167 N.L.R.B. 870 (N.L.R.B. 1967)

Sunset House

National Labor Relations Board - Board DecisionsOct 19, 1967

167 N.L.R.B. 870 (N.L.R.B. 1967)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sunset House and Department Store Employees Union , Local 1100 , Retail Clerks International As- sociation , AFL-CIO Building Service Employees International Union, Local 399, AFL-CIO and Department Store Em- ployees Union , Local 1100 , Retail Clerks Interna- tional Association , AFL-CIO. Cases 20-CA-4288 and 20-CB-1590 October 19, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On July 13, 1967, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom, and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Employer filed exceptions to the Trial Examiner's Decision, and a supporting brief. The General Counsel filed a brief in support of the Trial Examiner's Decision, and the Charging Party filed a brief in opposition to Employer's exceptions and 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 Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. 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 these cases,' and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondents , Sunset House , its of- ficers, agents, successors , and assigns , and Building Service Employees International Union , Local 399, AFL-CIO, its officers , agents, and representatives, shall take the action set forth in the Trial Ex- aminer ' s Recommended Order, as herein modified. 1. Delete paragraph A, 1, (b), of the Recom- mended Order , and substitute the following: "(b) Giving effect to its contract of September 30, 1966, with the above -named labor organization, with respect to its employees at its San Francisco store , or to any extension , renewal, modification, or supplement thereto , or to any superseding agree- ment , until said labor organization is certified by the National Labor Relations Board as the representa- tive of its employees at its San Francisco store, pro- vided that Respondent Company, in complying herewith , shall not be required to vary or abandon wage , hour , seniority , or other substantive features of its relations with employees established in the performance of said contract." 2. Delete paragraph A, 2, (a), of the Recom- mended Order , and substitute the following: "(a) Withhold and withdraw all recognition from Building Service Employees International Union, Local 399, AFL-CIO, as the exclusive representa- tive of its employees at its San Francisco store, until said labor organization is duly certified by the National Labor Relations Board as the exclusive representative of such employees." 3. Delete paragraph B, 1, (b), of the Recom- mended Order , and substitute the following: "(b) Giving effect to its contract of September 30, 1966, with Respondent Company with respect to employees at the Company ' s San Francisco store , or to any extension , renewal , modification, or supplement thereto , or to any superseding agree- ment , until Respondent Union is certified by.the National Labor Relations Board as the representa- tive of the aforesaid employees of Respondent Company." ' The Employer's request that the Board hear oral argument in these cases is hereby denied, as the record and the briefs adequately present the issues and the positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT , Trial Examiner : This matter was heard at San Francisco , California, on April 4 and 5, 1967. The consolidated complaint, alleges that Respond- ent Company, Sunset House, and Respondent Union, Building Service Employees International Union, Local 399, AFL-CIO, respectively, engaged in unfair labor practices within the meaning of Sections 8(a)(3), (2), and (1) and 8 (b)(I)(A) and (2) of the Act. Briefs have been submitted by all parties. Ruling having been reserved upon a motion to dismiss by Respondent Company, it is denied The General Counsel has moved that certain er- rors in the transcript of testimony be corrected . The mo- tion is hereby granted and the pleading is received in evidence as Trial Examiner ' s Exhibit 1. I Issued January 6, 1967, and based on charges filed October 25, 1966, and January 5, 1967, by Department Store Employees Union, Local 1100, Retail Clerks International Association , AFL-CIO 167 NLRB No. 132 SUNSET HOUSE 871 Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Sunset House is a California corporation maintaining its principal office and place of business at Los Angeles, California, where it is engaged in the sale of sundries through a mail-order operation and 14 retail stores, 13 in Southern California and I in San Francisco. It annually enjoys gross sales in excess of $500,000 and purchases and receives merchandise valued in excess of $50,000 directly from points outside the State of California. Eight percent of sales are made in the 14 retail stores. I find that the operations of Respondent Company affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Department Store Employees