Domsey Trading Corp. And Domsey International Sales Corp.

DOMSEY TRADING CORP. 897 Domsey Trading Corporation and Domsey Interna- tional Sales Corporation, a Single Employer and Rene Palacios and Local 113, National Organi- zation of Industrial Trade Unions, Party to the Contract. Case 29-CA-12966 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On November 23, 1988, Administrative Law Judge Howard Edelman issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, the Party to the Contract and the Charging Party jointly filed exceptions and a sup- porting brief,' and the General Counsel filed ex- ceptions2 and a brief in support of the exceptions and in support of the administrative law judge's de- cision. 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 exceptions3 and briefs and has decided to affirm the judge's rulings, findings,4 ' The Party to the Contract and the Charging Party also filed a motion to reopen the record to add into evidence the arbitrator 's clarification of his award in Ponce's lawsuit against Perez in New Jersey state court The General Counsel filed an opposition to this motion . We find that the arbi- trator's legal conclusions are irrelevant because, as the judge noted in his decision, the arbitrator did not have jurisdiction to resolve the representa- tion issues raised by the instant case We also find that the arbitrator's factual findings are not probative because , as the arbitrator himself noted, they are largely a recitation of Local 113 NOITU's brief because its op- ponent withdrew from the clarification hearing . Accordingly, we deny the motion to reopen the record. The Party to the Contract and the Charging Party also moved to remand the case for the judge to consider the documentary evidence relied on by the arbitrator in clarifying his award , which they claim was withheld from the judge by the attorneys for Local 113 NOITU in the hearing below . The General Counsel filed an opposition to this motion We have reviewed this documentary evidence, and we find that it does not warrant remanding the case or detract from the judge's findings We therefore deny the motion to remand the case The Party to the Contract and the Charging Party also filed a motion to reopen the record , or remand the case , to enter into evidence the entire record in Jayar Metal Finishing Corp, Cases 29-CA-13147, 29- CA-13213-1 & -2. The General Counsel filed an opposition to this motion. We find that this is essentially a motion to consolidate the instant case and Jayar, and we deny this motion as unwarranted under these cir- cumstances. We also deny the Respondent's motion to defer decision in the instant case until the Jayar record and decision of the judge are before the Board 8 In the exceptions, the General Counsel contends that there are vari- ous errors and omissions in the judge 's Order We agree and have revised the Order accordingly 9 We deny the General Counsel's motion to strike the exceptions of the Party to the Contract and the Charging Party and the exceptions of the Respondent 4 In his Statement of the Case. par. 3, the judge inadvertently failed to note that a brief had also been filed by the Respondent. In his Conclusions of Law, par 4, the judge erred in stating that the Respondent recognized and bargained with Local 113 NOITU as the ex- clusive representative of its warehouse employees The record shows that the Respondent recognized Local 113, NOITU as the representative of and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Domsey Trading Cor- poration and Domsey International Sales Corpora- tion, a Single Employer, Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Recognizing or bargaining with Local 113, National Organization of Industrial Trade Unions (Local 113 NOITU), or any successor thereto, as the collective-bargaining representative of its em- ployees, unless and until Local 113 NOITU is cer- tified by the National Labor Relations Board as the exclusive representative of an appropriate unit of Respondent's employees. (b) Maintaining or giving any force or effect to its collective-bargaining agreements with Local 113 NOITU of April 1, 1987, and August 1987, and to any modifications, extensions, supplements, or re- newals thereof; or to any Local 113 NOITU de- duction authorizations that have been executed by its employees; or to any other contract, agreement, or understanding entered into with Local 113 NOITU, or any successor thereto, covering its em- ployees with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment; provided, however, that nothing in this Order shall be construed to require the Re- spondent to vary or abandon any wage increase or other benefits, terms, and conditions of employ- ment that it has established in performance of the agreements. (c) Permitting agents of Local 113 NOITU, in- cluding its employees who have been designated as