Pergament United Sales, Inc.; Pergament Westbury Corp.; Pergament Distributors, Inc.; And Pergament Home Centers, Inc.

PERGAMENT UNITED SALES Pergament United Sales, Inc.; Pergament Westbury Corp.; Pergament Distributors, Inc.; and Perga- ment Home Centers, Inc. and Local 1245, United Food & Commercial Workers Interna- tional Union, affiliated with AFL-CIO and Painters & Paper Hangers, Material Suppliers & Handlers Employees, Local 1815, affiliated with International Brotherhood of Painters & Allied Trades, AFL-CIO, Party to the Con- tract. Cases 29-CA-12912 and 29-CA-13022 August 29, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On October 31, 1988, Administrative Law Judge Steven Davis issued the attached decision . The Re- spondents filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings," and conclusions, as modified, and to adopt the recom- mended Order. The judge found that the Respondents violated Section 8(a)(4) and (1) by failing to hire 11 named discriminatees because the instant unfair labor prac- tices were filed. Although neither of the two charges nor two complaints had included an allega- tion that the Respondents had violated Section 8(a)(4), the judge found that the Respondents were not prejudiced by the General Counsel's failure to amend the complaint to include an 8(a)(4) allega- tion. He relied on the factors that one of the charges and complaints included an allegation that the Respondents unlawfully failed to hire these em- ployees (allegedly in violation of Section 8(a)(3) and (1)); that the issue of the 8(a)(4) allegation was fully litigated at the hearing; and that the General Counsel's evidence concerning this issue was, in part, the testimony of the Respondents ' vice presi- dent and personnel director, Robert Kramer. We agree with the judge's conclusion and reasoning for the reasons stated below. ' The Respondents have excepted to some of the judge 's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for re- versing the findings We note that no exceptions were filed to the judge's dismissal of the allegations that the Respondents had violated Sec. 8(a)(5), (3), (2), and (1) of the Act 333 These are the pertinent facts. The Respondents2 operate a retail discount center at their Bethpage, New York location. Prior to 1985 , a small part of this facility (approximately 10,000 square feet of the 132,000-square foot store) was occupied by the Respondents' retail and wallpaper business, Re- spondent Pergament Westbury Corporation. The employees in this section of the store have been represented continuously by the Painters & Paper Hangers, Local 1815, since 1961 . The remainder of the facility was utilized by various retail conces- sionaires with whom the Respondents had license agreements. These agreements gave the Respond- ents the right of control over the labor policies for the concessionaires, including the authority to enter into collective-bargaining agreements on behalf of the concessionaires. Since 1963, United Food and Commercial Union has represented these employ- ees, by its Local 169 and later by its successor Local 1245. In 1985, the Respondents expanded their retail operation and in either 1985 or 1986, the Respondents decided to operate the entire store, in which they would sell their products ex- clusively with no licensed departments. The Re- spondents, accordingly, notified the concessionaires that their licenses and leases would be terminated, effective December 31, 1986. The Respondents informed the employees of the former concessionaires that the Respondents would hire them if they completed applications, were qualified, and were willing to join Local 1815. The judge credited testimony that 11 of the former em- ployees of the concessionaires submitted applica- tions. The Respondents do not dispute that they were seeking new employees and that these appli- cants were all qualified to fill the vacancies. How- ever, the Respondents did not hire any of these employees. The charge in Case 29-CA-13022 was filed May 5, 1987, and alleged a violation of Section 8(a)(3) and (1). This included the allegation that the Re- spondents violated Section 8(a)(3) and (1) by refus- ing to hire the former employees of what had been the Respondents' licensees prior to 1987 because these employees were members of Local 1245, United Food & Commercial Workers, AFL-CIO. This allegation was included in the consolidated complaint for Cases 29-CA-12912 and 29-CA- 13022, which issued July 28, 1987. That consolidat- ed complaint also listed all but one of the alleged discriminatees by name.3 2 The judge found that the three named Respondents are a single em- ployer, to which finding no exception was made . For most purposes, the Respondents are, therefore, referred to collectively a The earlier charge in Case 29-CA-12912, filed March 3, 1987, al- leged various violations of Sec . 8(a)(5), (3), (2), and ( 1) This included the Continued 296 NLRB No. 44 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The judge dismissed the allegation that the Re- spondents violated Section 8(a)(3) and ( 1) by failing to hire these employees because they belonged to Local 1245, and no exceptions were taken to that dismissal. However, he found that the Respond- ents' failure to hire 11 of these employees was in violation of Section 8(a)(4) and (1). He based this finding on the testimony of employee Charlotte Zimmerman and the Respondents ' vice president and personnel director, Robert Kramer.4 No party objected to the introduction of testimony on this issue. The pertinent credited or uncontradicted testi- mony is as follows. Zimmerman was an employee of one of the Respondents' licensees prior to Janu- ary 1987 when most of the licensed departments were terminated. Consistent with the Respondents' instructions that they would hire those former em- ployees of the licensees who submitted an applica- tion, Zimmerman handed in an application. About 1 month after the department closed, according to Zimmerman, she telephoned Kramer and asked why she had not been contacted. Kramer replied, as testified to by Zimmerman, that the Respondents "had all full intentions of hiring us . . . but there was a trial coming up and that is the reason we didn't hear from them. . . . And he said because of the date of the trial and all, that is the reason .. . we didn't hear from them." Kramer then asked her rate of pay, and on Zimmerman's response, said that her pay was no problem. Kramer said he would telephone the Respondents' attorney and see if the former employees of the licensees could be hired. Zimmerman did not hear further from the Respondents. Kramer, when questioned on direct testimony by the Respondents' attorney, also testified on this point. He stated that it was his understanding that the Respondents would hire the employees of the former licensees on their filing applications and changing membership from Local 1245 to Local 1815, and that he explained this at an employee meeting. According to Kramer, when he received the first charge in the instant case , "at that point there was a lot of confusion because I didn't know how to act. When I get litigation I stop. . . . The minute I got it (the charge), whether . . . (the Re- spondents' attorney) was in town or not, I put a freeze on everything . . . . During that period of allegation that the Respondents required all their employees at the Beth- page store, including those who were members of Local 1245 , to join Local 1815, Painters and Paper Hangers , as a condition of continued em- ployment. The complaint alleged that by this conduct the Respondents were discriminating in regard to the hire , tenure, and terms and condi- tions of employment with regard to these employees in violation of Sec 8(a)(3) and (1) 4 Kramer, along with the Respondents' attorney, Jessel Rothman, and owner Murray Pergament , decided the Respondents' labor policy time I didn't know what to do. I have never been sued before. I had no idea, should I accept the people, shouldn't I accept the people? At that point there was a certain degree of us holding back." Kramer further explained that when the employ- ees of the licensees first filed applications in De- cember 1986 and January 1987 they were held up in order to provide the licensees a chance to hire them. As he testified, "If some of the applications came in earlier, the reason they were held up was to make sure the lessees had closed their operations down and then we would accept them. But in the interim period this litigation started ." He also testi- fied that he knew of only two licensee employees who wanted to make the transition to the Respond- ents-Zimmerman and another unnamed woman. From this evidence the judge concluded that the Respondents had failed to hire the licensees ' former employees because the instant unfair labor practice charges had been filed . We agree with this finding, as well as the judge's finding that it is appropriate to find a violation of Section 8(a)(4) despite the ab- sence of such an allegation in the charge or com- plaint.5 It is well settled that the Board may find and remedy a violation even in the absence of a speci- fied allegation in the complaint if the issue is close- ly connected to the subject matter of the complaint and has been fully litigated . 6 This rule has been ap- plied with particular force where the finding of a violation is established by the testimonial admis- sions of the Respondent's own witnesses.? We find that the 8(a)(4) finding here meets the requirements of the rule. With respect to the connection between the 8(a)(4) and (3) allegations, both allegations focus on the same set of facts, i.e., the lawfulness of the Re- spondents' motivation for failing to hire the em- 5 We do note, however, that in her closing argument , relying on em- ployee Zimmerman's testimony and a portion of Kramer's testimony, counsel for the General Counsel alleged that the failure to hire the licens- ees' former employees violated Sec 8(a)(3) and (4) of the Act In his closing argument, counsel for the Respondent responded to employee Zimmerman 's testimony a See Timken Ca, 236 NLRB 757, 757-758 (1978), enf. denied on other grounds 652 F 2d 610 (6th Cir 1981), Dawson Cabinet Co., 228 NLRB 290 fn. 1 (1977), enf. denied on other grounds 566 F.2d 1079 (8th Cir 1977). See also Sports Coach Corp, 218 NLRB 992 fn 1 (1975); Cosmo Graphics, 217 NLRB 1061 fn. 2 (1975) This practice has been followed in instances when the allegation found involved a different section of the Act than that alleged . See Woodline Motor Freight, 278 NLRB 1141, 1237 (1986), enfd in pertinent part 843 F 2d 285 (8th Cir. 1988) (in which Board adopts judge's finding that a work rule change violated Sec 8(a)(3) and (4) despite absence of 8(a)(4) allegation ), Cosmo Graphics, supra, Independent Metal Workers Local 1 (Hughes Tool), 147 NLRB 1573. 