National Linen Service Corp.

In the Matter of NATIONAL LINEN SERVICE CORP., UNITED LINEN SUP- PLY Co., LINEN SERVICE CORPORATION OF TEXAS and LAUNDRY AND 'LINEN SUPPLY DRIVERS, LOCAL 928, A. F. L., LAUNDRY WORKERS IN- TERNATIONAL UNION, A. F. L. In the Matter of NATIONAL LINEN SERVICE CORP., UNITED LINEN SUP- PLY Co., LINEN SERVICE CORPORATION OF TEXAS and AMALGAMATED CLOTHING WORKERS OF AMERICA, LAUNDRY DIVISION, LOCAL 357, C. I. O. Cases Nos. C-9364 and C-2365 respectively.-Decided March 17, 1943 Jurisdiction : laundry and linen supply industry. Unfair Labor Practices. Interference, Restraint, and Coercion : maintaining surveillance over meetings of employees ; inquiring whether employees belonged to the union ; requesting abandonment of union; refunding of union dues to employees upon condition they surrender their dues books ; speech of company president intended to dis- courage organization. Discrimination : discharge for membership in union and for exerting right of strike. Collective Bargaining : majority established; refusal to bargain based upon respondent's "stalling" tactics and effort to undermine union by numerous company-sponsored elections. Remedial Orders : cease and desist unfair labor practices, reinstatement of em- ployees, withdrawal of recognition from dominated organization, bargain collectively. - Unit Appropriate for Collective Bargaining : drivers and helpers. DECISION AND ORDER On October 10, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceedings, finding that the respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom, and that they take certain affirmative action as set forth in the copy of the Inter- mediate Report, annexed hereto, Thereafter, the respondents filed exceptions to the Intermediate Report and a brief in support of the exceptions. The Board has considered the rulings made by -the Trial Examiner at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. 48 N. L. R. B., No. 27. 171 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice a hearing for the purpose of oral argument was scheduled to be held before the Board at Washington, D. C., on Feb- ruary 23, 1943. Although the respondents had requested the,hearing, they were not represented by counsel, nor did they appear at'the hear- ing. Consequently, oral argument was not conducted. The Board has considered the Intermediate Report, the respondents' exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below : 1. The Trial Examiner found that National Linen Service Corp. and Linen Service Corporation-of Texas were "employers" within the meaning of Section 2 (2) .of the Act. While we are of the opinion, and find, that the record supports the findings of fact of the Trial Examiner with respect to the business operations and corporate rela- tionships of all the respondents, we ,do not believe that these facts warrant a finding that National Linen ,Service Corp. or Linen Service Corporation of Texas controls the labor policies of United Linen ,Supply Co. or participated in the unfair labor practices which were committed by United Linen Supply Co Moreover, we do not find it necessary, in order to effectuate the policies of the Act, to direct our order against National Linen Service Corp. or Linen Service Corpora- tion of Texas. Accordingly, ve find that National Linen Service Corp. and Linen Service Corporation of Texas are not employers within the meaning of the Act, and" we shall dismiss the complaint as to them. 2. The Trial Examiner' found that on June 5, 1939, United Linen Supply Co. discharged Lenora Drew because of her membership in and activities on behalf of Laundry Workers International Union, A. F. L., and recommended that she be made whole for any loss of pay she may have suffered. We agree with the finding of the Trial Examiner. However, the record shows that charges were filed with the Board on July 5, 1939, but were subsequently withdrawn on September 11, 1939, when the Board questioned its jurisdiction over the matter. On March 6, 1942, in filing its fourth amended charge in the current proceeding, Laundry Workers International Union, A. F. L., alleged, inter cilia, that United Linen Supply Co. had committed an unfair labor practice within the meaning of Section 8 (3) of the Act by discharging Drew. Consequently, we shall provide in our, order, that the period for com- puting back pay shall commence with'March 6, 1942, and shall continue to the date of the respondent's offer of reinstatement to Lenora Drew. ' See Press Co. v N. L. R. B., 118 F (2d) 937 (App D. C ) ; N. L. R. B. v. Hearst, 102 F (2d) 658 (C. C. A. 9) ; Bethlehem Steel Co. v. N. L. R. B., 120 F. ( 2d) 641 (App. D. C.) N L. R. B v Condenser Corp, 128 F. (2d) 67 (C C. A 3). NATIONAL LINEN SERVICE CORP. 173 3. The Trial Examiner found that the employees listed in Appendix A of the Intermediate Report, who were discharged on February 21, 1942, were discharged because of their participation in a strike which commenced on February 20, 1942, and that said strike resulted from the respondent's unfair labor practices. The Trial Examiner recom- mended the reinstatement of such employees with back pay. While we do not agree that the strike was caused by the respondent's unfair labor practices, it is clear, and we find; as did the Trial Examiner, that such employees were discriminatorily discharged' and shall order them to be reinstated with back pay. The record supports the finding that ;Special Employees' Committee was dominated and interfered with by United Linen Supply Co.; that, consequently, the master contract -entered into on February 11, 1942, with said Committee and the supple- mentary individual contracts of employment entered into on or about that date were illegal and void ; that the no-strike provisions in the individual contracts of employment were likewise void; that on February 20, 1942, there existed no valid contract or provision limiting, the employees in their right to strike; and that, therefore, the re- spondent's action in discharging the employees who were striking on February 21, 1942, was an interference with the employees' right to .engage in concerted activity and hence violative of the provisions of ,Section 8 (1) and (3) of the Act. 4. The Trial Examiner found that United Linen Supply Co., by Tefusing to, meet with the committee of drivers, had committed an un- fair labor practice within the meaning of Section 8 (1) of the Act. We disagree with this finding. The evidence discloses that Gatewood, .as spokesman for the committee, claimed, in behalf of Local 357, to represent a majority of all the employees of the South San Pedro plant. It does not appear that Local 357 represented a majority of such , employees. Consequently, the respondent was under no duty to meet and bargain-with the committee. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) ,,of the National Labor Regulations Act, the National Labor Rela- tions Board hereby orders that the respondent, United Linen Supply Co., Los Angeles, California, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Laundry and Linen Supply Drivers, Local 928, A. F. L.; Laundry Workers International Union, A. F. L.; and Amalgamated Clothing Workers of America, Laundry Division, Local 357, C. I. 0.; or any other labor organization of its 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment; (b) Dominating or interfering with the administration of the Special Employees' Committee or with the formation or administra- tion of any other labor organization of its employees and from con- tributing support to said Special Employees' Committee or to any other labor organization of its employees, and giving effect to any contract or contracts it may have entered into with the said Special Employees' Committee or to any contract it may have entered into with any of its individual employees, pursuant to the terms of its, agreement with the Special Employees' Committee, provided that in compliance herewith, the respondent • shall not withdraw or diminish any of the benefits to its employees granted under the terms or provisions of such contract or contracts with respect to wages, hours of employment, or vacations; (c) Refusing to bargain collectively with Laundry and Linen Supply Drivers, Local 928, -A. F. L.,' as the exclusive representative of all drivers and drivers' helpers employed at the South San Pedra Street plant in Los Angeles, California, exclusive of supervisors; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : ' - (a) Offer to each and every person listed in Appendix A, attached to the Intermediate Report, immediate and full reinstatement to the former or substantially equivalent position last occupied by him at the branch at which he was last employed, without prejudice to his sen- iority and other rights and privileges, provided that in the event any of said employees shall fail for a period of thirty (30) days after, receipt of the offer of reinstatement made in writing by the respond- ent, to report for employment pursuant to said 'offer, the obligation to reinstate such employees as shall fail to report shall be terminated, except that in the event any of said persons shall at the time of said offer be in the armed forces of the, United States, such persons shall be entitled to reinstatement upon demand at any time within forty (40) days after discharge from the armed forces of the United States; (b) Make each and every person listed in Appendix A, attached to the Intermediate Report, whole for any loss of pay he may have suffered as-the result of the respondent's discrimination against him, by payment,to each of them of a sum of money equal to that which NATIONAL LINEN SERVICE CORP. 175 each normally would have received as wages from the date of the discrimination, against him to the date of the respondent's offer of reinstatement, less his net earnings during said period; except with respect to Lenora Drew, who shall be made whole for any loss of pay she may have suffered as a result of the respondent's discrimina- tion against her, by payment to her of a sum of money equal to that which she normally would have received as wages from March 6, 1942, to the date of the respondent's offer of reinstatement, less her net earnings during said period; (c) Withdraw all recognition from the Special Employees' Com- mittee or its successors, if any, as the representative of any of the employees of the respondent, for the purposes of dealing with the respondent concerning grievances; labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and com- pletely disestablish the Special Employees' Committee as such representative; .(d) Upon request, bargain collectively with Laundry and Linen Supply Drivers, Local 928, A. F. L., as the exclusive representative of all employees engaged as drivers and drivers' helpers at the re- spondent's South San Pedro 'Street branch in Los Angeles, California, exclusive of supervisors, in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment; (e) Immediately post in conspicuous' places throughout its of- fices at Los Angeles, California, and maintain for, a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this Order; (2) that the respondent will take the affirmative action set out in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the employees of the respondent are free to become or remain members of Laundry Workers International Union, A. F. L., Laundry and Linen Supply Drivers, Local 928, A. F. L., and Amalgamated Clothing Workers of America, Laundry Division, Local 357, C. I. 0., and that the respondent will not dis- criminate against any employee because of his membership in or activity on behalf of these or any other labor organizations; (f) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10), days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT Is FURTHER ORDERED that the complaint, insofar as it alleges that National Linen Service Corp. and Linen Service Corporation of Texas are employers within the meaning of the Act, be, and it hereby is, dismissed. 176, DECISIONS OF NATLONAL LABOR RELATIONS BOARD AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges: that United Linen Supply Co. discriminatorily discharged Delmer Thorne, Walter R. Lyons, and Elbert M. Adamson, within the mean- ing of the Act, be, and it hereby is, dismissed. MR. JOHN Al. HOUSTON took no part in the consideration of- the above Decision and Order: INTERMEDIATE REPORT Charles 31. Ryan, Esq., for the Board. Elmer H. Howlett, Esq, of Los Angeles, Calif for United Linen Supply Co. Paul R. Watkins, Esq., and Richard W. Lund, Esq., and Austin Peck, Esq., of Latham and Watkins, of Los Angeles, Calif., for National Linen Service Corp. and -Linen Service Corporation of Texas. STATEMENT OF THE CASE On March 6, 1942, Laundry and Linen Supply Drivers, Local 928, A. F: L, hereinafter called Local 92S, filed with the Regional Director for the Twenty- first Region (Los Angeles, California) of the National Labor Relations Board, hereinafter called the Board, its fourth amended charge against National Linen Service Corp, hereinafter called National ; United Linen Supply Co., hereinafter called United ; and Linen Service Corporation of Texas, hereinafter called Linen Service, all of whom are hereinafter collectively referred to as the respondents, charging the said respondents with having engaged in unfair labor practices within the meaning of Section 8 (1), (3) and (5) of the National Labor Relations Act, 49 Stat 449, herein referred to as the Act. On March 11, 1942, Amalgamated Clothing Workers of America, Laundry Division, Local 357, C I. 0, hereinafter called Local 357, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) of the Board, its first amended charge against the above-named' respondents, charging said respondents with having engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. On April 14, 1942, the Board entered an order directing that the above-described cases be consolidated, and on May 29, 1942, by its Regional Director for the Twenty-first Region, issued its complaint in the cases so consolidated, against National Linen Service Corp., United Linen Supply Co. and Linen Service Cor- poration of Texas, alleging that said respondents have individually and collec- tively engaged in"and are engaging in unfair labor practices affecting commerce, within the meaning of Section S (1), (3) and (5), and Section 2 (6) and (7) of the Act. Copies of the complaint accompanied by notice of hearing thereon were duly served on each of the respondents, Local 928, Local 357 and Laundry Workers International Union, A. F. of L., hereinafter called Laundry Workers. During the course of the hearing on the above complaint, upon a second amended charge filed by Local 357 while the hearing was in progress, the complaint was amended over the objection of the respondents, to allege that the said respondents had engaged in other and further unfair labor practices- affecting commerce within the meaning of Section 8 (1) and (3), and Section 2 (6) and (7) of the Act. At the request of the respondents, the hearing was their adjourned to an agreed date to permit them to meet. the new matter set out in the amended complaint. NATIONAL LINEN SERVICE CORP. 177 The complaint, as so amended, alleges, in substance, that Linen Service owns the controlling interest in United; that National owns the controlling interest in Linen Service ; that National controls, dominates' and directs the business operations and labor policies of Linen Service and United and is equally respon- sible with Linen Service and United for the business operations and labor policies of United ; that the respondents discouraged membership in or affiliation with Local 928, Local 357 and Laundry Workers by their employees at two described branches in Los Angeles, California, by disparaging union members, advising them that union membership would be futile, threatening them with discharge if they became members, demanding that they refrain from bargaining collectively and that they execute individual contracts of employment, sponsoring, encourag- ing, assisting, interfering with and dominating the formation and administration of a Special Employees' Committee, entering into a contract covering wages, hours and working conditions with said Special Employees' Committee ; and by offering and giving rewards to induce employees to give up their union, member- ship and activities ; that the respondents discharged and have refused to reinstate one (1) named employee because of her membership in and assistance to the Laundry Workers ; that the respondents discharged and have refused to reinstate 13 named employees because of their membership in and assistance to Local 928; that the respondents discharged and have refused to reinstate 19 named em- ployees because of their membership in and assistance to Local 357; that certain of the employees constitute a unit appropriate for purposes of collective bargain- ing; that prior to January 9, 1941, and at all times thereafter, Local 928 had been designated by a majority of the employees in said unit as their representa- tive for purposes of collective bargaining; that on or about January 10, 1941, the respondents failed and refused and at all times since have failed and refused to bargain with Local 928, as the representative of all the employees in such ap- propriate unit, in respect to wages, rates of pay, hours of employment and other conditions of employment, and that by the conduct of the respondents above- described, they have interfered with the exercise by the employees of the rights guaranteed in Section 7 of the Act and have engaged in unfair labor practices' within the iueaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the Act. Substantially identical motions were filed by National and Linen Service with the Regional Director for the Twenty-first Region, to dismiss the complaint as to each of them on the following grounds- (1) that the moving respondent actually tiansacts no business in California or in the western part of the United States; (2) that this proceeding is an attempt to obtain jurisdiction over and to impose restrictions on the operations of the moving respondent by virtue of facts with regard to which, if true, it had no part or control ; and (3) that the place of business of the moving respondent, wheic its office, records and offices are located is so distant from the place of hearing that it cannot adequately defend itself Action on these motions was deferred until the" hearing when they came before the Trial Examiner for disposition. Coincident with the filing of the motions above referred to, the respective respondents filed separate answers with the Regional Director of the Twenty- fiist Region, in which each admit certain allegations of the complaint relative to their respective corporate-structures and the character of business done, but deny the allegations relative to inter-corporation control; domination or direction of the, business operations and labor policies of each other, and generally deny all of the allegations of the complaint pertaining to the alleged unfair labor practices,and the conclusions derived therefrom. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice and notices of postponement, a hearing on the original complaint and the complaint as amended, was held in Los Angeles, California, between June 29 and August 8, 1942, before R. N. Denham, the Trial Examiner duly designated by the Chief Trial Examiner. All parties appeared, were rep- resented by counsel and participated in the hearing where full opportunity was afforded each of them to examine and cross-examine witnesses and to introduce evidence bearing on the issues. The motions of National and Linen Service for the dismissal as to them of the complaint and the complaint as amended, were considered by the Trial Examiner and were denied as to the third ground set out in each of said motions. That portion of the motions contained in the first and.second grounds stated was taken under advisement until such time as the evidence to be adduced at the hearing could be heard and considered. The undisposed of porfions of such motions to dismiss are now denied. At the conclusion of the hearing the motion of counsel for the Board to strike the name of Cecil Moon from the amended complaint and to dismiss the amended complaint, without prejudice, insofar as it pertains to the termination of the employment of Herbert Lee and Matt Lynch was granted. Counsel for the Board also' moved to amend the amended complaint to con- form to the proof with respect to correction of names, dates and other similar recitals not going to the fundamental issues involved. The motion was granted and made applicable to all pleadings filed herein. Oral argument was waived by all parties. Respondents National and Linen Service requested leave to file a brief with the Trial Examiner. Such brief has been received. On the basis of the -foregoing and after having heard and observed all the witnesses and considered all exhibits received in evidence, the undersigned makes the following : FINDINGS OF FACT I. THE RESPONDENTS AND THEIR INTERCOMPANY RELATIONSHIPS Each of the respondents is an operating corporation, organized, under the laws of Delaware and engaged in the business of renting laundered linens, uniforms, towels and kindred supplies to offices, barber shops, hotels, restaurants and other users of linens, in or near the communities where their respective branches are located. In conjunction therewith, the various branches also operate laundry plants for cleansing the soiled linens. National directly owns and operates 26 such linen service establishments in a like number of cities in Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Louisiana, Tennessee, and Kentucky. Its principal office for the transaction-of business and its principal place of business is located in Atlanta, Georgia. During 1941, National purchased raw and other materials, equipment and supplies for use in its business operations, of the value of approxi- mately $3,250,000.00 of which` approximately $750,000.00 in value were purchased from sources without the State of Georgia and shipped to the various places of business of National within the State of Georgia. The- annual gross revenue of National from its linen service business is approximately $7,000,000 00 There is no serious contention by National that it is not engaged in commerce within the meaning of the Act. Linen Service maintains its principal office in,the office at National'at Atlanta, Georgia, where its officers have their offices, the meetings of the board of direc- tors are held' and its general books and records are maintained, although it con-' .NATIONAL IJINEN.,SERVICE CORP. '179 ducts all its actual business in and about the cities of Dallas, Fort Worth,,and Houston, Texas.. In 1941, Linen Service purchased soap, cleaning compounds, cabinets, uniforms, linens, towels and kiiidred products of the value of approxi- mately $431,000 00, of which approximately $177,000 00 in value were purchased ,from National and shipped from Atlanta, Georgia, to the places of business of Linen. Service within the State of Texas .-Approximately $54,000.00 in value of such purchases were made by Linen Service from sources other than National located outside the State of Texas and shipped to the places of business of Linen Service in the State of Texas. The annual gross revenues of Linen Service derived from its business operations above-described, totals approximately $1,000;00000. There is no serious contention that Linen Service is not engaged in commerce within the meaning of the Act. United maintains its executive offices and keeps its general books of account in the office of National in Atlanta, Georgia, but confines its business to the op- eration of two linen service establishments. with their accompanying .laundry plants in Los Angeles, California. During the fiscal year 1941, United pur- chased soap, cleaning compounds and similar supplies of the approximate value of $44,604 00, of which $2,204 00 in value were shipped to it from National at Atlanta, Georgia. The remainder of such supplies were purchased within the :State of, California. During the same period United purchased towels, linens, uniforms and kindred supplies for use in its business of the value of approxi- mately $297,72100 of which $141,297 00 in value 'were purchased from sources outside the State of California and shipped from such sources to the places of business of United in Los Angeles, California. The -annual gross revenue of United derived from the conduct of its business operations above described is approximately $1,385,875.00 In addition to the, foregoing, National owns and operates three factories in Atlanta, Georgia, as follows : "The soap plant," where it "'manufactures, processes, produces, sells, and distributes soap, washing compounds and kindred products," all of which are distributed to and used in the various plants of the respective respondents. In the fiscal year ending August 31, 1941, the various products of,the soap plant were valued at approximately $123,000, of which approximately $18,000 in value were distributed to directly owned branch plants of National within the State of Georgia ; approximately $85,000 in value were distributed 'to directly owned branch plants of National outside the State of Georgia ; approximately $18.000 in value were distributed to plants of Linen Service, all of which are in the State of Texas ; and approximately $2,248 in value were. distributed to United for use at its plants at Los Angeles, California. The latter plants procured their laundry soaps and washing compounds locally in the Los Angeles market because of price differentials but obtained all toilet soap that is distributed to customers as a part of,service from the "soap plant," also on the basis of lower cost. "Alsco Manufacturing Company," herein called Alsco, where it "manufactures, processes, produces, sells, and distributes cabinets and kindred products." As in the case of the "soap plant" all the products of this factory are distributed to and used by the various branches of the respective respondents in the conduct of the business done by such branches. In the year ending August 31, 1941, the total products of Alsco were valued at approximately $134,000 of which approxi- mately $17,500 in value were distributed to directly owned branches of National within the State of Georgia ; approximately $97,000 in value were distributed to directly owned branches of National outside the State of Georgia ; approximately $16,000 in value were distributed to branches of Linen Service, all of which are 521247-43-vol. 48-13 180 DECISIONS, AF,. NATIONAL LABOR RELATIONS BOARD in the State of Texas, and approximately $3,800 in value were distributed to the branches of United in Los Angeles, California. "Empire Manufacturing Company," herein called Empire, where it engages in i the business of "manufacturing, producing, processing, selling, and distributing linens, coats , uniforms , and kindred products." All of the products of, this factory with the exception of approximately J/2 of 1 percent, are distributed to the various branches of the respective respondents for use in the conduct of the business done at such branches. . In the main, the branches of the respective respondents procure the major portions of their requirements of linens from Empire although United purchases its uniforms locally because of price differen- tials. In the fiscal year ending August 31, 1941, the total products of Empire were valued at approximately $1,034,000.of which approximately $135,000 in-value were distributed to directly owned branches of National outside the State of Georgia ; approximately $143,000 in value were distributed to branches' of Linen Service, all of which are, in the State_ of Texas ; approximately $60,000 were distributed to branches of United in Los Angeles, Califoinia; and approximately $6,000 in value were sold to others. Substantially all the common stock of United, together with 66 percent of its Class A stock and 60 percent of its Class B stock, all of which classes of Stock enjoy voting privileges; is owned by and held in the name of Linen Service; and approximately 57 percent of the common stock of Linen Service, which is the only voting, stock of that corporation, is owned by and held in