Dancker & Sellew Inc.

'S24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 International Union of Electrical , Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of the Act. 3. John J. McCormack, until his discharge by the Respondent on June 27, 1961, was a supervisor within the meaning of Section 2(11) of the Act. 4. The Respondent has not engaged in unfair labor practices within the meaning ,of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, it is recommended that the complaint herein be dismissed in its entirety. Dancker & Sellew, Inc. and Lawrence E. Clark and Office Equip- ment Employers Association, Party in Interest Local 210, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Lawrence E. Clark and Office Equipment Employers Association , Party in Inter- est. Cases Nos. 2-CA-8615 and 2-CB-3/.66. January 21, 1963 DECISION AND ORDER On September 18, 1962, Trial Examiner George J. Bott issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Intermediate Report. Thereafter, the Gen- eral Counsel and the Respondent Union filed exceptions to the Inter- mediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner 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 these cases, and, as it finds merit in the exceptions of the General Coun- sel, adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. There is no dispute as to the facts, which, in summary, show that in June 1958, approximately 14 employers, including the Respondent Employer, formed the Office Equipment Employers Association. Some of these employers had previously bargained separately with the Respondent Union as the representative of their warehouse employees, but the Association thereafter assumed the function of bargaining with the Respondent Union on behalf of its employer-nnennbers on an as- sociationwide basis. On February 26, 1959, the Association and the Union executed a contract covering an associationwide unit of warehouse employees. The contract included a union-security clause and was for a term end- ing on July 1, 1961. Simultaneously, the parties entered into a "Sup- 140 NLRB No. 75. DANCKER & SELLER', INC. 825 plemental Agreement" reciting that, effective May 1, 1961, as to the office clerical employees, and June 1, 1961, as to sales employees, the Association would recognize the Union as the representative of these 'categories, which would then be added to the contract unit. On April 20, 1961, the Respondent Employer called a meeting of its office clerical and sales employees, and notified them that, pursuant to the "Supplemental Agreement," they had to join the Union within 30 days of the effective dates set forth therein. None of the employees evinced any desire to join or be represented by the Union, and several voiced opposition. In May 1961, the Respondent Employer called separate meetings of its office clerical and sales employees. Each group was addressed by a representative of the Union, and again ex- pressed opposition to joining the Union. An employee meeting was held later that month, at which all the employees voted unanimously against union representation, and this vote was communicated to the Respondent Employer. On June 20, 1961, all the office clerical and sales employees of the Respondent Employer signed a petition, which was delivered to the Respondent Employer, reiterating their opposition to the Union, and stating that they would consider it an unfair labor practice if the Employer executed a contract with the Union which included them.' In January 1962, the Association and the Union executed an as- sociationwide contract covering a warehouse unit. On Apri] 26, 1962, they entered into an associationwide contract covering office clerical and sales employees, which included a union-security clause. Prior to the execution of this contract, the Union showed by membership cards that it had been designated by a majority of these employees on an as- sociationwide basis. No office clerical or sales employee of the Re- spondent Employer, however, had designated the Union as his bargain- ing representative.2 It is clear, therefore, from the undisputed facts, that the employees involved expressed their opposition to union representation, vocally and in writing, to both the Respondent Employer and the Respondent Union, on several occasions. The Respondents nevertheless dis- regarded this unanimous opposition, and included these employees in the contract unit. The Board dealt with a comparable situation in Mohawk Bttsiness Machines Corporation,' where an employer joined an association and immediately included his employees in the as- -sociationwide union contract without their consent. The Board, in that case, stated that the employer "could not unilaterally and with- I The Respondent Employer testified that it never enforced the union -security provision of the "Supplemental Agreement" as to its office clerical and sales employees because of its belief that they had to sign checkoff cards before it could be enforced 2It appears that the union-security clause of this contract is not being enforced because of the pendency of this proceeding. 8116 NLRB 248. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out the express or implied consent of its employees bind them to rep- resentation in a multiemployer unit, . . ." and found such conduct violative of Section 8(a) (1), (2), and (3) of the Act. It follows that the conduct in the present case is a fortiori unlawful as the Respond- ents herein foisted representation on employees with full knowledge that they did not desire representation, and, in addition, by including a union-security clause in the contract, compelled them, under penalty of discharge, to become members of the Respondent Union against their clearly manifested opposition thereto. Under such circum- stances, we find no merit in the Respondents' contention that such con- duct was justified because the effect of the contract was to include these employees in a unit which was appropriate by reason of the existing associationwide bargaining history for a different category of employees, in which unit it was the majority representative.' Accordingly, under all the circumstances, we find that the Re- spondent Employer, by executing and maintaining the contract cov- ering its office clerical and sales employees on April 26, 1962, with the Respondent Union, which did not represent these employees, has interfered with, restrained, and coerced its employees in violation of Section 8(a) (1) ; has unlawfully rendered assistance and support to the Respondent Union in violation of Section 8(a) (2) ; and, by the inclusion of a union-security clause in the contract, has discriminated against its employees with regard to their hire and tenure of employ- ment in violation of Section 8(a) (3) of the Act.' We further find that the Respondent Union, by executing and maintaining the con- tract covering the office clerical and sales employees of the Respondent Employer when it did not represent these employees, has restrained and coerced these employees in violation of Section 8(b) (1) (A) of the Act, and has attempted to cause the Respondent Employer to dis- criminate against its employees in violation of Section 8 (a) (3), thereby violating Section 8 (b) (2) of the Act.6 THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operations of the Respondent Employer as set forth in the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. ' We find that Peninsula Auto Dealers Association of the California Association of Employers, 107 NLRB 56 , which is relied upon by the Trial Examiner is not dispositive- of the issue here , as it was a representation case and did not concern itself with the kind of conduct before us , in this case See Twin County Transit Max, Inc , 137 NLRB 1708 e See Paul Biazevich, et at , d/b/a MV "Liberator," 136 NLRB 13 DANCKER & SELLER', INC. TIIE REMEDY 827 Having found that the Respondents engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in these cases, the Board makes the following: CONCLUSIONS OF LAW 1. The Respondent Employer, Dancker & Sellew, Inc., New York, New York, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union, Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By executing and maintaining the contract of April 26, 1962, covering office clerical and sales employees, at a time when the Union did not represent said employees, the Respondent Employer has vio- lated Section 8(a) (1), (2), and (3) of the Act, and the Respondent Union has violated Section 8(b) (1) (A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce Within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in these cases, 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 Employer, Dancker & Sellew, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Assisting or contributing support to Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or to any other labor organization, and recognizing or contracting with the Respondent Union as the representative of its office clerical and sales employees for the purpose of collective bar- gaining with respect to wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until such labor organization shall have been duly certified by the National Labor Relations Board as the exclusive representative of the said employees. (b) Giving effect to the collective-bargaining contract of April 26, 1962, with the Respondent Union, or to any extension, renewal, or modification thereof, unless and until the said Union shall have been duly certified by the National Labor Relations Board as the exclu- 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sive representative of the said employees : Provided, however, that nothing in this Decision and Order shall require the Respondent Em- ployer to vary or abandon those wage, hour, seniority, or other sub- stantive features of its relations with its employees, established pur- suant to any such agreement, or to prejudice the assertion by employees of any right they may have thereunder. (c) Encouraging membership in the Respondent Union, or in any other labor organization, by conditioning the hire or tenure of em- ployment or any term or condition of employment upon membership in, affiliation with, or dues payments to, any such labor organization, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from the Respondent Union as the exclusive representative of the Respondent Employer's office clerical and sales employees for the purposes of collective bar- gaining unless and until said labor organization has been duly cer- tified by the National Labor Relations Board as the exclusive repre- sentative of such employees. (b) Post at its plant in New York, New York, copies of the attached notice marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent Employer's representative, be posted by it immediately upon the receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Employer to insure that these notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Second Region signed copies of the attached notice marked "Appendix A" for posting by v 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 " DANCKER & SELLEW, INC. 829 the Respondent Union at its offices where notices to members are customarily posted. Copies of said notice, to be furnished by the Re- gional Director, shall, after being duly signed by a representative of the Respondent Employer, be forthwith returned for such posting. (d) Post at the same places and under the same conditions as set forth in (c) immediately above, as soon as they are forwarded by the Regional Director, copies of the Respondent Union's attached notice marked "Appendix B." (e) Notify the said Regional Director, in writing, within 10 days from the date of this Decision and Order, what steps it has taken to comply herewith. B. The Respondent Union, Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Dancker & Sellew, Inc., its officers, agents, successors, or assigns, to discriminate against its office clerical and sales employees by giving effect to