1576-1577 (1964) Compare with Redd-I. Inc., 290 NLRB 1115 (1988), setting forth factors relevant to determine whether an untimely allegation is closely connected to the allegations of a timely charge 7 See, e.g, Timkin Co., supra, Crown Zellerbach Corp., 225 NLRB 911, 912 (1976) PERGAMENT UNITED SALES ployees.8 In this regard , the ultimate issue in both allegations is the same : whether the Respondent failed to hire the employees for reasons that are un- lawful under the Act. We also note that no party objected to the introduction of any of the relevant evidence. This further supports our conclusion that the 8(a)(4) allegation is closely related to the 8(a)(3) allegation included in the complaint. Second, as the record recited and described above amply demonstrates, the Respondents' failure to hire these employees because of the filing of the in- stant charges was fully litigated. Indeed, the Re- spondents' own witness corroborated the General Counsel's witness and admitted that the employees were not hired because of the pending unfair labor practice charges. The Respondents argue that the issue was not fully litigated and that had they realized a violation of Section 8(a)(4) was at issue they would have called rebuttal witnesses. In this regard, the Re- spondents rely on the recognized principle that the determination of whether a matter has been fully litigated rests in part on whether the absence of a specific allegation precluded a respondent from presenting exculpatory evidence or whether the re- spondent would have altered the conduct of its case at the hearing, had a specific allegation been made.9 I See NLRB v. Mackay Radio & Telegraph Co., 304 U S 333, 349-350 (1938), in which the complaint that alleged the unlawful discharge of five employees was amended to allege the unlawful failure to rehire , and the Board found the respondent had unlawfully discharged them The Court found that the Board had acted properly , noting that "[all] parties to the proceeding knew from the outset that the thing complained of was dis- crimination against certain men by reason of their alleged union activi- ties." The Court concluded , "[w]hile the respondent was entitled to know the basis of the complaint against it, and to explain its conduct, in an effort to meet that complaint , we find from the record that it understood the issue and was afforded full opportunity to justify the action of its offi- cers as innocent rather than discriminatory " Similarly in Grand Rapids Die Casting Corp. v. NLRB, 831 F.2d 112 (8th Cir 1987), enfg. 279 NLRB 662 (1986), rehearing denied 833 F.2d 605 (6th Cir. 1987), the Sixth Circuit enforced the Board decision finding that the respondent violated Sec 8(a)(3) and (4) by discharging a union steward for her union activities and for threatening to file charges The complaint alleged the steward was discharged in violation of Sec 8(a)(4) for filing charges and giving testimony to the Board and in violation of Sec 8(a)(3) Although the complaint was amended , the court noted. Even if the company was not adequately apprised of the substance of the 8(a)(4) violation , that would not affect the validity of the Ad- ministrative Law Judge's finding that Section 8(a)(3) had been violat- ed, and reinstatement would be proper for that violation alone Fur- thermore, the motivation for Ms Washington's discharge was the focal point of the administrative hearing The issue before the Ad- ministrative Law Judge was whether Ms Washington had been fired for an unjustified refusal to return to work , or for reasons illegal under the Act. The company was on notice of the ultimate issue in this case, and that issue was fully litigated . [831 F 2d at 118.] See also AMC Air Conditioning Co., 232 NLRB 283 fn . 10 (1977), in which the Board found that an employee was discharged in violation of Sec 8(a)(1), as well as Sec 8(a)(3), although it was only alleged that the discharge violated Sec 8(a)(3), noting that the respondent 's primary testi- mony and initial position covered the 8(x)(1) issue. 9 See Chelsea Laboratories, 282 NLRB 500, 501 (1986), enfd 825 F 2d 680 (2d Cir 1987), cert . denied 108 S Ct 750 ( 1988), and cases cited therein 335 Here, the Respondents contend that if they had been aware of an 8(a)(4) allegation, they "would have called as rebuttal witnesses DeVito and Cig- liani to fully demonstrate that at all times Perga- ment intended to hire all former employees of con- cessionaires, without regard to the charges." How- ever, we fail to see how evidence from these wit- nesses could have improved the Respondents' posi- tion. The Respondents' witness, Personnel Director Kramer, one of the three officials responsible for labor policy, testified that although the Respond- ents had intended to hire these employees he froze their hiring because of the unfair labor practice charge. We cannot see how the testimony of Local 1245 Representative DeVito (apparently on Kra- mer's purported attempt to get the employees' names from Local 1245, to which Kramer, in any event, testified) or head cashier Terry Cigliani could effectively counter the unambiguous admis- sion of a high-level official responsible for labor policy. Our conclusion that the judge properly found a violation in this case is further supported by the significant policies underlying Section 8 (a)(4) of the Act. The Supreme Court has held that "[The] policy of keeping people 'completely free from co- ercion' . . . against making complaints to the Board is therefore important in the functioning of the Act as an organic whole. . . . A healthy inter- play of the forces governed and protected by the Act means that there should be as great a freedom to ask the Board for relief as there is to petition any other department of government for a redress of grievances." (Footnote omitted .)" O As the body charged with effectively implementing the pur- poses and policies of the Act, we would be amiss in our duty to overlook an admission that an em- ployer has unlawfully refused to hire certain em- ployees because unfair labor practice charges have been filed on the technical ground that the com- plaint fails to allege a violation of Section 8(a)(4) when full litigation of the matter occurred and when the complaint placed at issue the motivation for refusing to hire the employees. For all the above reasons, we agree with the judge that the Respondents should be found in vio- lation of Section 8(a)(4) by their failure to hire the 11 discriminatees listed by the judge.11 10 NLRB v Industrial Union of Marine & Shipbuilding Workers (United States Line's Co.), 391 U S 418, 424 (1968). See also NLRB Y. Scrivener, 405 U.S. 117, 121-125 (1972) 11 The Respondent relies, in part , on Desert Inn & Country Club, 220 NLRB 877 (1975) We note, inter alia, that that case is clearly factually distinguishable and that there were no exceptions filed with the Board there on the issue on which the Respondent relies here 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Pergament United Sales, Inc., Pergament Westbury Corp., Pergament Distributors, Inc., and Pergament Home Centers, Inc., Bethpage, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Order. Beatrice Kornbluh, Esq., for the General Counsel. Jessel Rothman, P.C., of Mineola, New York, for the Re- spondents. Burton Hall, Esq. (Hall & Sloan, Esqs.), of Mineola, New York, for Local 1815. Walter McCaffrey, Business Agent for Local 1245. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Pursuant to charges filed by Local 1245, United Food & Commer- cial Workers International Union, AFL-CIO (Local 1245) in Case 29-CA-12912 on March 3, 1987, and in Case 29-CA-13022 on May 5, 1987,1 a complaint and an amended complaint were issued by Region 29 on June 29 and July 28, 1987, against Respondents Pergament United Sales, Inc. (United Sales); Pergament Westbury Corp. (Westbury); Pergament Distributors, Inc. (Distrib- utors); and Pergament Home Centers, Inc. (Home Cen- ters), or sometimes collectively referred to as Pergament. The complaints, which were consolidated for hearing, allege, in substance that: (a) By virtue of their operations, all of the Pergament entities named above constitute a single-integrated enter- prise. (b) Prior to February 28, 1987, at the Pergament Beth- page, New York store, Respondents and concessionaires who operated leased departments at that store were joint employers of the employees in those leased departments. (c) Local 1245 represented the employees of those leased departments as well as certain employees of Re- spondents who worked in departments operated by Re- spondents in the store. (d) Local 1815 represented certain other employees of Respondents who worked in that store. (e) On about February 28, 1987: (1) The leased departments were terminated. (2) Respondents operated the entire store. i Respondents deny knowledge or information of the filing and service of the charges Regarding the charge in Case 29 -CA-12912, the postal mailing book in evidence shows that the charge was sent by certified mail to Pergament on March 3 , 1987 The letter accompanying the charge, properly addressed , bears the same number as the mailing book. Regarding the charge in Case 29-CA-13022, the letter sent with the charge is properly addressed to Pergament and bears an original signed return receipt addressed to United Sales , with a date of delivery of May 7, 1987 Based upon the above , I find that both charges have been properly filed and served (3) Respondents withdrew recognition from Local 1245. (4) Respondents recognized Local 1815 as the repre- sentative of all the employees at the store, including those formerly represented by Local 1245. (f) Since on about February 28, 1987, Respondents ap- plied their contract to all the employees, notwithstanding that: (1) Local 1815 was not the lawfully recognized repre- sentative