Union, Local 1100, Retail Clerks International Association , AFL-CIO, and Building Service Employees International Union, Local 399, AFL-CIO, are labor organizations within the mean- ing of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Introduction; The Issue Following a collective-bargaining history between Respondent Company and a predecessor union, Respond- ent Union was certified by the Board on May 19, 1966, in Case 31-RC-162, as the representative of the em- ployees in the mail-order operation in Los Angeles and the "Los Angeles and San Diego area retail stores." Respondent then operated 11 retail stores. Three others have since opened, these including San Francisco on Au- gust 6, 1966, this being the site of the instant dispute; San Bernardino in October 1966; and Costa Mesa in March 1967. After the opening of the San Francisco store, Respond- ents executed a union-security contract on September 30, 1966, retroactive to September 1, 1966, except for its union-security provisions , extending through July 15, 1968. The General Counsel alleges herein that Respondent Company unlawfully imposed and enforced this contract and its union -security provisions upon the employees of the San Francisco store because none of them had designated Respondent Union as their representative prior to recognition and the signing of the contract, thus depriving them of the right to choose their own bargaining representative . Respondents do not dispute the absence of such authorization . It is their position rather that the San Francisco store was an "accretion" to the previously established unit and that this cures the ostensible depriva- tion of Section 7 rights. Needless to say, if this is a true accretion case , Respondents are correct. B. Store and Bargaining History Respondent Company commenced business as a mail- order operation. Its first retail store, subsequently closed, was opened in Los Angeles in 1959. Thereafter, other stores were opened in various locations in Los Angeles County. In 1963, it branched out to San Diego County to the south, and, in 1964, to Orange County to the southeast. As noted, Respondent Company entered San Francisco in August 1966 and, in October 1966, it en- tered San Bernardino County to the east. The store closest to the San Francisco store is located in Topanga Plaza in Canoga Park. This store is some 35 to 45 miles north of downtown Los Angeles but is still approximately 350 miles south of the San Francisco store, according to Harold Rosenberg, Respondent Company's director of retail stores. Respondent Company is primarily a mail-order con- cern as this operation does 92 percent of its volume, stocking approximately 4,000 items. The retail stores carry approximately 700 items. If an item appearing in catalogues periodically issued by Respondent Company is not stocked in a retail store, the customer may order and pay for it at the retail store. This order is sent to the mail-order house in Los Angeles and then shipped directly to the customer. Turning to the bargaining history, the employees of Respondent Company were initially organized in 1962 and "Industrial Federated Workers of America, Local 886" was certified, in Case 21-RC-7766, in June 1962 as the representative of employees in various departments of the Los Angeles mail-order plant. In October 1963, Local 886 demanded recognition as the representative of the employees of the retail stores. A card check was conducted and Local 886 was recognized that November as the representative for Respondent Company's retail stores "present and future." At the time, Respondent Company had 20 to 25 retail store em- ployees in four Los Angeles stores and one San Diego store out of a total complement of approximately 150. In August 1964, Respondent Company and Local 886 ex- ecuted an agreement covering the mail-order operation and all retail stores present and future. On January 6, 1966, they executed another contract for the same unit through March 30, 1969. Soon thereafter, Respondent Union entered the picture under circumstances not disclosed herein. On May 19, 1966, in Case 31-RC-167, the Regional Director for Re- gion 31 certified Respondent Union as the representative of the employees in the Los Angeles mail-order plant plus the employees of the Los Angeles and San Diego area retail stores. The San Francisco store, the 12th, was opened in Au- gust 1966 , with seven employees, while negotiations for a new contract were under way and, on September 30, 1966, this contract was signed covering the mail-order plant and "all retail stores." The application of this con- tract to San Francisco is under attack herein. C. Implementation of the Contract The contract contains a clause requiring existing mem- bers to remain members of Respondent Union and providing that other employees are required to join, 30 days after the execution of the contract for current em- ployees or the commencement of employment for new hires. There is some vagueness in the