its agreement of April 26, 1962, or to any extension, renewal, or modification thereof. (b) Causing or attempting to cause Dancker & Sellew, Inc., its officers, agents, successors, or assigns, to discriminate against its office clerical and sales employees by conditioning their hire or tenure of employment or any term or condition of employment upon membership in, affiliation with, or dues payments to, the Respondent Union, except as authorized in Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (c) In any other manner restraining or coercing employees of the Respondent Employer in the exercise of the rights guaranteed in Sec- tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix B." 8 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an authorized representative of the Respondent Union, 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 members are customarily posted. Reason- 8 See footnote 7, supra. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able steps shall be taken by it to insure that 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 attached notice marked "Appendix B" for posting by the Respondent Employer as provided herein. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representative of the Respondent Union, be forthwith returned for such posting. (c) Post at the same places and under the same conditions as set forth in (b) immediately above, as soon as they are forwarded by the Regional Director, copies of the Respondent Employer's attached no- tice marked "Appendix A." (d) Notify the said Regional Director, in writing, within 10 days from the date of this Decision and Order, what steps it has taken to comply herewith. MEMBERS RODGERS and BROWN took no part in the consideration of the above Decision 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 you that: WE WILL NOT assist or contribute support to Local 210, interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or to any other labor organization, or recog- nize or contract with that Union as the representative of any of our office clerical and sales employees for the purpose of collective bargaining with respect to wages, rates of pay, hours of employ- ment, or other terms and conditions of employment, unless and until such labor organization shall have been duly certified by the National Labor Relations Board as the exclusive representative of the said employees. WE WILL NOT give effect to the contract of April 26, 1962, en- tered into with the said Union, or to any extension, renewal, or modification thereof, unless and until the said Union shall have been duly certified by the National Labor Relations Board as the exclusive representative of the said employees. WE WILL NOT encourage membership in the said Union, or in any other labor organization, by conditioning the hire or tenure of employment or any term or condition of employment upon membership in, affiliation with, or dues payments to, any such DANCKER & SELLEW, INC. 831 labor organization, except as authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. AVE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form, join , or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act , and to refrain from any and all such activi- ties, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. '1' WILL withdraw and withhold all recognition from the said Union as collective-bargaining representative of any of our unite clerical and sales employees unless and until that Union shall have been duly certified by the National Labor Relations Board as the, exclusive representative of such employees. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organiza- tion, except to the extent that this right may be affected b,%; an agreement in conformity with Section 8(a) (3) of the Act, as amended. DANCKER & SELLEW, INC., Employer. Dated---------------- By------------------------------------- (Representati ve) (Title) This notice must remain posted for 60 days from the date of post- ing, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York 22, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 210, INTERNATIONAL BROTIIER- 1I00D OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND 11ELPERE OF AMERICA 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: 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT cause or attempt to cause Dancker & Sellew, Inc., its officers, agents, successors, or assigns, to discriminate against its office clerical and sales employees by giving effect to its agree- ment of April 26, 1962, or to any extension, renewal, or modifica- tion thereof. WE WILL NOT cause or attempt to cause Dancker & Sellew, Inc., its officers, agents, successors, or assigns, to discriminate against its office clerical and sales employees by conditioning their hire or tenure of employment or any term or condition of em- ployment upon membership in, affiliation with, or dues payments to, the said Union, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any other manner restrain or coerce employees of the Respondent Employer in the exercise of the rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. LOCAL 210, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date of posting and must not be altered, defaced, or covered by any other material. Members may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York 22, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge of unfair labor practices filed on May 16, 1962, against Dancker & Sellew, Inc., herein called Respondent Company, and a charge of unfair labor practices filed on May 3, 1962, against Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Re- spondent Union, the General Counsel of the National Labor Relations Board issued a consolidated complaint and notice of hearing dated June 5, 1962 Answers denying the commission of unfair labor practices were filed by Respondents and a hearing was held before Trial Examiner George J. Bott on July 12 and 18, 1962, at New York, New York. The General Counsel, Dancker & Sellew, Inc., and the Union were represented by counsel, participated in the hearing, and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, to introduce evidence, to present oral arguments, and to file briefs. General Counsel and Respondents argued orally at the close of the (hearing and General Counsel and Respondent Union filed briefs which have been considered. Office Equipment Employers Association, the DANCKER & SELLEW, INC. 833 Party in Interest, did not enter an appearance although Paul W. Dancker, Jr., president of the Association and vice president of Respondent Company, was present and testified at the hearing. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Dancker & Sellew, Inc., is and has been at all times material herein, a New York corporation engaged in the sale and distribution of office furniture and equipment. Respondent Company maintains its principal office and place of business in the city of New York. During the year ending December 31, 1961, Danker & Sellew, Inc., in the course and conduct of its business, purchased and caused to be transported and delivered to its place of business in the city of New York office furniture and equipment and other goods and materials valued in excess of $500,000 of which goods and materials in excess of $50,000 were transported and delivered to its place of business in interstate commerce directly from States of the United States other than the State of New York. It was stipulated, and I find, that Respondent Company is engaged in commerce with the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts The charges and complaint of unfair labor practices in this case were apparently triggered by the negotiation and execution on April 26, 1962, of a collective-bargain- ing agreement between the Office Equipment Employers Association, of which Dancker & Sellew is a member, and Respondent Union, whereunder , inter alia, the Association recognized the Union as the collective-bargaining representative of the employees of the employer-members of the Association in a bargaining unit con- sisting of office clerical employees and sales employees, and which agreement con- tained a provision requiring membership in good standing in Respondent Union as a condition of employment. It is this argreement-valid on its face-which General Counsel attacks as being a violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act, basically on the ground that Respondent Union was not at any material time the duly selected bargaining representative of Dancker & Sellew's employees in the unit covered by the agreement. Although it is conceded by Respondents that the Union did not in fact actually represent any employee of Respondent Company in a unit of office clerical and sales employees, a resolution of the legal issues requires a historical survey of the labor relations of the parties to the agreement. During the period from 1955 to 1958, various individual employers in the retail and wholesale office furniture business in New York City had individual contracts with Respondent Union in which the Union was recognized as the bargaining rep- resentative of the Employer's respective warehouse employees. Approximately 10 employers, not including Dancker & Sellew, also had individual contracts with the Union recognizing the Union as the sole collective-bargaining agent for all their employees including, where there were such employed, office and sales personnel. In June 1958, approximately 14 employers, including the 10 employers whose con- tracts covered office and sales employees as well as warehouse employees, and also including Respondent Dancker & Sellew, formed the Office Equipment Employers Association, which assumed the function of bargaining with Respondent Union on be- half of its employer-members. Since about July 1, 1958, Respondent Union has rep- resented the warehouse employees of the employer-members of the Association on an association basis and pursuant to associationwide labor agreements. On February 26, 1959, the Association and Respondent Union executed a contract covering a unit of all warehouse employees of the employer-members expiring on July 1, 1961. Respondent Company's employees were included in the multiemployer unit. Simultaneously with the execution of the warehouse agreement, the parties executed a supplemental agreement relating to office and sales employees and which provided that it formed a part of warehouse contract. This supplemental agreement recited 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Union had requested recognition as the bargaining representative of all "warehouse, office, clerical and sales employees of the Employers . .." and that the "Employers (bad) refused to grant recognition because it has not been clearly estab- lished that a single over-all unit of such employees is now appropriate . . . or that the Union represents a majority of the employees in such a unit." The agreement then provided that "In settlement of this controversy, the Union accepts recognition for the unit of . .." warehouse employees and the employer members agreed that: "a. Effective May 1, 1961, the Union shall be recognized as the collective bar- gaining representative of all office and clerical employees of the undersigned Employers . . . and these employees shall be added to the unit covered by the " warehouse agreement. "b. Effective June 1, 1961, the Union shall be recognized as the collective bargaining representative of all sales employees of the undersigned employers . and these employees shall be added to the unit covered by the .. ." ware- house agreement. Dancker & Sellew, as well as the Association, was a signatory to the supplemental agreement. On April 15, 1959, Respondent Union and five of the employer-members of the Association, not including Respondent Dancker & Sellew, executed a collective- bargaining contract covering the five employers' sales employees, and the office clerical employees of one of the five. On April 20, 1961, Respondent Company called