agents by Local 113 NOITU to solicit membership or engage in other activities on behalf of Local 113 NOITU on the Respondent's premises during working time. (d) Deducting union fees, dues, assessments, and other moneys from the wages of its employees on behalf of Local 113 NOITU, and cease and desist all its employees at its Brooklyn, New York location , excluding office clerical employees and supervisors. To the extent that the judge's statement that any attempted affiliation was not supported by the evidence because "there was insufficient evi- dence to establish whether a majority of the employees (union and non- union) employed by the employers represented by Local 113, SOLO signed the affiliation petition" may be read to be inconsistent with the holding in NLRB v Financial Institution Employees (Seattle-First National Bank), 475 U.S 192, 209 ( 1985) (Board exceeded its authority in requir- ing that nonunion employees be allowed to vote for affiliation before before it would order the employer to bargain with the affiliated union), it is disavowed 296 NLRB No. 113 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from remitting the union fees, dues , assessments, and other moneys to Local 113 NOITU, unless and until Local 113 NOITU is certified by the National Labor Relations Board as the exclusive bargaining representative of the Respondent's employees, and the employees thereafter execute uncoerced author- izations for the deduction of the union fees, dues, assessments, and other moneys from their wages pursuant to a valid collective-bargaining agree- ment. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Withdraw and withhold recognition from Local 113 NOITU, or any successor thereto, as the collective-bargaining representative of its employ- ees, unless and until Local 113 NOITU is certified by the National Labor Relations Board as the ex- clusive representative of an appropriate unit of Re- spondent's employees. (b) Reimburse all of its present and former em- ployees for any dues, initiation fees, assessments, and other moneys deducted from their wages on behalf of Local 113 NOITU, on or after April 1, 1987, together with interest thereon as provided in the manner prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). See Isis Plumbing Co., 138 NLRB 716 (1962). (c) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, any and all records necessary to determine the amounts of money due and payable to its employ- ees under this Order. (d) Post in conspicuous places at its principal place of business in Brooklyn , New York, and at all other locations where notices to employees are posted, copies of the attached notice marked "Ap- pendix" and simultaneously post notices contain- ing Spanish-language and French-language versions of the original notice. Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the 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." 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 Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT recognize or bargain with Local 113 National Organization of Industrial Trade Unions, or any successor thereto, as the collective- bargaining representative of our employees, unless and until Local 113 NOITU is certified by the Na- tional Labor Relations Board as the exclusive rep- resentative of an appropriate unit of our employees. WE WILL NOT maintain or give any force or effect to our collective-bargaining agreements with Local 113 NOITU of April 1, 1987, and August 1987, and to any modifications, extensions, supple- ments, or renewals thereof; or to any Local 113 NOITU deduction authorizations that have been executed by our employees; or to any other con- tract, agreement, or understanding entered into with Local 113 NOITU, or any successor thereto, covering our employees with respect to rates of pay, wages, hours of employment , or other terms and conditions of employment , and WE WILL NOT seek to vary or abandon any wage increase or other benefits, terms, and conditions of employ- ment that we have established in performance of, the agreements. WE WILL NOT permit agents of Local 113 NOITU, including its employees who have been designated as agents by Local 113 NOITU to solic- it membership or engage in other activities on behalf of Local 113 NOITU on our premises during working time. DOMSEY TRADING CORP. WE WILL NOT deduct union fees, dues, assess- ments, and other moneys from the wages of our employees on behalf of Local 113 NOITU, and WE WILL NOT remit the union fees, dues, assessments and other moneys to Local 113 NOITU, unless and until Local 113 NOITU is certified by the National Labor Relations Board as the exclusive bargaining representative of our employees, and the employees thereafter execute uncoerced authorizations for the deduction of the union fees, dues, assessments, and other moneys from their wages pursuant