Retail Clerk Union, Local 870

°240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks Union, Local 870, Retail Clerks Interna- tional Association;, AFL-CIO and "White' Front Stores;' Inc., White Front Newark, - Inc.," White Front -Pleasant Hill; Inc., White Front San `Jose, ,Inc. Retail Clerks Union, Local 870, Retail Clerks . Interna- tional Association, AFL-CIO andWhite Front--San Francisco, Inc.,,White Front South San Francisco, Inc., White _ Front Richmond,, Inc. Cases 20-CB-2144 and 20' CB-2250 July 27, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 1, 1970, Trial Examiner James R. Webster issued, his Decision in, the above-entitled proceeding, ,finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions and the Charging Parties filed cross-exceptions to the Trial Examiner's Decision together with supporting briefs. Answering briefs were also filed by the General Counsel and Respondent. 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. 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, the cross-excep- tions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, but only to the extent they are consistent with the following. We agree with the Trial Examiner's finding that Respondent engaged in picketing at various White Front Stores with an object of forcing White Front Newark, Inc.' to adhere to a collective-bargaining agreement containing a union-security clause, and that certain of this picketing occurred at times when Respondent did not represent a majority of the employees at White Front Newark. However, contra- ry to the Trial Examiner, we do not believe that the I Hereafter referred to as White Front Newark. 2 Hereafter referred to as White Front Oakland. evidence presented here warrants- a finding that Respondent's, conduct-Wag violative-of Section 8(b)(2) of the Act. As detailed- in the Trial, Examiner's Decision, the evidence shows that White Front. operates approxi- mately, eight :retail stores in what is known as the San Francisco Metropolitan Trading Area, and with the exception of White Front, Newark,- all these stores havecollective-bargaining agreements, with , various locals .of the Retail Clerks International Association, AFL-CIO. Of particular significance in this proceed- ing is the collective-bargaining agreement between Respondent and White Front Oakland, Inc.2 This agreement, which is effective during the period from August 1, 1968, to July 31, .1971, contains a union- security provision and an accretion clause. The latter clause,provides, in substance, that any stores opened or acquired by the Employer during, the life of the agreement and which are located within the territorial jurisdiction of the. Respondent, shall be deemed an accretion to the bargaining - unit at White Front Oakland and covered by that agreement. On March 6, 1969,3 White Front opened a new, store:. in Newark, California, approximately 10 miles from White-Front Oakland. Both stores are located in Alameda, County, California, and are within Respondent's territorial jurisdiction. Prior to the opening of the new store, Respondent's attorney, Robert Cowell, contacted Richard Chali- foux, the personnel director for White Front's parent corporation, Interstate Department Stores, and re- quested that the accretion clause in the collective- bargaining agreement with White Front Oakland be applied to cover the new store. By telegram, dated March 6, Chalifoux replied that White Front could not lawfully accord recognition to Respondent without adequate proof of majority status among employees constituting an appropriate bargaining unit, and that Respondent could expect correspond- ence from White Front's attorneys in the near future which would more fully explain White Front's position on this matter. This was followed by a letter of March 7 from White Front Attorney Frederic Richman to Respondent Attorney Cowell in which Richman represented that White Front would submit to an immediate card check if and when Respondent was able to secure signed authorization cards from a majority of the employees in the appropriate bargain- ing unit. On March 10, Attorney Cowell called Chalifoux concerning the matter of a card check and was informed by Chalifoux that Attorney Richman was not up on company policy and was not author- ized to make such an offer. Following this conversa- tion, Richman wrote to Cowell to explain that his 3 Unless otherwise indicated, all dates refer to 1969. 192 NLRB No. 33 RETAIL CLERKS UNION, LOCAL 870 241 prior statement as to company policy had been erroneous, and that he was now advised that under present procedures the Company would consider such things as card checks on a case-to-case basis. By letter dated April 16, Cowell again urged Chalifoux to effectuate immediately all provisions of the collective- bargaining agreement and fulfill the Employer's obligation under the accretion clause. Receiving no satisfactory response, Cowell followed with a tele- gram to Chalifoux on May 5, demanding an immedi- ate meeting of the adjustment board under section 19(c) of its agreement with White Front Oakland for the purpose, of resolving grievances raised in connec- tion with White Front's refusal to treat White Front Newark as an accretion to the existing bargaining unit. Chalifoux replied by telegram, dated