Robert Hall Clothes

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert Hall Gentilly Road Corporation, d/b/a Robert Hall Clothes; Jack Grossman Enterprises, Inc.; Suitland Domestics, Inc.; National Hard Goods Distributors, Inc.; Harry Camp Company; Morse Shoe, Inc.; Adlay Jewelry, Inc.; Sherwin-Williams Company; and Greenman Bros., Inc; and Retail Clerks Union, Local 548, a/w Retail Clerks International Association, AFL-CIO. Local 835, Retail Department Store Employees, Amalgamated Clothing Workers of America, AFL-CIO and Retail Clerks Union, Local 548, a/w Retail Clerks International Association, AFL-CIO. Cases 15-CA-4716 and 15-CB-1368 December 1, 1973 DECISION AND ORDER By CHAIRMAN ' MILLER AND MEMBERS FANNING AND PENELLO On June 29, 1973, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the Respondent Employers and Respondent Local 835 filed excep- tions and supporting briefs, and the Charging Party, hereinafter called Local 548, filed cross-exceptions and a brief in support thereof, and a brief in answer to Respondents' exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in the light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that on December 19, 1972, when the Respondent Employers voluntarily recognized Respondent Local 835 on the basis of a third-party card check, a real question concerning Local 548s right to represent employees existed. Accordingly, the Administrative Law Judge held that the Respondent Companies, by thus according recognition to Respondent Local 835, ran afoul of the Board's Midwest Piping' doctrine, thereby violating Section 8(a)(2) and (1) of the Act. He further held that Respondent Local 835, by accepting voluntary recognition, similarly violated Section 8(b)(1)(A) of the Act. We disagree. As more fully set forth in the attached Administra- tive Law Judge's Decision, Respondent Local 835 telegraphed the Respondent Companies on October 18, 1972, demanding recognition, asserting that it had signed authorization cards from a majority of the employees here involved and that such majority could be established by an independent third-party card check. Thereafter, between October 19 and November 1, Local 548 filed several petitions seeking to represent employees in a number of units subsequently found inappropriate by the Regional Director. Those cases involving the aforementioned petitions were consolidated; Respondent Local 835 was allowed to intervene; and a hearing was held on November 2, at which, inter alia, evidence was adduced bearing upon the appropriateness of the unit. At the hearing, and contrary to the position taken by Local 548, Respondent Local 835 contend- ed that only an overall unit composed of Robert Hall employees and the employees of its licensees at the Old Gentilly Road facility was appropriate. On December 1, 1972, the Regional Director issued his Decision and Direction of Election in which he found that only the overall unit was appropriate. Further, noting that Local 548 expressed a desire to go to an election in an overall unit if such was found appropriate, the Regional Director expressly condi- tioned the holding of an election on an administra- tive determination that Local 548, the petitioner in the representation proceeding, had an adequate showing of interest in the appropriate unit. As of November 25, 1972, there were 155 employ- ees in the appropriate unit. As of December 1, Local 548 had signed authorization cards from 23 employ- ees in that unit. It acquired a 24th card on December 4. Pursuant to the Regional Director's Decision, Local 548 was asked to submit additional cards or withdraw its petitions. In the meantime, on December 6, Local 548 wrote Respondent Robert Hall Clothes, advising that Company that it was conducting an organizing program at the Old Gentilly Road facility and further stating that it represented employees in that store and therefore that said Respondent should "give this due consideration before making any decision relative to the other labor organization involved." On December 12, by telegram to the Regional Director for Region 15, Local 548 requested that its petition be withdrawn, adding, however, that it continued to assert an interest in the employees in the unit found appropriate and desired to participate in any election directed for that unit. On the same date, Respondent Local 835 advised the Regional Office that it did not wish to proceed to an election. On December 13, the Acting Regional Director approved Local 548's request to withdraw. On the same date Respondent Local 835 renewed its original 1 Midwest Piping & Supply Co., Inc, 63 NLRB 1060. 