The Boy's Markets, Inc.

THE BOY'S MARKET, INC., ETC. 105 The Boy's Markets, Inc. and Food Employers Council , Inc. and Retail Clerks Union, Local 770, Retail Clerks International Association and Los Angeles Joint Executive Board of Hotel and Restaurant Employees and Bartenders Unions, AFL-CIO, Party to the Contract Von's Grocery Co. and Food Employers Council, Inc. and Retail Clerks Union, Local 770, Retail Clerks International Associ- ation and Los Angeles Joint Executive Board of Hotel and Restaurant Employees and Bartenders Unions , AFL-CIO, Party to the Contract. Cases Nos. 01-CA-5891 and 01-CA-5913. De- cegnber 17, 1965 DECISION AND ORDER On June 18, 1965, Trial Examiner Howard Myers issued his Deci- sion in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(a) (2) and (1) of the National Labor Rela- tions Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner made no findings as to whether the Respondents violated Section 8(a) (3), as alleged in the complaint. Thereafter, the Los Angeles Joint Executive Board of Hotel and Restaurant Employees and Bartenders Unions, AFL-CIO, Party to the Contracts, herein called the Joint Board, filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The General Counsel filed cross-exceptions, limited to the failure of the Trial Examiner to find that the Respondents violated Section 8(a) (3), accompanied by a brief. The National Labor Relations Board 1 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner only to the extent that they are consistent with our Decision and Order herein. The Respondents, The Boy's Markets, herein called Boy's, and Vol-i's Grocery Co., herein called Von's, are Los Angeles area retail grocery chains, members of the Respondent, Food Employers' Council, herein called the Council, which on behalf of its members had, at all times material herein, a contract with the Retail Clerks Union, Local 770, ' Member Brown is not participating. 156 NLRB No. 6. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks International Association , herein called Clerks. This contract ran from January 1, 1959, through March 31, 1964 , and cov- ered all retail clerks engaged in "retail food, bakery, candy and general merchandise" operations. At the time of the execution of this contract, the members of the Council did not have snackbars and thus did not employ any snackbar employees . However, sometime in 1962, when the Clerks noticed snackbars in supermarkets in the Los Angeles area, the Clerks requested the Council to include in forthcoming negotia- tions for a new multiemployer contract the establishment of wage clas- sifications for all the then unrepresented snackbar employees of its members, and the Council agreed. As more fully set forth in the Trial Examiner's Decision, the negotiations for a new multiemployer con- tract began in January 1963 and culminated in a new agreement on March 14, 1964. On February 1, 1964, while the Council and the Clerks were thus engaged, inter alia, in negotiating wage rates for the unrepresented snackbar employees on a multiemployer basis, the Joint Board, on behalf of affiliated unions representing culinary workers in the Los Angeles area, entered into an exclusive bargaining contract with Boy's covering all snackbar workers of Boy's in four stores in Los Angeles County. On March 2, 1964, the Joint Board entered into a similar contract with Von's covering all snackbar employees of Von's in its four stores in Los Angeles County. These Joint Board contracts were entered into after the Joint Board had organized the snackbar employ- ees of Boy's and Von 's, each on a multistore basis, and had established, on the basis of reliable card checks , that the Joint Board represented a majority of the snackbar employees covered by each contract. Prior to the execution of the Joint Board contracts, the Clerks had obtained authorization cards from snackbar employees at one of Boy's stores-the Crenshaw store--and , in December 1963, had asserted a representative claim for snackbar employees of Boy's by virtue of its multiemployer contract and its card showing in the Crenshaw snack- bar department. Boy's refused recognition, contending that the snack- bar employees at all four of its stores should first be recognized; how- ever, Boy's also had informed the Clerks that Boy's would not enter into a contract with the Joint Board pending conclusion of the Coun- cil's current negotiations with the Clerks . Earlier, in November 1962, the Clerks had also made a demand of Von's that Von's recognize the Clerks as the representative of Von's snackbar employees based on the existing multiemployer contract , but Von's rejected that demand in December 1962. The Trial Examiner found, as the amended consolidated complaint alleged, that Boy's and Von's violated Section 8(a) (2) and (1) by entering into the exclusive bargaining contracts with the Joint Board THE BOY'S MARKET, INC., ETC. 107 covering snackbar employees at a time when real questions concerning representation were pending, arising from the Clerk's requests to rep- resent such employees. In support of his conclusion, the Trial Examiner relied on the fact that the Clerks had claimed recognition as the representative of Von's snackbar employees in November 1962. He reasoned that such demand was a continuing one and also that its vitality was maintained by virtue of the Clerks' subsequent demand in its negotiations with the Council, which represented Boy's and Von's, among others, that its multi- employer agreement under consideration cover such snackbar employ- ees. The Trial Examiner also relied on the fact that, late in 1963, the Clerks had informed Boy's that the Clerks represented a majority of Boy's snackbar employees at its Crenshaw store. He further reasoned that, even if the Clerks did not make a formal. request of the Council for recognition as a representative of snackbar employees, the Clerks' request to negotiate a contract covering the snackbar employees "was tantamount to a demand for recognition," and that the Council's par- ticipation on behalf of Boy's and Von's in the negotiations with the Clerks, coupled with Boy's agreement to abide by the outcome of the negotiations between the Council and the Clerks, established that the "Respondent" actually recognized the Clerks' claim of representation. For these reasons, the Trial Examiner concluded that, in the absence of a Board determination that the Joint Board was entitled to recogni- tion as exclusive representative of their snackbar employees, Von's and Boy's were precluded from entering into the contracts with the Joint Board, and by so doing, these Respondents rendered unlawful assistance to the Joint Board in violation of Section 8(a) (2) and (1). We do not agree. We recognize, as did the Trial Examiner, that, under the Board's doctrine established in Midwest Piping c6 Supply Co., Inc., 63 NLRB 1060, an employer faced with conflicting claims of two or more rival unions which give rise to a real question concerning representation may not recognize or enter into a contract with one of these unions until its right to be recognized has finally been determined under the special procedures provided in the Act. However, it is also established law that an employer does not violate the Act by extending recognition to one of the competing unions where the rival union's claim is clearly unsupportable or specious, or otherwise not a colorable claim. In such circumstances, there is no real question concerning representation of employees 2 We agree with the Joint Board's contention that the Clerks' claim to represent the snackbar employees did not give rise to a genuine 2 See e.g. William Penn Broadcasting Company, 93 NLRB 1104, where the Board dis- missed an 8(a) (2) complaint based on the Midwest Piping doctrine because the General Counsel failed to show that the rival claim was in an appropriate unit. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question concerning representation. In our opinion, that claim was clearly unsupportable and not cognizable as a colorable claim. Except for Boy's snackbar employees at its Crenshaw store, the Clerks did not have authorization cards from any of the snackbar employees, and the Clerks never professed that it had. The Clerks' claim, made both upon Von's and the Council, rested essentially on its multiemployer contract with the Council. That multiemployer contract, however, did not cover any snackbar employees, as was expressly determined by the Board iri a case issued in September 1963, several months before the execution of the Joint Board's contracts, the validity of which are in issue in this case .3 Moreover, with respect to the Council's so-called recognition of the Clerks for snackbar employees, it does not affirmatively appear that the Council was authorized by Boy's or Von's to represent them in bar- gaining for such employees. We also note that, although the Council entered into a contract with the Clerks covering snackbar employees, the contract expressly excluded from coverage the snackbar employees of Boy's and Von's. As for the Clerks' alleged separate claim to represent the snackbar employees at Boy's Crenshaw store, this claim must be viewed in the light of the Clerks' admittedly larger and encompassing claim to rep- resent all the snackbar employees on a multiemployer basis. We find that the lesser claim was but part of the larger claim; that the Clerks did not assert the lesser claim as a separate independent claim, and that Boy's so understood. With respect to Boy's assurance to the Clerks that it would not enter into a contract with the Joint Board pending conclusion of the current negotiations between the Clerks and the Council, we hold that Boy's was imder no legal obligation to withhold recognition from the Joint Board once that Union had established its majority, absent a rival claim which would itself raise a real question concerning representa- tion. And, as already indicated above, the Clerks never did raise such a question. For all the foregoing reasons, we find, contrary to the Trial Exam- iner, that the Clerks did not by any of their claims raise a real question concerning representation sufficient to preclude Boy's and Von's from entering into the contracts with the Joint Board. Accordingly, we shall dismiss the 8(a) (2) allegation of the complaint. As the remaining 8 (a) (3) and (1) allegations depend upon a find- ing that there was an 8(a) (2) violation, a finding which we are not making, we shall dismiss the complaint in its entirety. S See Piggly Wiggly California Company, 144 NLRB 708. There, the Board held that the identical multiemployer contract involved in the instant case did not cover snackbar employees and thus was not a bar to a petition of the Culinary Workers Union seeking a unit limited to snackbar employees at one of two retail supermarkets of the individual employer involved who was a member of the Council. THE BOY'S MARKET, INC., ETC . 109 [The Board dismissed the complaint.] ME31BER BROWN took no part in the consideration of the above Deci- sion and Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amended charge duly filed in Case No . 21-CA-5891 on April 14 and 21, 1964, respectively, by Retail Clerks Union, Local 770, Retail Clerks International Association , herein called Local 770, and upon a charge and an amended charge in Case No. 21-CA-5913 duly filed by Local 770 on April 21 and Septem- ber 21 , respectively, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel 1 and the Board, through the Regional Director for Region 21 (Los Angeles, California), issued a consolidated complaint, dated September 24, 1964,2 against The Boy's Markets , Inc. (herein called Boy's), Von's Grocery Co. (herein called Von's), and Food Employers Council , Inc. (herein called the Council),3 alleging that Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1), (2), and (3 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended from time to time , 61 Stat. 136, herein called the Act. Copies of the charges , the order of consolidation , the consolidated complaint, and notice of hearing were duly served upon Boy's , Von's, the Council, and upon Los Angeles Joint Executive Board of Hotel and Restaurant Employees and Bartenders Union, AFL-CIO (herein called Joint Board ), a party to certain written collective- bargaining contracts . Copies of the order of consolidation, consolidated complaint, and notice of hearing were duly served upon Local 770. On October 6, 1964, the Joint Board duly filed an answer; on the same day Boy's, Von's, and the Council duly filed a joint answer . Each answer denied the commis- sion of the unfair labor practices alleged. Pursuant to due notice a hearing was held from November 24 through 27, 1964, at Los Angeles , California, before Trial Examiner Howard Myers. Each party was represented by counsel and participated in the hearing . Full and complete oppor- tunity was afforded the parties to be heard , to examine and cross-examine witnesses, to introduce evidence pertinent to the issues , to-argue orally on the record at the con- clusion of the taking of the evidence, and to file briefs on or before December 21, 1964.4 Each party filed a brief and each brief has been carefully considered. Upon the entire record in the case and from his observation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS OPERATIONS Boy's, a California corporation, has its principal offices in Pasadena , California, and is engaged in the operation of a chain of retail stores and supermarkets in Los Angeles County, California. Boy's annual sales exceed $500,000 and its annual out-of-State purchases of goods and products exceed $50,000. Von's, a California corporation , has its principal offices in El Monte, California, and is engaged in the operation of a chain of retail stores and supermarkets in Los Angeles County, California. Von's annual gross sales exceed $500,000 and its annual out-of- State purchases of goods and products exceed $50,000. The Council is a nonprofit California corporation composed of employer-members engaged in the retail food market business in southern California. Since about 1941, the Council has bargained collectively for its members and has negotiated master collective-bargaining agreements with Local 770. Members of the Council annually purchase goods and products valued in excess of $2 million from points located out- side the State of California. Boy's and Von's are, and during all times material were, members of the Council. ' This term specifically includes counsel for the General Counsel appearing at the hearing. 2 On the same day, the said Regional , Director issued an order consolidating , for the purposes of hearing, the above-numbered cases. . 2 Conjointly, Boy's, Von's , and the Council are referred to herein as Respondent. 4 At the request of counsel the time to file briefs was extended to January 25, 1965. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing facts, it is found, in line with established Board authority, that Boy's, Von's, and the Council are engaged in, and during all times material were engaged in, business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that their business operations meet the standards fixed by the Board for the assertion of jurisdiction. II. THE LABOR ORGANIZATIONS INVOLVED Local 770 and the Joint Board are labor organizations admitting to membership employees of Boy's, Von's, and of the employer-members of the Council. III. THE UNFAIR LABOR PRACTICES A. Prefatory statement At all times material Boy's and Von's have been, and still are, members of the Council, an association of employers who are engaged in the retail food market business in southern California. Since about 1941, the Council has negotiated, on behalf of certain of its members, master collective-bargaining agreements with Local 770; one such agreement was in effect from January 1, 1959, through March 31, 1964. Although said 1959-64 agree- ment contained no specific classification of "snack-bar employees" or "take-out food employees," it contained a provision covering all retail clerks engaged in "retail food, bakery, candy and general merchandise" operations. In recent years, various supermarkets in the Los Angeles area have established in their stores counters which sell, at retail, food which is designed for consumption either at or soon after the time of purchase. In certain cases, the consumption of food takes place within