the name of National. I. M. Weinstein is the president of each of these three corporations With the exception of the Chairmen of the Boards, the executive officers of National - . and Linen Ser\ ice are-identical. II. THE LABOR ORGANIZATIONS INVOLVED Laundry and Linen Supply Drivers,. Local 928, A. F. L ; Laundry Workers International Union, A. F. L.; and Amalgamated Clothing Workers of America, Laundry Division, Local 357, C. I. 0, are respectively, labor organizations ad- mitting to membership employees of respondent United. III. THE UNFAIR LABOR PRACTICES A. Developmciit of the National; Linen Service and United affiliations The history, of the development of what may 'be termed the National Linen System, which is often referred to by the spokesmen for National and its em- ployees, as the "National Linen Family" comprising what-they describe as a coast to coast linen service, consisting of the 31 "branches" that are the 2G branches of National, the three branches of Linen Ser^,ice and the two branches of United, is, in effect, the story of the organizational genius and leadership of 1. M: Weinstein. He began the business in 'a Very small way in Atlanta, Georgia, in 1919, under the corporate name-Atlanta Linen Supply Company. "In this, his first association was with one Herman Gross. Between them they had but little capital, and, shortly after getting under way, sold a one-third interest to one Eplan Eplan held his interest only a few months and then sold'to A. J. Wein- berg, a druggist in Atlanta. Weinberg not only'took over Eplan's interest but advanced further funds for the purchase of some 'equipment which partially freed the concern from complete dependence'on the'local laundries for cleansing their linens. ' ' ' NATIONAL LINEN SERVICE CORP. 181 In about 1923, J. B. Jacobs; also a local merchant, became interested-and purchased Gross' interest in the business.' He, too, advanced additional funds which made it possible to establish a branch and build a plant in Birmingham, Alabama, of which he became the manager. At about the same time a branch was also established in Savannah, Georgia. In 1924, N. Al. Gordon, another Atlanta merchants was induced by Weinstein and his associates to join them in the linen service business. At that time Weinstein, Weinberg and Jacobs were the sole interested parties in the'original Atlanta Linen Supply Company and had set up each of the branches as a separate corporation. The record does not disclose, nor is it material, how the stock in these early corporations was dis- tributed excdpt that it is obvious from subsequent developments that Weinstein, Weinberg and Jacobs each held an interest. P All of Gordon's negotiations were conducted with Weinstein. He acquired-no interest in the Atlanta corporation but participated in establishing a branch at Chattanooga, Tennessee, under a new corporation, Chattanooga Linen Supply Corporation, of which he was to, and did, own half the stock Under Weinstein's guidance, Gordon built the plant, became vice president of the new corporation, and took over the management of the branch. In testifying concerning his re- lations with Weinstein,' Gordon stated : "He (Weinstein) came to see me quite frequently there (Chattanooga) and. helped me tremendously. He was, as has been expressed in these bearings, the driving force. I,learned a great deal from him. While I always did' not think along the same lines as he did, I at that time and subsequent periods, while I was with the National Linen could do nothing other than follow his. directions, as he was my boss !" - From the establishment of the Chattanooga branch until 1928, the program of expansion continued. Weinstein,, as described by Gordon, continued - to be the driving force, although his close association with Weinberg and Jacobs was never interfered with and their respective interests in the business continued to be approximately equal and, together, to represent complete control of all the com- ponent parts' In 1928, two merger movements followed in quick succession, with the first apparently as a "position" maneuver to accomplish the second. The first was the incorporation of Southern Linen Supply Company, hereinafter called Southern, as a holding company, to which Weinstein, Weinberg and Jacobs transferred all their. interests, direct and indirect, in all of the branches, including the original Atlanta Linen Supply Company, and the miscellaneous stockholders such as Gordon, in the various branch corporations, did likewise, for which each received a certain amount of the stock of Southern. The basis of such transfers is not disclosed nor is it material since the transfers did not disturb the Weinstein, Weinberg and Jacobs control of Southern and, through it, of all the operating branch corpora- tions. The completion of this transaction found Southern. the owner of all the out- standing stock of the following corporations: Atlanta Linen Supply Company, Atlanta, Georgia. Birmingham Linen Supply Company, Birmingham, Alabama. Gulf Coast Linen Supply Company, Mobile, Alabama. New Orleans Linen Supply Corporation, New-Orleans, Louisiana. 'The current control of National by Weinstein and his associates is derived, not from a controlling stock interest, but from the terms of the voting trust agreement under which all common stock of National is held. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Florida Linen - Supply Company, Miami, Florida. Jacksonville Linen Supply Company, Jacksonville , Florida. Savannah Linen Supply Company ,- Savannah , Georgia. Chattanooga Linen Supply Company, Chattanooga , Tennessee. Carolina Tower Supply Company, Winston-Salem, North Carolina. Caroline Linen Supply Company, Charlotte , North -Carolina. together with the Alsco Manufacturing Company in Atlanta, heretofore described. Immediately following the organization of Southern and the transfer to it of all the stock of the various operating branch corporations , Weinstein and his asso- ciates negotiated a further merger of all the assets and business of the various' Southern subsidiaries with those of Atlanta Laundry,'Inc., which were devoted' to the operation of linen services in Atlanta; and those of Laundry 'and ' Dry , Cleaning Service which were devoted to the operation of linen services in New Orleans. National was the product of this combination. Although the contribution of Southern to the merger was many times greater than the contribution of Atll.nta Laundry, Inc., and Laundry and Dry Cleaning Service, Inc-, Weinstein , Weinberg and Jacobs elected to take -most of Southern's participation in the form of $7.00 Preferred Stock of National , which, it was agreed, would be issued to the participants in an amount equal to the gross vol- ume of business respectively done by them during the preceding year , plus'the fair actual value of their physical assets less outstanding liabilities . This re-' suited in the distribution to Southern of most of the Preferred Stock thus issued, of which Weinstein , Weinberg and Jacobs and their respective immediate fami- lies, received 12,859 shares, representing slightly less than 60 percent of the total issue The distribution of the 7 percent preferred stock to other stockholders of Southern is not disclosed by the record . The-common stock of National initi- ally issued , consisted of 150,000 shares, of which, under the terms of the merger agreement, 50,000 shares were to be distributed to Southern , 50,000 shares ,to Atlanta Laundry , Inc., and Laundry and Dry Cleaning Service, In., on an undis- closed- basis of division between them , and 50,000 shares to Sidney W. Souers, an official of the Canal Bank and Trust Company of New Orleans , who, in his indi- vidual capacity, had agreed to underwrite $500,000.00 of bonds for the new company at 90. The merger agreement-further provided that all the common' stock should be placed in a voting trust for 10 years,' with Weinstein , Weinberg and Jacobs , representing the "Southern" interests and serving as a group which, in certain instances could cast only a single vote, three others, including Souers, who represented the "bond holder interests" and in certain instances could cast only a single vote, and B . C. McClellan , representing Atlanta Laundry , Inc., and Laundry and Dry Cleaning Service, Inc., as voting trustees However, to insure the continuity of the control of the new company by Weinstein and his associates, a mandatory provision was inserted in the merger agreement that the executive officers of the new corporation should' be B C. McClellan, Weinstein, Jacobs and' Weinberg, with McClellan as chairman of the Board and with the offices of Presi- dent, Executive Vice-President, Secretary and Treasurer distributed among 2 In 1933; the voting trust was continued in effect for ten additional years, without substantial amendment except that by that time changes were made in the second group which now includes McClellan ' and appears to represent the New Orleans interests while Souers is the seventh trustee and serves apparently as representative of his own interests only 8 McClellan had never before been associated with Weinstein , Weinberg, and Jacobs interests.. His primary business had always been and still is in New Orleans with Laundry and Dry Cleaning Service, Inc , which conveyed only its linen service business to the merger but retained its laundry and dry cleaning business -NATIONAL LINEN 'SERVICE CORP. 183 Weinstein, Weinberg, and Jacobs in such manner as they should agree. Out of this arrangement, Weinstein became President, Jacobs became Executive Vice- President, Weinberg became Vice-President and Treasurer, and S., H Vicknair was designated Secretary and Assistant Treasurer. They have remained in those respective offices until the present time. k . By the above procedure and special provisions of the controlling agreements, notwithstanding that Weinstein, Weinberg and Jacobs and members of their immediate families held and now hold only approximately 31 percent of the voting trust certificates representing the common stock, they have nevertheless pre- served their complete control over the affairs of National with Weinstein con- tinously at its head. The organization of National, to which all the physical assets, good will, trade names, trade routes, etc., of each of the merged establishments was conveyed, was the signal for a new and extended program of expansion. Under Weinstein's direction and leadership, National acquired or established some 16 additional branches between 1928 and 1938, giving it a total of 26 branches in the various states listed in Section I hereof. It had acquired Alsco as a part of the Southern combination and within a short time had taken over the Empire Manufacturing Company heretofore described. The development of the soap plant also appears to have taken place during this period. After 1938, Weinstein attempted no further establishment of operating branches under National's own name but reverted to the former technique of controlled subsidiaries.` In October 1938, he had been negotiating to take over several linen service businesses and to lease a partially completed plant in Houston, Texas. He also had had some negotiations to acquire similiar businesses, but without a plant, in Dallas, Texas, and on October 10, 1938, caused Linen Service to be incorporated under the laws of Delaware for the purpose of acquiring these businesses,. with National subscribing to more than half the initial issue of common stock. The rest of the preorganizational subscriptions were made by persons identified with National's management. The subsequently issued com- mon stock was first offered to the other holders of National voting trust certifi- cates in proportion to their holdings. Shortly after the incorporation of Linen Service'and about two months before it began doing business, Weinstein also opened negotiations in Los Angeles, California, with one Ben Weingart for the acquisition of the controlling stock interest in United, a corporation that had ,been in existence since 1929 and was then operating four linen service branch plants in Los Angeles and vicinity In December 1938, two months before the purchase of United control was concluded, Weinstein told Gordon, then Manager of National's branch at Richmond, Virginia, who, in addition to having been a director of National since 1935 had been continuously associated in--the -business as branch manager for 14 years, of his plans to acquire the United business in Los Angeles and arranged with Gordon for the latter to take over the manage- ment of one of the United plants as soon as the transaction"should be com- 4 These are described as the personal activities'of Weinstein because they were exactly that. He is admittedly the builder of the National system and throughout its history has planned and carried out the development and operational functioning of the system, in.the manner of carrying on a "one man" business ; arranging deals, making commitments and working out details without bothering to obtain corporate sanction until the matter in hand had been closed, if at all Weinberg and Jacobs do not appear as officers active in directing the business Their functions appear to deal solely with administrative detail within the Atlanta offices. It is pertinent, however, that whatever Weinstein did he did against the ,`National" background, and on behalf of National. 184 DECLSIONS OF NATIiO'NAL LABOR. RELATIONS BOARD pleted.' The negotiations with Weingart resulted in a contract executed' by -Weinstein, in the name of Linen Service, on January. 28, 1939,, with Aetna Hold- ing Company, of which Weingart was secretary, ,whereby' Linen Service agreed to purchase from Aetna, substantially all the outstanding 60,000 shares of common stock of United for Three Hundred Twenty-Five Thousand Dollars ($325,000.00) payable, twenty-five thousand ($25,000.00) upon the execution of the contract, One Hundred Twenty-Five, Thousand ($125,00000) by March 11, 1939, and the remainder at the rate of Twenty-five Thousand ($25,000.00) Dollars each six (6) months thereafter The agreement also contained an option to National to,purchase a designated number of shares of United's Class A and Class B stocks, which carried voting privileges.' This agreement was 'later ratified by Linen Service on or about February. 6, 1939, when it began to do business as a corporation. The purchase, 'however, was not completed until after February 21, 1939. . - The original stock subscriptions to Linen Service were inadequate to finance the acquisition of the Texas businesses and the United stock and to provide working capital. Accordingly, on some undetermined date in advance of Febru- ary 21, 1939, Weinstein arranged with the Trust Company of'Georgia, in Atlanta; to lend Linen Service $250,000 00 and committed National to assure the payment of the 'obligation by agreeing that National would purchase additional stock of Linen Service, if necessary.? On February 23, 1939, Linen Service registered with Securities and Exchange Commission its statement covering a proposed offering of 430,000 additional shares of common stock of no par value, at $1.00 per share. It is this stock- that the holders of National Voting Trust Certificates were given proportional "rights" to purchase and which National, in effect, underwrote. On February 13, 1939, Gordon, having been advised that arrangements had been completed to take over the United operations' in Los Angeles, was instructed by Weinstein to proceed there and assume the management of what is hereinafter referred to as the Hollywood, or La Brea branch of United. He arrived on February 20, 1939 At the same time, J. H Weinberg, bother of A. J Weinberg and manager of National's branch at Birmingham, Alabama, was transferred to Los Angeles to manage what is hereinafter referred to as the City Linen or South San Pedro Street branch. George Taylor, route manager at National's Nashville, Tennessee, branch, was transferred to Los Angeles to serve as route manager at the South San Pedro Street branch. Roger Wilson; route manager at National's Charlotte, North Carolina, branch, was transferred to Los Angeles to be route manager at the Hollywood branch; and, as promptly as he could set up 'certain standardized office procedures at the Texas branches, Louis Zipperman, a general office accountant and utility man in National's main office in Atlanta, 6 Gordon's testimony on this subject is accepted as substantially correct insofar as it pertains to the fact that Weinstein discussed with him the fact that lie was negotiating for and later that he had acquired United However, Gordon's testimony that Weinstein told him he had acquired United in conjunction with 'other parties not connected with National is so contiaiy to the established facts that it must be disregarded as an after- thought of the witness, designed to color the incident in support of the proposition that United is and always has been an independently functioning organization, wholly outside the National influence - - Total Class A stock outstanding, 16,495 shares, with full voting privileges Total Class B stock outstanding, 16,800, with voting privileges only when in default. 'This stock was in default in 1939 and still is. ° The loan was not actually made until February 21, 1939, and the commitment referred to is dated February 22, 1939. This commitment contains an agreement by Weinstein to obtain corporate appioval at the next meeting of the directors of National A resolution of•ratification was passed by the directors on May 15, 1939. NATIONAL IJINENT SERVICE CORP. 185 was transferred to Los Angeles to become office manager for both the .branches and for the central co-ordinating office of United . By this time, the organization of Linen Service had been completed: Souers had been designated Chairman of the Board a Weinstein, Jacobs, Weinberg and Vicknair became, respectively, President,•Vice President, Vice President, and Secretary-Treasurer. Each also was a director. The other directors consisted of two active "National" branch managers, National's general sales manager, a "National" branch manager who was transferred to Dallas, Texas, to manage the new "Linen Service" branch there;-arid the manager of the new Houston branch, whose past affiliations are not disclosed in the record. On February 6, 1939, Line Service officially began to do business as a corporation. In the regis- tration statement for its additional offering of common stock, Linen Service stated that one of the purposes of this issue, together with the loan of $250,000 00 heretofore described, and the preorganizational stock subscriptions was, not only to purchase the Houston and Dallas linen services, and to acquire the United stock, but "for the development of other plants which will eventually be estab- lished in Texas and Oklahoma ; also for the acquisition of such linen service businesses as the issuer may desire to acquire'! 10 In early March, 1939, the purchase of the United stock having been consum- mated, a special meeting of United stock holders was held in Los Angeles. Linen Service issued its proxy to Weinstein and at the meeting, Weinstein selected a hoard of directors for United, consisting of himself, Gordon, J. H Weinberg, Charles Wedler, assistant to the former manager of United, and Harold Larson, a Los Angeles attorney who also acts as local counsel and Secretary to United. Weinstein caused himself to be designated President, and Gordon Vice-President and Treasurer. Weinberg served until his connection with United was termi- nated in January 1941, at which time Zipperman succeeded him. At its 1942 meeting, Weller was omitted and_Weinstein's son was elected to succeed him. It is the contention of National and Linen Service that, if there have been any unfair labor practices engaged in by United, they were wholly beyond the control of both National and Linen Service, that those respondents had no part therein and that neither of them can or should, either in law or in fact, be held responsible for such acts. On the other hand, it is the contention of counsel for the Board that,United'is not, in fact, an independently functioning corporation, that it has no autonomy, that it is an integral part of the "coast to coast" system of National, and that it is subject to the same supervision and control in matters pertaining to operation, administration, service, and labor relations as are all the branches that are admittedly operated and controlled by National. In this, counsel for the Board relies not only on factors which indicate a physical inclusion, but to a very large extent, on the over-all personal domination of all branches by I. M. Weinstein. In support of their contention, National and Linen Service rely upon the un- controverted facts that: (1) neither National nor any of its stockholders directly own any substantial amount of the capital stock of United ; (2) the boards of directors are different;-(3) with the exception of I Al Weinstein, who is presi- e Almost as soon as the control of United passed, two of the four branches formerly operated , were closed and the business and some of the equipment transferred to the two remaining branches above named. e Souers at no time has taken an active part in administering the affairs of either National or Linen Service. He left New Orleans some time after 1928 and moved to St Louis, Mo , where lie entered and remained in the insurance business until recently commissioned in the Navy. ° "The Ft Worth, Texas, branch was not established until after February 23, 1939. ti 186 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD dent of all three, -corporations,- there, is no identity of officers ; u (4) whereas, all branch managers for National and Linen Service obtain their supplies and equipment on requisitions cleared through, Weinberg, who is an officer of both, Gordon, as head of the United branches, may make his own purchases without approval and only goes through Weinberg when Weinberg can purchase more n The interrelation of officers and directors is reflected as follows : -National - Linen.Sertiice United B C McClellan (New Chin of Bd______ ---------------- 0 r I e a n s) Presi- dent - Laundrv & Dry Cleaning Serv- ice. I Al Weinstein (4t-, President President ------- President. lanta) J. B. Jacobs (At. Exec. V. P------- V. President-_-__ lanta) - A J Weinbeig ,(At- V. Pres-Treas___ V. President_____ lanta). S II Vicknair (At- Secy-Asst Treas__ Secy-Treas lanta). • Sidney W S o u er s Director -------- Chm. of Bd. (New Orleans-St Louis) N. Al Gordon (Los Director -------- ----------- V. Pres -Treas. Angeles) Mgr. - United. . Geo W Robertson Director,________ ---------------- (New Orleans) C. L Sawyer (New Director ________ ------------------ Orleans) -L., D Habert (New Director ________ ------------- Orleans) George H. Fauss (At- Director -------- __,______________ lanta) Not in National operating organza- - tion. Milton Weinstein (At- ---------------- Director Jan 41-- Director May 42 _Tanta) Son of I. At - ex-Wedler. Weinstein M. M. Weinstein (At- ---------------- Director -------- Tanta) Brother of I. M Weinstein- Natl's Gen'l Sales Mgr., . Herman Gross, (At ---------------- Director -------- lanta) Mgr Na- tional branch-At- lanta Sam Zinkow (Miami, ---------------- Director -------- Fla ) Mgr. National ' branch-Miami William W. Valloff ---------------- Director _^ ------ (Dallas,' Texas) Mgr. - Linen Serv- ice-Dallas John Goss (Houston,' ________________ Director -------- Texas) Mgr Linen . ' Service-Houston. Harold Larson ('Los --------------- --- ---------------- Secretary. Angeles) Attorney Louis Zipperman (Los ________________ ________________ Director. Angeles) Former of- • - fice man in Atlanta ' office. ' NATIONAL LINEN SERVICE CORP. 187, advantageously; (5) whereas all branch managers for National and Linen Service, are "directed" to attend the annual convention of managers in Atlanta, Gordon is "invited" ; (6) whereas all meetings of the directors of National and Linen Service are held in Atlanta, the directors meetings of United are held in Los Angeles; and (7) when executive or supervisory employees of National became officials or supervisory employees of United, they resigned their" old posts to'take the new ones, and, in one case, the United official affected (Louis Zipperman) lost his accumulation of time served with National which would have ripened into a right to wear a "Ten years of Service" button awarded to National em- ployees and officials. For judicial authority, they point to the decision of the United States Court of Appeals for the District of Columbia in The Press Co.,, Inc. v. N. L. R. B., 118 F. (2d) 954. Normally, such a showing would go far to exonerate National and Linen Service for the acts of United., In questions of contract or ordinary-tort, or other matters governed by the strict application of the common law, they probably would be exonerated ; but in the instant case, the record discloses _a congeries of facts which gives compelling weight to-the Board's contention which needs not necessarily be measured by the restrictive rules that control the courts of law, if the purposes of the Act can best be served by going beyond such rules but yet remaining within the limits set by the Act and the decisions defining such limits.u While it is not admitted by any of the respondents, ;no serious effort was made to show a lack of complete domination of Linen Service by National. In his testimony, Vicknair indicated and the surrounding facts confirm, that in 1938 National abandoned its policy of expanding by the process of establishing branches as such, and organized Linen Service as a medium for extending the business into areas not yet covered. The preorganizational stock subscription was confined to National and its officers, directors and others closely associated with it. National's initial subscription was for a controlling 51 percent In addition to its stock subscription, National pledged its credit to obtain a bank loan of $250,000 for Linen Service, the proceeds of which were required 'to consummate the purchase of the United stock ; and later, when the loan was increased to $975,000, endorsed Linen Service's note for that amount. The four executive officers of National and Linen Service are identical, and in each corporation are the only persons who have an authoritative voice in management. The managers of the branches of National and Linen Service admittedly are governed by the same rules, regulations, policies and restrictions without distinction. No attempt was made to show independence of Linen. Service in any respect, and it is found that there was and is none. It is accordingly found that although National and Linen Service are separate corporate entities with some difference in the minority stockholders as' well as in the personnel of the respective boards of directors, the business of Linen Service and of its branches, is, in fact, controlled, regulated, supervised and car- ried on, by National, as an -integral part of the business of National, and that for the purposes of this controversy, they inust' be and are regarded as a single organization, of which I. M. Weinstein is the directing head. On the basis of the foregoing finding, all references hereinafter made to National will' be taken to include Linen Service unless otherwise specified. Linen, Service's ownership of 59,799 of the, 60,000 issued shares of the common stock and a substantial majority of all other outstanding stock of United was accomplished only through_ the use of National's credit in negotiating its bank 12 Phelph Dodge Corporation v. N. L. R. B., 313 U. S 177; N. L. R. B. v. Arthur J. Cotten et at., 105 F. (2d) 170. 188 ' DECISIONS '-OF NATIONAL LABOR RELATIONS BOARD loans. The acquisition of control of United was of primary •imp'oitance-only to. National: Linen Service was no more than the instrument with which -it was done- Weinsfein, Weinberg and Jacobs, and Vicknair to some extent since 1928,' now are and always have been the only persons in National with authority over the operation of the business. Similarly, they are the only persons in--Linen Service with authority over the operation of that business. Their respective' offices are the same in both corporations. Foi• purposes of administration, Vick- nair supervises the keeping of the records and accounts of National in Atlanta: He does- the same with reference to the records and accounts of Linen Service- and United, all of which are maintained at the offices of National in Atlanta.. Jacobs devotes his chief attention to the mechanical operation of the physical plants of National and Linen Service from his office in Atlanta. but exercises no direct supervision over the plant personnel. Weinberg controls the- purchases' for the various plants. The testimony indicates that Gordon,. 