White Front Sacramento, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 44 (N.L.R.B. 1967)

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White Front Sacramento, Inc. and Building Service
Employees' Union, Local 22, Building Service Em-
ployees' International Union , AFL-CIO Charging
Party and Retail Clerks Union, Local 588, Retail
Clerks International Association , AFL-CIO Party
to the Contract. Case 20-CA-3793
June 28,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On October 28, 1966, Trial Examiner David E.
Davis issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the Intervenor filed
exceptions to the Trial Examiner's Decision and
supporting briefs; and the General Counsel filed a
brief in support of the 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 this case 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, briefs,
and the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following ex-
ceptions, additions, and modifications.
The Respondent is one of a number of wholly
owned subsidiaries of Interstate Department
Stores, Inc., which operates the White Front
discount department store chain. The store in-
volved in these proceedings is located in Sacramen-
to, California, and commenced operations on Au-
gust 13, 1964. Prior to the opening, Respondent
subcontracted to Guardian Building Maintenance
Company (herein referred to as Guardian) the jani-
torial services which would be required at the store.
On August 9, Guardian entered into an agreement
with Building Service Employees' Union, Local 22,
Building Service Employees' International Union,
AFL-CIO (herein referred to as Local 22), which,
among other things, called for checkoff from em-
' The Respondent's and Intervenor's exceptions to the Trial Ex-
aminer's Decision are in part directed to the credibility resolutions of the
Trial Examiner. We will not, however, overturn a Trial Examiner's resolu-
tion of credibility issues unless the party excepting to such findings
demonstrates by a clear preponderance of the relevant evidence that they
are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188
ployees ' wages of union dues and of premiums for
health , welfare, and hospitalization benefits.
On October 23, 1964, Respondent and Retail
Clerks Union , Local 588, Retail Clerks Interna-
tional Association , AFL-CIO (herein referred to
as Local 588), entered into a cross-check election
agreement for a unit including , inter alia, "all
selling, stock clerks and other non-selling em-
ployees" working at the Sacramento store and ex-
cluding various categories of employees. The
parties agreed that if Local 588 showed that it
represented a majority of employees in the
agreed-upon unit , the Respondent would bargain,
upon request , with Local 588 as exclusive
representative of these employees.
The results of the card check showed that of 191
eligible employees , 151 indicated that they wished
to be represented by Local 588. Thereafter,
Respondent recognized Local 588 as the
collective-bargaining representative of its em-
ployees in the unit and commenced negotiations for
an agreement.
At or around the first bargaining session in
November 1964, the Respondent and Local 588
orally agreed that janitorial employees would be
covered by the agreement when employed by
Respondent but would not be covered by the agree-
ment when the janitorial work was subcontracted.
As more fully set forth in the Trial Examiner's
Decision , in October 1964 , Local 22 was apprised
that Guardian was not remitting to Local 22
amounts representing dues checked off from em -
ployees wages , as provided for in their contract;
Local 22 then contacted Respondent to see if
anything could be done to remedy the situation.
Respondent said it would contact Guardian 's jani-
torial supervisor and see if the matter could be
straightened out. In January 1965 , the situation had
not changed. Further, Guardian was delinquent in
paying wages to its janitors . Because of this situa-
tion , Respondent decided to place the janitors on its
payroll and this was done on February 22, 1965.2
On this same date Local 22 secured new authoriza-
tion cards from the approximately five janitors em-
ployed by Respondent. Thereafter , following a
number of conversations between representatives
of Local 22 and Respondent , Coleman , an official
of Local 22 , contacted Diamond , Respondent's
personnel manager, and informed him that Local 22
represented Respondent 's janitorial employees.
Diamond then agreed that a collective-bargaining
contract with Local 22 covering janitorial em-
ployees "will be signed in the Los Angeles office."
However , on April 7, Harry J. Keaton , Respond-
ent's attorney , wrote to Local 22, stating that
F.2d 362 (C.A. 3). Respondent and the Intervenor, in our opinion, have
not sustained that burden here
z After this date, Respondent paid the janitors in accord with the wage
scale provided for in Guardian's contract with Local 22; it granted wage
increases in accordance with this contract; and it processed grievances in-
volving janitors through Local 22
166 NLRB No. 29
WHITE FRONT SACRAMENTO 45
Local 588 had been recognized by the Respondent
as bargaining representative in a unit including jani-
torial employees, and therefore Respondent could
not enter into an agreement with Local 22 covering
these employees. On June 3, the Respondent en-
tered into an agreement with Local 588, specifically
covering, inter alia, janitorial employees. On June
8, Respondent and Local 588 signed a "letter of un-
derstanding" which stated that when janitorial work
was subcontracted, janitors would not be included
in the contract unit.
The Trial Examiner found that Respondent vio-
lated Section 8(a)(5) by refusing on April 7, 1965,
and thereafter to recognize Local 22 as bargaining
representative of its janitorial employees; he also
found that it violated Section 8(a)(2) by executing
and maintaining an agreement and letter of un-
derstanding with Local 588 recognizing it as the
representative of janitorial employees.
The Trial Examiner initially found that, in view
of their separate bargaining history and the fact that
they have a community of interest separate and
apart from that of other employees, a separate unit
of Respondent's janitorial employees was ap-
propriate. He further found that Local 588's claim
to represent janitorial employees, based on its oral
agreement with Respondent in November 1964,
and which was not supported by any authorization
cards, was a "naked" claim which did not create a
cognizable obligation on Respondent to recognize
Local 588; the Trial Examiner therefore concluded
that Respondent's refusal on April 7 and thereafter
to recognize Local 22, which represented a majori-
ty of janitorial employees, violated Section 8(a)(5).
Finally, the Trial Examiner, relying on the Midwest
Piping 3 doctrine, found that in the above circum-
stances, Respondent's recognition in June 1965 of
Local 588 as representative of its janitorial em
p'loyees violated Section 8(a)(1) and (2).
We find, in agreement with the Trial Examiner,
and essentially for the reasons stated by him, that
a separate unit of janitorial employees at the White
Front store involved in these proceedings may be
appropriate. We further find, in agreement with the
Trial Examiner, that a unit of all selling and non
selling employees at Respondent's store, including
janitorial employees, is also an appropriate unit. We
also agree with the Trial Examiner that Respondent
violated Section8(a)(1) and (2) by recognizing Local
588 in June 1965; however, unlike the Trial Ex-
aminer, and for the reasons stated below, we do not
find that Respondent 's refusal to recognize Local
22 violated Section 8 (a)(5) of the Act.
As noted, in November 1964 , on its showing of
majority status, Respondent recognized Local 588
as representative of employees in the storewide
unit . Janitors , although not specifically mentioned,
were included in this unit , since the unit encom-
passed nonselling employees and janitors were not
among those categories of employees specifically
excluded in the unit description. That it was the in-
tention of Respondent to recognize Local 588 as
representative of janitors when in its employ was
made clear at the first bargaining session, when the
parties orally agreed that janitorial employees
would be covered by the agreement when employed
by the Respondent . We therefore find that in
February 1965 , when Local 22 sought recognition
as representative of a unit of janitorial employees,
Local 588 had an outstanding substantial claim to
represent these janitors as part of the overall unit
for which it had been recognized.4
Under the Board's Midwest Piping doctrine, an
employer faced with conflicting claims of two or
more rival unions which give rise to a real question
concerning representation may not recognize or
enter into a contract with one of these unions until
its right to be recognized has finally been deter-
mined under the special procedures provided in the
Act.
The circumstances here show that in February
1965 there was a real question concerning the
representation of Respondent 's janitorial em-
ployees , with Local 588 claiming to represent them
as part of the overall unit and Local 22 claiming to
represent them separately, which could have been
resolved through the Board's procedures as con-
templated by the Midwest Piping doctrine.5
Accordingly,, we find , contrary to the Trial Ex-
aminer , that Local 22 was not entitled to recogni-
tion as representative of the janitorial employees,
and we therefore conclude that the Respondent did
not violate Section 8 (a)(5) by refusing to recognize
or bargain with Local 22, and we shall dismiss the
complaint insofar as it alleges such a violation.
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, as modified
below, and hereby orders that the Respondent,
3 Midwest Piping & Supply Co., Inc , 63 NLRB 1060
4In view of our finding that , in November 1964, Respondent recog-
nized Local 588 as representative of a unit of its employees , including
janitors , we need not decide whether janitors in other circumstances
would have been an accretion to a unit of selling and nonselling em-
ployees Nor is it crucial that when Local 588 was recognized , Respond-
ent employed no janitors , it was plainly contemplated at the time of the
recognition that janitors would be part of the umt if they were added to
Respondent 's payroll.
