Robert Hall Clothes

National Labor Relations Board - Board Decisions

Dec 1, 1973

207 N.L.R.B. 692 (N.L.R.B. 1973)

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert Hall Gentilly Road Corporation, d/b/a Robert
Hall Clothes ; Jack Grossman Enterprises, Inc.;
Suitland Domestics, Inc.; National Hard Goods
Distributors, Inc.; Harry Camp Company; Morse
Shoe, Inc.; Adlay Jewelry, Inc.; Sherwin-Williams
Company ; and Greenman Bros., Inc; and Retail
Clerks Union, Local 548, a/w Retail Clerks
International Association , AFL-CIO.
Local 835, Retail Department Store Employees,
Amalgamated Clothing Workers of America,
AFL-CIO and Retail Clerks Union, Local 548,
a/w Retail Clerks International Association,
AFL-CIO. Cases 15-CA-4716 and 15-CB-1368
December 1, 1973
DECISION AND ORDER
By CHAIRMAN ' MILLER AND MEMBERS
FANNING AND PENELLO
On June 29, 1973, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the Respondent
Employers and Respondent Local 835 filed excep-
tions and supporting briefs, and the Charging Party,
hereinafter called Local 548, filed cross-exceptions
and a brief in support thereof, and a brief in answer
to Respondents' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in the light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that on
December 19, 1972, when the Respondent Employers
voluntarily recognized Respondent Local 835 on the
basis of a third-party card check, a real question
concerning Local 548s right to represent employees
existed. Accordingly, the Administrative Law Judge
held that the Respondent Companies, by thus
according recognition to Respondent Local 835, ran
afoul of the Board's Midwest Piping' doctrine,
thereby violating Section 8(a)(2) and (1) of the Act.
He further held that Respondent Local 835, by
accepting voluntary recognition, similarly violated
Section 8(b)(1)(A) of the Act. We disagree.
As more fully set forth in the attached Administra-
tive Law Judge's Decision, Respondent Local 835
telegraphed the Respondent Companies on October
18, 1972, demanding recognition, asserting that it
had signed authorization cards from a majority of
the employees here involved and that such majority
could be established by an independent third-party
card check. Thereafter, between October 19 and
November 1, Local 548 filed several petitions seeking
to represent employees in a number of units
subsequently found inappropriate by the Regional
Director. Those cases involving the aforementioned
petitions were consolidated; Respondent Local 835
was allowed to intervene; and a hearing was held on
November 2, at which, inter alia, evidence was
adduced bearing upon the appropriateness of the
unit. At the hearing, and contrary to the position
taken by Local 548, Respondent Local 835 contend-
ed that only an overall unit composed of Robert Hall
employees and the employees of its licensees at the
Old Gentilly Road facility was appropriate. On
December 1, 1972, the Regional Director issued his
Decision and Direction of Election in which he
found that only the overall unit was appropriate.
Further, noting that Local 548 expressed a desire to
go to an election in an overall unit if such was found
appropriate, the Regional Director expressly condi-
tioned the holding of an election on an administra-
tive determination that Local 548, the petitioner in
the representation proceeding, had an adequate
showing of interest in the appropriate unit.
As of November 25, 1972, there were 155 employ-
ees in the appropriate unit. As of December 1, Local
548 had signed authorization cards from 23 employ-
ees in that unit. It acquired a 24th card on December
4. Pursuant to the Regional Director's Decision,
Local 548 was asked to submit additional cards or
withdraw its petitions.
In the meantime, on December 6, Local 548 wrote
Respondent Robert Hall Clothes, advising that
Company that it was conducting an organizing
program at the Old Gentilly Road facility and
further stating that it represented employees in that
store and therefore that said Respondent should
"give this due consideration before making any
decision relative to the other labor organization
involved."
On December 12, by telegram to the Regional
Director for Region 15, Local 548 requested that its
petition be withdrawn, adding, however, that it
continued to assert an interest in the employees in
the unit found appropriate and desired to participate
in any election directed for that unit. On the same
date, Respondent Local 835 advised the Regional
Office that it did not wish to proceed to an election.