May 8, taking the position that the collective-bargaining agreement between Respondent - and White Front Oakland did, not extend to the new store.4 On June 23, Respondent commenced picketing White Front Newark with signs bearing the legend, "Please do not patronize White Front, unfair to Retail Clerks Union - Local 870.", This picketing was still continuing at the time of the Board hearing. On various other occasions, Respondent also engaged in picketing at the administrative office of White Front and at five other White Front stores in the San Francisco Bay area.5 The General Counsel takes the position that all of the aforementioned picketing was directed towards forcing White Front Newark to adhere to the terms and conditions of Respondent's contract with White Front Oakland, including that agreement's 'union-security provision. However, the General Counsel concedes that such an objective is permissible under ' Section 8(b)(2) of the Act, if the Respondent enjoyed majority status among the employees of White Front Newark at the time it engaged in its picketing activities. On the question of Respondent's representative status,, evidence was presented during the hearing which establishes that Respondent achieved a card majority among the employees of White Front Newark no later than 10 days from the date of the store's opening on March 6, and that Respondent's card majority continued until August 24, which is approximately 2 months after the Respondent commenced its picketing activities. In view of this evidence, the General Counsel was permitted to amend the complaint to allege a violation of Section 8(b)(2) only with respect to conduct which occurred after Respondent's loss of majority status. 4 On May 15, Respondent filed a petition to compel arbitration in a Superior Court for the State of California . However, insofar as the record indicates, no further efforts were made to resolve the matter through arbitration. 8 The picket signs bore the same legend as those used in connection with the picketing of White Front Newark. 6 Local Joint Executive Boar4 Hotel and Restaurant Employees (Crown In prior cases,6 we have found that picketing for a union-security-agreement by a union which does not represent a majority of the unit employees or is not otherwise entitled to representative status constitutes a violation of Section 8(b)(2) of the Act. Here, however, we are faced with a rather unique, situation. The uncontroverted evidence establishes that Re- spondent acquired a cardmajorityamongtheemploy- ees of White Front Newark by March 16 and maintained this majority for a period of almost 5 months. Furthermore, Respondent represented a majority of these employees at the time it commenced picketing and for approximately 2 months thereafter. Thus, it must be said that for a substantial period of time, Respondent's picketing activities were not proscribed by Section 8(b)(2) of the Act. In such a circumstance, we believe that Respondent had the right to presume that the lawfulness of its conduct continued barring evidence to the contrary. Although at the Board hearing it was established that Respon- dent lost its majority after August 24, there is no evidence that Respondent was aware of that circum- stance prior to the hearing. Nor, in view of the fluctuations in the size of unit at White Front Newark, was there any means available by which Respondent could accurately determine its majority status on a day-to-day basis. This is not to say that Respondent's representative, could not have been challenged by means of a card check or a Board election or by some other means, but ,White Front elected, not to pursue these avenues available to it.7 Of course, certain risks are entailed when a union embarks upon a program of picketing activity and conduct which is lawful under, one set of circumstances but which may be decidedly unlawful under another. But when, as here, we are involved with the same continuing course of conduct,, the party charged with a violation of the Act should have some notice as to the circumstance which changed a lawful activity into one proscribed by the Act. No such opportunity presented itself here, and even the most diligent effort by. Respondent to ascertain its continuing majority would have proved fruitless in the circumstances of this case. According- ly, for the foregoing reasons, we would dismiss the complaint in its entirety. There is also another basis upon which. we would rely in dismissing the complaint. Respondent does not base its claim of representative status among the employees of White Front Newark solely upon its card majority. In addition, Respondent claims-that Cafeteria), 130 NLRB 1551, enfd. 301 F.2d 149 (C.A. 9); Local Joint Executive Board etc. (Little Luigi's Italian Foods), 153 NLRB 392. 7 White Front Newark did file an election petition on June 6, but while the matter was still pending before the Board it withdrew its petition. White Front Newark also filed Section 8(bx7)(C) and 8(b)(1)(A) charges on July 31 in connection with Respondent's picketing activities, but on August 7 it withdrew these charges. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD White Front Newark is an- accretion' to the existing unit of employees at White Front Oakland and that therefore, Respondent should be deemed to be the contractual representative of the White Front Newark employees. In passing upon Respondent's accretion claim, `the- Trial Examiner found that White Front Newark was a separate appropriate unit and that-it could not properly be found to be an accretion to the White Front Oakland units, We do- not agree. While, under different circumstances, the_oard might have, concluded that the employees of White Front Newark constituted a separate appropriate unit,. such a finding would not foreclose the Board from determining; whether under the facts presented, White Front Newark can'be properly said to be anaccretion to the White Front Oakland unit. Certainly, a finding of accretion is supported,by the fact that-White Front Newark-is the only White Frontstore'in San Francisco Bay area in which employees are not represented by Respondent or a sister local of the Retail Clerks International Association,, AFL-CIO. Also, White Front Oakland and-White Front Newark are virtually identical retail operations; separated from one anoth- er by a_.distance of only approximately 19 miles; and they are the only White Front stores located within the geographic confines of Alameda County, California.9' More important, however, is the contrac- tual agreementbetween Respondent and White Front Oakland whereby the parties agreed thavany future White Front Stores-located within the Respondent's territorial jurisdiction would be deemed an accretion to existing bargaining unit. Although we have in past cases refused to give controlling weight to such a clause, our only reason for not giving controlling effect to the contractual commitment of the parties has been our concern over protecting the rights of future employees to have a say in the selection of their bargaining representative. No such problem exists- here, however, because the employees at White Front Newark have already clearly, indicated that they wish to' be represented by the Respondent.ro Therefore, as the rights of the third parties, i.e., the employees,of White Front Newark, have not been jeopardized, we consider itproper to give full-effect to the contractual agreement- of the parties, and on this basis alone conclude that White Front Newark is an accretion to the existing unit covered by the collective-bargaining agreement between Respondent and White Front Oakland:11 Accordingly for the foregoing reasons, we find that Respondent's picketing did not violate Section 8(b)(2) of the Act and that the complaint should be dismissed in its entirety. ORDER' Pursuant to Section 10(c) of the National Labor Relations Act., as amended, the National Labor Relations Board hereby orders that the complaint herein be, andit hereby is, dismissed in its entirety. CHAIRMAN MILLER, concurring: I concur in the result, solely on the basis of the first rationale set forth in the main opinion. I do not pass upon the accretion issue. 8 The Trial Examiner also considered the appropriateness of a multistore unit comprised ,of the White Front Oakland and White Front Newark stores and concluded that such a unit would not be appropriate 'for purposes of bargaining; In our judgment, a determination ' of the appropriateness of a multistore unit is irrelevant to the,issues presented in this proceeding. Accordingly, we find it unnecessary to consider this question. 9 The Trial Examiner's finding that White'Front Richmond, Inc., is also located to Alameda County, California, is clearly erroneous. 10 The only reason that this employee preference may not have been expressed to White Front at an earlier date was that White Front reneged' on its previous commitment to submit to an immediate card check, when and if the Respondent secured signed authorization cards froma majority of the unit employees. 51 Our decision here in no way conflicts with our earlier determination in Melbet Jewelry, Co., 180 NLRB No. 24. In our opinion, the two situations are dissimilar because here, unlike Melbet, 'the employees at the new location already indicated their preference for representation by the Respondent. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. WEBSTER, Trial Examiner: This case, with all parties represented, was heard in San Francisco, California, on June 9, 29, and 30 and July 1,1970, ,oncomplaintof the General Counsel and answer, of RetailrClerksaUnion, Local, 870, Retail Clerks International Association, AFL-CIO, herein referred to as Respondent. The complaint was issued on April. 6, 1970, on charges filed ,December 12,_ 1969; March 31, 1970; and May 22, 1970. The complaint alleges that Respondent picketed several White Front stores for an object of causing White Front Newark, Inc., to be bound by a collective-bargaining agreement containing a union- security clause and that such picketing occurred when Respondent did not represent a majority of +the employees at this store, and that Respondent has thereby-, violated Section 8(b)(2) of the National Labor Relations Act, herein called the Act. Briefs have been filed by the General Counsel, the Charging Party, and Respondent, and . these have 'been carefully considered. Motion to correct the transcript Was filed by counsel for the. General Counsel' on August' 17, 1970; the motion is granted. ' Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS ' Each of the Charging Parties, White Front Stores," ,Inc., White Front Newark, Inc., White Front Pleasant Hill, Inc., White Front San Jose, Inc., White Front San Francisco, RETAIL CLERKS UNION, LOCAL 870 243 Inc., White Front South San Francisco, Inc., and White Front Richmond, Inc., is a separate corporation engaged in the operation of a retail discount department store, and each is a wholly owned subsidiary of Interstate Department Stores, Inc. Each store does an annual gross business of $500,000 and annually receives shipments of merchandise from other States into California valued in excess of $50,000. White Front Stores, Inc.,. is a complex of stores operating in^ the Los Angeles, California, area. Each of the other Charging Parties is located and engaged in business in the municipality in California that appears in its corporate name. In all, Interstate Department Stores - owns and operates approximately 26 White Front stores in California. I find that each of the seven Charging Parties are employers `engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. - II. THE LABOR ORGANIZATION INVOLVED Retail, Clerks Union, Local 870, Retail Clerks Interna- tional Association, AFL-CIO, Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether the employees at White Front Newark, Inc., constitute an accretion to the -bargaining unit at White Front Oakland, Inc., or a multistore bargaining unit with the employees at that store or a separate bargaining unit. 2. Whether the continuation of picketing by Respon- dent -`for a union-security agreement at White Front Newark after' it -ceased to represent a majority of the employees' at Newark constitutes a violation of Section 8(b)(2) of the Act. 3. Whether -Respondent may adduce evidence of an unfair labor practice by White Front barred by Section 10(b) of the Act to defend and to explain its loss of majority at Newark. B. Statements of Facts Respondent and White Front Oakland, Inc., located in Oakland, Alameda County, California, entered into a collective-bargaining agreement on August 1, 1968, with expiration date of July, 31, 1971 . At the same time, similar but separate contracts were negotiated between White Front and other locals of the Retail Clerks Union covering White Front stores in their respective jurisdictions. The contract at Oakland provides that the Employer recognizes the Union as the sole collective-bargaining agent for a unit including all selling, stock clerks and other nonselling employees in the Employer's retail establishment or establishments located in Alameda County, California. The contract also contains a union-security clause as follows: UNION MEMBERSHIP : Continuous membership in, -good standing in the Union shall be a condition of employment under this agreement. Upon written seven (7) days prior notice by the Union, the Employer agrees to discontinue the employment of any employee who, at any time after thirty (30) days from the date of execution of this agreement or thirty (30) days from the date of hiring, whichever is later, fails to become or remain a member of the Union,in good standing. Appendix E to the contract, entitled "Additional Stores," provides as follows: In the event that the Employer should, between August 1, 1968 and the termination date of this agreement, acquire, establish or operate any additional store or stores within the geographic jurisdiction of the Union, this agreement shall apply to all selling, stock clerks and other non-selling employees, as defined in Section 1 of this agreement, employed in such store or stores, and such employees shall be deemed an accretion 'to the bargaining unit covered by this agreement; except that this paragraph shall not apply to the employees of any store who are covered by a collective-bargaining agreement with another union. On March 6, 1969, White Front Newark, Inc., located in Alameda County approximately 19 miles from White Front Oakland, opened for business. A small managerial staff worked in the store from January 27 to March 6, 1969, in preparation for the opening. On February 28, Respondent's attorney, Robert P. Cowell, wrote Richard-G. Chalifoux, personnel director of Interstate Department Stores in New York City, calling his attention to Appendix E of the collective-bargaining agreement, and calling his attention to White Front's adherence to a similar clause upon, the opening of a second store in Sacramento, California, and asking that White Front adhere to Appendix E of the agreement in Alameda County. ' - By telegram dated March 6, 1969 , Chalifoux replied that White Front stores could not lawfully accord recognition to Local-870, Retail Clerks Union without adequate proof of majority status among employees constituting an appropri- ate bargaining unit, and that `Respondent could expect correspondence from White Front attorneys within the near future more fully stating White Front's position. , On March 7, 1969, White Front Attorney Fredric N. Richman wrote Cowell as follows: Our client Interstate Department Stores, Inc. has forwarded to us your letter of February 28, 1969, for reply. We are of the opinion that the Employer is properly declining recognition of Local 870 at the Newark store. I call to your attention the recent decision in National Labor Relations Board v. Food Employers Council; 399 F. 2nd 501. The Company's position is and always has been that as soon as Local 870 is able to secure signed authorization cards from a majority of the employees in the appropriate bargaining unit, the Company will be more than happy to submit to an immediate card check. About March 10 or 11, Cowell called Chalifoux on the matter of a card check but was told that Richman was not up on company policy and was not authorized to make such an offer. As of Sunday, March 9, 1969, after the store had been open 3 days, Respondent had only 21 authorization cards but by the end of the following week it had a majority of 108 cards out of 204 employees. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letter dated March 12, 1969, Attorney Richman wrote Cowell as follows: In the third paragraph of my letter of March 7, 1969, I indicated to you that Interstate Department Stores, Inc. would be more than happy to submit to a card check if and when your client was able to secure signed authorization cards. I, regret to advise you at this time that my representation of the Company's intention in that regard was erroneous and contrary to the oral representations made by Mr. Chalifoux to Mr. Jones. Until the Newark situation arose, I 'believed the Company's policy to'be what I had stated, but I am now advised that henceforth the `former policy shall no longer be in effect and we shall consider such things as card checks on a case to case basis. I can assure you the error on my part was a ,result of a lack of communica- tion owing in large measure to the great number of matters in which our client is involved. By letter dated April 16, 1969, Cowell again °wrote Chalifoux urging the Company-to effectuate immediately all' provisions of the collective-bargaining agreement and fulfill its obligation under the accretion clause. By telegram dated May 5, 1969, to Chalifoux,' Cowell demanded, an immediate meeting of the adjustment board under section 19(c) of the Oakland agreement to resolve grievances raised in his letter of February 28 regarding the accretion of the Newark store. Chalifoux replied by telegram dated 'May 8 that the current collective-bargaining agreement between Respondent and White Front Oakland, Inc., does not extend to the White Front Newark store. On May 15, 1969, 'Respondent distributed leaflets to employees at White Front Newark, Inc., wherein it was stated, among other things, as follows: On August 1, 1968 we arrived at a new contract with White Front, a part of which was that all new White ' Front operations in Alameda county would be covered by the master agreement. They have seen fit to ignore this clause, even after repeated meetings. - The company insists on an election in your store and, of - course, the union's position is that the store should automatically come under the existing agreement. On June 6, 1969, White Front Newark filed a representa- tion petition (Case 20-RM-1182) seeking an election at this store in a unit of retail sales employees and office clericals. On June 20, 1969, Respondent distributed literature to Newark Store' employees which, among other things, contained the following: This Union has had a collective bargaining agreement with White Front for a number of years, the latest being effective August 1, 1968. At that time a newly negotiated clause was arrived at which provided that any new store opened by the Company in, Alameda County would automatically be covered by the agreement. - We have made every effort to convince the, Company that they should- honor the collective' bargaining agreement. Commencing on June 23, 1970, Respondent picketed the Newark store with signs as follows: Please do not patronize White Front, unfair to Retail Clerks Union-Local 870. The picketing has continued to date of hearing. Respondent has, picketed other stores of White Front commencing on dates shown with the same picket signs, as follows: White Front Pleasant Hill, Inc.-December 9,1969 - White Front San Jose, Inc.-December 9, 1969 - White Front Stores, Inc.-December 10, 1969, to on or about March' 31, 1970; and for at least during about the 2 months preceding the hearing herein which, com- menced on June 29, 1970. White Front San Francisco, Inc.-February 2; 1970, to February 24,1970 - - White Front South San Francisco, Inc.-February 5 to February 22, 1970 White Front Richmond, Inc.-April 23,1970 - ' C. The Operation of White Front Newark, Inc. The principal place of business of Interstate Department Stores, Inc., is in New York City, New York., The director of store operations for all White Front stores has his office in Los Angeles, California. As is typical of chain store operations, there is considerable centralization and central control maintained by Interstate. There are area warehous- es serving a number of White Front stores. Advertising is centralized. Merchandise is purchased from vendors chosen by Interstate. The prices of merchandise in each of the stores is centrally determined. The employees in the various stores receive their checks from White Front's Los Angeles, office. General corporate policies including wage scales,, personal matters, and labor relations,are formulated by Interstate. Under the director of store operations for White Front stores,,there are group