Masters-Lake Success, Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1959

124 N.L.R.B. 580 (N.L.R.B. 1959)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directed despite the prematurity of the petition and the Board's
decision issues on or after the 90th day preceding the expiration
date of the contract. [Emphasis supplied.]
As a hearing was held despite the premature filing of the petition, and
as this decision will issue after the 90th day preceding the terminal
date of the contract, we find that the latter agreement is no bar to a
present dete,^mination of representatives?
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer
within the meaning of Section 9(c) (1) and Section 2•(6) and (7) of
the Act.
4. We find, in accord with a stipulation of the parties, that the fol-
lowing employees of the Employer constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9(b) of the Act:'
All production and maintenance employees of the Employer in its
Ironton District, which is headquartered at 311 South Third Street,
Ironton, Ohio, excluding all clerical, executive, administrative, pro-
fessional and temporary employees, supervisors as defined by the Act,
and all others excluded by law.
[Text of Direction of Election omitted from publication.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Direction of Election.
2 Deluxe Metal Furniture Company, eupv a See, also, St. Louis Independent Packing
Company, a Division of Swift and Company, 122 NLRB 88T
8 This is the unit for which the Union is recognized as the exclusive bargaining repre-
sentative under the existing contract.
Masters-Lake Success , Inc. and Jack Berg and Metal , Plastic,
Miscellaneous Sales , Novelty and Production Workers, Local
No. 222, Independent, Party to the Contract
Metal , Plastic, Miscellaneous Sales, Novelty and Production
Workers, Local No. 222 , Independent and Jack Berg and
Masters-Lake Success, Inc., Party to the Contract . Cases Nos.
2-CA-5838 and 2-CB-4213. August 19, 1959
DECISION AND ORDER
On May 7, 1959, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding , finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices , and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
124 NLRB No. 73.
MASTERS-LAKE SUCCESS, INC. 581
mediate Report attached hereto. Thereafter, the General Counsel and
Respondent Company filed exceptions 1 and supporting briefs.'
Pursuant to the provisions of Section 3 ('b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the addition noted below.
1. The General Counsel excepts to the Trial Examiner's failure to
find that the Respondent Company violated Section 8(a) (3) of the
Act by deducting union dues from the wages of the Lake Success
store employees. The checking off of dues from employees covered by
the unlawful union-security agreement which served to coerce such
payments constituted discrimination in regard to an important condi-
tion of employment, i.e., wages. Accordingly, we find merit in this
exception and, therefore, find that this conduct was violative of Sec-
tion 8 (a) (3) of the Act.'
2. The General Counsel also excepts to the Trial Examiner's failure
to find that the Respondent Company violated Section 8(a) (1), (2),
and (3) by deducting union dues without written checkoff authoriza-
tions. The record reveals only one instance of dues being deducted
without proper authorization, and this apparently was the result of a
clerical error. In view of the isolated character of this incident and
the failure of the General Counsel to produce any other evidence of
unauthorized dries deductions, we find no substantial basis upon which
to predicate an unfair labor practice finding.
ORDER
Upon the entire record in this case 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 Company, Masters-Lake Success, Inc., New
Hyde Park, Long Island, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Assisting or contributing support to Respondent Local 222 or
any other labor organization of its employees.
3 The Respondent Employer requested leave to amend its exceptions to the Intermediate
Report and Recommended Order. The request is granted and the amendments made a
part of the exceptions.
2 As the record , exceptions , and briefs adequately present the issues and positions of the
parties, the Respondent Company's request for oral argument is hereby denied.
a Broderick Wood Products Company , 118 NLRB 38 , 60, enfd. 261 F. 2d 548 ( C.A. 10)
Safeway Stores, Inc., 111 NLRB 968, 977.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Recognizing and dealing with said Local 222, or any successor
thereto, as the representative of its employees for the purpose of deal-
ing with it concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until said labor organization shall have demonstrated its status as
the majority representative pursuant to a Board-conducted election
among the employees of the said Respondent Company.
(c) Performing or giving effect to the agreement of February 4,
1957, which Respondent Local 222 has with Masters, Inc., or to any
modification, extension, supplement, or renewal thereof, or to any
other contract, agreement, or understanding entered into with Local
222 relating to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
labor organization shall have demonstrated its status as majority rep-
resentative pursuant to a Board-conducted election among the em-
ployees of said Respondent Company.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, except to the extent permitted by Section 8(a) (3)
of the Act,
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Respondent
Local 222, or any successor thereto, as the representative of any of its
employees for the purpose of dealing with the Company concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said labor organi-
zation shall have demonstrated its status as majority representative
pursuant to a Board-conducted election among the employees of said
Respondent Company.
(b) Jointly and severally with the said Respondent Local 222 re-
imburse its employees for any initiation fees, dues, or other moneys
paid or checked off pursuant to the aforesaid agreement or any exten-
sion, renewal, modification, or supplement thereof, or to any agree-
ment superseding it.
(c) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all records and reports neces-
sary to analyze the amounts of moneys due under the terms of this
Order.
(d) Post at its Lake Success store in New Hyde Park, Long Island,
New York, copies of the notice attached hereto marked "Appendix
A." I Copies of said notice, to be furnished by the Regional Director
4 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."