On December 13, the Acting Regional Director
approved Local 548's request to withdraw. On the
same date Respondent Local 835 renewed its original
1 Midwest Piping & Supply Co., Inc, 63 NLRB 1060.
207 NLRB No. 113
ROBERT HALL CLOTHES 693
request for recognition upon a third-party card
check. The Respondent Companies agreed and, on
December 19, a card check was held before a local
clergyman. The clergyman certified that Respondent
Local 835 had submitted valid authorization cards
from 114 of the 153 employees in the overall unit
found appropriate by the Regional Director. The
Respondent Companies recognized Respondent
Local 835 forthwith.
On the foregoing facts, the Administrative Law
Judge found that the continuing "interest" manifest-
ed by Local 548, following withdrawal of the
aforementioned petitions, was not so clearly unsup-
portable and lacking in substance as to permit
voluntary recognition of Respondent Local 835. We
hold otherwise.2
The record reveals that Local 548 commenced its
organizational campaign at the Old Gentilly Road
facility in April 1972. This campaign was directed
towards employees in the clothing, record, and
domestic departments which were ultimately includ-
ed in a larger overall unit found appropriate by the
Regional Director in his aforementioned Decision
and Direction of Election. As previously stated,
pursuant to that Decision, Local 548 was requested
to submit additional cards evidencing its showing of
interest in the larger unit or, alternatively, to
withdraw its petitions. In response, Local 548
requested withdrawal of its petitions, although it
informed the Regional Director that it continued to
assert an interest in the, employees in the unit found
appropriate. The only evidence of record indicating
such an "interest" subsequent to this withdrawal
request is Local 548's December 13 communication
to the Respondent Companies advising that they
were "currently conducting an organizing campaign"
among those employees. However, at the hearing
held herein, no evidence was adduced showing that
any cards were solicited or signed on behalf of Local
548 after it requested that its petitions for elections
be withdrawn. Indeed, there is no evidence that
Local 548 thereafter engaged in any activity consist-
ent with its claim that it was currently conducting an
organizing campaign. Significantly, the individual
alleged to have been in charge of Local 548's
organizational campaign since early October was not
called to testify.
In these circumstances, we think that the Adminis-
trative Law Judge's reliance upon the Board's
Decision in Playskool3 is misplaced. In that case, we
found that the respondent unlawfully assisted a
favored union when it voluntarily recognized that
union following an election defeat by a rival union
where,, after the election, the rival union manifested
clear evidence of a continuing organizational effort.
In that case, the rival union continued to send
organizers to the respondent's plant, obtained addi-
tional authorization cards, held occasional meetings,
and visited employees in their homes. By contrast, we
find in this case no more than a naked claim to a
continuing interest in the employees here involved.4
We find such a claim insufficient to compel applica-
tion of our Midwest Piping doctrine, and accordingly,
under the circumstances herein, hold that the
Respondents did not run afoul of the Act by
respectively granting and accepting voluntary recog-
nition, following a third-party card check.
For these reasons, we shall dismiss the complaint in
its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
2 The General Counsel does not contend that Respondent Local 835's
cards were tainted , but only that there is doubt as to the "validity of
recognition based on them " We disagree . The size of the unit is not
contested. Even assuming that all employees who signed cards for Local 548
also signed cards for Respondent Local 835, deletion of these cards from the
number counted during the card check would still leave Respondent Local
835 with a clear majority.
3 Playskool, Inc., a Division of Milton Bradley Company, 195 NLRB 560,
enforcement denied 477 F.2d 66 (C.A. 7, 1973).
4 Compare Inter-Island Resorts, Ltd., d/b/a Kona Surf Hotel, 201 NLRB
139, also cited by the Administrative Law Judge in support of his Decision
There, recognition was accorded one union in the face of a rival union's
outstanding representation petition which eventually was supported by a
sufficient showing of interest . In this regard , the facts therein reveal that the
petitioning union was engaged in an active , ongoing organizational
campaign among the unit employees which resulted in that union's
obtaining the requisite interest showing to support its petition within a few
days after its filing, and at the time recognition was unlawfully accorded the
assisted union. Clearly the facts of that case distinguish it from the instant
matter.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charges in both cases were filed on December 22,
1972.1 The cases were consolidated and a consolidated
complaint was issued on February 16, 1973. An amend-
ment to the consolidated complaint was issued on April 17,
1973. The hearing was held on April 24, 1973, in New
Orleans, Louisiana.