record as to the ex- tent initiation fees have been paid at the San Francisco store. All San Francisco employees , upon hire , were given a booklet which contained a provision informing them of the requirement that they join a union , originally Local 886 and , from October 5 on, Respondent Union. On Oc- tober 6 , each San Francisco employee was given a form signed by Vice President and General Manager Roy Hedberg , based at Los Angeles, which drew attention to an attached letter and card from Respondent Union and 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also directed the employee to turn in the card by October 7. This distribution was made at the San Francisco store by Store Manager Monica Nelson , an admitted super- visor. The letter from Respondent Union, dated October 5, referred to the newly executed contract , pointed out that union dues would be deducted commencing in November , and stated that there would be no initiation fees. The employees were also asked to fill out applica- tions for membership . These applications were attached and consisted of (1) an application for union membership and (2 ) a form authorizing the deduction of union dues and initiation fees. On October 22, Respondent Company distributed a letter signed by Hedberg wherein the employees were told about the 30 -day union -security clause . More specifi- cally, they were told that all employees hired before July 31 were to pay a $15 initiation fee and monthly dues of $3. Hires between August 1 and September 30 were to pay monthly dues of $3, but the initiation fee was not pay- able until the following January . Hires between October 3 and December 1 were to pay neither initiation fees nor dues until the following January. They were also told therein that Respondent Company could not continue their employment if the "required dues and initiation fees" were not paid . Also, the checkoff of dues was specified to be voluntary and not mandatory. This contract has been fully implemented by Respondent since September 30, 1966 . It is undisputed that at no time prior to September 30 were any employees at the San Francisco store members of Respondent Union; similarly, none had signed authorization cards in its be- half. The record discloses that there are approximately 120 employees in the 14 retail stores. As of May 1966, the complement at the main plant was variously estimated from 200 to 250 and 300 in number. D. Opening of the San Francisco Store On and after July 25, 1966, Respondent Company recruited and hired seven employees in the San Francisco Bay Area to staff its San Francisco store which opened on August 6. This was handled by Harold Rosenberg, director of retail stores, and his assistant , Lorelei Goetz. Both came to San Francisco from Los Angeles, their headquarters , for this purpose . Advertisements were placed in local newspapers , applicants were interrogated at the store site and hires were ultimately made by Rosen- berg on the scene . All of those interviewed, as well as subsequent replacements , except for the original store manager , were residents of the San Francisco Bay Area. The complement ranges from 7 to 10 in number with a store manager or assistant manager on duty at all times. While Respondent Company has a policy of posting a notice in existing stores that a new store is to be opened, thus allowing employees to apply for transfer to the new store , there is no evidence that such a notice was posted in the Southern California stores relative to this opening. Indeed , on this record , there were no such applicants. E. Analysis and Conclusions Respondent Company argues that the San Francisco store is a logical "accretion " to the existing unit. The Charging Party argues with considerable cogency that (1) employees are normally allowed to select their own bar- gaining representative ; (2) the accretion doctrine is one which forecloses their right to select a bargaining representative as well as to have a voice in the determina- tion of the appropriate bargaining unit ; (3) the application of the accretion doctrine precludes a choice of another equally appropriate unit; and (4) on this posture , although the accretion doctrine involves many of the tests used in the determination of an appropriate unit , it should be ap- plied restrictively because it is in derogation of the basic rights of employees to select their own bargaining representative . The latter concept , it is urged , and logic would certainly seem to face in this direction, is the predominant consideration. Stated otherwise , the accretion doctrine would appear to merit recognition where a plant , for example, opens a new wing across the street . On the other hand , is a new store 350 miles distant in a different labor market to be viewed similarly? Respondent Company urges that the employees in the San Francisco store have a strong community of interest with their other retail store employees ; that this store is a functionally integrated part