Masters-Lake Success, Inc.

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directed despite the prematurity of the petition and the Board's decision issues on or after the 90th day preceding the expiration date of the contract. [Emphasis supplied.] As a hearing was held despite the premature filing of the petition, and as this decision will issue after the 90th day preceding the terminal date of the contract, we find that the latter agreement is no bar to a present dete,^mination of representatives? Accordingly, we find that a question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2•(6) and (7) of the Act. 4. We find, in accord with a stipulation of the parties, that the fol- lowing employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:' All production and maintenance employees of the Employer in its Ironton District, which is headquartered at 311 South Third Street, Ironton, Ohio, excluding all clerical, executive, administrative, pro- fessional and temporary employees, supervisors as defined by the Act, and all others excluded by law. [Text of Direction of Election omitted from publication.] MEMBER JENKINS took no part in the consideration of the above Decision and Direction of Election. 2 Deluxe Metal Furniture Company, eupv a See, also, St. Louis Independent Packing Company, a Division of Swift and Company, 122 NLRB 88T 8 This is the unit for which the Union is recognized as the exclusive bargaining repre- sentative under the existing contract. Masters-Lake Success, Inc. and Jack Berg and Metal, Plastic, Miscellaneous Sales, Novelty and Production Workers, Local No. 222, Independent, Party to the Contract Metal, Plastic, Miscellaneous Sales, Novelty and Production Workers, Local No. 222, Independent and Jack Berg and Masters-Lake Success, Inc., Party to the Contract . Cases Nos. 2-CA-5838 and 2-CB-4213. August 19, 1959 DECISION AND ORDER On May 7, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding , finding that the Re- spondents had engaged in 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 Inter- 124 NLRB No. 73. MASTERS-LAKE SUCCESS, INC. 581 mediate Report attached hereto. Thereafter, the General Counsel and Respondent Company filed exceptions 1 and supporting briefs.' Pursuant to the provisions of Section 3 ('b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the addition noted below. 1. The General Counsel excepts to the Trial Examiner's failure to find that the Respondent Company violated Section 8(a) (3) of the Act by deducting union dues from the wages of the Lake Success store employees. The checking off of dues from employees covered by the unlawful union-security agreement which served to coerce such payments constituted discrimination in regard to an important condi- tion of employment, i.e., wages. Accordingly, we find merit in this exception and, therefore, find that this conduct was violative of Sec- tion 8 (a) (3) of the Act.' 2. The General Counsel also excepts to the Trial Examiner's failure to find that the Respondent Company violated Section 8(a) (1), (2), and (3) by deducting union dues without written checkoff authoriza- tions. The record reveals only one instance of dues being deducted without proper authorization, and this apparently was the result of a clerical error. In view of the isolated character of this incident and the failure of the General Counsel to produce any other evidence of unauthorized dries deductions, we find no substantial basis upon which to predicate an unfair labor practice finding. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent Company, Masters-Lake Success, Inc., New Hyde Park, Long Island, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Assisting or contributing support to Respondent Local 222 or any other labor organization of its employees. 3 The Respondent Employer requested leave to amend its exceptions to the Intermediate Report and Recommended Order. The request is granted and the amendments made a part of the exceptions. 2 As the record, exceptions , and briefs adequately present the issues and positions of the parties, the Respondent Company's request for oral argument is hereby denied. a Broderick Wood Products Company, 118 NLRB 38, 60, enfd. 261 F. 2d 548 ( C.A. 10) Safeway Stores, Inc., 111 NLRB 968, 977. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Recognizing and dealing with said Local 222, or any successor thereto, as the representative of its employees for the purpose of deal- ing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have demonstrated its status as the majority representative pursuant to a Board-conducted election among the employees of the said Respondent Company. (c) Performing or giving effect to the agreement of February 4, 1957, which Respondent Local 222 has with Masters, Inc., or to any modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or understanding entered into with Local 222 relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have demonstrated its status as majority rep- resentative pursuant to a Board-conducted election among the em- ployees of said Respondent Company. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, except to the extent permitted by 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 Respondent Local 222, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organi- zation shall have demonstrated its status as majority representative pursuant to a Board-conducted election among the employees of said Respondent Company. (b) Jointly and severally with the said Respondent Local 222 re- imburse its employees for any initiation fees, dues, or other moneys paid or checked off pursuant to the aforesaid agreement or any exten- sion, renewal, modification, or supplement thereof, or to any agree- ment superseding it. (c) Preserve and make available to the Board or its agents, upon request, for examination and copying, all records and reports neces- sary to analyze the amounts of moneys due under the terms of this Order. (d) Post at its Lake Success store in New Hyde Park, Long Island, New York, copies of the notice attached hereto marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." MASTERS-LAKE SUCCESS, INC. 583 for the Second Region shall, after being duly signed by Respondent Company, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Post at the same places and under the same conditions as