The amended consolidated complaint alleges that Res-
pondent Companies and Local 835 committed Midwest
Piping2 violations of, respectively, Section 8(a)(2) and (1)
and Section 8(b)(l)(A) of the National Labor Relations
Act, as amended, on or about December 19. For the
reasons set forth below, I find that a real question
concerning Local 548's right to represent the employees
involved existed when, on that date, Respondent Compa-
i Dates are 1972 unless otherwise specified-
2 Midwest Piping & Supply Co, Inc., 63 NLRB 1060.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vies recognized Local 835 on the basis of a card check, and
that, therefore, Respondents violated the Act as alleged.
Upon the entire record and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
BERNARD J . FIRESTONE
REGIONAL COUNSEL
RETAIL AND DEPARTMENT STORE
EMPLOYEES, AMALGAMATED
CLOTHING WORKERS
OF AMERICA, AFL-CIO
I. JURISDICTION
Robert Hall Gentilly Road Corporation, a Louisiana
corporation, is a wholly owned subsidiary of Robert Hall
Clothes, Inc., a Delaware corporation. It operates a retail
clothing store in New Orleans which has been known since
October 1972 as Robert Hall Village. The eight other
companies named in the caption above have been its
licensees since October 1972. Each operates a retail store in
Robert Hall Village. Their licenses expressly reserve to the
licensor control of their labor policies. During the year
prior to issuance of the consolidated complaint, Robert
Hall Gentilly Road Corporation grossed more than
$500,000 and received goods valued in excess of $50,000
which were shipped directly to its New Orleans store by
suppliers located outside the State of Louisiana. In the year
ending in October 1973 all nine companies named jointly
as Respondents in this proceeding will jointly gross more
than $500,000 from their operations at Robert Hall Village
and receive goods valued in excess of $50,000 which will be
shipped directly to Robert Hall Village by suppliers located
outside the State of Louisiana.
II. THE UNFAIR LABOR PRACTICES
A. Facts
Both Local 548 and Local 835 undertook to organize
Robert Hall Village employees in 1972. On October 18,
Local 835 demanded recognition in a telegram which read:
MR. JEROME ROCKMAN
ROBERT HALL CLOTHES
333 w. 34TH STREET
NEW YORK, NEW YORK 10001
A MAJORITY OF THE EMPLOYEES EMPLOYED IN YOUR
ROBERT HALL VILLAGE STORE LOCATED AT 4200 OLD
GENTILLY ROAD IN NEW ORLEANS, LOUISIANA HAVE
VOLUNTARILY SELECTED THE RETAIL AND DEPARTMENT
STORE EMPLOYEES , AMALGAMATED CLOTHING WORKERS
OF AMERICA, AFL-CIO, AS THEIR COLLECTIVE BARGAINING
AGENT FOR THE PURPOSE OF NEGOTIATING WAGES,
HOURS AND WORKING CC_`-DITIONS.
CONTACT THE UNDERSIGNED AT AREA CODE
313-961-3085, SO THAT WE CAN ARRANGE TO PROVE
OUR MAJORITY STATUS THROUGH A CARD CHECK TO BE
CONDUCTED BY A DISINTERESTED THIRD PARTY AND
THEREAFTER NEGOTIATE THE TERMS OF A LABOR
AGREEMENT.
Local 548 took the -Board election route. On October 19
it filed a petition in Case 15-RC-5021. On November 1 it
filed petitions in Cases 15-RC-5032 and 5033. The cases
were consolidated and a hearing was held on November 2.
Local 835 intervened. On December 1 the Regional
Director directed an election in the following unit:
All full-time and regular part-time selling and non-
selling employees of the Employer at its retail operation
known as Robert Hall Village, including employees of
the licensed departments operated under license agree-
ments with Jack Grossman Enterprises, Inc.; Suitland
Domestics, Inc.; National Hard Goods Distributors,
Inc.; Harry Camp Company; Morse Shoe, Inc.; Adlay
Jewelry, Inc.; Sherwin-Williams Company; and Green-
man Bros., Inc.; excluding all associate general
managers, store managers, assistant store managers,
department managers, executive management trainees,
confidential cash room employees, professional em-
ployees, watchmen and/or guards and supervisors as
'defined in the Act.