the store itself or right outside the store in a patio area. In other cases the food is cooked or prepared at the counters and wrapped for customers who take it from the premises for consumption elsewhere. In either event, the food appears to be intended for consumption sooner than the other items sold at the supermarket. The employers and union representatives who are involved in this controversy have established a certain parlance in describing the aforesaid operations. Thus, an opera- tion which handles food for consumption on the premises of the supermarket is called a "snack bar," and an operation which handles food for consumption off the premises of the supermarket is called a "take-out food" operation or "prepared food" operation and an operation which prepares both types of food is called a "combination" operation. Early in 1962 when Lois McKinstry, executive administrator of Local 770, first noticed prepared takeout food sections in supermarkets in the Los Angeles area and that the employees there involved were not members of any labor organization, she immediately contacted Robert Giesick, business manager of the Joint Board, in an attempt to conduct an organizational drive among those employees to be conducted jointly by the Joint Board and Local 770. In furtherance of her attempt to organize the aforesaid snackbar employees, McKinstry met on several occasions with Giesick and with other union officials not connected with the Joint Board in an effort to work out the details with respect to which group of employees should ultimately be represented by Local 770 and which should ultimately be represented by the proper affiliate of the Joint Board. When the Culinary Union, an affiliate of the Joint Board, took the position that if any person employed at the snackbars "sold any food for consumption on the premises-even a cup of coffee," it was going to assert jurisdiction over those employees, Local 707 abandoned all thought of conducting a joint campaign with the Joint Board.5 Late in 1962 McKinstry noticed that in various Von's markets there had been established prepared-food sections in conjunction with the snackbars. At that time Local 707 was in discussion with top officials of the Council preparatory to entering into negotiations looking toward a new bargaining contract. During said discussions the snackbar problem at Von's "was brought up and it was determined to hold up any decision with respect to this matter in abeyance until the parties got into bargaining negotiation sessions." 5 It was Local 770's contention that those employees who handled takeout food were within Its jurisdiction. This contention was based on the fact that "this type of mer- chandise was handled by delicatessen clerks" who were covered by the then-existing Local 770 contract with the Council. THE BOY'S MARKET, INC., ETC. 111 Under date of November 23, 1962, Local 770 wrote Von's as follows: It has been called to our attention that certain employees working in the pre- pared foods take-out bar at several of your locations have failed to become Local 770 members within the required time, in accordance with our agreement. Since the employees sell food for consumption off the premises, they are entitled to be paid according to the Retail Food Agreement. If any of the employees working in the above-mentioned department handle only food for consumption on the premises, we will be pleased to discuss this matter with you. Under date of December 4, Von's replied to the aforesaid Local 770 letter as follows: This letter is to acknowledge receipt of your letter of November 23; at the same time, it is also intended to inform you that we are in total disagreement with the contents therein. The functions and duties of our Fountian and Snack Bar employees do not now, nor have they at any other time, come under the terms or the jurisdiction of the Retail Clerks Food Agreement. Commencing in January 1963 and ending in March 1964, the Council and Local 770 held 79 bargaining sessions which culminated in a 5-year contract between the parties. The meetings which were held between January and August 1 were sporadic in nature. At these meetings some discussion was had regarding whether snackbar employees should be covered by any agreement which might be entered into. The Council took the position that those employees should not be covered and Local 770 took the contrary position. In fact, Local 770 claimed "wall-to-wall and ceiling-to- floor jurisdiction in the stores." Commencing with the August 1 meeting more detailed discussions took place at the bargaining conferences concerning snackbar and takeout operations.C It was at this meeting that De Silva submitted a written proposed recognition clause which indicated that Local 770 was seeking to have covered in any contract which may be reached, all nonsupervisory personnel of the stores represented by the Council, save those persons covered by the then-existing contract between the Culinary Workers Union 7 and the employers in question. Fox rejected the proposal, stating that the employers could not pay snackbar employees the rate of pay Local 770 was demanding. De Silva replied that he was willing to negotiate a wage scale commensurate with the Culinary contract. Thereupon discussion turned to other contractual matters. On August 3 the parties again met at which time Local 770 presented a revised recognition clause for the Council's consideration. The parties were apparently in agreement that the snack or takeout food employees were to be covered by any agree- ment reached by the Council and Local 770. The discussion at this meeting relating to said employees centered around the rate of pay they should receive and how the unit should be defined insofar as it affected those employees who handle food which might conceivably be ordered for on-the-premises consumption and/or be consumed off the premises. Local 770 took the position that it had jurisdiction of all employees handling food for off-premises consumption and offered to exclude from coverage in any agreement reached those employees who were then covered by the Culinary Workers' contract. At the August 3 meeting, referred to immediately above, De Silva dictated, in the presence of the Council's representatives, the following memorandum: Persons employed in snack bars who are engaged in any combination of preparation and sale of food for on and off premises consumption shall become members of the bargaining unit, and the wage rate for such employees, whose work is primarily in the preparation and sale of food for on-premises consump- tion, shall be covered by the terms and conditions of the collective bargaining agreement with the undersigned Union and the wage rate shall be negotiated between the parties. Failure of the parties to arrive at a mutually agreeable 9 The Council was generally represented at the bargaining meetings by Robert K. Fox, its president, John Bacon and Joseph McLaughlin, its legal counsel ; the Union by Joseph De Silva, its president, Lois McKinstry, its executive administrator, as well as De Silva's assistant, Hugo Morris, its research director, and Kenneth Al. Schwartz, its legal counsel. From time to time other persons implemented the foregoing named in- dividuals. De Silva was the spokesman for Local 770 and Fox was the spokesman for the Council. 7 The affiliate of the Joint Board directly involved in this proceeding. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage rate shall entitle either party to request the matter to be submitted to arbi• tration under Article __ for the purpose of establishing the appropriate wage rate and the decision of the arbitrator shall be binding. After the above had been transcribed, copies thereof were handed to the Council's representatives and discussion then was had with respect thereto. No agreement, however, was reached. Three days later, on August 6, the parties again met. At this meeting, Local 770 submitted a revised proposed recognition clause. The provision excluding from the coverage of any contract reached reads: Persons for the period they are covered by an existing or successor contract between the undersigned Employer and the Culinary Workers Union, who per- form in snack bars services exclusively relating to on-premises consumption of food and beverages. According to the credited testimony of Hugo Morris, research director of Local 770, the following took place with respect to the recognition clause proposed by Local 770 at the August 6 meeting: There was a discussion about the August 6th document which was given out at the beginning of the meeting, and Fox made comments about various aspects of it not relating to the issue here, and then, toward the end of the negotiations, Mr. DeSilva said that with regard to snack bars, et cetera, he would negotiate a rate for a combination take-out and snack bar work. There had been discussions, as I mentioned, through this whole period-and I think on this day as well- about how you might draw a line of demarcation between take-out foods and snack bar, purely snack bar operations, and it was in the connection that this discussion took place about negotiating new rates for this kind of work. At the meeting held on August 8, Fox, in the presence of the representatives of Local 770, dictated to his secretary a two-page memorandum of his understanding of what the parties had agreed upon up to that date. The parties, after copies of Fox's memorandum had been given those attending the meeting, discussed the contents thereof at length. The discussion mainly centered around the line of demarcation to be established regarding the inclusions and exclusions of employees handling on- premises food consumption and those handling off-premises food consumption. At the next meeting, held on August 14, De Silva dictated to the secretary attending the meeting, and in the presence of the Council's representative, a short memorandum reflecting his understanding of what the parties had agreed upon. The memorandum reads as follows: Culinary workers who handle items for on-the-premises consumption only and employees of culinary departments handling items of a supplementary nature to be consumed [off premises] in conjunction with such snack bar items as sand- wiches, hot dogs, doughnuts, and other snack bar items, provided that where such departments have an off-sale section where the sale of such items is desig- nated for off-the-premises consumption, the employees of said department shall be paid the delicatessen rate as outlined in this contract, or, where warranted, a combination rate, and in that event said employees shall be members of the bar- gaining unit. The above-quoted clause, after such discussion had been had and some revisions made,8 was accepted by the parties. At the August 15 meeting, the Council presented a two-page "typed-up result of [the parties'] negotiations to date." Paragraph 3 thereof, which defines, the persons not to be covered by any agreement reached, reads as follows: Culinary Workers who handle items for on-the-premises consumption only, and also employees of culinary departments handling items of a supplementary nature to be consumed off the premises, in conjunction with such snack bar items as sandwiches, hot dogs, doughnuts, and other snack bar items, provided that where such departments have an off-sale section where the preparation of such items is primarily intended for off the premises consumption, the employ- ees of said section shall be members of the bargaining unit and shall be paid the delicatessen rate as outlined in this contract, or where warranted, a combination rate and different hours shall be negotiated or arbitrated, if necessary, under the arbitration provisions of this agreement. 8 The modifications of De Silva's original memorandum are indicated on General Coun- sel's Exhibit No. 19. THE BOY'S MARKET, INC., ETC. 113 Although the parties met, from time to time, between August 15 and October 15, negotiations regarding the matter respecting the snackbar takeout food operations was very rarely discussed. In fact, the other provisions of a new collective-bargaining agreement were the main topic of discussion at the meetings held between the afore- mentioned dates. At the meeting held on the latter day, Fox, according to Morris' credited testimony, made the following comments relative to the snackbar takeout food operations: Mr. Fox said that the language was really inadequate because it presented certain problems for the employers because of the lines of demarcation that were drawn; that the employers needed greater flexibility in having people not be restricted in the handling of merchandise so that the employers could be free to sell all kinds of merchandise in all ways and there was- TRIAL EXAMINER: Do you mean in the snack bar? The WITNESS: Snack bar, take-out food, and who would handle which. TRIAL EXAMINER: In other words, Mr. Fox took the position that the employers thought that they couldn't have one group of employees just handling on-premises merchandise and another group handling off-premises merchandise? No lengthy discussion relative to the snackbar takeout food operations was engaged in at any of the numerous meetings of the parties held between October 15 and January 27. At the January 27 meeting, lengthy discussion was had relative to De Silva's pro- posal "that all of the employees be in the Retail Clerks' unit so that there would not be the problem of drawing such a line [of demarcation]" and with De Silva's further suggestion that the parties agree to pay the snackbar takeout food operators the rate of pay they were receiving under the then existing Culinary Workers' contract plus whatever fringe benefits the employees would receive under the contract which may be reached by the Council and Local 770. According to Morris' credited testimony, the following also took place at the meet- ing referred to immediately above: we talked about the Culinary Union contracts and snack bars further, and Fox said something about the Culinary Workers having fifteen cents over the past five years in wage increases and about a similar amount in fringe benefit increases over the same five-year period, and he said something to the effect that DeSilva couldn't exist-couldn't stand to negotiate conditions on that level, and Mr. DeSilva said something-to the effect that he was prepared to negotiate rates for snack bars which were competitive and, again, asked for copies of the Culinary Workers' contracts so that they could be analyzed.so that we'd know exactly what Fox was talking about when he talked about the conditions. At the meeting held on the following day, January 28, Fox handed Morris five Culinary Workers Union contracts pursuant to De Silva's January 27 request. De Silva, in Fox's presence, then instructed Morris to analyze the cost factors of said contracts. According to Morris' credited testimony, the following then ensued: ... Mr. DeSilva said at that time something to Fox to the effect of, "Now, don't go out and sign up all the unsigned snack bars of the Culinary Workers while we're here talking about conditions for them... And Fox said something to the effect of, "Don't be silly," or, "Don't worry," or something like that. Between the January 28 meeting and the next one, held on February 14, Morris sought the aid of John Bacon, Fox's assistant, "in pinning the figures down to precise amounts that could be looked at in chart form to evaluate the cost elements in the Culinary Workers' contracts." On February 14, Morris, Bacon, and some other negotiators met with De Silva and prepared a chart which depicted the cost factors contained in the aforesaid Culinary Workers contracts .9 At the February 24 meeting, the following proposal was submitted 10 and discussed: SNACK BAR OPERATIONS A. Where the employer has a snack bar serving on-premises food only it shall be exempt from the Agreement. B. In instances where the employer offers food for off -premises consumption for sale, and where the cash value of such off-premises merchandise that is sold is equal to, or greater than the value of on-premises merchandise, the contract shall apply to the entire operation and a combination rate shall be negotiated. 6 This chart was originally prepared by Morris but "amended by suggestions from Mr. Bacon as to where it might be in error." 10 The record does not indicate who submitted this proposal. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Where the employer offers for sale hot foods for off-premises consumption (as distinguished from a standard service delicatessen operation) the contract shall apply and the general merchandise rates will be in effect. D. The Food Clerk rate shall apply to what is generally recognized as standard service delicatessens, as distinguished from so-called hot food operations. (See above.) Either on February 26 or 27 Fox submitted to De Silva the following memorandum dated February 26: To: Joe DeSilva From: R. K. Fox Re: Take-Out Food Problem 1. Other than those currently under a labor contract, union jurisdiction shall be extended to snack bars operating solely as such, as well as to snack bars com- bined with take-out food operations, and take-out food operations operating solely as such. 2. For employees employed exclusively in snack bars, the box boy rates shall apply. The only fringe benefits that shall be applicable to such employees are the medical and hospitalization plan and the dental plan. Split shifts and short shifts shall be permissible, and holiday, Sunday and night premiums shall not be applicable. 3. Where a take-out food operation is combined with a snack bar as an adjunct, or secondary to the snack bar, and where employees work in both the take-out food and snack bar, a combination rate 12th ¢ above that of the box boy shall apply to such combination workers. As in # 2, above, split and short shifts shall be allowed and night, holiday, and Sunday premiums shall not be applicable. 4. Where an employee works exclusively in a take-out food operation handling and selling nonpackaged foods, whether hot or cold, the new general merchandise rate shall apply to such employees as well as all other terms and conditions of the food agreement. A collective-bargaining agreement was finally arrived at after the following, accord- ing to Morris' credited testimony, has transpired: On March the 3rd there was an extensive discussion, a full negotiation session, concerning this matter in an attempt to determine what rates of pay and fringe benefits should be paid to employees of these various operations, and at that point discussions took place about three kinds of operations, about a purely snack bar operations, a combination snack bar and take-out food operation, and a take-out food operation and delicatessen combined, and I recall a chart on the board and attempts to delineate the types of food handled by each; even when the jurisdictional problem was solved at that point and they were regotiating for all of these people under the Retail Clerks' contract, there still remained the problem of determining the wage rate to be applied to the different kinds of work that were to be performed, and that was discussed extensively on March 3rd and all day on March 9th-at least part of the day-and, finally, on March 9th after, I think, five or six drafts of language, language was completed which appeared in the March 14th, 1964, document that was signed by the parties. The collective-bargaining agreement ultimately agreed to by the parties contains the following language: Article I. B. Food Markets Segment Exclusions: Excluded from the segment for food markets are: 3. Persons presently under a collective bargaining agreement with Culinary Workers Union, or persons employed in a complete restaurant. Article VI. Wages T.1. Where a snack bar is exclusively a snack bar the box boy rates shall apply. The box boy rates shall also apply where there is a combined snack bar and take-out food operation, provided that the monthly sales volume of the take-out food operation does not exceed two times the monthly sales volume of the snack bar .... 2. Where there is a combined snack bar and take-out food operation, and where the monthly sales volume of the take-out food operation exceeds two times the monthly sales volume of the snack bar, a combination rate of $2.25 shall apply .... THE BOY'S MARKET, INC., ETC. 115 3. The new general merchandise rate shall be applicable when the Employer operates a service delicatessen, a take-out food operation alone, or a combina- tion service delicatessen and take-out food operation . . . . It is intended that Paragraph 2 shall apply to what is a combination snack bar take-out food opera- tion, and Paragraph 3 to what is either a service delicatessen, take-out food operation alone, or a combination service delicatessen and take-out food operation .... _ B. The pertinent facts relative to Boy's Boy's operates snackbars at some of its markets which sell food for on-premises and off-premises consumption. One such snackbar is located in Boy's 3670 Crenshaw Boulevard, Los Angeles, store." In either September or October 1963, Paul Meister, a Culinary Workers organizer, and another Culinary representative called upon Ida Freed, Boy's personnel manager, and informed her that the Culinary Workers represented "a great portion" of Boy's "snack bar and take-out foods" employees. Freed replied that the Culinary Workers "would have to have all of them before `she' could discuss [any negotiations] with them." In November 1963 Meister informed Freed that he had all the snackbar employees signed up. Later that month Meister went to Freed's office, accompanied by the same repre- sentative who had been with him at the September or October 1963 meeting with Freed, and again informed Freed that the Culinary Workers represented all the Boy's snackbar takeout food employees and that he would like her to sign a contract. When Freed replied, "There would have to be a card check to prove that [the Culinary Workers] had all of the people," Meister said that was "fine." 12 While the foregoing Meister-Freed meetings were taking place, not only were the above-described Council-Local 770 negotiating meetings taking, place, but Local 770 was openly soliciting the Boy's Crenshaw store snackbar employees to join that orga- nization; viz, in late September or early October 1963, C. Gus De Silva, the general representative of Local 770 and a brother of Joseph De Silva,13 together with Robert L. Madray, a Local 770 field representative, went to the Crenshaw store, because the snackbar had been remodeled and as a consequence thereof some mem- bers of Local 770 had been laid off and were replaced by nonmembers. While at the store, Gus De Silva and Madray asked the girls who were operating the snackbar if they wanted to join Local 770. In the latter part of November or the forepart of December 1963, Gus De Silva and Madray met with Freed in her office. Madray testified that: He and De Silva each told Freed that Boy's Crenshaw store's snackbar employees were covered by the then existing Local 770 contract; in addition, Local 770 had obtained signed membership applications from all the snackbar employees of that store; 14 he and De Silva were there to negotiate a contract; Boy's should "not sign a contract with anybody [else] because we have the people"; Boy's and Local 770 had always enjoyed good, friendly relations and hence he did not believe an election was necessary to establish Local 770's majority status; and Freed replied that she would report the matter to her superiors and would then advise him and De Silva what decision, if any, was reached regarding Local 770's claim of majority status. Regarding the meeting referred to immediately above, Gus De Silva testified, "Ida Freed agreed with us that she would permit or allow one or two employees that was handling the chickens and spare ribs to come into our jurisdiction until such time as a new contract was negotiated or concluded, because [the Council and Local "The employees of this snackbar are the only Boy's employees here involved. 12At that time Boy's employed about eight snackbar operators at its Crenshaw store. There were received in evidence five cards expressly designating the Joint Board (the Culinary Workers is an affiliate of the Joint Board ) to represent the signers thereof for the purposes of collective bargaining . Claire Aubry's (nee Mercadel ) card is dated Sep- tember 13, 1963; Karal Coon's is dated September 14, 1963; S. E. Thompson's is dated September 18, 1963; Amelia Marsh's is dated September 23, 1963; and Jeanette Hill's ( nee Howell ) is dated December 13, 1963. Is For the purpose of brevity, Joseph De Silva will be referred to herein as De Silva and his brother as Gus De Silva. 