4s,'head of the' Los -Angeles branches, is 'allowed a high degree of leeway and is permitted to make purchases independently, using Weinberg's purchasing power and facilities' when it appears Weinberg can buy on more favorable terms. Weinberg, however; does not exercise any immediate direction or supervision over the business details, public relations, labor relations or general policies of the business as a whole or of the various branches. These latter functions have botli been delegated to Weinstein as overall president of National ' and its subsidiaries and controlled affiliates, and have been assumed by him as the originator of the business, in the management of which he has made a substantial financial success. Under this division between Weinstein, Weinberg, Jacobs and ^Vicknair of the field of management and direction of the business of the National-system, the setting up of the branches and the supervision of their operation has rested exclusively in Weinstein. That this extends to United as well as to the other branches'is evi- denced by the fact that at the first stockholder's meeting of United after the change of control, and at all subsequent meetings, Weinstein has held the proxy of Linen Service" and has named the directors and officers of his choice and designated and changed branch manageis, solely on' his own initiative His supervision has not consisted'of merely laying down broad general policies from his office in Atlanta. It has been an intimate personal supervision, in connection with which he visits the Los Angeles branches each month and makes emergency visits when conditions require Evidence was adduced by the respondents di- rected to the proposition that Gordon is practically a free agent in all matters pertaining to United ; that although Weinstein visits the branches Beach month, he gives no instructions or ordeis to Gordon ; that matters of labor relations and general policy are never discussed and that, in any event, Gordon knows more about running a linen service business'than does Weinstein who, in recent years, has not had intimate contact with detail operations" Aside from the testimony of Gordon on this subject, the record does not indicate that, in setting up the 's Vicknair testified that the proxies are issued to Weinstein and Gordon. While this is accepted as fact , the whole circumstances surrounding Weinstein 's direction of the affairs of all the respondents leads to the conclusion that regardless of the appearance of Gordon's name, the proxies were in fact exercised by Weinstein. There is nothing in the record to support any contrary inference or finding. 14 The testimony of neither Gordon nor Vicknair can he taken at its face value. Neither was entirely frank in many regards and frequently resorted to technical plays on words, statements of half-fact , or denials of wholly obvious facts, all tending to distort the pic- ture Illustrations of these incidents appear in many places , especially in the testimony of Gordon . His testimony is not wholly discarded but, on this and all other subjects, can only be given substantial weight when corroborated by other credible testimony or by admitted or reasonably obvious facts. NATIONAL LINEN SERVICE CORP. 1$9 United organization and'in retaining and exercising his control and personal supervision of it, Weinstein,ever intended to or at any time has vested it or Gordon with freedom of action, independent of the National domination which'he, as the creator,and over-all head of the National system, represents. • The entire history of United reflects' the Weinstein method of exercising his one-man control of the actual business operations throughout the system. He selected Gordon for his post, in Los Angeles a month or more before the United stock purchase contract had been signed. It was he who planned and negotiated the United purchase. He signed the stock purchase- contract a week, or more before-Linen Service officially began to do business` and before-it had any official notice even that the purchase was contemplated. It was- he who planned and negotiated the purchase of the Houston and Dallas businesses that gave rise to Linen Service.' It was he who negotiated the bank credits of both Linen Service and United All of these were done in line with his official position in National and none in a personal capacity. Weinstein was and is the personification of National in all matters pertaining to the' conduct of linen service businesses:. His acquisition of United, no matter in what artificialities it may be clothed, was accomplished and his supervision of it has been carried on in that capacity. What he does and has done has been accepted with approval by National as a part of the National system functioning. - Gordon's selection was a natural one. He is not and never has been a sub- stantial stockholder in either National, Linen Service, or United, although, with the exception of Weinstein, Weinberg and Jacobs, he was the oldest executive in. the organization in point of service ' He had been a successful branch manager for the organization for more than 14 years and had set up and organized at least four of its branches. The operation of United under its old management had not been successful. Gordon was experienced in the National methods and was selected by Weinstein to install them at the Hollywood branch of United. It was essential that United have an executive officer in Los Angeles. Weinstein, for equally obvious reasons, selected Gordon for this post. Gordon was, is and since 1935 has been a member 'of the Board of Directors of National. He is the only branch manager who has ever occupied that posicion and as such, with more than 14 years of close association with Weinstein and the organizaton, brought with him to United all the policies, procedures and traditions of National. However, he was not then turned loose • to administer them in any manner he `saw fit. Weinstein _ undoubtedly vests Gordon with much discretion but he has never ieli.nquished his supervision over the Los Angeles branches. In 1939-1940 and 1941, this was especially true. t The extent of Gordon's authority over the affairs of United, as its Vice Presi- dent and Treasurer is not_disclbsed except negatively. His only direct authority- over the operations was, until January 10, 1941, confined to the management of the Hollywood branch. He had no authority whatsoever over Weinberg or the branch that Weinberg managed As branch managers, Gordon and Weinberg were responsible to and subject •to the orders only of Weinstein.16 Although Gordon is Treasurer he, appears to'have no authority over -the general funds. The books are kept in Atlanta. Gordon may draw checks for limited purposes but the checks for general accounts are drawn ,in Atlanta. . Weinstein's overshadowing domination of the affairs of the combination' of organizations and the fact that United and its branches are regarded by Weinstein, by National, by bankers who do business with him and by the employees through- 11 The occasion of Gordon later being placed in authority-ever both branches is dealt with in another part of this report. - 190 DECISIONS' -OF',NATLONAL LABOR RELATIONS BOARD out the organization, as an integral part of the National system; existing, operat-, ing,_ supervised and controlled in substantially'all respects, by the same policies and over-all rules that govern all the other branches, are constant themes through out the record. , As in the case of the United stock purchase, wherein he committed Linen Service to an expenditure of three hundred twenty-five thousand dollars and paid out twenty-five thousand dollars of the commitment on his own 'initiative before attempting to obtain corporate sanction for such a major transaction, Weinstein, likewise, 'committed National to the guarantee of Linen Service's bank loan of $250,000 needed to consummate the United stock purchase and ob tamed the corporation's sanction only after it was "fait accompli " When United sought to borrow $100,000 from the Bank of America in Los Angeles, in December 1939, the loan was negotiated by Weinstein and, according to stipulation of the parties, was made primarily on the credit standing of National, concerning which Bank of America fully advised itself through inquiries to the Atlanta bankf, where-National did business, before acting.16 Although not material to a finding herein, it is a reasonable inference that these inquiries were made on the basis of information furnished by Weinstein at the time the loan application was made that United was a part of the National system and would be protected by National. According,to Vicknair, Weinstein spends 75 percent of his time visiting the various branches Vicknairr denied knowledge as to'what Weinstein does when at the branches of United but concerning the supervision by Weinstein of the branches of National and Linen Service, he testified Q Do his duties have to do, and his travels, with all the various phases of the management and operation of these various plants? A. Well, not with these different departments. Just as a matter of generalities, they do. Q. And over-all supervision? - A.,Yes sir. - - Q That-goes towards the business operation of the plant and the personnel problems and the working conditions in the plant ; is that right? A. Yes sir. Despite Gordon's denial that Weinstein ever 'exercises any supervision over United or gives him any instructions concerning the operations, the whole record of Wemstein's activities and especially his conduct in connection with the con- troversy of January 1941, which is hereinafter dealt with, leads to a contrary conclusion. It is found that Weinstein's relations with-United and its branches were no different from those testified to, and here accepted as correctly described, 6y Vicknair concerning Weinstein's supervision of the National and Linen Service branches. United's place in the National system as an integral part thereof and its domination by National is further illustrated by the following : The Executive Office of United, according to letterheads in evidence, is located at the offices of National in Atlanta. United keeps no general books of account other than customers ledgers and payroll records in Los Angeles. All its general books of account are kept at the 16 The stipulation was that 'if the officer of the Bank of America who made the loan was called, he wogld testify that when Weinstein applied for the loan, the bank made telegraphic 'inquiry of Atlanta banks as to the credit standing of National and Linen Serv- ice ; that he was advised that National had' net assets of $4,500,000, and net income for 1939 of $943,000; that upon being advised upon the credit standing of National, Linen ,,Service and United, the bank made the loan of $100,000 to United, $50,000 of which was to take up a loan of like amount held -by an Atlanta bank, ishile the rest was to be used to make a payment on the purchase of the Wardrobe Linen Service Company by United -NATIONAL LINEN -SERVICE CORP. -office-of National in Atlanta, under the supervision of Vicknair, who similarly maintains the records of National and Linen Service, but is not an official or on the payroll of United. "Linenews," a monthly paper inaugurated by Weinstein in April 1940, carries on its masthead the slogan, "Circulation : Coast to Coast. All in the Family," and refers to the "31 branches" 1Q as constituting the "National Linen Family." The paper is distributed gratis to all employees of National, Linen Service and United. Each issue contains an editorial by Weinstein addressed to the employees at large. In these writings, Weinstein also adopts the term "family" in referring to the organization as a whole. Articles in "Linenews" deal with the United branches and United employees without discrimination and list the Hollywood and South San Pedro Street branch correspondents along with the correspondents in other branches, without distinction. On taking over control, Gordon had all trucks and automobiles painted red to ,conform to standardized National equipment. In 1940, the names of all services under the National system, including those operated by United. were changed to conform to uniform National practice by eliminating the word "supply" or similar terms from the names and making all names conform to the following: (Blank) Linen Service Company" National maintains a group life insurance policy for its employees, to the benefits of which United and Linen Service employees are admitted on payment of the same fixed premium that applies to all other employees The employees of United are bonded under a blanket bond issued by Maryland Casualty Company to National prior to 1939 and later amended to include the United employees when the stock control of United passed to National. Although Gordon and Zipperman can sign checks against United funds for certain limited purposes in Los Angeles, salary checks and checks to cover major expenditures, accounts and bills payable, etc are issued in the name of United from Atlanta. Weinstein has authority to sign these checks as President. In addition, they may be signed as "two signature checks" by Weinberg, Jacobs and Vicknair, none of whom is officer, director, or employee of United but who, as has heretofore been noted, are, with Weinstein, the sole governing executives of National and Linen Service. The record contains numerous other illustrations of the subservience of United to National and its executive officers but to detail them would only be cumulative. It is believed the foregoing are sufficient for the purposes hereof. From the foregoing it is found that United is not in fact an independently func- tioning organization but that its general operations, character of service, per- sonnel relations and over-all business are conducted according to principles estab- lished and imposed on it by National and its integrated subsidiary, Linen Service, and personally supervised by or under the direction of Weinstein. And it is further found that United and its branches are,, in fact, an integrated part of the system controlled by National and directed by Weinstein, and that United and its 1branches are operated, maintained, supervised and controlled in respect to all the activities carried on and policies followed, by substantially the same 17 Consisting of 26 branches under National, 3 branches under Linen Service, and 2 'branches under United. 's Neither National, Linen Service nor-United appear to operate under their corporate names in serving the public United operates in .Los Angeles ,under,' four fictitious names : Hollywood Linen Service Company, City Linen Service Company, Wardrohe.Linen,Service Company, and Elite Linen Service Company. In the other cities served by the National system, similar designations are followed. According to Gordon, the preservation of these names is a part of good will created by predecessors whose businesses have.been absorbed. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policies, regulations and supervision that govern all the other branches in the system and that the same have been and are laid down by National and by National acting through Weinstein have been and are imposed on United. B. The unfair labor practices of 1939 When National took over the control and management of United's business in February 1939, substantially all the working personnel was retained. Of the supervisory personnel, those retained were M. B. Nearhoff, former plant super- intendent at the Hollywood branch, R. C. Knapp, plant superintendent at the South San Pedro Street branch, and Charles Wedler former assistant to the general manager, who was retained as assistant to J. H. Weinberg, the new -manager of the South San Pedro Street branch.. The testimony of one witness hints at a previous union affiliation by one of the employees but the record as a whole discloses no history of the relations of the former management of United with its employees. There is no evidence that prior to 1939 any collective bar- gaining organization of the employees existed. Prior to 1939, United had carried on its linen service business under what is known as the "Bundle. System," whereby a certain amount of linens is delivered to the customer in the first instance and thereafter as the linens are soiled, the driver picks up the bundle of soiled articles, turns them in without checking them, and for the next delivery to the customer, is given a bundle containing exactly the. quantity of material last returned by the customer. Under this system all counting, checking, listing and billing is done at the plant and branch office. The driver has no responsibility other than to make delivery of the bundle and collect the amount indicated on the accompanying ticket. On the other hand, National has for years conducted its business under what is known as the "Even Exchange System," whereby the customer initially receives a specified amount of linen and thereafter the driver. picks up the soiled linen, counts it before leaving the customer's place of business, places it in his truck, delivers an equiva- lent amount of linens to the customer from a bulk supply on the truck, makes out a sales ticket at the time and collects the appropriate amount from the customer. As-soon as National took control, the system of conducting the United business was changed from thebundle system to the.even exchange system."D At the same time the Santa -Ana branch of United, which had been operated in one of the suburbs of Los Angeles, and the Union Towel & Case Company branch at 125 Mission Road, Los Angeles,. were closed and the business of those branches, to- gether with some of the equipment transferred to the Hollywood and the South San Pedro Street branches. These changes necessitated considerable reorganiza- tion in the routes of the drivers-and in the plant operations and caused no small amount of confusion among the plant employees until. the new business was absorbed and the new system had become familiar to them. In the early part of May 1939, several employees of the South San Pedro Street branch called at the Labor Temple in Los Angeles and made inquiries concerning the organization of the employees at that branch by the Laundry Workers International- Union. Pursuant to arrangements there made by the organizer representing Local 52 of the Laundry Workers, a meeting of a sub- stantial but undetermined number of the South San Pedro Street plant (inside) employees was held about May 12, 1939, at the Labor Temple and a number of 19 In March 1942, the United branches abandoned the even exchange system and reverted to a modified bundle system, unlike the original. The record indicates without showing definitely that the new system is being adopted, at least to some extent, in other-National Branches. :NATI'ONAL LINEN SERVICE CORP. 193 those. present made application for membership in the Laundry Workers at the time. Among these was Lenora Drew; hereinafter referred to Meetings con- tinued to be held at the Labor Temple each week thereafter and were addressed -solely to the inside employees of the South San Pedro Street plant. News of this activity apparently reached the management at the South San Pedro Street branch immediately. On May 13 or 14 R. O. Knapp, laundry superintendent at that branch, and who had been such for some years under the previous man- agement, approached Drew, also an employee of long standing who is substan- tially above the average in intelligence, appearance and apparent general lead- ership ability, and asked her whether she had heard any discussions of union activity. Drew replied , in the affirmative and in response to Knapp's inquiry as to why the employees should join the union, told him that it was because of .general dissatisfaction with the conditions as they then existed in the plant. Knapp did not discuss the matter further but disposed of it by telling Drew that he did not want to have to discharge anyone but that he would if he received orders to do so. Drew's reply to this was that she did not think Knapp would get such .orders since the employees were fully protected under the National Labor Relations Act, but that if he did find it necessary to discharge anyone because of union activities, to let her be the one. In her testimony; Drew ex- plained that this statement was prompted by the fact that there were others who could less afford to lose their jobs, while she' had her husband as a means of -support. About a week later, Weinberg, the branch manager, approached Drew with an inquiry about the Union but she refused to discuss the matter with him. On or about May-24, 1939, Knapp instructed Drew to tell the Spanish-speaking employees in the plant, for him, that he did not want them to go to the Union meetings and would discharge any who did so. Because this came in the form of an order from Knapp, Drew gave the message to the Mexican women employees. By early June 1939, the Laundry Workers had acquired an undetermined number of memberships among the inside employees at the South San Pedro Street plant, and had also begun to receive complaints that the employees were ,being discriminated against within the plant because of their -union activity. At about this time representatives of the Laundry Workers arranged and held a meeting with J -FI. Weinberg. manager of the South San Pedro Street branch, at his office, attended by A M Hart and Floyd M. Buckale«,, as representatives of Laundry Workers, and Weinberg and Wedler as representatives of United. At this conference the union representatives stated that,they believed they ,represented a majority of the inside workers at that branch,. that, there had been complaints about di.:criuiination against their members because of their union affiliations -and that,they des^i red to enter into a contract with United on behalf of all the in workers at the branch. Weinbergi assured them that if any discrimination was being practiced he did not know about it but would take steps to stop it iminediateiy. They also gave him a copy of the standard form 'of Laundry Workers' agreement find went over its provisions with him, but did not get beyond the general discussion stage at' any time. Weinberg advised them that although he was ssinpathetic to the union,' he had no authority to make any decisions with reference to.labor policies, since,this was a national concern and such matters would have to be disposed, of by the authorities in Atlanta He• "stated, howeder, that he -was leaving 'almost -immediately -for Atlanta and that while there, would take-up the matter. of the contract ,with the approliriate,.authorities On Weinberg's return some two or three weeks later, Hart, with another of the Laundry Workers' representatives, again called on Weinberg and inquired about the contract. Weinberg did not advise them 494 DECISIONS' 'OF NATIONAL-LABOR 'RELAT'I*S BOARD 'whether lie had discussed the matter with the authorities in Atlanta- but did -'state' that' the firm would' be unable to enter into any such agreement as had been proposed. The matter of the' contract was not pursued but Hart did raise the question of continued discriminations and pointed out several discrimina- tory discharges, to which Weinberg replied that none of the persons complained about had been discharged because 'of'their union activities but for other rea- sons y0 These two meetings are 'the -only ones ever held by representatives of Laundry Workers with any of the representatives of United zt At 'about the time of the • first meeting with Weinberg and during one of the weekly Labor Temple meetings, Hart was advised by some of the employees present,, that;two of'the officials of United were across 'the street from the Labor Temple watching the entrance. -Hart and two other union officials went to the place where the men were reported to have been seen, but found they had left. They walked around the block and upon returning saw two men getting into, an automobile parked near the Labor Temple. Hart accosted these men and accused them of spying' on the employees of United. The men identified themselves' as Knapp; superintendent 'of the South San Pedro Street plant, previously referred 'to, and J. J. Anton, supervisor of the pressing department in that plant. Knapp's reply to Hart's accusation was that he had a right to be on the street and that it was his privilege to spy on people if he wanted to do so, whereupon he entered the car and drove away. - The point from which' these men were said to have been observing the Labor Temple was the porch of an old hotel' almost directly across the-street from the entrance to the Temple, which is'well lighted and with nothing to obstruct the view of observers sitting where these'men were reported to have been. On another similar occasion during the,series of the meetings, 'Buckalew was advised, just before' the close of the meeting, that Knapp and 'Anton again were' across the street Buckalew went to the street with one of the employees who was acquainted with them and who pointed out Anton standing directly opposite the Labor'Temple Knapp was not then 'in sight. Buckalew accosted Anton and received a reply similar to that which Knapp had given Haft on the previous occasion. The Labor Temple is some 23 city blocks from the location of the South San Pedro Street plant and no offer was made to explain the presence of Anton or Knapp loitering in that immediate vicinity on the evenings when 'the meetings of employees of their plant were being held.' In view of Knapp's previous instructions to Drew, and Weinberg's inquiry of Drew concerning union activities, it is found that the unexplained presence of Knapp and Anton in the immediate vicinity of the Labor Temple on the nights when 'meetings of the South San Pedro Street plant employees were being held, were 'riot coincidental and that they were there on behalf of United for the purpose 'of and were actually spying on the meetings of their employees then being held. 1. The,discharge of Lenora Drew As has been stated, Lenora Drew became a member of Laundry' Workers on May 12,-1939, and within a day or two thereafter disclosed her interest in the union- to Knapp in the course of a conversation on the subject of union activities 20 Based upon the time element, Drew's discharge hereinafter referred to must have occurred during the interval between these meetings. 21 The foregoing is based wholly on the testimony of Hart and Buckalew which was uncontradicted. 22 Knapp was not available to testify, being in military service at an unknown post No showing was made that Anton was not available and no controverting testimony whs offered as to these incidents. NATIONAL LLREN SERVICE CORP . 195 in the plant. Shortly after this conversation, Knapp posted a notice on the bulle- tin board reading as follows : NOTICE TO ALL EMPLOYEES OF THE UNITED LINEN SUPPLY CO. AT CITY TOWEL PLANT You are not obligated to belong to any outside organization or association to, • work in this plant. R C. KNAPP, `General Superintendent. 