His Decision and Direction of Election read, in pertinent
part:
Employer has operated a retail store at 4700 Old
Gentilly Road, New Orleans, Louisiana, for nine years.
This facility was reorganized in October 1972, and now
operates under the name of Robert Hall Village with
Employer now functioning as the operator of a clothing
department under the name of Robert Hall Clothes
and as the licensor to eight licensees which operate
various departments in the store. These licensees and
the products sold by each are Jack Grossman Enter-
prises, Inc. (records); Suitland Domestics , Inc. ,(Imens,
domestics, fabrics and rugs); National Hard Goods
Distributors, Inc. (glassware, gift ware and garden
shop); Harry Camp Company (millinery and hair
goods); Morse Shoe, Inc. (shoes); Adlay Jewelry, Inc.
(jewelry and catalogue sales); Sherwin-Williams Com-
pany (lumber and paints); and Greenman Bros., Inc.
(toys, sporting goods, and hobbies). Approximately 160
employees are employed throughout the facility by
Employer and the various licensees . Petitioner and the
Intervenor disagree as to the scope of the unit. In Case
No. I5-RC-5021, Petitioner seeks to represent the 74
employees of Robert Hall Clothes. In Case No.
15-RC-5032, Petitioner seeks to represent the 6
employees of Suitland Domestics, Inc. In Case No.
15-RC-5033, Petitioner seeks to represent the 2
employees of Jack Grossman Enterprises, Inc. The
Intervenor contends that only an overall- unit of all
employees of Employer and the eight licensees at the
Old Gentilly Road facility is an appropriate unit.
Employer takes no position as to the scope of the unit.
Although the foregoing disagreement as to the scope
ROBERT HALL CLOTHES 695
of the unit exists, the parties stipulated that the unit
should comprise all full and regular part-time selling
and non-selling -employees with certain specified
exclusions.
The evidence clearly establishes that Robert Hall
Gentilly Road Corporation and the eight licensees are
joint employers of the licensees' employees.
*
There appears to be little basis for considering the
employees of merely either the Employer, Jack Gross-
man Enterprises, Inc., or Suitland Domestics, Inc., to
have any separate, different, or distinct interests from
those of all of the other employees employed in the
department store other than Petitioner's desire to
represent these three employee groups in separate units.
In this regard, it should be noted that after analyzing
the evidence adduced in this proceeding pertaining to
the license agreements, Petitioner stated in its brief that
it now seeks an election in such unit or units as may be
found appropriate by the undersigned and no longer
presses its original separate unit contentions as stated
above. Based upon the foregoing, and the entire record,
it is found that a selling and non-selling employee unit
in the terms of the parties' stipulation encompassing
employees of Employer and its eight licensees is an
appropriate unit.
*
Petitioner expressed a desire to go to an election in
an overall unit if such was found appropriate. Howev-
er, Petitioner, should it so desire, is permitted to
withdraw upon notice to the Regional Director within
10 days from the issuance of the instant Decision and
Direction of Election. Moreover, the Decision and
Direction of Election herein is expressly conditioned on
an administrative determination that Petitioner has an
adequate showing of interest in the unit herein found
appropriate.
As of November 25, there were 155 employees in the unit
found appropriate by the Regional Director. As of
December 1 Local 548 had current authorization cards
from 23 of them. It acquired a 24th card on December 4.
Pursuant to the Regional Director's decision, Local 548
was asked to submit additional cards or withdraw its
petitions. On December 12 it sent the following telegram to
the Regional Director:
IN LIGHT OF THE DIRECTION OF ELECTION BY THE
REGIONAL DIRECTOR IN A UNIT DIFFERENT FROM THAT
PETITIONED FOR BY RETAIL CLERKS UNION LOCAL NO.