207 NLRB No. 113 ROBERT HALL CLOTHES 693 request for recognition upon a third-party card check. The Respondent Companies agreed and, on December 19, a card check was held before a local clergyman. The clergyman certified that Respondent Local 835 had submitted valid authorization cards from 114 of the 153 employees in the overall unit found appropriate by the Regional Director. The Respondent Companies recognized Respondent Local 835 forthwith. On the foregoing facts, the Administrative Law Judge found that the continuing "interest" manifest- ed by Local 548, following withdrawal of the aforementioned petitions, was not so clearly unsup- portable and lacking in substance as to permit voluntary recognition of Respondent Local 835. We hold otherwise.2 The record reveals that Local 548 commenced its organizational campaign at the Old Gentilly Road facility in April 1972. This campaign was directed towards employees in the clothing, record, and domestic departments which were ultimately includ- ed in a larger overall unit found appropriate by the Regional Director in his aforementioned Decision and Direction of Election. As previously stated, pursuant to that Decision, Local 548 was requested to submit additional cards evidencing its showing of interest in the larger unit or, alternatively, to withdraw its petitions. In response, Local 548 requested withdrawal of its petitions, although it informed the Regional Director that it continued to assert an interest in the, employees in the unit found appropriate. The only evidence of record indicating such an "interest" subsequent to this withdrawal request is Local 548's December 13 communication to the Respondent Companies advising that they were "currently conducting an organizing campaign" among those employees. However, at the hearing held herein, no evidence was adduced showing that any cards were solicited or signed on behalf of Local 548 after it requested that its petitions for elections be withdrawn. Indeed, there is no evidence that Local 548 thereafter engaged in any activity consist- ent with its claim that it was currently conducting an organizing campaign. Significantly, the individual alleged to have been in charge of Local 548's organizational campaign since early October was not called to testify. In these circumstances, we think that the Adminis- trative Law Judge's reliance upon the Board's Decision in Playskool3 is misplaced. In that case, we found that the respondent unlawfully assisted a favored union when it voluntarily recognized that union following an election defeat by a rival union where,, after the election, the rival union manifested clear evidence of a continuing organizational effort. In that case, the rival union continued to send organizers to the respondent's plant, obtained addi- tional authorization cards, held occasional meetings, and visited employees in their homes. By contrast, we find in this case no more than a naked claim to a continuing interest in the employees here involved.4 We find such a claim insufficient to compel applica- tion of our Midwest Piping doctrine, and accordingly, under the circumstances herein, hold that the Respondents did not run afoul of the Act by respectively granting and accepting voluntary recog- nition, following a third-party card check. For these reasons, we shall dismiss the complaint 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, and it hereby is, dismissed in its entirety. 2 The General Counsel does not contend that Respondent Local 835's cards were tainted, but only that there is doubt as to the "validity of recognition based on them" We disagree. The size of the unit is not contested. Even assuming that all employees who signed cards for Local 548 also signed cards for Respondent Local 835, deletion of these cards from the number counted during the card check would still leave Respondent Local 835 with a clear majority. 