of their merchandising operation ; and that recognition should be given to the his- tory, described above, of multistore bargaining. It has ad- duced much evidence supporting a finding that all of Respondent Company 's stores are centrally operated from Los Angeles, with a minimum of local independent control. Thus, employment and bonding applications are identi- cal throughout the system and the latter are processed through one agent in Los Angeles. There is a uniform training policy with respect to all employees , as well as a uniform termination policy. The store manager can make recommendations as to terminations, but these must be referred to Rosenberg in Los Angeles for approval. This ties in with the contention of Respondent Company that Rosenberg must approve all new hires , a power , as will appear , that is exercised somewhat differently than Respondent Company contends. Respondent Company points to the uniform skills for these positions as well as the fact that when a new store opens, notices are posted advising employees of the op- portunity to apply for transfer to the store ; as noted, the San Francisco store was handled differently. Respondent Company points out that employees of all stores wear identical name pins and uniforms and they enjoy an identical discount for purchases of merchandise. All receive the same booklet describing employee benefits and -all have the same payday. Life insurance coverage is handled through one agent in Los Angeles. All have the same vacation and holiday plan together with identical sick leave benefits. Rosenberg and his two assistants supervise all 14 stores and Rosenberg spends as much time at the San Francisco store as he does at the San Diego store and a designated Los Angeles store . He designs the layouts of the stores and all are identical . Respondent Company mails out its catalogue about 8 times yearly and uniform displays are arranged in each store to tie in with same. Merchandise to be stocked and the volume thereof in each store is determined by headquarters in Los Angeles based upon regular inventory reports from the stores. As for local advertising by the San Francisco store in papers in that city , Respondent Company points out that these advertisements are placed from headquarters in Los Angeles. The advertisements , it may be noted , are identi- cal as to items and content throughout California , except for identification of the local store or newspaper. Payments for advertisements are made from Los An- geles and noninventory items such as supplies are purchased by headquarters in Los Angeles and then SUNSET HOUSE requisitioned by the local stores. All stores use identical merchandise bags for customers and these are shipped to the stores from Los Angeles. Fire and liability insurance for the San Francisco and other retail stores is placed in Los Angeles. All stores, in- cluding San Francisco, bank at a branch of the Bank of America and deposits are uniformly transferred to Branch 510 of that bank in Los Angeles. The signs and fixtures of all the stores are uniform and they are designed by a Los Angeles concern. While the foregoing indeed constitutes an impressive roster, there are a number of other factors which point to the conclusion urged herein by the General Counsel. As noted, Respondent Company operates 14 retail stores and it is obvious that a transfer of an employee compensated at a low hourly rate from one store to another is a far cry from the case where a highly paid ex- ecutive is transferred from one plant to another many miles distant. Obviously, in this low-wage bracket, it is understandable that the right of transfer is exercised far less often. This is demonstrated by the fact that all hiring has been done in San Francisco and that there have been no exchanges, on this record, of personnel between the San Francisco store and those in Southern California. Stated otherwise, the mileage involved of 350 miles up is a fac- tor. There would appear to be little difficulty here if this store had been opened in Hawaii. On the other hand, with predictions of a megalopolis between Santa Barbara and San Diego, the opening of a Santa Barbara store might be viewed otherwise. Another factor is that the record does not support the contention of Respondent Company that Rosenberg does all the hiring and firing at the stores. While he referred to working a 12-hour day, a literal acceptance of his testimony would impel a finding that his workday was in excess of 24 hours. The Charging Party contends, and I agree, that even if the sole issue herein were one of appropriate unit, the substantial geographic separation of the San Francisco employees from the employees in Southern California and the resulting lack of a meaningful community of em- ployee interests at the very least would warrant a self- determination "Globe" election. But, as stated above, the criterion is actually a narrower one, for the basic right of employees to select their own bargaining