Hampton Merchants Association

National Labor Relations Board - Board Decisions

Mar 31, 1965

151 N.L.R.B. 1307 (N.L.R.B. 1965)

HAMPTON MERCHANTS ASSOCIATION, ET AL. 1307
Hampton Merchants Association ,' Marrud , Inc., Hampton Sales
Company, Inc., Wayne Appliance Corp. ,2 and All Members of
the Association 3 and Local 1199 , Drug and Hospital Employees
Union , Retail , Wholesale and Department Store Union, AFL-
CIO and Local 875, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America ,4 Party
to the Contract
Local 875, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Local 1199, Drug
and Hospital Employees Union , Retail, Wholesale and Depart-
ment Store Union , AFL-CIO and Hampton Merchants Asso-
ciation , Marrud , Inc., Hampton Sales Company, Inc., Wayne
Appliance Corp. , and All Members of the Association, Party
to the Contract . Cases Nos. 29-CA-42 (formerly 2-CA-9719)
and 29-CB-17 (formerly 2-CB-3906). ''larch 31, 1965
DECISION AND ORDER
On September 29, 1964, Trial Examiner James V. Constantine
issued his Decision in the above-entitled proceeding, finding that
Respondents had not engaged in unfair labor practices as alleged in
the complaint, and recommending dismissal of the complaint in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging Party filed excep-
tions to the Trial Examiner's Decision with a supporting brief by
the General Counsel, and the Respondents filed a brief in support
of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has,
delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this proceeding, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations only to the extent that they are
consistent with this Decision and Order.
Herein called Association.
a Herein called Wayne
3 The names of the Association members are listed in the Appendix referred to in the
Trial Examiner ' s Decision
I Herein called Local 375.
151 NLRB No. 127.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. THE UNFAIR LABOR PRACTICES
The Trial Examiner found, and we agree, that Sam Samarel, an
agent of Respondent Local 875 who was employed by Wayne I and
Glendale Appliance Corporation, herein called Glendale, engaged in
threats, restraint, and coercion by telling employees Frank Calderon,
Fran Sartor, Albert L'Hommedieu, Caroline Polsinelli, Christina
Wagenhauser, and about four or five other employees in late October
and early November 1963, that they had to sign union membership
application cards and checkoff authorization cards if they wished to
work in the store. However, the Trial Examiner found that neither
Local 875 nor the Employees were responsible for these statements
because they were beyond the scope of Samarel's authority as an
agent of Local 875 and Samarel was not a supervisor for Wayne or
Glendale. We disagree for the following reasons.
As indicated above, the Trial Examiner found that Samarel was
an agent of Local 875, because Nick Emanuele, its business agent,
appointed him for the purpose of soliciting membership in that
Union, and James Amedeo, its president, who was aware of Samarel's
activities on behalf of Local 875, did not repudiate or disavow them.
The Act holds a labor organization responsible for the unlawful con-
duct of its agent just as it holds an employer answerable for what
the latter's agent does. It is a familiar rule of agency that a prin-
cipal is responsible for the acts of its agent done in furtherance of
the principal's interest and within the scope of the agent's general
authority, even though the principal may not have authorized the
specific act in question. It is enough if the principal has empowered
the agent to represent it in the general area in which the agent acted.
Thus, Section 2(13) of the Act provides that in determining the
agent's authority, "the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall not
be controlling." Under this test for determining responsibility of
the principal, we find, contrary to the Trial Examiner, that Samarel's
conduct and activities in soliciting signatures from employees were
within the scope of his authority as agent of Local 875.6 Accord-
ingly, we find that Local 875 through the statements of its agent
Samarel coerced and restrained the aforementioned 10 employees in
violation of Section 8(b) (1) (A) of the Act.
As already stated, the Trial Examiner also found that Samarel's
statements were not ascribable to the Employers because his duties
as overseer of the porters and as receptionist for the Association did
not constitute him a supervisor. However, the record reveals that
is Wayne and its licensees , which operated departments at the Hampton Discount Center
in West Islip, New York, formed the Association to represent them In collective bargaining.
° See United Electrical , Radio & Machine Workers of America, Local 914 (American
Rubber Products Corporation ), 106 NLRB 1372, 1379
HAMPTON MERCHANTS ASSOCIATION, ET AL. 1309
Samarel during the period when he made the coercive statements
occupied a role as a representative of management which closely
identified him with the Association and its members. Thus, Samarel,
who according to General Manager Brisk was brought in by manage-
ment to help get the store open, was stationed in the store's foyer,
handed out job applications, answered inquiries concerning available
jobs, directed outsiders to persons or places in the store, directed
applicants to departments where jobs were available and at times
personally escorted them to various departments inside the store,
and handed out insurance forms to employees. Ernest F. Flesch,
manager of the cosmetics department, testified that Samarel to whom
he "was always going ... and asking for things" told him that "in
all likelihood" there would be a union in the store. That Samarel
was a trusted representative of management is also shown by the
action of Brisk in consulting with him to ascertain whether the
signatures on the cards submitted to management were those of
employees who were hired to work in the store.
It is clear from the foregoing that Samarel by his conduct held
himself out to be and was regarded as a management representative
for the members of the Association in matters pertaining to hiring,
employment, and personnel policies and problems. We therefore find
that Hampton Sales Company, Inc., Wayne, and the Association and
its members were fully accountable for Samarel's statements to the
10 employees and violated Section 8(a) (1) of the Act by interfering
with, restraining, and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.7
The Trial Examiner further found that Samarel's unlawful state-
ments, which so far as the evidence adduced shows, were directed to
but 10 of the 129 employees in the unit, and did not destroy or
seriously taint or infect the Union's majority. We disagree with his
conclusion.
The record shows that in addition to making the coercive state-
ments Samarel, a representative and an agent of management, solic-
ited and gave membership application cards and checkoff authori-
zation cards to 40 to 70 employees and turned over at least 40 signed
cards to the Union.8 Considering the substantiality of Samarel's
solicitation activities along with his coercive statements to employees,
we think it clear, and we find, that the totality of his conduct, for
which the Employers are accountable, was such as to constitute un-
lawful assistance and support, violative of Section 8(a) (1) and (2)
7 See Armstrong Tire & Rubber Company, Tire Test Fleet Branch, 111 NLRB 708,
717, enfd. 228 F. 2d 159 (C A 5)
8 Although Business Agent Emanuele stated in his affidavit to the General Counsel that
Samarel returned 70 cards to him, Emanuele was uncertain at the hearing as to the exact
number and finally estimated that of the cards distributed and returned 'by Sainarel 40
were signed.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, and of a nature sufficiently serious to destroy any right
the Union might otherwise have had to claim the status of a freely
chosen majority representative.9
We also find that Employers' recognition of and execution of a
collective-bargaining agreement with the unlawfully assisted Union
constituted further unlawful assistance and support to the Union as
well as interference with Section 7 rights of employees, violative of
Section 8(a) (1) and (2) of the Act.
Also, we find that by executing a contract containing a union-
security agreement with the unlawfully assisted Union, and by main-
taining and enforcing that agreement, the Employers have discrimi-
nated against employees and interfered further with their Section 7
rights, in violation of Section 8(a) (3) and (1) of the Act.