548 WE HEREBY REQUEST A WITHDRAWAL OF THE
PETITIONS IN CASE NOS. 15-RC-5021, 15-RC-5032, AND
15-RC-5033, WE CONTINUE TO ASSERT AN INTEREST IN
THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE BY
THE REGIONAL DIRECTOR AND WOULD DESIRE TO
PARTICIPATE IN ANY ELECTION DIRECTED FOR THAT UNIT.
COPY TO PARTIES.
EDWARD P. WENDEL
COUNSEL FOR LOCAL NO. 548
Local 835 was asked if it wished to proceed to an election
on the basis of its adequate showing of interest. On
December 12 it sent the following telegram to the Acting
Regional Director:
RE ROBERT HALL GENTILLY ROAD CORPORATION DOING
BUSINESS AS ROBERT HALL CLOTHES ETAL CASE NUMBERS
15-RC-5021; [5]032, 5033, ADVISE[D] THAT PETITIONERS
RETAIL CLERKS UNION LOCAL 548 HAS INSUFFICIENT
SHOWING OF INTEREST IN UNIT FOUND APPROPRIATE BY
REGIONAL DIRECTOR INTERVENER DOES NOT DESIRE TO
PROCEED TO AN ELECTION BASED ON THE ABOVE FACTS
TRUST THAT PETITION WILL THEREFORE BE WITHDRAWN
OR DISMISSED AND THAT INTERVENERS SHOWING OF
INTEREST WILL BE RETURNED FORTHWITH TO ITS NEW
ORLEANS OFFICE OR TO DESIGNATED REPRESENTATIVE
THEREOF BERNARD J. FIRESTONE, ATTORNEY FOR
INTERVENER LOCAL 835 RETAIL AND DEPARTMENT STORE
EMPLOYEES AMALGATED CLOTHING WORKERS OF
AMERICA AFL-CIO
Consequently, on December 13 the Acting Regional
Director approved Local 548's request to withdraw its
petitions.
In the meantime, under date of December 6, Local 548
had sent the following letter to Robert Hall Clothes:
Mr. Jerome H. Rockman
Assistant Vice President
Director of Industrial Relations
Robert Hall Clothing
333 West 34th Street
New York, NY
Dear Mr. Rockrnan:
As you well know, we are currently conducting an
organizing program in your store located at 4700 Old
Gentilly Road, New Orleans, LA. Since the Amalga-
mated Clothing Workers are also on the scene, we feel
obliged to remind you that we represent employees in
this store and we trust that you will give this due
consideration before making any decision relative to
the other labor organization involved.
Sincerely yours,
Lester J. Barbazon, Jr.
President
Robert Hall Clothes replied under date of December 12, as
follows:
Mr. Lester J. Barbazon, Jr.
President, Retail Clerks Union
Local548
901 Veterans Highway
Metairie, La. 70005
Dear Mr. Barbazon:
In reply to your letter of December 6, 1972, received
at this office on December 11, 1972, please be advised
as follows:
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our company has always believed in and will Dear Mr. Rockmart:
continue to subscribe to the democratic processes.
We shall, therefore, be consistent with that policy
and abide by all decisions directed by the National
Relations Board, in your situation in New Orleans.
Sincerely yours,
ROBERT HALL CLOTHES
Jerome H. Rockman
Vice President
Director of Industrial Relations
On December 13, Local 835 sent the following telegram
to Robert Hall Clothes:
Jerome Rockman
VICE PRES ROBERT HALL CLOTHES 333 WEST 34 ST NYK
10001 HAVE BEEN ADVISED THAT RETAIL CLERKS UNION
LOCAL 548 HAS INSUFFICIENT SHOWING OF INTEREST IN
UNITS DEEMED APPROPRIATE BY REGIONAL DIRECTOR IN
CASE NUMBER 15-RC-5021, 5032; 5033 PETITION WILL
THEREFORE BE WITHDRAWN OR DISMISSED WE ARE
THEREFORE RENEWING OUR ORIGINAL REQUEST FOR
RECOGNITION THAT WAS MADE ON OCTOBER 18TH 1972
FOR FULL TIME AND REGULAR PART TIME EMPLOYEES
EMPLOYED AT YOUR ROBERT HALL VILLAGE STORE
INCLUDING SUCH EMPLOYEES LICENSEES LOCATED AT
4700 OLD GENTILLY RD NEW ORLEANS LA CONTACT THE
UNDERSIGNED AT 313-961-3085 so THAT WE CAN
ARRANGE TO PROVE OUR MAJORITY STATUS THROUGH A
CARD CHECK TO BE CONDUCTED BY AN INDEPENDENT
3RD PARTY AND THEREAFTER TO NEGOTIATE THE TERMS
OF A LABOR AGREEMENT
BERNARD J FIRESTONE ATTORNEY FOR LOCAL 835
RETAIL AND DEPARTMENT STORE EMPLOYEES
AMALGAMATED CLOTHING
WORKERS OF AMERICA AFL-CIO.