managers overseeing stores in, a particular area, and the group manager is charged with the function of seeing that the stores in his group show a profit. The local store managers submit .,their sales inventory reports to the group manager for approval. The group manager in conjunction with the director, of, store operations has the authority to discharge or transfer any individual store manager. Apparently, to the extent that it can be done, there exists a central and uniform policy governing the operations of each of the subsidiary corporations. For the opening of the Newark store, all employees were hired by a White Front personnel representative from Los Angeles. Thereafter, it has been the functionand responsi- bility of the store management to hire and fire employees; however, in doing so they follow guidelines set out by Interstate. Local management lays off and recalls employ- ees and assigns and directs their work on a 'day-to-day basis. Vacations and work schedules are prepared by store management and leaves of absence up to a period, of 30 days can be authorized by local management. The local store keeps its own payroll records and sales inventory reports and prepares purchase orders for the majority of the store's merchandise. These purchase orders are placed directly with vendors, although Interstate chooses the vendors and predetermines the price to be paid for the merchandise. Other merchandise, approximately 30 percent of the merchandise acquired; is transferred from 'various RETAIL CLERKS UNION, LOCAL 870 245 warehouses of the White Front division of Interstate and of centralization and uniformity, but this applies to all of the Interstate. White Front stores and is a usual practice in the operation D. CoAclusions Respondent is predicating its actions herein on the theory and contention that the Newark store is an accretion to the Oakland store, or that together the two stores constitute an appropriate multistore 'bargaining unit. Both stores are located in the same county and are encompassed within the geographical jurisdiction of the Union. Respondent's picketing of White Front has been- for the purpose of 'forcing White Front to adhere to the accretion clause in its contract covering White Front Oakland and to apply this contract to the Newark store. Irrespective of its contract with Respondent, White Front has taken the position that the Newark store is not an accretion to the Oakland store and also that the Newark and'Oakland stores do not constitute a multistore unit but are separate bargaining units. An "accretion" is a bit more difficult to establish than a "multi-store unit," as it implies a growth or expansion of an existing unit. It has some advantage to a union, however, in that with it there does not exist the same problem of proof of "majority status" as exists with a multistore unit, since there is- a presumption of continuation of majority status in a bargaining unit once established. As to a multistore unit, Respondent must show that it has a majority status and that the multistore unit is, appropriate. In some situations, more than one unit can be appropriate. Thus, the first issue is whether the Newark store is an accretion to the Oakland store, and if not, whether the two stores` constitute an appropriate multistore bargaining unit. It is noted that White Front agreed to recognize Respondent as the bargaining representative of its "establishment or establishments located in Alameda County, California" and to include employees of any additional store or stores in the county as an accretion to the Oakland unit. Although the Board and courts recognize bargaining history-that is, past practice-as one determin- ing factor on the issue of appropriate unit, any contractual attempts ,by parties to describe the constitution of any future appropriate bargaining unit rests or falls on the accuracy of their determinations. Their designation of a new store as an, "accretion" or as a "multi-store unit" does not make it so; whether it is or not is strictly a question of law.' Thus, Respondent's agreement with White Front Oakland on the matter is not controlling. Considering all factors, I find that the Newark store does not constitute an accretion to the Oakland store and also that the two stores do not constitute an appropriate multistore bargaining unit: Normal tests for multiplant units are administrative coherence, geographical cohesive- ness, bargaining history, and mutual consent; other factors considered are common terms and conditions' of employ- ment, substantial uniformity of wage systems and fringe benefits, substantial integration of operations, interchange of employees, and the like. 2 In the instant case, there is abundant evidence of of retail chains. In this regard, the Newark store bears the same relationship to all of the, White Front stores as, it does to the Oakland store. It has in common with other stores in Northern California a group manager and a central point or warehouse for distribution of some of its merchandise not delivered directly by vendors. The only thing that it has in common with the Oakland store and not with the other stores is that it is located in the same county, along with another newly opened store in Richmond, California. As stated in the Haag Drug Company ,case, 169 NLRB 877, 878, "More significant [than centralized administrative control] is whether or not the employees perform their day-to-day work under the immediate supervision of a local store manager who is involved in rating employee performance, or in performing a significant portion of the hiring and firing of the employees, and is personally involved with the daily matters which make- up their grievances and routine problems. " The Newark store was staffed with new employees; there has- been almost no interchange of unit employees with Oakland or any other White Front store; the store manager is in charge of the day-to-day operations of his store and is responsible for the hiring, training, and rating of employ- ees. The Newark store is run as a separate operation. Under similar circumstances, the Board has found that a single- store unit and not a multistore unit is appropriate.3 Accordingly, I find that the employees at White Front Newark, Inc., constitute a separate appropriate bargaining unit, that they are not an accretion to the Oakland store unit, and that a multistore unit of these two stores is an inappropriate bargaining unit. The fact that White Front has previously extended existing union-security contracts to new stores in Sacramento, California, and in Santa Clara County; California, is not sufficient to establish a bargaining history governing the instant case. Respondent's picketing has been for the object of forcing compliance with 'Appendix E of its,Oakland contract;,it_ has not been for recognition as bargaining agent for a separate bargaining unit at the Newark store. Thus, Respondent's picketing has been for recognition and bargaining relations in an inappropriate bargaining unit. On June 6, 1969, White Front Newark filed a representa- tion petition seeking an election in a unit of employees at that store (Case 20-RM-1182). On September 11, 1969, the Regional Director for Region 20 issued a Decision and Direction of Election. Respondent filed- a request for review. On September 18, 1969, the Regional Director approved the withdrawal of the petition by White Front Newark. The issue before me-is whether or not Respondent had picketed for a union-security contract at the Newark store at a time when 'it did not represent a majority of employees at this store as a separate bargaining-unit. If the Newark 'store were an accretion, then Respondent's majority status, at Oakland would have been presumed to continue until the contrary is shown. If the Newark store were one in a two-store unit, then Respondent's majority t .Sheraton-Kauai Corporation, 177 NLRB 'No. 13 enfd. 429 F.2d 1352 3 Melbet Jewelry Company, Inc, 180 NLRB No. 24; Sheraton-Kauai (C.A. 9). Corporation, 177 NLRB No. 13, supra. Super Yalu Stores, Inc., 177 NLRB 2 PPG Industries, 180 NLRB No. 58. No. 63; Warehouse Markets, Inc., 175 NLRB No. 70. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status would be determined by a count at the two stores together. Asa separate bargaining unit,' Respondent must establish that it represents a majority of the Newark employees in order to picket for a union-security agreement requiring these employees to become members of the Union as a condition of employment. Section 8(a)(3) authorizes 'an employer and a union, with some exceptions, to make an agreement requiring union membership as a condition of employment if such union is the representative of a majority of the employees in the unit . Picketing for such an agreement where the union does not represent a majority of the employees constitutes a violation of Section 8(b)(2) of the Act .4 By the second week of operation (week ending March 16, 1969), Respondent had authorization cards from a majority of the employees at the Newark store-108 cards out of 204 employees. Respondent had authorization cards from a majority of the store employees during the period from March 16 through August 24,1969.5 When picketing began at Newark on June 23, 1969, Respondent had 75 cards out of 123 employees. Respondent makes two contentions regarding the change in its majority status-that it had a majority when it demanded the extension of its Oakland contract to cover the Newark employees, and also when picketing began; and that White Front caused - the loss of majority by engaging in unfair labor practices. Respondent contends that White Front Newark could have and should have adhered to the Oakland contract in March and June, when it represented a majority of the employees , in the Newark unit; that as it had been selected by a majority of 'these employees as their bargaining representative, it should have a reasonable time to function in, this capacity. But the point is that it at no time sought recognition as bargaining representative for these employ- ees as a separate bargaining unit. Furthermore, a union's right to a reasonable time to function as bargaining representative does not arise until it is vested with that status either by certification or recognition or by the commission of unfair labor practices by the employer calculated to destroy majority status and to interfere with a free election. There is no certification or recognition of Respondent as to the Newark store. Respondent contends that it had an ample majority status at the Newark store