a meeting of all its sales and office clerical employees and Paul Dancker, Respondent's vice president, and Louis New- man, Respondent Company's and the Association's attorney, spoke to the employees and told them that pursuant to contract with Respondent Union membership in the Union would be a condition of employment for all office clerical employees beginning 30 days after May 1, 1961, and for all sales employees beginning 30 days after June 1, 1961. At this meeting several of the employees told Respondent Company's representatives that they objected strongly to being forced to join Respondent Union or be represented by it and asked what they could do about it. No employee ex- pressed any desire to join or be represented by the Union Sometime in May 1961, separate meetings of all the sales and office clerical em- ployees of Respondent Company were called by Respondent Company for the purpose of having the employees hear Harold Baker, business representative of Respondent Union. Baker spoke to both meetings and stressed the advantages of representation by and membership in the Union He advised the employees that they were required to join by contract and would be discharged if they did not. The employees expressed opposition to joining the Union and refused to sign dues deduction cards or authorization for the Union's welfare fund. At a meeting of employees in May 1961, a show of hands was called for by an employee and all voted against joining the Union. Respondent Company was then informed of the show of hands and the result. Following the meetings addressed by Respondent Company and Respondent Union, no office clerical or sales employee of the Company ever indicated to the Company that he desired to join or be rep- resented by the Union. On June 20. 1961, all the office clerical and sales employees of the Company signed a petition, which was delivered to the Company, stating that they were not members of the Union, that they objected to joining or being represented by it, and that the Employer would be engaging in an unfair labor practice if it made a contract "cover- ing" them with the Union. None of the office clerical and ales employees has ever, in any manner, designated or selected the Union as his bargaining representa- tive or paid dues to the Union. The 1959 contract would expire by its terms on July 1, 1961. On April 20. 1961, Dancker & Sellew received from the Union a 60-day notice of termination of the agreement During the summer and fall of 1961 the Association and the Union engaged in negotiations. The parties first negotiated a new contract for the ware- house employees which finally resulted in the execution of a contract covering a ware- house unit in January 1962.1 After the 1962 warehouse contract had been negotiated and executed, the parties began negotiations for an office clerical and sales agreement and reached agreement on terms in April 1962. Before signing the agreement , however, the Association demanded that the Union demonstrate by cards that it had been designated by a 1 The warehouse contract now covered drivers as well as warehouse employees. It was executed in January 1962, according to the testimony, and not in December 1961, as appears on its face. DANCKER & SELLEW, INC. 835 majority of the employees in an associationwide unit. The Union did produce a majority of cards on a multiemployer basis, but no cards of the Respondent Com- pany's office clerical or sales employees were included. The contract was signed on April 26, 1962, covering a bargaining unit of office clerical and sales employees of all members of the Association.2 As stated earlier, the contract contained a union-security clause, and pursuant to it Respondent Company notified its office clerical and sales employees on May 2, 1962, that they were required as a condition of employment to join Respondent Union. None of the employees has joined the Union, and it appears that the agreement is not being enforced by the parties because of the pendency of this proceeding. B Analysis and concluding findings General Counsel's theory of violation is essentially that the contract in question covers an inappropriate unit because there is no bargaining history to support a multtemployer unit for office clerical and sales employees. It is true, as General Counsel argues, that a single-employer unit is presumptively appropriate as the Board has frequently held in multiemployer cases.3 The presump- tion of appropriateness of a single-employer unit may be overcome, however, as General Counsel concedes, by evidence of a bargaining history on another basis. The evidence of a broader bargaining history, however, need not relate only to the particular group of employees sought to be represented on a broad multiemployer basis but eilect may be given to a successful history of multtemployer bargaining with respect to substantially all other employees of the Employer. It is here, I think, that the defect in General Counsel's argument is found He emphasizes the absence of history with respect to office clerical and sales and concludes that the presumption has not been rebutted, therefore he determines that the Association unit of office clerical and sales is not appropriate and the contract and recognition tainted because it covers an inappropriate unit contrary to the Act 4 Implicit in his argument, although he avoids taking a fiat position about it, is the contention that a single unit of Dancker & Sellew's office clerical and sales employees is the only appropriate unit in the circumstances of this case, and that the Union's lack of majority in that unit makes its recognition illegal. The argument of invalidity ignores what the Board considers relevant in determining the appropriateness of single or multiemployer units for unrepresented groups of employees, namely, the bargaining history affecting other employees of the Employer. Tn Peninsula Auto Dealers Association of the California Association of Employers, 107 NLRB 56, for example, the petitioning