of all the employees at the store. (2) Local 1245 had a collective-bargaining relationship with Respondents. (3) Local 1815 did not represent an uncoerced majori- ty of all the employees at the store. (4) A question concerning the representation of the employees had arisen. (g) On or about February 28, 1987, Respondents failed and refused to employ 13 former employees of conces- sionaires because of their activities on behalf of Local 1245. A hearing was held in Brooklyn and Hempstead, New York, on 5 days in December 1987. Based on the entire record in this proceeding, includ- ing my observation of the demeanor of the witnesses and after considering the briefs filed by General Counsel and Respondents, I make the following 1. FINDINGS OF FACT A. Background 1. Organization of Respondents2 In 1961, the Pergament family purchased property in Bethpage, New York. United Sales was formed as a real estate operating company to manage the property which included a building having two floors-a basement and top floor. The property was to operate as a retail dis- count center comprised of various concessionaires such as a men's wear department ; stationary; ladies and chil- dren's wear; drug; jewelry; optical; florist; supermarket; barbershop, etc. United Sales entered into license agreements with third parties who operated the concessions, under which each paid to Pergament rent and a percentage of its sales. At that time the concessions were situated on the top floor of the building and each had its own cash register. The leased departments, however, were held out to the public as being "Pergament." Customers received cash register receipts marked Pergament," and items were placed in bags marked "Pergament." Items sold by the concession- aires were advertised as "Pergament" goods. United Sales also entered into a license agreement with Westbury, which was Pergament's retail paint and wall- paper business. Westbury occupied a small part of the basement of the Bethpage store-only 8,000 to 10,000 square feet of the 132,000-square-foot store. The license agreement with the concessionaires au- thorized United Sales to enter into collective-bargaining 2 Much of this evidence is from the answer to the complaint, and the uncontradicted testimony of Respondents ' attorney, Jessel Rothman, who was involved in these transactions. PERGAMENT UNITED SALES agreements on behalf of the concessionaires, with labor unions, covering the employees of the concessionaires, and the license agreements and the collective-bargaining agreement gave United Sales "the right to control the labor relations policies for each concessionaire operating a department." In 1961, prior to the opening of the Bethpage store, Pergament operated 10 small retail stores, each having about 8,000 to 10,000 square feet in size, where it sold paint, wallpaper, and related products . The employees of those stores were covered by a collective-bargaining contract between Painters and Paper Hangers, Material Suppliers and Handlers Employees, Local 1815, a/w International Brotherhood of Painters and Allied Trades, AFL-CIO (Local 1815), and the Metropolitan Paint Suppliers Association (MPSA), an employer association, of which Pergament was a member. 2. The collective-bargaining history of the two Unions In 1961 , Local 1815 organized the employees of all the concessionaires at the Bethpage store, and United Sales entered into a 2-year collective -bargaining agreement with Local 1815 covering them. Local 169, the predecessor to Local 1245 , disputed the representation of the concessionaires' employees by Local 1815 . Local 169 argued that the jurisdiction of Local 1815 attached only to paint store operations, and not licensed departments. 3 In April 1963, an agreement was entered into between United Sales and the two Unions, which provided that (a) Local 1815 will cease its representation of the conces- sionaires' employees and retain its representation of the employees in the paint and wallpaper departments and (b) Local 169 would represent the concessionaires' em- ployees. The agreement provides, in part: The Employer and the Painters Union further agree that the Agreement by and between them dated No- vember 7, 1961, and due to expire November 7, 1963, notwithstanding, they recognized the Retail Clerks Union as the exclusive bargaining representa- tive for the employees in the units appropriate for such purpose as set forth in Article "1" of the aforementioned agreement; except for the further exclusion of the units presently covered by other than the Painters Union and further that the Paint- ers Union will retain their representation of the Paint and Wallpaper Departments. Thereafter, United Sales entered into successive collec- tive-bargaining agreements with Local 169, and its suc- cessor, Local 1245. The 3-year contracts with Local 1245 effective in 1974, 1979, and 1982 contain the following provisions: WHEREAS, the Employer is operating a Dis- count Department Store located at 3901 Hempstead 8 Local 169 represented such licensed department employees in Times Square Stores, a similar discount store located nearby 337 Turnpike, Bethpage, New York, and has reserved to itself the right to control the labor relations policies for each concessionaire operating a department (except the supermarket department, the drug de- partment, and the paint, wallpaper, electrical fix- ture, art, floor covering and related departments op- erated by Pergament Westbury, Inc.); that the vari- ous departments are integral parts of the Discount Center operation, and the employees of the said de- partments (excluding those specified above) have common interests; and WHEREAS, the Union is the sole and exclusive bargaining agent for the employees of the conces- sionaires (except those specified above) in the said Discount Department Store in Bethpage, New York, except for executive and managerial person- nel, and office, maintenance and security personnel, but not excluding porters of Pergament United Sales, Inc.; NOW, THEREFORE, in consideration of the mutual promises, covenants, provisions and condi- tions of this Agreement , and other good and valua- ble consideration, the parties hereto agree as fol- lows: RECOGNITION The Employer, on behalf of the concessionaires (excluding the supermarket department , drug de- partment and the paint, wallpaper, electrical fixture, art, floor covering and related departments operated by Pergament Westbury , Inc.) recognizes the Union as the sole and exclusive bargaining agent for all employees, excluding guards, watchmen, office, maintenance personnel (but not excluding porters and security personnel of Pergament United Sales, Inc.) and executives and supervisors, as defined in the Labor Management Relations Act as amended, and further excluding the employees of the super- market department, drug department and the paint, wallpaper, electrical fixture , art, floor covering and related departments operated by Pergament West- bury, Inc. Any new departments opened in the Perga- ment Discount Center and the employees of any new such departments shall become subject to this agree- ment. The term "Employer" as used herein shall in- clude each concessionaire in said Discount Depart- ment Store (except the supermarket department, drug department, and the paint, wallpaper, electri- cal fixture, art, floor covering and related depart- ments operated by Pergament Westbury, Inc.) unless the context shall otherwise require . [Empha- sis added.] In the latest 1985 contract , the sentence underlined above was deleted. In its place the following sentences were included: or a Pergament affiliated corporation. Where a con- cessionaire has ceased doing business, and a new concessionaire not affiliated with Pergament takes the place of the then terminated concessionaire, 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD those employees shall become subject to this agree- ment. Local 1815 continued to represent and had successive collective-bargaining contracts covering the employees of Westbury who operated the paint and wallpaper and other departments of Pergament as a concessionaire of United Sales . Its contracts were with the MPSA, of which Pergament was a member. B. The Change in Respondents' Operations In about 1985, all of the licensed departments were moved to the basement floor, where they retained their own cash registers. Pergament's retail operation was moved to the top floor, and expanded to 60,000 square feet, with a central cashier checkouts at the front door. John Simoncic , vice president of United Sales, testified that he advised Local 1245 that because of the consoli- dated top floor operations containing only Westbury's goods thereafter all cashiers hired for the top floor would have to become members of Local 1815. Howev- er, those cashiers then working in Westbury's top floor who were members of Local 1245 could remain in that union.4 Simoncic stated that after 1985, no newly hired cashier working on the top floor became a member of Local 1245. Of course, the licensees' employees, and their cashiers continued to be represented by Local 1245. In 1985 or 1986, Pergament decided to operate the entire store, in which it would sell its products exclusive- ly with no licensed departments. It notified the conces- sionaires that their licenses and leases would be terminat- ed, effective December 31, 1986. Westbury was also notified that its license to operate its Pergament retail sales operation was canceled. On January 13, 1987, Respondents' attorney, Rothman, sent a letter to Local 1245, which advised it that the li- censees are to vacate the premises on about January 31, 1987, and "therefore all of the employees will be termi- nated." The letter further advised that Pergament West- bury would thereafter operate the building as a Perga- ment store, and that all employees of Westbury are mem- bers of Local 1315.5 "Therefore, as of February 1, 1987, there will be no employees who are members of your union working at [the Bethpage store]." On January 30, the attorney for Local 1245 notified Rothman that at least 30 Local 1245 members are em- ployed by Westbury, all of whom wish to remain mem- bers of that union. The people referred to are porters and cleaners em- ployed by United Sales pursuant to the Local 1245 con- tract and another category-employees of leased