3 Playskool, Inc., a Division of Milton Bradley Company, 195 NLRB 560, enforcement denied 477 F.2d 66 (C.A. 7, 1973). 4 Compare Inter-Island Resorts, Ltd., d/b/a Kona Surf Hotel, 201 NLRB 139, also cited by the Administrative Law Judge in support of his Decision There, recognition was accorded one union in the face of a rival union's outstanding representation petition which eventually was supported by a sufficient showing of interest. In this regard, the facts therein reveal that the petitioning union was engaged in an active , ongoing organizational campaign among the unit employees which resulted in that union's obtaining the requisite interest showing to support its petition within a few days after its filing, and at the time recognition was unlawfully accorded the assisted union. Clearly the facts of that case distinguish it from the instant matter. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charges in both cases were filed on December 22, 1972.1 The cases were consolidated and a consolidated complaint was issued on February 16, 1973. An amend- ment to the consolidated complaint was issued on April 17, 1973. The hearing was held on April 24, 1973, in New Orleans, Louisiana. The amended consolidated complaint alleges that Res- pondent Companies and Local 835 committed Midwest Piping2 violations of, respectively, Section 8(a)(2) and (1) and Section 8(b)(l)(A) of the National Labor Relations Act, as amended, on or about December 19. For the reasons set forth below, I find that a real question concerning Local 548's right to represent the employees involved existed when, on that date, Respondent Compa- i Dates are 1972 unless otherwise specified- 2 Midwest Piping & Supply Co, Inc., 63 NLRB 1060. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vies recognized Local 835 on the basis of a card check, and that, therefore, Respondents violated the Act as alleged. Upon the entire record and after due consideration of briefs, I make the following: FINDINGS OF FACT BERNARD J. FIRESTONE REGIONAL COUNSEL RETAIL AND DEPARTMENT STORE EMPLOYEES, AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO I. JURISDICTION Robert Hall Gentilly Road Corporation, a Louisiana corporation, is a wholly owned subsidiary of Robert Hall Clothes, Inc., a Delaware corporation. It operates a retail clothing store in New Orleans which has been known since October 1972 as Robert Hall Village. The eight other companies named in the caption above have been its licensees since October 1972. Each operates a retail store in Robert Hall Village. Their licenses expressly reserve to the licensor control of their labor policies. During the year prior to issuance of the consolidated complaint, Robert Hall Gentilly Road Corporation grossed more than $500,000 and received goods valued in excess of $50,000 which were shipped directly to its New Orleans store by suppliers located outside the State of Louisiana. In the year ending in October 1973 all nine companies named jointly as Respondents in this proceeding will jointly gross more than $500,000 from their operations at Robert Hall Village and receive goods valued in excess of $50,000 which will be shipped directly to Robert Hall Village by suppliers located outside the State of Louisiana. II. THE UNFAIR LABOR PRACTICES A. Facts Both Local 548 and Local 835 undertook to organize Robert Hall Village employees in 1972. On October 18, Local 835 demanded recognition in a telegram which read: MR. JEROME ROCKMAN ROBERT HALL CLOTHES 333 w. 34TH STREET NEW YORK, NEW YORK 10001 A MAJORITY OF THE EMPLOYEES EMPLOYED IN YOUR ROBERT HALL VILLAGE STORE LOCATED AT 4200 OLD GENTILLY ROAD IN NEW ORLEANS, LOUISIANA HAVE VOLUNTARILY SELECTED THE RETAIL AND DEPARTMENT STORE EMPLOYEES, AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, AS THEIR COLLECTIVE BARGAINING AGENT FOR THE PURPOSE OF NEGOTIATING WAGES, HOURS AND WORKING CC_`-DITIONS. CONTACT THE UNDERSIGNED AT AREA CODE 313-961-3085, SO THAT WE CAN ARRANGE TO PROVE OUR MAJORITY STATUS THROUGH A CARD CHECK TO BE CONDUCTED BY A DISINTERESTED THIRD PARTY AND THEREAFTER NEGOTIATE THE TERMS OF A LABOR AGREEMENT. Local 548 took the -Board election route. On October 19 it filed a petition in Case 15-RC-5021. On