but that it was dissipated by unfair labor practices of White Front; and that the Company had stated at one time that when Respondent was able to secure signed authorization cards from a majority of employees in the appropriate bargaining unit, it ,would submit to an immediate card check , but a few days later it withdrew this offer. Also, Respondent contends,, and made offer of proof in this connection, that 44 employees who were union members and employed at the Oakland store were refused transfers to the Newark store during the period of February and March 1969, 4 Crown Cafeteria 130 NLRB 1551,'enfd. 301 F.2d 149 (C.A. 9); Little Iraigi's Italian Foods, 153 NLRB 392; Hart Motor Express, Inc., 164 NLRB 382. S For 3 weeks after August 24, Respondent would have continued to have a majority status if the undated cards of Blakeman , Freitas, and Smocynski were counted, but there is no indication as to when these cards were signed, and they have not been counted. immediately before the opening of the Newark store; thafif this had been allowed, Respondent's majority would have continued beyond August 1969. Respondent further offered to prove that some of these employees were told by supervisors -at White Front, Oakland, at the time of their .requests for transfers that there would be. no transfers because White, Front-did not want a.,union,at the Newark store. Respondent contends that it would not have become a minority union picketing for a union-security contract if it had not been for unfair labor practices by White-Front. But the alleged conduct of White Front complained of occurred in. February and March ,1969. This is well over 6 ,months prior to, the initial charge herein, filed on December 12, 1969. In the absence of a timely and meritorious charge, Respondent is barred by Section 1,0(b) of the, Act from establishing that White Front committed an unfair labor practice prior to the 6-month limitation period, even though offered only to defend an unfair labor practice Respondent is charged with committing.6 Furthermore, I find that there is an insufficient relationship between the alleged conduct of White Front in February and March 1969 and a loss of majority, status, by the Respondent in the latter part of August 1969, particularly in view', of the fact that Respondent acquired a substantial majority status in the latter part- of March 1969, after the alleged , conduct; and maintained it for approximately 5 months. I find that by picketing White Front Newark, Inc., on and after August 31, 1969„and by picketing at White ,Front Pleasant Hill, Inc., White Front SanJose, Inc., White.Front Stores, Inc., White Front San Francisco, Inc., White ,Front South San Francisco, Inc., and White Front, Richmond, Inc., on dates as found herein, all for the purpose of, forcing White Front Newark, Inc., to adhere to the-terms of a union=security contract, -Respondent has thereby ,attempted to cause White Front Newark to discriminate- against its employees in violation of Section 8(a)(3) of the Act. W. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set'foith in 'section III, above, 'occurring in connection with the operations of the Employers described in section I, above, have a close, intimate,' and `substantial relation to trade, traffic, and commerce among the several States ' and tend to lead` to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the ' foregoing findings of fact and the entire record in this case, I'make the following: CONCLUSIONS , OF LAW 1. White Front Stores, Inc., White Front Newark, Inc., White Front, Pleasant Hill, Inc., White, Front San Jose, Inc., White Front San,,Francisco,, Inc., White. Front South San 6 Local No. ' 8280, United Mine Workers of America, 166 NLRB 271, enfd. 422 F 2d 115. On June 20, 1969, and August 4, 1969,' Respondent filed charges agamst White Front alleging, among other things, refusals to transfer union members from Oakland to Newark. (Case, 20-CA-5640) These charges were dismissed on August 29, 1969; this dismissal was appealed; and on March 11, 1970, the appeal was dented by the General Counsel. RETAIL CLERKS UNION, LOCAL 870 247 Francisco, Inc., and White Front Richmond, Inc., are employers engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks 'Union, Local 870, Retail Clerks International Association, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By picketing White Front Newark, Inc., on and after August 31, 1969, and bypicketing'White Front Stores, Inc., White Front Pleasant Hill, Inc., White Front San Jose, Inc., White Front San Francisco, Inc., White Front South San Francisco, Inc., and White Front Richmond, Inc., as found herein, all for the purpose of forcing White Front Newark, Inc., to adhere to the` terms of a union-security contract, at a -time when -Respondent did not represent a majority of White Front' "Newark, Inc., in an appropriate unit, Respondent has thereby attempted to cause White Front Newark, to discriminate against its employees in- violation of Section 8(a)(3) of the Act, and has thereby engaged in a violation of Section 8(b)(2) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. TAE REMEDY Having found that Respondent has engaged in an unfair labor practice violative of Section 8(b)(2) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]