depart- ments which closed during the period 1961 to 1985. On those occasions, Pergament Westbury operated the con- 4 As will be discussed infra, certain employees were hired directly by Westbury and became members of Local 1245, although this was con- trary to the Local 1245 contract, and other employees became Local 1245 members while working for concessionaires, and when the conces- sionaires went out of business were employed directly by Westbury, but retained their Local 1245 membership 5 Actually, Westbury and United Sales ceased doing business at the store as of February 28, 1987 . On that date, Distributors operated the store, and about I month later, the name was changed to Pergament Home Centers cession as its own, and the employees were placed on the Westbury payroll but continued their membership in Local 1245-contrary to the Local 1245 collective-bar- gaining agreements which provided that only the em- ployees of concessionaires, and not Pergament compa- nies, were covered by those contracts.a The theory, as explained by John Simoncic , the vice president of United Sales, was that if a new concession- aire was found to take over the space, the new licensee would hire the old employees who would continue their membership, unbroken, in Local 1245.7 By late February 1987, all licensees but four had left the store . The four remaining licensees are a barbershop, optical store, jewelry store, and a snackbar. They were permitted to remain because they were owner-operated small businesses with no place to go, and according to Respondents' attorney, Rothman, Mr. Pergament did not want to "throw them out." United Sales Official Simoncic testified that he met with officials of the two unions and told them that the terminated employees of the licensees would be permit- ted to apply for jobs with Pergament, which would hire eligible employees who applied . Certain of the licensees' employees transferred to other locations operated by those companies. Simoncic stated that those who were not transferred were referred to Pergament 's personnel department with the understanding that they would be hired by Pergament if qualified and willing to work for that company and become members of Local 1815. On February 25, 1987, the following letter was sent by Respondents to all employees represented by Local 1245 who worked for Pergament or the licensees of United Sales: Effective Saturday, February 28, 1987, Perga- ment Westbury Corp . will no longer be a tenant or licensee of Pergament United Sales, Inc. Its contrac- tual relationship terminates on that date. As you can observe, all of the licensees have va- cated the premises and are no longer licensees or tenants and the physical structure of the discount center is going to be drastically changed. The collective bargaining unit of which you may, or may not be a member, is represented by Local 1245-RCIA. Local 1245-RCIA executed a col- lective bargaining agreement with Pergament United Sales, Inc. That collective bargaining agree- ment is no longer in existence because the collective bargaining unit no longer exists. The entire building is being rented to Pergament Home Centers, Inc. (formerly Pergament Distribu- tors, Inc., hereinafter referred to as "Pergament"). Pergament is a member of the Metropolitan Paint Dealers Association (hereinafter referred to as the "Association"). The Association consists of a group 5 A pension and welfare remittance report, dated February, 1987, sub- mitted by Respondents to Local 1245, lists 30 employees on the payroll of Westbury. ' Rothman's explanation, in his opening statement, was different how- ever. He stated that such employees were not transferred to Local 1815 upon their becoming employed by Westbury because no one thought of it PERGAMENT UNITED SALES of paint dealers and manufacturers , of which Perga- ment is only one member . All of the employees of the members of the Association constitute the col- lective bargaining unit. The Association, on behalf of its members execut- ed a collective bargaining agreement with Local 1815-Painters and Paperhangers, Material Suppli- ers and Handlers, associated with the International Brotherhood of Painters and Allied Trades-AFL- CIO, whose principal place of business is 65 West Merrick Road, Valley Stream, New York 11580. The employees of Pergament are represented by that union and have been represented by that union for more than twenty years. Therefore, Pergament is duty bound to honor its collective bargaining agreement with Local 1815. Since Pergament Westbury Corp . is out of busi- ness effectively at the end of February , 1987, and Pergament Home Centers, Inc. is in business and needs employees, we have sought to determine a method by which Pergament can retain your serv- ices. If you wish to be employed by Pergament Home Centers, Inc., you must fill out a new application, and become an employee of Pergament Home Cen- ters, Inc. Your application must be filled out no later than March 3, 1987. Pergament Home Centers, Inc. will recognize your position and length of service (seniority) and present salary with Pergament Westbury Corp. Pergament Home Centers, Inc. has spoken to the officers of Local 1815 , who have advised it that they will recognize your position and length of service (seniority) and will not require you to pay an original initiation fee. Your salary increases will be predicated upon the present collective bargaining agreement with Local 1815. We make these statements solely in an advisory capacity because we are not compelling or recom- mending to you that you join any collective bar- gaining unit. The purpose of this letter is to advise you what you must do if you wish to become an employee of Pergament Home Centers, Inc. Your services as an employee of Pergament Westbury Corp., will terminate at the end of Febru- ary, 1987. Further, we are advising you that Pergament Home Centers, Inc. does not recognize Local 1245-RCIA as the collective bargaining represent- ative, because Pergament Home Centers, Inc. takes the position that the collective bargaining unit no longer exists. If you have any questions at all that you wish to address to Pergament, please call Mr. Robert Kramer at Pergament Home Centers, Inc. (516) 694-9300, ext. 2235. We hope that you will elect to become an em- ployee of Pergament Home Centers, Inc. and that you will call to speak to Mr. Kramer. 339 After the letter was sent, Robert Kramer, an official of Respondents, was informed that the employees believed that they would be laid off as a result of the change.8 He went to the store and asked that employees represented by Local 1245 attend a meeting. He testified that he told the 10 or 15 workers present that no one would be laid off or lose their seniority, and they would be represented by Local 1815. Three employees who attended the meeting corrobo- rated Kramer's version, and added that he asked them to complete job applications which they did. Kramer testified that shortly after the meeting he re- ceived a call from Walter McCaffrey , business agent for Local 1245. McCaffrey asked him what he was doing. Kramer told him that he was telling the workers what he believed had been decided upon between the Unions- that Local 1815 would represent everyone at the Beth- page store. McCaffrey responded that agreement applied only to the licensees' employees, not for the workers em- ployed by Pergament. Kramer answered that Local "1245 is not going to represent any more anybody. They don't exist any more." In late February 1987, Distributors, owned in whole by the two Pergament brothers, entered into a lease with the owner of the real estate, a copartnership consisting of those brothers, to operate the store. According to United Sales Vice President Simoncic and Attorney Rothman, Distributors is the administrative functioning body of all Pergament stores . All money re- ceived from all Pergament stores, regardless of corporate name or location, flows into the bank account of Distrib- utors in Melville, New York. The money is identified by store number and location. As of about March 1 , 1987, Distributors' name was changed to Pergament Home Centers (Home Centers), which has operated the Bethpage and all of its other stores thereafter.9 The annual gross sales of Home Cen- ters is $20 million. C. The Arbitration Between the Two Unions On March 13, 1987, Local 1245, through its Interna- tional union, brought an article XX "no-raid" proceeding against Local 1815 pursuant to the AFL-CIO constitu- tion. On August 31, 1987, the Impartial Umpire issued a decision following a hearing in which he held that Local 1815 was not in violation of article XX. The Umpire found that (a) no employees have been denied employment as a result of the change in represen- tation, (b) Local 1245 recognition was primarily focused on the licensees, and (c) the presence within the Perga- ment unit of 30 employees represented by Local 1245 does not establish its recognition under article XX. The Umpire concluded that "whether the self-organi- zational rights of the employees represented by [Local 1245] have been violated is for the Board to decide." a Decisions as to labor policy are made by Kramer , Attorney Roth- man, and Murray Pergament. I Respondents' answer states that Home Centers is the successor of Distributors 340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D. The Employees The following are employees who worked at the Beth- page store prior to the elimination of the leased depart- ments: Diane Amore: Amore was hired in March 1978 and began work in the housewares department, which was a Pergament department. She became a member of Local 169 and was a Local 1245 member throughout her em- ployment. The housewares department was eliminated in about 1983 and Amore went to the seasonals department for 6 months. Thereafter, in about 1985 the housewares de- partment was returned to the store and placed upstairs with the other Pergament departments, where Amore worked. She continued to work at the store after March 1987, and was employed there at the time of the hearing. Alexandria Castagnaro: Castagnaro worked part-time for a lessee Lady Rose ladies and children's wear for about 1 year. She was a member of Local 1245. In No- vember 1986, she was told by her manager that she would be hired by Pergament if she completed an appli- cation. She