set forth in (d), above, and as soon as they are forwarded by the Regional Director, copies of Respondent Local 222's notice attached hereto marked "Appendix B." (f) Notify the Regional Director for the Second Region in writing, within 10 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. The Respondent, Metal, Plastic, Miscellaneous Sales, Novelty and Production Workers, Local No. 222, Independent, New York, New York, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Performing or giving effect to any agreement covering the employees of Respondent Masters-Lake Success, Inc., relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Local 222 shall have demonstrated its status as majority representative pursuant to a Board-conducted election among the employees of Respondent Company. (b) Acting as the exclusive bargaining representative of any of the employees of Respondent Masters-Lake Success, Inc., for the purpose of dealing with said Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until said Local 222 shall have demonstrated its status as majority representative pursuant to a Board-conducted elec- tion among the employees of Respondent Company. (c) In any like or related manner causing or attempting to cause Respondent Company to discriminate against any employee in viola- tion of Section 8(a) (3) of the Act. (d) In any like or related manner restraining or coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondent Company reimburse said Company's employees for any initiation fees, dues, or other moneys paid or checked off pursuant to the agreement applied to Respondent Company's employees or to any extension, renewal, modi- fication, or supplement thereof, or to any agreement superseding it. 5S4 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and make available to the Board or its agents, upon request, for examination and copying, all records necessary to analyze the amounts of moneys due under the terms of this Order. (c) Post at its offices and meeting halls in New York, New York, copies of the notice attached hereto marked "Appendix B." e Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Local 222's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Rea- sonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the said Regional Director signed copies of Appendix B for posting by Respondent Company at its Lake Success store in .New Hyde Park, Long Island, New York, as provided above herein. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed by Respondent Local 222's representative, be forthwith returned to the Regional Director for disposition by him. (e) Notify the said Regional Director in writing, within 10 days from the date of this, Order, what steps Respondent Local 222 has taken to comply herewith. e See footnote 4, above. 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, we hereby notify you that:. WE WILL NOT assist or contribute support to Metal, Plastic, Mis- cellaneous Sales, Novelty and Production Workers, Local No. 2.22, Independent, or to any other labor organization of our employees. WE WILL withdraw and withhold all recognition from, and cease dealing with, the above-named labor organization as the representative of any of our employees concerning grievances, labor disputes, wages, rates of pay; hours of employment, or other conditions of employment, unless and until the above-named labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among our employees. WE WILL NOT perform or give effect to the agreement of Febru- ary 4, 1957, which the above-named labor organization has with Masters, .Inc., or to any modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or under- MASTERS-LAKE SUCCESS, INC. 585 standing entered into with the above-named labor organization relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the above-named labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board- conducted election among our employees. 117E WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL jointly and severally with the above-named labor organization reimburse our employees for initiation fees, dues, or other moneys paid or checked off pursuant to the aforesaid agreement or any extension, renewal, modification, or supple- ment thereof, or to any agreement superseding it. All our employees are free to become, remain, or refrain from be- coming or remaining, members of any labor organization, except to the extent that this right may be affected by a valid agreement in conformity with Section 8(a) (3) of the Act. MASTERS-LAKE SUCCESS, IN c., 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. APPENDIX B NOTICE TO ALL MEMBERS OF METAL, PLASTIC, MISCELLANEOUS SALES, NOVELTY AND PRODUCTION WORKERS, LOCAL No. 922, INDEPENDENT, AND TO ALL EDZPLOYEES OF MASTERS-LAKE SUCCESS, INC. 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, we hereby notify you that : WE WILL NOT perform or give effect to any agreement covering the employees of Masters-Lake Success, Inc., relating to griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until we shall have demonstrated our exclusive majority representative status pur- suant to a Board-conducted election among the employees of said Company. WE WILL NOT act as exclusive bargaining representative of any of the employees of Masters-Lake Success, Inc., for the purpose of dealing with said Company concerning grievances, labor dis- 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD putes, wages, rates of pay, hours of employment, or other condi- tions of employment, unless and until we shall have demon- strated our exclusive majority representative status pursuant to a Board-conducted election among the employees of said Company. WE WILL NOT in any like or related manner cause or attempt to cause said Company to discriminate against any employee in vio- lation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL jointly and severally With the above-named Company reimburse its employees for initiation fees, dues, or other moneys paid or checked off pursuant to the agreement applied to said Company's employees, or to any extension, renewal, modification, or supplement thereof, or to any agreement superseding it. METAL, PLASTIC, MISCELLANEOUS SALES, NOVELTY AND PRODUCTION WORKERS LOCAL No. 222, INDEPENDENT, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by Jack Berg, an individual, the