November 1 it filed petitions in Cases 15-RC-5032 and 5033. The cases were consolidated and a hearing was held on November 2. Local 835 intervened. On December 1 the Regional Director directed an election in the following unit: All full-time and regular part-time selling and non- selling employees of the Employer at its retail operation known as Robert Hall Village, including employees of the licensed departments operated under license agree- ments with Jack Grossman Enterprises, Inc.; Suitland Domestics, Inc.; National Hard Goods Distributors, Inc.; Harry Camp Company; Morse Shoe, Inc.; Adlay Jewelry, Inc.; Sherwin-Williams Company; and Green- man Bros., Inc.; excluding all associate general managers, store managers, assistant store managers, department managers, executive management trainees, confidential cash room employees, professional em- ployees, watchmen and/or guards and supervisors as 'defined in the Act. His Decision and Direction of Election read, in pertinent part: Employer has operated a retail store at 4700 Old Gentilly Road, New Orleans, Louisiana, for nine years. This facility was reorganized in October 1972, and now operates under the name of Robert Hall Village with Employer now functioning as the operator of a clothing department under the name of Robert Hall Clothes and as the licensor to eight licensees which operate various departments in the store. These licensees and the products sold by each are Jack Grossman Enter- prises, Inc. (records); Suitland Domestics, Inc. ,(Imens, domestics, fabrics and rugs); National Hard Goods Distributors, Inc. (glassware, gift ware and garden shop); Harry Camp Company (millinery and hair goods); Morse Shoe, Inc. (shoes); Adlay Jewelry, Inc. (jewelry and catalogue sales); Sherwin-Williams Com- pany (lumber and paints); and Greenman Bros., Inc. (toys, sporting goods, and hobbies). Approximately 160 employees are employed throughout the facility by Employer and the various licensees. Petitioner and the Intervenor disagree as to the scope of the unit. In Case No. I5-RC-5021, Petitioner seeks to represent the 74 employees of Robert Hall Clothes. In Case No. 15-RC-5032, Petitioner seeks to represent the 6 employees of Suitland Domestics, Inc. In Case No. 15-RC-5033, Petitioner seeks to represent the 2 employees of Jack Grossman Enterprises, Inc. The Intervenor contends that only an overall- unit of all employees of Employer and the eight licensees at the Old Gentilly Road facility is an appropriate unit. Employer takes no position as to the scope of the unit. Although the foregoing disagreement as to the scope ROBERT HALL CLOTHES 695 of the unit exists, the parties stipulated that the unit should comprise all full and regular part-time selling and non-selling -employees with certain specified exclusions. The evidence clearly establishes that Robert Hall Gentilly Road Corporation and the eight licensees are joint employers of the licensees' employees. * There appears to be little basis for considering the employees of merely either the Employer, Jack Gross- man Enterprises, Inc., or Suitland Domestics, Inc., to have any separate, different, or distinct interests from those of all of the other employees employed in the department store other than Petitioner's desire to represent these three employee groups in separate units. In this regard, it should be noted that after analyzing the evidence adduced in this proceeding pertaining to the license agreements, Petitioner stated in its brief that it now seeks an election in such unit or units as may be found appropriate by the undersigned and no longer presses its original separate unit contentions as stated above. Based upon the foregoing, and the entire record, it is found that a selling and non-selling employee unit in the terms of the parties' stipulation encompassing employees of Employer and its eight licensees is an appropriate unit. * Petitioner expressed a desire to go to an election in an overall unit if such was found appropriate. Howev- er, Petitioner, should it so desire, is permitted to withdraw upon notice to the Regional Director within 10 days from the issuance of the instant Decision and Direction of Election. Moreover, the Decision and Direction of Election herein is expressly conditioned