Finally, we find that by entering into an exclusive bargaining
contract with the Employers containing a union-security agreement
at a time when it was not lawfully entitled to recognition as exclu-
sive bargaining agent, and by maintaining and enforcing that union-
security agreement, Local 875 violated Section 8(b) (1) (A) and (2)
of the Act.
IT. THE EFFECT OF THE UNFAIR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III of the
Trial Examiner's Decision and in section I of the instant Decision,
occurring in connection with the operations of the Respondent Asso-
ciation and its members described in section I of the Trial Exami-
ner's Decision, 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.
III. THE REMEDY
Having found that the Respondent Union and the Respondent
Employers have engaged in unfair labor practices, we will order
that the Respondents cease and desist therefrom and take certain
affirmative action designed to effectuate the purposes of the Act.
Having found that the Respondent Employers violated Section
8 (a) (2) and (1) of the Act, inter alia, by assisting and supporting,
and by entering into, an unlawful agreement with Respondent Union,
we shall order that the Respondent Employers cease maintaining and
enforcing their unlawful agreement with the respondent Union and
that they withdraw and withhold recognition from the Respondent
Union unless and until the Union shall have been certified by the
Board as the exclusive representative of the employees.
9 See Sinko, Manufacturing and Tool Company , 149 NLRB No 21; Continental Distilling
Sales Company, etc ., 145 NLRB 820; Salmirs Oil Company, 139 NLRB 25.
HAMPTON MERCHANTS ASSOCIATION, ET AL. 1311
We have found further that the collective-bargaining agreement
which the Respondent Employers and the Respondent Union executed
on November 4, 1963, was entered into at a time when the Union did
not represent an uncoerced or unassisted majority of the Employers'
employees and the Respondents had no lawful right to condition
employment upon compliance with the union-security provisions of
such agreement. In order fully to remedy the unfair labor practices
found herein, and to establish an atmosphere in which the employees
may exercise the right to select or reject a bargaining representative,
we shall order the Employers and the Union jointly and severally
to make whole all employees, present and former, for dues and other
moneys unlawfully exacted from them as a result of the aforesaid
unlawful agreement, by reimbursing all such employees for all such
dues and moneys paid by or withheld from them with interest since
November 4, 1963, computed in the manner set forth in Seafarers
International Union of North America, Great Lakes District, AFL-
CIO, 138 NLRB 1142.
In view of the nature and extent of Respondents' unfair labor
practices, we find that there exists the danger of commission of simi-
lar and other unfair labor practices. Accordingly, we find it neces-
sary, in order to effectuate the purposes of the Act, to order that
Respondents cease and desist from infringing "in any other manner"
upon the rights guaranteed to employees by Section 7 of the Act.
Upon the. foregoing findings of fact and the entire record in this
proceeding, we make the following :
CONCLUSIONS OF LAw
1. Respondent Employers are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 1199, Drug and Hospital Employees Union, Retail,
Wholesale and Department Store Union, AFL-CIO, and Local 875,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, are labor organizations within the meaning
of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing their employees
in the exercise of rights guaranteed in Section 7 of the Act, Respond-
ent Employers engaged in unfair labor practices within the meaning
of Section 8(a) (1) of the Act.
4. By contributing unlawful assistance and support to Local 875,
Respondent Employers engaged in unfair labor practices within the
meaning of Section 8(a) (2) of the Act.
5. By restraining and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent Union engaged in
unfairE'labor practices within the meaning of Section 8(b) (1) (A)
of the Act.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By entering into a union-security contract conditioning employ-
ment upon membership in Local 875, an unlawfully assisted union,
and by maintaining and enforcing that agreement, thereby encourag-
ing membership in Local 875, the Respondent Employers engaged
in unfair labor practices within the meaning of Section 8(a) (3) and
(1) of the Act and the Respondent Union engaged in unfair labor
practices within the meaning of Section 8(b) (2) and (1) (A) of
the Act.
The aforementioned unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders :
A. Respondents, Hampton Merchants Association, Marrud, Inc.,
Hampton Sales Company, Inc., Wayne Appliance Corp., and all
members of the Association, West Islip, New York, their officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining, and coercing their employees in
the exercise of rights guaranteed to them by Section 7 of the Act by
telling employees they must join Local 875, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, as a condition of obtaining
or retaining employment, except as authorized by Section 8(a) (3) of
the National Labor Relations Act, as amended.
(b) Giving unlawful assistance or support to Local 875, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, by recognizing
as exclusive bargaining agent or entering into a contract with any
such labor organization at a time when it does not represent an
uncoerced majority of the employees of the Employers in an appro-
priate unit.
(c) Recognizing the above-named labor organization as the repre-
sentative of any of their employees for the purpose of dealing with
the Employers concerning wages, rates of pay, hours of employment,
or other conditions of employment, unless and until such labor or-
ganization shall have been certified by the Board as the exclusive
representative of their employees in an appropriate bargaining unit.
(d) Giving effect to the collective-bargaining agreement executed
with the above-named labor organization on November 4, 1963, or
to any extension, renewal, or modification thereof, provided, however,
that nothing herein shall require the Employers to vary or abandon
HAMPTON MERCHANTS ASSOCIATION, ET AL. 1313
any wage, hour, seniority, or other substantive feature of their
relationship with their employees which the Employers have estab-
lished in the performance of such agreement, or to prejudice the
assertion by their employees of any rights they may have thereunder.
(e) Unlawfully requiring employees to join or execute checkoff of
dues and other moneys to Local 875, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, in
violation of Section 8(a) (3) of the Act.
(f) Encouraging membership in Local 875, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, in violation of Section 8(a) (3) of the Act.
(g) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the rights guaranteed 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 Section 8(a) (3) of the
National Labor Relations Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Withdraw and withhold all recognition from Local 875, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the representative of any of their employees,
unless and until such labor organization shall have been certified by
the Board as such representative.
(b) Reimburse all employees, present and former, for dues and
other moneys unlawfully exacted under their illegal contract with
Local 875, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, together with interest at the
rate of 6 percent per annum, the aforesaid Respondents to be jointly
and severally liable therefor with Local 875, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, all in the manner set forth in the section of the Board's
Decision and Order entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of reimburse-
ment under the terms of this Order.
(d) Post at the Hampton Discount Center in West Islip, New
York, copies of the attached notice marked "Appendix A." 10 Copies
10 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 "a Decision and Order," the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
783-133-66-vol. 151-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, to be furnished by the Regional Director for Region
29, shall, after being duly signed by an authorized representative of
the Respondent Employers, be posted by them for a period of 60
consecutive clays thereafter, in conspicuous places, including all
places where notices to their employees are customarily posted. Rea-
sonable steps shall be taken by Respondent Employers to insure that
said notices are not altered, defaced, or covered by any other
material.
(e) Post at the same places, and under the same conditions as set
forth in 2(d) above, as soon as they are forwarded by the Regional
Director, copies of the attached Respondent Union's notice marked
"Appendix B."
(f) Mail to the Regional Director for Region 29 signed copies of
the attached notice marked "Appendix A" for posting by the
Respondent Unions.
(g) Notify the Regional Director for Region 29, in writing, within
10 days from the date of this Order, what steps Respondent Em-
ployers have taken to comply herewith.
B. Respondent Local 875, International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America, its officers,
agents, and representatives, shall :
1. Cease and desist from :
(a) Restraining or coercing employees of Respondent Employers
in the exercise of the rights guaranteed in Section 7 of the Act by
telling employees they must join the Union as a condition of obtain-
ing or retaining employment, except as authorized by Section 8(a)
(3) of the Act.