14 There were received in evidence five cards expressly designating Local 770 to represent the signers thereof for the purposes of collective bargaining. Thompson's, Marsh's, and Aubry's cards are dated October 2, 1963, and Hill's and Coon's are dated October 3. 217-919-66-vol. 156-9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 770] would negotiate some kind of a wage scale for this type of work"; that Freed also agreed to leave the other snackbar employees "alone until we concluded the food industry contract"; and that after a Council-Local 770 contract had been arrived at the parties "would get together and see what they had negotiated with the Food Employers Council." Lois McKinstry, executive administrator of Local 770 and De Silva's assistant, testified that: She supervises the field agents and department heads, attends nego- tiating meetings, interprets contracts, handles contract disputes and grievances; in either November or December 1963, as a result of a telephone call she had received from a Boy's Crenshaw store's snackbar employee informing her that "the Culinary Workers Union was in the store," she telephoned Freed and reminded her that nego- tiations were then in progress between the Council and Local 770 and with respect to Boy's Crenshaw store's snackbar employees; she then told Freed, "We represented the employees and that we would present out representation," and Freed replied that she would wait until the conclusion of the Council-Local 770 negotiations before proceeding further and hence it was not necessary for Local 770 to present proof of its majority status at that time; then Freed, to quote from McKinstry's testimony, "agreed that, while the Culinary had contacted the people, there would be no con- tract signed since we were in negotiations and her company was being represented by the Food Employers Council." McKinstry further testified that a Boy's Cren- shaw store snackbar employee telephoned her in or about March 1964, and informed her that Freed had indicated to the snackbar employees that Boy's had signed a contract with the Culinary Workers Union covering the snackbar employees; and she instructed Gus De Silva and Madray to see Freed immediately and ascertain whether her telephone report was correct and when Gus De Silva and Madray reported that such a contract was in existence, she telephoned Freed and the follow- ing conversation was had: I said to Mrs. Freed that she had agreed not to sign a contract with the Culinary Workers Union inasmuch as we were in negotiations. She said to me that she was not the employer, that she did not sign the contract personally, and I said, "Mrs. Freed, when I talked to you you represented the company and I took you at your word." Freed testified that in the forepart of September 1963, Gus De Silva and Madray called upon her regarding the discharge of Neal Nutzman, a Crenshaw store snack- bar operator and a Local 770 member, that after the nutman had been disposed of Gus De Silva and Madray "mentioned that they had given some cards to the employees and talked to them, but they did not tell me that they had them signed and all of the people signed them"; and that at no time prior to April 1964 did McKinstry tell her that Local 770 had received signed authorization cards from any snackbar employee. In the light of my observation of the conduct and deportment of Freed, Madray, McKinstry, and Gus De Silva while they were on the witness stand, ' and after a very careful scrutiny of their testimony, I find Madray's, McKinstry's, and Gus De Silva's versions of their respective conversations with Freed, as epitomized above, to be substantially in accord with the facts. This finding is based mainly, but not entirely, on the fact that Madray, McKinstry, and Gus De Silva each impressed me as being one who is careful with the truth and meticulous in not enlarging his or her testimony beyond his or her actual memory of what was said and what was done. On the other hand, Freed gave me the distinct impression that she was studiously attempting to conform her testimony to what she considered to be in the best inter- ests of Boy's and the other Respondents.15 Under date of January 8 the Joint Board wrote Boy's that it represented "the majority of the unrepresented employees employed in the snack bar of The Boy's Markets, Inc., located within Southern California." The letter concluded with a request for recognition as the collective-bargaining representative of the employees in the above-mentioned unit and for a meeting for the purpose of negotiating a bargaining contract. After the receipt of the forementioned Joint Board letter, Boy's hired the account- ing firm of J. R. McKnight & Associates to conduct a card check. 3s This is not to say that at times Madray, McKinstry, and Gus De Silva were not con- fused on certain matters or that there were not variations in their objectivity and con- vincingness . But it also should be noted that the candor with which each of them admitted , during their searching examinations, that they could not be certain as to dates, times, or the exact words used , only serves to add credence to what a careful study of their testimony shows what they honestly believed to be the facts. THE BOY'S MARKET, INC., ETC. 117 Under date of January 14, 1964, Winston R. Grein of the McKnight firm wrote Boy's as follows: 16 In response to your request I arrived at your office at 10:00 a.m. this morning to perform a card check. You gave me a sheet of paper with twenty one names typed thereon. Mr. Meister of the Los Angeles Joint Executive Board of Hotel and Restaurant Employees and Bartenders Unions, AFL-CIO, gave me a group of cards which represented requests by certain of your employees to join his union and designate it as their collective bargaining representative. I went into an adjoining room and compared the names on the cards with the names appearing on your list and found that seventeen of the twenty-one employ- ees listed had asked to have the Los Angeles Joint Board AFL-CIO Hotel and Restaurant Employees and Bartenders Union of Los Angeles designated as their collective bargaining representative. The signatures appearing on the cards presented by the Union were compared with the signatures appearing on the employees W-4s and found to be the same. Please let me know if I can be of further assistance in this matter. A 5-year union-security collective-bargaining agreement, effective as of February 1, 1964, was entered into by Boy's and the Joint Board covering the snackbar operators within the jurisdictional areas of the various organizations comprising the Joint Board. Sometime in February 1964 a representative of the Culinary Workers telephoned Freed and informed her that the employees covered by the foregoing Joint Board-Boy's contract had not paid their dues and asked her what she intended to do about it. Freed replied that was a matter the Culinary Workers had to take care of. In the forepart of April 1964 Freed informed Boy's Crenshaw store snackbar employees Lee, Hill, Aubry, and Coward that they were, as of February 1, in the Culinary Union. When the employees asked Freed whether the contract provided for a pay raise she replied that she had not read the contract thoroughly but a rep- resentative of the Culinary Workers would come to the store soon and explain the terms of the contract to them. Lola Lee then asked Freed "if we hadn't signed a card, would we still be in [the Culinary Union]," Freed replied in the affirmative, adding that all the snackbar employees were in the Culinary Workers because a majority of those employees had signed Culinary Workers membership application cards. About 2 weeks after the conversation between Freed and the snackbar employees, referred to immediately above, Meister and a female representative of the Culinary Workers appeared at the Boy's Crenshaw store and the female representative told Lee, Hill, and Aubry, to quote from Lee's credible and undenied testimony, "It would only be $5.00 to join the Culinary if we all go in as a group, but if we wait until later, it would be more, and. . . that Mrs. Freed had given her the authority to give us termination papers if we didn't sign." 17 C. The Joint Board's claim of majority status at Von's As shown above, Local 770, under date of November 23, 1962, wrote Von's regarding the failure of certain employees working at various Von's prepared food takeout snackbars to become Local 770 members in accordance with the then- existing Council-Local 770 contract. In its reply, dated December 4, 1962, Von's took the position that "the functions and duties of our Fountain and Snack Bar employees do not now, nor have they at any other time, come under the terms or the jurisdiction of Retail Clerks Food Agreement." During all times material, Von's has had four Los Angeles area stores operating snack or takeout food bars covered by the geographical jurisdiction of both the Joint Board and Local 770. These are: store number 4, located in Monterey Park; and stores numbers 10, 15, and 18, located in the city of Los Angeles. The Monterey 16A copy of this letter was forwarded to Meister of the Culinary Workers. 