MASTERS-LAKE SUCCESS, INC. 583
for the Second Region shall, after being duly signed by Respondent
Company, 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 its employees are cus-
tomarily posted. Reasonable steps shall be taken by Respondent
Company to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Post at the same places and under the same conditions as set
forth in (d), above, and as soon as they are forwarded by the Regional
Director, copies of Respondent Local 222's notice attached hereto
marked "Appendix B."
(f) Notify the Regional Director for the Second Region in writing,
within 10 days from the date of this Order, what steps the Respondent
Company has taken to comply herewith.
B. The Respondent, Metal, Plastic, Miscellaneous Sales, Novelty
and Production Workers, Local No. 222, Independent, New York,
New York, its officers, representatives, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Performing or giving effect to any agreement covering the
employees of Respondent Masters-Lake Success, Inc., relating to
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said Local 222
shall have demonstrated its status as majority representative pursuant
to a Board-conducted election among the employees of Respondent
Company.
(b) Acting as the exclusive bargaining representative of any of the
employees of Respondent Masters-Lake Success, Inc., for the purpose
of dealing with said Company concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, unless and until said Local 222 shall have demonstrated its
status as majority representative pursuant to a Board-conducted elec-
tion among the employees of Respondent Company.
(c) In any like or related manner causing or attempting to cause
Respondent Company to discriminate against any employee in viola-
tion of Section 8(a) (3) of the Act.
(d) In any like or related manner restraining or coercing em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with Respondent Company reimburse
said Company's employees for any initiation fees, dues, or other
moneys paid or checked off pursuant to the agreement applied to
Respondent Company's employees or to any extension, renewal, modi-
fication, or supplement thereof, or to any agreement superseding it.
5S4 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all records necessary to analyze
the amounts of moneys due under the terms of this Order.
(c) Post at its offices and meeting halls in New York, New York,
copies of the notice attached hereto marked "Appendix B." e Copies
of said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by Local 222's representative,
be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter in conspicuous places, includ-
ing all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by it to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Mail to the said Regional Director signed copies of Appendix B
for posting by Respondent Company at its Lake Success store in
.New Hyde Park, Long Island, New York, as provided above herein.
Copies of said notice, to be furnished by the said Regional Director,
shall, after being signed by Respondent Local 222's representative, be
forthwith returned to the Regional Director for disposition by him.
(e) Notify the said Regional Director in writing, within 10 days
from the date of this, Order, what steps Respondent Local 222 has
taken to comply herewith.
e See footnote 4, above.
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, we hereby notify you that:.
WE WILL NOT assist or contribute support to Metal, Plastic, Mis-
cellaneous Sales, Novelty and Production Workers, Local No.
2.22, Independent, or to any other labor organization of our
employees.
WE WILL withdraw and withhold all recognition from, and
cease dealing with, the above-named labor organization as the
representative of any of our employees concerning grievances,
labor disputes, wages, rates of pay; hours of employment, or other
conditions of employment, unless and until the above-named
labor organization shall have demonstrated its exclusive majority
representative status pursuant to a Board-conducted election
among our employees.
WE WILL NOT perform or give effect to the agreement of Febru-
ary 4, 1957, which the above-named labor organization has with
Masters, .Inc., or to any modification, extension, supplement, or
renewal thereof, or to any other contract, agreement, or under-
MASTERS-LAKE SUCCESS, INC. 585
standing entered into with the above-named labor organization
relating to grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, unless and
until the above-named labor organization shall have demonstrated
its exclusive majority representative status pursuant to a Board-
conducted election among our employees.
117E WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the extent permitted
by Section 8 (a) (3) of the Act.
WE WILL jointly and severally with the above-named labor
organization reimburse our employees for initiation fees, dues,
or other moneys paid or checked off pursuant to the aforesaid
agreement or any extension, renewal, modification, or supple-
ment thereof, or to any agreement superseding it.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of any labor organization, except to
the extent that this right may be affected by a valid agreement in
conformity with Section 8(a) (3) of the Act.
MASTERS-LAKE SUCCESS, IN c.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF METAL, PLASTIC, MISCELLANEOUS SALES,
NOVELTY AND PRODUCTION WORKERS, LOCAL No. 922, INDEPENDENT,
AND TO ALL EDZPLOYEES OF MASTERS-LAKE SUCCESS, INC.
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, we hereby notify you that :
WE WILL NOT perform or give effect to any agreement covering
the employees of Masters-Lake Success, Inc., relating to griev-
ances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until we shall have
demonstrated our exclusive majority representative status pur-
suant to a Board-conducted election among the employees of said
Company.
WE WILL NOT act as exclusive bargaining representative of any
of the employees of Masters-Lake Success, Inc., for the purpose
of dealing with said Company concerning grievances, labor dis-
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
putes, wages, rates of pay, hours of employment, or other condi-
tions of employment, unless and until we shall have demon-
strated our exclusive majority representative status pursuant to a
Board-conducted election among the employees of said Company.
WE WILL NOT in any like or related manner cause or attempt to
cause said Company to discriminate against any employee in vio-
lation of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of their rights guaranteed in Section 7
of the Act.
WE WILL jointly and severally With the above-named Company
reimburse its employees for initiation fees, dues, or other moneys
paid or checked off pursuant to the agreement applied to said
Company's employees, or to any extension, renewal, modification,
or supplement thereof, or to any agreement superseding it.