'Drew had been employed in the South San Pedro Street plant since October 1933, beginning in the linen or sewing room and then passing through the count- ing room where she sorted and marked special articles which mistakenly had gotten into customers' bundles. After a short time, she was put in the gown de- partment in charge of counting,, packing and bundling'for shipment, gowns and' jackets used by the various customers. From time to time, she received increases in her wages from the starting wage of $16 until, at the time of her discharge, she was receiving $21.60 per week, net after all deductions for social security, compensation insurance, etc. Drew testified and it was not denied, that she consistently had to use some- initiative in the conduct of her work, that she had never been criticized for the wanner in which it was done and that during the reorganization period immediately following the change of management in 1939, the work in her department, as in the others, had been' disorganized materially while the methods, volume and handling of the work and absorbing the new work from the discontinued plants were being rearranged, and that during this period she had repeatedly asked Knapp and others for cooperation in getting the work in the gown department organized but had received none from them. While- this state of disorganization existed, and while Drew was still asking for as- sistance, Knapp came to her on Saturday, June 3, 1939, with a sharp criticism concerning the way the gowns of one of the customers were being packed and told her that the customer was threatening to take his business elsewhere. Later in the afternoon of the same clay, Knapp again came to, her with a criticism about the bundles going out to another customer, with which Drew had-had nothing to do, and advised Drew that she should give up her job It is- unclenied that these were the' first criticisms ever directed to Drew during her employment at that plant. Still later in the day, Knapp again went to Drew, told her that she was highly nervous and almost hysterical, and suggested' that she take 'her vacation at that time. Drew replied that she had made her vacation plans for August and that she had no desire to take an immediate vaca- tion. On the following Monday, June 5, 1939, Knapp and Drew appear to have had no further conversation until just before closing time, when Knapp approached Drew, handed her a check for her pay in full, and stated, "Lee, this is the way it is " He also told her that the matter was entirely out of his hands That evening Drew and her husband had dinner downtown ' after which they drove to their home' and found Knapp waiting for them. They invited Knapp into the house, where he told them that "they" had reconsidered and because of Drew's' long service, wanted her to go back to work, but at the Hollywood "Prior to - 1939 and for a long time thereafter, the South San Pedro Street branch was operated as "City Towel Supply Co " The name was later changed to "City Linen Service- Company" ' under which it now operates . The older employees still refer to it as "City Towel " 5 2 12 4 7-4 3 vol 45=14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -plant' as a file clerk, at the same rate of pay she had been receiving at the South San Pedro Street plant. Drew had made an application for employ- went as a file clerk- at the South San Pedro Street plant- some years before but had been refused the job and at the time of this offer, had no experience as such a -clerk ' She called Knapp's attention to this and also to A he fact that file clerks were paid $16 a week whereas she was earning approximately $22 She also objected to going to Hollywood because of the distance she would have to travel, since the Hollywood plant was some 7 or 8 miles further away' from her house than the South San Pedro Street plant. This would have put her place of employment 15-or 16 miles from her place of residence. During the general conversation that followed, Knapp admitted he had been "riding" Drew on the previous Saturday and stated that he would rather have dis- charged her than to have been compelled to do as he did. He also gave her a card addressed 'to Gordon at the Hollywood plant, which he told her she could use if she decided to take the job. She did not change her mind and has not at any time since been offered any employment by United Gordon confirmed that about that time, Knapp telephoned him and asked him if he could use Drew as a file clerk ' He told-Knapp, that he could do so and would put her to woik at the same rate of pay she had been drawing at the South San Pedro Street plant. United made no offer of proof with reference to the discharge of Drew' It is found that Drew was discharged on June 5, 1039, because of her member- ship in and affiliation with Laundry Workers and to discourage membership in Laundry Workers,. and that notwithstanding the offer of employment as a file clerk at the Hollywood branch, Drew has at no time-been offered reinstatement to her previous or equivalent position with United, for the same reasons that motivated her discharge in the first instance.25 - C. The unfair labor'practices of 1941 Following the last meeting of representatives of the Laundry Woikers with Weinberg in 1039, further efforts by Laundry Workers to effect an organization of the employees at the South San Pedro Street plant appear to have been abandoned. 't'here is no evidence that the employees who made application' for membership in the Laundry Workers at that time have continued their affiliation with that organization. - On January 2, 1941, a group of about six of the drivers or routemen, as they are called, employed at the South San Pedro Street branch, called on A. L Bradley, secretary-treasurer and business representative of Local 928, in regard 2% None of the facts surrounding the Drew discharge were controverted but it will be noted that Knapp was not available to testify . Drew was an 'impressive witness whose -testimony is fully credited - 25 During the course of the hearing , attention was called to the fact that although Drew was discharged in June 1939 , the charge upon which this ' action originated was not filed with the Board until March 1941, whereupon it'was stated for the record . with the con- sent of all parties, that on July 5, 1939, a charge was filed by Laundry Workeis against "City Towel Supply Co.," charging that "company " with the commission of certain unfair labor practices within the meaning of Section 8 ( 1) and ( 3) of the Act , including the discharge of Drew and four other employees . , Upon examination by the Regional Office in Los Angeles , it was determined that the _ jurisdiction of the Board in that case was questionable, and accordingly , on September 11, 1939, the charge was withdrawn by Laun- dry Workers at the suggestion of the Regional Office. - When the charge in the. current matter was filed by Local 928 in March- 1941 and piobable jurisdiction of the Board was indicated , Laundry Workers revived the original charge as to 'the , dischai'ge; of nrew but abandoned it as to the other four, and upon such revival „Drew's,dicharge w%as' included in the amended charge upon which the complaint herein as originally issued and as subse- quently amended , is based. I -, - NATIONAL LINEN SERVICE CORP. 197 to effecting an organization of the drivers and helpers at their place of employ- ment. At this conference, a meeting of drivers and helpers was arranged to be held at the Union Hall the following evening, January 3. About 20 drivers .attended and of these 17 signed applications for membership in Local 923 and were initiated immediately. On January 8 another meeting was held, at which 15 additional applications were received. These meetings and applications were confined to the drivers and helpers of United, employed at the South San Pedro Street branch, of whom there were from 40 to 42 in all. On January 9, Bradley and R J Onstott, also one of the representatives of Local 928, called at the office in South San Pedro Street, handed the information clerk-telephone operator their business cards and made a request to see Weinberg They were advised by her that neither Weinberg nor any other official of United was present and that there was no one with ^v om they could speak, whereupon they left their cards with the request that Weinberg communicate with them so that a meeting could, be arranged. Nothing further was ever heard from Welnberg,26 nor did any other officer of United communicate with Bradley or Onstott. By this time practically all the drivers and helpers at the South San Pedro Street branch had become members of Local 928 Some of them had started wearing -their membership buttons while at work and practically all of them did so after January 9. On January 7 or 8, Wedler, at the request of Weinberg, made some inquiries among the drivers concerning their union activities and reported to Weinberg that such activity existed and that the men were insisting that' Weinberg be displaced as branch manager. On January 9, Weinberg app .rently communi- cated with Weinstein and was instructed to go home and not return to the plant. There is some not very convincing evidence that Gordon, Weinberg and Wedler feared the men would strike the following Monday, January 13. In any_ event, Weinberg left the 'plant as directed Meanwhile Wedler directed Taylor to have each of the drivers see him (Wedler) after coming off his route that day and most of them did so. The conferences of the various men with Wedler followed much the same pattern in each instance. Wedler first inquired whether they had joined the union He then asked what grievances they had'and attempted to persuade them to abandon the union This -was confirmed by Wedler who testi- fied that he had talked with each of the inen on January 9 and had discussed their union affiliations and the grievances which led them to join the union, and that his purpose in so doing was to try_to avoid the strike he had been told was to take place the following Monday. Actually, so far as the record reveals, no one connected with the union or the employees had mentioned or suggested the possibility of a strike of any kind The sole testimony on this subject was that of Nearhoff that the manager of another laundry plant had telephoned him that he understood the men were going on strike on the 13th According to Gordon, Weinberg called him from his home on January 9, his message being substantially as follows : "Nat, I am having an awful lot of trouble in the plant. I am calling you from home now, because I was advised to stay there, and not show up." Gordon further stated that, in addition, Weinberg told him the men were going to strike on the following Monday and requested Gordon to go to the plant and see what he could do to satisfv them, and that pursuant to this request he did, in fact, go to the plant on the 9th and talk to Wedler, who told him that the men were dissatisfied with Weinberg as manager, 49 As is later found herein , Weinberg left the branch office on January 9, 1941, . and never again returned to it. However, at that time Wedler was present and in charge. 198 DECISIONS . OF. NATIONAL--LABOR-- RELATIONS BOARD , and that they were insisting he be replaced.' In addition to interviewing Wedler upon his arrival at the South San Pedro Street plant on January 9, Gordon also directed Martin, the sales manager, to put his men on the street the following day .with instructions to interview. as many of the drivers as possible and, according to Gordon's testimony, "find out definitely what was wrong, and what they wanted." Pursuant to these instructions, the salesmen did, in fact, talk to a number of the drivers the following day and attempt to persuade them to discontinue their affiliations with-the union. On January 10 Gordon received the following tele- gram from Weinstein : "WILL ARRIVE MONDAY MORNING AND ADJUST ALL DIFFICULTIES AND IN MEANTIME WILL BACK YOU UP AND PUT YOU IN CHARGE OF BOTII PLANTS." Gordon testified that this telegram was unsolicited and was the first intimation he had that Weinstein knew of the situation. Whether or not this is a fact is not material although it appears almost incredible under the circumstances. Having received the above telegram from Weinstein, Gordon instructed Taylor to post a notice on the bulletin board at the South San Pedro Street Branch, calling a meeting of all the drivers and helpers of the branch for that evening. In the past it had been customary to hold monthly meetings of the drivers and helpers at each branch for the purpose of discussing the various problems on their routes and to canvass the media available for increasing sales. Although this was not such a meeting, in accordance with customary procedure at the monthly meetings, the management•provided sandwiches and soft drinks for the drivers, which were consumed before proceeding with business Gordon's testi- mony and that of the various drivers concerhing what transpired, differs only in detail. Gordon first announced that Weinstein had placed him in charge of both plants and read the telegram above set out. He then told them that he under- stood there was some dissatisfaction among them and wanted to get the story first hand. ' He also stated lie felt that if their objections or criticisms were seasonable, he could straighten them out. Gordon testified that he mentioned the fact he had been advised a'strike for the following Monday was in contempla-, tion and asked the men not to go out, but denied that he said anything about the union. The drivers who testified were unanimous in their statements that Gordon's only topic was an appeal-to the men to forget the union and give him a chance to work out the problem 'with them directly. Neither on direct nor cross examination did any of the drivers refer to any mention of a strike at this or any other meeting with the company officials. In view of the undenied incident which later occurred, it is found that the discussion by Gordon pertained, not to any contemplated strike, but entirely to the membership of the men in the union. According to Gordon's testimony, after some discussion among the nien, one of the drivers said, "Let's have a vote and see whether or not we want the union to zepresent us or not." Gordon further stated that he replied, "Well, if that seems to be your desire, let's hold a vote and if you want Mr. Bradley of the A. F. L. to zepresent you state so by writing on this piece of paper `yes.' If you do not want 27 Neither Weinberg nor Weinstein appeared as witnesses The record contains no defini- tive explanation as to who advised Weinberg to go home and not show up at the plant. Obviously Gordon did not. Neither did Wedler, the assistant manager. Weinstein is the only other person in direct authority. Gordon testified that Weinstein learned of the dif- ficulty by long distance from some triend or business associate in Los Angeles and that he, (Gordon ) did not communicate with Weinstein about it. On this basis it is founds that Weinberg communicated . direct with Weinstein as soon as the dissatisfaction of the drivers came to the surface as'the result ' of' Wedler ' s preliminary inquiries and received-his'-orders from Weinstein as,above set out. ' ` . " NATIONAL LINEN SERVICE CORP.- 199 Slim to represent you, write 'no."' Following this, a vote was taken which resulted in 32 for the union to 8 against it. Upon the announcement of this result Gordon left and the meeting dispersed. On the following Monday, January 13, Weinstein had arrived in Los Angeles as per his telegram to Gordon, and went into conference with Gordon, Taylor and others concerning the demands of the drivers at the South San Pedro Street branch He was told by Gordon of, the general character of the grievances of the men and particularly that some had stated that if the company would dispense with ,the services of. Weinberg as manager, and would install Wedler in that position, they would drop the union. On receiving this information, Weinstein said he would let Weinberg out and and put Wedler in as manager. That evening, United gave a dinner at Mike Lyman's Cafe, one of the well known downtown restaurants in Los Angeles, to which all the drivers and helpers of the South San Pedro Street branch were invited! Weinstein, Gordon, Wedler, Taylor and some of the other supervisory officials attended. Weinberg was not present nor were the drivers or supervisors of the Hollywood branch.- As the principal speaker, Weinstein told the men something of the history of the business and how he had started it from a small beginning in Atlanta, -and built it up to its present proportions. He dwelt on the fair treatment he had always accorded his employees, regretted that conditions were bad in Los Angeles and that he had not been able to get there sooner so that he might have been in a -position to avoid the difficulties' which had arisen. He assured the men that all reasonable steps would be taken to smooth out their complaints and finally closed his remarks by announcing that Weinberg was being relieved and that he was designating Wedler to be the new manager of the South San Pedro Street branch. AVedler then arose, thanked Weinstein for the appointment and asked the men if they would stick by him Practically every driver and helper in the room, if not all, raised their hands. At this meeting no direct mention was made of the union or the affiliation of the men wifh it. It is found, however, that the occasion for the dinner and Weinstein's remarks grew out of the recent affiliation of the drivers and helpers of the South San Pedro Street plant with Local 928, and that the purpose was to impress the drivers and helpers with the thought that union affiliations were not necessary to obtain redress on their grievances and to discourage them from continuing their affiliation with the union When the dinner and speeches at Lyman's were over and while the men were still standing in groups on the sidewalk in front of the cafe, Taylor, on instruc- tions from Gordon, circulated among the men and told them if they wanted to turn in their union books and get back the $5 they had paid as initiation fees, the company would pay them $5 for the books. They were told to present the books to Zipperman, the office manager. In response to this, several men surrendered their books shortly thereafter and were paid $5 in each instance. Taylor testified to taking up Henry Varela's book on this basis Zipperman testified to three -other similar transactions and at least one additional book sale was revealed by the evidence. There was no denial of these incidents by United, all of which -were consummated by officers or senior supervisors. Gordon denied that he had ever authorized Taylor to make such an offer of refund or that he had authorized such refunds to be made, and,stated that he did not learn of them until after the last transaction had taken place. Gordon's denial is not credited The policy was too well known to and followed by the subordinate supervisors and executives 23 This statement by Gordon is particularly pertinent in its reference to Bradley who had visited the plant the day before and requested Weinberg to communicate with hum to arrange a meeting. The inference that the message was passed on to Gordon is obvious, but as has been noted, Goidon made no effort to communicate with Bradley, either then or afte• any of the votes laken thereafter, except as otherNNise set out herein. 200 DECISIONS. OF NATIONAL~, LABOR RELATIONS BOARD for it to have been unauthorized . It is found that the refunds were made oni- Gordon's instructions. On January 14, an unsolicited pay increase of $2.50 per week to diivers and'_ $1.50 per week to helpers in the South San Pedro Street branch was announced, effective beginning January 15 The same pay increase was made applicable to. the drivers and helpers of the Hollywood branch although they had at no time- or in any manner been involved in the union activities or in the matters which have been /discussed herein. On January 16, Gordon called another general meeting of the drivers and helpers of the South San Pedro Street branch which was also - attended by most of the supervisory staff of that branch. He told the men-he felt some of them had been forced into the union , that conditions had already been improved, that steps had been taken to purchase additional linen to provide enough supplies so- that the men , would not be delayed in getting on their routes at the beginning of the day,-9 and that he wanted the men to reconsider the action they had taken, previously with reference to the union and to vote again on the question., For this purpose , Gordon had had prepared and had with him at the time, some- slips of paper upon which had been typed : DO YOU AT THIS TIME WANT MR BRADLEY OF THE A F. L. TO REPRESENT YOU IN REGARD TO YOUR EMPLOYMENT? NO---------- YES---------- On this occasion the vote was 23 in favor of the union and 20 against. Taylor testified that on the chiytfollowing the dinner at Lyman's Cafe, he was advised by Gordon that although' Wedler had been-designated as manager of the South San'Pedro Street branch, he was in charge in name only and that Taylor" was actually to take his orders from Gordon and not attempt to carry out Wed- ler's orders until he had confirmed them with Gordon. Gordon denied having had such a conversation with Taylor but the facts set out in such statements are to a large degree confirmed by Wedler 30 Although Taylor was an interested witness,"' his sincerity and frankness were impressive. He made no, pretence as to remembering details as to dates or exact conversations used at various points in the course of related incidents to which he testified, but he was possessed of a large fund of knowledge relating to the entire controversy and his testimony, on the whole, was far more consistent with the facts disclosed by other witnesses than are Gordon's categorical denials on the same subjects. The substance of Taylor's testimony is credited and it is found that, in substance, Taylor was advised by Gordon to check with him before carrying out any of Wedler's orders 29 In addition to the criticisms of Weinberg , one of the greatest complaints had been that because there were not enough linens to keep customers supplied while soiled linens were being laundered , the men were habitually delayed in getting started until enough of the soiled linens of the previous day could be laundered and made available to them. This frequently delayed their ,departure on their routes for several hours Y0 The following 'appears in Wedler's testimony on cross-examination : Q. (By Mr. Ryan ) Do you know anything about what he (Weinstein) does out here, -while he is out here ? Do you have occasion to know that? A. No, I do not I see Mr..Weinstein most every time he comes out , and we have a few' words , and he goes through the plant Q. But he doesn 't consult with you much' That is the idea ; isn't that right? A. No Q As far as that goes , Mr. Wedler, the actual making, of decisions and going ahead with the management of these plants since 1939 has been pretty much in the hands of Mr. Gordon , and Mr Weinstein , and others connected, with the company, other than yourself ; isn't that right? A Yes is Taylor is named in the amended complaint as having been discriminatorily discharged on February 21, 1941. ', - NATIONAL LINEN, SERVICE CORP. 201 which might not appear to be in line with policy with which Taylor, as a National employee of long standing, was familiar and also, to generally look to Gordon rather than to Wedler for his orders and instructions. Among other things, Taylor also testified that within a week after the dinner of January 13, he and Gordon were. discussing the situation-with reference to the union'al liations of the men and agreed with Nels Sorensen and Herbert Lee were probably the leaders who were holding the men together in the union ; and that in line with this, Gordon instructed Taylor to make a list of the men who, in his opinion, probably could not be dissuaded from abandoning their union affiliations The following were the men who fell into this category and were on Taylor's list : Matt Lynch Paul Belcher , Ernie Frey George Elkins Delmer Thorne Carl Geisen Harry Steiner _ Charles Flanagan Claude DeBaroff - William Anderson Wade Campbell Lee Nalley Walter Lyons Herbert Lee William Dietz Archie Cross Nels C. Sorensen Charles Kramer Elbert M 'Adamson After Taylor discussed the list with Gordon , he was instructed to get rid of the men on some pretext unless they could be induced to abandon their-union affiliations . Gordon vehemently denied having given such instructions to Taylor and of ever having heard of such a list as Taylor described . However; since the list includes all the- men alleged to have been discr.minatorily discharged because of 'membership in Local 928 and since those listed but not discharged did in fact abandon their affiliation with Local 928 on the insistence of various of the officers or supervisors of United , it is found that such a list did in fact vx.st or at ]east that the men listed were marked for discharge if they did not abandon Local 928 , and that the selection was made either under the direction of or w'th the approval of Gordon." •"= T',e record does not disclose that Wedler had any part in malting these selections. He de^ird that be had ever heard of such a list, but the following, taken from his testimony while being unestioned by the Trial Examiner, is at least revealing as to the attitude of the maua,^_or eiit toward those who persisted in their union affiliations Q Jiist one other thing, and this I think was perhaps a matter of a personal philosophy of labor relations • I think you testified that when you held this meeting in February some time that you wanted to talk to the boys, and wanted to put to them and find out whether they wanted the union, or whether they were going to give you a chance to carry on further and clean the thing up. Is that a substantially accurate statement? A February 1-ttli, yes Q Is that a substantially accurate statements A. Yes. Q Mr. Wedler, did you consider or do you now consider that the membership by the employees of the plant in a union would hamper you in improving the condition which had been made a subject of criticism? . A I think they would. Q You think they would? A Yes, I think their demands would be unreasonable if they were all in the 'union, and it would make it hard to work out Q I am sorry to hear you say that, sir, because, after all, you can get along with people I think. A. I have been getting along with them. Q But I ain very much interested in that particular statement. A I would say that applies to certain ones which would take advantage of that occasion. In fact, some of them v,ould have taken it before they even got that far Q Now, do you want to enlarge on that? A. It Ndould be all'hearsay. Q. That was what you based your opinion upon, that same hearsay ; isn't that it? A. No, not exactly. I had my own opinion formed, knowing some of these fellows, as I did. 202 , DECISIONS -0F'-NATIONAL LABOR RELATIONS BOARD About ten days after the meeting of January 16 when a declining majority of- -the drivers and helpers had voted to be represented by Local 928, Bradley wrote -to Wedler announcing that Local 928 represented the majority of the .drivers .at the South San Pedro Street branch and requesting an appointment for a' -meeting with him. The letter was referred by Wedler to Gordon who replied' -and suggested a meeting on February 1, 1941, at the main office in the Hollywood -plant. This was,the first of two meetings with Gordon and one with Larson, which resulted in a proposed agreement being submitted by Local 928 on Febru- ary 15. During the interval between January,16 and the end of the negotiations between Bradley and Gordon on February 15, the officials at the South San Pedro Street branch, including Wedler, Zipperman and' others, were actively soliciting -the employees to give up their' union activities. Wade Campbell was asked by Wedler not to attend' union meetings and to drop his union activities. He did so after remaining a member only some 2 or 3 Reeks Donald Olson and Ralph -Beckman were importuned by Zipperman to drop their affiliations and turn in their dues books for which be. offered to pay them $5 each. About the end of January they did so and received their money. De Baroff joined Local 928 on January 3, 1941, and dropped his membership within the next 2 months upon the insistence of Wedler and Neaihoff. - r On'February 14, Wedler called a special meeting of,all the drivers and helpers, ,at which he called attention to improvements in conditions during the past month- =and asked the men to vote again on the question of whether they wanted the A. F. of L. to be their bargaining agent. Special ballots similar to those previ-- ,ously used had been prepared in advance by Wedler. Several newly hired men ;participated. The result'was 13 for the A. F. of L. and 30 against. It was the ,following day that Bradley and his associate representative of Local 928 had their ,last meeting with Gordon. By this time the