General Counsel of the National Labor Relations Board, through the Regional Director for the Second Region (New York, New York), issued his consolidated complaint, dated Septem- ber 30, 1958, against Metal, Plastic, Miscellaneous Sales, Novelty and Production Workers, Local No. 222, Independent,' herein called Respondent Local 222, and against Masters-Lake Success, Inc., herein called Respondent- Company. With re- spect to the unfair labor practices, the complaint alleges, in substance, that: (1) Masters, Inc., which owns Respondent Company, entered into a collective-bargaining agreement with Respondent Local 222, effective from February 4, 1957, to Febru- ary 1, 1960, which included, among other things, a union-security clause, a clause requiring temporary help to obtain a temporary union card as a condition of em- ployment, and a clause requiring the Company to deduct union dues from temporary employees and remit same to Local 222; (2) during October 1957, Respondent Com- pany adopted said agreement and since that time Respondent Company and Local 222 have maintained and enforced said agreement, although Local 222 at no time represented an uncoerced majority of Respondent Company's employees; (3) during the period from October to December 1957, named supervisors of Respondent Com- pany informed employees at the time of hiring that they must join Local 222 as a condition of employment, and have permitted Local 222 to solicit members on Respondent Company's property during working hours; (4) since December 1957, Respondent Company has checked off and deducted dues, initiation fees, and assess- ments from wages of its employees and remitted same to Local 222, although the employees had not authorized such deductions; and (5) by the foregoing conduct Respondent Company has violated Section 8(a)(1), (2), and (3), and Respondent ' As amended at the hearing by stipulation of the parties. MASTERS-LAKE SUCCESS, INC. 587 Local 222 has violated Section 8(b)(1) (A) and (2), and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In their duly filed answers, Respondent Company and Respondent Local 222, in substance, deny the unfair labor practice allegations. Respondent Company admits in its answer that the contract of February 4, 1957, covering the employees of Masters, Inc., did cover the employees of Respondent Company after October 1957. Pursuant to due notice, a hearing was held on February 24-26, 1959, in New York, New York. All parties were represented by counsel at the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. The Respondents' motion to dismiss the complaint, made before the close of the hearing and upon which I reserved ruling, is disposed of in accordance with the findings and conclusions herein made. After the close of the hearing, the General Counsel and Respondent Company filed briefs, which I have fully considered. Upon the entire record 2 in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Masters-Lake Success, Inc., Respondent Company, is a New York corporation which operates a retail store in New Hyde Park, Long Island, New York, where it is engaged in the sale of appliances and other merchandise. During the 12-month period preceding the hearing herein, Respondent Company has done a gross volume of business in excess of $500,000. During that same period, Respondent Company received materials, in the value of at least $50,000, from suppliers who had received said materials from points located outside the State of New York. Upon the above admitted facts, I find that Respondent Company is engaged in commerce within the meaning of the Act and that assertion of jurisdiction by the Board is in accord with its jurisdictional standards. II. THE LABOR ORGANIZATION INVOLVED The record shows and I find, as all parties admit, that Metal, Plastic, Miscellane- ous Sales, Novelty and Production Workers, Local No. 222, Independent, herein called Respondent Local 222, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 3 The main issues in this proceeding are (1) whether Respondent Company ren- dered unlawful assistance and support to Respondent Local 222, and (2) whether both Respondents maintained and enforced a contract containing an unlawful union-security provision. The legality of the union-security provision depends on whether Respondent Local 222 had been assisted by any unfair labor practices and whether it represented a free majority of the employees in an appropriate unit. A. History and organization of Masters stores in Metropolitan New York area There are five "Masters" retail stores in the New York metropolitan area. Masters, Inc., a New York corporation, owns and operates a store at 66 West 48th Street in New York City, herein called the New York store. Respondent Local 222 has been the recognized collective-bargaining representative for the employees of that store since about 1950 and since that time has maintained collective-bargaining agree- ments with Masters, Inc., covering the employees of that store. Masters-Jersey, Inc., a New York corporation, owns and operates a store at Paramus, New Jersey, herein called the Paramus store, which was opened on October 7, 1956. Masters-Westchester Corp., a New York corporation, owns and operates a store at Elmsford, Westchester County, New York, herein called the Elmsford store, which was opened on October 8, 1956. Sometime between the date of the opening of these two stores and January 1957, Local 422, a sister local of Respondent Local 222, was recognized as bargain- ing agent for separate units at these stores, and individual 3-year contracts were exe- 3I hereby note and correct the following inconsequential but obvious typographical errors in the typewritten transcript of the testimony : On page 128, line 5, "of" is cor- rected to read "ending"; on page 200, line 21, "agencies" is corrected to read "allegations." 3 Unless otherwise indicated, the factual findings herein set forth are based on un- disputed credible testimony, Respondent Company's admissions, and undisputed docu- mentary evidence. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cuted for each store. Masters-Lake Success, Inc., Respondent Company, is a New York corporation which owns and operates a store in New Hyde Park, Long Island, New York (also referred to in the record as Lake Success, New York), herein called the Lake Success store, which was opened on October 28, 1957. Masters, Inc., also owns and operates a store in Flushing, New York, herein called the Flushing store, which opened about 2 weeks before the hearing in this proceeding. Respondent Local 222 was recognized as the bargaining agent for the employees of the Flushing store and executed a separate collective-bargaining agreement, covering the employees of that store. Masters, Inc., owns a majority of the stock in the other Masters corporation .4 Substantially the same individuals comprise the officers and board of directors for all Masters corporations. The New York store is located about 25 miles from the Paramus store, about 35 miles from the Elmsford store, about 18-20 miles from the Lake Success store, and about 8 miles from the Flushing store. Each store is headed by a manager who supervises the day-to-day retail selling operations and carries out the policies formulated for the chain at the administrative offices of the New York store. The manager has authority, within his sole discretion, to discharge employees "for cause," such as drunkenness, theft, or insubordination, and to handle minor employee grievances with the respective shop steward. With respect to other personnel matters, his recommendations to the administrative office of the New York store are given considerable weight. All stores maintain the same relationship with Masters, Inc. Thus all stores are linked to the administrative offices of the New York store by a direct communica- tion system and practically all administrative matters, such as purchasing, advertis- ing, preparation and disbursement of payrolls, labor relations, and the handling of all but minor grievances, are centrally controlled by the New York offices. Hiring at all stores is subject to approval by the central administrative offices of Masters, Inc., in New York and, with the exception of discharges "for cause," all discharges con- templated by the respective store managers are subject to review by the New York office. Layoffs, transfers, and promotions are handled at the New York office, although the respective store managers are consulted and their recommendations taken into consideration. An employee's seniority is cumulative, carrying over from one store to another. Labor relations policies for all stores are formulated at the New York offices, Any grievances not disposed of by the store manager on a local level are handled by Louis Basis, who is employed by Masters, Inc., to deal with collective-bargaining problems for all its stores. Contract negotiations for all stores are conducted by ken Kopelson, who is an officer of both Masters, Inc., and Masters- Lake Success, Inc., with the assistance of Louis Basis. B. The facts giving rise to this proceeding As previously found, Respondent Local 222 and Masters, Inc., have had con- tinuous collective-bargaining contracts since about 1950, covering the employees of the New York store. With the exception of such items as wage increases, hours, and changes in holidays and working conditions, the contracts contained the same provi- sions which were merely carried forward from the prior contract to the one succeed- ing it. The last such contract was executed on February 4, 1957, and was to be effective to February 1, 1960, with a 60-day automatic renewal clause for a period of 1 year. In this contract, Respondent Local 222 is recognized by Masters, Inc., "as the sole collective bargaining agency for its employees eligible to membership in the Union, including sales, clerical, shipping and service employees and excluding super- visors and executives." Article 3 of the contract requires all employees, "as a term or condition of employment," to join Local 222 after the 30th day of their employ- ment or of the effective date of the agreement, whichever is later, and thereafter to remain members. In articles 21 and 23, Masters, Inc.. "agrees to deduct all union membership dues and initiation fees" "during the first week of each and every month" and to remit same to Local 222, in accordance with signed employee authorizations to that effect in the form prescribed in the contract and to be furnished to Masters, Inc., by Local 222. The contract also contains the following clause (article 2) : This agreement shall apply to the establishment now owned, maintained, oper- ated and/or controlled by the Employer [Masters, Inc.] in the Metropolitan h Sometime in 1957. Masters-Jersey, Inc., became a wholly owned subsidiary of Masters- Westchester Corp. However, Masters, Inc., continued to own a majority of the stock in Maters-Westchester Corp. MASTERS-LAKE SUCCESS, INC. 589 area and/or any new establishment that the Employer may own, maintain, operate and/or control in that area at any time during the term of this agreement. Respondent Company was incorporated sometime in September 1957. Although the Lake Success store was not officially open to the public until October 28, 1957, applicants for employment began to be interviewed early in October and those hired began working about 2 weeks before the opening of the store, with the employee complement gradually increasing each day until the store opened on October 28. By letter dated October 4, 1957, to Masters, Inc., addressed to the attention of Ken Kopelson, an officer of Masters, Inc., and of Respondent Company, Respondent Local 222 called attention to article 2 of its agreement with Masters, Inc., and re- quested that "all terms and conditions" of the aforestated agreement be applied to all employees to be hired to work at the Lake Success store. Shortly after its re- ceipt, Kopelson referred the letter for advice to Louis Basis, employed by Masters, Inc., as a labor relations consultant. Basis checked a copy of the aforestated agree- ment and confirmed the fact that the clause mentioned in the letter was contained in the contract. A few days later, Basis informed Kopelson of that fact and advised Kopelson that he should acknowledge to Respondent Local 222 the existence of such a clause and that the Lake Success store would be covered by the existing contract between Masters, Inc., and Local 222, as requested by Respondent Local 222. Kopelson then orally informed Benjamin Ladmer, vice president and business agent of Respondent Local 222, that "we concurred in their interpretation of the contract" and that what Local 222 