METAL, PLASTIC, MISCELLANEOUS SALES,
NOVELTY AND PRODUCTION WORKERS
LOCAL No. 222, INDEPENDENT,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Jack Berg, an individual, the General Counsel of the
National Labor Relations Board, through the Regional Director for the Second
Region (New York, New York), issued his consolidated complaint, dated Septem-
ber 30, 1958, against Metal, Plastic, Miscellaneous Sales, Novelty and Production
Workers, Local No. 222, Independent,' herein called Respondent Local 222, and
against Masters-Lake Success, Inc., herein called Respondent- Company. With re-
spect to the unfair labor practices, the complaint alleges, in substance, that: (1)
Masters, Inc., which owns Respondent Company, entered into a collective-bargaining
agreement with Respondent Local 222, effective from February 4, 1957, to Febru-
ary 1, 1960, which included, among other things, a union-security clause, a clause
requiring temporary help to obtain a temporary union card as a condition of em-
ployment, and a clause requiring the Company to deduct union dues from temporary
employees and remit same to Local 222; (2) during October 1957, Respondent Com-
pany adopted said agreement and since that time Respondent Company and Local
222 have maintained and enforced said agreement, although Local 222 at no time
represented an uncoerced majority of Respondent Company's employees; (3) during
the period from October to December 1957, named supervisors of Respondent Com-
pany informed employees at the time of hiring that they must join Local 222 as a
condition of employment, and have permitted Local 222 to solicit members on
Respondent Company's property during working hours; (4) since December 1957,
Respondent Company has checked off and deducted dues, initiation fees, and assess-
ments from wages of its employees and remitted same to Local 222, although the
employees had not authorized such deductions; and (5) by the foregoing conduct
Respondent Company has violated Section 8(a)(1), (2), and (3), and Respondent
' As amended at the hearing by stipulation of the parties.
MASTERS-LAKE SUCCESS, INC. 587
Local 222 has violated Section 8(b)(1) (A) and (2), and Section 2(6) and (7) of
the National Labor Relations Act, 61 Stat. 136, herein called the Act.
In their duly filed answers, Respondent Company and Respondent Local 222, in
substance, deny the unfair labor practice allegations. Respondent Company admits
in its answer that the contract of February 4, 1957, covering the employees of
Masters, Inc., did cover the employees of Respondent Company after October 1957.
Pursuant to due notice, a hearing was held on February 24-26, 1959, in New York,
New York. All parties were represented by counsel at the hearing, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to introduce
relevant evidence, to present oral argument at the close of the hearing, and thereafter
to file briefs as well as proposed findings of fact and conclusions of law. The
Respondents' motion to dismiss the complaint, made before the close of the hearing
and upon which I reserved ruling, is disposed of in accordance with the findings and
conclusions herein made. After the close of the hearing, the General Counsel and
Respondent Company filed briefs, which I have fully considered.
Upon the entire record 2 in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
Masters-Lake Success, Inc., Respondent Company, is a New York corporation
which operates a retail store in New Hyde Park, Long Island, New York, where it is
engaged in the sale of appliances and other merchandise. During the 12-month
period preceding the hearing herein, Respondent Company has done a gross volume
of business in excess of $500,000. During that same period, Respondent Company
received materials, in the value of at least $50,000, from suppliers who had received
said materials from points located outside the State of New York.
Upon the above admitted facts, I find that Respondent Company is engaged in
commerce within the meaning of the Act and that assertion of jurisdiction by the
Board is in accord with its jurisdictional standards.
II. THE LABOR ORGANIZATION INVOLVED
The record shows and I find, as all parties admit, that Metal, Plastic, Miscellane-
ous Sales, Novelty and Production Workers, Local No. 222, Independent, herein
called Respondent Local 222, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES 3
The main issues in this proceeding are (1) whether Respondent Company ren-
dered unlawful assistance and support to Respondent Local 222, and (2) whether
both Respondents maintained and enforced a contract containing an unlawful
union-security provision. The legality of the union-security provision depends on
whether Respondent Local 222 had been assisted by any unfair labor practices and
whether it represented a free majority of the employees in an appropriate unit.
A. History and organization of Masters stores in Metropolitan New York area
There are five "Masters" retail stores in the New York metropolitan area. Masters,
Inc., a New York corporation, owns and operates a store at 66 West 48th Street in
New York City, herein called the New York store. Respondent Local 222 has been
the recognized collective-bargaining representative for the employees of that store
since about 1950 and since that time has maintained collective-bargaining agree-
ments with Masters, Inc., covering the employees of that store. Masters-Jersey, Inc.,
a New York corporation, owns and operates a store at Paramus, New Jersey, herein
called the Paramus store, which was opened on October 7, 1956. Masters-Westchester
Corp., a New York corporation, owns and operates a store at Elmsford, Westchester
County, New York, herein called the Elmsford store, which was opened on October 8,
1956. Sometime between the date of the opening of these two stores and January
1957, Local 422, a sister local of Respondent Local 222, was recognized as bargain-
ing agent for separate units at these stores, and individual 3-year contracts were exe-
3I hereby note and correct the following inconsequential but obvious typographical
errors in the typewritten transcript of the testimony : On page 128, line 5, "of" is cor-
rected to read "ending"; on page 200, line 21, "agencies" is corrected to read "allegations."