representative is the controlling and dominant factor under Section 7 of the Act and this is to be restricted only under compelling conditions. Attention has been directed to the Board decision in Pacqua„Inc., 124 NLRB 895, where the Board pointed out that it "normally permits employees of a new opera- tion to decide whether they wish to be separately represented even when the new operation is integrated with the old." Similarly, in Radio Corporation of Amer- ica, 127 NLRB 1563, the Board accepted the accretion concept on a number of grounds including one that a new plant facility was a direct geographical extension of the old plant within the same fenced area, obviously a con- cept consistent with a literal concept of the term. Indeed, the very fact that employees for the San Fran- cisco store were recruited only in the San Francisco area supports the position of the General Counsel, because presumably there was a nucleus of employees in the Los Angeles area who were oriented toward Respondent Company. 873 The General Counsel has produced evidence of hiring policies at San Francisco which refutes the testimony of Rosenberg that all new hires were to be referred to him personally. While he testified that he had to approve all hires at all stores, the evidence preponderates otherwise. Thus, Clara Kuntz testified that she wandered into the San Francisco store as a customer one Saturday and demonstrated some interest in employment. Store Manager Monica Nelson, who did not testify, was sum- moned to the scene. Nelson gave her an application to fill out and Kuntz did so. Nelson announced that Kuntz was hired and would start work on Tuesday, with Sunday and Monday as her days off. Stated otherwise she was hired by Nelson and told to report on her next assigned work- day. She commenced work on September 27 and worked until November 22. Kuntz further testified that Store Manager Nelson gave her work assignments and at no time stated that her em- ployment was probationary. Nelson also told her that if she worked out satisfactorily, she would receive a pay raise of 5 cents an hour after 30 days. Kuntz further testified that she never met Rosenberg or his assistants. On one occasion, she was told that she was to meet Goetz, but this meeting never took place because Kuntz was on her coffeebreak. In view of this, I am una- ble to dignify the claim of Respondent Company that it in- terviewed and passed on new hires through Los Angeles except for the original staffing Similarly, Donna Lynne was interviewed by Store Manager Nelson on January 30 and told to report for work on January 31. Lynne did not recall whether she was told that her hire was subject to approval by an offi- cial in Los Angeles. She was not interviewed thereafter by a company official from Los Angeles, although she did see Rosenberg in the store on two occasions. Neither Rosenberg nor his assistant, Goetz, ever told Lynne how to perform her duties and Store Manager Nelson and the assistant manager assigned work to Lynne. The inference is warranted that Rosenberg and his assistants visited the stores for more basic reasons such as merchandising and display. Perhaps a more realistic appraisal of the role of Rosen- berg was his reply when asked if he knew Kuntz. He could only state that he did not know her by name but that "Perhaps I would know if I saw her." In sum, it defies credence that Rosenberg maintained a direct and im- mediate supervisory relationship over the hire of the San Francisco employees, some 7 to 10 in number, located over 350 miles distant from his Los Angeles headquar- ters, this in the face of his regular peregrinations among the stores of Respondent Company, then 12 in number, with 11 in the Los Angeles, San Bernardino, and San Diego areas. Moreover, if the position of Respondent Company is to be accepted, Rosenberg and his two assistants maintained rigid and immediate control of hir- ing in a territory including two metropolitan areas, San Diego and San Francisco, over 500 miles apart; this I do not credit. Another realistic factor is that, in view of the distance involved, it is impossible for San Francisco employees to attend union meetings dealing with working conditions. This is not to say that with a larger San Francisco com- plement, representation could not be feasible at union and negotiating meetings. It is to say that with the San Fran- cisco complement of 7 to 10 in a low-wage bracket, any representation by the Los Angeles bargaining representa- 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive would perforce be perfunctory or, in the alternative, not participated in by the affected employees. I consider this more significant than the claim by Rosenberg that in view of air travel he can reach the San Francisco store as quickly as the San Diego store. Another factor is additional evidence concerning the hire of Clara Kuntz. Respondent Company strove to demonstrate that all hires were approved by headquarters in Los Angeles. But