had requested in its letter was acceptable to Masters, Inc .5 The first thing that Ko eison admittedly did after the foregoing conversation with Ladmer was to inform Irving Goodman, manager of the Lake Success store, that the terms of the contract between Masters, Inc., and Respondent Local 222 would be applied to the Lake Success store, and to acquaint Goodman with the terms and conditions of said contract, including the minimum wage rates. Thus Kopelson testified: TRIAL EXAMINER: In other words, you informed the manager, Mr. Goodman, of the Lake Success store that he was to operate under the terms of this contract? The WITNESS: That's correct. Kopelson further testified that he also discussed with Goodman "other arrangements relative to the handling of employees." Kopelson admitted that the terms of the contract were then applied by Goodman to employees hired at the Lake Success store before its opening on October 28 and that these employees were paid according to the prevailing rates in said contract.6 Goodman corroborated Kopelson with respect to this conversation which, Good- man testified, occurred in October, before the opening of the Lake Success store. He admitted that Kopelson told him that the Lake Success store was going to be operated under the contract which Masters, Inc., had with Local 222, and that Kopelson outlined to him the minimum wages, the hours, and certain other employee benefits contained in the contract. Following this conversation with Kopelson, Manager Goodman admittedly in- formed Floor Manager Berger 7 and other supervisory personnel that the Lake 5 Ladmer denied that Kopelson had such a conversation with him in October. He testi- fied that it was not until the first week in November, when he had already obtained signed authorization cards from a majority of the Lake Success employees and showed them to Kopelson, that Kopelson informed shim of Local 222's letter, mentioned in the text, and agreed to recognize Local 222 for the Lake Success store and to apply the New York store contract to the Lake Success store. Kopelson impressed me as an honest and straightforward witness. His attitude indicated a willingness to disclose the true facts, regardless of whether they might be regarded as adverse to Respondents' position, an attitude not displayed by Ladmer. Moreover, Kopelson further testified that the "very first thing we did" after informing the Union to the effect stated in the text, was to acquaint the manager of the Lake Success store "with the terms and conditions of the contract which we had in force" for the New York store. Irving Goodman, manager of the Lake Success store and also a very frank and credible witness, admitted that this conversation with Kopelson, set forth in more detail in the text, occurred sometime in October prior to the opening of the store. Under all the circumstances, I do not credit Ladmer's contrary testimony. 9I do not credit Ladmer's denial that employees were hired in accordance with the prevailing wage scale contained in the contract. 7 Berger is floor manager of the main floor at the Lake Success store, in charge of about 50 salesmen. I find that he is a supervisor within the meaning of the Act. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Success store was going to be a union store. No permanent rank-and-file employees were transferred from the New York store to the Lake Success store in 1957; most of the employees hired for the Lake Success store had not previously worked at any of the Masters stores. Goodman and Berger personally interviewed most of the applicants for employment at the Lake Success store, prior to its opening. When interviewing such applicants, Goodman admittedly told them that the store "would be a union place" and that the Company would provide Blue Cross hospitalization, and mentioned other employee benefits such as paid holidays and vacations, all of which are contained in the contract then in force between Masters, Inc., and Re- spondent Local 222. When hiring employee Di Dio, who started to work on October 14, 1957, Berger told him that "there was a union in the store," that he would get certain benefits such as hospitalization and pay increases "by joining the Union," and that a union man would get in touch with him about the Union and these benefits. A few days after he commenced working, Di Dio saw a man handing out union cards to employees at the store and was told by this man that he was from the Union and that the cards pertained to joining the Union. Di Dio filled out one of these cards "to join the Union" and returned it to the union representative. On several occasions thereafter, but before the opening of the store on October 28, Di Dio saw this union representative handing out and collecting union cards from employees while they were at work. Manager Goodman admitted seeing Business Agent Ladmer at the Lake Success store on various occasions prior to its opening, that he knew that Ladmer was a representative of Respondent Local 222, but that he paid no attention to what Ladmer was doing. Ladmer admitted that both before and after the opening of the Lake Success store, he talked to the employees at the store and solicited and obtained their signatures to union authorization cards. Under all the circumstances, I find that Ladmer was the union representative who talked to employee Di Dio during working hours and obtained his signature to a union authorization card. Ladmer testified that by October 28, 1957, the date when the Lake Success store formally opened to the public, he had in his possession signed union authorization cards from a majority of the employees,8 that during the first week in November he showed these cards to Kopelson, and that Kopelson at that time then granted Ladmer's request to recognize Local 222 and to apply the New York store contract to the Lake Success store. Kopelson admitted that he had never asked for a card check but testified that "they furnished me with a number of cards that indicated they had quite a few." There is no indication that the cards were counted or that the signatures were checked against the payroll or verified in any other manner. Although unable to remember the exact date, Kopelson testified that it was before they showed him the cards that he had informed Ladmer of his concurrence in Local 222's interpretation of the