3 Unless otherwise indicated, the factual findings herein set forth are based on un-
disputed credible testimony, Respondent Company's admissions, and undisputed docu-
mentary evidence.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cuted for each store. Masters-Lake Success, Inc., Respondent Company, is a New
York corporation which owns and operates a store in New Hyde Park, Long Island,
New York (also referred to in the record as Lake Success, New York), herein called
the Lake Success store, which was opened on October 28, 1957. Masters, Inc., also
owns and operates a store in Flushing, New York, herein called the Flushing store,
which opened about 2 weeks before the hearing in this proceeding. Respondent
Local 222 was recognized as the bargaining agent for the employees of the Flushing
store and executed a separate collective-bargaining agreement, covering the employees
of that store.
Masters, Inc., owns a majority of the stock in the other Masters corporation .4
Substantially the same individuals comprise the officers and board of directors for all
Masters corporations. The New York store is located about 25 miles from the
Paramus store, about 35 miles from the Elmsford store, about 18-20 miles from
the Lake Success store, and about 8 miles from the Flushing store.
Each store is headed by a manager who supervises the day-to-day retail selling
operations and carries out the policies formulated for the chain at the administrative
offices of the New York store. The manager has authority, within his sole discretion,
to discharge employees "for cause," such as drunkenness, theft, or insubordination,
and to handle minor employee grievances with the respective shop steward. With
respect to other personnel matters, his recommendations to the administrative office
of the New York store are given considerable weight.
All stores maintain the same relationship with Masters, Inc. Thus all stores are
linked to the administrative offices of the New York store by a direct communica-
tion system and practically all administrative matters, such as purchasing, advertis-
ing, preparation and disbursement of payrolls, labor relations, and the handling of all
but minor grievances, are centrally controlled by the New York offices. Hiring at
all stores is subject to approval by the central administrative offices of Masters, Inc.,
in New York and, with the exception of discharges "for cause," all discharges con-
templated by the respective store managers are subject to review by the New York
office. Layoffs, transfers, and promotions are handled at the New York office,
although the respective store managers are consulted and their recommendations
taken into consideration. An employee's seniority is cumulative, carrying over from
one store to another. Labor relations policies for all stores are formulated at the
New York offices, Any grievances not disposed of by the store manager on a local
level are handled by Louis Basis, who is employed by Masters, Inc., to deal with
collective-bargaining problems for all its stores. Contract negotiations for all stores
are conducted by ken Kopelson, who is an officer of both Masters, Inc., and Masters-
Lake Success, Inc., with the assistance of Louis Basis.
B. The facts giving rise to this proceeding
As previously found, Respondent Local 222 and Masters, Inc., have had con-
tinuous collective-bargaining contracts since about 1950, covering the employees of
the New York store. With the exception of such items as wage increases, hours, and
changes in holidays and working conditions, the contracts contained the same provi-
sions which were merely carried forward from the prior contract to the one succeed-
ing it. The last such contract was executed on February 4, 1957, and was to be
effective to February 1, 1960, with a 60-day automatic renewal clause for a period
of 1 year.
In this contract, Respondent Local 222 is recognized by Masters, Inc., "as the
sole collective bargaining agency for its employees eligible to membership in the
Union, including sales, clerical, shipping and service employees and excluding super-
visors and executives." Article 3 of the contract requires all employees, "as a term
or condition of employment," to join Local 222 after the 30th day of their employ-
ment or of the effective date of the agreement, whichever is later, and thereafter to
remain members. In articles 21 and 23, Masters, Inc.. "agrees to deduct all union
membership dues and initiation fees" "during the first week of each and every month"
and to remit same to Local 222, in accordance with signed employee authorizations
to that effect in the form prescribed in the contract and to be furnished to Masters,
Inc., by Local 222. The contract also contains the following clause (article 2) :
This agreement shall apply to the establishment now owned, maintained, oper-
ated and/or controlled by the Employer [Masters, Inc.] in the Metropolitan
h Sometime in 1957. Masters-Jersey, Inc., became a wholly owned subsidiary of Masters-
Westchester Corp. However, Masters, Inc., continued to own a majority of the stock in
Maters-Westchester Corp.
MASTERS-LAKE SUCCESS, INC. 589
area and/or any new establishment that the Employer may own, maintain,
operate and/or control in that area at any time during the term of this agreement.
Respondent Company was incorporated sometime in September 1957. Although
the Lake Success store was not officially open to the public until October 28, 1957,
applicants for employment began to be interviewed early in October and those hired
began working about 2 weeks before the opening of the store, with the employee
complement gradually increasing each day until the store opened on October 28.
By letter dated October 4, 1957, to Masters, Inc., addressed to the attention of
Ken Kopelson, an officer of Masters, Inc., and of Respondent Company, Respondent
Local 222 called attention to article 2 of its agreement with Masters, Inc., and re-
quested that "all terms and conditions" of the aforestated agreement be applied to
all employees to be hired to work at the Lake Success store. Shortly after its re-
ceipt, Kopelson referred the letter for advice to Louis Basis, employed by Masters,
Inc., as a labor relations consultant. Basis checked a copy of the aforestated agree-
ment and confirmed the fact that the clause mentioned in the letter was contained in
the contract. A few days later, Basis informed Kopelson of that fact and advised
Kopelson that he should acknowledge to Respondent Local 222 the existence of such
a clause and that the Lake Success store would be covered by the existing contract
between Masters, Inc., and Local 222, as requested by Respondent Local 222.