union meetings which had at first been held each week, became more infrequent and eventually were discontinued entirely as meetings of this particular group. From the foregoing it is found that by inquiring of the drivers and helpers of ,the South San Pedro-Street branch concerning their union affiliations in confer- ences at,which each man was individually questioned ; by repeatedly assembling, the same employees and, after requesting them to abandon the union, holding successive elections among them at short intervals to determine how many desired to be represented by the union, until the votes, as a result of the activities of •Gordon, Wedler, Taylor, Weinstein and others, reflected a substantial loss of the majority first enrolled in Local 928; and by offering to refund to the employees the initiation fees originally paid by them on becoming members of Local 928'if they would surrender their dues books, and by actually so refunding such initia- tion fees to a number of their employees and actually taking up the dues books of such employees ; and by soliciting the various members of Local 928 to abandon their affiliations with it, either directly or th^ough the solicitations of the members ,of the sales force, United has interfered with, restrained and coerced the drivers .and helpers of the South San Pedro Street branch in the exercise of the rights guaranteed them by Section 7 of the Act. It is further found that on the occasion of the dinner given at Mike Lyman's Cafe on January 13, 1941, Weinstein, being well aware that the controversy which prompted the assembling of the drivers and helpers at the dinner arose out of their collective action as members of Local 928, 'and in order to discourage the employees from so acting collectively and from remaining members' of Local 928 for purposes of collective bargaining, ad- dressed his remarks to them primarily for the purpose of discouraging the assembled employees from maintaining their affiliations with Local 928 for col- lective' bargaininng purposes and that the employees so understood at the time. NATIONAL LINEN SERVICE CORP., 20T, It is also further found that-while Weinstein was president of United when he so addressed the employees, this official capacity was no more than an incident to his presidency and leadership of National and the National System, and that in. his remarks; which were system-wide in their references, he addressed the em- ployees as the head of the National system and the president of National, as well as president of United, and that by the said acts of Weinstein as the president of National and of Linen Service and the head of the National system, -National" and Linen Service did thereby interfere with, restrain and coerce their subsidiary employees, i. e., the drivers and helpers of the South San Pedro Street branch of United, in the exercise of the rights guaranteed them in Section 7 of the Act. 1. The discharges of 1941 - As previously related, Taylor, either on instructions from or with the approval' of Gordon, had set up a list of the drivers and helpers of the South San Pedro Street branch who were regarded as most irreconcilably committed to Local 928 and were to be eliminated from the employment rolls of United on the first available pretext unless in the meantime they should give up their union affilia- tions and activities. The discharges from this list began to take place within 2' or 3 weeks after the vote of February 14 had reflected a considerable change in the sentiment of the drivers and helpers. Delmer Thorne was the first on the Taylor list to be discharged. He was a-- comparatively new employee, having been first hired in November 1940 to act as- a driver's helper on the truck operated by William Anderson, over what is known as Route 5. As a witness, Thorne was not impressive. Many of his recitals are contrary to other credible testimony and stipulated facts. In the main, however, there appears to be little controversy concerning the fundamental facts surround- ing his employment and discharge. Thorne joined Local 928 at the meeting of January 8, 1941, and on January 9 was one of those who went to Wedler's office- on instructions from Taylor, where he was asked whether he had joined the- union and why, and whether he would consider giving up his union affiliation, which he refused to do. Like the other, drivers and helpers, he wore his button- openly most of the time, attended the meetings in January and February where the various voting was carried on under the supervision of.Gordon and Wedler, and also attended the union meetings when and as they were held. In February 1941, Anderson was transferred at his own request from Route 5- to Route 16. on which he had no helper. Previous to this, Thorne had requested Taylor to give him a route as a driver at the first opportunity. Taylor made no commitment to Thorne but told Robert Millan, his assistant, of the request and stated at the time that he did not think Thorne had sufficient experience to be put on a route alone. At the time of the Anderson transfer, Ray Miller, a young man of about 23, had been employed as a helper on Route 21 since the summer of 1940. He was senior in employment to Thorne and he, too, had previously requested a route as a driver. When Route 5 was vacated, Miller was designated to take it with Thorne as helper. - Thorne, feeling he should have had the route, resented Miller's promotion and directed his resentment to Miller in person They had frequent clashes while on the route, during which Thorne used abusive and profane language toward Miller -and applied opprobrious epithets to him, based not only on Miller's appointment, to which Thorne thought lie was entitled, but also on Miller's refusal to become a member of the union. After a week or ten days of this, Miller complained to Milian about Thorne's conduct and his lack of cooperation on the route. Milian in turn reported the incident to Taylor. The evidence is in conflict as to whether Taylor cautioned Thorne about his conduct, a 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thorne having denied that anyone ever mentioned it to him. The matter was not' touched upon in' Taylor's testimony. , Milian,' however, testified that it was his recollection that Taylor had cautioned Thorne. With the exception 'of this single conflict; there is no controversy concerning Thorne's conduct as Miller's helper. Taylor's testimony as to the reason which prompted Thorne's discharge is hazy and sketchy, although he is positive Thorne's name was on the list of men to be discharged for their union activities. ' The necessity for reason- ably peaceful relations between a helper and his principal in circumstances such as those under which these drivers work is obvious, and the impossibility of retaining a helper who refuses to' cooperate and who is abusive to his principal during the conduct of their work together, is equally obvious. While it might be said that Taylor very well could, have 'transferred Thorne to,another route as helper, it does not follow that he was obligated to do so, especially with Thorne harboring a general resentment and a feeling that he had been mistreated. Instead, on March 7, 1941, Taylor told Thorne'he would have to let him go because of the complaints that had been made against him. On that day Thorne was paid off and has not again been employed by United at any of its branches or by any, of the other branches of Natiohal. From the foregoing it is found that although Thorne's name was on the list of -employees to be dispensed with because of their union activities, when and as a suitable 'pretext could be found, the circumstances surrounding Thorne'.s discharge did not, constitute- a -pretext but a normal and legitimate reason for refusing to continue him in the employ of United: In discharging Thorne, United did not engage in' any unfair labor practice. 'Walter R. Lyons was first employed by -United in October 1937 and, after serving four or five months as a counter in the laundry plant, was established as a'routeman, in which capacity he continued to serve until his discharge on March 14, 1941. On January 8, 1941; Lyons joined Local 928. He was not one of the men who went to Wedler's office on January 9 but, at about that time, Wedler approached him while he was unloading his truck and discussed the dissatisfaction among the men, indicating that he desired to have Lyons termi- nate his interest in the union. Lyons told Wedler that he had no intention of doing so.'* A day or so later Edward Martin, sales manager for United, met Lyons while he was- working his route and in the course of a conversation asked him to give up the union. Lyons again refused. Lyons attended all the meetings called by Gordon and Wedler' at which the men voted on their de- sires concerning representation. He -also attended the January 13 dinner at Mike Lyman's cafe. Lyons admitted that he entertains anti-Semitic prejudices and that on oc- casions lie has expressed his dislike for Jews in conversation in and about the plant.. Several such conversations were testified to by other witnesses, in all of which Lyons vigorously expressed his disapproval of the Jewish people as a whole. These conversations were reported to Gordon, and on March 14, 1941, as Lyons came in from the completion of his day's work, Gordon assembled all the other drivers who were present; together with Wedler and Taylor, in Taylor's office, called Lyons in and told- him he- had assembled, the other em- ployees because he, Gordon, had 'something to say to Lyons which he wanted the others to hear. Gordon then proceeded to comment on Lyons' dislike of the Jewish people, stating that' he, Gordon,was Jewish and proud of it, and that under the circumstances he regarded it as a privilege personally to discharge Lyons from the service of United. He then instructed Taylor to give Lyons his check, which Taylor did, after which Gordon explained to the other drivers' present that he had' called them in so they could' be in a position to tell NATIONAL LINEN - SERVICE CORP. 205 Bradley, the exact reason for Lyons' ,discharge. Since then Lyons has not been employed by either of the branches of United nor by any other branch ,of National. Lyons testified that his anti-Semitism first came to the surface in about September 1940 and that it continued to increase from then until the United States entered the war. There is no evidence'as to when this first came to Gordon's attention. With few exceptions, the management of National appears to be essentially Jewish. Bearing in mind that notorious anti-Semitism openly expressed among his fellow employees by one in the position occupied by Lyons may well -be highly obnoxious to a Jewish employer, it is found that, al- though Lyons was on the list of employees to be dispensed with at the first pre- text because of their union activities, nevertheless, his conduct, independent of his union activities, was obnoxious to the management of United and was of a character which justified his discharge regardless of his union affiliation, and that his union affiliations were not the motivating cause of his discharge. In dis- charging Lyons, United did not engage in any unfair labor practices. ' Nels C. Sorensen was first employed by United as a bundle tier at, the South San Pedro Street plant in June 1939. After 2 or 3 months he was assigned to a route as a driver. Although one of the younger drivers in point of service, Sorensen was a satisfactory employee concerning whom there is no evidence of criticism until the occasion of his discharge arose. In the latter part of December 1940 he received an individual merit wage increase of $1 50 per week. Sorensen is one of the group who initiated the organizational activities of Local 928 by calling on the organizer at the Labor Temple. -He was an active leader in the movement at all times. As heretofore noted, he was 'regarded by Gordon and Taylor as one of the two men most responsible for the drivers retain- ing their union affiliations Sorensen was one of those called to Wedler's office on January 9, and at the meeting held by Gordon on January 10 It was Sorensen who replied to Gordon's inquiry as to what he could do to make things more satisfactory, that the thing to do would be to recognize the union. Gordon testi- fied that at this meeting Sorensen remained silent even when addressed by Gordon It is found. however, that Sorensen did, in fact, comment as above stated. Sorensen attended all the other meetings heretofore referred to and generally conducted himself in about •the same manner as the other drivers and helpers who had affiliated with the Union. Like the other drivers, Sorensen was frequently delayed in getting started on his route because of the shortages of linen This was the subject of frequent complaints, not only by Sorensen but by the others as well. On his route, Sorensen also had at least one customer who refused to conform to the even exchange system, with the result that his accounts were frequently out of balance. Although Wedler and Gordon both testified that the even exchange system was entirely practicable and that there was no substantial reason why any driver should not'be able to balance off the soiled linens returned at the end of the route against the clean linens he had started off with, the drivers themselves testified, and the testimony is credited, that they frequently were required to make adjustments to fit the immediate requirements of their customers and also to cater to their customers in order to retain their good will, and thatobecause of this it, vas not always feasible to effect an even exchange, although the over- ages and shortages of one week would usually balance off against the shortages and overages of the succeeding week, and that in the long run the linen accounts were fairly in balance. It should be noted, however, that in March 1942 the even exchange was abandoned in Los Angeles because of the difficulty experienced in administering it. ' 206 DECISIONS OF- NATIONAL - LABOR ,-RELATIONS BOARD - Under the even exchange system the branches of United kept a daily record_ of clean linens taken out by the drivers and clean linens returned but made no effort to keep a running account of the soiled linens brought in by the drivers, except that on occasions and without the knowledge of the driver, they would attempt to make a check of single days operations by segregating a certain driver's returned linens at the Close of the day and counting them in the plant, in the . driver's absence The evidence discloses , and it is found , that such- checks were frequently inaccurate due to eomingling of the returned soiled linens as the drivers unloaded their trucks. At.Gordon's suggestion , Taylor instituted a series of daily checks on Sorensen 's, linens covering 5 or G days immediately previous to his discharge . Taylor testified , and his testimony is credited, that Gordon directed him Ito do this and further instructed him to falsify the check sheets, if necessary, to reflect substantial irregularities by Sorensen in the con- duct of his route. The check sheets for these days were introduced in evidence and identified by Taylor as sheets upon which he had made changes. Taylor was unable to point ' to any specific entries he had falsified and the sheets them- selves do not reflect erasures or obvious changes in the original entries which, admittedly, were made by plant and office employees , although Taylor pointed to several figures which lie believed he had changed by distorting the original entries, such as adding a digit or changing a zero into a six or a nine, or by making similar changes . The proof concerning the accuracy or falsification of these check sheets was inadequate to show either that they were accurate as originally prepared or that the entries were subsequently falsified . No finding is made on this score since it is believed that such a subsidiary finding is not essential to an ultimate finding on the Sorensen discharge In the latter part of February 1941, Sorensen had been complaining about the length of time it took to complete his route . Some changes were made and Millan, Taylor's assistant, drove the route with Sorensen for two consecutive days to check it. On each of these days there were no non-essential delays and Sorensen completed his route from an hour to an hour and one half earlier than usual. Sorensen's home was on his route and for some considerable time it had been his practice, on certain days, to get his truck loaded as early as possible and, on reaching his home on the route, to stop there for his breakfast He habitually ate Saturday lunch at home. No secret was made of this practice , nor was he ever cautioned not to do it . He did not make his breakfast stop on the days when Milian rode with him, but on the following day came in somewhat later than the two previous days, which fact was reported to Taylor by Millan . Taylor in- structed Milian to ",trail" Sorensen. Following these instructions, Millan gave Taylor a written report that on each Friday and Saturday for three successive weeks, Sorensen had stopped at his home and at another address where he made deliveries , and was off his truck from 30 to 45 minutes on each day , the last obser- vation date being March 22, 1941. Taylor then wrong a longhand memorandum to Wedler concerning Sorensen, complaining that Sorensen was taking care of personal business on company time and in doing so was leaving his truck unpro- tected in the street. He also reported that Sorensen was not observing the even exchange, and attached the check sheets above referred to, together with Millan's written report . On March 28 , Taylor sent Sorensen to Wedler 's office, at the latter's request , where Wedler told him he was discharging him because they had found out through "spotters" who had trailed him, that he was spending much time at home, and that his records indicated he was not maintaining an even ex- change, and that he was generally "slipping " This was the first time anyone had mentioned any of these matters to Sorensen . Neither Millan nor Taylor, who were his immediate superiors ,' ever cautioned him nor criticized him for any of NATIONAL LINEN SERVICE CORP. 207 the things Wedler mentioned or otherwise indicated that his work was unsatis= factory. Sorensen's case was the first of those listed for discharge in which 'Taylor attempted to' build a record upon which a discharge might appear to be founded. Falsification of the check sheets was testified' to by Taylor. While Sorensen admits his practice of stopping athome for breakfast, Millan's written report and his testimony concerning the times when he trailed Sorensen do not coincide, nor does Millan's report conform to the calendar, since it purports to refer to observations made on February 28 and 29, 1941. There was no February 29 in 1941. Without attempting to resolve the credibility of Millan's report, and bearing in mind that all the officials of United who testified stressed the fact that the training of a driver is a long and expensive process which does not justify the discharge of a trained driven except for' substantial cause, and particularly noting that the conduct of Sorensen which was the stated reason for his discharge was of a readily remedied character that normally would call, at most, for an admonition from the employer before more drastic action was taken, it is found that Sorensen was discharged on March 28, 1941, not for the reasons, stated by Wedler but for the sole reason that he had joined and assisted Local 928, thereby discouraging membership in Local 928 and interfering with, restraining, and coercing the employees of United in the exercise of the tights guaranteed in Sec- tion 7 of the Act., Charles Flanagan was first employed by United's predecessor, Union Towel and Case Company, in November 1926: After about 3 weeks in the counting room he worked as a driver's helper for about a year and a half, when he became a routeman, working out of the Union Towel & Case Company branch at 125 Mission Road until May 1939, when he was transferred to the South San Pedro Street branch. , He was discharged on April 4, 1941. On January 8, 1941, Flanagan joined Local 928 and thereafter attended sub- stantially all the meetings that were held at the union hall, as well as the meet- ings called by Gordon and Wedler, and the dinner of January 13 On January 9 Wedler approached Flanagan on the parking lot adjoining the South San Pedro Street plant and asked him whether lie had joined the union. When Flanagan told him that he had, Wedler called his attention to the long period of service he had had with the company, told him that the company had always treated him well, and emphasized the fact that he was a pretty old man and that it would be hard for him to find another job Notwithstanding this, Flanagan told Wedler he intended to stay with the union. In the pdst Flanagan had been addicted to the use of liquor and had lost some time from his job because of intoxication. In September 1940, Flanagan was warned by Weinberg that he would have either to quit his drinking on the job or quit the job. Flanagan elected to quit the drinking and, according to his testimony, which is credited, did not thereafter drink on the job on any occasion nor did he lose any time from his work because of intoxication. Flanagan makes no denial that on occasion he took intoxicating liquor when not at work, but it is admitted by all supervisory officials who ap- peared as witnesses, that since September 1940 they have never seen Flanagan intoxicated or even apparently under the influence of intoxicating liquors and that at no time had he been incapacitated from performing his work because of intoxication All testified that at one time or another they had smelled liquor on Flanagan's breath and Milian testified that on one occasion he found a partly filled whiskey bottle in Flanagan's truck while it was standing in the garage, while on another occasion he had found an empty whiskey bottle in the truck. Flanagan denied having put any whiskey or whiskey bottles in his truck, while other drivers testified that frequently the drivers would assemble in'the garage when not on duty, either before or after working their routes, and that,on such 208 a DECISIONS OF'-NATIONAL LABOR RELATIONS BOARD occasions they would shoot crap and generally have a bottle of whiskey `which was passed around, and for convenience was-usually kept in a conveniently placed truck between drinks. Flanagan's denial and this testimony with reference. to the presence of whiskey bottles.is credited and it is found that, although Flanagan may have indulged in intoxicating liquor since September 1940, this was done entirely.upon his on time and when,he was not engaged in his work, and that during the same period, Flanagan at no time indulged himself with intoxicating liquors during working hours or attempted to go about his work in an intoxicated condition and that he was at no time hampered in the performance of his work by the use of intoxicants. . Flanagan's route, which he had held for a number of, years, was what is known as a hotel route, serving hotels almost exclusively. At about the first of 'January 1941,, United - purchased the Wardrobe Linen Service and added its business, to that of the two branches already, being operated: This was the signal for a general readjustment of many of the routes and a sharper delineation of the dividing line segregating the territory respectively served by the Hollywood and South-San Pedro Street branches. -These changes got well under way inithe latter part of March,or the early part of April On April 1, 1941, a substantial number of Flanagan's stops were transferred -to another route, leaving him with only a small portion of his original stops to serve. This was done without notice to Flanagan. The-next day Flanagan's remaining stops were placed on still, another route, leaving him with no customers to serve. No explanation of these changes was made to Flanagan nor was he told that his employment had ended. On the 3i d he reported at the plant and made himself as useful as possible by helping out wherever he could be of'assistance, making some special deliveries at Taylor's request. On the 4th he repeated his performance of the previous day and assisted one of the drivers in making some special deliveries. On his return at about 2 p in , Taylor sent him to see Wedler, who told him that he was discharged because it had been reported he had resumed his drinking - No one had mentioned the subject to him before. Flanagan has not at any time, since then been offered employment of any character with either of the branches of United or any other branch of National. Considerable testimony was offered by United to the effect that Dir. and Mrs. Flanagan conduct a small hotel in Pasadena which supplies their living quarters and, in addition, accommodates about 15 persons ; that some complaints had been received from United customers served by Flanagan that some of their, linen had not been returned after Flanagan had-taken it out; that shortly prior to Flanagan's discharge Gordon had sent one of his salesmen to the hotel to.see if he could find any of the missing linen; that the salesman, without the knowl- edge of-Mrs. Flanagan, had entered one of the rooms in which soiled linen was kept and there found several sheets and pillow slips bearing the insci ibed name, of one of the complaining hotels and seven towels with either the interwoven name of Union Towel and Case Company or the mark of one of the hotel cus- tomers. Wedler testified that two or three days before Flanagan was discharged,' Gordon brought two towels bearing the Union' Towel and Case Company name into his office and told him that these had been obtained from Flanagan's hotel., No offer was made to produce any of the hotel attaches concerning losses of their linen nor was any offer made to show what disposition was made of the Northern Hotel sheets which were said to have been found in Flanagan's hotel. Both' Flanagan and Mrs. Flanagan denied they had any linen in their hotel other than. such as they had purchased in regular course at various stores. The, testimony is not convincing that the Flanagans'had any linens improperly in their posses- sion. The fact was never mentioned to Flanagan at the time of his discharge- -NAT'I'ONAL LINEN SERVICE CORP. 209 or at any time until the circumstances were testified to by United's'witnesses at the hearing. The only reason given Flanagan for his discharge was that he had resumed his drinking and that for that reason his services were being terminated Wedler stated he had nothing to do with Flanagan's discharge other than to give tiim•his check when Taylor sent him in. -On the,other hand, Taylor testified he did not discharge Flanagan but sent him to Wedler on the latter's instruction. Flanagan states he was dischaiged by Wedler and that the circumstances of the discharge were substantially as above recited It is found that the Flanagan- Taylor version is correct and that Flanagan was in fact discharged by Wedler in the manner described. It is further found -that Flanagan had not violated the injunction given him by Weinberg in September 1940 and had not either been drinking during working horns nor appeaied on the job or, attempted to, fulfill any duties while in an intoxicated condition, or in a condition which indicated intoxication. It is also further found that Flanagan was on the list prepared - by Taylor, that the alleged drinking was a pretext for discharging him, and that in fact Flanagan was discharged because of his membership in and activity on behalf of Local No 928, thereby discouraging membership in Local 928 and inter- fering with, restraining, and coercing the employees of United in the exercise of the rights guaranteed them by Section 7 of the Act. Carl W. Geiseu, has been employ eel by United and its predecessors since 1925, when he went to work for Union Towel & Case Company at the plant at 12.5 Mission Road. His first employment covered about a year in) the plant as a checker, after which he was given a route and since 1926 has continuously worked as a routeman until his discharge on April 22, 1941. In 1939 when United dis- continued the operation of the Mission Road branch, Geisen was transferred to the