Rosenberg, in an effort to substan- tiate the foregoing, could only testify that he spoke with Store Manager Nelson after Kuntz had been there for 2 or 3 weeks. He relied on Nelson's recommendation that Kuntz was a satisfactory employee and told Nelson only "If you like her, that's fine ." Realistically, Nelson hired the employee subject at the most to ratification by higher echelons. Moreover, except for the training of the initial complement of employees, all training is done by the store manager or by the assistant store manager who also make daily work assignments. In essence , then; I believe that the defense of accretion must be narrowly construed, in view of Section 7 rights. The General Counsel has established herein, on a pre- ponderance of the evidence, an ostensible unfair labor practice. Similarly, on a preponderance of the credible evidence, Respondents have not established their defense of accretion. The Court of Appeals for the Sixth Circuit has recently stated in Local 620, Allied Industrial Workers of Amer- ica, AFL-CIO and Dura Corp. v. N.L.R.B., 375 F.2d 707,711 (C.A. 6): Here the question was whether the boundaries of a valid bargaining unit could be contractually extended by an employer and union to cover employees at a distant plant who never indicated their support of that union. The Board found that the new facility did not constitute an accretion to the old plant, and that there was not a sufficient community of interest demonstrated between the Adrian workers and the Ypsilanti workers to justify the former being represented, without their acquiescence, by the same bargaining agent. From the facts detailed in the record before us- the existence of separate adminis- trative units, the geographical distance between the plants, their lack of significant functional integration, the contractual differences governing the two groups of workers, the failure of any substantial interchange of employees to take place, even in the period preceding the lodging of the unfair labor complaint - we are not able to conclude that the Board's findings constituted an abuse of discretion. This issue has been treated in similar fashion recently in Dick v. Sinclair Glass Co., 283 F.Supp. 505 (D.C.Ind.). And for a similar view by the Board, see Food Employers Council, Inc., 163 NLRB 426, and Barr's Jewelers, 131 NLRB 235. I have noted that the Court of Appeals for the First Circuit recently refused to accept a Board finding that one of a chain of seven supermarkets, all located within a 30-mile radius of a central office, was an appropriate bargaining unit. Among other factors, the court pointed out that there was frequent interchange of employees from store to store. The court also noted that the so- called "independence" of the store amounted to no more than a few miles of physical separation and the division of a few ministerial responsibilities. I therefore deem the case to be distinguishable . N.L.R.B . v. Purity Food Stores, Inc., 376 F . 2d 497 (C.A. 1). In a different context , the Board found that the removal of a plant a distance of 32 miles was substantial and re- jected a finding by a Trial Examiner that it was of no greater significance than a move across the street. A for- tiori, an expansion of operations to San Francisco from Los Angeles would seem far more substantial . The Pierce Governor Company, Inc., 164 NLRB 97., See also Beacon Photo Service, Inc., 163 NLRB 706; Raymond's Inc., 161 NLRB 838; Sav-on Drugs, Inc., 138 NLRB 1032; and Martin -Burns Sportables , Inc., 129 NLRB 364. For another decision recognizing the significance of geographic distance, see Corrie Corporation of Charleston v. N.L.R.B., 375 F.2d 149 (C.A. 4). I conclude , therefore , as to the San Francisco store, that the recognition of Respondent Union by Respondent Company constituted unlawful support to the former. I further conclude that by entering into and applying the current collective-bargaining agreement with its union- security provisions to the San Francisco store, Respond- ents have engaged in unfair labor practices , Respondent Company within the meaning of Section 8(a)(1), (2), and (3) and Respondent Union within the meaning of Section 8(b)(1)(A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with Respondent Com- pany's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof V. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent Company unlawfully recog- nized and rendered support to Respondent Union at the San Francisco store and unlawfully entered into a bar- gaining contract containing union-security provisions with that organization. I shall, therefore, recommend that Respondent Company withdraw and withhold all recogni- tion from Respondent Union as the collective-bargaining representative of the San Francisco employees and cease giving effect at San Francisco to its contract of Sep- tember 30, 1966, with that organization, or to any exten- sion , renewal, modification, or supplement thereto, or to any superseding contract, unless and until it is certified by the Board as such representative. However, nothing herein shall be construed as requiring Respondent Com- pany to vary or abandon the wages, hours, seniority, or other substantive features established in the performance of said contract, or to prejudice the assertion by em- ployees of any rights they may have thereunder. I shall also recommend that Respondents, jointly and severally, reimburse all employees of the San Francisco store, present and former, for dues and initiation fees un- lawfully exacted from them, with interest, as provided in Isis Plumbing & Heating Co.. 138 NLRB 716. See SUNSET HOUSE N.L.R.B v. Getlan Iron Works, Inc., 377 F.2d 894 (C.A. 2). Respondent Company's coercion of employees to loin Respondent Union and its potent support and assistance to that organization warrant the inference that the com- mission of similar unfair labor practices by them may be anticipated in the future The remedy should be coexten- sive with the threat. I shall, therefore, recommend that Respondents be ordered to cease and desist from infring- ing in any manner upon the rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and on the entire record in the case, I make the following:2 CONCLUSIONS OF LAW 1. Sunset House is an employer within the meaning of Section 2(2) of the Act. 2. Department Store Employees Union, Local 1100, Retail Clerks International Association, AFL-CIO, and Building Service Employees International Union, Local 399, AFL-CIO, are labor organizations within the mean- ing of Section 2(5) of the Act. 3. By recognizing Respondent Union, by executing and maintaining a contract containing union-security provisions, and by enforcing said provisions, thereby en- couraging membership in Respondent Union, Respond- ent Company has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (3) of the Act. 4. By the foregoing, Respondent Company has en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 5. By obtaining recognition and by executing and maintaining a contract containing union-security provi- sions, thereby causing Respondent Company to dis- criminate against employees in violation of Section 8(a)(3) of the Act, Respondent Union has engaged in un- fair labor practices within the meaning of Section 8(b)(2) of the Act. 6 By the foregoing, Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, I recommend that. A. Respondent Company, Sunset House, Los An- geles, California , its officers, agents, successors , and as- signs, shall: 1. Cease and desist from: (a) Encouraging membership in Building Service Em- ployees International Union , Local 399, AFL-CIO, or in any other labor organization of its employees, under threat of discharge , or by discriminating in any other manner in regard to hire or tenure of employment, or any term or condition thereof, except to the extent authorized by Section 8(a)(3) of the Act. I The following Conclusions of Law and Recommended Order apply solely to the San Francisco store 3 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further 875 (b) Giving effect to its contract of September 30, 1966, with the above -named labor organization , or to any extension , renewal , modification , or supplement thereto, or to any superseding agreement , until said labor or- ganization is certified by the National Labor Relations Board as the representative of its employees , provided that, Respondent Company, in complying herewith, shall not be required to vary or abandon wage, hour , seniority, or other substantive features of its relations with em- ployees established in the performance of said contract. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent those rights may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment , as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act- (a) Withhold and withdraw all recognition from Build- ing Service Employees International Union , Local 399, AFL-CIO, as the exclusive representative of its em- ployees until said labor organization is duly certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Post at its San Francisco store copies of the at- tached notice marked "Appendix A" and "Appendix B,"3 the latter to be signed by a representative of Respond- ent Union , as provided below. Copies of said notices, to be furnished by the Regional Director for Region 20, after being duly signed by a representative of Respondent Company, shall 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 employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director , in writing , within 20 days from the receipt of this Decision, what steps have been taken to comply herewith . [See fn . 