on an administrative determination that Petitioner has an adequate showing of interest in the unit herein found appropriate. As of November 25, there were 155 employees in the unit found appropriate by the Regional Director. As of December 1 Local 548 had current authorization cards from 23 of them. It acquired a 24th card on December 4. Pursuant to the Regional Director's decision, Local 548 was asked to submit additional cards or withdraw its petitions. On December 12 it sent the following telegram to the Regional Director: IN LIGHT OF THE DIRECTION OF ELECTION BY THE REGIONAL DIRECTOR IN A UNIT DIFFERENT FROM THAT PETITIONED FOR BY RETAIL CLERKS UNION LOCAL NO. 548 WE HEREBY REQUEST A WITHDRAWAL OF THE PETITIONS IN CASE NOS. 15-RC-5021, 15-RC-5032, AND 15-RC-5033, WE CONTINUE TO ASSERT AN INTEREST IN THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE BY THE REGIONAL DIRECTOR AND WOULD DESIRE TO PARTICIPATE IN ANY ELECTION DIRECTED FOR THAT UNIT. COPY TO PARTIES. EDWARD P. WENDEL COUNSEL FOR LOCAL NO. 548 Local 835 was asked if it wished to proceed to an election on the basis of its adequate showing of interest. On December 12 it sent the following telegram to the Acting Regional Director: RE ROBERT HALL GENTILLY ROAD CORPORATION DOING BUSINESS AS ROBERT HALL CLOTHES ETAL CASE NUMBERS 15-RC-5021; [5]032, 5033, ADVISE[D] THAT PETITIONERS RETAIL CLERKS UNION LOCAL 548 HAS INSUFFICIENT SHOWING OF INTEREST IN UNIT FOUND APPROPRIATE BY REGIONAL DIRECTOR INTERVENER DOES NOT DESIRE TO PROCEED TO AN ELECTION BASED ON THE ABOVE FACTS TRUST THAT PETITION WILL THEREFORE BE WITHDRAWN OR DISMISSED AND THAT INTERVENERS SHOWING OF INTEREST WILL BE RETURNED FORTHWITH TO ITS NEW ORLEANS OFFICE OR TO DESIGNATED REPRESENTATIVE THEREOF BERNARD J. FIRESTONE, ATTORNEY FOR INTERVENER LOCAL 835 RETAIL AND DEPARTMENT STORE EMPLOYEES AMALGATED CLOTHING WORKERS OF AMERICA AFL-CIO Consequently, on December 13 the Acting Regional Director approved Local 548's request to withdraw its petitions. In the meantime, under date of December 6, Local 548 had sent the following letter to Robert Hall Clothes: Mr. Jerome H. Rockman Assistant Vice President Director of Industrial Relations Robert Hall Clothing 333 West 34th Street New York, NY Dear Mr. Rockrnan: As you well know, we are currently conducting an organizing program in your store located at 4700 Old Gentilly Road, New Orleans, LA. Since the Amalga- mated Clothing Workers are also on the scene, we feel obliged to remind you that we represent employees in this store and we trust that you will give this due consideration before making any decision relative to the other labor organization involved. Sincerely yours, Lester J. Barbazon, Jr. President Robert Hall Clothes replied under date of December 12, as follows: Mr. Lester J. Barbazon, Jr. President, Retail Clerks Union Local548 901 Veterans Highway Metairie, La. 70005 Dear Mr. Barbazon: In reply to your letter of December 6, 1972, received at this office on December 11, 1972, please be advised as follows: 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Our company has always believed in and will Dear Mr. Rockmart: continue to subscribe to the democratic processes. We shall, therefore, be consistent with that policy and abide by all decisions directed by the National Relations Board, in your situation in New Orleans. Sincerely yours, ROBERT HALL CLOTHES Jerome H. Rockman Vice President Director of Industrial Relations On December 13, Local 835 sent the following telegram to Robert Hall Clothes: Jerome Rockman VICE PRES ROBERT HALL CLOTHES 333 WEST 34 ST NYK 10001 HAVE BEEN ADVISED THAT RETAIL CLERKS UNION LOCAL 548 HAS INSUFFICIENT SHOWING OF INTEREST IN UNITS DEEMED APPROPRIATE BY REGIONAL DIRECTOR IN CASE NUMBER 15-RC-5021, 5032; 5033 PETITION WILL THEREFORE BE WITHDRAWN OR DISMISSED WE ARE THEREFORE RENEWING OUR ORIGINAL REQUEST FOR RECOGNITION THAT WAS MADE ON OCTOBER 18TH 1972 FOR FULL TIME AND REGULAR PART TIME EMPLOYEES EMPLOYED AT YOUR ROBERT HALL VILLAGE STORE INCLUDING SUCH EMPLOYEES LICENSEES LOCATED AT 4700 OLD GENTILLY RD NEW ORLEANS LA CONTACT THE UNDERSIGNED AT 313-961-3085 so THAT WE CAN ARRANGE TO PROVE OUR MAJORITY STATUS THROUGH A CARD CHECK TO BE CONDUCTED BY AN INDEPENDENT 3RD PARTY AND