South San Pedro Street branch and operated a route in one of the outlying sections Some months before his discharge, Geiser attempted to accommodate one of his customers who operated a small ies+aurant, by picking up an order of flour and canned goods which the customer had purchased at a nearby wholesale grocery house, also'on Geisen's route, and delivering it to the customer's place of business. In time this came to be a customary procedure on Geisen's part and involved such deliveries at intervals of 2 weeks or so. There is some evi-\ dence to indicate that in return for this accommodation, the customer would supply Geiseu with hot cakes and coffee or some other meal if he, happened to be making his delivery at the customer's place of business at about mealtime. Ac- cording to Geisen, this was an incidental accommodation of a customer which consumed no time, involved no undue use of the employer's property, and was a sample of the many small favors routeman are frequently called upon to do for customers of very long standing This situation did, not come to the attention of any supervisory employee or executive of the United until after Geisen had been transferred to another route, when Geisen's successor on the old route re- ported the customer had asked him to do the same thing Geiseu had done. On receiving this report, no representative of management mentioned it.to Geisen, nor was it mentioned-to him at the time of-his discharge. When the route readjustments of early 1941 took place, the major portion of Geisen's stops fell into the Hollywood branch's area. As a result, Geisen was taken off the outlying route and given a downtown territory to serve. By April his route had reached the size where he was habitually required to return to the plant in the middle of the day for additional supplies. On one occasion while he was so returning to the plant, he stopped en route and spent his lunch hour with another of the drivers, both of whom parked their trucks and remained in the immediate vicinity. This took place on the,other driver's route, which lay between Geisen's route and the plant. Milian happened to pass and, unobserved -210 DECISIONS ' OF' NATIONAL 'LABOR- RELATIONS BOARD by them, watched them for the full time they 'were together-. He made a written - report to Taylor that he'had observed Geisen off his regular route and that Geisen and the other driver had' spent an hour talking. Neither Taylor nor Millan ever -mentioned the incident to Geisen. _ ' The route adjustments of 1941 and the additional business acquired by the -purchase of Wardrobe "Linen Supply Company created numerous new routes. United staffed such new routes and filled vacancies resulting from discharges with drivers it imported from National branches in other parts of the country. These -new men were not quickly or readily admitted into the fellowship of the older drivers." They were not mistreated by the older men but, at most, were merely ignored, although one of the new meii " became so obnoxious that later the other ;drivers'were almost"unanimous in'a demand that he be removed. --This failure by the older drivers to accept the new men into their circle became an outstanding ,excuse for which to discharge many of them. On April 17, Gordon wrote to Wedler as follows : • To save you the probable embarrassment of discharging a man who has been in your employ for a long time,-I am today advising George Taylor to notify Carl Geisen that his services are no longer required. This 'action is being taken after a number of postponements, hoping that Geisen would improve in his work and attitude toward his particular duties ,and to the company. • Gordon testified that the above letter was prompted by reports from Taylor that Geisen had carried merchandise in his'truck for 'one of the customers on his ,old route, that Millan had reported him off his route, and that he had made no effort to get along with the new men. On April 22, 1941, Taylor discharged Geisen, giving as' his reason that Geisen's attitude toward the new men who had been .brought in "from the South" had not been satisfactory. Up-to that time, Geisen's attitude toward the new men had never been a subject of comment in any con- -versation he had with Taylor or anyone else in authority. Taylor confirmed this conversation, but stated that it had been used 'solely as a pretext and that th'e real reason for Geisen's discharge was his union activities. There is no evidence .concerning Geisen's attitude toward the new men other than his own statement that he neither had nor evidenced' antagonism toward them, but at the same time made no special effort to become friendly with them. Geisen joined Local 928 on January 3, 1941, and engaged in about the same degree of activity as the other men who have heretofore been described He attended all the meetings that have been referred to, except the meeting, of February 14, and refused to give up his union affiliation when called to Wedler's office on January 9. He also refused Nearhoff's request that he abandon the union and let Gordon handle the ,situation alone. Geisen was on the Taylor list for elimination. - Geisen's discharge, in the face of his 17 year record as a driver for United and its predecessors, cannot be reconciled with the proposition that good route- men are rare and one is not discharged except as an extreme measure. The criticisms advanced by Gordon as the basis for 'the discharge do not appear to ,cover matters that are fundamental or that normally could not be corrected by a reprimand. However, no effort was made to have them corrected and no men- tion was ever made to Geisen about them. This. discharge emphasizes the credibility of Taylor's' testimony that certain men, with Gordon's approval or on his direction, were marked for discharge because of their union, af8liations "Homer Feinstein : Transferred from'Miami, Florida, February 1941'; made ^route 'super- 'visor later in same year ;removal demanded by drivers in January 1942. " NATIONAL LIVEN 'SERVICE CORP. 211 and activities. It is found that the reason given Geisen for his discharge on April 22, 1941, was a pretext only and that he was in fact discharged because of his membership in and affiliation with Local 928, thereby discouraging member- ship in Local 928 and interfering -,bith, restraining, and coercing the employees of the United in the exercise of their rights guaranteed under Section 7 of the Act. Harry Steiner, was first employed by United or its predecessors in 1924 After 5 or 6 months in the plant, he began as fill-in driver or helper as,the occasion might require, and also made special deliveries. In time, he became a regular helper to one:of the older employees who was, to some extent, hampered by,his age. In 1939, Steiner's driver was forced.to give up his route because of. illness and Steiner took it over. On January 8, 1941,rSteiner joined Local 928 He was one of those who was called into Wedler's office on January,9 and also attended all the meetings of the drivers which have been heretofore described. Just previous to the meeting of February 14, he was solicited.by his route supervisor, Bass Webb, to attend the February 14 meeting and vote against the union Steiner informed ,Webb that he intended to support the union, regardless. Taylor approached him on at least two occasions, in April and attempted to induce him .to abandon the union. Each time Steiner told Taylor that he would not do so. On May 23, Taylor discharged Steiner. His explanation was that Steiner did not treat the, new men who had been brought in to replace those discharged or to take new routes properly, in that he did not associate with them or talk to them 'and was otherwise disagreeable to them. Steiner was on the Taylor list and, according to,Ta3'lor, was discharged, solely because of his refusal to abandon the union. No complaint had been made to him concerning his conduct toward the new men, nor had he, in fact, done anything.to warrant criticism unless it was his failure to associate with them on a friendly basis. There is, no evidence of any criticism of the manner in which Steiner performed,his duties. In the light of comments heretofore made, concerning the Geisen discharge, it is found that Steiner-was discharged on May 23, 1941, because of his membership in and ,activity on behalf of Local 928, thereby. discouraging membership in Local 928 and interfering with, restraining, and coercing the employees of the United in the exercise of the rights guaranteed to them in Section 7 of the Act. Elbert M. Adamson was first employed by United in February, 1933. He served as a distributing clerk for about two years and then,became a driver, at which job lie continued until the termination of his employment on or about April 18, 1941 He joined Local 928 on January 3, 1941, and was one of those who were called into Wedler's office on January 9th On that occasion Taylor was present when Wedler asked Adamson if he would, not attempt to talk the men out of going into or staving-in the union. Adamson's reply was that it was too late to do anything at that time. About 2 weeks later, Adamson was_ sent for by Gordon who asked him to abandon the union. In the course of this, conversation Adamson expressed the opinion that his pay was inadequate for the work lie was doing Gordon promised to "take care" of this but did not obtain Adamson's agreement to give up his union activities. ' About a week later and on the day of one of the union meetings, Wedler asked Adamson to stay away from the meeting that night and told him that they were going to try to break "this thing" up Wedler confirmed this conversation! Two or three days before the termi- nation of Adamson's employment, Millan advised him to quit his job because "they" were going to discharge him in any event. Adamson replied that he would think it over and immediatelyimade inquiries about other employment at one of the local dairy companies where he received assurances of a job. He did not, 521247-43-vol 48--15 ,212 DECISIONS 'OF N.ATIONAVLABOR RELATIONS BOARD howe.-er,'-agaiii discuss' the-matter with Millan. On the morning of April 1S Adamson was 'rep'rimanded by Taylor for not being present at a meeting of the Social Club'-held - the..night, before. ' Adamson, said ,he had forgotten about the meeting, whereupon Taylor•said in effect-','Well I am liable.to forget and give you your check some of'these days." Adamson's reply was in effect, "All right, give it to me." This conversation took place in the early morning as Adamson was about to•start'dn' his work . At about 11 a. in. he returned to the plant for further supplies and was handed his pay checks in full by Millan.- 'It was Taylors testi- mony that-Adamson quit' although he-was on the list for discharge. It was Adam- <'son's testimony that` he replied'to- Taylor's comment-as he, did because ',he thought that eventually he was going to be' discharged, that he had-made other arrange- ments for other employment and that it made no difference to him anyway. It is 'found,that',Adamson voluntarily quit - his job'on Apiil 18,11941, and that the termination'tof `hiss employment on that date- did. not constitute an unfair , labor "'p'ractice'on the part of•United. - i - ' TVilliam,-Andei son wasp first employed by United in'1937. He'-became a driver !, within; two -weeks, and except for a, short period when illness compelled inside employment; continued, as a routeman until his, discharge, on June 20, 1941. • He "joined Local'928 on. January- 8,'.1941,' and'was one.of the men called into Wedler's office When Wedler asked wby.hd had joined. the-union,:he•complained that he should either have'a""day light'iAroute: orbe paid more money. ' Wedler promised to 'change his 'route 'and' early in February did so, whereby instead of working froin 3 a. m to 2 p m.;'Anderson' was given a new, route which began at 6 a in. and vas finished, at about 4 p' m . ,He attended all -the meetings heretofore described '''and'during'January'and February;'while':these meetnigs were taking place, was approached by Wedler, Webb' and'Millan:with the request'from each of them that 'he abandon; his affiliations with the' union In each instance he announced his ,intention to continue ' his•allegiance'to the uinon. He was on the Taylor list,as one of those who could' not•be•iliduced to give up his.union'afHliations.' Anderson had'joined the Social' Club when"it was organized by Weinberg in 1939 and had :'signed an'order'authorizing the iveekly check-off of 25¢ from his salary. The club rules provided that any member•could withdraw from membership at any time and "on ^so'doing, would' be entitled to receiiTe his-proportionate share of any funds then on hand Anderson withdrew from the club, when he joined the union and re- quested his' share of the club funds,, but never received it. Subsequently Taylor requested him' to rejoin 'the club but he refused to do so So for as the record reveals. Anderson's work has never-been criticized, but nevertheless'on June 20, Taylor discharged-him with the statement' that his work was' unsatisfactory because of his failure to treat the new employees with the 'pioper''degree of courtesy, and also because of his refusal to rejoin the Social Club since becoming a union member Gordon testified that he first learned of Ander- son's discharge when Taylor reported that he had heard' Anderson was'taking a course •in'welding and had threatened to' leave the company some day without notice Anderson had never taken a welding, course Taylor testified he could not recall exactly what reason he had given Anderson for his discharge since he usecl-any one of several when discharging the men on his list. It is found that the reasons given for Anderson's discharge were pretexts only and that in fact he was "discharged' because 'of his membership and 'affiliation with Local 928, thereby -discouraging membeiship in and affiliation with Local 923, and restraining and coercing the employees of United in the'exeicise of the rights guaranteed them by Section 7 of the Act. - Lee Nalley was first einployed'by the Uinion Towel &Case Company in 1926 as a driver. -In June •1939 be was transferred from the Mission Road branch to the -NATIONAL LINEN SERVICE CORP. - 213 South San Pedro Street branch where he continued as a driver until the middle of April 1941, at which time he, with his route, was transferred to the Hollywood plant. He then worked out of the Hollywood plant until his discharge on August -12, 1941. Nalley was admittedly one of the best drivers in the employ of the United and at no time was there any criticism of any phase of his work. Accord- ing to Milian, Nalley's check sheets on the even exchange were used by Taylor as models to demonstrate to the other drivers how the system worked out. He joined Local 928 January 3, 1941, attended all the union meetings as well as the various meetings in January and February sponsored by Gordon-and Wedler. On January 9 he was one of those called to Wedler's office. Wedle'r called his attention to the fact that he was one of the oldest employees and asked him to help him (Wedlei) out of "a tough spot." Nalley told him that he could not do anything about it and referred to some previous occasion when he had agreed to let the company have a chance to straighten out things, that nothing had happened then and that'now he intended to let the matters remain in the union's hands, and if they could not be cured that way, he might as well sever his connection with the company. Nalley's route covered the City of Pasadena which is adjacent to Los Angeles and about 12 miles from the South San Pedro Street branch, through reasonably clear traffic. In the route' adjustments of early 1941; Taylor and Nalley collaborated on cutting out those of Nalley's stops which could be handled by another driver working out .of the Hollywood branch. About April 15, 1941, Nearhoff, who by that time lhad been made superintendent of both plants, told Nalley that they were contemplating moving his route to the Hollywood branch Nalley protested that it would make longer driving and put him in heavier traffic and would add time to his work day, but Nearhoff insisted that the transfer should be made, whereupon Nalley, still protesting, stated in effect, "If Igo out there you had better take care of me. If you are going to transfer me, of course I will have to go, but I won't like it." Shortly thereafter the transfer took place. No change was made in the territory covered by Nalley except that a few stops were taken from the other driver and given to him With the route as adjusted, Nalley was working about nine hours a day. Several weeks prior to August 12, 1941, one Lovejoy, a supervisor of the Hollywood branch, showed Nalley a list of about 70 additional stops which he said he proposed to add to Nalley's route. Nalley protested that these additional stops would put about three extra hours on his working day and told the route supervisor that whenever those new stops went on his route the company would have to get a new man. He then went into the plant where he met Jack Gevanthor, a route supervisor, and angrily protested against the added stops. Gevanthor asked Nalley to stick with the job and give him a chance to get it straightened out, telling him that in any event the new stops were not going to be added right away. Nalley promised to stay until they put the new- stops on, at the same time explaining that he was then working nine hours'a day to cover his route and that these additions would put at least three hours more on his working time. The incident had aroused him and that lie was angry over the proposal was obvious to those who talked to him. Nothing was done about the additional stops for two or three weeks. On the evening of August 11, 1941, Nalley started to load his truck with the next day's supply and asked Gevanthor if he should complete his loading because he did not want to load the truck for somebody else to take out. Gevanthor's reply was, "Don't be foolish ; sure, load it up." Up to this time Nalley had received no notice that any stops were actually being added to his route, although Gevanthor knew at the time that some additional stops would go into effect the next morning. When Nalley appeared on the morning of August 12, Gevanthor stopped him and told him that, on instructions from the route manager, he, Gevanthor, was taking 214 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD the truck out because of Nalley's previous statement that when they added stops to his route he would quit. Nalley remonstrated that that was a "Hell of a way to tell a'fellow" and asked Gevanthor why he had not told him the night before. Gevanthor said he had not known about it, but it is found from Gevanthor's testi- mony that he did, in fact, have full knowledge of the added stops when he talked to Nalley the previous evening' Nalley then went home and has not been offered any other employment by either branches of United or any of the branches of National. While it is recognized that normally the amount of work assigned and the time and place of performance is a matter falling within the 'discretion of'the einployer, an abuse of that discretion, evidenced by adding an unreasonable amount of work to that normally being done by an' employee, is a proper subject of inquiry. There is some contention -by Board's counsel that the transfer of Nalley from the South San Pedro.Street branch to the Hollywood branch was' a, discriminatory one. This contention is not supported by the record. When United acquired the Wardrobe Linen Service in the early part of 1941 and in absorbing it, readjusted the territories-to be served by its branches, it was'found that the two routes servicing the Pasadena territory were more or' less inter- mingled. As a matter of sound business administration, it was determined by United that this territory could be more advantageously handled by readjusting the routes and handling both from the Hollywood branch. It was during this period of readjustment that practically every route underwent some change. In' the readjustment,-two-,other- men, Paul Belsher and Archie Cross, were trans- ferred to the Hollywood branchbecause their routes -fell,into, the ,territory that„,, had been allocated to the Hollywood branch operations. The transfer of. Nalley was not a discrimination. Nalley's attitude toward the union was well known. Nearhoff'had made a special plea to him shortly after the January 10 meeting, to intercede with the other men and have them abandon their union activities so as to give Gordon a free hand at straightening out the difficulties by himself. Nalley was admittedly not satisfied with his' Hollywood assignment and made his dissatisfaction known frequently, primarily because he felt this route was overloaded as it stood, since by the mere;cliange,from,the,,South:San Pedro Street branch,'o"ne'to'two hours had been added to his work clay by increased travel and traffic congestion. He frequently complained to both Nearhoff and Gevanthor about the overloaded condition of his-route and was admittedly angry when it was proposed to further burden it with the 70 additional stops. How many of the originally* proposed additional stops were actually added on August '11 was never revealed, and Nalley was not advised nor given an opportunity to inquire when Gevanthor took over his truck. All who were familiar with Nalley's work agree that he was an excellent routeman, and the alacrity with which those in authority assi}med he would,giveiup his job as he had threatened, rather. than accept,.,any additions to his route, without making any mention of it to him when the time came to put on the new stops, does not square with the often repeated proposition that good routemen were not dispensed with unless their "retention became impossible to the orderly conduct of the business. On the other hand, Nalley's complaints about the overcrowded condition of his route and his dissatisfaction with the transfer to Hollywood in any event, provided a timely opportunity to impose upon him the addition or threatened addition of an unreasonable amount of work and thereby force him into.quitting 'In the absence of any showing to the contrary; 3; Gevanthor denied having a conversation with Nalley the, night before 'his discharge Nalley's version is accepted as correct 'NATIONAL LINEN SERVICE CORP. 215 -- Nalley's testimony that the proposed. addition represented an added burden of three hours to his'work day and that such is an unreasonable addition to a then existing 9 hour (lay, is accepted as true • It is found that the proposal to add 70 stops to Nalley's route was not made in good faith and as a reasonable distribu- tion of the work to be done, but was for the purpose of so burdening Nalley's work day as to force him to resign and was motivated by his continued adherence to the union. It is further found that the failure of United to give Nalley an opportunity to accept or reject the augmented route was an intentional omission and a further act of bad faith and that all of said acts constituted, in effect, a discharge of Nalley on the morning of August 12, 1941, because of his membership in and affiliation with the union, thereby discouraging membership in Local 928 and interfering with,'restraining, and coercing employees of United in the exercise of the rights guaranteed to them by Section 7 of the Act. Paul C. Belsher has been employed by United or its predecessors as a driver since-1921, and was one of the first men transferred from the Mission.Road branch of the Union, Towel and Case Company to the South San Pedro Street branch after the control of United passed to National in early 1939. He and Nalley are close friends and shared automobiles driving to and from work. In the 1,941 readjustment of routes, it was found that Beisher's route fell into the new Holly- wood territory, with the result that shortly after Nalley was transferred to Holly- wood Belsher likewise went to the Hollywood branch At Hollywood, Nalley and Belsher continued to share automobiles. Their friendship was well known and somewhat exclusive, since both were supporters of Local 928, while none of the Hollywood group of drivers had interested themselves in union affairs. Belsher joined the union on January 3, 1941, and attended the union meetings as they were held He was one of those called to Wedler's office on January 9 and also attended the other meetings that have been referred to. During the period covered by the Gordon and Wedler-called meetings, Wedler approached Belsher on at least two occasions and requested him to change his mind about his union affiliation 'Just prior to the meeting of February 14 Nearhoff called on Belsher at his'r'oom and' impoktuiied' him to"forego this 'union activities, which Belsher refused to do As in the case of Nalley, every officer or supervisor of United who was called upon to express an opinion stated that Belsher was one of the best of their routemen There was no criticism of lens work. During the summer of 1941, Gordon called Belsher into his office and asked him whether he was taking a course in welding Belsher told hum that was correct, and that he expected to complete the course in several months ac Gordon asked him if he intended to leave when he had finished the course and Belsher's answer was that he had no present intention of doing so Gordon asked him not to leave without giving him some notice, to which Belsher agreed. The only testimony having to do with Belsher's discharge is that, of Belsher himself,' United offering no explanation or denial of the circumstances as he recited them. Belsher states that on the morning of August 13, the day following Nalley's dis- charge, he was about to leave the plant in his truck when Lovejoy, who appears to be assistant toi the route manager, came to him and handed hnn a check, saying that Gordon had instructed hinl,to give Belsher his check, and added, "You know, birds of,a feather flock together" That incident ended Belsher's employment -with United Gordon -testified that he knew nothing dbout the 35 At the time of their discharge. both Nalley and Bclshei were nearing the completion of a course of instruction in welding Nalley was discharged August 12 1941, completed his course August 28 and, after spending a month on tests and in qualifying, went to work as a welder on September 30, at which he is now employed Belsher began uuork in his present employment as a welder on September 26, 1941. 216 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD Belsher incident' until' the route manager told him that Belsher had quit. Gevanthor was not a witness to the Belsher discharge, and hone of the others svho were then in charge appeared as-witnesses, nor was their absence explained, as was done in the case of Knapp. In the absence of any explanation whatsoever concerning the Belsher discharge, and in view of his known union activities and his friendship for Nalley, and of the attitude of United toward the Union, it is found that Belsher was discharged on August 13, 1941, because of his member- ship in an affiliation with Local 928, thereby discouraging membership in Local 928 and interfering with, restraining, and coercing employees of United 'in the exercise of the rights guaranteed to them in Section 7 of the Act. George W Elkins was first employed by United in August 1930 as a routeman for what was known in the original United system as White Star Linen Supply Company. In about 1933 he was traiisferred to the South San Pedro Street branch, then doing business as the City Towel Supply Company. Shortly after his transfer-to the City Towel Supply Company at South San Pedro Street, he was made a route supervisor in downtown Los Angeles and continued on that job until the middle of, 1939, when, at his own request, Taylor put him back on it route as a driver. On January 8, 1941, Elkins joined Local 928. He was one' of those called into Wedler's office, where Wedler called his attention to the fact that he had 'been with the company for a nuulber of years, and had some trouble with a union on a previous occasion and that he thought he (Elkins) would have learned his lesson and think of his family.