4, infra. ] B. Respondent Union , Building Service Employees International Union , Local 399, AFL-CIO, its officers, representatives , and agents , shall: 1. Cease and desist from: (a) Causing or attempting to cause Respondent Com- pany to discriminate against employees in violation of Section 8(a)(3) of the Act. (b) Giving effect to its contract of September 30, 1966, with Respondent Company, or to any extension, renewal , modification , or supplement thereto, or to any superseding agreement , until Respondent Union is cer- tified by the National Labor Relations Board as the representative of the aforesaid employees of Respondent Company. (c) In any other manner restraining or coercing em- ployees of Respondent Company in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent those rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment , as authorized by Section 8(a)(3) of the Act event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its business office copies of the attached notice marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by Respondent Union's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 20 signed copies of the attached notice marked "Appendix B" for posting, in places where notices to the San Francisco em- ployees of Respondent Company are customarily posted, for a period of 60 consecutive days thereafter. Copies of said notice shall be furnished by said Regional Director, signed by Respondent Union, and forthwith returned to the Regional Director for said posting. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.4 C. Respondent Company and Respondent Union shall jointly and severally reimburse all employees for dues and initiation fees exacted from the employees of the former, with interest as provided in the section of this Decision entitled "The Remedy." " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respond- ent has taken to comply herewith " ployment, or any term or condition thereof, except to the extent authorized by Section 8(a)(3) of the Act WE WILL jointly and severally with Building Ser- vice Employees International Union , Local 399, AFL-CIO, make whole the employees of our San Francisco store for dues and initiation fees paid to the above - named labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act , except to the extent those 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 Act. All our employees are free to become , remain, or to refrain from becoming or remaining , members of the above-named or any other labor organization. Dated By SUNSET HOUSE (Employer) (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT recognize and WE WILL withhold recognition from Building Service Employees Inter- national Union, Local 399, AFL-CIO, as the exclu- sive representative of our San Francisco employees, for the purposes of collective bargaining, until said labor organization is certified by the National Labor Relations Board as the representative of those em- ployees WE WILL NOT give effect, at our San Francisco store, to our agreement of September 30, 1966, with the above-named labor organization, or to any exten- sion, renewal, modification or supplement thereof, or any superseding agreement, until that union is cer- tified by the National Labor Relations Board as the representative of said employees. WE WILL NOT encourage membership in Building Service Employees International Union, Local 399, AFL-CIO, or in any other labor organization of our employees, by compelling employees to become or remain members of such organization under threat of discharge, and WE WILL NOT discriminate in any other manner in regard to their hire or tenure of em- APPENDIX B NOTICE TO ALL MEMBERS OF BUILDING SERVICE EM- PLOYEES INTERNATIONAL UNION, LOCAL 399, AFL-CIO AND TO ALL EMPLOYEES OF SUNSET HOUSE Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT give effect to our agreement of Sep- tember 30, 1966, with Sunset House at their San Francisco store and WE WILL NOT enter into, give ef- fect to, or enforce any extension, renewal, modifica- tion, or supplement thereof, or any superseding agreement, until we shall have been duly certified by the National Labor Relations Board as the represent- ative of said employees of Sunset House. WE WILL NOT cause, or attempt to cause, Sunset House to discriminate against employees in violation of Section 8(a)(3) of the Act. WE WILL jointly and severally with Sunset House make whole the employees of their San Francisco store for dues and initiation fees paid by them to us. WE WILL NOT in any other manner restrain or coerce the employees of said employer in the exer- cise of the rights guaranteed by Section 7 of the Act, except to the extent those rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized by Section 8(a)(3) of the Act. SUNSET HOUSE 877 BUILDING SERVICE EM- This notice must remain posted for 60 consecutive PLOYEES INTERNATIONAL days from the date of posting and must not be altered, UNION, LOCAL 399 , defaced , or covered by any other material. AFL-CIO If members have any question concerning this notice or (Labor Organization) compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Dated By Building, 450 Golden Gate Avenue, Box 36047, San (Representative ) (Title) Francisco, California 94102, Telephone 556-3197.