(b) Acting as the collective-bargaining representative of any em-
ployees of the Employers unless and until the Board shall certify
it as such representative.
(c) Causing or attempting to cause the Employers, their officers,
agents, successors, or assigns, to discriminate against employees or
prospective employees in violation of Section 8(a) (3) of the Act.
(d) Giving effect to the agreement with the Employers dated
November 4, 1963, or any modification, extension', renewal, or supple-
ment thereto.
(e) In any other manner restraining or coercing employees of
Respondent Employers in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that said rights may be
affected by an agreement requiring membership in a labor organiza-
tion, as a condition of employment, as authorized by Section 8(a) (3)
of the National Labor Relations Act, as amended.
HAMPTON MERCHANTS ASSOCIATION, ET AL. 1315
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Reimburse each of the former and present employees of the
Employers for dues and other moneys unlawfully exacted under its
illegal contract with the Employers, together with interest at the rate
of 6 percent per annum, the aforesaid Respondent Union to be
jointly and severally liable therefor with the Employers, all in the
manner set forth in the section of the Board's Decision and Order
entitled "The Remedy."
(b) Post at its offices and meeting halls in Woodside, Queens, New
York, copies of the attached notice marked "Appendix B." 11 Copies
of said notice, to be furnished by the Regional Director for Region
29, shall, after being duly signed by an authorized representative of
Respondent Union, be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its members
are customarily posted. Reasonable steps shall be taken by Respond-
ent Union to insure that said notices are not altered, defaced, or
covered, by any other material.
(c) Post at the same places, and under the same conditions as set
forth in 2(b) above, as soon as they are forwarded by the Regional
Director, copies of the attached Respondent Employers' notice
marked "Appendix A."
(d) Mail to the Regional Director for Region 29 signed copies of
the attached notice marked "Appendix B" for posting by the Re-
spondent Employers.
(e) Notify the Regional Director for Region 29, in writing, within
10 days from the date of this Order, what steps Respondent Union
has taken to comply herewith.
11 see footnote 10, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant-to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT through our representatives or agents interfere
with, restrain, or coerce our employees by soliciting our employ-
ees to join Local 875, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or by mak-
ing statements telling them they must join Respondent Union or
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other labor organization as a condition of obtaining or
retaining employment, except as authorized by Section 8 (a) (3)
of the Act.
WE WILL withdraw and withhold all recognition from Local
875, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America as the collective-bargaining
representative of our employees, unless and until so certified by
the National Labor Relations Board.
WE WILL NOT give effect to the collective-bargaining agreement
executed on November 4, 1963, or to any modification, extension,
renewal, or supplement thereto, or to any checkoff in favor of
the above-named labor organization. •
WE WILL NOT assist or contribute support to the above-named
or any other labor organization.
WE WILL NOT encourage membership in Local 875, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, in violation of Section 8(a) (3) of the Act.
WE WILL reimburse all former and present employees for dues
and moneys unlawfully exacted from them with interest thereon
at 6 percent per annum, being jointly and severally liable there-
for with Local 875, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed in
Section 7 of the Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization, except
as authorized by Section 8(a) (3) of the Act.
HAMPTON MERCHANTS ASSOCIATION, MARRUD, INC.,
HAMPTON SALES COMPANY INC., WAYNE APPLI-
ANCE CORP., AND ALL MEMBERS OF THE ASSOCIATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 16 Court Street, Fourth Floor, Brooklyn, N.Y., Telephone
No. 212-596-5386, if they. have any questions concerning this notice
or compliance with its provisions.
HAMPTON MERCHANTS ASSOCIATION, ET AL . 1317
APPENDIX B
NOTICE TO ALL EMPLOYEES OF HAMPTON MERCHANTS ASSOCIATION,
MARRUD, INC., HAMPTON SALES COMPANY, INC., WAYNE APPLIANCE
CORP., AND ALL MEMBERS OF THE ASSOCIATION, AND TO ALL MEMBERS
OF LOCAL 875, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our members that :
WE WILL NOT through our agents restrain or coerce employees
of Hampton Merchants Association, 'Marred, Inc., Hampton
Sales Company, Inc., Wayne Appliance Corp., and all members
of the Association, by telling them that they must join the Union
as a condition of obtaining or retaining employment, except as
authorized by Section 8(a) (3) of the Act.
WE WILL NOT act as the bargaining representative for the
employees of the above-named employers, for the purpose of
dealing with them concerning wages, hours, or other conditions
of employment, unless and until we have been certified by the
National Labor Relations Board as such representative.
WE WILL NOT give any effect to the collective-bargaining agree-
ment executed on November 4, 1963, or to any modification,
extension, renewal, or supplement thereto.
WE WILL NOT cause or attempt to cause the above-named
Employers to discriminate against their employees in violation
of Section 8(a) (3) of the Act.
WE WILL reimburse all former and present employees of the
above-named Employers for dues and moneys unlawfully exacted
from them, with interest thereon at 6 percent per annum, being
jointly and severally liable therefor with the above-named
Employers.
WE WILL NOT in any other manner restrain or coerce employees
of Respondent Employers in the exercise of the rights guaran-
teed in Section 7 of the Act.
LOCAL 875, INTERNATIONAL BROTHERHOOD
or TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional
Office, 16 Court Street, Fourth Floor, Brooklyn, N.Y., Telephone
No. 212-596-5386, if they have any questions concerning this notice
or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On March 31, 1964, the General Counsel of the National Labor Relations Board,
by the Regional Director for Region 2, New York, New York, issued his consolidated
complaint . This complaint names as Respondents Local 875, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America in Case
No. 2-CB-3906, and certain employers ( listed in Appendix A attached to this Deci-
sion) in Case No. 2-CA-9719. It is based on charges and amended charges filed as
follows: Local 1199, Drug and Hospital Employees Union, Retail, Wholesale, and
Department Store Union, AFL-CIO, filed separate charges against the employers
(Case No. 2-CA-9719) and Local 875 (Case No. 2-CB-3906) on December 19.
1963. Amended charges were filed in both cases on March 18, 1964. In substance
the complaint alleges that Respondent Local 875 has violated Section 8 (b) (1) (A)
and (2), and Respondent Employers have violated Section 8(a)(1), (2) and (3),
and that such conduct affects commerce within the meaning of Section 2(6) and (7),
of the National Labor Relations Act, herein called the Act. Respondent Local 875
individually and the employer Respondents collectively have each filed an answer
admitting some facts but denying that any unfair labor practices were committed.
Pursuant to due notice a hearing was held before Trial Examiner James V. Con-
stantine on May 18 to 22 and June 22,'1964, at New York, New York. All parties
were represented at, and participated in, the hearing, and were afforded an oppor-
tunity to offer evidence, to examine and cross-examine witnesses, to present oral
argument, and to submit briefs. Respondents and the General Counsel have filed
briefs. At the hearing the complaint was amended to delete Floyd Bennet Drug
Service, Inc., "as one of the Respondent licensees."