contract and that there would be compliance with Local 222's request to apply its current contract with Masters, Inc., to the Lake Success store. As previously found, this occurred during the hiring period before the opening of the store on October 28. For reasons previously indicated, and upon consideration of the entire record as a whole, I do not credit Ladmer's testimony that it was after Ladmer had obtained signed authorization cards from a majority of the employees and had submitted them to Kopelson during the first week in November that Kopelson agreed to recognize Local 222 and to apply the contract in force at the New York store to the Lake Success store. Beginning with December 7, 1957, Respondent Company began to deduct union dues from the wages of employees who had submitted written checkoff authoriza- tions, as provided in the contract, and to remit the deductions to Respondent Local 222. As of the date of the hearing in these proceedings, all applicable terms of the contract continued to be applied to the employees of the Lake Success store. C. Contentions of the parties The General Counsel contends that: (1) Either a single unit of employees of all Masters stores in the Metropolitan New York area is appropriate or that the em- ployees of the Lake Success store alone may constitute a separate appropriate unit; (2) the Respondent Company applied the union-security contract to the employees of the Lake Success store and recognized Respondent Local 222 as their exclusive bargaining representative before a majority of the Lake Success employees had designated Local 222 as their bargaining representative; (3) Respondent Company 8 Ladmer testified that by the first week in November there were between 130 and 140 people working in the Lake Success store, including part-time and -temporary help, and that by October 28 be had 130 signed cards. MASTERS-LAKE SUCCESS, INC. 591 aided and assisted Local 222 in obtaining union authorization cards so that any majority subsequently obtained by Local 222 was tainted by Respondent Company's unfair labor practices; (4) the application and enforcement of the union-security contract and checkoff provisions at the Lake Success store was violative of the Act; and (5) by the foregoing conduct Respondent Company violated Section 8(a)(1), (2), and (3) of the Act and Respondent Local 222 violated Section 8(b)(1)(A) and (2) of the Act.9 The Respondents contend that: (1) The New York and Lake Success stores, to- gether, constitute a single appropriate unit; (2) the Lake Success store was a mere accretion to the New York store and that therefore the application of the contract of February 4, 1957, to the employees of the Lake Success store was lawful, without regard to whether Local 222 represented a majority of the Lake Success employees; (3) in any event, Respondent Company did not recognize Respondent Local 222 as the bargaining representative of the employees of Lake Success nor apply the New York store contract to the Lake Success employees until Local 222 had demonstrated its majority representation through authorization cards signed by Lake Success em- ployees; and (4) Local 222 was not assisted by any unlawful conduct of Respondent Company. D. Analysis and conclusions Although the union-security clause contained in the contract which was applied to the employees at the Lake Success store follows the language of the statute, the proviso to Section 8(a) (3) of the Act prescribes the conditions under which an agree- ment containing such a clause may be lawful. Thus, the proviso requires, among other things, that all of the following requirements be met: (1) The unit covered by the agreement must be an appropriate unit within the meaning of the Act; (2) the Union must be designated or selected as bargaining representative by a majority of the employees in said appropriate unit when the agreement is made; and (3) the Union must be one which has not been established or assisted by any unfair labor practices. Failure to comply with any one of the above requirements renders the union-security clause unlawful. For the reasons hereinafter indicated, I find that Respondents have failed to comply with any of the above requirements. 1. The appropriate unit In view of the ownership and relationship of the Masters corporations and the highly centralized control of administrative policies, including labor relations, hiring, promotions, transfers, layoff, and cumulative employee seniority, as previously de- tailed, it is clear, and I find, that the corporations constitute a single employer and that a single unit of all stores in the Metropolitan New York area is appropriate for collective-bargaining purposes. As the Flushing store was not in existence in 1957, I find that at the time when the contract was applied to the Lake Success store, the appropriate unit consisted of the employees at the New York, Paramus, Elmsford, and Lake Success stores. The fact that Respondent Local 222 may not have had territorial jurisdiction over the Paramus and Elmsford stores has no bearing on the scope of the appropriate unit.10 Indeed, the Board has held that in cases involving chains of retails stores, absent unusual circumstances, the appropriate unit embraces employees of all stores located within an employer's administrative or geographical area.lt If this were the only unit appropriate for collective-bargaining purposes, then the union-security contract was unlawful because it did not cover that unit. However, certain factors are present which militate against a finding that a single unit of all stores is the only appropriate unit. First and foremost is the bargaining 9In the complaint and at the hearing, the General Counsel also contended that articles 4 and 22 were part of the contract applied to the Lake Success store and that these articles were violative of the Act because they required temporary help to obtain union cards as a condition of employment and also provided for dues deductions from their wages. How- ever, the undisputed evidence shows, and I find, that these clauses were deleted from the contract on the day of its execution on February 4, 1957, and (lid not constitute part of -the contract which was applied to the employees at the Lake Success store. Although requested by the Trial Examiner to set forth his position with respect to the deletion of these clauses in his brief, the General Counsel makes no reference to this issue in his brief. Under the circumstances, I construe the General Counsel's position to constitute an abandonment of the aforesaid allegations in the complaint and of his prior contentions with respect to these articles. 