- ' Wedler then asked Elkins to quit the union, which Elkins refused to' do, at the same time commenting on the long hours, shortages of linen and the other grievances the men had.' Elkins attended all the meetings held by Gordon and Wedler in their effort to persuade the men to abandon the union, and was listed by Taylor as one who could not be induced to give up his union affiliations. He appears to have been outspoken in his'opinion on matters pertaining to his work When the even' exchange was first installed, Elkins approved the idea, but after about six months felt that it was not working, became dissatisfied with its operation, and frequently complained about it to Millan, Taylor and others. He also complained about the-volume of work on his route and frequently' criticised the sales force and others who had to do with the corrections of complaints, for the lack of attention to the complaints of his customers after`they had'been turned in. On some occasions he was requested, after having completed his route, to make special deliveries to customers who had telephoned in for them after he had covered their places of business. This likewise was a source of complaint by Elkins. The testimony concerning the facts immediately surrounding Elkins' discharge and the circumstances that led up to it are in distinct conflict. It is Elkins' version that on the morning of September 27, 1941, before he had started his route, he was called to the order desk in connection with some camplaints of customers lie 'had turned in. He found Taylor, Milan and Sales Manager Martin together, and told them that his customers were complaining because they could not get settlement on the complaints they had made from tuiie to time, and that unless something was done about it he was going to lose them Elkins said that lie illustrated this by commenting on a complaints lie turned in that clay whichi was a repetition of similar complaints that had been repeatedly made during recent -weeks by Sam's Barber 'Shop. It had to do'with a peeuliar and disagreeable, odor of the, towels when wet, which Elkins had personally investi-, gated and found to be a well-founded complaint which he had- reported several tines. On this occasion someone in, the Taylor-Millian-Martin group asked Elkins why he had not done something about it. Elkins replied that' it was NATIONAL LINEN SERVICE CORP.. 1 217 beyond him, whereupon one of the group said, in substance, "Well, what am I supposed to do?" and indicated that they did not intend to make any effort to remedy it,, whereupon Elkins heatedly exclaimed, in substance,, ."Well, if that is the way you are going to treat them-", crumpled up the sheets containing the reports of the complaint he had in his hands, threw them in the wastebasket nearby, and went out on his route. When he returned Taylor discharged him because of what he termed "his attitude." On this subject Martin testified that he had received Elkins' complaint with reference to the barber shop, that he had called on the proprietor of the shop and adjusted the entire complaint with reference to "price and quality". Martin denies he was present in the group above described by Elkins on September 27. Martin was not an impressive witness either in his demeanor or attitude on the stand or in the quality of the testimony given by him, which seemed to evade a full disclosure of the facts Where not corroboi ated, very little weight is, given to it Taylor did not testify concerning the incidents immediately pre- ceding Elkins' discharge, but Milian stated that immediately preceding the dis- charge, when Elkins checked in after -finishing his work, he was asked to make a special delivery of extra towels to the barber shop referred to, that Elkins became abusive over the request, stated that lie had finished his day's work and that he did not intend to do anything more, took the sheet of paper upon which the memorandum was made, crumpled it tip and threw it in the wastebasket, and that Milian was required to make the delivery himself that evening On the other hand, Milian also recalls an incident where Taylor, Martin and he were present in a conversation with Elkins having to do with some complaints of one of the customers on Elkins' route, but denies that the matter of complaints from the barber shop were discussed at that time Gordon testified that Taylor had wanted to discharge Elkins earlier in the year because of his unwillingness to cooperate on the even exchange and his general inability to get along with other people, but that Gordon would not permit it. He further testified that Elkins was discharged by Taylor without his knowledge or consent, and that he severely reprimanded Taylor for letting Elkins go and directed Milian to get him back on the job, but that he does not know what, if anything, Millan did in this regard beyond the fact that he asked Millan and was told he had tried to telephone Elkins once but did not reach him. Millan did not testify con- cerning it, and Elkins stated that since his discharge he has not been requested to come back to work by anyone connected with United. It is apparent from Elkins' attitude and his general outspokenness, as well as his familiarity with Taylor, Millan and Martin growing out of his previous employment as a super- visor, that outbursts such as have been described were' not uncommon When Taylor was questioned about Elkins' discharge he stated that he frequently asked Elkins to give up the union and had told him he would be discharged if lie did not, and even went so far as to show him the list of men who, had been discharged because of their union activities or who were slated for discharges. He was not clear as to the reason given Elkins for his discharge, but was positive that it was only a pretext and that the real reason for his discharge was his union activity and his insistance in remaining a member of the union. The record reflects no reason assigned to Elkins for his discharge except-as testified to by himself. t ,Elkins appears to have been the only employee left at that time who had been active in Local 928 and who refused to abandon it All the others had either quit, been discharged, or had renounced the union. However, as will be noted immediately hereafter, at -the time of Elkins' discharge a• new wave of organiza, tional activity had started and some men had been warned in connection with 218 DECISIONS OF • NATIONAL LABOR, RELATION S BOARD that. • Elkins was a highly satisfactory driver. Gordon now states he never wanted him discharged and that he directed Milian to get.him back but did not follow through on these instructions. In view of all the circumstances, Taylor's testimony, United's official antipathy to unions and the appearance of another one at , this' time which United was seeking to keep out, it is found that Elkins was discharged on September 27, 1941, because of his membership in Local 028, thereby discouraging membership in Local 928, and interfering with, restraining, and coercing employees of United in the exercise of the rights guaranteed them by Section 7 of the Act. In the early part of September 1941, Malcolm S Bixby ahd Richard Whittaker, both drivers at the South San Pedro Street branch, called at the office of the C. I O. Council in Los Angeles, where they met Richard B Gatewood, business manager of Local 357, and explained that they wanted to affiliate with the C. I O. but that they did not want it to be known that they had done so because other men among the drivers had been discharged earlier in the year on account of their affiliations with the A F of L Gatewood gave these men some application blanks and met them two days later at Whittaker's home, where they del 1%eied several signed -applications to him. Leslie Rogers was first hired as a driver at the South San Pedro Street branch in January 1941. At the time he applied'for the job Taylor asked whether,he believed in unions Rogers stated he did not, and agreed that, if necessary, he would take a truck through a picket line On September 14, 1941, Rogers signed his application card for admission to Local 357. The next day, while he and his helper were loading their truck, Taylor approached Rogers and remarked that union activity had started up in the plant, called his attentiowto what had happened to these men who had joined the A. P. of L, and stated that it would happen again , Notwithstanding this warning, Rogers discussed the union with some of the other men and solicited memberships from them No rule had even been announced in the South San Pedro Street branch prohibiting the discussion of union matters among the employees, either on company time or property or otherwise Gordon testified that early in 1941 he lied given the supervising employees instructions not to permit solicita- tion of union membership on company time or property, but lie did not know whether they had passed word on to any of the men,' or whether any notice to that effect had been posted There is no evidence that such notices ever were posted or that any of the men ever were warned or forbidden to discuss union matters on company time or company property On about October 20, 1941, Rogers was called to Gordon's office. 'Gordon asked him if lie would like to make a little extra money. 'Rogers said he would, where- upon Gordon stated' in effect, "I have an application here I would like to have you pass around and get the boys signed up" Rogers exclaimed, in substance; "I thought you were opposed to unions " Gordon's reply was, "Well, isn't that what you have been doing?" When Rogers denied this, Gordon then stated that he would not tolerate a'union in the place, and if necessary he would close the plant for two weeks in order to keep it out. The next day, Taylor handed Rogers his check without any explanation and told him he would have to let him go. When Rogers asked whether his work was all right, or whether it was on account of his union activities, he received no reply. 'Gordon testified that, Taylor had reported to him he had discharged Rogers because he had been soliciting union memberships on company time and property and that he (Gordon) had approved. In the absence of any evidence of warning or notice prohibiting the men discussing union affairs on the-premises of the com- pany 'or during working hours, or that it had been done in a way to ,seriously J NATIONAL LINEN SERVICE CORP. 219 interfere with the work, it is found that Rogers was discharged on October 21, 1941, because of his membership in, affiliation with, and activities on behalf of 'Local 357, thereby discouraging membership in Local 357, and interfering with, restraining, and coercing the employees of United in the exercise of the rights guaranteed in Section 7 of the Act. Em it ,Pert was -first employed by United at the South San Pedro plant in August 1646"' He worked for one week and was then discharged because of his inability to perform the duties assigned to him, which were entirely within the laundry plant At the time he was discharged, Weinberg promised to give him another chance when a suitable job should be opened up. In October 1940, Pert was again employed, this time as a bundle tier in the plant. He joined Local 357 on October 17, 1941 and agreed to circulate application cards in the department where he was employed. On the following day, after he had handed about four cards to his fellow employees, Nearhoff reported him to Gordon by telephone. Gordon instructed Nearhoff to bring Perl to the telephone. When this was done, Gordon asked Perl whether he had been passing out union application cards, whereupon Perl replied by asking him how he had found out about the cards. Neither of them would answer the other's question although each was repeated a number of times Finally Gordon told Perl if he did not answer the question he would be discharged, whereupon Pert admitted that he had been passing out cards. Gordon then asked to talk to Knipp After Knapp had concluded his conversa- tionwith Gordon, he took Perl into the office, gave him a check and discharged him Gordon's testimony did not entirely coincide with that of Perl., Nearhoff, however, confirmed Perl's testimony concerning the conversation, and Gordon stated that he had directed Perl's discharge because he had been passing out union literature in the shop As in the case of Rogers, Perl received no warning but was peremptorily discharged. It is found that Pert was discharged because of his membership in, affiliation with and activity on behalf of Local 357, thereby discouraging membership in Local 357 and interfering with, restraining, and coercing the employees of United in the exercise of the rights guaranteed them by Section 7 of the Act. - 2. The refusal to bargain collectively a The appropriate mat The Hollywood and South San Pedro Street branches of United are located in extreme ends of the City of Los Angeles, about 10 or 12 miles apart The character of business conducted at each of these branches is identical and each branch, performs.'sulistantially the same type of work under general standard- ized rules-of procedure. Normally about 28 men are employed as drivers and helpers at the Hollywood branch, and approximately 42 men are employed in similar capacities at the South San Pedro Street branch From 1939, when National took over the control of United, until January 10, 1941, the two branches were conducted as separate institutions insofar as the driver and helper per- sonnel was concerned, as well as in many other ways Gordon was the manager of the Hollywood branch, and as such had his own plant superintendent and route manager whose duties were solely confined to the operation of the Holly- wood plant and the distribution of linen to the customers served by the Holly- wood drivers Weinberg, as manager of the South San Pedro branch, devoted himself exclusively to the operations of that branch. He had an assistant, a plant superintendent, and a route manager whose duties did not extend beyond the operation and business done by the South San Pedro branch. There was no overlapping of authority. Drivers and helpers were separately employed by ,220 DECISIONS OF NATIONAL -LABOR RE'LATIOONS BOARD the managers or route managers of the respective branches where they worked United maintained its office separate and apart from the offices of either Holly- wood or South San Pedro Street and kept separate books to reflect the opera- tions of • each of the branches. Separate -bank accounts were kept. On a few occasions joint picnics or other social affairs were participated in by the em- ployees of both branches, but' in the main the employees remained aloof from each other, niauitained their separate social clubs, and otherwise conducted them- selves as separate organizations There was no habitual interchange of em-. ployees except for -an- occasional skilled plant employee. In the matter of employer-employee relations, the record not only fails to disclosed collaboration between the two groups of drivers and helpers, but reflects a wide diversion of opinion which amounted almost to antagonism. 'Until January 10, 1941, when Gordon was placed in charge of both branches, there was'nb single' directing head in Los Angeles who exercised either partial or full control over any part of the operations of both branches The respective managers reported to and took orders from' Weinstein only. The cleavage be- tween the employees in general, and the drivers and helpers in particular, at the Hollywood branch and those at the South San Pedro Street branch was recognized at all times by United. In 1939 when Hart-called on Weinberg' on behalf of the Laundry Workers, all their negotiations were with reference to the 'South'-San Pedro' Street plant employees exclusively. No=question 'was raised coneermng the inclusion of the Hollywood employees When ' the drivers at South 'San Pedro Street decided to'attempt to effect an organization, they made no effort to include those from the Hollywood plant in their plans. 'When Gor- ' don and Wedler held their meetings iii January and February 1941, they were meetings' exclusively for the drivers'of the South San Pedro Street branch, and when the Weinstein dinner of January 13 was held only the South San Pedro "Street drivers-'and helpers were invited. In the negotiations that took place '!in January and February 1941, Gordon inquired whether Local 928 represented ,'the drivers at Hollywood as well as those at South San Pedro Street, and, upon being advised that it represented only the South San Pedro' Street employ- ees, raised no objection and continued his negotiations on that basis In 1942 Gordon entered into a eon'tract with an alleged committee representing the South San Pedro Street branch drivers alone Zipperman testified that Hollywood was in no way involved in this contract although they intended to extend its benefits .to Hollywood after it got to working. Gordon testified that he so advised the Hollywood drivers while the contract was being prepared. The complaint alleges that an appropriate unit for the purpose of collective bargaining is composed of "all employees engaged as drivers and as drivers' 'helpers at the respondent's Los Angeles plant, exclusive of production workers, supervisors -and clerical workers " The complaint distinguishes between the Hollywood plant and the South San Pedro plant by referring to the former as being located in Hollywood and the latter as being located in Los Angeles. The foregoing language is accordingly interpreted to refer only to the drivers and drivers' helpers at the South San Pedro Street branch to the exclusion of those at Hollywood. There 'is no history of interchange of drivers. and drivers' helpers between the two branches, although the record reflects that on some occasions when changes have been made in the geographical allocation of territory to the two branches, a driver together with his entire route might be"transferred from one plant.to the other. On at least one other occasion, a helper in one of the plants was promoted by being given a driver's job in another, but it may not be said that drivers and helpers or others are freely interchanged or that they are interchanged' at, all;- except on rare and' very special occasions. Geographically NATIONAL LINEN SERVICE, CORP. " 221 the City of Los Angeles is sharply divided by a designated "through" street into two sections. with all business- originat \ng in one section handled, by the Hollywood branch while the business originating in the other section is handled exclusively by the South San Pedro Street branch When a customer moves from one territory to the other, his business is transferred to the branch covering ,the territory to which he has gone and'he is served by another driver working cut of such other branch Under such circumstances, while the duties and- gen-eral operations of the drivers of both plants are practically identical there appears to be an almost total lack of community of interests, which has been recognized by both the unions and management. The unions have for years recognized and treated the South San Pedro Street branch as a separate unit for organizational and collective bargaining purposes United has, by its conduct in dealing with the drivers and helpers of the South San Pedro Street branch, separately and apart from the drivers and helpers at the Hollywood branch, and by entering into a separate and formal contract with a committee representing- the drivers and helpers at the South San Pedro Street branch, recognized that group as con- stituting an appropriate unit for collective bargaining purposes On the basis of the foregoing it is found that a unit for the purpose of collective bargaining composed of all employees engaged as drivers and drivers' helpers at the respond- ent's South San Pedro Street branch in Los Angeles, California, exclusive of supervisors, will insure to respondent's employees in such- unit, the full benefit of the right to self-organization, and will otherwise effectuate the policies of the Act, and is a unit appropriate for the purposes of collective bargaining. " - b. Local 928's majority in the appropriate unit During the course of the hearing, no effort was made to put into evidence written authorizations of the employees in the appropriate unit "in January 1941, directed to Local 928 and authorizing it to ' represent them for the pui poses of collective bargaining, although a number of such applications were identified in connection with the union membership of employees claimed to have been dis- criminatorily discharged. However, there is uncontroverted evidence that 32 of the 42 drivers became members oh January 3 and 8, and it will, be` recalled that, on January 10, 1941, Gordon assembled the drivers at the-South San Pedro Street branch, requested them to give up their union affiliations and activities 'and conducted an election among them' to determine whether they wanted "Bradley, the business represenffitive of Local 928, to'represent them for collec- tive bargaining purposes On this occasion the voting was 32 in favor of being represented by Bradley to -8 against. It-is tiot 'contended that on January 10, '1941, a very, substantial majority of the4drivers and helpers in the South San 'Pedro Street branch had not designated Local 928 as its collective Bargaining representative and it is accordingly found that on January 10, 1941, a substantial majority of the employees of United within the appropriate unit above described had designated Laundry & Linen' Supply Drivers' Local 928, A. F. of L., as'their representative for collective 'bargaining purposes. " c The refusal to bar.ain There is no denial that on January 9, 1941, Bradley and Onstott called dt the South San Pedro Street branch, asked' for Weinberg, ]landed their official business cards to the telephone operator, weie advised that neither Weinberg nor any other official of the company was present and that they left their cards with-a request that Weinberg communicate with them so that they could arrange a meeting with him. It is likewise not denied that neither Bradley nor Onstott thereafter received any telephone message or other comb uiiication from Wein- 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - berg or any other person representing United as a result of this request It has been found that on January 9 Weinberg left the office of the South San Pedro Street branch and did not again return there in any official capacity However, Wedler was present throughout January 9th and, on that day, spent the after- noon interviewing the drivers with, reference to their union affiliations. In view of the fact that at the meeting of Jaiaiiry 10 Gordon dictated'the language of the question to be voted on as being whether they desired to be represented by "Mr. Bradley of the A. F. of L ", it found that Bradley's call, card and message were passed on to Gordon by January 10, 1941, and that he knew of the request for a meeting at the time lie learned of the 32 to 8 vote of the drivers. However, he made no effort to communicate with either Bradley or Onstott following the voting of either January 10 or January 16 It was not until January 30, 1941, when Gordon replied to Bradley's letter of January 27, 1941, addressed to Wedler, fixing February 1, 1941 as it meeting date, that there was any contact between the representatives of Local 928 and the officials of United. On February 1, 1941, according to Gordon's suggestion, Bradley and Onstott met with Gordon, Larson, and Wedler at Gordon's office in the Holly- wood plant The meeting was opened with a long speech by Larson in which he spoke generally upon the question of labor relations and repeatedly assured the union representatives that the company would not enter into a closed-shop agree- ment After Larson had finished his coniments,,Onstott and Bradley told Gordon that they represented' a majority of the drivers at the South San Pedro Street branch and were there to discuss generally the-matter of a contract. They had no proposed contract with them but mentioned the subjects to, be included and agreed to draft a proposed form covering their position Gordon told them he bad no authority to sign such an agreement but that it would have to be sent to Weinstein in,Atlanta, where it would be presented to the Board of Directors and that it might take some time to get this done The meeting closed with an understanding that the union representatives would go over their proposed agreement with Larson before submitting it to Gordon for eventual disposition. A few days later, a meeting of the drivers and helpers of the South San Pedro Street branch formulated the general terms of an agreement which Onstott put into formal form and then took up with Larson at the latter's office. Larson went over the agreement with Onstott, made some notations on it, and instructed Onstatt to present it to Gordon A meeting with Gordon was then arranged for February 15, 1641. It was on February 14 that Wedler assembled the drivers and helpers for a third balloting to determine whether they still desired to be repre- sented by Bradley of the A F of L and succeeded in reversing the previous elec-' tions by a substantial majority, against A F. of L On February 15, Bradley and Onstott met with Gord"o`n'arid'Zipperniah. The 'proposed, ag`reeiieiit.'a's-reviewed by Larson, was handed to Gordon, who examined it generally 'and immediately stated'that the company would not sign a contract with a closed-shop provision in it. At about this stage, he also asked Bradley and Onstott whether they represented all the drivers of United and was told that they represented only those at South San Pedro Street, to which Gordon made no objection and did not again raise the subject. Gordon's examination and discussion of the terms of the agreement, which contained all the normal.elements of usual union agree- ments pertaining to hours, holidays, wages, rates of pay, grievances, etc ,,did not go into detail. Onstott and Bradley asked Gordon for some type of reply with ref- erence to the company's execution of the agreement as proposed, whereupon Gordon told them that he would like to have Weinstein look it over and would send it to him He also told them that Weinstein was expected in Los Angeles, on or about March 1st, and that on that occasion he would discuss the provisions of NATIONAL LINEN SERVICE CORP. 223 the contract further with him At no time during its contacts with the represent- atives of Local 9?8, have anly of the representatives of United questioned the right of Local 928 to represent the South San Pedro Street branch drivers as a separate appropriate unit for collective bargaining purposes; on the other hand, in such contacts as were had, they have recognized Local 92S as such representative. About 10 days after the February 15 meeting, one of the officials-of the Holly- wood branch telephoned Bradley to advise him that Weinstein would be unable to be in Los Angeles on March 1st as planned, but made no suggestion as to later date at which the representatives of Local 928 might meet with Gordon, Weinstein, or any of the other officials of the company, nor did Bradley pursue the subject. Since then, no further communication has been received by Local 928 from any of the officials of United, Linen Service or National, nor have the representatives of Local 928 repeated their requests for it conference. Upon the foregoing it is found that on January 9, 1941, as a result of member- ship applications received by Local 928 between January 3, 1941, and January 8, 1941, it represented a majority of the drivers and drivers' helpers at the South San Pedro Street plant, and that, on that day, the duly authorized officials of Local 928 called at the office of the South San Pedro Street branch to confer with the officials of United in charge of that branch and stated the purpose of their call but'were advised, erroneously, that. there was no official available at ttne time to meet with them ; that on January 10, 1941,'Gordon, having just been placed in charge of both plants, was fully advised of the visit of the representatives of Local 928 to the office on the 'previous day and the purpose of such visit, and that on that day. Gordon verified the representation by Local 928, of an overwhelming majority of the drivers and drivers' helpers at the South San Pedro Street branch but that notwithstanding this and with full knowledge of the visit to the office by the representatives of Local 928, and the purpose.of such visit and