Kopelson then orally informed Benjamin Ladmer, vice president and business agent
of Respondent Local 222, that "we concurred in their interpretation of the contract"
and that what Local 222 had requested in its letter was acceptable to Masters, Inc .5
The first thing that Ko eison admittedly did after the foregoing conversation with
Ladmer was to inform Irving Goodman, manager of the Lake Success store, that the
terms of the contract between Masters, Inc., and Respondent Local 222 would be
applied to the Lake Success store, and to acquaint Goodman with the terms and
conditions of said contract, including the minimum wage rates. Thus Kopelson
testified:
TRIAL EXAMINER: In other words, you informed the manager, Mr. Goodman,
of the Lake Success store that he was to operate under the terms of this
contract?
The WITNESS: That's correct.
Kopelson further testified that he also discussed with Goodman "other arrangements
relative to the handling of employees." Kopelson admitted that the terms of the
contract were then applied by Goodman to employees hired at the Lake Success
store before its opening on October 28 and that these employees were paid according
to the prevailing rates in said contract.6
Goodman corroborated Kopelson with respect to this conversation which, Good-
man testified, occurred in October, before the opening of the Lake Success store. He
admitted that Kopelson told him that the Lake Success store was going to be
operated under the contract which Masters, Inc., had with Local 222, and that
Kopelson outlined to him the minimum wages, the hours, and certain other employee
benefits contained in the contract.
Following this conversation with Kopelson, Manager Goodman admittedly in-
formed Floor Manager Berger 7 and other supervisory personnel that the Lake
5 Ladmer denied that Kopelson had such a conversation with him in October. He testi-
fied that it was not until the first week in November, when he had already obtained signed
authorization cards from a majority of the Lake Success employees and showed them to
Kopelson, that Kopelson informed shim of Local 222's letter, mentioned in the text, and
agreed to recognize Local 222 for the Lake Success store and to apply the New York
store contract to the Lake Success store. Kopelson impressed me as an honest and
straightforward witness. His attitude indicated a willingness to disclose the true facts,
regardless of whether they might be regarded as adverse to Respondents' position, an
attitude not displayed by Ladmer. Moreover, Kopelson further testified that the "very
first thing we did" after informing the Union to the effect stated in the text, was to
acquaint the manager of the Lake Success store "with the terms and conditions of the
contract which we had in force" for the New York store. Irving Goodman, manager of
the Lake Success store and also a very frank and credible witness, admitted that this
conversation with Kopelson, set forth in more detail in the text, occurred sometime in
October prior to the opening of the store. Under all the circumstances, I do not credit
Ladmer's contrary testimony.
9I do not credit Ladmer's denial that employees were hired in accordance with the
prevailing wage scale contained in the contract.
7 Berger is floor manager of the main floor at the Lake Success store, in charge of about
50 salesmen. I find that he is a supervisor within the meaning of the Act.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Success store was going to be a union store. No permanent rank-and-file employees
were transferred from the New York store to the Lake Success store in 1957; most
of the employees hired for the Lake Success store had not previously worked at any
of the Masters stores. Goodman and Berger personally interviewed most of the
applicants for employment at the Lake Success store, prior to its opening. When
interviewing such applicants, Goodman admittedly told them that the store "would
be a union place" and that the Company would provide Blue Cross hospitalization,
and mentioned other employee benefits such as paid holidays and vacations, all of
which are contained in the contract then in force between Masters, Inc., and Re-
spondent Local 222. When hiring employee Di Dio, who started to work on
October 14, 1957, Berger told him that "there was a union in the store," that he
would get certain benefits such as hospitalization and pay increases "by joining the
Union," and that a union man would get in touch with him about the Union and
these benefits. A few days after he commenced working, Di Dio saw a man handing
out union cards to employees at the store and was told by this man that he was
from the Union and that the cards pertained to joining the Union. Di Dio filled out
one of these cards "to join the Union" and returned it to the union representative.
On several occasions thereafter, but before the opening of the store on October 28,
Di Dio saw this union representative handing out and collecting union cards from
employees while they were at work. Manager Goodman admitted seeing Business
Agent Ladmer at the Lake Success store on various occasions prior to its opening,
that he knew that Ladmer was a representative of Respondent Local 222, but that
he paid no attention to what Ladmer was doing. Ladmer admitted that both before
and after the opening of the Lake Success store, he talked to the employees at the
store and solicited and obtained their signatures to union authorization cards.
Under all the circumstances, I find that Ladmer was the union representative who
talked to employee Di Dio during working hours and obtained his signature to a
union authorization card.
Ladmer testified that by October 28, 1957, the date when the Lake Success store
formally opened to the public, he had in his possession signed union authorization
cards from a majority of the employees,8 that during the first week in November he
showed these cards to Kopelson, and that Kopelson at that time then granted
Ladmer's request to recognize Local 222 and to apply the New York store contract
to the Lake Success store. Kopelson admitted that he had never asked for a card
check but testified that "they furnished me with a number of cards that indicated
they had quite a few." There is no indication that the cards were counted or that
the signatures were checked against the payroll or verified in any other manner.