Upon the entire record in this case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
This case involves a department store operated as a discount center. That discount
center, housed in a building, herein called the Center or the Store, is located in West
Islip, New York, and is known as Hampton Discount Center. Hampton Sales Com-
pany, Inc , a New York corporation, is engaged in selling electrical appliances, tele-
vision sets, and related goods and products. Glendale Appliance Corp., a New York
corporation, is engaged at the Center as a licensee in selling at retail electrical appli-
ances, television sets, and related products. Hampton owns all the stock of Glendale
and of Wayne Appliance Corp., a New York corporation. Wayne runs the Center
and, as such, also licenses others to operate various retail departments of the Center
as licensees of Wayne. Details of the licensing agreements are narrated in section
III, below.
Wayne and its licensees at the Center are members of an employer's association
known as Hampton Merchants Association, an unincorporated association which per-
forms the function of negotiating and administering on behalf of its employer mem-
bers collective-bargaining agreements with labor organizations representing employees
of employers operating at the Center. The names of the licensees are enumerated
in the caption and Appendix A of the complaint and need not be recapitulated here.
Employees of Hampton Sales Co., Inc., and of its subsidiary or affiliated corpora-
tions, are paid by means of individual checks drawn on a bank account of Hampton
Sales Co, Inc. Each subsidiary pays to Hampton Sales Co , Inc., by check, a sum
necessary to cover the above total payroll for its employees However, each sub-
sidiary (a) makes payments by its own checks and submits reports to the various
governmental authorities for unemployment insurance, social security, and withhold-
ing taxes; (b) deducts union dues pursuant to checkoffs; and (c) pays by its own
check union dues checked off and welfare fund payments.
Hampton, Wayne, and Glendale, whom I find to be a single employer, during the
past year received gross revenues in excess of $500,000 and purchased goods and
materials valued in excess of $50,000 directly from points outside the State of New
York. I find that Hampton, Wayne, and Glendale are engaged in commerce within
HAMPTON MERCHANTS ASSOCIATION, ET AL. 1319
the meaning of Section 2(6) and (7) of the Act. Since Wayne and Glendale are
members of Hampton Merchants Association, I find that this association and all its
members are by reason thereof engaged in commerce within the meaning of Section
2(6) and (7) of the Act. Westside Market Owners Association, et al, 126 NLRB
167, 170. Hence, it becomes unnecessary to consider the commerce data of other
licensee employer members of the Association named as Respondents herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 875, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , and Local 1199 , Drug and Hospital Employees Union,
Retail, Wholesale and Department Store Union , AFL-CIO, are labor organizations
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case involves unfair labor practices alleged to have occurred in connection
with the opening of the Hampton Discount Center, a department store composed of
several departments many of which are managed and run by licensees of the operator
of the Center. Each licensee enjoys that status by reason of a so-called license agree-
ment executed by it and the operator of the Center, called the licensor. Wayne
Appliance Corp is the licensor in all such license agreements. The terms of said
license agreements, except for minor variances not here material, are identical.
Pertinent provisions in said license agreements provide that each licensee (a) agrees
to join and maintain membership in any "businessmen's organization" organized,
formed, or sponsored by the licensees, which "association shall have the right to
negotiate a labor agreement for all the employees employed" at the Center, (b) agrees
to comply with the terms and conditions of any labor agreement so negotiated by
such association; (c) consents that if a labor dispute with it or its related company
i esults in a strike, stoppage, slowdown, picketing, or "interference with normal oper-
ation" of the Center, the licensor may terminate the license; (d) vouchsafes that it
is not a party nor subject to a collective-bargaining agreement covering its employees
at the Center; and (e) agrees to display only the licensor's name on sales slips, pack-
aging, etc., so as "to give the ostensible appearance of being part of a single depart-
ment store operated by Licensor under Licensor's name or trade name."
A clause in the license agreement requires the licensee to abide by "rules and regu-
lations" adopted or to be adopted by the licensor incident to the operation or
management of the Center or the licensee's department. Rule 3 prescribed by the
licensor provides that Employees shall wear such distinctive clothing as the licensor
may designate; the hiring and retention of each licensee's employees shall be subject
to the licensor's approval; and each licensee shall become a member of an association
composed of the Center's licensees and comply with the terms of any labor agreement
negotiated by said association. Rule 8 provides that "All employees of the Licensee,
when so requested by Licensor, if lawful, shall be included with all other employees
of all the Licensees in one single master union contract and Licensee agrees to execute
such master contract and to be governed by the terms thereof."
The licensees at Hampton Discount Center are enumerated in the complaint and
need not be reiterated seriatim here. License agreements were executed about 3 or 4
months prior to the opening of the Center on November 5, 1963 1
On October 25, all the licensees, upon invitation sent by the licensor, met and
organized an association known as Hampton Merchants Association This meeting
was "opened" by William Rifkin," treasurer of Hampton Sales Company, Inc, Glen-
dale Appliance Corp , and Wayne Appliance Corp. After explaining the purpose of
the meeting, Rifkin intioduced Louis Basis, a labor relations consultant. Basis "pro-
posed" that an association be formed and that it be authorized to represent "all
departments in dealing with any union that might organize the Center." This sug-
gestion was adopted. Rifkin was then elected president of, and Basis was "retained
as labor relations representative for," the Association. Although the fee of Basis
is paid by the licensor of the Center, the licensees actually pay it in that they "all
contribute proportionate to the size of their operation toward making up this fee."
No other meetings of the Association have been held Nor does the Association
have a written constitution or bylaws However, at the meeting of October 25,
i All dates refer to 1963 unless otherwise noted herein
2 Sometime in September Rifkin , accompanied by Air Silverman , an associate , discussed
with Louis Basis the opening of the Center. Basis , a labor relations consultant iepiesent-
ing management , was retained Basis recommended calling the meeting of October 25.
Rifkin asked Basis to attend this latter meeting
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rifkin distributed authorization cards. Wayne Appliance signed such a card on
October 28. Twenty-three licensees and the licensor have signed individual docu-
ments authorizing Hampton Merchants Association to represent them as collective-
bargaining agent in dealing with any union representing employees at the Center.
These documents also state that the subscriber thereto agrees to be bound by any
agreement entered into between the Association and any union representing its
employees. Most of them were signed in late October. The earliest is dated Octo-
ber 25, 1963, and the latest is dated February 13, 1964
In August, Wayne Appliance appointed Selig Brisk as general manager of the
Center and directed him to oversee its remodeling. At that time he supervised reno-
vations or repairs of the building and interviewed prospective licensees. About 10
days before November 5, the licensees commenced hiring employees. Wayne Appli-
ance, as licensor, rendered assistance to the licensees in the recruitment of employees,
including the insertion of advertising in newspapers and acceptance of applications
for employment. Each application was referred by Wayne to that licensee consid-
ered most likely to be interested in the applicant's qualifications. The actual hiring
was then performed by the individual licensees after interviewing applicants
Applicants who sought employment entered the building through a front door and
went into a foyer where application cards could be found on a desk. They either
took a card from the desk or received one from an employee there. After completing
a card, the applicant handed it to Brisk or some other representative of the licensor
who usually remained in the immediate area. During this time Wayne Appliance
also hired employees,3 selecting them from among the candidates who submitted
application cards.
A representative of one unidentified union was at the entrance to the store orga-
nizing employees. It was not Local 875. A representative from Local 875 handed
out union cards in the foyer and in the front of the store.4 Although no one from
Local 875 requested permission therefor from him, Brisk did not object to this prac-
tice. Employee Sam Samarel also handed out Local 875 union application cards in
the store for a few days before and on October 31, as hereinafter described. The
status of Samarel is a key issue in the case. Hence, it is desirable at this point to
summarize his functions and duties.
Sam Samarel started working at the Center a week before it opened on Novem-
ber 5. After the Center opened he served as a salesman for Glendale Appliance
Corp. However, during the period preceding November 5, he performed two tasks:
(a) he acted as a chief porter who gave instructions to the other porters, and (b) he
served as a sort of receptionist at the front of the store. He is an hourly paid
employee. As a porter he was an "overseer of the porters," having been so desig-
nated because he had more experience as such; but in addition he did cleanup jobs
and received merchandise both for Glendale Appliance and also for other licensees
at the store. As receptionist, he directed outsiders to the proper designated person
or place in the store. Thus he gave applicants for work information and, if neces-
sary, application cards, and often brought such applicants to licensees to be inter-
viewed. On one occasion, about October 29, when Flesch, the manager of the
cosmetics department, started to hire, Flesch asked someone at the stores whether
it had any labor policies applicable to licensees. He was told that the former tenants
of the building had recognized a union, that this union in all probability would be
in the store, that this union "would allow" a manager and an assistant manager
"who would not be a part of the union," and that employees would have 30 days in
which to join the union. But in interviewing and hiring applicants Flesch did not
mention or discuss any union with applicants for employment except that he told one
female applicant that if she obtained a managerial position she would not be "respon-
sible" to join the union.
Persons hired by Flesch were given employment information and tax withholding
forms to fill out. One or two of such persons, in handing him these forms, also gave
him union membership application cards. Flesch informed these employees that he
had nothing to do with them and refused to accept the union cards.
During a period of about 10 days prior to November 5, when the Center com-
menced operations, Basis received four or five telephone calls from various unions
9 Office help , maintenance men, porters , and security men
'During some of this time a security guard was posted at the door to challenge un-
known persons seeking to enter. If they had no business in the store, he refused them
admittance ; if they did, he gave them permission to pass on. Emanuele, the Local 874
organizer at the store, sometimes eluded the guard and proceeded to the foyer.
5Flesch had difficulty in recalling whether it was Samarel or Brisk. He finally thought
it was Samarel.
HAMPTON MERCHANTS ASSOCIATION, ET AL. 1321
regarding the making of a contract with the Center. Basis replied to each that no
employees had yet been selected, but that the Center would deal with any union
which represented them.
A. Activities on behalf of Local 875
Business Agent Emanuele gave a large number of cards to Samarel as part of the
campaign to obtain members for Local 875 among the employees at the Center.
Samarel returned a total of 40 signed cards to Emanuele. Each day Emanuele turned
into the office of Local 875 all signed cards in his possession, including those handed
to him by Samarel. Some of those obtained by Emanuele were obtained inside the
store.
Samarel was selected to assist in the drive because he had been a member of Local
875 for some time. He was recommended to Emanuele by another business agent
of Local 875 at Garden City, where Samarel had been employed and where an affili-
ate of Wayne Appliance operated a similar discount department store. When
Samarel was transferred from Garden City to West Islip to work for Wayne Appli-
ance at the Hampton Discount Center, he informed Local 875 of the fact that a new
department store was being established.
One employee, Frank Calderon, about 2 weeks before November 5, obtained an
application form for employment from the top of a desk in the store's foyer and,
after completing it, handed it to Sam Samarel who at the time was talking on a tele-
phone on another desk in the foyer. Sam then took Calderon and his companion,
Al, who also handed Sam a filled out form, to the cosmetics department where he
presented the two applicants, together with their forms, to the licensee's manager,
a Mr. Lerner. Following a brief interview, they were hired by Mr. Lerner As
Calderon left for supper 3 to 5 days later Samarel gave him 6 two union cards 7 tell-
ing him that Calderon had to sign them or he would not be able to work the following
day. When he came back Calderon returned a completed, signed card to Samarel.
Fran Sartor was hired on October 29 to work in the cosmetics department by
Manager Flesch. As she left by the front door to go to supper on November 1,
about 6 p.m , one Nick Emanuele, a business agent of Local 875, stationed in the
area, asked her to sign a union card When Sartor disclaimed interest in a union,
Emanuele replied that "you have to." Samarel was about 2 feet away. Samarel
assisted Emanuele in organizing the Center's employees. When Sartor asked Samarel
if she had to join Local 875, he replied that she had to join to work in the store
"because it was a union shop." Thereupon Sartor signed a card The card executed
by Sartor actually consisted of two cards stapled together. One was a dues checkoff
authorization while the other constituted an application for membership in Local 875.
Ethel DeVoe was hired on October 31, in the ladies' wear department. On the
next day as she was leaving the building someone gave a union card to her just inside
the front door and asked her to sign a union card. It consisted of the usual two parts.
She brought it home that evening, signed it, and returned it the following morning,
November 2.
Albert L'Hommedieu was hired on October 28 to work in the cosmetics depart-
ment. Two days later Samarel told him that he had 8 to sign a union card or other-
wise he could not work in the store At the same time Samarel gave L'Hommedieu
a card consisting of the usual two parts. After signing the two cards L'Hommedieu
gave them to Flesch, the manager of the department, along with his application for
employment and social security and tax information forms. However, no one told
L'Hommedieu to give the union cards to Flesch and Flesch did not ask for them.
Flesch returned the union cards to L'Hommedieu.
Caroline Polsinelli was hired on October 29 by Flesch to work in the cosmetic
department. As she left for home about 3 days later she signed two union cards near
the entrance to the store. She received these from Samarel who told her 9 that if
she did not sign she would not be able to work in the store.
6 Calderon added that Samarel distributed similar cards to "everybody" I do not
credit this since Calderon was in no position to observe everybody
7 One card was for checkoff and the other applied for membership in Local 875
1In his affidavit to the General Counsel, L'Hommedieu swore that Samarel told him to
"fill out the cards and return them to me "
On cross-examination Polsinellt testified that Samarel asked her to "please sign the
cards," and that after signing the cards, she asked Samarel if she had to sign and he
replied that unless she did she could not work there. She also testified that she signed
of her own free will. She also signed again a few months later, but the circumstances
thereof are not here recited because they occurred after the execution of the contract
on November 4
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Christina Wagenhauser was hired on October 29 in the cosmetic department after
completing an employment application form handed to her by Samarel about 2 days
before When Wagenhauser reported for an interview Samarel handed her two union
cards 10 which he told her had to be filled out. Immediately following the interview
Wagenhauser was hired. About a half hour later Samarel told a group of four or
five, among whom Wagenhauser was included, the cards would have to be filled out
or they could not work in the store. Thereupon Wagenhauser and the others filled
out cards and returned them to Samarel
The foregoing is a summary of Wagenhauser's testimony. I credit her. Neverthe-
less, I have not overlooked the following. (a) she became confused on cross-exami-
nation, (b) she gave at least one contradictory statement in her affidavit to the
General Counsel, and (c) she insisted that her present recollection 11 of events was
better than on February 27, 1964, when she signed the affidavit.
B. The majority of Local 875
Emanuele started the organizing campaign about October 28. Local 875 con-
tinued to solicit membership therein until the end of November As noted above
Emanuele daily turned over to the Local 875 office each day's receipt of cards. Each
card, as mentioned above, consisted of two parts, i.e., one for membership and one
for dues checkoff. At the Local 875 office Emanuele daily turned over the cards to
the office manager, who, in turn, placed them in a manila envelope and returned then.
to Emanuele. On the second day Emanuele informed his superiors at Local 875 that
the manila envelope contained 125 signed cards. After 125 cards had been placed in
the envelope, Emanuele gave it to the office manager who prepared a "regular poit-
folio." President Amadeo then asked the office manager, Mr. Abella, for the cards
and directed the latter to type up a "form letter."
Charles R. Abella is office manager of Local 875. Pursuant to his usual proce-
dure, Abella daily received membership application cards from Emanuele, then made
a list of the names on sheets of paper. After receiving the second batch he wrapped
these sheets around the cards. Then he handed these wrapped up cards to President
Amadeo of Local 875 the last week of October. Abella estimated that 120 different
names appeared on the list and observed that all the cards, which came from employ-
ees of Hampton Merchants Association, were dated October 1963. He did not see
the cards again after he passed them on to President Amadeo
James Amadeo is president of Local 875. At the time he made a demand on Louis
Basis, Amadeo counted about 130 membership application cards. Amadeo testified
that he received both checkoff authorization cards and membership application cards
from Abella, whereas Abella testified that he gave only membership application cards
to Amadeo. As noted herein, Basis showed the cards to Brisk and then returned
them to Amadeo.
C. The demand of Local 875 for ieco,enition
On October 30 Amadeo, president of Local 875, telephoned Louis Basis that Local
875 "claimed to have organized the employees in the" Center 12 Basis requested a
letter to that effect and also agreed to meet Amadeo the next day at the Centel
A letter dated October 30, was mailed by Local 875 to Hampton Sales Co , claiming
that the Union represented "a majority of the workers" and requesting a meeting to
discuss recognition and negotiations for a contract. Basis did not see this letter until
about November 4
On October 31, Basis met with Amadeo at the Center. Amadeo repeated his claim
to reoiesent the employees and handed over to Basis "the cards " Thereupon Basis
left the area to confer with Selig Brisk, the licensor's general manager of the Center,
"about the cards" and to check them with Brisk. In this talk with Basis, Brisk men-
tioned that he was aware that "union activity" took place which "resulted in these
cards" and that he was aware of the presence of union organizers "around the place "
Before Basis left, Brisk called over and introduced to Basis one Sam Samarel, a
former employee of the appliance department in Garden City who was at that time
employed by a licensee of the Center Samarel is a member of Local 875. Basis
asked Samarel whether he was "acquainted" with the names on the cards. Samarel
10 Brisk was in the area "busy on the phones" at the time
11 May 20, 1964
19 After receiving Amadeo's said demand for recognition on October 30, Basis notified
Rifkin, as president of the Association, of this and informed him of the appointment of
October 31 with Amadeo. Rifkin, as such president, approved this
HAMPTON MERCHANTS ASSOCIATION, ET AL. 1323
replied that he was and that he had obtained some of the signatures thereto. Basis
concluded that, since the Center employed about 150 persons,13 Local 875 had a
majority thereof.
Satisfying himself that the cards were valid, 14 Basis returned to Amadeo to discuss
the question of negotiations and an agreement. He asked Amadeo what kind of con-
tract he had in mind. Amadeo replied that he was thinking of one similar to that
"in Garden City or some of our other places." Basis then suggested that he, Basis,
personally prepare a contract based on an existing one between a sister local of 875
and another discount center because he had extensive experience in discount center
contract clauses. Amadeo agreed. Basis and Amadeo then agreed to meet on Novem-
ber 4 to negotiate an agreement. During this conversation Amadeo referred to con-
tracts by Local 875 with Hampton Sales Company's stores in Garden City and New
York City, and that because of such contracts, Local 875 was interested in the Center
Basis testified that the union cards were composed of two parts: one part per-
tained to a checkoff authorization and the other consisted of an application for mem-
bership in Local 875. He counted about 98 cards all dated within 4 or 5 days of
October 31 and most within a couple days thereof. But he did not count all the
cards; he thought there were 10 or 15 more which he did not count. When the meet-
ing of October 31 ended Amadeo left with only the membership cards in his posses-
sion, having left the checkoff authorization cards with Brisk.15 Amadeo again met
with Brisk on November 4 to sign a collective-bargaining contract. He brought
along with him the union membership application cards, which he testified were about
130 in number. There may have been duplications in this count, as I find that Local
875 sometimes signed up an employee more than once if the subsequent signing would
psychologically tend to induce other employees present to sign up also. When Basis
and Amadeo met on November 4 Basis submitted a contract which he had prepared
in the meantime. After making a few modifications thereof, which were incorporated
in the document, many of which amounted to insertions in space previously left blank,
that contract was signed by the parties on the same date . Negotiations lasted for
about 21/z hours in the morning. However, Basis and Amadeo discussed many
issues 16 over the telephone between October 31, following recognition of Local 875,
and November 4.
On November 4, Local 875 and Hampton Merchants Association, on behalf of its
members, entered into a written collective-bargaining agreement, effective immedi-
ately, covering employees of members of the Association. This contract contains
a clause requiring as a condition of employment that: (a) all employees who are on
that date members of Local 875 shall remain members, and (b) all other employees
who are not members of Local 875 shall become and remain members thereof on the
31st date following their employment or the date of the contract, whichever is later.
Another clause in the contract extends it to cover "a new store or stores ... estab-
lished" by the Association.
At the time Rifkin met with Basis none of the licensees had started business and had
not yet placed any employees in their respective departments. On October 25 the
Center had not yet opened. It officially opened for business on November 5, and all
licensees on that date began operations.
On November 4, when the contract was signed, Emanuele counted the cards in the
manila envelope at the Center There were "in excess of 125." Rifkin, Brisk, and
Basis, who were present, saw these cards. At the termination of this meeting Amadeo
left with the envelope and the signed contract.
When Amadeo left the November 4 meeting following the execution of the con-
tract, he brought the membership applications with him. Because he wanted to ascer-
tain the extent of progress on repairs of his home, which he temporarily vacated in
September as a result of a fire, he went to observe its condition. He placed his coat
and the cards in the sunroom. After a while he left. It was the last time he saw
the cards. Sometime in November it became necessary to use the cards. Realizing
that the cards were missing, he returned to the sunroom of his home but could not
find them. A thorough search "everywhere" failed to locate the cards. They have
disappeared permanently.
13 Brisk gave this information to Basis
14 Basis went over not more than 15 cards with Brisk
15 On cross-examination Amadeo testified he kept the authorization cards as well as
the membership cards in his possession
to Such as wages, seniority, welfare program, union shop, checkoff, paid holidays, sick
leave, and vacations.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings and Discussion
1. As to the relationship between licensor and licensees
I am of the opinion and find that Wayne Appliance Corp. creates and attempts
to maintain in the public mind the concept that the entire store is operated by one
employer. To preserve this impression , Wayne has reserved to itself the right to,
control the labor policies for each of its licensees or concessionaires , so that the store
manager, Brisk , is invested with authority to enforce a uniform policy when problems
of this nature arise anywhere in the store . Hence I find that Wayne and its licensees
are joint employers in each of their respective departments . Spartan Department
Stores, 140 NLRB 608, Frostco Super Save Stores, Inc., 138 NLRB 125; United
Stores of America, 138 NLRB 383. Cf. Bargain City, U.S.A., Inc., 131 NLRB 803.
Bab-Rand Company , 147 NLRB 247 is distinguishable because there , unlike here,
the license agreement neither provided for the common handling of labor relations of
the employees of licensees nor empowered the licensor to control hiring and firing of
such employees.
The fact that Wayne Appliance delegated some labor relations to the Hampton
Merchants Association does not require a different conclusion . This is so because
the Association is a creature of Wayne in that ( 1) it was conceived by Wayne, (2)
its formative meeting was called by Rifkin, Wayne's treasurer , ( 3) its president is
Rifkin, ( 4) its labor adviser is Louis Basis, who is Wayne's labor relations consultant,
and (5 ) Basis was retained by Wayne to represent the Association.
2. As to the status of Samarel
On the evidence unfolded by the record I find that Samarel is an agent of Local
875 and an employee of Glendale Appliance Corp. Since Wayne and Glendale are
subsidiary corporations of Hampton Sales Company , Inc., and Glendale is a licensee,
I find additionally that Wayne and Glendale are joint employers of Samarel . I further
find that Samarel is not a supervisor under Section 2(11) of the Act.
That Samarel is an agent of Local 875 may be deduced from the admitted fact
that Emanuele , its business agent, appointed him expressly for the purpose of solicit-
ing membership in that union , and Amadeo , its president , who was aware of Samarel's
activities on behalf of Local 875, did not repudiate or disavow them. Hence Sama-
rel's agency is a limited one restricted to recruiting members and obtaining checkoff
authorizations at the Center . Although Samarel 's agency included the implied
authority to utter statements reasonably necessary to induce employees to join Local
875 and to sign dues checkoff cards , I find that it was beyond the scope of his apparent
authority to threaten or coerce employees into signing membership application cards
or checkoff cards. Hence Local 875 may not be held responsible for Samarel's
threatening and coercive statements 17 made by him to employees during the course
of his solicitation of membership in the Union . It follows that Local 875 has not
thereby transgressed Section 8 (b)(1)(A) of the Act as alleged in paragraph 17 of
the complaint.
Nor is Samarel a supervisor of Glendale Appliance Corp. or Wayne Appliance
Corp. He works as a salesman and has been such for some time. In connection with
the opening of the Center , he was assigned to other tasks for a few days. Among
these temporary duties was included the job of porter and an overseer of the other
porters. As an overseer of the porters, he was obliged to make certain that they
performed their assigned tasks and to prevent pilfering, but he was not invested with
power to hire, fire, promote , discipline, or reward employees , or to recommend such
action . At most his command over the porters amounted to a routine exercise of
authority not requiring the use of independent judgment.
The other important temporary function allotted to Samarel during the few days
preceding the opening of the Center on November 5 called for his presence at the
foyer of the Center. This involved Samarel's acting as a receptionist who answered
inquiries , directed outsiders to persons or places in the store , and gave out applications
for employment . None of these activities elevated Samarel from the rank of
employee to the position of supervisor . Moreover , he is an hourly paid employee.
17 Such statements , however, may be considered in ascertaining whether signatures to
cards were obtained freely or by reason of threatening or coercive conduct on the part of
Samarel. On this issue , the manner of obtaining cards , rather than agency, determines
their validity.
HAMPTON MERCHANTS ASSOCIATION, ET AL. 1325
Hence, I find that Samarel's actions 18 may not be ascribed to the Respondent Wayne
or its licensees . The Alms & Doepke Company., 99 NLRB No. 132, 30 LRRM 1151,
1152. Cf. Canal Street Hotel Corporation, 127 NLRB 880, 884.
3 As to the majority of Local 875
October 31, the date when Local 875 was recognized, is the crucial date to deter-
mine whether the Union enjoyed a majority. The General Counsel does not question
that Local 875 had a majority on November 4, when the collective-bargaining con-
tract was executed. It is agreed that 129 persons composed the unit on October 31.
It follows that a majority is 65.
It is my opinion, and I find, that Local 875 had a majority on October 31. In this
connection I credit Basis and Brisk that they counted about 98 cards without having
counted all, and that 10 or 15 remained uncounted when they stopped at 98. It is not
fatal that they spot checked but 10 or 15 cards, for not only was the authenticity of
the cards they examined not an issue at the hearing, but also the method by which
they satisfied themselves that the cards were genuine does not demonstrate that some
or all of the remaining were suspicious. Moreover, I also credit Emanuele and
Amadeo that Local 875 presented over a hundred applications for membership cards
to Basis on October 31.
While it is true that Local 875 was unable to produce a majority of the member-
ship cards at the hearing, its accounting for their disappearance is credited. Thus I
credit Amodeo that he left the membership cards at his unoccupied home which
was being repaired, that he did not bring them out of the home when he left, and
that he could not locate the cards when he returned to the home several days later.
Although Amadeo's action in removing the cards from his car and carrying them into
an unoccupied house denotes gross negligence, it is insufficient to show that it was
an intentional act designed to destroy or lose cards which amounted to less than a
majority. I expressly find that the cards were not purposely lost or destroyed.
In view of the foregoing it becomes unnecessary to review the evidence relating to
the dues checkoff authorization cards and whether such cards establish a majority.
In this connection it is sufficient to point out, nevertheless, that although such cards
may be utilized to show a majority, the fact that less than a majority have signed this
type of card is inadequate to prove lack of majority. Cf. United States Gypsum Com-
pany, 90 NLRB 964, 967, 969. It also becomes unnecessary to decide whether either
recognition or the execution of a contract raises a presumption of majority (cf.
Shamrock Dairy, Inc., et al., 119 NLRB 998, 1002; 124 NLRB 494, 495) or whether
the burden is on Respondent to establish its majority when the usual rule is that the
General Counsel has the onus of proving his case. See dissenting opinion Sham-
rock Dairy, Inc., et al., supra, at 1016-1017).
4. As to the validity of the majority obtained by Local 875
A majority obtained by threats, restraint , and coercion or by unlawful assistance
of the employer is tainted and, therefore, invalid. Hence neither recognition may
have been granted to, nor a collective- bargaining contract signed with, a labor orga-
nization whose majority is based upon threats, restraint, coercion, or illegal assistance.
The question here is whether the majority of Local 875 is affected by any of the
foregoing illegal practices. It is my opinion, and I find, that the majority of Local
875 is valid and that it is not affected by the existence of any of the above-mentioned
infirmities.
(a) The evidence fails to show that threats, restraint, or coercion were sufficient in
number to destroy the majority of Local 875. At most, the cards of 10 employees
may be said to be contaminated, i.e., those of Calderon, Sartor, L'Hommedieu, Pol-
sinelli,19 Wagenhauser, and 4 or 5 unnamed employees who Wagenhauser mentioned
were addressed as a group by Samarel. Subtracting 10 from over 100 still leaves
over 90 not infected with threats, restraint, or coercion.
In this connection I find a threat, restraint, and coercion in the statements to the
above 10 employees that they had to sign the union cards or they could not obtain or
'I An additional season exists for finding that Hampton Merchants Association is not
accountable for Samarel's conduct, i e, that the record is barren of any evidence indicat-
ing that Samarel was employed by the Association. The fact that Samarel was employed
by a member of the Association does not, without more, render the Association liable for
his behavior
100n cross-examination Polsinelli testified that she had already signed the union card
when Samarel told her that unless she signed she could not work there. Sartor signed
on November 1 and DeVoe on November 2.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hold their jobs. These statements impair the free will of those signing and, therefore,
are found to destroy the voluntariness which the Act requires before an employee's
consent to sign can be treated as uncoerced.