THEREAFTER TO NEGOTIATE THE TERMS OF A LABOR AGREEMENT BERNARD J FIRESTONE ATTORNEY FOR LOCAL 835 RETAIL AND DEPARTMENT STORE EMPLOYEES AMALGAMATED CLOTHING WORKERS OF AMERICA AFL-CIO. Robert Hall Clothes agreed to a card check. It was held on December 19 in New Orleans before a priest. Local 548 was not notified that Robert Hall Clothes had agreed to a card check. It was not invited to be present on December 19. No representative of Local 548 attended. The priest certified that Local 835 had submitted valid authorization cards from 114 of the 153 employees in the unit, that it had submitted 4 additional cards which were not used in his card check, and that Local 835 had been designated as their collective-bargaining agent by a majority of the employees in the unit previously found appropriate by the Regional Director. Respondent Companies recognized Local 835 forthwith. On December 21 Local 548 sent the following letter to Robert Hall: Mr. Jerome Rockmart Robert Hall Clothes, Inc. 333 West 34th Street New York, New York 10001 3 The question of whether the General Counsel has proved that Local 835 did not, in fact, represent a majority of unit employees when it was recognized, the point upon which the court relied in reversing the Board in Playskool, is not present here. The General Counsel conceded that Local 835's cards were untainted. Neither Local 835's cards nor the unit employee We have been advised that Robert Hall Clothes, Inc. has recognized Amalgamated Clothing Workers Local 835 as bargaining representative for the employees at its Robert Hall Village store at 4700 Old Gentilly Road, New Orleans, Louisiana sometime during the week of December 18. We request immediate notification as to whether such recognition has in fact been granted. Sincerely, Edward P. Wendel Counsel for Retail Clerks Union, Local No. 548 On December 27 Robert Hall replied as follows: Mr. Edward P. Wendel Assistant General Counsel Retail Clerks International Assoc. Suffridge Building Washington, D.C. 20006 Dear Mr. Wendel: In reply to your letter of December 21st, be advised that the Amalgamated Clothing Workers of America, Local 835 was recognized as the bargaining agent for the employees of the Robert Hall Village store, located at 4700 Old Gentilly Road, New Orleans, La., during the week of December 18, 1972 on the basis of a card- check conducted by a disinterested third party. Local 835 was able to produce substantial evidence that it represented the employees of that store. Very truly yours, ROBERT HALL CLOTHES Jerome H. Rockman Vice President Director of Industrial Relations B. Analysis and Conclusions While the two cases are not on all fours, there is no material difference between the facts in this case and the facts in Playskool, Inc., a Division of Milton Bradley Company, 195 NLRB 560, enforcement denied 477 F.2d 66 (C.A. 7, 1973), on which one can be distinguished from the other.3 In Playskool the unfavored union's interest in the unit employees and the employer's knowledge thereof were predicated on an election, held only 4 months prior to the employer's voluntary recognition of the favored union, in which 29.9 percent of unit employees had voted for the unfavored union and on its continuing efforts to solicit employees in the interim. Here, they are predicated on Local 548's abortive efforts to get a Board election in list as of December 19 was introduced into evidence. Thus there is no basis for a finding that the priest's certification that Local 835, in fact, represented a majority of unit employees was incorrect or that any of Local 835's cards were signed by employees who had also signed cards for Local 548. ROBERT HALL CLOTHES 697 which it failed to produce the requisite 30-percent showing of interest in the unit found appropriate by the Regional Director and on its assertion of a continuing interest despite that failure in its December 6 letter to Robert Hall Clothes. In both instances the subsequent card check was held without the knowledge or participation of the unfavored union. As the Court of Appeals for the Seventh Circuit pointed out, the Boards finding that this situation gives rise to Midwest Piping violations is based on the proposition that: ... the sole requirement necessary to