Robert Hall Clothes agreed to a card check. It was held
on December 19 in New Orleans before a priest. Local 548
was not notified that Robert Hall Clothes had agreed to a
card check. It was not invited to be present on December
19. No representative of Local 548 attended. The priest
certified that Local 835 had submitted valid authorization
cards from 114 of the 153 employees in the unit, that it had
submitted 4 additional cards which were not used in his
card check, and that Local 835 had been designated as
their collective-bargaining agent by a majority of the
employees in the unit previously found appropriate by the
Regional Director. Respondent Companies recognized
Local 835 forthwith.
On December 21 Local 548 sent the following letter to
Robert Hall:
Mr. Jerome Rockmart
Robert Hall Clothes, Inc.
333 West 34th Street
New York, New York 10001
3 The question of whether the General Counsel has proved that Local
835 did not, in fact, represent a majority of unit employees when it was
recognized, the point upon which the court relied in reversing the Board in
Playskool, is not present here. The General Counsel conceded that Local
835's cards were untainted. Neither Local 835's cards nor the unit employee
We have been advised that Robert Hall Clothes, Inc.
has recognized Amalgamated Clothing Workers Local
835 as bargaining representative for the employees at
its Robert Hall Village store at 4700 Old Gentilly Road,
New Orleans, Louisiana sometime during the week of
December 18. We request immediate notification as to
whether such recognition has in fact been granted.
Sincerely,
Edward P. Wendel
Counsel for Retail Clerks Union,
Local No. 548
On December 27 Robert Hall replied as follows:
Mr. Edward P. Wendel
Assistant General Counsel
Retail Clerks International Assoc.
Suffridge Building
Washington, D.C. 20006
Dear Mr. Wendel:
In reply to your letter of December 21st, be advised
that the Amalgamated Clothing Workers of America,
Local 835 was recognized as the bargaining agent for
the employees of the Robert Hall Village store, located
at 4700 Old Gentilly Road, New Orleans, La., during
the week of December 18, 1972 on the basis of a card-
check conducted by a disinterested third party.
Local 835 was able to produce substantial evidence
that it represented the employees of that store.
Very truly yours,
ROBERT HALL CLOTHES
Jerome H. Rockman
Vice President
Director of Industrial Relations
B. Analysis and Conclusions
While the two cases are not on all fours, there is no
material difference between the facts in this case and the
facts in Playskool, Inc., a Division of Milton Bradley
Company, 195 NLRB 560, enforcement denied 477 F.2d 66
(C.A. 7, 1973), on which one can be distinguished from the
other.3
In Playskool the unfavored union's interest in the unit
employees and the employer's knowledge thereof were
predicated on an election, held only 4 months prior to the
employer's voluntary recognition of the favored union, in
which 29.9 percent of unit employees had voted for the
unfavored union and on its continuing efforts to solicit
employees in the interim. Here, they are predicated on
Local 548's abortive efforts to get a Board election in
list as of December 19 was introduced into evidence . Thus there is no basis
for a finding that the priest's certification that Local 835, in fact,
represented a majority of unit employees was incorrect or that any of Local
835's cards were signed by employees who had also signed cards for Local
548.
ROBERT HALL CLOTHES 697
which it failed to produce the requisite 30-percent showing
of interest in the unit found appropriate by the Regional
Director and on its assertion of a continuing interest
despite that failure in its December 6 letter to Robert Hall
Clothes. In both instances the subsequent card check was
held without the knowledge or participation of the
unfavored union.