did so, and 2 days later told a Pergament as- sistant manager that she did so. The manager told her that her application would be retained, and when the store was ready she would be called. Her application could not be located by Respondents during the hearing. She stopped work at the store in late January 1987, when her department closed. She was not called by Per- gament and she made no inquiries. She was transferred to another Lady Rose location elsewhere. She testified that she was interested in the benefits of- fered by Local 1245. Charlotte Elliott: Elliott worked since about 1963 in the men's department, a lessee. She was a member of Local 169 and then local 1245. She worked in the store in mid- 1987 when she filled out an application, which was re- ceived by Respondents. When she gave the application to Terry, the head cashier, she told the cashier that she wanted to work 4 days (25 hours) per week. Terry re- plied that part-time work includes nights and week- ends.10 Elliott answered that she could not work nights. Elliott did not inquire at Pergament thereafter for a job. Her application did not state what hours or days she wished to work. Elly Kircher: Kircher worked since 1970 in leased de- partments as a part-timer. She was a member of Local 1245. Kircher completed an application which was received by Respondents. Two weeks after her employer left the building she was offered a job as a full-time cashier. She refused and asked to be considered for part-time work. Her application was silent as to what hours she wanted to work. Doris Levine: In August 1979, Levine began work with Lady Rose, a lessee. She was a member of Local 169 and then Local 1245. She completed an application which was received by Respondents. 10 Terry was the head office cashier supervisor . Kramer testified that she knew many of the leased department employees. He told her to tell the people that Pergament would be hiring She replied that many of the women who worked in sales did not want to work as cashiers On her last day of work, she was told by Pergament store manager, LoRe that as soon as the basement area was completed they would review the applications and begin interviews. She was not called thereafter and made no inquiries because employee Zimmerman told her that Kramer said that nothing could be done because charges were filed against Pergament. Caroline Mirro: Mirro was hired in 1966 to work as a cashier in the housewares department , a Pergament de- partment. She joined Local 169, and was on the payroll of Westbury . She stated that in 1966 all the cashiers were members of Local 169 . As shop steward, she signed up into Local 1966 all employees in the housewares depart- ment and the cashiers in the paint and wallpaper depart- ments, which were Pergament departments. She also signed up employees of leased departments. She stated that the sales employees employed in Pergament depart- ments were represented by Local 1815. In about 1985 she was transferred to the wallpaper de- partment, and continued her Local 1245 membership. She is still employed in that department and has re- mained a member of Local 1245. After the meeting with Kramer, Mirro completed an application. Norma Mugno : Mugno was hired in 1981 and worked for a lessee stationery store as a cashier . She was a member of Local 1245. She completed an application which was received by Respondents, but was never called by Respondents, and did not inquire concerning a job, but was told by Pergament store managers that they would call when there was an opportunity. Elsie Ratliff. Ratliff was hired in 1981 and worked for a leased men's wear department as a part -timer. She completed an application which was received by Re- spondents and was not offered a job by Respondents. Her department closed in early February 1987. Marie Sommer: Sommer testified that she was hired in 1964 to work in the domestics department , which at that time was a Pergament department. She joined Local 169. She worked in various departments thereafter , and her leased department left the store in January 1987. Within 3 weeks, she completed an application, which was re- ceived by Pergament. Sommer did not hear from Perga- ment thereafter and did not inquire of it. Charlotte Zimmerman : Zimmerman was hired in 1982 to work for Lady Rose, a leased department. She com- pleted an application, which was received by Respond- ent. When her department left the store, on February 28, 1987, she asked Pergament Store Manager LoRe if she would be hired . He asked if she filed an application. Zimmerman said she did and LoRe said that he would have to wait and see. One month later Zimmerman called Kramer and asked why Pergament had not contacted her. Kramer replied that Pergament intended to hire the workers but that a "trial" or "case" with the Union was approaching, and that they were not hired because of the date of the trial."' Kramer asked her rate of pay. She told him. 11 The charge in Case 29-CA-12912 was filed on March 3, 1987 PERGAMENT UNITED SALES Kramer replied that that was no problem , adding that he would call the company attorney and see if she could be hired. Zimmerman did not hear from Pergament thereaf- ter. Attorney Rothman testified that Respondents are "constantly" seeking employees as cashiers and for other positions in its Bethpage store and other stores on a "continuous basis" and that they always seek part-time workers. Advertisements placed in local newspapers throughout the period in question sought full-time and part-time cashiers, stock and salespeople, and asked ap- plicants to apply at the Bethpage or other Pergament stores. Personnel Official Kramer testified similarly that Re- spondents were "desperate" for cashiers and wanted to hire employees. Kramer stated that the applications of the leased de- partment employees were apparently lost, and then found, some 2 to 3 months "after all this started," in a back office of the Bethpage store, behind the courtesy desk. Kramer admitted not offering jobs to those applicants, and stated various reasons for not hiring them: (a) He did not know the names of the applicants. No names were set forth in the charge or complaint in Case 29-CA-12912. However, the charge in Case 29-CA- 13022 filed on May 5, 1987, asserts that certain unnamed people were fired and refused hire by Pergament. Kramer stated that he asked Local 1245 for the names of the people. He told the Local 1245 president that "you are telling me I am refusing to hire these people. We are desperate for help. Just give me the names of the people." Local 1245 refused to do so. Kramer then asked his managers if they knew of anyone being refused hire. They reported to him that certain workers wanted to re- ceive unemployment insurance for a while or did not want to be cashiers. (b) He knew the names of the employees but did not recognize them. Kramer testified inconsistently that (1) he never saw the amended complaint and was not aware of the names of the employees the Board claimed were unemployed and (2) when he received the complaint he read it from cover to cover, and did not recognize any names. They were not people he knew. The amended complaint was the only document that contained the names of the employees allegedly refused hire and therefore Kramer must have seen that docu- ment, which was served on July 28, 1987. (c) When he received the "lawsuit" he "put a freeze on everything" because he did not know what to do. As employee Zimmerman testified, Kramer told her that the people would have been hired but for the litigation. Kramer testified that he only knew that two people, Zimmerman and one other, were looking for jobs. It should be noted that United Sales, in October 1982, provided Local 1245 with the names, dates of hire, wages, and names of lessee or Pergament department worked, for the employees of at least eight leased depart- ments, and United Sales and Westbury, who were mem- bers of Local 1245. The names provided included Elliott, Iannamorato, Kucher, Levine, Mugno, Sommer, York, and Zimmerman. Thus, Respondents were in possession 341 of the above information, at least, for 8 of the 13 em- ployees it claimed to have not known. The January and February 1987 Local 1245 General Benefit and Pension Fund Report states that Westbury paid welfare and pension benefits to 29 of its employees. According to the reports, in those months, three em- ployees were employed by company No. 33, which ac- cording to the October 1982 report was United Sales, and the rest were employed by company No. 28, which according to the earlier report and Kramer's testimony is Westbury. Indeed, Local 1245 Official McCaffrey testified that that union represents Pergament employees-cashiers, re- ceiving department; hardware and wallpaper department, lighting department, as well as the leased department em- ployees. Local 1245 continues to represent the leased de- partments which have remained at the store : barbershop, snackbar, jewelry store, and optical store. II. ANALYSIS AND DISCUSSION A. Respondents as a Single Employer and as a Joint Employer with the Concessionaires The complaint alleges that the (a) Board has jurisdic- tion over each Respondent, (b) Respondents constitute a single-integrated business enterprise and a single employ- er, and (c) Respondents and the concessionaires are joint employers. Respondents do not contest the Board's jurisdiction over Westbury, Distributors, and Home Centers, but they deny that the Board has jurisdiction over United Sales. 