14 As far as the record discloses , the only snackbar employee who paid any money to the Joint Board was Aubry. At the time the Joint Board contract was entered into, five of the eight Boy's Crenshaw store snackbar employees had signed Local 770 authorization cards. In addition, Faustina Brinson, the girl who handled the barbecued chicken opera- tion and who, pursuant to the September or October 19G3 verbal agreement between Freed, Gus De Silva, and Madray, was put under the then existing Council-Local 770 bargaining agreement, was a member in good standing in Local 770 at the time of the execution of the Joint Board-Boy's contract of February 1, 1964. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store and the Los Angeles store number 15 always have operated snackbars which serve prepared food exclusively for on-the-premises consumption, whereas store number 18 always has operated a combination on-premises and off-premises snackbar. Von's snackbar employees work exclusively behind the snackbars and other store employees very rarely-in fact, only in cases of emergency-perform any snackbar operations. Von's snackbar employees receive a lower rate of pay than other store employees and, except for holiday premium pay, they receive different fringe bentfits. Under date of January 10,1964, the Joint Board wrote Von's as follows: You are hereby advised that the Los Angeles Joint Executive Board of Hotel and Restaurant Employees and Bartenders Unions, AFL-CIO represents the majority of the snack bar employees employed in Von's Markets within the jurisdiction of the Los Angeles Joint Executive Board. We request a meeting be scheduled for the purpose of negotiating an agreement. Upon receipt of the above-quoted letter, Kenneth L. Doyle, Von's director of industrial relations and personnel, forwarded it to the Council for handling. The Council then requested Charles L. Lang, a public accountant, to conduct a card check. Under date of January 22, 1964, Lang wrote the Council as follows: At the request of the Food Employers Council, Inc. we have made an exam- ination of a list of employees and authorization cards of the Von's Grocery Co., snack bars. We submit the following as a result of our examination: 1. Vons Grocery Co., submitted a list of twenty-three employees. 2. Los Angeles Joint Executive Board of Hotel and Restaurant Employees and Bartenders Unions AFL-CIO submitted seventeen authorization cards. 3. There were thirteen authorization cards verified to the list of employees 4. The total verified authorization cards submitted was 56.5% of the employees list. Under separate cover we are returning your list of employees. Upon the receipt of Lang's letter, Melvin Dauber, a labor relations associate in the Council's employ, notified Doyle that the "Local Joint Board had a majority rep- resentation of [Von's] culinary employees and that we ought to enter into negotia- tions with them." Thereupon, negotiations were entered into which were concluded by the execution of a union-security clause collective-bargaining agreement, dated March 2, 1964. Said agreement, like the Boy's-Joint Board agreement, dated Febru- ary 1, 1964, covers "all culinary operations now or hereafter owned and operated by the Employers which are within the jurisdiction of the Unions." D. Concluding findings It is well-established Board law, under the Midwest Piping doctrine,18 as reiterated in Novak Logging Company, 119 NLRB 1573, 1574, that: an employer faced with conflicting claims of two or more rival unions which give rise to a real question concerning representation may not recognize or enter into a contract with one of these unions until its right to be recognized has finally been determined under the special procedures provided in the Act 19 Accordingly, the question here is whether, at the time of Boy's and Von's recognized the Joint Board as the collective-bargaining representative of their respective snack- bar takeout food employees, there existed a real question concerning the representa- tion of such employees between the Joint Board and Local 770. The credited evi- dence, as epitomized above, clearly establishes that such a question existed and, hence, by recognizing the Joint Board as the exclusive collective-bargaining representative of the employees involved, Respondent accorded the Joint Board unwarranted pres- tige and rendered said organization unlawful assistance within the meaning of Sec- tion 8 (a) (2) and (1) of the Act. Local 770 first claimed recognition as the bargaining representative of Von's snackbar takeout.food employees on November 23, 1962. The fact that Local 770 never abandoned its attempts to secure such recognition is evidenced by Local 770's 1e Midwest Piping & Supply Co., Inc., 63 NLRB 1060. 19 See also G. W. Hume Company and California Processors & Growers, Inc., 71 NLRB 533,559-562. THE BOY'S MARKET, INC., ETC. 119 demands during the 1963-64 negotiating meetings with the Council , which, during all times material, represented Von's, Boy's, and other supermarkets , for the purposes of collective bargaining with Local 770 and other labor organizations , that the agree- ment then under consideration was to cover said employees. Furthermore, according to the credible testimony of Gus De Silva, Madray, and McKinstry, it appears that commencing late in 1963 , Local 770 informed Freed that it represented a majority of Boy's Crenshaw store takeout food employees. The fact that Local 770 did not then make a formal written request for recognition or for a card check does not avail Boy's or Von's a valid defense to the unfair labor practices charges now under consideration . This finding is supported mainly, but not entirely, on (1) Freed's agreement not to sign a contract with any other union, to put one of the snackbar employees under the then-existing Council-Local 770 agreement and to wait the outcome of the negotiations between the Council and Local 770 before deciding how to treat the other snackbar employees; and (2) the repeated demands at the 1963 -64 negotiation meetings between the Council and Local 770 where Local 770 claimed to represent the snackbar takeout food employees and the employees engaged in combination operations. In addition , the agreement consummated as the result of the 1963-64 negotiations covered all the employees of the members of the Council , including all snackbar take- out food employees, excluding those "presently under a Culinary Workers Union agreement." The fact that the Joint Board's contracts with Boy's and Von's removed snackbar takeout food employees coverage from the Council-Local 770 1964 agree- ment cannot obscure the fact that until the respective dates of the execution of said Boy's and Von's contracts and thereafter such snackbar takeout food employees were the subject of negotiations between the Council and Local 770. It is thus clear that at the time Boy's and Von's executed their respective agree- ments with the Joint Board they were, and each was, faced with an active and con- tinuing claim by Local 770 for their respective culinary employees. Even if Local 770 did not, in so many words, make