to a valid collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL withdraw and withhold recognition from Local 113 NOITU, or any successor thereto, as the collective-bargaining representative of our employees, unless and until Local 113 NOITU is certified by the National Labor Relations Board as the exclusive representative of an appropriate unit of our employees. WE WILL reimburse all of our present and former employees for any dues, initiation fees, as- sessments, and other moneys deducted from their wages on behalf of Local 113 NOITU, on or after April 1, 1987, together with interest thereon. DOMSEY TRADING CORPORATION AND DOMSEY INTERNATIONAL SALES CORPORATION, A SINGLE EMPLOYER David S. Cohen, Esq., for the General Counsel. Richard M. Gaba, Esq. for the Respondent. Robert Sparago, Esq., for the Charging Party. David Grossman, Esq. (Schneider, Cohen, Solomon, Leder & Montalbano), for Local 113, NOITU. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on May 2, 3, and 5, 1988 in Brooklyn, New York. On March 25, 1987, Rene Palacios, an individual, filed a charge against Domsey Trading Corporation, and Domsey International Sales Corporation (Respondent), Trading, Respondent Sales and collectively called Re- spondent. On July 31, 1987, a complaint issued alleging violations of Section 8(a)(1), (2), and (3) of the Act. The thrust of the complaint alleges that Respondent recog- nized and entered into a collective-bargaining agreement with Local 113, National Organization of Industrial Trade Unions (Local 113, NOITU), at a time when it was a party to a collective-bargaining agreement with Local 113, Solidarity of Labor Organization Internation- al Union (Local 113, SOLO), and at a time when it did not represent an uncoerced majority of Respondent's em- 899 ployees. The 8(a)(3) allegation is predicated on the al- leged unlawful deduction of union dues , initiation fees and strike fund assessments deducted from the employ- ees' paycheck pursuant to a union-security provision con- tained in the above-mentioned agreement. The unit cov- ered by this agreement exceeds 350 employees.' Briefs in this case were filed by counsel for the Gener- al Counsel, and counsel for Local 113, NOITU. Upon my consideration of the entire record, the briefs, and my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT Respondent Trading is a New York corporation with an office and warehouse in Brooklyn, New York. It is engaged in the sorting, packing and shipping of used clothing and textiles. Respondent Sales is a New York corporation operat- ing out of the same Brooklyn, New York facility as Re- spondent Trading and is engaged in the sale of used clothing and textiles. Respondents Trading and Sales are an affiliated busi- ness enterprise with common officers, ownership, direc- tors, management, and supervision, administering a common labor policy, with common and interchangeable employees and constitute a single employer within the meaning of the Act. Respondent annually purchases and receives at its Brooklyn facility used clothing and textiles valued in excess of $50,000 directly from points outside the State of New York. Respondent is, and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Local 113, SOLO and Local 113, NOITU are and have been at ' During the trial of this case Robert Sparago, an attorney representing Palacios, the Charging Party, moved for a withdrawal of the instant unfair labor practice charge contending that Palacios had come to Region 29 to obtain information about Local 113, NOITU's right to rep- resent Respondent's employees and had been "tricked" by Board agents into filing this charge. This motion was denied by me on the ground that it would not serve the public interest to grant the motion Palacios had requested a withdrawal of this charge several weeks after it had been filed The Regional Director for Region 29 had similarly refused to grant Palacios' request on the same ground; that it would not serve the public interest to grant the withdrawal request Palacios' request did not allege any "trickery" by Board agents concerning the filing of the charge. Be- tween March 25, 1987, when the charge was filed and May 2, 1988, when this trial opened, neither Palacios or his attorney Sparago brought the issue of such alleged "trickery," or submitted any evidence in support of such allegations, to the Regional Director , the General Counsel, or the Board On July 20, the New York Division of Judges received an undat- ed written motion filed by Sparago , on behalf of Palacios, to withdraw the charge, a memorandum of law and an affidavit of Palacios, in support of the motion. On July 29 counsel for General Counsel filed a motion to reject the above affidavit and to strike portions of the Charging Party's motion and memorandum. I have carefully considered the charging parties' motion and memoran. dum, counsel for General Counsel's motion, and reviewed the trial record of this case. I note that a unit of over 350 employees is involved I deny Charging Party's motion and conclude that withdrawal of the in- stant charge would not be in the public interest Alberic,-Fru,n-Colnon, 226 NLRB 1315, 1316 (1976), affd. 567 F.2d 833 (8th Cir 1977); Jackson Engineering Ca, 265 NLRB 1688, 1699-1702 (1982), affil. 735 F.2d 1384 (2d Cir 1984) The General Counsel's motion is granted. 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD all times material herein labor organizations within the meaning of Section 2(5) of the Act. Respondent and Local 113, SOLO were parties to a collective-bargaining agreement effective from May 10, 1985 until May 10, 1988. The unit covered by this agree- ment includes all of Respondents ' employees excluding office clerical employees and supervisors. The unit covers over 350 employees. This collective-bargaining agreement contained a union-security provision requiring employees to become and remain members of Local 113, SOLO as a condition of continued employment. In 1986 and up to the present Edmundo Perez has been the president of the SOLO International and the secretary-treasurer of Local 113, SOLO. Armando Ponce was the president of Local 113, SOLO until April 1986. The SOLO executive board included Ponce and Perez. In March 1986 a dispute arose involving Ponce and Perez, and Perez dismissed Ponce as president of Local 113, SOLO. Ponce, evidently sensing his pending dismis- sal contacted representatives of NOITU, International to explore obtaining a charter for a 35 NOITU Local. Ponce then met with several Local 113, SOLO executive board members and suspended Perez. Nevertheless at all times prior to and subsequent to this meeting Perez has continued to function as the head of Local 113, SOLO. Local 113, SOLO under the leadership of Perez was rec- ognized as the collective-bargaining representative of Re- spondent's employees by both Respondent and its em- ployees. In the meantime, Ponce obtained a charter from NOITU, International, and called his new Local, Local 113, NOITU. He then appointed himself president, opened a new office, and commenced actions to acquire members for his new organization. His objective was to raid the Local 113, SOLO membership and attempt to switch the allegiance of its members to Local 113, NOITU. To that end he and other representatives he ap- pointed met at various times in April 1986 with employ- ees employed at various companies represented by Local 113, SOLO, including some of Respondent's employees. Petitions were circulated by Ponce at Respondent's facil- ity among Respondent's employees, some of who signed them during their lunch hour or on breaks . The petition stated in different languages: We the UNDERSIGNED EMPLOYEES of Domsey Trading Corp. and members of Local 113 SOLIDARITY OF LABOR ORGANIZATIONS desire that our affiliation be changed from SOLI- DARITY OF LABOR ORGANIZATIONS TO NATIONAL ORGANIZATIONS OF INDUS- TRIAL TRADE UNIONS. Ponce obtained about 160 signatures purporting to be those of Respondent's employees, of which Ponce testi- fied he only saw about 25 percent of the employees sign. There is no evidence that the signatures are genuine, or that the number of employees who signed represent a majority of employees in the unit . Ponce admits the em- ployees were not given prior notice of the meeting or the proposed affiliation change, nor was there any prior meeting during which time the proposed affiliation change was discussed with the employees . Moreover, there was no secret-ballot voting procedure. The petition was never served on Respondent. On April 30, 1986, Ponce wote a letter to Respondent on Local 113, NOITU stationary advising it of the change of affiliation. However, notwithstanding this so-called affiliation change, Local 113, SOLO under the leadership of Perez continued to function and represent Respondent's em- ployees and Respondent continued to remit dues and fees to Local 113, SOLO at their usual address. such remit- tance was pursuant to the union-security provisions in the Local 113, SOLO agreement with Respondent. In May 1986, Ponce filed a lawsuit in a New Jersey state court against Perez seeking reinstatement as presi- dent of Local 113, SOLO. (Such action is inconsistent with Ponce's contention that an affiliation took place.) On March 9, 1987, pursuant to the above lawsuit, which had been referred by the state court judge to binding arbitration , an arbitrator's award issued. The award split up the membership by shops, some of the shops being awarded to Local 113, SOLO and others awarded to Local 113, NOITU. Respondent's shop was awarded to Local 113, NOITU. This division was to take effect as of April 1, 1987. On March 13, the state court judge issued an order confirming the arbitrator's award. Sometime during the latter part of March 1987 Ponce visited Respondent's Brooklyn facility and met with Peter Salm, Respondent's plant manager. Respondent is wholly around by the Salm family. Peter is a son and a supervisor and agent within the meaning of Section 2(11) of the Act. Ponce gave Peter Saim a copy of the arbitra- tion award and the judge's order, described above. Salm read it. Ponce said the award was self-explanatory. Ponce and Peter Salm then met with Arthur and Clifford Salm, president and secretary of Respondent , respective- ly. Arthur and Clifford Salm reviewed the award. Ponce told them Local 113, NOITU got half of the Local 113,45 SOLO shops and Local 113, SOLO kept the other half. The Salms orally informed Ponce they would recognize Local 113, NOITU as of April 1. Several days following Respondent's recognition of Local 113, NOITU, Ponce returned to Respondent's fa- cility during working hours and told Peter Salm he wanted to meet with the employees. Peter Salm assem- bled the employees in the warehouse, and Ponce spoke to them. Salm remained present for a major portion of Ponce's speech. Peter Salm credibly testified that Ponce told the em- ployees that pursuant to a court decision it had been de- cided that from now on Local 113, NOITU would be representing the employees. He then told him their union dues, now payable to Local 113, NOITU would be in- creased from $12 to $14 per month . Some of the assem- bled employees expressed dissatisfaction. Ponce told them the increase would pay for dental coverage they did not have when they were represented by Local 113, SOLO. Ponce then asked for a hand vote for approval of the increase. DOMSEY TRADING CORP. Ponce testified incredibly that the vote was to deter- mine whether the employees wanted to affiliate with Local 113, NOITU and to accept the dues increase. Ponce's testimony in this connection is simply not credi- ble. He had received an arbitrator's award and a court decision awarding his local representative status. He be- lieved he had the absolute legal right to represent Re- spondent's employees. He had shown the award and de- cision to the Salm's and had received recognition. Under these circumstances there was no reason to take a vote as to affiliation . Moreover, such vote, according to Ponce's testimony was tied into a vote to accept a dues increase which some employees were reluctant to accept . It is un- believable that he would have given up the shop if the employees voted no . Further, during cross-examination on this issue he was evasive and contradictory. Addition- ally, he is a biased witness . If Respondent is found to have committed the unfair practice charges alleged he would lose about one-half of his total membership. Following Ponce's meeting with Respondent's employ- ees, Ponce asked Peter Salm to permit employees Ramon Alejandro Martinez and Marco Camilus, who were also officials of Local 113, NOITU to solicit NOITU mem- bership applications and dues-deduction forms from the unit employees . Salm agreed. During the next several weeks Martinez and Camilus solicited employees to sign these forms, during working hours and with the full knowledge of the Salms. Beginning on April 1, 1987, Respondent substituted Local 113, NOITU for Local 113, SOLO as the party to the aforementioned 1985-1988 SOLO collective-bargain- ing agreement. In this connection since April 1 all dues fees and assessments deducted from the paychecks of unit employees have been forwarded to Local 113, NOITU although for at least a month most of the em- ployees had not signed dues-deduction authorizations. On August 13, 1987 Respondent and Local 113, NOITU entered into a new 45-month collective-bargain- ing agreement. Analysis and Conclusions Local 113, NOITU contends that the April 1986 peti- tions circulated among a number of Local 113, SOLO members including some employees employed by Re- spondent constituted a disaffiliation from Local 113, SOLO to Local 113, NOITU. It further contends that as a result of such disaffiliation Local 113, NOITU was the successor to Local 113, SOLO and had the right to rep- resent Respondent's employees and the employees em- ployed by all other employees under collective-bargain- ing relationships with Local 113, SOLO. Local 113, NOITU's contention is simply contrary to the facts. The facts establish that Local 113, SOLO from April 1986 though April 1, 1987, and thereafter continued its exist- ence as a labor organization . Moreover, pursuant to their collective-bargaining agreement with Respondent, they continued to represent Respondent's employees pursuant to the terms of its agreement. During this same Respond- ent legally deducted dues and fees and remitted such moneys to Local 113, SOLO. The same is undoubtedly true as to all other employers under contract with Local 113, SOLO. What was created during the March-April 901 1986 period was a new labor organization , Local 113, NOITU headed up by Ponce, without any members. Ponce recognized this as is evidenced by his lawsuit filed in a New Jersey court seeking to regain the presidency of Local 113, SOLO. However, even if we were to assume an attempted af- filiation, it is clear that the Ponce group observed none of the Board's due process guidelines . The Board's guidelines require advance notice to the employees of the proposed affiliation, adequate opportunity to discuss to proposed affiliation, an orderly vote by secret ballot. NLRB v Financial Institution Employees (Seattle-First Na- tional Bank), 475 U.S. 192 (1986); Port Chester Nursing Home, 269 NLRB 150 (1984). In the instant case there was no prior notice, there was no discussion with em- ployee participation on the affiliation issue, there was no secret-ballot voting procedure. Moreover there is insuffi- cient evidence to establish whether a majority of the em- ployees (union and nonunion) employed by the employ- ers represented by Local 113, SOLO signed the affili- ation petition. In addition to the due process requirements, the Board also requires that there be a substantial continuity be- tween the pre and post affiliation locals . Financial Institu- tion Employees, Port Chester Nursing Home, supra. The facts of this case do not meet this criteria since there are still two separate and existing locals, separate officers, se- perate offices and separate financial accounts. It is crystal clear that no affiliation took place in April 1966. The facts establish that sometime around the middle of March 1987, Ponce, armed with the arbitrator's award and a New Jersey court decision affirming the award vis- ited Respondent's facility and met with the Salms. I'm sure he believed that he now had a legal right to repre- sent Respondent's employees and when he showed the Salms the decision and award they believed it too and so they recognized Local 113, NOITU as their employees legal representative, replacing Local 113, SOLO as of April 1. Unfortunately, Respondent had a collective-bar- gaining agreement with Local 113, SOLO which obligat- ed it to continue to recognize Local 113, SOLO as the exclusive representative of its employees, and at the time recognition was granted the agreement with Local 113, SOLO was a bar to such recognition. To question con- cerning representation could be raised . The United States Supreme Court and the Board have consistently held such recognition constitutes unlawful assistance, and that such recognition is unlawful and in violation of Section 8(a)(1) and (2) of the Act. Ladies Garment Workers (Bernhard Altmann Texas Corp.) v. NLRB, 366 U.S. 731 (1961); Yates Industries, 264 NLRB 1237 (1982). It makes no difference that both parties, Local 113, NOITU by Ponce and Respondent, by the Salms believed that Local 113, NOITU had the legal right to represent Respond- ent's employees . Bernhard Altmann, supra. Additionally, at the time recognition was granted by Respondent, Local 113, NOITU did not represent a single employee employed by Respondent. Local 113, NOITU's recogni- tion claim was based entirely on the arbitration award and New Jersey court decision. 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I find such recognition to be violative of Section 8(a)(1) and (2). In view of my finding that the mid-March 1987 recog- nition of Local 113, NOITU was unlawful, it follows that such subsequent conduct as permitting Ponce on Re- spondent's premises to address its employees during working hours and to solicit membership constitutes un- lawful assistance in violation of Section 8(a)(1) and (2). Safeway Stores, Inc., 276 NLRB 944 fn. 2 (1985); Verni- tron Electrical Components, 221 NLRB 464 (1975), affd. 548 F.2d 24 (1st Cir. 1977). I also find Respondent further violated Section 8(a)(1) and (2) by permitting Martinez and Camilus , agents des- ignated by Local 113, NOITU, and employees of Re- spondent, to solicit membership during working hours. Monfort of Colorado, 256 NLRB 612 (1981), affd. 683 F.2d 305 (9th Cir. (1982). Respondent further violated Section 8(a)(1) and (2) and additionally violated Section 8(a)(3) of the Act by entering into a collective-bargaining agreement with Local 113, NOITU in August 1987 containing a union- security clause. Whether Local 113, NOITU had achieved a majority status by the time such contract was entered into is immaterial , in view of the unlawful recog- nition and unlawful assistance that followed Bernhard Altmann, supra. I also find Respondent's deduction of dues and other moneys from employees pursuant to checkoff authoriza- tions signed by its employees after April 1, 1987, which were remitted to Local 113, NOITU to be violative of Section 8(a)(1), (2), and (3). Monfort of Colorado, supra. It is clear that deduction and remittance by Respondent to Local 113, NOITU of dues and moneys from the pay- checks of employees who did not sign checkoff authori- zations is similarly unlawful . Sirco Security Service, 247 NLRB 1266 (1980). It cannot be contended that the Board should defer to the decision and award of the New Jersey State court and the subsequent arbitrators award. It is clear and well-settled that representation issues involve the applica- tion of basic statutory policy and are matters for decision exclusively by the Board. Thus New Jersey State court and the arbitrator appointed by such court did not have jurisdiction to determine the representative status of Local 113, NOITU or the bargaining representative of Respondent's employees. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959); Port Chester Nursing Home, supra at 155, 156. Speilberg Mfg. Co., 112 NLRB 1080 (1955). On October 17, 1988, Ponce as president of Local 113, NOITU filed a motion to reopen the above hearing on the grounds that (a) the New Jersey state court has opened the arbitration described above, and has jurisdic- tion over the status of the unions herein (b) Local 113, NOITU has uncovered new authorization cards which would establish Local 113, NOITU as the designated ma- jority representative. On October 19, I sent a letter to all parties stating that any responses to Local 113, NOITU's motion must be submitted by October 28. By October 28 Ponce as president of Local 113, NOITU and Palacios by Sparago his attorney jointly filed a memorandum in support of the above motion. Richard Gaba counsel for Respondent submitted a letter stating his support for the Local 113, NOITU motion. David Cohen, counsel for General Counsel submitted a memorandum opposing the motion. On November 3 counsel for General Counsel filed a motion to strike the facts section of Local 113, NOITU's October 28 memorandum and on November 7, Local 113, NOITU filed a motion to oppose General Counsel's motion. I have carefully considered the motions and memoran- da of all parties. I deny Local 113, NOITU's October 17 motion to reopen the hearing. As to Local 113, NOITU's conten- tion that the status of the unions involved herein is within the jurisdiction of the New Jersey state court, such contention is rejected for the same reason as set forth above. The issue concerning the representaton status of a labor organization is exclusively within the ju- risdiction of the Board , San Diego Building Trades Coun- sel and Port Chester Nursing Home, supra. As to Local 113, NOITU's contention concerning "newly found" au- thorization cards I have concluded that in March 1987 when Respondent granted recognition to Local 113, NOITU as of April 1, it was under a valid existing col- lective-bargaining agreement with Local 113, SOLO and a question concerning representation could not be raised. Therefore such "newly found" cards would be irrele- vant. Bernhard Altman, supra. Moreover, it does not appear such cards are "newly found" Nabco Corp., 266 NLRB 687 (1983); Teamsters Local 911 (General Felt In- dustries), 275 NLRB 980 (1985). In view of my conclusion it is unnecessary for me to decide on General Counsel's motion to strike the "facts" portion of Local 113, NOITU's October 28 memoran- dum. CONCLUSIONS OF LAW 1. Respondent Trading and Sales are employees en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Trading and Sales constitute a single-in- tegrated business enterprise and are a single employer within the meaning of the Act. 3. Local 113, NOITU and Local 113, SOLO are labor organizations within the meaning of Section 2(5) of the Act. 4. Respondent violated Section 8(a)(1) and (2) by rec- ognizing and bargaining with Local 113, NOITU as the exclusive representative of its warehouse employees not- withstanding that Local 113, NOITU did not represent an uncoerced majority of Respondent's employees and notwithstanding that Respondent's employees were law- fully represented, pursuant to a collective-bargaining agreement between Respondent and Local 113, SOLO. 5. Respondent violated Section 8(a)(1), (2) and (3) by entering into, enforcing and maintaining a collective-bar- gaining agreement containing a union security clause and checkoff provision, notwithstanding that Local 113, NOITU did not represent an uncoerced majority of Re- spondent's employees. DOMSEY TRADING CORP. 903 6. Respondent violated Section 8(a)(1) and (2) by giving unlawful assistance to Local 113, NOITU in per- mitting agents of Local 113, NOITU including employ- ees of Respondent designated as agents by Local 113, NOITU to solicit membership in Local 113, NOITU in Respondent's facility during working time. 7. The aforesaid unfair labor practices affect commerce within the meaning of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of the Act, I shall recommend it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. [Recommended Order omitted from publication.]