12 Respondents' answer admits that all of the Respond- ents have common officers, ownership, directors, man- agement, and supervision. Respondents further admit that United Sales has the authority to and has possessed and exercised control over the labor relations policies for each concessionaire operating a leased department, and has also administered a common labor policy with the concessionaires for the employees employed in the leased departments. Indeed, United Sales entered into successive collective-bargain- ing agreements with Local 169 and then Local 1245 cov- ering all of the employees of the concessionaires. The contract covers in one document, all such workers and provides uniform wages, hours, and terms and conditions of employment for all of them. As set forth above, customers at the store are led to believe that all the items offered for sale are Pergament goods. Sales receipts, bags, and advertising are all in Per- gament's name. Respondents argue that United Sales is a real estate operation in which it, as a landlord, entered into leases and licenses with, and acted as agent for the approxi- mately 30 concessionaires of the Bethpage store, collect- ing rents from them and providing services such as a switchboard, security, maintenance, and a money room. Although the lessees paid for their own advertisements 12 Respondents' answer does not deny and therefore admits, or ex- pressly admits the material allegations of the complaint relating to juris- diction over Westbury, Distributors, and Home Centers 342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in newspapers, Pergament coordinated the advertising so that it appeared as "one distinct operation and not a mul- titude of different stores . . . under the Pergament banner." 1. The single employer issue In deciding whether certain companies constitute a single employer, the Board considers four factors: Common control of labor relations, common man- agement, common ownership, and interrelation of operations. None of these factors, alone, is control- ling, nor need all of them be present. Single-em- ployer status ultimately depends on "all the circum- stances of the case" and is characterized by the ab- sence of the "arm's length relationship found among unintegrated companies." Stated otherwise, the fun- damental inquiry is whether there exists overall control of critical matters at the policy level. [Ems- ing's Supermarket, 284 NLRB 302 (1987)]. The evidence establishes common control of labor re- lations. Labor relations policy decisions are made by vice president Kramer, Counsel Rothman, Kramer and Murray Pergament . Respondents admit having common officers, ownership, directors, management, and supervi- sors. In addition, all of the Pergament operations are either owned personally by the Pergament family (such as the real estate) or owned through corporations con- trolled by the Pergament family. All money received from whatever source flows into the Distributors, now Home Centers, account in one bank , in Melville, New York, where it is disbursed by Pergament 's centralized accounting and payroll office there. The Bethpage store provides a clear example of the interrelationship of the four Pergament companies. The two Pergament brothers own the real estate. The build- ing was leased to United Sales, a Pergament organization created to manage the building and lease the space to concessionaires. United Sales also leased space to West- bury, a Pergament company which operated its paint and wallpaper department. The entire store was held out to the public as a Pergament store. When, in 1987, the les- sees were terminated, United Sales' lease was also can- celed, and that company was replaced by Pergament Distributors which was then succeeded 1 month later by Home Centers. Thus the evidence is overwhelming and I find that Re- spondents United Sales, Westbury, Distributors, and Home Centers are a single-integrated business enterprise and a single employer within the meaning of the Act. By virtue of this finding, the Board has jurisdiction over United Sales. 13 13 The Board also would apparently have jurisdiction independently over United Sales It exercises such jurisdiction over real estate compa- nies, which manage enterprises having rent rolls in excess of $1 million per year. Although the rent and fees paid United Sales by the licensees were not placed in evidence, it would appear that the approximately 30 concessionaires in the 130 ,000-square-foot store paid in excess of $1 mil- lion per year to United Sales. Mandel Mgt. Corp., 248 NLRB 186 (1980) 2. The joint employer issue The complaint alleges and Respondents deny that they are joint employers with the concessionaires operating the leased departments of the employees employed in those departments. The Board has stated that it will find "joint employer status where it can be shown that two or more employ- ers 'co-determine those matters governing essential terms and conditions of employment ."' Ryder System, 280 NLRB 1024 ( 1986). The Board has dealt with this precise issue in the past: The Board has long recognized the unique char- acter of discount department store operations con- ducted by several employers at one location with the participants, although retaining their separate corporate identities, cooperating to present the ap- pearance of a single integrated enterprise in order to obtain the mutual business advantages deriving from such operations. The Board has recognized that in such endeavor the dominant entrepreneur will of necessity retain sufficient control over the oper- ations of the constituent departments so that it will be in a position to take action required to remove any causes for disruption in store operations. The existence of such control, however, has not in and of itself been sufficient justification for finding that the licensor or lessor is a joint employer of employ- ees of its licensees or lessees. Generally a joint em- ployer finding is justified where it has been demon- strated that the lessor is in a position to control the lessee's labor relations. Where the lessor explicitly reserves such control in its lease agreements, the problem is of course easy to resolve. [Disco Fair Stores, 189 NLRB 456, 458 (1971).] Here, the control retained by Respondents over the li- censees' operations and labor relations is extensive. Re- spondents had the right to and did move the licensees from their top floor location to the basement in 1985, and canceled their licenses in 1987, thus removing them from the store completely. The control exercised by Respondents over the em- ployees of the licensees is extraordinary. The license agreements authorized United Sales, and therefore Re- spondents, to enter into collective-bargaining agreements in behalf of the concessionaires with labor unions cover- ing the licensees' employees. In addition, the license agreements and the union contract gave United Sales the right to control the labor relations policies for each con- cessionaire. Pursuant to this authority , United Sales en- tered into successive collective-bargaining contracts with Local 169 and then Local 1245 which, in each docu- ment, covered all the employees of all the licensees. The contracts, which were negotiated by John Simoncic the vice president of United Sales, established and covered all the terms and conditions of employment of the em- ployees.' 4 14 Each licensee transmitted union dues directly to Local 1245 PERGAMENT UNITED SALES The Board has long held that virtually identical de- partment, or discount center lessor-licensee operations constitute joint employer relationships. Jewel Tea, 162 NLRB 508 (1966); Thriftown, 161 NLRB 603 (1966); Grand Central Liquors, 155 NLRB 295 (1965); Spartan Department Stores, 140 NLRB 608 (1963); Frostco, 138 NLRB 125 (1962). The evidence is quite clear, therefore, that Respond- ents codetermine, if not totally determine, the licensees' employees essential terms and conditions of employment. I accordingly find and conclude that Respondents are joint employers with the concessionaires. B. The Deferral Issue Respondents argue that the Board should defer to the arbitration award which found that Local 1815 did not breach the "no-raid" provisions of article XX of the AFL-CIO constitution by representing the employees formerly represented by Local 1245. The Board has consistently held that in situations con- cerning accretions it will not abdicate its responsibility to a decision in an article XX proceeding. Martin Marietta, 270 NLRB 821, 822 fn. 3 (1984). Board standards, poli- cies, considerations, and precedents were not considered by the arbitrator, and in fact the decision stated that the unfair labor practice issue was for the Board to decide. The Board has exclusive jurisdiction to resolve such issues as are raised by the complaints and will not defer to private resolutions, such as an article XX proceeding. Jackson Engineering, 265 NLRB 1688, 1700 fn. 32 (1982); Hershey Foods, 208 NLRB 452 (1974). C. The Accretion Issue As set forth above, Pergament has since 1963 contrac- tually recognized Local 1245 as the representative of the employees of the concessionaires and porters, and during the same period has contractually recognized Local 1815 as the representative of its paint and wallpaper employ- ees and other employees employed by Pergament. In early 1987 , Pergament changed its operations at the Bethpage store. Virtually all of the concessionaires were removed from the building , and Pergament expanded its operations to sell its items in the entire 130,000 square foot store. At first, in 1961, Pergament occupied only 8,000 to 10,000 square feet in the store. Then, in 1985, it occupied about 65,000 square feet , and finally, in 1987, it occupied the entire store. Respondents informed Local 1245 that it would no longer be recognized as the representative of any of the removed concessionaires, and withdrew recognition from that union . Respondents also informed all employees rep- resented by that union that they would be required to join Local 1815 if they wished to remain in Pergament's employ, and recognized Local 1815 and applied that contract to all employees at the store , including those formerly represented by Local 1245. The question presented is whether Respondents' con- duct constituted unlawful assistance to Local 1815 in vio- lation of Section 8(a)(2) of the Act, discrimination in the hire and tenure of employees in violation of Section 343 8(a)(3), and a refusal to bargain with Local 1245 in viola- tion of Section 8(a)(5) of the Act. The resolution of this question requires separate analy- sis of the two different groups represented by Local 1245: the employees employed on the concessionaires' payroll and the employees on Respondents ' payroll. 