Nor does the record warrant a finding that the above threats, restraints, and coer-
cion were uttered to other employees than the 10 found to have been affected thereby.
In representation cases, the Board often sets aside an election if cards are obtained
by threats or coercion, even though less than a majority are so threatened or coerced.
But the issue in representation cases is whether laboratory conditions have been
observed prior to and during the election. Hence if such laboratory conditions have
not prevailed the election has been rendered invalid even though less than a majority
of the employees were involved by the conduct assailed. But in unfair labor practice
cases the issue is whether an uncoerced majority has been obtained by the Union. In
this latter situation it is incumbent upon the General Counsel to show that actually
50 percent or more of the Union's cards were signed as the result of threats or coer-
cion. Mid-West Towel & Linen Service, Inc., 143 NLRB 744, 752-753.
It may be that in appropriate instances a pattern of threats or coercion leads to an
inference that all union cards were signed pursuant to such pattern. But the record
herein does not justify a finding of a pattern. Not only is the solicitation of 10
employees insufficient to depict a pattern, but the record shows that 1 employee,
DeVoe, was not threatened or coerced. Hence I am unable to infer that cards of
employees not testifying were obtained by threats or corcion absent the actual
circumstances accompanying the solicitation of their signatures.
(b) Further, I find that the employers did not render illegal assistance to Local
875. Hence I find that the majority of Local 875 cannot be attributed to unlawful
employer assistance. Therefore, Majestic Weaving Co., Inc., of New York, 147
NLRB 859 is distinguishable.
In the first place, I find that no agreement or arrangement existed between Local
875 and any one or more Respondents in transferring Samarel to the Center, and I
further find that Samarel was so transferred for valid business reasons. Accordingly,
I find that Samarel's presence as an employee at the store did not amount to employer
cooperation with the efforts of Local 875 to organize the Center. Nor do I find
employer cooperation, acquiescence, or connivance in the presence of Emanuele in
the foyer while soliciting for Local 875.
Secondly, I find that Samarel's statement to Cosmetics Department Manager
Flesch that "in all likelihood" the former union in the building (such building then
being known as Modell's Discount Center) again would be in the store does not
create an inference that Respondent Employers had agreed in advance to recognize
Local 875. This is so because the former union which Modell's recognized was
Local 721, Retail Sporting Goods, AFL-CIO, and there is no evidence to show col-
lusion between Local 721 and Respondent Employers regarding recognition of Local
721. Further, I find that if, contrary to fact, Samarel meant Local 875 when he men-
tioned "the former union," his statement does not establish a conspiracy or agree-
ment between Respondent Employers and Local 875 for a premature recognition of
Local 875. In any event, I find that Samarel's statement does not establish a con-
spiracy because other unions also freely organized the store without interference or
hindrance from Respondent Employers in late October 1963. Nor does Samarel's
additional remark to Flesch that a manager and an assistant manager would be exempt
from becoming union members demonstrate advance contract-term agreement be-
tween Local 875 and the Respondent Employers. This is no more than a prediction
which ultimately became true . It does not prove employer assistance to Local 875.
Nor may unlawful assistance be found in the fact that Emanuele sometimes solic-
ited union membership in the store's foyer absent evidence that he was told to do so
by Respondent Employers or that other unions were denied a similar advantage. At
most Emanuele was a tolerated intruder in an area of the store where no repairs or
remodeling were being performed and where he did not obstruct or annoy anyone
at work.
Finally, I find that the activities of Samarel in the store, with one exception, did
not occur during working time, and, therefore, Respondent Employers' knowledge
thereof and their failure to object thereto cannot be considered as a proffer of unlaw-
ful assistance of Local 875. Under the Act employees may solicit union membership
on company property without reprisals from their employers. Indeed such activity
is protected by the Act, so that it would have been an unfair labor practice to stop it.
Since Samarel engaged in such union solicitation ( except for one instance hereinafter
discussed) as employees left the plant for supper, I find that this conduct occurred
on nonworking time i.e ., during the supper break , and that, by reason thereof, his
said conduct was lawful.
HAMPTON MERCHANTS ASSOCIATION, ET AL. 1327
However, Samarel during working hours did solicit union membership from a group
of four or five employees, as narrated by employee Wagenhauser. Nevertheless, the
record fails to disclose employer knowledge theieof or acquiescence therein. Accord-
ingly, I find that the occurrence of this act without apparent employer objection does
not manifest illegal assistance to Local 875.
Since none of the unfair labor practices have been established, I shall recommend
dismissal of the complaint
Upon the basis of the foregoing findings of fact, and the entire record in this case,
f make the following.
CONCLUSIONS OF LAW
1. Respondents other than Local 875 are employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 1199, Drug and Hospital Employees Union, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, and Local 875, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations
comprehended by Section 2(5) of the Act.
3. None of the Respondents has engaged in any of the unfair labor practices
attributed to it in the complaint.
RECOMMENDED ORDER
Upon the basis of the entire record in the case, including the above Findings of
Fact and Conclusions of Law, it is recommended that the complaint be dismissed in
its entirety.
APPENDIX A
Di-Deb of Long Island, Inc.,
1450 Boston-Providence Turnpike
Route # 1
Norwood, Mass.
Allied Pet & Garden Supply Co., Inc.
205 Sunrise Highway
West Islip, L.I , N.Y.
Norel Islip, Inc.,
205 Sunrise Highway
West Islip , L I., N.Y.
Volume Merchandise, Inc.
205 Sunrise Highway
West Islip , L.I , N.Y.
Lighting Wholesalers Corp.
205 Sunrise Highway
West Islip , L 1, N.Y.
Rheam of Islip, Inc.,
205 Sunrise Highway
West Islip , L 1, N.Y.
Islip Domestics, Inc,
205 Sunrise Highway
West Islip, L.I., N.Y.
Servel Sales Corp.
205 Sunrise Highway
West Islip, L I , N.Y.
Richards Islip, Inc.
205 Sunrise Highway
West Islip, L I., N.Y.
Millinery Stores, Inc.
205 Sunrise Highway
West Islip, L.1, N Y.
Electronics Headquarters, Inc.
205 Sunrise Highway
West Islip, L.I , N.Y.
The Miles Shoes Meldisco
Hamilton P1 , N . Y. Store, Inc.
205 Sunrise Highway
West Islip , L.1, N.Y.
A. S Dee, Inc.
205 Sunrise Highway
West Islip , L I, N.Y.
Toy King of Lodi, Inc.
205 Sunrise Highway
West Islip, L I., N.Y.
S. & A. Sales Corp,
205 Sunrise Highway
West Islip , L.I., N.Y.
Newport Automotive
Stores No. 6 Corp ,
205 Sunrise Highway
West Islip , L I, N.Y.
Guaranteed Supply Corp.,
205 Sunrise Highway
West Islip , L.I , N.Y.
125th St. Record Corp.,
205 Sunrise Highway
West Islip, L 1, N.Y.
Eastern Commercial Co., of
New Jersey, Inc.,
205 Sunrise Highway
West Islip, L .I., N.Y.
Glendale Appliance Corp.,
205 Sunrise Highway
West Islip, L I., N.Y