5 White Front Stores, Inc., 166 NLRB 175, is distinguishable on its
facts. There, the snackbar employees, 3 months before being transferred
to White Front 's payroll, had designated a statutory bargaining represen-
tative in an election conducted by this Agency . Accordingly , the claim of
the Retail Clerks Union to represent the snackbar employees as part of its
storewide unit did not raise a real question concerning representation
which could have been resolved under the Board procedures provided in
the Act.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White Front Sacramento , Inc., Los Angeles,
California , its officers , agents , successors , and as-
signs , shall take tthe action set forth in the Trial Ex-
aminer 's Recommended Order ,6 as so modified:
1. Add the following as paragraph 1(a), the
present paragraph 1(a) and those following being
consecutively relettered:
"(a) Giving assistance or support to any labor
organization by recognizing it as the exclusive bar-
gaining representative of its janitorial employees
during the pendency of a question concerning the
representation of its janitorial employees."
2. Change the present paragraph 1(b) to read as
follows:
"(b) Giving effect to the collective-bargaining
agreement and letter of understanding of June 3 and
June 8 , 1965, with Retail Clerks Union , Local 588,
Retail Clerks International Association,
AFL-CIO,, or to any extension, renewal, or
modification thereof, to the extent that said agree-
ment purports to cover janitorial employees of the
Respondent , unless and until said Union shall have
been duly certified by the National Labor Relations
Board as the exclusive representative of said em-
ployees : Provided , however, that nothing herein
shall be construed as requiring Respondent to
withdraw , change , or abandon any terms or condi-
tions of employment currently enjoyed by its jani-
torial employees."
3. Change the present paragraph 1(c) to read as
follows:
"(c) In any like or related manner interfering
with , restraining , or coercing its janitorial em-
ployees in the exercise of their right to self-or-
ganization , to form , join, or assist labor organiza-
tions, to bargain collectively through representa-
tives of their own choosing , and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities."
4. Delete the present paragraph 2(b) of the Trial
Examiner 's Recommended Order and reletter para-
graphs 2(c) and 2 (d) as 2 (b) and 2(c).
5. Delete the first indented paragraph of the Ap-
pendix attached to the Trial Examiner's Decision
and substitute the following:
WE WILL NOT give assistance or support to
any labor organization by recognizing it as the
exclusive bargaining representative of our jani-
torial employees during the pendency of a
question concerning the representation of our
janitorial employees.
6. Add the word "janitorial" before the word
"employees" in the third indented paragraph of the
Appendix attached to the Trial Examiner's Deci-
sion.
7. Delete the fourth indented paragraph of the
Appendix attached to the Trial Examiner's Deci-
sion.
6 As we are dismissing the 8 (a)(5) allegation, we will delete those por-
tions of the Trial Examiner's Recommended Order requiring Respondent
to bargain with Local 22.
We have amended the Recommended Order to make clear that
Respondent may not recognize any union seeking to represent its janitorial
employees while there exists a question concerning the representation of
these employees
The Respondent excepts to the Trial Examiner 's recommendation of a
"broad" cease-and-desist order We find merit to this exception. The
Respondent 's violation of the Act arose entirely from the fact that it uni-
laterally undertook to determine existing questions concerning represen-
tation This conduct does not indicate such an attitude of hostility to the
purposes of the Act as to require a "broad" order (Couch Electric Com-
pany, 143 NLRB 662) We shall therefore modify the Trial Examiner's
Recommended Order accordingly
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS,Trial Examiner : Upon a charge filed
by Building Service Employees ' Union , Local 22, Build-
ing Service Employees ' International Union , AFL-CIO,
herein called the Union , on September 27, 1965,
amended on March 28, 1966, the General Counsel of the
National Labor Relations Board, herein called the Board,
issued a complaint and notice of hearing on January 6,
1966, amended on March 31, 1966, against White Front
Sacramento , Inc., herein called Respondent , alleging that
Respondent violated Section 8(a)(1), (2), and (5) of the
National Labor Relations Act, as amended, herein called
the Act.
Upon answer by Respondent on January 12, 1966,
amended on April 4, 1966, issue was joined . The com-
plaint alleged that commencing on or about April 7, 1965,
notwithstanding prior recognition , Respondent had
refused and continues to refuse to bargain collectively
with the Union as the exclusive collective-bargaining
representative of janitorial employees in an appropriate
unit. It further alleged that Respondent had unlawfully
assisted and supported the Intervenor by recognizing said
Intervenor on or about March 31, 1966, as the
collective-bargaining representative of the employees in
the aforesaid unit and that on or about June 3, 1965,
Respondent and Intervenor entered into a collective-bar-
gaining agreement encompassing the above-mentioned
unit. The General Counsel contends that the
above-described conduct of Respondent constituted
violations of Section 8(a)(1), (2), and (5) of the National
Labor Relations Act , herein called the Act . Respondent
in its answer admitted that it has refused and continues to
refuse to bargain collectively with the Union but denied
that the unit alleged in the complaint was a unit ap-
propriate for collective bargaining . It further averred that
it had recognized, on October 29, 1964, the Intervenor in
a different unit which was appropriate for collective bar-
gaining.
A hearing was conducted before me on June 30 and
July 1, 1966, at Sacramento , California. At the hearing all
parties were represented and were afforded full opportu-
nity to present evidence , to examine witnesses , to argue
orally , and to file briefs. I
I Retail Clerks Union, Local 588 , Retail Clerks International
Association , AFL-CIO, herein sometimes called the Intervenor or
Retail Clerks , Party to the Contract, was permitted to intervene and fully
participate
WHITE FRONT SACRAMENTO
Briefs have been received from the General Counsel 2
Respondent, and Intervenor. Respondent and Inter-
venor, in their briefs, renewed certain motions originally
made at the hearing to strike certain paragraphs of the
complaint and to dismiss the complaint. In view of my
disposition of the issues on the merits, I deny these mo-
tions.
Upon the entire record and after careful consideration
of the briefs filed by the parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
White Front Sacramento, Inc., is a Delaware corpora-
tion having its main office at Los Angeles, California, and
a place of business at 3400 Arden Way, Sacramento,
California, where it is engaged in the retail sale of goods
and merchandise.
It is one of a number of wholly owned subsidiaries of
Interstate Department Stores, Inc., which together
operate the White Front stores chain, consisting of ap-
proximately 20 discount department stores located in
California. All corporations operating White Front stores
have their head office at 5555 East Olympic Boulevard,
Los Angeles, California.
The particular Sacramento operation, the only location
involved in this proceeding, during the past year sold
goods and merchandise valued in excess of $500,000 and
received goods and merchandise valued in excess of
$50,000, directly from points outside the State of Califor-
nia. The complaint alleged, the answer admitted, and I
find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. I also find that
it would effectuate the purposes of the Act to assert ju-
risdiction herein.
IL THE LABOR ORGANIZATIONS INVOLVED
The complaint alleged, the parties admitted, and I find
that the Union and Intervenor are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Findings
1. The retail store involved in these proceedings was
opened for business on August 13, 1964. Prior to its
opening, Respondent subcontracted to Guardian Building
Maintenance Company, herein called Guardian, the jani-
torial services required on the premises. Guardian
operated in various parts of California and apparently
maintained its headquarters in Los Angeles. To staff its
operations at this particular store, White Front Sacra-
mento, herein called North Sacramento store or Respon-
dent, Guardian advertised in the newspapers and trans-
ferred at least one employee from Los Angeles. Guardian
apparently had labor agreements at different locations in
California with various locals of the Union' s Interna-
tional. On August 9, 1964, when Guardian commenced
servicing the North Sacramento store, it entered into an
8 General Counsel's unopposed motion to correct certain portions of
the record of the hearing is hereby granted.
3 The record does not disclose whether or not the Union represented a
majority of the janitorial employees at the North Sacramento store at the
time recognition was extended and the agreement was executed. As I
47
agreement with the Union. The contract called for a
checkoff of union dues and health, welfare, and
hospitalization benefits.3
' 2. On October 23, 1964, Respondent and Intervenor
entered into a cross-check election agreement. 4 Attached
to the cross-check agreement was a list of employees em-
ployed in various departments and concessions who were
eligible voters by virtue of having been on the payroll dur-
ing the agreed-upon eligibility period commencing Oc-
tober 19, 1964. The unit agreed upon by the Respondent
and Intervenor was as follows:
The Unit: All selling, stock clerks, and other
non-selling employees in the Employer's retail
establishment, whether such employees work in de-
partments operated directly by the Employer, or by
lessees, licensees, or concessionaires, excluding ser-
vice station and automotive service center em-
ployees, forklift operators, meat department em-
ployees, barber and beauty shop employees, contract
insurance, watch repairmen, keymakers, op-
tometrists, optical dispensers, encyclopedia and auto
referral salesmen, managers as may be defined in an
agreement, guards, watchmen, and supervisors
within the meaning of the National Labor Relations
Act, as amended, constitutes a unit appropriate for
the purpose of collective bargaining.
The election supervisor conducting the cross-check
found that of 191 eligible employees, the Intervenor had
applications for membership or authorizations for
representation from 151. Pursuant to the results of the
cross-check agreement, Respondent recognized the In-
tervenor as the collective-bargaining representative of the
employees in the agreed-upon unit and commenced col-
lective-bargaining negotiations. An agreement was en-
tered into on June 3, 1965, and a "letter of understand-
ing" was dated June 8, 1965, although it is stated therein
that it was entered into concurrently with the
collective-bargaining agreement on June 3, 1965.
3. The janitorial classification was not included in the
cross-check eligibility list because the janitorial work had
been subcontracted to Guardian and Guardian was the
employer of the janitors.
4. Evidence was adduced that at a bargaining session
on or about November 12, 1964, the Intervenor. ap-
parently for the first time, claimed that janitorial em-
ployees should be included in the overall unit. The
Respondent agreed. At the next negotiation meeting,
about November 25, it was orally agreed that the janitori-
al employees would be covered by the agreement when
employed by Respondent but would not be when the jani-
torial work was subcontracted. This oral agreement was
reflected in the June 8, 1965, "letter of understanding"
referred to above. The intent of this arrangement, as
testified to by Robert P. Cowell, counsel for Intervenor,
was to permit the shuttling of the janitorial classification
in and out of the overall bargaining unit, depending on
whether or not the janitorial services were subcontracted.
B. The Testimony
Thomas P. Coleman, secretary and business manager
of the Union, credibly testified that sometime in October
view the issues in this case , it is immaterial . It is clear that all of the jam-
tonal employees employed at the store were or soon became members of
the Union and the Union was the authorized collective -bargaining
representative of these employees at all times material herein.
4 G.C. Exh. 2.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he became aware that Guardian was not remitting to the
Union the welfare, hospitilization, and payroll dues
deductions which Guardian was obligated to do under its
agreement with the Union. Coleman further testified that
he called David S. Dudman, Respondent's manager of
the North Sacramento store, and complained to him
about these matters. According to Coleman, Dudman
said that Gene Bell was Guardian's janitorial supervisor,
that he would be talking to Bell, and that he would get the
matter straightened out.
Coleman further testified that he called Dudman again
in January 1965 and made the same complaints, adding
that the janitors were getting their pay late. At that time,
according to Coleman, Dudman said that something
would be done, that unless these matters were
straightened out, the janitorial employees would be put
directly on the Respondent's payroll. Coleman agreed
that this would be a solution to the problem. Coleman
testified that he again talked to Dudman about February
17 or 18; 1965, and informed Dudman that the men had
not been paid since February 1, 1965, and that they were
ready to walk off the job, and that something had to be
done quickly. Dudman agreed.
Coleman testified that about February 22, 1965, he
learned that White Front was about to place the janitors
on its own payroll, that he then instructed John A. Berry,
field representative of the Union, to secure new
authorization cards from the janitorial employees indicat-
ing that the employer was White Front, and that Berry
secured these new authorization cards on February 22,
1965, from all the janitorial employees employed on that
date at the North Sacramento store.5
Coleman then testified that about February 23 or 24,
1965. he again talked to Dudman on the telephone.
Coleman told Dudman that as the janitorial employees
were now on the White Front payroll he wanted a signed
collective-bargaining contract by White Front and that he
would mail him two copies of the collective-bargaining
agreement , According to Coleman, Dudman replied that
he had no authority to sign the agreement, that he would
forward the agreements to Los Angeles and that it would
be taken care of. 6 About March 26, 1965, Coleman called
Dudman to inquire if the contract had been signed. Dud
man replied that Coleman would have to get in touch with
Marvin Diamond , personnel director for Respondent,
whose office was in Los Angeles. Dudman then gave
Coleman Diamond's telephone number. About 2 days
later Coleman called Diamond and explained the situa-
tion to Diamond. Coleman informed Diamond that he
was calling him as a result of a conversation with Dud-
man, that Coleman was an official of the Union, and that
the Union represented the janitorial employees . Diamond
asked Coleman what wage rates were being paid and
Coleman replied that White Front was paying the con-
tract wage rates but that there was a problem with health
and welfare payments and other fringe benefits under the
contract. According to Coleman, Diamond then said,
"Allright, mail me the contracts and they will be signed in
the Los Angeles office." On March 30, 1965, Coleman
mailed four copies of the collective-bargaining agreement
to Diamond,
On April 7, 1965, Harry J. Keaton, counsel for
Respondent and attorney of record in the instant hearing,
in behalf of the Respondent, wrote to Coleman8 stating
that the letter to Diamond, dated March 30, 1965, had
been referred to him as he handled labor negotiations in
behalf of White Front. The letter went on to say that the
Intervenor had been recognized by Respondent pursuant
to a card check, that the unit so recognized included all
janitorial employees in the employ of Respondent, that
for these reasons the Respondent could not enter into an
agreement with the Union and that the Respondent's pay-
ment of the Union's contract wage rates to the janitorial
employees probably was due to Respondent 's adoption
of the wage rates paid by the subcontractor at the time the
subcontract was terminated. Thereafter, there was con-
siderable correspondence between the parties, some
picketing by the Union around Christmas 1965, and
several telephone conversations. However, Respondent
adhered to its position as expressed by Keaton in his
letter of April 7, 1965. As a result, the Union filed the in-
stant charge on September 27, 1965.
John A. Berry, field representative of the Union,
testified that he first became aware of problems concern-
ing the janitorial employees working at Respondent's
store sometime in January 1965. At that time Gear and
Burgess came to the union office and complained that
they were not given the wage increases due them in Oc-
tober 1964 under the terms of the union agreement with
their employer, Guardian. They also said that they had
received dues delinquency notices from the Union when,
in fact, the dues had been deducted by Guardian in ac-
cordance with the checkoff system in effect. They dis-
played their check stubs to show that the dues had been
deducted. Berry stated that he talked with his superior,
Coleman , about it and was instructed to prepare a letter
to Guardian. He prepared such a letter and did not hear
anymore about the matter until February 1965 when
Coleman told him that the janitorial employees had not
been paid since February 1965 and they were ready to
walk off the job. Coleman instructed Berry to see the
Respondent's store manager as he had been unable to
contact Guardian.
Berry testified that he went to the store about February
18, 1965,9 about 11:30 a.m., that he met Burgess there
and was introduced by Burgess to Dudman in Dudman's
office. Berry proceeded to discuss the janitors' problems
and suggested that inasmuch as Guardian was defaulting
the Respondent might pay the janitors directly and if
possible advance them some money pending arrange-
ments to place them on Respondent 's payroll.
According to Berry, Dudman replied that this might be
possible, that Dudman was having a meeting with other
officials and that the matter would be straightened out.
Berry then went downstairs, met with the janitors, told
them of his conversation with Dudman, and urged them
to stay on the job, as an advance would be forthcoming
shortly. About 2 days later, Berry received a call from
Burgess in which Burgess informed him that the janitorial
employees had each received an advance of $100, that
they were going to go on the White Front payroll.10 After
informing Coleman of this conversation Berry was in-
5 Cards bearing the date of February 22, 1965, signed by Kenneth Bur-
gess, Laurie Amaktoolik, William Gear , Willie Johnson, and Robert Lee
Johnson were introduced in evidence.
6 Dudman, as appears later, denied this and other conversations with
Coleman. I credit Coleman whenever his testimony is in conflict with
Dudman for the reasons stated infra.
? Diamond denied making this statement. I credit Coleman.
B G.C. Exh. 5.
9 As appears , infra, I fix the date of Berry 's visit as February 22, 1965.
ro I place this call as occurring 2 days before Berry's visit on February
22, 1965.
WHITE FRONT SACRAMENTO
structed by Coleman to secure new authorization cards
from the janitorial employees. By prearrangement with
Burgess, Berry met the janitorial employees at the store
on February 22, 1965, and secured new authorization
cards from each of them. Berry further testified to having
adjusted one problem concerning Gear in March 1965,
and another one concerning one of the Johnson's in May
1965. Both matters were adjusted with Gene Bell," the
janitors' supervisor. Kenneth Burgess was hired by Gene
Bell on August 9, 1964, the first day Guardian, pursuant
to its subcontract, began its operations at Respondent's
store. He became a member of the Union shortly
thereafter. In January 1965, Burgess complained to the
Union and to Bell about the tardiness of his paychecks.
It appears from Burgess' testimony, verified by other wit-
nesses, that on February 22, 1965, when Respondent
placed the janitors on its own payroll, the hours of the
janitors were changed to conform to the same hours as
the other store employees. During the time Guardian per-
formed the janitorial services under its subcontract, the
hours for the janitors were from 12 midnight to 8 a.m. On
and after February 22, 1965, when Guardian was ter-
minated, the janitors hours were from 9 a.m. to 6 p.m.
Burgess further testified that Berry visited the store on
only one occasion and that on this visit he introduced
Berry to Dudman. As Berry also secured the signatures
to new authorization cards on this lone visit, it seems
clear that the date on the cards, February 22, 1965, was
the date Berry and Dudman had their meeting in the
store. I so find.
Marvin Diamond, in his testimony, generally con-
firmed Coleman's version of their telephone conversation
of March 28, 1965. He testified that at the time he was
the personnel director for all White Front stores, that it
was the policy of the Respondent not to recognize a union
unless it was, certified as the majority representative by
the Board or when such a determination was made by an
independent third party through a card check. He stated
that Coleman, when he telephoned, identified himself as
the business representative of the Union, that he
represented the janitors at the Sacramento store, that he
would like to have a contract signed, that the wage rates
being paid to the janitors were in line with the Union's
contract, and that there were differences in the health and
welfare rates. Diamond testified that he told Coleman
that Respondent was represented by the law firm of Loeb
and Loeb, that Coleman was to direct any inquiries to
Harry Keaton of that law firm, that he could not sign the
contract, that contracts could only be signed by the
general manager, Harry Epstein, and that he told
Coleman to send the contracts to Keaton. Diamond then
stated he received Coleman's letter of March 30, 1965,
with the attached labor ' agreements;Y2 that he read the
letter and forwarded the letter and contracts to Keaton.
Diamond denied that he told Coleman to forward the con-
tracts'and denied that he said they would be signed.
On cross-examination Diamond admitted that he was
in charge of labor relations on behalf of the Respondent,
that he participated in labor negotiations, and that he
knew that Respondent had outside, janitor service at the
Sacramento store; that when Respondent placed the jani-
tors on its own payroll, he instructed the store manager to
take applications from the janitors, to interview them, and
to pay them the same rate of pay that they were then
receiving. He stated that he was informed that Guardian
"Gene Bell was the janitorial supervisor for Guardian. When Respond-
ent put the janitors on its payroll, it also employed Bell Respondent's
49
went out of business so that it was necessary for Respond-
ent, at least for the time being, to perform its own janitor
service. He further testified that he made no mention to
Coleman of any commitment by Respondent to the Inter-
venor, Retail Clerks, concerning the janitors.
As I have indicated above, I do not credit Diamond
where his testimony is in conflict with that of Coleman.
Diamond, although no longer in the employ of the
Respondent, made a poor impression on me. His.
demeanor together with his obvious reticence to testify to
the responsibilities of his position influenced my findings
in this regard. Only through persistent questioning was
testimony elicited from him that he was in charge of labor
relations and participated in labor negotiations. I do not
credit his assertions that he told Coleman to send the con-
tracts to Keaton and that he had no authority to sign the
agreement. His failure to disclose to Coleman that the
Respondent had made a commitment to the Intervenor
supports my conclusion that he did tell Coleman to mail
the contract to him and it would be signed. His position,
the fact that Dudman cleared with him the wage rates and
the hiring of the janitors, formerly employed by Guardi-
an, leads me to find that he did have authority to recog-
nize the Union and to bind Respondent in a commitment
that the contract would be signed.
David S. Dudman testified that he was the manager of
the Northern Sacramento store involved in these
proceedings from July 6, 1964. The store actually opened
on August 13, 1964, and Guardian performed the jani-
torial services from August 9, 1964, until February 22,
1965 when Respondent placed the janitors on its own
payroll. In January 1965, complaints came to Dudman's
attention that the janitors were not being paid by Guardi-
an. According to Dudman, Bell brought this to his atten-
tion. Dudman was also dissatisfied with the quality of the
service furnished by Guardian and had solicited bids from
other outside services sometime in December 1964 and
January 1965. Dudman further testified that he made the
final decision to hire the same janitorial employees after
discussing the matter with Bell; that he interviewed each
of these employees; that they were required to fill out
company employment application forms; that Diamond
provided him with the wage rate on the telephone; and
that Bell was also hired by the Respondent.
Dudman testified that he had only one telephone con-
versation with Coleman sometime in January 1965 when
the janitors' paychecks were "bouncing." He stated that
Coleman asked him if he could do anything in regard to
getting payment for the janitors and that he replied that
their employer was an outside subcontractor and that he
could do nothing for them. Dudman admitted that
Coleman identified himself as the representative of the
janitors. He denied that he had ever met or talked with
Berry and denied knowledge of the existence of a con-
tract with Guardian or that he knew any of the details of
the arrangements with Guardian except that, he knew
they were providing the janitorial services for the store.
Dudman further testified that he received employment
applications from some of the janitors on February 22,
1965, and the remainder on March 5, 1965; that he ad-
vanced the janitors $100 each early in March 1965; that
he knew they had not been paid for February 1965; and
that when they were placed on Respondent's payroll
Guardian was no longer in business.
answer admits that Bell was a supervisor within the meaning of the Act.
12 G.C. Exh 4(a) and 4(b).
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gene Bell testified that he was employed by Guardian
for about 5 years and was sent by Guardian to Northern
California in February 1964 in the capacity of a floating
supervisor. As a floating supervisor he visited each of the
stores and saw that the work was properly done, that
there were sufficient cleaning supplies, and that the jani-
tors were conducting themselves properly. When the em-
ployees started to receive bad checks in 1965 he tried to
get their pay by contacting Guardian's management. Bell
testified that he had frequent contacts with Coleman and
visited the union office on several occasions; that he had
hired the janitor crew when Guardian commenced its
operations at the store about August 9, 1964; that he
knew a contract was signed with the Union; and that he
told the men "they would have to go and sign up in the
Union." Bell stated that about the latter part of January
or early in February 1965, he had a conversation with
Dick Devega, Respondent's Northern California
manager , and that Devega said that Phil Raymond, ex-
ecutive store supervisor of Respondent, had told him that
"if White Front took over the janitors, that I would have
a job, that I would supervise them like I was doing then
for Guardian." Devega told him that they felt that Bell
had done a good job in keeping the men on the job for
21h months without any of them getting paid. As a
result Bell was hired by Respondent a day or two before
the janitors were placed on Respondent's payroll. Bell
testified he informed the men that they were going on
Respondent's payroll a couple of days before it occurred
and that was the same day he had a discussion with Dud-
man concerning the retention of all the janitors then em-
ployed at the store. Bell stated that he had consulted
Berry concerning differences with Gear and Johnson
which were adjusted in March and April 1965. He
testified that one of the differences concerned the pay
rate Gear was receiving and that it was adjusted in ac-
cordance with the union contract. He stated that he did
not discuss his meetings with Berry or his visits to the
Union with any other management official of the Re-
spondent at any time. Bell stated that he talked with the
union officials because he knew that the janitorial em-
ployees were members of the Union and that Berry and
Coleman were their spokesmen.13
Robert P. Cowell, counsel for Retail Clerks, the Party
to the Contract in this proceeding, testified that the Retail
Clerks did not wish to represent the janitorial employees
at the Oakland, San Jose, and Sunnyvale stores of
Respondent. Cowell stated the Respondent and Retail
Clerks entered into an agreement which excluded janitors
in those stores and that, as a consequence, Respondent
negotiated separate agreements with another labor or-
ganization for the janitors in Oakland, San Jose, and Sun-
nyvale. He asserted that the omission of janitors in the
cross-check for the Northern Sacramento store was an in-
advertance; that at a negotiation session in November
1964, he raised the question of the janitorial employees
and was told that these services had been subcontracted.
Cowell then stated that as long as "the janitorial em-
ployees were completely apart from White Front, we
would exclude them. However, if at any time the em-
131 find it difficult to believe and therefore do not credit Bell's
testimony that he did not discuss his contacts with the Union with
Respondent's officials Clearly, the Union's cooperation was essential to
Bell's success record with the men which enhanced his standing with the
Respondent
ployees became employees of White Front, and per-
formed work on the store floor under the control of White
Front, then we felt that the appropriate bargaining unit
was the bargaining store-all selling and non selling em-
ployees."
Cowell stated that an oral agreement to that effect was
reached at that time, approximately November 25, 1964.
After negotiating all through November 1964, Cowell
went on vacation in December 1964, and then contracted
an illness which incapacitated him till March 1965. After
further discussions in March 1965, Cowell participated
in a conference telephone conversation on March 29 with
other negotiators, including Keaton. Keaton at that time
advised him that White Front was hiring the janitors
directly. Cowell then said that he wanted the janitors in-
cluded in the unit in accordance with their oral agreement
of November 1964. It was during this conference
telephone conversation that agreement was reached on
the terms of the "letter of understanding" of June 8,
1965, which was placed into effect concurrent with the
overall agreement.
On cross-examination Cowell said that he first learned
of the Union's contract with Guardian when he received
a copy of Keaton's letter to Coleman, dated April 7,
1965."
William Gear testified he was employed by Guardian
in Los Angeles, at which time he was a member of a dif-
ferent local of the International with which the Union is
affiliated. When Guardian assigned him to the Sacramen-
to store after it was opened, he transferred his union
membership to the Union. Gear in general affirmed Bell's
and Berry's testimony concerning the adjustment of a
matter concerning his pay rate. He further testified that
he became sick sometime in March 1966, that he went to
a hospital but did not receive emergency treatment
because he was not covered by hospital insurance. After
he recovered from his illness, about I week later, he
returned to work and inquired from Bill Detillion,
merchandise supervisor,15 whether he was covered by
hospitilization and health insurance. Gear was told he
was not covered. Gear made the same inquiry at the
Union's office and was informed there that he was not
covered by insurance. As a result Gear lost 1 week's pay
and incurred medical expenses in excess of $20 for which
he had not been reimbursed at the time of the hearing. It
was stipulated that since March 1965, Respondent had
remitted certain sums of money to the Retail Clerks for
health and welfare insurance which included coverage for
janitorial employees. Gear further testified that he had
signed up with both unions but was not paying dues to
either one. He signed up with the Intervenor, Retail
Clerks, in May 1966, after talking with Winn C. Plank,
area representative of the Retail Clerks. Gear decided
that he should have the health and welfare benefits one
way or another, "and so I signed up." Gear also said that
at no time was he ever given a booklet or received any in-
formation as to coverage for health and welfare from the
Retail Clerks or Respondent until the day he signed up
with the Retail Clerks and was shown a copy of its con-
tract with the Respondent.
14 G C Exh 5 It stretches the imagination to believe that Keaton,
Cowell, and other negotiators engaging in the conference telephone con-
versation of March 29, 1965, did not mention the Union's interest in the
,janitors. Accordingly, I find otherwise.
15 It was stipulated at the hearing that Detillion was a supervisor within
the meaning of the Act
WHITE FRONT SACRAMENTO 51
Robert L. Johnson testified that he had never become
a member of Retail Clerks and had never signed an
authorization card in behalf of the Retail Clerks. He
stated that he talked with Plank sometime in May or June
1966 when Plank was at the store. Plank said the janitors
should become members of the Retail Clerks because
they would receive sick and other benefits. After some
further discussion Johnson refused to join the Retail
Clerks and retained his membership in the Union. He
also stated that he was a member of the Union before
going to work for Guardian at Respondent's store but
secured his job there through a friend.
By agreement with the General Counsel, Keaton was
permitted to make a statement on the record in lieu of
testimony, subject to questioning by the General Coun-
sel. Keaton stated that after receiving a letter from
Coleman on April 16, 1965,16 he attempted to reach
Coleman on the telephone but was unable to contact him,
that Coleman returned his call on April 20. Keaton stated
that he told Coleman that he had his letter of April 13;
that Respondent had recognized the Retail Clerks in the
North Sacramento Store for a "wall to wall" bargaining
unit which was appropriate, and therefore it was in no
position to bargain with Coleman's Union; that Coleman
replied that he had a contract with Guardian and there-
fore Respondent should sign the contract he had sent to
Diamond. Keaton then told Coleman that Diamond was
not negotiating contracts, did not have authority to
negotiate contracts, and Diamond had in no way in-
dicated to Coleman that he had such authority. According
to Keaton, Coleman said that this was true17 but that
Coleman's position was that the janitors had been in the
Union and that they were still in the Union and why was
Respondent bargaining for them with another union.
Keaton replied that in his opinion the unit of janitors
Coleman was seeking was inappropriate. Keaton stated
that the conversation concluded without any understand-
ing being reached.
There was testimony by Gear, Burgess, Robert L.
Johnson, and Dudman concerning the duties, working
conditions, and rates of pay of janitors before February
22, 1965, after February 22, 1965, and after April 1966.
I conclude from the credited testimony of Gear, Johnson,
and Burgess that the only significant changes after
February 22, 1965, were as follows:
1. White Front became the employer.
2. Hours changed to days.
3. Time and one half paid for Sun ay work.
4. _ Uniforms worn.
I find that the job content and duties of janitors were
not changed in any substantial degree at any time. Dud-
man, as a witness , left much to be desired. He was eva-
sive or positive when it seemed to suit his purpose. Con-
sidering his demeanor and his testimony, I credit Dud-
man only, when his testimony is corroborated by other
witnesses or when the logic of the circumstances support
it. Accordingly I do not credit Dudman's testimony that
a "White Front" employee has special meaning in that
such an employee is capable of working in any depart-
ment. Neither do I credit Dudman's testimony that he
gave orders to his subordinates to have janitors do work
other than the customary janitorial duties after the jani-
tors were put on the Respondent's payroll. I do find that
after April 1966, minor changes were made in the jani-
tors' duties in order to bolster Respondent's position that
janitors "do work on the store floor," have been in-
tegrated in the overall unit, and therefore do not con-
stitute an appropriate unit. In my opinion, the extra duties
of a minor and sporadic nature, superimposed on the jani-
torial employees after April 1966, did not materially
change nor overlap the work of other employees. I find
that janitors at all times material herein performed the
identical and customary duties of janitors which they had
performed when employed by Guardian. The record fails
to disclose any planned or material changes in their job
content. The working conditions were changed as
described above but I do not believe this fact alone is
relevant to the ultimate decision in this case.
Plank was called as a witness by the Trial Examiner.18
Plank testified that during most of the period involved
herein he was the active representative of the Retail
Clerks. He stated that he had never notified the janitorial
employees concerning fringe benefits except that in May
1966, he gave this information to two of them after they
had signed applications for membership in the Retail
Clerks.
C. Positions of the Parties
The Intervenor and Respondent correctly contend that
if a unit of janitorial employees at the North Sacramento
Store is inappropriate, the complaint must be dismissed.
In general, the Intervenor and the Respondent rely on
the oral recognition extended to the Intervenor in
November 1964 and March 29, 1965, as finalized in the
"letter of understanding" of June 8, 1965.
The Respondent and Intervenor invoke two legal con-
cepts in support of their positions as follows: (a) The ap-
propriate unit rule generally applied by the Board to retail
stores consisting of all selling and nonselling employees,
and (b) The Midwest Piping doctrine.,
1. The appropriate unit
The Intervenor contends in its brief that the Board has
long regarded a storewide unit of all selling and nonselling
employees as "the basically appropriate unit" in the retail
industry. 1 s -
The Intervenor argues that the employment of the
overall unit concept is especially compelling here as the
Respondent is "basically engaged, to a large extent," in
a self-service operation.20 The Intervenor compares the
operations of the Respondent's South Sacramento store
with that of the store involved in these proceedings. It
calls attention to the fact that the petition in Case
20-RC-66300 which requested a unit consisting only of
janitorial employees at the South Sacramento store, was
16 G.C. Exh 7.
'7 Keaton must have misunderstood Coleman. Such an admission by
Coleman would undercut one of his chief contentions . On the basis of
Coleman's testimony which I credit as a whole, I find that Coleman did
not make this statement.
18 The Trial Examiner's authority to call witnesses is clear under Sec-
tion 102.34(j) of the Board 's Rules and Regulations , Series 8, as amended.
11 The brief cites John Breuner Co., 129 NLRB 394; The Root Dry
Goods Co., Inc., 126 NLRB 953; Bullock's Incorporated, dlbla I. Mag-
nin & Company, 119 NLRB 642.
20 Citing Allied Stores of New York Inc., dlbla Stern's Paramus, 150
NLRB 799.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismissed because it encompassed a unit inappropriate
for collective bargaining.21 Finally, the Intervenor urges
that the evidence does not support the General Counsel's
contention that Respondent recognized the Union at any-
time.
The Respondent's initial contention like that of the In-
tervenor's is that the unit of janitorial employees sought
herein by the Union is inappropriate. 22 The Respondent
then urges:
White Front's refusal to bargain with the Janitors
could therefore not be unlawful unless the unit
claimed by the Janitors was appropriate and, in addi-
tion, the over-all unit claimed by the Retail Clerks
was inappropriate. [Emphasis supplied.]
Respondent relies upon three recent Board decisions
involving other stores operated by Respondent, White
Front South San Francisco, Inc., supra; White Front
San Diego, Inc., 159 NLRB 684; and White Front South
Sacramento, Inc., Case 20-RC-6630 (unpublished). The
Board, in each of these representation cases, held that
separate units of janitorial employees was inappropriate.
Respondent argues: "Prima Facie, therefore the same
result should obtain here unless it can be shown that there
are material differences between this store and the stores
in the three other cases which are substantial enough to
justify a different result." [Emphasis supplied.]
Unlike the Intervenor, the Respondent in its brief does
allude to the collective-bargaining history of the janitorial
unit. However, it is contended that the bargaining history
predates the statutory period of 6 months and cannot be
utilized in an unfair labor practice case, such as this. It is
urged that unlike representation proceedings where the
Board delves many years into the past in deciding the ap-
propriateness of a collective-bargaining unit, the ground
rules in an unfair labor practice case are different. Ac-
cordingly, the Respondent contends that the Union, here,
having chosen to proceed with an unfair labor practice
charge, is bound by the ground rules applicable to unfair
labor practices charges.23
Respondent denies that Respondent was obligated to
bargain with the Union on any theory of successorship.
Any such theory, it is argued, would constitute a fatal
variance with the complaint as neither the charge nor the
complaint make the slightest reference to any prior sub-
contracting of the janitorial work. Moreover, it is urged
that the termination of the janitorial services at Respond-
ent's store and the hiring of the subcontractor's em-
ployees by Respondent could not possibly give rise to any
successorship as Respondent did not take over Guardi-
an's business , it merely ceased using Guardian's servic-
es.24
Respondent further contends that even if the prior his-
tory of bargaining for the janitorial employees with Guar-
dian is considered, such a unit was not thereby
"enshrined in the store for eternity" and that Respondent
was not bound by this bargaining history. Rather, it is
contended, that the identity of the unit of janitors did not
survive when the subcontract was terminated and the
janitors were hired by the Respondent.25 ,
The General Counsel regards this case as presenting no
novel issues. Rather, he views it as "a classic example of
an employer seeking to select a collective-bargaining
agent for his employees, contrary to their interests and
desires."
The General Counsel at the outset contends that from
the time Respondent placed the janitors on its payroll,
February 22, 1965, it recognized the Union as the collec-
tive-bargaining representative of the janitorial employees.
In support of this contention, he relies on a conclusion
that Dudman and Diamond assured the union that its
contract would be signed. He contends that Bell's
dealings with the Union were on the basis that the Union
represented the janitorial employees; that Respondent
paid the contract wage scale when it took over the jani-
torial employees; that it increased the wage rates in ac-
cordance with the union agreement; that it processed
grievances through the Union and relied upon the Union
for new employees; and that Respondent at no time
questioned the Union's representative status. The
General Counsel supports his contention that the janitori-
al unit is separate, distinct, and appropriate by the argu-
ment that, unlike the facts in other White Front cases as
reported in White Front San Francisco, Inc., supra;
White Front San Diego, Inc., supra; and White Front
South Sacramento, supra, the janitorial employees, here,
have always been directly supervised by a separate jani-
torial supervisor, have never been assigned to other de-
partments, have never performed duties other than jani-
torial, and no other employees have worked as janitors;
the janitorial employees wear uniforms which distinguish
them from all other employees except the dock depart-
ment manager and the sundries stockman; the janitorial
employees, involved herein, did not receive the same
fringe benefits nor the same wage rates as other em-
ployees; and the bargaining history of the janitorial em-
ployees in this store, unlike the three White Front deci-
sions of the Board, reflects a history of separate bargain-
ing in a janitorial unit.
The General Counsel further contends that the
cross-check election between Respondent and the Inter-
venor, conducted on October 19, 1964, obviously did not
and could not include janitors because the janitors were
then not employees of Respondent, but of the subcontrac-
tors.
Finally the General Counsel contends that by entering
into an agreement with IIthe Intervenor on June 3, 1965,
at a time when the Intell-venor did not represent a single
janitor Respondent engaged in conduct which constituted
unlawful aid and assistance as alleged.
2. Midwest Piping doctrine
The doctrine derives its name from the Midwest Piping
& Supply Co., Inc., 63 NLRB 1060, although the same
principle was applied in cases decided previous thereto.26
It holds that an employer, faced with conflicting claims of
representation by rival unions, has the obligation of main-
taining absolute neutrality. While an employer may ex-
21 Unpublished The Intervenor neglects to mention that the Board
stated inter alia, that it was dismissing the petition for the reasons set forth
in White Front South San Francisco, Inc., 159 NLRB 681.Other distinc-
tions will be discussed infra
22 Citing William Penn Broadcasting Co., 93 NLRB 1104; Boy's Mar-
kets, Inc , 156 NLRB 105.
23 No authority is cited for this legal concept.
24 The record requires correction as follows.
Page 179, line 25, strike "we ," substitute "you".
Page 180, line 10 , strike "we," substitute "you".
25 Citing National Petro-Chemicals Corporation, 116 NLRB 1197.
26 Elastic Stop Nut Corporation, 51 NLRB 694; Keystone Steel &
Wire Company, 62 NLRB 683.
WHITE FRONT SACRAMENTO 53
press his personal preference for one of the competing
unions, any conduct on his part which accords unwar-
ranted prestige to one of the rival unions , or which en-
courages or discourages membership therein , constitutes
unlawful assistance in violation of Section 8(a)(2) of the
Act.
Respondent argues in its brief that it "could not law-
fully recognize or bargain with either union for the jani-
torial employees unless the unit claimed by the rival
union was inappropriate , and therefore the claim did not
raise a real question of representation ." Respondent
further argues that even if Respondent had agreed to
recognize the Union, its subsequent refusal would be law-
ful because of the rival claim of the Retail Clerks in an ap-
propriate unit. Such refusal , it is argued, would be nothing
more than an effort to avoid a violation under the
Midwest Piping principle.
D. Analysis and Conclusions
Essentially the issues presented are legal in nature.
Variances in the factual circumstances adduced in
evidence are for the most part immaterial and irrelevant.
It is clear that the janitorial employees constituted a
distinct, homogeneous, and appropriate unit when the
Northern Sacramento store of the Respondent was
opened for business on August 13, 1964. At that time and
until February 22, 1965, Guardian was the employer of
the janitorial employees pursuant to a subcontract with
Respondent and Guardian had a collective -bargaining
agreement with the Union covering the janitorial
employees.27
It seems appropriate at this stage of this Decision to re-
state the primary issues requiring determination. They
are as follows:
1. Is the unit alleged by the complaint, the janitorial
unit, appropriate for collective bargaining?
2. Did Respondent refuse to bargain with the Union
in violation of the Act?
3. Did Respondent unlawfully assist the Intervenor in
violation of the Act?
It is true , as the Intervenor and the Respondent con-
tend, that the Board has regarded the storewide unit in
retail establishments as "basically appropriate"28 or "the
optimum" unit.29 However, it is likewise true that the
Board has held that the simple comprehensive unit is not
the only appropriate unit in such establishments.30
Accordingly,, the Board has directed elections in separate
units of selling and of nonselling employees where there
has been agreement among the parties or a history of col-
lective bargaining . 31 Recognition has been accorded to
various groups with diverse interests. Among such
groups are building service employees.32 Additionally,
the Board in its prior decisions33 affecting the Respond-
ent, herein, made it very clear that the lack of a separate
bargaining history was one of the prime reasons it
dismissed petitions for a unit of janitorial employees in
those stores. 34
In the instant case the contracting out of the janitorial
services in August 1964, when the store opened,
established a separate bargaining history by virtue of the
fact that the cleaning contractor, Guardian, entered into
an agreement with the Union. It is plain that when the
store opened, and as late as October 1964, when the In-
tervenor and Respondent entered into a cross-check elec-
tion , it was the intent of the Intervenor and Respondent
to exclude janitorial employees from the overall unit in-
volved in the cross-check election. This is manifested by
the failure of the Intervenor and Respondent to include
any of the janitors or the classification of janitors in the
cross-check eligibility list of employees. The claim that
this was an inadvertence is controverted by the recorded
evidence, I so find.
Upon the foregoing facts and upon the record as a
whole, I find, contrary to the Respondent's contention,
that the janitorial employees were not an accretion to the
unit represented by the Retail Clerks. The evidence
shows that the janitorial employees were and presently
are engaged in work restricted to normal janitorial duties.
The fact that some of the other employees occasionally
perform tasks which bear some similarity to the normal
janitorial employees does not affect the appropriateness
of a janitorial unit. There is no interchange between the
janitorial and other employees, the janitorial employees
were and are under separate supervision, their rates of
pay were and are different, and there is an established
separate bargaining history. It is thus clear that the jani-
torial employees have a community of interest separate
and apart from other employees and constituted, at all
times material herein , a distinct and homogeneous unit
appropriate for collective bargaining.
On February 22, 1965, when Berry entered into a
discussion with Dudman concerning the janitorial em-
ployees, Dudman did not question Berry's right to
represent the janitors. Indeed Dudman dealt with Berry
as the representative of the janitors and displayed an
awareness of the janitors as a separate and distinct unit.
It is on this same basis that Dudman on February 23 or
24, 1965, promised Coleman in a telephone conversation
that the Union 's contract would be signed . Dudman as
manager of the store with authority to enter into
cross-check election agreements subject only to
clearance with Diamond was, in my opinion, clothed with
sufficient authority to make the commitments, which I
have found above, to Berry and Coleman. It is apparent
to me that Diamond as personnel director in charge of
labor relations kept in close touch with Dudman concern-
ing the situation at the North Sacramento store and there-
fore both Dudman and Diamond had the information and
knew that the Union represented all of the janitors.
27 An oblique attack on the validity of the recognition of the Union by
Guardian was made by the Respondent and Intervenor . As the hearing in
the instant case commenced more than 6 months after the execution of the
collective-bargaining agreement between Guardian and the Union, Sec-
tion 10(b) of the Act constitutes a bar Moreover , the evidence is clear,
and I find, that the Union represented all the janitorial employees at all
times material herein.
28 Bullock 's Incorporated, dlbla I. Magnin & Company , a Division of
Bullock's Incorporated, 119 NLRB 642, 643
29 May Department Stores Company, Kaufman Division, 97 NLRB
1007,1008.
30 The Root Dry Goods Co., Inc ., 126 NLRB 953, 955.
31 Allied Stores of New York dlbla Stern's Paramus , 150 NLRB 799;
Arnold Constable Corporation , 150 NLRB 788.
32 Thalhimer Brothers , Incorporated, 83 NLRB 664; The Bailey De-
partment Store Company, 85 NLRB 312,314
3 White Front , San Diego , supra, White Front , San Francisco , supra.
34 See fn. 3 in White Front , San Francisco , supra, where the Board in
referring to separate representation in the Oakland, San Jose, and Sun-
nyvale stores said, "This separate bargaining history arose because the
janitorial services in these three stores were contracted out to a cleaning
contractor."
308-926 0-70-5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diamond, in turn, when he talked to Coleman on March
28, was exercising the responsibility of his position when
he proceeded to commit the Respondent to entering into
a collective-bargaining agreement with the Union. As I
have stated above, I do not credit testimony to the contra-
ry. Consequently on February 22, 1965, and on March
28, 1965, the date of Diamond's telephone conversation
with Coleman, the Respondent could not and did not en-
tertain a good-faith doubt of the Union's majority status
in the janitorial unit.
The prevailing situation therefore on March 28, 1965,
was that the Respondent had orally agreed to enter into
a contract with the Union because it represented all of the
janitors in the janitorial unit. At this point only a bona fide
claim by a rival labor organization could forstall bargain-
ing with the Union. As described above, Cowell and
Keaton thereafter, on March 29, 1965, had a conference
telephone conversation in which other negotiators par-
ticipated. It was in this conference telephone conversa-
tion that Keaton renewed his commitment of November
1964 to recognize the Intervenor as the collective-bar-
gaining representative of the janitors and include them in
the overall unit. In view of my findings above, it is ap-
parent that Respondent, at this time, must be charged
with the knowledge of the Union's majority status and
Diamond's commitment. The record evidence also dis-
closes that the Intervenor at this time did not have a sin-
gle member or authorization card from any of the janitori-
al employees of this North Sacramento store. Under
these circumstances it is clear that Cowell's claim on be-
half of the Intervenor did not raise a real question con-
cerning representation.35 The mere naked claim by the
Intervenor on March 29, 1965, bottomed on its oral
agreement with Respondent of November 1964, created
no cognizable obligation on Respondent and did not raise
a real question concerning the representation of the jani-
torial employees. 36
It is with this background that Respondent, by
Keaton's letter of April 7, 1965, refused any longer to
recognize and bargain with the Union. Keaton rather
lamely excused Respondent's action in this regard on the
ground of his commitments to the Intervenor of
November 1964 and March 29, 1965. It is clear that
Respondent's refusal to bargain with the Union, which
represented a majority of its employees in the appropriate
unit, was not motivated by a good-faith doubt as to either
the Union's majority status or the appropriateness of the
unit. "Moreover, it is now well established that a
good-faith but erroneous doubt as to the appropriateness
of the unit is not a defense to an otherwise meritorious
charge of refusal to bargain. Southland Paint Company,
Inc., 156 NLRB 22; United Aircraft Corp. v. N.L.R.B.,
333 F.2d 819 (C.A. 2), cert. denied 380 U.S. 910;
Florence Printing Co., 145 NLRB 141, enfd. 333 F.2d
289, 291 (C.A. 4). Accordingly, I find that Respondent's
refusal to bargain on April 7, 1965, was violative of Sec-
tion 8(a)(1) and (5).
Thereafter on June 3 and June 8, 1965, Respondent
entered into an agreement and a letter of understanding
with the Intervenor which included the unit of janitorial
employees. Respondent thereby arrogated unto himself
the authority to determine which of the two contending
unions was entitled to recognition as exclusive bargaining
agent. It is a cardinal principle of the Midwest Piping
doctrinee that an employer cannot do this.37 Adding up
the Respondent's conduct as described above I can only
conclude in agreement with the General Counsel that this
case is a classic example of an employer to select a bar-
gaining representative for the employees contrary to their
expressed desires and without their consent. Such con-
duct is an abrogation of the employees' right to select
their own bargaining representative as guaranteed by Sec-
tion 7 of the Act, and is violative of Section 8(a)(1) of the
Act.38
By extending recognition to the Intervenor on March
29, 1965, and by entering into the agreement and letter of
understanding of June 3 and June 8, 1965, under the cir-
cumstances described above, the Respondent unlawfully
encouraged membership in the Intervenor and rendered
unlawful assistance and support to the Intervenor in con-
travention of Section 8(a)(2) of the Act. Iowa Beef
Packers, supra; Shea Chemical Corporation, supra.
I find no authority for Respondent's and Intervenor's
argument that the Board in its determination of an ap-
propriate unit in an unfair labor practice case, unlike in a
representative case, cannot delve into the bargaining his-
tory preceding the 6-month period of the filing of the
charge. I find the rule otherwise. Board decisions too nu-
merous to mention clearly support my finding in this re-
gard.
In arriving at this decision consideration has been given
to evidence predating the 10(b) period as background. No
violations have been found which are inescapably
grounded on events predating the 10(b) period.39
Accordingly I reaffirm my denial of the motions to strike
certain of the General Counsel's pleadings and the mo-
tion to dismiss.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and, such of them as
have been found to constitute unfair labor practices, tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Hating found that the Respondent engaged in certain
unfair labor practices, it will be recommended that it
35 The Root Dry Goods Co., Inc., supra, Shea Chemical Corporation,
121 NLRB 1027
36 Subsequent events, concerning Supervisor Bell's activity in March,
April, or May, 1965, in dealing with the Union as the representative of the
janitorial employees merely bears out that Respondent recognized the
true state of affairs. Although Bell testified that he adjusted the grievances
in his dealings with the Union without knowledge or consultation of any
of the higher officials of Respondent , I have serious doubts that this is the
case, as Bell was consulted by Dudman with regard to the retention of the
janitorial employees , and Bell was likewise credited by top officials with
keeping the janitors from leaving their job. I am quite convinced that Bell
did discuss his contacts with the Union with officials of the Respondent
Supporting this conclusion is the fact that Respondent paid the union con-
tract wages and gave the increases required by the union contract after it
took over the janitorial employees.
37 Iowa Beef Packers, Inc., 144 NLRB 615, 619
38 Dancker and Sellew, Inc., 140 NLRB 824
39 Bryan Mfg Co. v Local Lodge No. 1424, Machinists , 362 U S. 411.
WHITE FRONT SACRAMENTO 55
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent, on April 7, 1965, and
at all relevant times thereafter, refused to bargain collec-
tively with the Union as the duly designated representa-
tive of the employees in an appropriate unit, it will be
recommended that Respondent, upon request, bargain
collectively with the Union as the exclusive representa-
tive of said employees, and, if an agreement is reached,
embody such an understanding in a signed agreement.
Having found that Respondent on June 3 and June 8,
1965, entered into an agreement and a letter of un-
derstanding with the Intervenor which included the unit
of janitorial employees, at a time when the Intervenor did
not represent the employees in said unit, it will be recom-
mended that Respondent withdraw all recognition from
the Intervenor as the collective-bargaining representative
of the employees in said unit unless and until the Inter-
venor shall have been duly certified by the Board as such
representative. It further shall be recommended that
Respondent cease and desist from giving any force or ef-
fect to the collective-bargaining agreement insofar as said
agreement purports to cover the unit of janitorial em-
ployees or to any modification, extension, supplement, or
renewal thereof. However, nothing herein shall be con-
strued as requiring Respondent to withdraw or abandon
any of the terms and conditions of employment currently
enjoyed by the janitorial employees.
It having been found that Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed to them by Section 7 of the Act, it shall
be recommended that Respondent be required to cease
and desist from in any manner interfering with, restrain-
ing, and coercing employees in the rights guaranteed them
by Section 7 of the Act.
The unfair labor practices found to have been engaged
in by Respondent are of such a character and scope that
they strike at one of the basic purposes the Act was
designed to achieve, i.e., to provide employees, in a unit
appropriate for bargaining, a free and untrammeled cho-
ice of their bargaining representative. It will, therefor, be
recommended that Respondent cease and desist from in
any manner interfering with, restraining, or coercing em-
ployees in their guaranteed rights.
Upon the basis, of the foregoing findings of fact and
upon the record as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and during all times material herein
was, an employer engaged in commerce and a business af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union and Intervenor are, and during all times
material herein were, labor organizations within the
meaning of Section 2(5) of the Act.
3. All janitorial employees of the Respondent and its
retail establishment located at 3400 Arden Way, Sacra-
mento, California, excluding all other employees, guards,
and supervisors as defined in the Act, constitute, and at
all times material herein have constituted, a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Union was on April 7, 1965, and, at all times
relevant thereafter, has been the exclusive representative
of all employees in the above-described appropriate unit
for the purpose of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. By failing on April 7, 1965, and at all times
thereafter, to bargain collectively with the Union as the
exclusive representative of the employees in the above
appropriate unit, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
6. By executing and maintaining the agreement and
letter of understanding of June 3 and June 8 with the In-
tervenor, covering janitorial employees in the
above-described unit, at a time when the Intervenor did
not represent said employees, the Respondent has vio-
lated Section 8(a)(2) of the Act.
7. By interfering with, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed in Section
7 of the Act to the extent herein set forth, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. 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, it is recommended that the Respond-
ent, White Front Sacramento, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Assisting or contributing support to Retail Clerks
Union, Local 588, Retail Clerks International Associa-
tion, AFL-CIO, by recognizing the said labor organiza-
tion as the representative of its janitorial employees for
the purpose of collective bargaining with respect to
wages, rates of pay, hours of employment, or other terms
or conditions of employment, unless and until said labor
organization shall have been duly certified by the Na-
tional Labor Relations Board as the exclusive representa-
tive of said employees.
(b) Giving effect to the collective-bargaining agree-
ment and letter of understanding of June 3 and June 8,
1965, with the Intervenor, or to any extension, renewal,
or modification thereof, unless and until said Intervenor
shall have been duly certified by the National Labor
Relations Board as the exclusive representative of said
employees: Provided, however, that nothing herein shall
be construed as requiring Respondent to withdraw,
change, or abandon any terms or conditions of employ-
ment currently enjoyed by its janitorial employees.
(c) In any other manner interfering with, restraining,
or coercing its janitorial employees in the exercise of the
right to self-organization, to form, join, or assist the
Union or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection or
to refrain from any or all such activities.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the In-
tervenor as the exclusive representative of the Respond-
ent's janitorial employees for the purpose of collective
bargaining unless and until said labor organization has
been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Upon request, bargain collectively with Building
Service Employees' Union, Local 22, Building Service
Employees' International Union, AFL-CIO, as the ex-
clusive representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment and,
if an understanding is reached, embody such understand-
ing in a signed agreement . The bargaining unit is:
All janitorial employees of the Respondent at its retail
establishment located at 3400 Arden Way, Sacramento,
California, excluding all other employees, guards and su-
pervisors as defined in the Act.
(c) Post at its retail establishment located at 3400
Arden Way, Sacramento, California, copies of the at-
tached notice marked "Appendix A."40 Copies of such
notice, to be furnished by the Regional Director for Re-
gion 20, shall, after being duly signed by an authorized
representative of White Front Sacramento, Inc., be
posted by Respondent immediately upon receipt thereof
in conspicuous places, including all places where notices
to employees are customarily posted, and maintained by
it for a period of 60 consecutive days thereafter. Reasona-
ble steps shall be taken by said Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of the receipt of this
Decision, what steps Respondent has taken to comply
herewith.41
40 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
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."
41 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 20, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
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 refuse, upon request, to bargain col-
lectively with Building Service Employees' Union,
Local 22, Building Service Employees' International
Union, AFL-CIO, as the exclusive representative
of all employees in the appropriate unit with respect
to wages, rates of pay, hours of employment, or other
terms and conditions of employment.
WE WILL NOT give effect to the agreement and
letter of understanding of June 3 and June 8, 1965,
entered into with the Retail Clerks Union, Local
588, Retail Clerks International Association,
AFL-CIO,, affecting janitorial employees , or to any
extension , renewal , or modification thereof, unless
and until the said labor organization shall have been
duly certified by the National Labor Relations Board
as the exclusive representative of said janitorial em-
ployees.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce our employees in the ex-
ercise of their right to self-organization , to form labor
organizations , to join or assist the above-named labor
organization or any other labor organization , to bar-
gain collectively through representatives of their own
choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such
activities , except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL bargain collectively , upon request, with
Building Service Employees ' Union , Local 22,
Building Service Employees ' International Union,
AFL-CIO,, as the exclusive representative of all the
employees in the bargaining unit described below
with respect to rates of pay, wages , hours of employ-
ment , and other terms and conditions of employ-
ment, and, if an understanding is reached , embody
such understanding in a signed agreement . The bar-
gaining unit is:
All janitorial employees of the Respondent and
its retail establishment located at 3400 Arden
Way, Sacramento , California, excluding all
other employees, guards and supervisors as
defined in the Act.
WE WILL withdraw and withhold all recognition
from the Retail Clerks Union , Local 588, Retail
Clerks International Association , AFL-CIO, as col-
lective-bargaining representative of any or all jani-
torial employees unless and until that labor organiza-
tion shall have been duly certified by the National
Labor Relations Board as the exclusive representa-
tive of such employees.
All our employees are free to become or remain, or
refrain from becoming or 'remaining, members of any
labor organization , except to the extent that this right may
be affected by an agreement in conformity with Section
8(a)(3) of the Act as amended.
WHITE FRONT SACRAMENTO,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
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, Telephone 556-0335.