raise a question concerning representation within the meaning of the Midwest Piping doctrine, as modified by the Board, is that the claim of the rival union must not be clearly unsupportable and lacking in substance. Here, as in Playskool, the rival union's, i.e., Local 548's, claim is not clearly unsupportable and lacking in sub- stance. In refusing to enforce the Board's order in Playskool, the court said: As the petitioners [i.e., respondents] correctly repre- sented at oral argument, the Board and the Circuit Courts of Appeals which have reviewed Board deci- sions have disagreed upon the application and exten- sion of the Midwest Piping doctrine. The Board has -held that this doctrine precludes recognition of any union upon the-basis of a card showing when another union has raised a "question concerning representa- tion." The Board has not precisely defined the minimum amount of support a union must show to raise such a question, but it has held that an election between two competing unions must be held if the claim of the rival is "not clearly unsupportable and lacking in substance." (See the Board decision in the instant case, reported at 195 N.L.R.B. No. 89.) Nor is it necessary for the rival union to present any claim to the employer that it currently has majority support, for the employer's knowledge of organizing activity is appar- ently sufficient to raise the question. The courts, on the other hand, have generally refused to' find a violation of § 8(a)(2) where an employer has recognized one of two unions competing for exclusive recognition on the basis of a clear demonstration of majority support. N.L.R.B. v. Peter Paul, Inc., f167 F.2d 700 (9th Cir. 1972), Modine Manufacturing Co. v. N.L.R.B., 453 F.2d 292 (8th Cir. 1971), American Bread Co. v. N.L.R.B., 411 F.2d 147 (6th Cir. 1969), Iowa Beef Packers v. N.L.R.B., 331 F.2d 176 (8th,Cir. 1964). The courts have reasoned that, in extending recognition to a union on such a showing, the employer' has not "coerced or interfered with" the minority' union, but has merely obeyed the duty imposed upon him to recognize the agent which his employees have designated . N.L.R.B. v. Indianapolis Newspapers, Inc., 210 F.2d 501 , 503 (7th Cir. 1954). On this appeal, the policy reasons of recognizing the free choice of employees and preserving labor peace lead us to adhere to the view of judicial decisions which have refused to find a violation of the Midwest Piping doctrine where one union has made a valid demonstra- tion of majority support among unrepresented employ- ees. [Fn. omitted.] Thus the issue posed in this proceeding is whether the Board's test of a rival union's claim which is not clearly unsupportable and lacking in substance or the court's test of a valid demonstration of majority support among unrepresented employees should control. Since the Board has not indicated its concurrence in the court's view and since I am bound by Board precedent, 1 have no choice. I find, therefore, that, when Respondent Companies volun- tarily recognized Local 835 on December 19 on the basis of a card check at a time when Local 548s rival claim was supportable and substantial, Respondent Companies vio- lated Section 8(a)(2) and (1) and Local 835 violated Section 8(b)(1)(A) of the Act. Inter-Island Resorts, Ltd, d/b/a Kona Surf Hotel, 201 NLRB 139. Upon the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent Companies are a single intergrated business enterprise and a joint employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 548 and Local 835 are labor organizations within the meaning of Section 2(5) of the Act. 3. By voluntarily recognizing Local 835 on December 19, 1972, as the collective-bargaining representative of employees at Robert Hall Village at a time when Local 548's rival claim was supportable and substantial, Respon- dent Companies have violated Section 8(a)(2) and (1) of the Act. 4. By accepting Respondent Companies' voluntary recognition on December 19, 1972, as the collective- bargaining representative of employees at Robert Hall Village at a time when Local 548's rival claim was supportable and substantial, Local 835 has violated Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: [Recommended Order omitted from publication.]