1. The employees on the concessionaires' payroll As set forth above, the concessionaires and Respond- ents are joint employers. Accordingly , Respondents are, in fact, the employers of the employees employed by the concessionaires. Those employees have been represented , since 1963, by Local 1245, in a separate unit . In about 1986, Re- spondents made a lawful business decision to eliminate the concessionaires from the store and expand the Perga- ment operation to encompass the entire store. Accordingly, the concessionaires left the store in early 1987.15 The unit consisting of the employees employed in the concessionaires' operations therefore ceased to exist pursuant to Respondents' business actions which are not alleged to be unlawful . By virtue of the joint em- ployer relationship, therefore, it may be said that Re- spondents legitimately decided to eliminate a part of their business, the leased departments , and expand their own operation in the space formerly occupied by the concessionaires. Respondents were not obligated to bargain with Local 1245 over this change since the decision to eliminate the leased departments constituted a fundamental change in the nature and direction of Respondents ' business rather than on labor costs . Kroger, 273 NLRB 462 (1984). Any obligation that Respondents may have had to bargain with Local 1245 was satisfied by its January 17 letter to that union advising it of the change . In its reply, the at- torney for Local 1245 did not take issue with the Re- spondents termination of the leased departments. Rather, he stated that those employees who continue to be di- rectly employed by Pergament , such as those on the pay- roll of Westbury, were being discriminated against by the requirement that they join Local 1815 . Nor did Local 1245 McCaffrey take issue with Kramer as to the cancellation of the lessees, and termination of those em- ployees. Rather, he was concerned with the continued representation of the workers on the Pergament payroll. 2. The employees directly employed by Pergament Local 1245 represented porters and employees of con- cessionaires, which was the contractual unit, but also represented workers directly employed by Pergament companies, such as United Sales and Westbury. Such representation by Local 1245 of employees directly em- ployed by Pergament companies was contrary to the Local 1245 contract. Such employees consisted of those hired directly by Pergament, such as Diane Amore, and those who were first employed by concessionaires but then, when the 15 About four leased departments remained, however. Respondents do not challenge the continued representation by Local 1245 of the employ- ees employed by those concessionaires, and they are not at issue here 344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leased departments left the store , prior to 1987, were hired by Respondents and employed in a Pergament op- erated department. The work of those employed directly in a Pergament department and represented by Local 1245 was identical to the duties performed by employees represented by Local 1815 who worked alongside them in Pergament departments. They thus worked for the same employer. The only difference was their historic representation by two different unions. Accordingly, even before the January 1987 change in operations, the employees employed by Respondents rep- resented by Local 1245 were performing the identical work stock, sales, and cashiering and were employed side by side with those represented by Local 1815. Al- though employees working in the leased departments generally remained employed for that concessionaire during the entire time that department remained in the store, once the department left, prior to January 1987, the employee would be hired directly by Respondents on the Westbury payroll . In addition, there was an inter- change of employees, with employees being transferred to various departments . Thus, Diane Amore stated that she was hired by a Pergament department and a member of Local 1245, and was transferred to other Pergament departments having employees represented by Local 1815. Similarly, Marie Sommer was hired for work in the domestics department , which was then a Pergament department, and then worked in leased departments thereafter. It thus may be said that a merger of separately recog- nized units existed . Such a merger destroys the separate identities of the individual units. Miles & Sons Trucking, 269 NLRB 7, 14 (1984). However, even if the Local 1245 unit is considered a separate unit, notwithstanding the identical work per- formed by the employees in the two unions, I find and conclude that following Respondents' change in oper- ations in early 1987, the employees represented by Local 1245 who continued to be employed by Respondents constituted an accretion to the unit represented by Local 1815 and were not then a separate or independent unit. The Board considers the following factors in determin- ing whether a valid accretion exists : Interchange of em- ployees between the companies; similarity of supervision; similarity of terms and conditions of employment; simi- larity of skills and functions; physical, functional, and ad- ministrative integration ; and bargaining history. Compact Video Services, 284 NLRB 117 (1987). There was an interchange of employees, as set forth above, from the leased departments, when such a depart- ment was closed, to a Pergament department. In addi- tion, employees such as Diane Amore were first em- ployed by a Pergament department and became a member of Local 1245 while in that department. The employees working in Pergament departments, those represented by Local 1245 and Local 1815, were supervised by Pergament managers, and performed the identical work. Respondents' physical, functional, and administrative affairs were highly integrated , with cen- tralized control of all these areas , as a single employer, as set forth above. The long bargaining history enjoyed by Local 1245 is the only factor which militates against finding an accre- tion. Local 1245 has represented employees at the store since 1963. However, bargaining history is only one factor, and not the controlling one to be considered. United States Steel Corp., 280 NLRB 837 fn. 2 (1986). The bargaining history here is different from that in tra- ditional accretion cases. In the typical case, one union has represented employees in a separate , identifiable unit consisting of employees performing distinct duties. The question in those cases is whether the functions and clas- sifications of the transferred employees remain essentially unchanged. Massachusetts Electric Co., 248 NLRB 155, 157 (1980). Here, however, at all times the employees of Respond- ents, regardless of whether they were represented by Local 1245 or Local 1815, were physically consolidated, under common management and supervisors, with cen- tralized control of labor relations and interchange of em- ployees. These circumstances obliterated whatever sepa- rate identities may have existed by virtue of the separate representation by the two unions. Now, both groups of employees are employed by the same employer performing similar functions under common terms and conditions of employ- ment. . . . one overall unit . . . is now the sole ap- propriate unit. [Martin Marietta, 270 NLRB 821, 822 (1984).] This is not a traditional accretion case where one em- ployer takes over an operation owned by a different company elsewhere and brings it within its company, where the question is whether the new group should be accreted to the existing unit. Rather, this is a case where at all times one employer had under its roof two ostensibly separate bargaining units, consisting, because of its single employer status, of all its employees, all of whom performed the same func- tions. Particularly, after the January 1987 change in oper- ations, no concessionaires remained and the only employ- ees represented by Local 1245 were those on Respond- ents' payroll.' a [T]he Board has found a valid accretion only when the additional employees have little or no separate group identity and thus cannot be considered to be a separate appropriate unit and when the additional employees share an overwhelming community of in- terest with the preexisting unit to which they are accreted. [Safeway Stores, 256 NLRB 918 (1981).] It is clear here that before and after the January 1987 change, the employees employed directly by Pergament who were represented by Local 1245 had no separate group identity and could not be considered to be a sepa- 16 In fact, about four concessionaires "mom and pop" stores remained. They are a barbershop, optical department, snackbar, and jewelry conces- sion. Respondents' brief stated that it does not challenge the representa- tion by Local 1245 of employees working in those departments Accord- ingly, they are not at issue here and this decision does not apply to them PERGAMENT UNITED SALES rate appropriate unit. Those employees worked together with the employees represented by Local 1815 in Perga- ment-operated departments performing the same work, under the same supervision as the Local 1815 workers. The only difference is that they were represented by a different union, and because of the contracts, received certain different benefits. Pergament effected, in January 1987, a consolidation where it reclaimed its entire store for its own operations. Its Bethpage store, therefore, became one unit consisting of all its employees performing similar work. Respond- ents seek to accrete the employees represented by Local 1245 into the unit represented by Local 1815 pursuant to the contract between that union and the MPSA. Boston Gas, 235 NLRB 1354 (1978). In cases in which an employer has consolidated two previously separate units of employees represented by different unions, the Board will direct an election in order to determine the representational desires of the em- ployees. However, the Board has noted that it will not do so if one of the unions represents such an overwhelm- ing majority of the employees or is sufficiently predomi- nant to remove any real question as to the overall choice of a representative. Boston Gas Co., 235 NLRB 1354, 1355 (1978). See Martin Marietta, supra; Massachusetts Electric Co., 248 NLRB 155, 157 (1980); Boston Gas Co., 221 NLRB 628, 629 (1975); National Carloading, 167 NLRB 801, 802 (1967). I find that to be the case here. Thus, the unit of em- ployees represented by Local 1245, consisting of some 30 employees may properly be accreted to the unit repre- sented by Local 1815, performing identical work. The Local 1815 unit is a multiemployer, multilocation unit, covering Pergament, the largest of the employer-mem- bers operating 35 stores, and 7 other members of the MPSA. The contract between MPSA and Local 1815 covers, all their locations. Although there was no testi- mony concerning the numbers of employees in this huge unit, it is clear, by the numbers of employers and loca- tions, that the amount of employees in the Local 1815 unit is immense. I accordingly find that the group repre- sented by Local 1815 is sufficiently predominant to war- rant the conclusion that no question concerning represen- tation exists. In making the above findings, I am aware of the Board's longstanding reluctance in finding an accretion, and that it applies that doctrine restrictively since it de- prives the new employees of the opportunity to express their desires regarding membership in the existing unit. United States Steel Corp., supra; Melbet Jewelry, 180 NLRB 107, 110 (1969). However, I believe that such an accretion in this case, where the Local 1245 concession- aires unit has ceased to exist, where the employees repre- sented by Local 1245 perform and have performed the identical duties alongside Local 1815-represented work- ers, and where Local 1815's unit is overwhelmingly pre- dominant, is warranted. I further believe that the indus- trial realities of the current makeup of the Bethpage store, where Pergament effected a legitimate change in its operations by removing the concessionaires, require this finding. Boston Gas, supra at 1355. 