Although unable to remember the exact date, Kopelson testified that it was before
they showed him the cards that he had informed Ladmer of his concurrence in
Local 222's interpretation of the contract and that there would be compliance with
Local 222's request to apply its current contract with Masters, Inc., to the Lake
Success store. As previously found, this occurred during the hiring period before
the opening of the store on October 28. For reasons previously indicated, and upon
consideration of the entire record as a whole, I do not credit Ladmer's testimony that
it was after Ladmer had obtained signed authorization cards from a majority of the
employees and had submitted them to Kopelson during the first week in November
that Kopelson agreed to recognize Local 222 and to apply the contract in force at
the New York store to the Lake Success store.
Beginning with December 7, 1957, Respondent Company began to deduct union
dues from the wages of employees who had submitted written checkoff authoriza-
tions, as provided in the contract, and to remit the deductions to Respondent Local
222. As of the date of the hearing in these proceedings, all applicable terms of the
contract continued to be applied to the employees of the Lake Success store.
C. Contentions of the parties
The General Counsel contends that: (1) Either a single unit of employees of all
Masters stores in the Metropolitan New York area is appropriate or that the em-
ployees of the Lake Success store alone may constitute a separate appropriate unit;
(2) the Respondent Company applied the union-security contract to the employees
of the Lake Success store and recognized Respondent Local 222 as their exclusive
bargaining representative before a majority of the Lake Success employees had
designated Local 222 as their bargaining representative; (3) Respondent Company
8 Ladmer testified that by the first week in November there were between 130 and 140
people working in the Lake Success store, including part-time and -temporary help, and
that by October 28 be had 130 signed cards.
MASTERS-LAKE SUCCESS, INC. 591
aided and assisted Local 222 in obtaining union authorization cards so that any
majority subsequently obtained by Local 222 was tainted by Respondent Company's
unfair labor practices; (4) the application and enforcement of the union-security
contract and checkoff provisions at the Lake Success store was violative of
the Act; and (5) by the foregoing conduct Respondent Company violated Section
8(a)(1), (2), and (3) of the Act and Respondent Local 222 violated Section
8(b)(1)(A) and (2) of the Act.9
The Respondents contend that: (1) The New York and Lake Success stores, to-
gether, constitute a single appropriate unit; (2) the Lake Success store was a mere
accretion to the New York store and that therefore the application of the contract of
February 4, 1957, to the employees of the Lake Success store was lawful, without
regard to whether Local 222 represented a majority of the Lake Success employees;
(3) in any event, Respondent Company did not recognize Respondent Local 222 as
the bargaining representative of the employees of Lake Success nor apply the New
York store contract to the Lake Success employees until Local 222 had demonstrated
its majority representation through authorization cards signed by Lake Success em-
ployees; and (4) Local 222 was not assisted by any unlawful conduct of Respondent
Company.
D. Analysis and conclusions
Although the union-security clause contained in the contract which was applied to
the employees at the Lake Success store follows the language of the statute, the
proviso to Section 8(a) (3) of the Act prescribes the conditions under which an agree-
ment containing such a clause may be lawful. Thus, the proviso requires, among
other things, that all of the following requirements be met: (1) The unit covered by
the agreement must be an appropriate unit within the meaning of the Act; (2) the
Union must be designated or selected as bargaining representative by a majority of
the employees in said appropriate unit when the agreement is made; and (3) the
Union must be one which has not been established or assisted by any unfair labor
practices. Failure to comply with any one of the above requirements renders the
union-security clause unlawful. For the reasons hereinafter indicated, I find that
Respondents have failed to comply with any of the above requirements.
1. The appropriate unit
In view of the ownership and relationship of the Masters corporations and the
highly centralized control of administrative policies, including labor relations, hiring,
promotions, transfers, layoff, and cumulative employee seniority, as previously de-
tailed, it is clear, and I find, that the corporations constitute a single employer and
that a single unit of all stores in the Metropolitan New York area is appropriate for
collective-bargaining purposes. As the Flushing store was not in existence in 1957,
I find that at the time when the contract was applied to the Lake Success store, the
appropriate unit consisted of the employees at the New York, Paramus, Elmsford,
and Lake Success stores. The fact that Respondent Local 222 may not have had
territorial jurisdiction over the Paramus and Elmsford stores has no bearing on the
scope of the appropriate unit.10 Indeed, the Board has held that in cases involving
chains of retails stores, absent unusual circumstances, the appropriate unit embraces
employees of all stores located within an employer's administrative or geographical
area.lt If this were the only unit appropriate for collective-bargaining purposes,
then the union-security contract was unlawful because it did not cover that unit.
However, certain factors are present which militate against a finding that a single
unit of all stores is the only appropriate unit. First and foremost is the bargaining
9In the complaint and at the hearing, the General Counsel also contended that articles 4
and 22 were part of the contract applied to the Lake Success store and that these articles
were violative of the Act because they required temporary help to obtain union cards as a
condition of employment and also provided for dues deductions from their wages. How-
ever, the undisputed evidence shows, and I find, that these clauses were deleted from
the contract on the day of its execution on February 4, 1957, and (lid not constitute part
of -the contract which was applied to the employees at the Lake Success store. Although
requested by the Trial Examiner to set forth his position with respect to the deletion of
these clauses in his brief, the General Counsel makes no reference to this issue in his
brief. Under the circumstances, I construe the General Counsel's position to constitute
an abandonment of the aforesaid allegations in the complaint and of his prior contentions
with respect to these articles.