10 Paxton Wholesale Grocery Company, 123 NLRB 316. "Robert Ball Clothes, Inc., 118 NLRB 1096; Father and Son Shoe Stores, Inc., 117 NLRB 1479. 592 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD history, which has been on the basis of a separate single unit for each store, with a separate contract for each store. There is no bargaining history on the basis of any multistore combination. Then there is the fact that each store has an identity of its own and is owned by a separate corporation.12 There is also separate immediate supervision of the employees at each store, headed by a manager who exercises some degree of local autonomy. Furthermore, the employees' interest in terms and condi- tions of employment are not identical in all respects. For example, although the New York store is not open evenings, except during Christmas and rush seasons, the Lake Success and other stores are open evenings on a regular basis. No permanent rank-and-file employees were transferred from the New York store to the Lake Success store in 1957. In view of all the foregoing, I find that each store, alone, may also constitute a separate appropriate unit. In other words, I find that a unit comprised of the employees of the New York and Lake Success stores is inappro- priate but that a unit confined to the employees of the Lake Success store may be appropriate. As the union-security contract was not confined to the employees of the Lake Success store but was applied to cover a unit comprised of the employees of the New York and Lake Success stores, it did not cover an appropriate unit when applied to the Lake Success store and hence, at least to that extent, was unlawful.13 2. Majority representation The Respondents contend that the Lake Success store constituted an accretion to the New York store and that therefore the New York store contract automatically covered the employees of Lake Success, even if a majority of the latter employees had not selected Local 222 as their bargaining representative. Despite the existence of the present contract at the time when the other stores were opened, none of these stores, including the Flushing store, were ever treated as accretions to the New York store. Nor, except for the Flushing store, did Respondent Local 222 ever seek to invoke the coverage clause of the New York store contract to the employees of the other stores.14 Lake Success was not a new department but a new store, complete by itself, and its employees had not previously been represented for collective-bargaining purposes, There is no reason for according a different treatment to the Lake Success store than to the other stores. Under all the circumstances, including the factors set forth in the previous section, I find, contrary to Respondents' contention, that the Lake Success store did not constitute an accretion to the New York store.15 Assuming that the Lake Success store was treated as a separate unit when the New York store contract was applied to its employees (and even assuming, contrary to my previous finding, that the Lake Success and New York stores, together, con- stituted a single appropriate unit), the union-security contract could not lawfully be applied to the Lake Success employees until Respondent Local 222 had been desig- nated or selected as bargaining representative by a majority of the Lake Success employees. Upon the basis of the entire record considered as a whole, and particu- larly the admissions and conduct of Respondent Company's representatives, Kopelson, 1' This is not true of the Flushing store which, however, was not in existence at the times material to the complaint. 13 As hereinafter found, the Lake Success store did not constitute an accretion to the New York store. 14 Kopelson testified that it was because of the pendency of the present proceeding that the Flushing store was treated as a separate unit and a separate contract executed to cover its employees upon a showing by Local 222 that it represented a majority of said employees. 15 Stern Brothers, 2-RC-7941 (unpublished), decided May 21, 1957. In this case the employer owned and operated a large department store in Now York City and on Septem- ber 2, 1955, opened up a suburban store in Great Neck, Long Island. The Union peti- tioned for a single unit comprising the employees of both stores but was already the bargaining representative of the employees of the New York store under an agreement which ran until February 2, 1958. The Board did not regard the Great Neck store as an accretion to the New York store and held that "as the employees at the Great Neck store have not been represented heretofore, it is well established that a separate election must be held among them to determine whether or not they desire to be included in the existing bargaining unit represented by petitioner." There are many cases in which the Board refused to find accretion on the basis of factors which were not as strong as those in the instant case. See, e.g., Delta Tank Manufactur- ing Company, Incorporated, 100 NLRB 364, 365; Price National Corporation, 102 NLRB 1393, 1394-1395; Armstrong Cork Company, 106 NLRB 1147, 1149; and Ware Labora- tories, Inc., 98 NLRB 1141, 1142-1143. MASTERS-LAKE SUCCESS, INC. 593 Basis, Goodman, and Berger, as previously set forth, I find that Respondent Company complied with the requests of Respondent Local 222, recognized Local 222 as the exclusive bargaining representative for the Lake Success employees, applied the terms of the existing New York store contract to the employees of the Lake Success store, and that all this occurred while Respondent Company was engaged in the process of hiring employees, before the Lake Success store was staffed and opened to the public and before Local 222 had obtained signed authorization cards from a majority of the Lake Success employees. Moreover, as hereinafter found, whatever majority Local 222 subsequently achieved was tainted by the unlawful assistance and support rendered by Respondent Company and hence at no time represented the free and untrammeled choice of the employees. For all of the foregoing reasons, I find that the application of the union -security contract to the Lake Success store employees was unlawful. 