherwise. It will therefore be recommended that Local 830 cease and desist from in any manner causing or attempting to cause the Respondent Company, its- officers, agents, successors, or assigns, to discriminate against employees or prospective employees in violation of Section 8 (a) (3) of the Act, as amended. This order will, of course, be binding upon any successor or successors of Local 830, including 165.' as As it has been found that Local 830 has not violated Section 8 (b) (1) (A) of the Act, it will be recommended that the complaint be dismissed, insofar as it alleges that Local 830 violated that Section of the Act. As it has been found that '65' has not engaged in any unfair labor practices, it will be recommended that the complaint be dismissed with respect to `65.' Upon the basis of the foregoing findings of fact, and upon the entire record in these cases, I make the following : CONULusioNs OF LAW 1. Merchandise and Delivery Drivers and Employees, Local 804, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL; Retail and Wholesale Employees Union, Local 830 (Independent), formerly known as United Retail and Wholesale Employees of America, CIO, Local 830; and '65', The Wholesale, Retail and Warehouse Workers' Union of New York and New Jersey, are labor organizations within the meaning of Section 2 (5) of the Act. 2 By renewing, continuing, and reaffirming its contract of February 2, 1948, with Retail and Wholesale Employees Union, Local 830 (Independent), formerly known as United Retail and Wholesale Employees of America, CIO, Local 830, thereby contributing assistance and support to the said labor organization through the illegal provisions of the said contract, the Respondent Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 3. By the said acts, by interrogating its employees with respect to their union affiliations, activities, and sympathies, and those of their fellow employees, and by suggesting and encouraging, by promises and offers of financial assist- ance and other benefits, that its employees form an independent union, the 3' Compare N. L R. B. v Hopwood Retvnning Company, Inc, et al., 104 F. 2d 302 (C A 2). 953841-52-vol. 94-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Company has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed 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. 4. By renewing, continuing, and reaffirming the said contract containing un- lawful union-security provisions, with the intention that such provisions be enforced, Local 830 joined with the Respondent Company in creating conditions which would result in future discrimination, thereby attempting to cause the Respondent Company to discriminate against employees in violation of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondent Company has not violated Section 8 (a) (3) of the Act. 7. Local 830 has not violated Section 8 (b) (1) (A) of the Act. 8. 165', The Wholesale, Retail and Warehouse Workers' Union of New York and New Jersey, has not violated the Act. [Recommended Order omitted from publication in this volume.] COLUMBIA PICTURES CORPORATION, ET AL .1 and SOCIETY OF MOTION PICTURE ART DIRECTORS, PETITIONER. Case No. 21-RC-125. May 15, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Daniel J. Harrington, hearing officer. 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 Employers are engaged in commerce within the meaning of the Act. 2. No question affecting commerce exists concerning the representa- tion of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks to represent employees in the classification of set designer, illustrator, sketch artist, assistants, and apprentices, and set model builder, assistants, and apprentices in the art departments i Columbia Pictures Corporation , Loews, Incorporated (Metro-Goldwyn-Mayer), Paramount Pictures Corporation , Republic Productions , Inc., RKO Radio Pictures, Inc., Twentieth Century Fox Film Corporation , Universal Pictures Company, Inc., and Warner Brothers Pictures, Inc. 2 Exhibits consisting of a number of collective bargaining contracts between the Em- ployers and the International Alliance of Theatrical Stage Employees and Moving Picture Operators of the U. S. and Canada, AFL, hereinafter termed IATSE, were admitted in evidence at the hearing by the hearing officer over the objection of the latter organization. In the course of hearing, this decision of the hearing officer was appealed to the Board. At that time the Board denied the appeal on the ground it would decide the case on the entire record . At the completion of the hearing , the appeal was renewed . The appeal from the ruling of the hearing officer is herewith denied for reasons , stated in paragraph numbered 2 of the instant decision. 94 NLRB No. 72.