10 Paxton Wholesale Grocery Company, 123 NLRB 316.
"Robert Ball Clothes, Inc., 118 NLRB 1096; Father and Son Shoe Stores, Inc., 117
NLRB 1479.
592 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
history, which has been on the basis of a separate single unit for each store, with a
separate contract for each store. There is no bargaining history on the basis of any
multistore combination. Then there is the fact that each store has an identity of its
own and is owned by a separate corporation.12 There is also separate immediate
supervision of the employees at each store, headed by a manager who exercises some
degree of local autonomy. Furthermore, the employees' interest in terms and condi-
tions of employment are not identical in all respects. For example, although the
New York store is not open evenings, except during Christmas and rush seasons, the
Lake Success and other stores are open evenings on a regular basis. No permanent
rank-and-file employees were transferred from the New York store to the Lake
Success store in 1957. In view of all the foregoing, I find that each store, alone,
may also constitute a separate appropriate unit. In other words, I find that a unit
comprised of the employees of the New York and Lake Success stores is inappro-
priate but that a unit confined to the employees of the Lake Success store may be
appropriate. As the union-security contract was not confined to the employees of
the Lake Success store but was applied to cover a unit comprised of the employees
of the New York and Lake Success stores, it did not cover an appropriate unit when
applied to the Lake Success store and hence, at least to that extent, was unlawful.13
2. Majority representation
The Respondents contend that the Lake Success store constituted an accretion to
the New York store and that therefore the New York store contract automatically
covered the employees of Lake Success, even if a majority of the latter employees
had not selected Local 222 as their bargaining representative. Despite the existence
of the present contract at the time when the other stores were opened, none of these
stores, including the Flushing store, were ever treated as accretions to the New York
store. Nor, except for the Flushing store, did Respondent Local 222 ever seek to
invoke the coverage clause of the New York store contract to the employees of the
other stores.14 Lake Success was not a new department but a new store, complete by
itself, and its employees had not previously been represented for collective-bargaining
purposes, There is no reason for according a different treatment to the Lake Success
store than to the other stores. Under all the circumstances, including the factors
set forth in the previous section, I find, contrary to Respondents' contention, that
the Lake Success store did not constitute an accretion to the New York store.15
Assuming that the Lake Success store was treated as a separate unit when the
New York store contract was applied to its employees (and even assuming, contrary
to my previous finding, that the Lake Success and New York stores, together, con-
stituted a single appropriate unit), the union-security contract could not lawfully be
applied to the Lake Success employees until Respondent Local 222 had been desig-
nated or selected as bargaining representative by a majority of the Lake Success
employees. Upon the basis of the entire record considered as a whole, and particu-
larly the admissions and conduct of Respondent Company's representatives, Kopelson,
1' This is not true of the Flushing store which, however, was not in existence at the
times material to the complaint.
13 As hereinafter found, the Lake Success store did not constitute an accretion to the
New York store.
14 Kopelson testified that it was because of the pendency of the present proceeding that
the Flushing store was treated as a separate unit and a separate contract executed to
cover its employees upon a showing by Local 222 that it represented a majority of said
employees.
15 Stern Brothers, 2-RC-7941 (unpublished), decided May 21, 1957. In this case the
employer owned and operated a large department store in Now York City and on Septem-
ber 2, 1955, opened up a suburban store in Great Neck, Long Island. The Union peti-
tioned for a single unit comprising the employees of both stores but was already the
bargaining representative of the employees of the New York store under an agreement
which ran until February 2, 1958. The Board did not regard the Great Neck store as an
accretion to the New York store and held that "as the employees at the Great Neck store
have not been represented heretofore, it is well established that a separate election must
be held among them to determine whether or not they desire to be included in the existing
bargaining unit represented by petitioner."
There are many cases in which the Board refused to find accretion on the basis of factors
which were not as strong as those in the instant case. See, e.g., Delta Tank Manufactur-
ing Company, Incorporated, 100 NLRB 364, 365; Price National Corporation, 102 NLRB
1393, 1394-1395; Armstrong Cork Company, 106 NLRB 1147, 1149; and Ware Labora-
tories, Inc., 98 NLRB 1141, 1142-1143.
MASTERS -LAKE SUCCESS, INC. 593
Basis, Goodman, and Berger, as previously set forth, I find that Respondent Company
complied with the requests of Respondent Local 222, recognized Local 222 as the
exclusive bargaining representative for the Lake Success employees, applied the
terms of the existing New York store contract to the employees of the Lake Success
store, and that all this occurred while Respondent Company was engaged in the
process of hiring employees, before the Lake Success store was staffed and opened
to the public and before Local 222 had obtained signed authorization cards from a
majority of the Lake Success employees. Moreover, as hereinafter found, whatever
majority Local 222 subsequently achieved was tainted by the unlawful assistance and
support rendered by Respondent Company and hence at no time represented the free
and untrammeled choice of the employees.
For all of the foregoing reasons, I find that the application of the union -security
contract to the Lake Success store employees was unlawful.