a formal request for recognition in the traditional sense, its request to negotiate a contract covering the snackbar takeout food employees was tantamount to a demand for recognition . Moreover, the Council's participation in collective bargaining on behalf of Boy's, Von's, and other supermarkets con- cerning wages and other terms and conditions of employment for the snackbar take- out food employees, coupled with Freed's aforementioned agreement on behalf of Boy's, to abide by the outcome of the Local 770-Council 1963-64 negotiations, estab- lishes beyond any doubt that Respondent actually recognized Local 770's claim of representation. I have carefully considered the various other defenses raised by Respondent and the Joint Board. It would serve no useful purpose to set forth here, at length, any discussion with respect to them for I find each of them to be without merit. Since the Council, at Von's request, conducted the card check of January 1964 and as a result of said check advised Von's to enter into a bargaining contract with the Joint Board, which Von's did on March 2, 1964, the Council clearly acted as Von's agent at the critical times in this case. Although the Council was not aware of the Joint Board's demand for recognition , of the card check, or of the execution of the Joint Board's Boy's February 1, 1964, contract until after they had taken place, the Council, the credited evidence discloses , subsequently ratified said action. Accord- ingly, I find that by said conduct the Council acted as a bargaining representative both for Boy's and Von's and as their "agent " within the meaning of Section 2 (2) of the Act and hence , for the purposes of this case , the Council is found to be an employer within the meaning of the Act solely for remedial purposes. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connec- tion with the operations of Boy's and Von's described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Boy's and Von's each has engaged in unfair labor practices, I will recommend that each cease and desist therefrom and take the following affirma-% tive action which it is found will effectuate the policies of the Act. Since it has been found that the execution of the Joint Board-Boy 's contract dated February 1, 1964, and the Joint Board-Von's contract, dated March 2, 1964, con- stitute unfair labor practices on the part of both Boy's and Von's, I will recommend 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Boy's and Von's each be ordered to withdraw and to withhold recognition from the Joint Board as the exclusive collective-bargaining representative of any of their respective employees and to cease and desist from giving effect to said contracts, and any other such contracts, understandings, supplements, extensions, or other agreements as may have been related thereto, provided, however, in so doing neither Boy's nor Von's shall not be required or permitted to vary those provisions of such contracts, understandings, supplements, extensions or other agreements which estab- lish wages, hours of employment, rates of pay, seniority, or other substantial rights of their respective snackbar takeout food employees,20 until such time as new con- tracts are entered into with an exclusive collective-bargaining representative of their respective snackbar takeout food employees 21 duly certified as such representative by the Board. I will further recommend that Boy's be ordered to reimburse its Crenshaw store snackbar takeout food employees for any initiation fees, dues, or other moneys paid by them pursuant to the aforesaid Boy's-Joint Board February 1, 1964, agreement. It is further recommended that Council, who, acting directly and indirectly in the in- terest of Von's and Boy's, aided and assisted in interfering with the self-organization of the employees of Von's and Boy's by, in the case of Von's, conducting the aforementioned card check and then advising Von's to abide by the results thereof and to enter into a bargaining contract with the Joint Board while it was negotiating, as the representative of certain Von's snackbar takeout food employees at a time when it, as an agent of Von's, was bargaining with Local 770 for the same unit employees and, in the case of Boy's, ratifying Boy's illegal conduct of conducting a card check and thereafter recognizing, bargaining, and executing a bargaining contract with the Joint Board as the representative of Boy's Crenshaw store snackbar takeout food employees at a time when it, as an agent of Boy's, was bargaining with Local 770 for the same unit employees, be ordered to cease and desist from such conduct and from the conduct which brought about the concerted violations. 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. Boy's and Von's each is engaged in, and during all times material was engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Council is an employer association, some of whose members are engaged in, and during all times material were engaged in, commerce, within the meaning of Section 2(6) and (7) of the Act. 3. The Council, as agent for Von's and Boy's, is an employer, for the purposes of this proceeding, of the employees here involved within the meaning of Section 2(2) of the Act. 4. The Joint Board and Local 770 are, and during all times material were, labor organizations within the meaning of Section 2(5) of the Act. 5. By contributing assistance and support to the Joint Board, through the medium of the illegal February 1, 1964, contract with the Joint Board, thereby encouraging membership in Local 770, Boy's has engaged in and is engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a) (2) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Boy's has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. By contributing assistance and support to the Joint Board, through the medium of the illegal March 2, 1964, contract with the Joint Board, thereby encouraging membership in the Joint Board and discouraging membership in Local 770, Von's has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(2) of the Act. 8. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Von's has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 9. By illegally assisting Boy's and Von's, as their agent, to encourage Boy's and Von's respective employees to join and assist the Joint Board and to refrain from joining or assisting Local 770, the Council has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 20 This recommendation is confined to Boy's Crenshaw store and to Von's stores num- bers 4, 10, 15, and 18. 21 JbJ& LIZ OF RUTLAND, INC . 121 10. By assisting Boy's, as its agent, illegally to encourage Boy's employees to join and assist the Joint Board and to refrain from assisting and joining Local 770, the Council has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 11. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.] Liz of Rutland, Inc. and Upstate New York & Vermont District Council, International Ladies' Garment Workers Union, AFL- CIO. Case No. 1-CA-4907. December 17,1965 DECISION AND ORDER On September 15, 1965, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent and the Charging Party filed excep- tions to the Trial Examiner's Decision, and the Respondent filed a brief in support thereof. The General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 'The Trial Examiner found that in preemployment interviews with prospective em- ployees in July 1964, the Respondent stated that he was going to open a nonunion plant and asked prospective employees if they had any objection to working in a nonunion plant. The Trial Examiner found that Respondent had thereby conditioned employment upon the employees' agreement not to seek representation through a union and had violated Section 8(a) (1) of the Act. We do not adopt such finding inasmuch as the conduct occurred more than 6 months prior to the filing of the charge on March 1, 1965, and is therefore barred from consideration as an unfair labor practice by Section 10(b) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in the above-entitled proceeding was held before Trial Examiner Thomas A. Ricci from May 24 through June 3, 1965, at Rutland, Vermont, on com- 156 NLRB No. 12.