3. Respondent Local 222 assisted by unfair labor practices The conduct of Manager Goodman and Floor Manager Berger during the period when employees were interview and hired for the Lake Success store has already been detailed. Thus, Goodman told employees that the store "would be a union place" and told them about the employee benefits contained in the contract then in force for the New York store. Berger told at least one employee that "there was a union in the store," that he would get certain employee benefits by joining the Union, and that a union man would get in touch with him about these matters. Thereafter, during the period when employees were being hired but before the opening of the store to the public, Business Agent Ladmer was given free reign of the store to solicit and obtain employee signatures to authorization cards during working hours. Under all the circumstances, I find that by the foregoing conduct Respondent Company rendered assistance and support to Respondent Local 222 in obtaining employee signatures to union authorization cards in violation of Section 8(a)(2) and (1) of the Act.16 As the union-security contract which was applied to the Lake Success store employees was made with a union which was assisted by Re- spondent Company's unfair labor practices, the contract in this respect was unlawful for this reason alone. And this is so even if, as Respondents contend, the contract had not been applied until Local 222 had obtained a majority of the signed authoriza- tion cards of the Lake Success employees. E. Concluding findings I find that by recognizing Respondent Local 222 as the exclusive bargaining representative for the Lake Success store employees, by applying the unlawful union-security contract to the Lake Success store employees, and by thereafter maintaining said contract in effect with respect to the Lake Success store employees, Respondent Company has violated Section 8(a)(1), (2), and (3) of the Act and Respondent Local 222 has violated Section 8(b)(1)(A) and (2) of the Act.17 I also find that by deducting union dues from the wages of Lake Success employees and remitting same to Respondent Local 222, pursuant to the checkoff provisions of the ; unlawful • union-security agreement, and by assisting Local 222 in obtaining employee signatures to union authorization cards, Respondent Company has ren- dered further assistance and support to Local 222 in violation of Section 8(a) (2) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section Ill, above, occurring in connection with the operations of the Respondent Employer described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. 1e See, e.g., Alaska Salmon Industry, Inc., et at., 122 NLRB 1552, where the Board found that by permitting a union to solicit dues checkoff authorizations during the ihiring process, the Company unlawfully contributed support to the Union in violation of Sec- tion 8(a) (2) and (1) of the Act. 11 See, e.g., Bryan Manufacturing Company, 119 NLRB 502, enfd. sub nom. Local Lodge No. 1424, International Association of Machinists, AFL-CIO, 264 F. 2d 575 (C.A., D.C.). 525543-460--vol. 124-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices,- I will recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Company violated Section 8(a) (1), (2), and (3) of the Act, and Respondent Local 222 violated Section 8(b) (1) (A) and (2) of the Act by applying, maintaining, and enforcing an agreement containing an illegal union- security provision, I will recommend that Respondent Company withdraw and with- hold all recognition from Respondent Local 222 as the representative of its employees, unless and until said Local 222 shall have demonstrated its exclusive majority repre- sentative status pursuant to a Board-conducted election. Nothing in this recom- mendation should be taken, however, to require Respondent Company to vary those wages, hours, and other substantive features of its relations with the employees, if any, which have been established in the performance of this agreement. As previously found, Respondent Company has given unlawful assistance and support to Respondent Local 222. Moreover, by their union-security agreement, implemented by a dues checkoff arrangement, the Respondents have unlawfully re- quired the employees to maintain membership in Respondent Local 222 as the price of employment. In these circumstances, I find that it will effectuate the policies of the Act to order Respondents jointly and severally to refund to the employees all initiation fees, dues, or other moneys paid or checked off pursuant to the unlawful union-security agreement, or any extension, renewal, modification, or supplements thereof, or any agreement superseding it.18 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By recognizing Local 222 as the exclusive bargaining representative for the Lake Success store employees, by applying the contract of February 4, 1957, to the Lake Success store employees, and by maintaining said contract in effect with respect to said employees, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act, and Respondent Local 222 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 2. By deducting union dues from the wages of Lake Success store employees pur- suant to the checkoff provisions of the aforesaid contract and remitting same to Respondent Local 222, and by assisting Local 222 in obtaining employee signatures to union authorization cards, Respondent Company has engaged in and is engaging in further unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 1 See, e.g., Bryan Manufacturing Covvpany, supra; Revere Metal Art Co., Inc., 123 NLRB 114; Hibbard Dowel Co., 113 NLRB 28. Siemons Mailing Service, Petitioner and San Francisco-Oakland Mailers Union No. 18, ITU, AFL-CIO; Independent Mailers' and Addressers' Union, and Bookbinders & Bindery Women, Local 32-125, I.B. of B . Case No. 2O-RM-260. August 19, 1959 SUPPLEMENTAL DECISION ON MOTIONS, ORDER AMENDING DECISION AND DIRECTION OF ELEC- TION, AND ORDER TO SHOW CAUSE Subsequent to the Board's Decision and Direction of Election in this case issued on November 14, 1958,1 finding that the Employer's 1122 NLRB 81. 124 NLRB No. 82.