union sought to represent a unit of all automobile salesmen employed by some 50 members of an employer association. An intervenor union argued for single-employer units of salesmen. The Association agreed with the petitioner's position The record showed a history of successful bargaining on an association basis for substantially all employees other than salesmen The Board found an association unit of salesmen appropriate The Board pointed out that although the intervenor sought a single-employer unit, the petitioner was ready and willing to represent the salesmen on the same basis accorded other em- ployees of the Employers and had made an adequate showing of interest in the larger groan In addition, the Board added. the employers involved had indicated their willingness to bargain for the salesmen as they had for other employees The Board, on the other hand, as it acknowledged in Peninsula Auto Dealers, has also found appropriate single units of unrepresented employees despite a history of b"rgaining on a broader basis for other employees This practice, which was a modification of an earlier rule, originated in Joseph F. Seagram & Sons, Inc., 101 NLRB 101, where the Board found a single-plant unit for guards despite a history of bargaining on a multiplant basis. The modified rule was explained by the Board in Peninsula Auto Dealers, as premised on the facts that the only union involved sought to represent the employees on a single-plant basis and the difficulty of organizing multiplant groups of employees 2 This agreement was executed in April 1962, and not in December 1961, as would appear from its face 4 Rainbo Bread Co , 92 NLRB 181 . Arden Farms. et at. 117 NLRB 318 4 bfohawk Business Machines Corporation, 116 NLRB 248, cited by General Counsel, involved an employer who joined an association and immediately placed his employees under contract with a union without their consent It did not involve the question of anpronriateneas of unit for unrepresented employees whose employer had been a member of and bargained on an association basis for other employees for some years 651-492-63-von, 140-54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The modified Seagram rule was followed by the Board in subsequent cases, but analysis of them shows that where a single-plant or employer unit was established in the face of a bargaining history on a wider basis for other employees, either the only union involved sought a single unit, or there was no fixed pattern of multiplant or multiemployer bargaining for the other employees, or that the unit sought for the unrepresented employees by another union was not coextensive with the estab- lished multiplant or multiemployer unit.5 The rule in Peninsula Auto Dealers has not been abandoned and has, in fact, been cited by the Board with approval recently 6 In the case at bar, even conceding, as General Counsel contends, that there is no bargaining history for office clerical and sales employees on an association basis,7 there has been, nevertheless, a successful history of bargaining on an association basis for substantially all the Employers' other employees since July 1, 1958.8 The office clerical and sales unit in question is coextensive with the unit established by history for the other employees, and the Union had a majority showing of interest in the overall unit. In addition, the only union involved sought an association unit and the Employers agreed to it. Even if another union had sought a single-employer unit, the association umt would prevail, in my opinion, under the principles in the cited cases I cannot conclude that the Company and the Union violated the law by agreeing to the same bargaining unit as a foundation for their contract as the Board would, in all probability, find for them after a public hearing in a representation proceeding.9 I conclude that Respondent Dancker & Sellew, Inc , has not violated Section 8(a)(1), (2), and (3) of the Act, and that Respondent Union has not violated Section 8(b)(1) (A) and (2) of the Act, by negotiating, executing, and maintaining a collective-bargaining agreement covering office clerical and sales employees as alleged in the complaint. CONCLUSIONS OF LAW 1. Dancker & Sellew, Inc., New York, New York, is engaged in, and during all times material herein was engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. 2 Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint in this matter be dismissed in its entirety. 6 Rainbo Bread Co, 92 NLRB 181 (one union seeking single-employer unit and some history of single-employer bargaining for unrepresented unit) ; Lownshury Chevrolet Company. 101 NLRB 1752 (only union involved seeking single-employer unit of sales- men) ; Fibreboard Products, Inc, San Joaquin Division, 102 NLRB 405 ('ingle union unopposed in its claim for single-employer unit of office workers) ; Sovereign Productions, Inc, and Ralston & Ripley Company, 107 NLRB 359 (Board followed Fibreboard Prod- ucts Inc) ; Continental Baking Company, Wonder Bakery, 109 NLRB 33 (one union seeking single unit) ; Macy's San Francisco, and Seligman & Latz, Inc., jointly, 1120 NLRB 69, 71-72 (no other union sought multiemployer unit) Arden Farms, et al, 118 NLRB 117 (unit sought not coextensive with multiemployer unit for others). e The Los Angeles Statler Hilton Hotel, 129 NLRB 1349, 1351. 'The 1959 supplemental agreement was merely an agreement to recognize the Union in the future for the employees in question, and it appears clear to me from Dancker's testimony that it never was actually carried out as to Dancker & Sellew's employees as far as substantive terms were concerned. Moreover, a mere recognition agreement, if it were that, for office clerical and sales employees would not Itself establish a multi- employer unit. 8 The inclusion of drivers in the 1962 warehouse agreement would appear to cover all employees by contract. 9 There Is no contention that there was anything improper in joining office clerical and sales employees in a single unit.