As the Court of Appeals for the Seventh Circuit pointed
out, the Boards finding that this situation gives rise to
Midwest Piping violations is based on the proposition that:
... the sole requirement necessary to raise a question
concerning representation within the meaning of the
Midwest Piping doctrine, as modified by the Board, is
that the claim of the rival union must not be clearly
unsupportable and lacking in substance.
Here, as in Playskool, the rival union's, i.e., Local 548's,
claim is not clearly unsupportable and lacking in sub-
stance.
In refusing to enforce the Board's order in Playskool, the
court said:
As the petitioners [i.e., respondents] correctly repre-
sented at oral argument, the Board and the Circuit
Courts of Appeals which have reviewed Board deci-
sions have disagreed upon the application and exten-
sion of the Midwest Piping doctrine. The Board has
-held that this doctrine precludes recognition of any
union upon the-basis of a card showing when another
union has raised a "question concerning representa-
tion." The Board has not precisely defined the
minimum amount of support a union must show to
raise such a question, but it has held that an election
between two competing unions must be held if the
claim of the rival is "not clearly unsupportable and
lacking in substance." (See the Board decision in the
instant case, reported at 195 N.L.R.B. No. 89.) Nor is it
necessary for the rival union to present any claim to the
employer that it currently has majority support, for the
employer's knowledge of organizing activity is appar-
ently sufficient to raise the question.
The courts, on the other hand, have generally
refused to' find a violation of § 8(a)(2) where an
employer has recognized one of two unions competing
for exclusive recognition on the basis of a clear
demonstration of majority support. N.L.R.B. v. Peter
Paul, Inc., f167 F.2d 700 (9th Cir. 1972), Modine
Manufacturing Co. v. N.L.R.B., 453 F.2d 292 (8th Cir.
1971), American Bread Co. v. N.L.R.B., 411 F.2d 147
(6th Cir. 1969), Iowa Beef Packers v. N.L.R.B., 331 F.2d
176 (8th,Cir. 1964). The courts have reasoned that, in
extending recognition to a union on such a showing,
the employer' has not "coerced or interfered with" the
minority' union, but has merely obeyed the duty
imposed upon him to recognize the agent which his
employees have designated . N.L.R.B. v. Indianapolis
Newspapers, Inc., 210 F.2d 501 , 503 (7th Cir. 1954).
On this appeal, the policy reasons of recognizing the
free choice of employees and preserving labor peace
lead us to adhere to the view of judicial decisions which
have refused to find a violation of the Midwest Piping
doctrine where one union has made a valid demonstra-
tion of majority support among unrepresented employ-
ees. [Fn. omitted.]
Thus the issue posed in this proceeding is whether the
Board's test of a rival union's claim which is not clearly
unsupportable and lacking in substance or the court's test
of a valid demonstration of majority support among
unrepresented employees should control. Since the Board
has not indicated its concurrence in the court's view and
since I am bound by Board precedent, 1 have no choice. I
find, therefore, that, when Respondent Companies volun-
tarily recognized Local 835 on December 19 on the basis of
a card check at a time when Local 548s rival claim was
supportable and substantial, Respondent Companies vio-
lated Section 8(a)(2) and (1) and Local 835 violated Section
8(b)(1)(A) of the Act. Inter-Island Resorts, Ltd, d/b/a Kona
Surf Hotel, 201 NLRB 139.
Upon the foregoing findings of fact and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondent Companies are a single intergrated
business enterprise and a joint employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 548 and Local 835 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By voluntarily recognizing Local 835 on December
19, 1972, as the collective-bargaining representative of
employees at Robert Hall Village at a time when Local
548's rival claim was supportable and substantial, Respon-
dent Companies have violated Section 8(a)(2) and (1) of
the Act.
4. By accepting Respondent Companies' voluntary
recognition on December 19, 1972, as the collective-
bargaining representative of employees at Robert Hall
Village at a time when Local 548's rival claim was
supportable and substantial, Local 835 has violated Section
8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
[Recommended Order omitted from publication.]