345 Accordingly, I conclude that the employees on the payrolls of the Pergament companies, including West- bury and United Sales, constitute an accretion to the bar- gaining unit maintained by Respondents and Local 1815. Hence, Respondents' conduct, including their withdraw- al of recognition from Local 1245, their extension of the union-security contract with Local 1815 to their employ- ees, and requiring them to join that Union, did not vio- late Section 8(a)(1), (2), (3), or (5) of the Act. Great A & P Co., 140 NLRB 1011, 1024 (1963). D. The Failure to Hire Employees of Concessionaires The complaint alleges that 13 employees employed by certain concessionaires applied to Respondents for em- ployment by Respondents at the Bethpage store, and Re- spondents failed to employ them in violation of Section 8(a)(3) of the Act because of their activities in behalf of Local 1245, and in order to discourage employees from engaging in such activities or other concerted activities. Respondents received applications from 10: Elliott, Iannamorato, Kircher, Levine, Mugno, Ratliff, Sommer, York, Young, and Zimmerman. One employee Castag- naro, testified that she completed an application. Al- though her application could not be found by Respond- ents, I credit her testimony that she completed and filed it with Respondents. 17 Two employees, Sharon Oley and Jeanne Walsh, did not testify and it accordingly has not been proven that they filed applications. There is no issue about the qualifications of the 11 ap- plicants or Respondents' need for them. All performed the three duties while employed in the leased depart- ments-stock, sales, and cashiering.18 Respondents were "desperate" for employees with skills such as possessed by these people and "constantly" sought such workers, through advertising and other means. I do not credit Kramer's testimony that he could not offer positions to these people because he did not know their names. All the names, except Young's, were set forth in the complaint which was issued on July 28, 1987. In addition, eight of them were on lists provided to Local 1245 by Respondents in 1982.19 The real reason for the refusal to hire these applicants was as testified by Zimmerman and Kramer. Following the filing of the charge in March 1987, she was told by Kramer that Re- spondents intended to hire the workers but that because the case had been brought by the Union he "put a freeze" on everything, and did not hire them because of the pending litigation. A refusal to hire employees for that reason violates Section 8(a)(4) of the Act. Woodline, 278 NLRB 1141, 1237 (1986); Thriftway, 276 NLRB 1450, 1464 (1985); Crest, 270 NLRB 47, 52 (1984). Although no charge al- leging a violation of Section 8(a)(4) has been filed, the Respondents' failure to hire these employees was includ- ed in the original charge and complaint, was fully litigat- 17 After the applications at issue were filed they were misplaced by Respondents. is Zimmerman , however, stated that she did no cashier work 19 Elliott, lannamorato , Kircher, Levine, Mugno, Sommer, York, and Zimmerman 346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed at the hearing, and General Counsel 's evidence con- cerning this issue was, in part , the testimony of Kramer. I thus find that Respondents have not been prejudiced by General Counsel's failure to amend the complaint to allege a violation of Section 8(a)(4) of the Act. I am aware that Elliott testified that she told the head cashier that she did not want to work nights, and that Kircher rejected an offer of a full-time job . However, in view of the fact that these applicants were not given full consideration because of the pendency of the litigation, and because of Respondents ' testimony that it sought part-time employees, I will direct that an offer of em- ployment be made to Elliott and Kircher as well as the other nine applicants. CONCLUSIONS OF LAW 1. Respondents are employers, a single employer, joint employers with the concessionaires at the Bethpage store, and engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Locals 1815 and 1245 are and have been, at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 3. By failing and refusing to employ the below named applicants for employment because charges had been filed in their behalf, and because of a pending case in which they were involved, Respondents violated Section 8(a)(4) of the Act: Alexandria Castagnaro Elsie Ratliff Charlotte Elliott Marie Sommer Madeline lannamorato Angela York Elly Kircher Margaret Young Doris Levine Charlotte Zimmerman Norma Mugno 4. Respondents have not violated the Act by (a) with- drawing recognition from Local 1245 as the exclusive collective-bargaining representative for the employees employed by those concessionaires who left the Beth- page store in early 1987, and for those employees on the payrolls of Pergament entities, (b) failing to maintain in effect the existing terms and conditions of employment of those employees, and (c) granting recognition to Local 1815 as the exclusive representative of those em- ployees or applying the collective-bargaining contract between the MPSA and Local 1815 to those employees. 5. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I find it necessary to order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents unlawfully refused to hire Alexandria Castagnaro Elsie Ratliff Charlotte Elliott Marie Sommer Madeline lannamorato Angela York Elly Kircher Margaret Young Doris Levine Charlotte Zimmerman Norma Mugno It is recommended that Respondents be ordered to im- mediately offer each of them a position substantially similar to the work they previously were performing while employed in the Bethpage store, and to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them . The amount of backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950); New Hori- zonsfor the Retarded, 283 NLRB 1173 (1987).20 On these findings of fact and conclusions of law and on the entire record, I make the following recommend- ed21 ORDER The Respondents, Pergament United Sales, Inc., Per- gament Westbury Corp., Pergament Distributors, Inc., and Pergament Home Centers, Inc., Bethpage, New York, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to employ or otherwise discriminating against any applicant for employment because charges were filed in their behalf or because a union filed a case against them and a trial was pending. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer the following employees immediate employ- ment to positions substantially similar to the work they previously were performing while employed in the Beth- page store, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the deci- sion: Alexandria Castagnaro Elsie Ratliff Charlotte Elliott Marie Sommer Madeline Iannamorato Angela York Elly Kircher Margaret Young Doris Levine Charlotte Zimmerman Norma Mugno (b) Remove from their files any reference to the un- lawful refusal to employ the above people and notify 20 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest accrued before 1 January 1987 (the effective date of the amendment ) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977) 21 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided to Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. PERGAMENT UNITED SALES them in writing that this has been done and that the re- fusal to hire will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports , and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Bethpage, Long Island facility copies of the attached notice marked "Appendix."22 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondents' au- thorized representative, shall be posted by the Respond- ents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ents to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondents hae taken to comply. 22 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 347 WE WILL NOT refuse to employ or otherwise discrimi- nate against any applicant for employment because charges were filed in their behalf or because a union filed a case against us and a trial was pending. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer the following employees immediate employment to positions substantially similar to the work they previously were performing while employed in the Bethpage store, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision: Alexandria Castagnaro Elsie Ratliff Charlotte Elliott Marie Sommer Madeline lannamorato Angela York Elly Kircher Margaret Young Doris Levine Charlotte Zimmerman Norma Mugno WE WILL remove from our files any reference to the unlawful refusal to employ the above people and notify them in writing that this has been done and that the re- fusal to hire will not be used against them in any way. PERGAMENT UNITED SALES, INC.; PERGA- MENT WESTBURY CORP.; PERGAMENT DIS- TRIBUTORS, INC.; AND PERGAMENT HOME CENTERS, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice.