Dancker & Sellew Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1963

140 N.L.R.B. 824 (N.L.R.B. 1963)

'S24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 International Union of Electrical , Radio and Machine Workers, AFL-CIO,
is a labor organization within the meaning of the Act.
3. John J. McCormack, until his discharge by the Respondent on June 27, 1961,
was a supervisor within the meaning of Section 2(11) of the Act.
4. The Respondent has not engaged in unfair labor practices within the meaning
,of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact , conclusions of law, and the entire
record in the case, it is recommended that the complaint herein be dismissed in its
entirety.
Dancker & Sellew , Inc. and Lawrence E. Clark and Office Equip-
ment Employers Association , Party in Interest
Local 210, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Lawrence E. Clark
and Office Equipment Employers Association , Party in Inter-
est. Cases Nos. 2-CA-8615 and 2-CB-3/.66. January 21, 1963
DECISION AND ORDER
On September 18, 1962, Trial Examiner George J. Bott issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed, as
set forth in the attached Intermediate Report. Thereafter, the Gen-
eral Counsel and the Respondent Union filed exceptions to the Inter-
mediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and, as it finds merit in the exceptions of the General Coun-
sel, adopts the findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
There is no dispute as to the facts, which, in summary, show that
in June 1958, approximately 14 employers, including the Respondent
Employer, formed the Office Equipment Employers Association.
Some of these employers had previously bargained separately with the
Respondent Union as the representative of their warehouse employees,
but the Association thereafter assumed the function of bargaining with
the Respondent Union on behalf of its employer-nnennbers on an as-
sociationwide basis.
On February 26, 1959, the Association and the Union executed a
contract covering an associationwide unit of warehouse employees.
The contract included a union-security clause and was for a term end-
ing on July 1, 1961. Simultaneously, the parties entered into a "Sup-
140 NLRB No. 75.
DANCKER & SELLER', INC. 825
plemental Agreement" reciting that, effective May 1, 1961, as to the
office clerical employees, and June 1, 1961, as to sales employees, the
Association would recognize the Union as the representative of these
'categories, which would then be added to the contract unit.
On April 20, 1961, the Respondent Employer called a meeting of
its office clerical and sales employees, and notified them that, pursuant
to the "Supplemental Agreement," they had to join the Union within
30 days of the effective dates set forth therein. None of the employees
evinced any desire to join or be represented by the Union, and several
voiced opposition. In May 1961, the Respondent Employer called
separate meetings of its office clerical and sales employees. Each
group was addressed by a representative of the Union, and again ex-
pressed opposition to joining the Union. An employee meeting was
held later that month, at which all the employees voted unanimously
against union representation, and this vote was communicated to the
Respondent Employer. On June 20, 1961, all the office clerical and
sales employees of the Respondent Employer signed a petition, which
was delivered to the Respondent Employer, reiterating their opposition
to the Union, and stating that they would consider it an unfair labor
practice if the Employer executed a contract with the Union which
included them.'
In January 1962, the Association and the Union executed an as-
sociationwide contract covering a warehouse unit. On Apri] 26, 1962,
they entered into an associationwide contract covering office clerical
and sales employees, which included a union-security clause. Prior to
the execution of this contract, the Union showed by membership cards
that it had been designated by a majority of these employees on an as-
sociationwide basis. No office clerical or sales employee of the Re-
spondent Employer, however, had designated the Union as his bargain-
ing representative.2
It is clear, therefore, from the undisputed facts, that the employees
involved expressed their opposition to union representation, vocally
and in writing, to both the Respondent Employer and the Respondent
Union, on several occasions. The Respondents nevertheless dis-
regarded this unanimous opposition, and included these employees in
the contract unit. The Board dealt with a comparable situation in
Mohawk Bttsiness Machines Corporation,' where an employer joined
an association and immediately included his employees in the as-
-sociationwide union contract without their consent. The Board, in
that case, stated that the employer "could not unilaterally and with-
I The Respondent Employer testified that it never enforced the union -security provision
of the "Supplemental Agreement" as to its office clerical and sales employees because of
its belief that they had to sign checkoff cards before it could be enforced
2It appears that the union-security clause of this contract is not being enforced because
of the pendency of this proceeding.
8116 NLRB 248.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out the express or implied consent of its employees bind them to rep-
resentation in a multiemployer unit, . . ." and found such conduct
violative of Section 8(a) (1), (2), and (3) of the Act. It follows that
the conduct in the present case is a fortiori unlawful as the Respond-
ents herein foisted representation on employees with full knowledge
that they did not desire representation, and, in addition, by including
a union-security clause in the contract, compelled them, under penalty
of discharge, to become members of the Respondent Union against
their clearly manifested opposition thereto. Under such circum-
stances, we find no merit in the Respondents' contention that such con-
duct was justified because the effect of the contract was to include
these employees in a unit which was appropriate by reason of the
existing associationwide bargaining history for a different category
of employees, in which unit it was the majority representative.'
Accordingly, under all the circumstances, we find that the Re-
spondent Employer, by executing and maintaining the contract cov-
ering its office clerical and sales employees on April 26, 1962, with the
Respondent Union, which did not represent these employees, has
interfered with, restrained, and coerced its employees in violation of
Section 8(a) (1) ; has unlawfully rendered assistance and support to
the Respondent Union in violation of Section 8(a) (2) ; and, by the
inclusion of a union-security clause in the contract, has discriminated
against its employees with regard to their hire and tenure of employ-
ment in violation of Section 8(a) (3) of the Act.' We further find
that the Respondent Union, by executing and maintaining the con-
tract covering the office clerical and sales employees of the Respondent
Employer when it did not represent these employees, has restrained
and coerced these employees in violation of Section 8(b) (1) (A) of
the Act, and has attempted to cause the Respondent Employer to dis-
criminate against its employees in violation of Section 8 (a) (3),
thereby violating Section 8 (b) (2) of the Act.6
THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent Employer as set forth
in the Intermediate Report, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
' We find that Peninsula Auto Dealers Association of the California Association of
Employers , 107 NLRB 56 , which is relied upon by the Trial Examiner is not dispositive-
of the issue here , as it was a representation case and did not concern itself with the
kind of conduct before us , in this case
See Twin County Transit Max, Inc , 137 NLRB 1708
e See Paul Biazevich , et at , d/b/a MV "Liberator," 136 NLRB 13
DANCKER & SELLER', INC.
TIIE REMEDY
827
Having found that the Respondents engaged in certain unfair labor
practices, we shall order that they cease and desist therefrom and
take certain affirmative action which we find necessary to effectuate
the purposes of the Act.
Upon the basis of the foregoing findings of fact, and upon the
entire record in these cases, the Board makes the following:
CONCLUSIONS OF LAW
1. The Respondent Employer, Dancker & Sellew, Inc., New York,
New York, is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Respondent Union, Local 210, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2(5) of the Act.
3. By executing and maintaining the contract of April 26, 1962,
covering office clerical and sales employees , at a time when the Union
did not represent said employees, the Respondent Employer has vio-
lated Section 8(a) (1), (2), and (3) of the Act, and the Respondent
Union has violated Section 8(b) (1) (A) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce Within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. The Respondent Employer, Dancker & Sellew, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Assisting or contributing support to Local 210, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or to any other labor organization, and recognizing or
contracting with the Respondent Union as the representative of its
office clerical and sales employees for the purpose of collective bar-
gaining with respect to wages, rates of pay, hours of employment, or
other terms and conditions of employment, unless and until such labor
organization shall have been duly certified by the National Labor
Relations Board as the exclusive representative of the said employees.
(b) Giving effect to the collective-bargaining contract of April 26,
1962, with the Respondent Union, or to any extension, renewal, or
modification thereof, unless and until the said Union shall have been
duly certified by the National Labor Relations Board as the exclu-
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive representative of the said employees : Provided, however, that
nothing in this Decision and Order shall require the Respondent Em-
ployer to vary or abandon those wage, hour, seniority, or other sub-
stantive features of its relations with its employees, established pur-
suant to any such agreement, or to prejudice the assertion by
employees of any right they may have thereunder.
(c) Encouraging membership in the Respondent Union, or in any
other labor organization, by conditioning the hire or tenure of em-
ployment or any term or condition of employment upon membership
in, affiliation with, or dues payments to, any such labor organization,
except as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act, and
to refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from the Respondent
Union as the exclusive representative of the Respondent Employer's
office clerical and sales employees for the purposes of collective bar-
gaining unless and until said labor organization has been duly cer-
tified by the National Labor Relations Board as the exclusive repre-
sentative of such employees.
(b) Post at its plant in New York, New York, copies of the attached
notice marked "Appendix A."' Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being duly
signed by the Respondent Employer's representative, be posted by it
immediately upon the receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent Employer to insure that these notices
are not altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for the Second Region signed
copies of the attached notice marked "Appendix A" for posting by
v In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
DANCKER & SELLEW, INC. 829
the Respondent Union at its offices where notices to members are
customarily posted. Copies of said notice, to be furnished by the Re-
gional Director, shall, after being duly signed by a representative
of the Respondent Employer, be forthwith returned for such posting.
(d) Post at the same places and under the same conditions as set
forth in (c) immediately above, as soon as they are forwarded by the
Regional Director, copies of the Respondent Union's attached notice
marked "Appendix B."
(e) Notify the said Regional Director, in writing, within 10 days
from the date of this Decision and Order, what steps it has taken
to comply herewith.
B. The Respondent Union, Local 210, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its
officers, agents, representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Dancker & Sellew, Inc., its
officers, agents, successors, or assigns, to discriminate against its office
clerical and sales employees by giving effect to its agreement of
April 26, 1962, or to any extension, renewal, or modification thereof.
(b) Causing or attempting to cause Dancker & Sellew, Inc., its
officers, agents, successors, or assigns, to discriminate against its office
clerical and sales employees by conditioning their hire or tenure of
employment or any term or condition of employment upon membership
in, affiliation with, or dues payments to, the Respondent Union, except
as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(c) In any other manner restraining or coercing employees of the
Respondent Employer in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices and meeting halls copies of the attached
notice marked "Appendix B." 8 Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being duly
signed by an authorized representative of the Respondent Union, be
posted by it immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to members are customarily posted. Reason-
8 See footnote 7, supra.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able steps shall be taken by it to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for the Second Region signed
copies of the attached notice marked "Appendix B" for posting by the
Respondent Employer as provided herein. Copies of said notice, to
be furnished by the Regional Director, shall, after being duly signed by
a representative of the Respondent Union, be forthwith returned for
such posting.
(c) Post at the same places and under the same conditions as set
forth in (b) immediately above, as soon as they are forwarded by the
Regional Director, copies of the Respondent Employer's attached no-
tice marked "Appendix A."
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Decision and Order, what steps it has taken to
comply herewith.
MEMBERS RODGERS and BROWN took no part in the consideration of
the above Decision and Order.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT assist or contribute support to Local 210, interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or to any other labor organization, or recog-
nize or contract with that Union as the representative of any of
our office clerical and sales employees for the purpose of collective
bargaining with respect to wages, rates of pay, hours of employ-
ment, or other terms and conditions of employment, unless and
until such labor organization shall have been duly certified by the
National Labor Relations Board as the exclusive representative
of the said employees.
WE WILL NOT give effect to the contract of April 26, 1962, en-
tered into with the said Union, or to any extension, renewal, or
modification thereof, unless and until the said Union shall have
been duly certified by the National Labor Relations Board as the
exclusive representative of the said employees.
WE WILL NOT encourage membership in the said Union, or in
any other labor organization, by conditioning the hire or tenure
of employment or any term or condition of employment upon
membership in, affiliation with, or dues payments to, any such
DANCKER & SELLEW, INC. 831
labor organization , except as authorized by Section 8 (a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
AVE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization , to form, join , or assist labor organizations , to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act , and to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
'1' WILL withdraw and withhold all recognition from the said
Union as collective-bargaining representative of any of our unite
clerical and sales employees unless and until that Union shall have
been duly certified by the National Labor Relations Board as the,
exclusive representative of such employees.
All our employees are free to become, remain, or refrain
from becoming or remaining, members of any labor organiza-
tion, except to the extent that this right may be affected b,%; an
agreement in conformity with Section 8(a) (3) of the Act, as
amended.
DANCKER & SELLEW, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representati ve) (Title)
This notice must remain posted for 60 days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York 22,
New York, Telephone No. Plaza 1-5500, if they have any question
concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 210, INTERNATIONAL BROTIIER-
1I00D OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND 11ELPERE
OF AMERICA
Pursuant to a Decision and Order of the National Labor Relations
Board, and, in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT cause or attempt to cause Dancker & Sellew, Inc.,
its officers, agents, successors, or assigns , to discriminate against
its office clerical and sales employees by giving effect to its agree-
ment of April 26, 1962, or to any extension, renewal, or modifica-
tion thereof.
WE WILL NOT cause or attempt to cause Dancker & Sellew,
Inc., its officers, agents, successors , or assigns, to discriminate
against its office clerical and sales employees by conditioning their
hire or tenure of employment or any term or condition of em-
ployment upon membership in, affiliation with, or dues payments
to, the said Union, except as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT in any other manner restrain or coerce employees
of the Respondent Employer in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
LOCAL 210, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of posting
and must not be altered, defaced, or covered by any other material.
Members may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York,
New York 22, New York, Telephone No. Plaza 1-5500, if they have
any question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge of unfair labor practices filed on May 16, 1962, against Dancker
& Sellew, Inc., herein called Respondent Company, and a charge of unfair labor
practices filed on May 3, 1962, against Local 210, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Re-
spondent Union, the General Counsel of the National Labor Relations Board issued
a consolidated complaint and notice of hearing dated June 5, 1962 Answers denying
the commission of unfair labor practices were filed by Respondents and a hearing
was held before Trial Examiner George J. Bott on July 12 and 18, 1962, at New
York, New York. The General Counsel, Dancker & Sellew, Inc., and the Union were
represented by counsel, participated in the hearing, and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, to introduce evidence,
to present oral arguments, and to file briefs. General Counsel and Respondents argued
orally at the close of the (hearing and General Counsel and Respondent Union filed
briefs which have been considered. Office Equipment Employers Association, the
DANCKER & SELLEW, INC. 833
Party in Interest, did not enter an appearance although Paul W. Dancker, Jr.,
president of the Association and vice president of Respondent Company, was present
and testified at the hearing.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
Dancker & Sellew, Inc., is and has been at all times material herein, a New York
corporation engaged in the sale and distribution of office furniture and equipment.
Respondent Company maintains its principal office and place of business in the city
of New York. During the year ending December 31, 1961, Danker & Sellew, Inc.,
in the course and conduct of its business, purchased and caused to be transported
and delivered to its place of business in the city of New York office furniture and
equipment and other goods and materials valued in excess of $500,000 of which
goods and materials in excess of $50,000 were transported and delivered to its place
of business in interstate commerce directly from States of the United States other than
the State of New York. It was stipulated, and I find, that Respondent Company is
engaged in commerce with the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The charges and complaint of unfair labor practices in this case were apparently
triggered by the negotiation and execution on April 26, 1962, of a collective-bargain-
ing agreement between the Office Equipment Employers Association, of which
Dancker & Sellew is a member, and Respondent Union, whereunder , inter alia, the
Association recognized the Union as the collective-bargaining representative of the
employees of the employer-members of the Association in a bargaining unit con-
sisting of office clerical employees and sales employees, and which agreement con-
tained a provision requiring membership in good standing in Respondent Union as a
condition of employment. It is this argreement-valid on its face-which General
Counsel attacks as being a violation of Section 8(a)(1), (2), and (3) and Section
8(b)(1)(A) and (2) of the Act, basically on the ground that Respondent Union
was not at any material time the duly selected bargaining representative of Dancker
& Sellew's employees in the unit covered by the agreement. Although it is conceded
by Respondents that the Union did not in fact actually represent any employee of
Respondent Company in a unit of office clerical and sales employees, a resolution of
the legal issues requires a historical survey of the labor relations of the parties to
the agreement.
During the period from 1955 to 1958, various individual employers in the retail
and wholesale office furniture business in New York City had individual contracts
with Respondent Union in which the Union was recognized as the bargaining rep-
resentative of the Employer's respective warehouse employees.
Approximately 10 employers, not including Dancker & Sellew, also had individual
contracts with the Union recognizing the Union as the sole collective-bargaining agent
for all their employees including, where there were such employed, office and sales
personnel.
In June 1958, approximately 14 employers, including the 10 employers whose con-
tracts covered office and sales employees as well as warehouse employees, and also
including Respondent Dancker & Sellew, formed the Office Equipment Employers
Association, which assumed the function of bargaining with Respondent Union on be-
half of its employer-members. Since about July 1, 1958, Respondent Union has rep-
resented the warehouse employees of the employer-members of the Association on an
association basis and pursuant to associationwide labor agreements.
On February 26, 1959, the Association and Respondent Union executed a contract
covering a unit of all warehouse employees of the employer-members expiring on
July 1, 1961. Respondent Company's employees were included in the multiemployer
unit.
Simultaneously with the execution of the warehouse agreement, the parties executed
a supplemental agreement relating to office and sales employees and which provided
that it formed a part of warehouse contract. This supplemental agreement recited
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Union had requested recognition as the bargaining representative of all
"warehouse, office, clerical and sales employees of the Employers . .." and that the
"Employers (bad) refused to grant recognition because it has not been clearly estab-
lished that a single over-all unit of such employees is now appropriate . . . or that
the Union represents a majority of the employees in such a unit." The agreement
then provided that "In settlement of this controversy, the Union accepts recognition
for the unit of . .." warehouse employees and the employer members agreed that:
"a. Effective May 1, 1961, the Union shall be recognized as the collective bar-
gaining representative of all office and clerical employees of the undersigned
Employers . . . and these employees shall be added to the unit covered by
the " warehouse agreement.
"b. Effective June 1, 1961, the Union shall be recognized as the collective
bargaining representative of all sales employees of the undersigned employers
. and these employees shall be added to the unit covered by the .. ." ware-
house agreement.
Dancker & Sellew, as well as the Association, was a signatory to the supplemental
agreement.
On April 15, 1959, Respondent Union and five of the employer-members of the
Association, not including Respondent Dancker & Sellew, executed a collective-
bargaining contract covering the five employers' sales employees, and the office clerical
employees of one of the five.
On April 20, 1961, Respondent Company called a meeting of all its sales and office
clerical employees and Paul Dancker, Respondent's vice president, and Louis New-
man, Respondent Company's and the Association's attorney, spoke to the employees
and told them that pursuant to contract with Respondent Union membership in the
Union would be a condition of employment for all office clerical employees beginning
30 days after May 1, 1961, and for all sales employees beginning 30 days after
June 1, 1961. At this meeting several of the employees told Respondent Company's
representatives that they objected strongly to being forced to join Respondent Union
or be represented by it and asked what they could do about it. No employee ex-
pressed any desire to join or be represented by the Union
Sometime in May 1961, separate meetings of all the sales and office clerical em-
ployees of Respondent Company were called by Respondent Company for the
purpose of having the employees hear Harold Baker, business representative of
Respondent Union. Baker spoke to both meetings and stressed the advantages
of representation by and membership in the Union He advised the employees that
they were required to join by contract and would be discharged if they did not.
The employees expressed opposition to joining the Union and refused to sign dues
deduction cards or authorization for the Union's welfare fund.
At a meeting of employees in May 1961, a show of hands was called for by
an employee and all voted against joining the Union. Respondent Company was then
informed of the show of hands and the result. Following the meetings addressed
by Respondent Company and Respondent Union, no office clerical or sales employee
of the Company ever indicated to the Company that he desired to join or be rep-
resented by the Union.
On June 20. 1961, all the office clerical and sales employees of the Company signed
a petition, which was delivered to the Company, stating that they were not members
of the Union, that they objected to joining or being represented by it, and that the
Employer would be engaging in an unfair labor practice if it made a contract "cover-
ing" them with the Union. None of the office clerical and ales employees has
ever, in any manner, designated or selected the Union as his bargaining representa-
tive or paid dues to the Union.
The 1959 contract would expire by its terms on July 1, 1961. On April 20. 1961,
Dancker & Sellew received from the Union a 60-day notice of termination of the
agreement During the summer and fall of 1961 the Association and the Union
engaged in negotiations. The parties first negotiated a new contract for the ware-
house employees which finally resulted in the execution of a contract covering a ware-
house unit in January 1962.1
After the 1962 warehouse contract had been negotiated and executed , the parties
began negotiations for an office clerical and sales agreement and reached agreement
on terms in April 1962. Before signing the agreement , however, the Association
demanded that the Union demonstrate by cards that it had been designated by a
1 The warehouse contract now covered drivers as well as warehouse employees. It was
executed in January 1962, according to the testimony, and not in December 1961, as
appears on its face.
DANCKER & SELLEW, INC. 835
majority of the employees in an associationwide unit. The Union did produce a
majority of cards on a multiemployer basis, but no cards of the Respondent Com-
pany's office clerical or sales employees were included. The contract was signed on
April 26, 1962, covering a bargaining unit of office clerical and sales employees of
all members of the Association.2
As stated earlier, the contract contained a union-security clause, and pursuant to
it Respondent Company notified its office clerical and sales employees on May 2,
1962, that they were required as a condition of employment to join Respondent
Union. None of the employees has joined the Union, and it appears that the
agreement is not being enforced by the parties because of the pendency of this
proceeding.
B Analysis and concluding findings
General Counsel's theory of violation is essentially that the contract in
question covers an inappropriate unit because there is no bargaining history to
support a multtemployer unit for office clerical and sales employees.
It is true, as General Counsel argues, that a single-employer unit is presumptively
appropriate as the Board has frequently held in multiemployer cases.3 The presump-
tion of appropriateness of a single-employer unit may be overcome, however, as
General Counsel concedes, by evidence of a bargaining history on another basis.
The evidence of a broader bargaining history, however, need not relate only to the
particular group of employees sought to be represented on a broad multiemployer
basis but eilect may be given to a successful history of multtemployer bargaining
with respect to substantially all other employees of the Employer. It is here, I think,
that the defect in General Counsel's argument is found He emphasizes the absence
of history with respect to office clerical and sales and concludes that the presumption
has not been rebutted, therefore he determines that the Association unit of office
clerical and sales is not appropriate and the contract and recognition tainted because
it covers an inappropriate unit contrary to the Act 4 Implicit in his argument,
although he avoids taking a fiat position about it, is the contention that a single unit
of Dancker & Sellew's office clerical and sales employees is the only appropriate
unit in the circumstances of this case, and that the Union's lack of majority in that
unit makes its recognition illegal.
The argument of invalidity ignores what the Board considers relevant in determining
the appropriateness of single or multiemployer units for unrepresented groups of
employees, namely, the bargaining history affecting other employees of the Employer.
Tn Peninsula Auto Dealers Association of the California Association of Employers,
107 NLRB 56, for example, the petitioning union sought to represent a unit of all
automobile salesmen employed by some 50 members of an employer association.
An intervenor union argued for single-employer units of salesmen. The Association
agreed with the petitioner's position The record showed a history of successful
bargaining on an association basis for substantially all employees other than salesmen
The Board found an association unit of salesmen appropriate The Board pointed
out that although the intervenor sought a single-employer unit, the petitioner was
ready and willing to represent the salesmen on the same basis accorded other em-
ployees of the Employers and had made an adequate showing of interest in the larger
groan In addition, the Board added. the employers involved had indicated their
willingness to bargain for the salesmen as they had for other employees
The Board, on the other hand, as it acknowledged in Peninsula Auto Dealers,
has also found appropriate single units of unrepresented employees despite a history
of b"rgaining on a broader basis for other employees This practice, which was a
modification of an earlier rule, originated in Joseph F. Seagram & Sons, Inc., 101
NLRB 101, where the Board found a single-plant unit for guards despite a history
of bargaining on a multiplant basis. The modified rule was explained by the Board in
Peninsula Auto Dealers, as premised on the facts that the only union involved sought
to represent the employees on a single-plant basis and the difficulty of organizing
multiplant groups of employees
2 This agreement was executed in April 1962, and not in December 1961, as would appear
from its face
4 Rainbo Bread Co , 92 NLRB 181 . Arden Farms. et at. 117 NLRB 318
4 bfohawk Business Machines Corporation, 116 NLRB 248, cited by General Counsel,
involved an employer who joined an association and immediately placed his employees
under contract with a union without their consent It did not involve the question of
anpronriateneas of unit for unrepresented employees whose employer had been a member
of and bargained on an association basis for other employees for some years
651-492-63-von, 140-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The modified Seagram rule was followed by the Board in subsequent cases, but
analysis of them shows that where a single-plant or employer unit was established
in the face of a bargaining history on a wider basis for other employees, either the
only union involved sought a single unit, or there was no fixed pattern of multiplant
or multiemployer bargaining for the other employees, or that the unit sought for
the unrepresented employees by another union was not coextensive with the estab-
lished multiplant or multiemployer unit.5 The rule in Peninsula Auto Dealers has
not been abandoned and has, in fact, been cited by the Board with approval
recently 6
In the case at bar, even conceding, as General Counsel contends, that there is no
bargaining history for office clerical and sales employees on an association basis,7
there has been, nevertheless, a successful history of bargaining on an association basis
for substantially all the Employers' other employees since July 1, 1958.8 The office
clerical and sales unit in question is coextensive with the unit established by history
for the other employees, and the Union had a majority showing of interest in the
overall unit. In addition, the only union involved sought an association unit and
the Employers agreed to it. Even if another union had sought a single-employer
unit, the association umt would prevail, in my opinion, under the principles in the
cited cases I cannot conclude that the Company and the Union violated the law by
agreeing to the same bargaining unit as a foundation for their contract as the Board
would, in all probability, find for them after a public hearing in a representation
proceeding.9
I conclude that Respondent Dancker & Sellew, Inc , has not violated Section
8(a)(1), (2), and (3) of the Act, and that Respondent Union has not violated
Section 8(b)(1) (A) and (2) of the Act, by negotiating, executing, and maintaining
a collective-bargaining agreement covering office clerical and sales employees as
alleged in the complaint.
CONCLUSIONS OF LAW
1. Dancker & Sellew, Inc., New York, New York, is engaged in, and during all
times material herein was engaged in, commerce within the meaning of Section 2(6)
and (7) of the Act.
2 Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent did not violate the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the complaint in this matter be
dismissed in its entirety.
6 Rainbo Bread Co, 92 NLRB 181 (one union seeking single-employer unit and some
history of single-employer bargaining for unrepresented unit) ; Lownshury Chevrolet
Company. 101 NLRB 1752 (only union involved seeking single-employer unit of sales-
men) ; Fibreboard Products, Inc, San Joaquin Division, 102 NLRB 405 ('ingle union
unopposed in its claim for single-employer unit of office workers) ; Sovereign Productions,
Inc, and Ralston & Ripley Company, 107 NLRB 359 (Board followed Fibreboard Prod-
ucts Inc) ; Continental Baking Company, Wonder Bakery, 109 NLRB 33 (one union
seeking single unit) ; Macy's San Francisco, and Seligman & Latz, Inc., jointly, 1120
NLRB 69, 71-72 (no other union sought multiemployer unit) Arden Farms, et al, 118
NLRB 117 (unit sought not coextensive with multiemployer unit for others).
e The Los Angeles Statler Hilton Hotel, 129 NLRB 1349, 1351.
'The 1959 supplemental agreement was merely an agreement to recognize the Union
in the future for the employees in question, and it appears clear to me from Dancker's
testimony that it never was actually carried out as to Dancker & Sellew's employees as
far as substantive terms were concerned. Moreover, a mere recognition agreement, if it
were that, for office clerical and sales employees would not Itself establish a multi-
employer unit.
8 The inclusion of drivers in the 1962 warehouse agreement would appear to cover all
employees by contract.
9 There Is no contention that there was anything improper in joining office clerical and
sales employees in a single unit.