3. Respondent Local 222 assisted by unfair labor practices
The conduct of Manager Goodman and Floor Manager Berger during the period
when employees were interview and hired for the Lake Success store has already been
detailed. Thus, Goodman told employees that the store "would be a union place"
and told them about the employee benefits contained in the contract then in force
for the New York store. Berger told at least one employee that "there was a union
in the store," that he would get certain employee benefits by joining the Union, and
that a union man would get in touch with him about these matters. Thereafter,
during the period when employees were being hired but before the opening of the
store to the public, Business Agent Ladmer was given free reign of the store to
solicit and obtain employee signatures to authorization cards during working hours.
Under all the circumstances, I find that by the foregoing conduct Respondent
Company rendered assistance and support to Respondent Local 222 in obtaining
employee signatures to union authorization cards in violation of Section 8(a)(2)
and (1) of the Act.16 As the union-security contract which was applied to the
Lake Success store employees was made with a union which was assisted by Re-
spondent Company's unfair labor practices, the contract in this respect was unlawful
for this reason alone. And this is so even if, as Respondents contend, the contract
had not been applied until Local 222 had obtained a majority of the signed authoriza-
tion cards of the Lake Success employees.
E. Concluding findings
I find that by recognizing Respondent Local 222 as the exclusive bargaining
representative for the Lake Success store employees, by applying the unlawful
union-security contract to the Lake Success store employees, and by thereafter
maintaining said contract in effect with respect to the Lake Success store employees,
Respondent Company has violated Section 8(a)(1), (2), and (3) of the Act and
Respondent Local 222 has violated Section 8(b)(1)(A) and (2) of the Act.17
I also find that by deducting union dues from the wages of Lake Success employees
and remitting same to Respondent Local 222, pursuant to the checkoff provisions of
the ; unlawful • union-security agreement, and by assisting Local 222 in obtaining
employee signatures to union authorization cards, Respondent Company has ren-
dered further assistance and support to Local 222 in violation of Section 8(a) (2)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section Ill, above, occurring in
connection with the operations of the Respondent Employer described in section I,
above, 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 obstruct-
ing commerce and the free flow of commerce.
1e See, e.g., Alaska Salmon Industry, Inc., et at., 122 NLRB 1552, where the Board
found that by permitting a union to solicit dues checkoff authorizations during the ihiring
process, the Company unlawfully contributed support to the Union in violation of Sec-
tion 8(a) (2) and (1) of the Act.
11 See, e.g., Bryan Manufacturing Company, 119 NLRB 502, enfd. sub nom. Local
Lodge No. 1424, International Association of Machinists, AFL-CIO, 264 F. 2d 575
(C.A., D.C.).
525543-460--vol. 124-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,-
I will recommend that they cease and desist therefrom and that they take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent Company violated Section 8(a) (1), (2), and (3) of
the Act, and Respondent Local 222 violated Section 8(b) (1) (A) and (2) of the Act
by applying, maintaining, and enforcing an agreement containing an illegal union-
security provision, I will recommend that Respondent Company withdraw and with-
hold all recognition from Respondent Local 222 as the representative of its employees,
unless and until said Local 222 shall have demonstrated its exclusive majority repre-
sentative status pursuant to a Board-conducted election. Nothing in this recom-
mendation should be taken, however, to require Respondent Company to vary those
wages, hours, and other substantive features of its relations with the employees, if
any, which have been established in the performance of this agreement.
As previously found, Respondent Company has given unlawful assistance and
support to Respondent Local 222. Moreover, by their union-security agreement,
implemented by a dues checkoff arrangement, the Respondents have unlawfully re-
quired the employees to maintain membership in Respondent Local 222 as the price
of employment. In these circumstances, I find that it will effectuate the policies of
the Act to order Respondents jointly and severally to refund to the employees all
initiation fees, dues, or other moneys paid or checked off pursuant to the unlawful
union-security agreement, or any extension, renewal, modification, or supplements
thereof, or any agreement superseding it.18
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By recognizing Local 222 as the exclusive bargaining representative for the
Lake Success store employees, by applying the contract of February 4, 1957, to
the Lake Success store employees, and by maintaining said contract in effect with
respect to said employees, Respondent Company has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the
Act, and Respondent Local 222 has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2) of the Act.
2. By deducting union dues from the wages of Lake Success store employees pur-
suant to the checkoff provisions of the aforesaid contract and remitting same to
Respondent Local 222, and by assisting Local 222 in obtaining employee signatures
to union authorization cards, Respondent Company has engaged in and is engaging
in further unfair labor practices within the meaning of Section 8(a)(2) and (1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
1 See, e.g., Bryan Manufacturing Covvpany, supra; Revere Metal Art Co., Inc., 123
NLRB 114; Hibbard Dowel Co., 113 NLRB 28.
Siemons Mailing Service , Petitioner and San Francisco-Oakland
Mailers Union No. 18, ITU, AFL-CIO; Independent Mailers'
and Addressers ' Union, and Bookbinders & Bindery Women,
Local 32-125, I.B. of B . Case No. 2O-RM-260. August 19, 1959
SUPPLEMENTAL DECISION ON MOTIONS, ORDER
AMENDING DECISION AND DIRECTION OF ELEC-
TION, AND ORDER TO SHOW CAUSE
Subsequent to the Board's Decision and Direction of Election in
this case issued on November 14, 1958,1 finding that the Employer's
1122 NLRB 81.
124 NLRB No. 82.