the request then made,. Gordon and the other officials of United .wilfully and intentionally 'refused to communicate with such union officials or to arrange any meeting for the purpose of. collective bargaining; that thereafter,'haviiig, determined that Local 928 represented a substantial majority ofdrivers and drivers' helpers, United put into effect on January 15,- 1941, a substantial un- solicited pay raise applicable only to the drivers and drivers' helpers. That on January 16, Gordon held a second meeting of the drivers and drivers' helpers in an effort to discourage them from continuing their membership in Local 928 and to withdraw their authorizations given to Local .928 to' represent them in collective bargaining matters and that at'such meeting he caused the employees to ballot on' the selection of a representative, in-which ballot a majority of the drivers and drivers' helpers reaffirmed their, designation of Local 928 as 'their bargaining representative, which meeting was called for the purpose of avoiding the necessity of bargaining with Local 928. That following the January 16th meeting, United continued to ignore the request of Local 928 for a meeting until the same was repeated in writing. That on February 14, 1941, while negotiations between Gordon and representatives of Local 928 were being carried on, officials of United conducted another ballot among the drivers and helpers of the,South San Pedro Street branch in connection with which they importuned the employees to withdraw their affiliation with Local 928, as a result of which a substantial majority of the drivers and helpers indicated that they no longer desired to be represented by Local 928 That on February 15, 1941, Gordon met with representa- tives of Local 928 and went through the motions of discussing a proposed contract and requested time to submit it to Weinstein for his consideration, which delay was agreed to by the representatives of Local 928. That since the submission 224; DECISIONS,"OAP. NATIONAL I ABO'R RELATIONS BOARD of the proposal and the adjournment of February 15; 1941, neither United, Liner, Service nor National has in any manner-,whatsoever communicated with, ap- proached or suggested to Local 928, or any of its representatives, any further action with respect to the- proposed contract or any other matters which might pertain to wages, hours and working conditions of the employees represented by Local 928. It is specifically found that, beginning January 10, 1941, United has refused to bargain with Local 928 as the representative of all its drivers and drivers' helpers employed at the South San Pedro Street branch and that such refusal has continued through February 15, 1941, and up to the present time. D. The unfair labor practices of 1912 By September 1941, the influence of Local 928 at the South San Pedro Street branch had practically entirely disappeared, Elkins being the only known member of Local 928 remaining, who had not avowedly abandoned that union. The' disposition of Elkins by United has already been dealt with. _ The visit in early September 1941 of Bixley and Whittaker to the office of the C. I. 0. Council in Los Angeles, and their initial meeting with Gatewood have already been described. On or about September 20, Gatewood,again met Bixley and Whittaker, together with one Ernest Fulford at Whittaker's house, where he4received the first membership applications from the drivers. Although efforts -were made by the men to keep their organizational activities from coming to the attention of the authorities of the company; they were not successful for very long As has already been recited with reference to the discharge of Rogers, Taylor began warning the drivers during the middle;and latter part of September against renewing union activities, and calling their attention to what had hap- pened to those men who had been involved in the A. F. of L activities earlier in the year. He continued this course of action during the organizational activities of late 1941,with apparent success, since the union does not appear to have made material progress during that period. Gordon's knowledge of the union, activities and his, reactions to them is reflected in his conduct toward Rogers and Perl, heretofore commented on. Beginning with the meetings of January 1941 and continuing throughout the year, Gordon had repeatedly announced his opposition to the interyention of outside labor organizations in the handling of any grievances the men might have, and had, as repeatedly, stated that such grievances could best be handled if the men would bring them to him in person or in groups and let him "smooth' them out in his own way. This was the propaganda he also caused to be spread among the men by Nearhoff, Martin, the various members of the sales crew and others, whenever grievances made their appearance. 1. The organization' of Special Employees' Committee By early January 1942; a number of the grievances which appear to have been' common to practically all the drivers, had crystallized.- During the week of January 5, 1942, a meeting, attended by 25 or 30 of the South San, Pedro Street drivers, was held at a local cafe to discuss the grievances and the methods to be adopted for most effectively placing them before Gordon. Bixby and Fulford ,were present. The relative merits of joining Local 357 and going to the manage- ment through that organization, and of following the procedure which had previously been urged by Gordon of going directly to him as individuals or-as a group, were discussed at length. Because of Gordon's repeated request that grievances be presented to him by the- individuals affected, it was decided to proceed along the lines the men had been advised would meet with his approval. NATIONAL LINEN SERVICE CORP. 225 The fundamental grievances ' were then outlined and a committee consisting of Leonard Stokesbaryi Ei'nest Fulford , James Smith , Malcolm Bixby, and Wade Campbe1138 was appointed to formulate a statement of the grievances or de- mands, 'and to present it to the management after it had been approved at a later meeting. • ' , Following their appointment to the committee, Bixby and Fulford called on Gatewood to solicit his aid and advice in carrying out the committee 's mission, and to induce him to go with them to Smith's home for the6 purpose of discussing the matter with him. Smith was a former "National" employee at Miami and had not been present during the January 1941 activities . He objected to inject- ing the union into the situation but later agreed with Gatewood to have Local 357 serve in an advisory capacity so long as it remained entirely in the back- ground. The next day, Sunday , January 11, 1942, the' committee met at Camp- bell's home and agreed on the context of a statement of the grievances, which Fulford reduced to writing . At the conclusion of this meeting, the entire coin-, mittee adjourned to Gatewood 's hotel for the purpose of allowing Gatewood to discuss with Campbell the benefits of allowing the union to cooperate in the activities of the Committee Campbell told Gatewood that be was opposed to any kind of union affiliation for fear the men would suffer the same fate as had those who were discharged during the previous year because of their activities on behalf of Local 928. -After some further discussion , however, Campbell agreed to collaboration with the union but only on condition that the union remain in the background and allow the committee •to proceed in its own way, with the union "standing by" to render assistance when and if called upon . Gatewood agreed to this, and thereafter took no active part in any of the committee activities except as is hereinafter specially noted. On or about January 14, 1942, a meeting of all the drivers was .held at the Rutland Hotel in Los Angeles to pass on the statement of grievances as prepared by the committee, which statement is referred to throughout the record as the "5 points," and covered the following : 1 Termination of all supervision by Nearhoff of the drivers at the South San Pedro Street branch. 2. Termination of, all supervision by Feinstein " of drivers at South San Pedro, Street branch. - 3 Fixing basic wages of drivers after 1 year ,of service at $42 50 per week of 50 hours , with time and a half for overtime, and similarly , a basic wage of helpers at $30 per week - I - 4 Holding a meeting of the Social Club for purposes of reorganization and to elect officers. 5 Requiring an accounting of the funds of the Social Club by James E Martin ( sales manager for United) who, it was charged; had arbitrarily assumed the position of treasurer. k -• The statement, as prepared by the committee, was approved and signed by the 26 drivers and helpers present. During the meeting, the committee notified those present that it had conferred with Gatewood and that Local 357 had agreed to "stand by" and be ready ,to assist when and if its assistance was requested. so Fulford and Smith were 'newcomers who had not been involved in the eaily 1941 activities Bixby, an old employee, had refused to join Local 928 in early 1941 Camp- bell had joined 928 but abandoned it after two or thice weeks, under pressure from W edler• and others Stokesbary's history is not reflected in the record beyond the fact that he was an employee during the A F of L activities of 1941 37 Feinstein was a driver imported from National's branch in Miami, Florida, in March 1941, and later'in that year made a route supervisor at the South San Pedro Street branch. 226. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since Gordon was then in Atlanta, the committee was instructed to present the "5'points" to Zipperman as promptly as possible and did so on the evening of January 19, 1942. After reading the demands, Zipperman told the committee be saw nothing in them that seemed to be unreasonable and congratulated the men on coining direct to management themselves rather than through the medium of an outside organization, stating that such procedure was exactly what Goidon wanted them to do He explained that he had no authority in connection with the matter but would. communicate with Gordon at once. He also suggested that the form in which the "5 points" had been presented would probably not be sufficient to provide the basis of an agreement and suggested'that they have,the demands put into the form of a proposed contract. The following day Zipperman introduced Bixby to one Stein, an attorney whose wife was employed in the offices of the South San Pedro Street branch and ad- vised Bixby that Stein was qualified to draft a contract for the committee. Shortly after this, Campbell and Fulfoid also put in an appearance and went into conference 4ith Stein, where they presented him with a copy of the "5 points" and retained him to draft a suitable contract based on those deinands, for an agreed fee of $25 That evening, the drivers again met at the Rutland Hotel to receive the committee's report on its meeting with Zipperman Practically all drivers and helpers were present During the course of the meeting, it was suggested by some unidentified person that all present sign cards of application for membership in Local 3:i7, deliver them to'the committee and authorize the committee to turn them over to Gatewood at such'time as it saw fit This was, done. The meeting also authorised the committee 'to use its full discretion in executing any contract it felt might be appropriate or, in the event it was unable to get full satisfaction on the "5 points", to act in such other manner as it might' deem proper. A collection was taken up to pay Stein's fee and to defray the other expenses bf the committee and the signed application cards were turned over to Bixby, who dehvcied them to Gatewood several days later - Meanwhile,' Zipperman had advised Gordon of the demands, whereupon Goidon arranged to return to Los Angeles the evening of January 24, but instructed Zipperman to have' Nearhoff and Feinstein stay away from the South San Pedro Street plant until such time as he, Gordon, could get back and straighten things out. On Gordon's arrival, Zipperman arranged to have the committee meet with him, (Gordon) at the office of the South San Pedro Street branch on the following day, Sunday, January 25, 1942 There the proposed contract as drafted by Stein was handed Gordon, as a statement of what the men were requesting Gordon had also received from Zipperman the original copy of the "5 points " He first con- gratulated the men for coming to him with their grievances instead of doing so through a union, and assured them that in that way much more satisfactory results could be obtained, after which he went over the proposed contract and discussed briefly the main points covered by it but agreed to none of them except- that part which provided for vacations. He refused to take any action with reference to the complaint concerning Nearhoff and Feinstein, dismissed the grievances with reference to the Social Club by the statement that he thought he could get that straightened out and, with reference to the proposed wages, coun- tered with a statement that if they would let him work it out his way he could make them an even better proposition by fixing the basic wage of the drivers at $40 per week plus a participation in the profits the branch might make. The meeting resulted in no substantial agreement or understanding on any of the points covered by the proposed contract. The committee agreed to advise'the drivers and helpers as to what had taken place, and did informally report to some 15 or 16 of the drivers immediately following this meeting On the evening NATIONAL LINEN SERVICE CORP. 227 of the 26th, a formal meeting was held at the union hall, attended by 30 or more of the drivers. At this time, Gatewood was in attendance. The meeting with Gordon on the preceding day and the provisions of the proposed contract were discussed. 'It was the consensus of this meeting that Gordon was "sthlliug" and, as a result, Gatewood was instructed to call on Gordon in regard to the situation as the representative of the drivers and helpers present as , The iiext day Gatewood called at Gordon's office and was asked to identify himself and state the nature of his business by the switchboard operator, after which he was informed Gordon was not in Gatewood left a memorandum of his office telephone number and requested the operator to have Gordon call him, but no call was received. Thereafter Gatewood tried several other times to com- municate with Gordon by telephone but, after identifying himself to the .switch- board operator, was unable to get through to Gordon until almost a week later. During this same day (Tuesday, January 27) several of the drivers complained to Zipperman and others of the office staff about Gordon's refusal to sign the contract, and some evidenced a degree of anxiety that they might be penalized for having participated in making the demands embodied in the "5 points." As a result of these occurrences of January 27, Gordon and Zipperman met with Larson during the day and instructed him to draft a master contract and a form of individual,contract to be signed by the various drivers covering the points Gordon had raised, and providing a lower basic wage and a profit-sharing arrange- ment. These forms were prepared and submitted to Zipperman the next day. Zipperman did not approve of the form of master contract proposed by Larson, but found the proposed individual contracts satisfactory. He proceeded to redraft the master contract himself, and before he had completed it, and without con- sulting the committee, called in a number of the drivers during the day and ob- tained their signatures to the individual contract as prepared by Larson. After lie had rewritten the form of master contract, Zipperman called in the committee, and submitted it to them•but-failed to mention that he already,had'induced a num- ber of drivers to sign individual contracts. The committee, after reading the pro- posed master contract, suggested that they should have it examined by an attorney before signing.it. Zipperman agreed and asked them to select an attorney. None, of those on the committee were acquainted with an available attorney, whereupon some of the group suggested that they pick out an attorney at random from those listed in the telephone directory. This was done by throwing a pen at the open telephone directory and selecting the attorney into whose name the pen stuck. The first two or three thus selected were unable to accommodate either the coin- mittee or Zipperman, but eventually one Lindstrom, selected in the above manner, agreed to meet them The entire group, consisting of the committee and Zipper- man, immediately repaired-to Lindstrom's office, where they 4lve him a copy of the proposed contract and requested him to examine it and, if necessary, to do whatever editing or rewriting might be indicated Lindstrom's first inquiry was as to who would pay his fee. Zipperman stated that the company would do so, and agreed to forward Lindstrom a retainer of $50 immediately upon lies return td the office It was stipulated on the record that the company paid Lindstrom $150 for his services in connection with this matter On or about February 2, 1942, Gatewood succeeded in getting through to Gordon on the telephone and advising Win that Local 357 represented the employees at "Between January 20, 1942, and February 20, 1042, at no time weie there more than 42 diiveis and helpers employed Based on signed cards produced at the hearing and checked against the pay rolls of Januaiv 20, 1942, to February 20, 1942, Local 357 at that time held written representation authorizations from at least 37 of the 42 drivers and helpers, many of which authorizations were signed by, employers who, in 1941, had desig- nated Local 928 as then repiesentatne _ 5 21 24 7-43-vol 48--16 228 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD the Soutli San'Pedro Street plant. On the same-day he wrote to Gordon confirm- ing the telephone 'conversation and requesting Gordon to meet with him to discuss, the provisions of a possible agreement pertaining to wages, hours and working conditions df the employees. There is no evidence that Gordon ever replied to his-letter, nor is it disclosed whether, in his conversation with Gordon, Gatewood disclosed his relations with ,the committee. On February 7, Gordon, Zipperman, and Larson met with 'the committee, at Linclstrom's office to go over the final provisions of the contract as revised by Lindstrom. It was examined item'.by item and several changes in• the phrase- ology were suggested by Larson. Since Lindstrom was on the eve of a depar- ture*'from Los Angeles, Larson undertook to have the contract recopied in his office, embodying. the 'agreed changes.. On' February '11 the master contract, together with the form of,a contract to be executed by the individual employees in conjunction therewith, had been cdinpleted by. Larson and mimeographed copies had' been made . The five members , of the committee were called into Gordon's office, where they executed the master contract and each signed the separate individual contracts provided for, whereupon Gordon, on behalf of United, like- wise signed the master contract and, the five individual contracts of the com- mittee members. As soon as this was done, and without referring either form to the men for approval, the other drivers and helpers at the South San Pedro Street branch were called in as rapidly as they became available and requested by Gordon, Zipperman and Taylor to execute the individual contracts. Prac- tically- all.the drivers and helpers. and the rest of the staff, including Taylor, executed the individual contracts within the next 2 days. There is no evidence that any employee refused to sign an individual contract upon request. The master contract names the members of the committee and recognizes them as the representatives of the route men and helpers of the South San Pedro Street branch, duly authorized to 'enter into the contract on behalf of all the routemen and helpers at that branch and to act for a period of 6 months from January 16, 1942. It provides for elections of new; committeemen to be held, each 6 months thereafter, and contains a special provision that the employer shall. enter into individual contracts 'of employment, in a, form attached to the master, contract, with each of the drivers and helpers as soon as convenient after the execution of the master agreement, and that the. master agreement shall be made'a,part of each of the employment contracts. It has a stated term, of 2 years; places no limitation on the 'hours which will constitute a normal work- week, snakes no provision for premium pay in the, event of overtime, fixes a maximum wage for drivers after 2 years of, service of $40 per' week and -a, maxnnum wage.for helper`s after T year at $27 50- per week, with a formula for bonus payments from profits under certain circumstances, provides for premium payments on account of "waiting time" when the driver is delayed because linens are not ready for him to take out, provides for a grievance committee and griev- ance procedure with particular reference to the handling of dismissals without cause, provides that previous organizational activities of any of the employees shall not constitute grounds for dismissal, and further provides that any strike, picketing or walkout of employees, engaged in before the grievance procedure 'has been exhausted, shall terminate the contract and the individual employment contract as to any employee so striking, picketing, or walking out of the plant On Saturday, February 14, 1942, and before there had been any opportunity to set up the grievance machinery,, Joe Page, Senior, was discharged by Gordon for the stated reason that he had failed to turn in monies collected on his route. At the time of his discharge he was required to endorse his pay check, which was then taken up and withheld by Gordon. Page reported his discharge to the -NATIONAL LINEN SERVICE CORP. - 229 members of the committee and to Gatewood,; who, resenting the manner in which the discharge had been accomplished, called a meeting of the union members at. the union office for Sunday afternoon, February 15, 1942. At this meeting, Page denied he had appropriated any funds of the company. Up to that time,the employees had' had no reasonable opportunity to designate the employee repre- sentation on the grievance committee as provided for in the contract, nor had United • done so However, they then appointed Bixby, Smith and Campbell, as their grievance committee and, in discussing the discharge and the provisions of the new contract, arrived at the conclusion that the company had observed neither the spirit nor the letter of the contract in peremptorily dismissing Page. 'The pertinent clause of the'contract reads as follows : TENTH : DISMISSAL WITHOUT CAUSE 'It is hereby agreed that in the event that the grievance committee, here- inafter provided for,' by a majority vote, shall decide that any of the' group herein called employees has been dismissed without cause, theft or embez- zlement shall constitute good cause for dismissal, or contrary to any other provision of this agreement, then and in that event the, employer, shall immediately reinstate said employee so dismissed , and pay to him any salary or 'wages lost by him during his period of dismissal. In the event the employer shall fail to abide by' the decision of 'said grievance com- mittee * *, On the basis of the decision of the meeting that the company had violated the provisions of the agreement, it was voted to -refuse to return to work the ,next morning until the committee had had, a conference with Gordon on the subject. ° At about 6 o'clock the next morning , Monday, February 16, 1942, the drivers and helpers began to assemble at the plant but refused to go to work. Zipper ,man was present,, as were Gatewood, Campbell, Bixby and Smith. Zipperman requested Gatewood and the committee to order the men back to their work but they refused to do so unless Gordon would agree to meet with them Zipperman explained that Gordon was confined to his bed with illness and confirmed this by putting Gatewood in telephonic communication with Gordon, who promised to meet :Gatewood as soon as he recovered. Upon receiving this assurance, Gate- wood requested the men to resume their work and,they did, so. The total delay resulting from this work stoppage was about an hour and a half.- Later in the day Zipperman took Gatewood to Gordon's home where Gordon agreed to meet with Gatewood on the following Thursday, February 191, but stated that he definitely would not enter into any conference with the members of the committee of the drivers and helpers. Gatewood reported the result, of his visit to the committee and, on the following Thursday, together with a Mr. Posner, another official of Local 357, met Gordon, Zipperman and Larson at the latter's office. This meeting also started off with a long harangue from Larson which, according to the testimony of all who were present, was not entirely intelligible; after Larson had stopped, Posner and Gatewood discussed the virtues of their union, the Page dismissal and their desire to work out a satisfactory method of disposing' of such grievances as might arise, stating that they represented all the employees at the South San Pedro Street branch as When Gordon stated that he would not sign a closed shop agreement, Gatewood replied, "Well, now, we didn't ask you to "It is to be noted that no claim of representation was made as to the unit composed of the drivers and helpers On cross-examination, Gatewood reiterated that Local 357 at this time claimed to represent the inside workers as well as the drivers and helpers 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign a closed shop agreement. We only want to bargain for those people who are our own members." Concerning Page, Gordon explained that he had been dis- missed for stealing. Both Gatewood and Posner quickly assured Gordon that the union would not condone` stealing but that the matter presented an apparent grievance and that it should be disposed of in an orderly manner. He then asked Gordon to meet with the grievance committee to discuss the matter so that they could beassured of the real cause of Page's discharge and thus enable the current disturbance among the men to be disposed of Gordon flatly refused to have any meeting with the members of the committee, stating that he had had •a great,deal of union trouble, that he^had a number of men who were undesirable and that after he had disposed of them, he might call in the union 40 The meeting ended with nothing accomplished and with no arrangements made for again getting together. Gatewood had advised, the three members of the committee. that he hoped to be able to induce Gordon to meet with them, and requested them to remain at the plant that afternoon until after he had concluded his meeting with Gordon. Following the meeting, Gordon returned to the plant before Gatewood and, upon seeing the men waiting there, instructed Taylor to order them off the premises but to tell them to come back in the morning as usual. Taylor did this. That evening, February 19, the, committee met with- Gatewood and received his'report on the conference with Gordon,'Zipperman, and Larson. On the basis of this report and Gordon's refusal to meet with the committee, and regarding the contract of February 11 as having already been breached by United, the committee decided to resume the work stoppage on the following morning. As a result of this decision, before the commencement of work on the morning of February 20, a picket line was established by about 25 of the drivers and helpers. 15 or 20•of the inside workers joined the picket line the next day. Not all the drivers and helpers, however, were restrained by the picket line and a number of them who were members of-Local 357 went, through -it and carried onttheir work in the usual,, manner.' Among these were Fulford and Stokesbary, members of the original committee, and about eight others. These men, together with a number of drivers who were brought in from the Hollywood branch, and a group of new men hired during the day, made such deliveries as were made by the company on and after February 20. Taylor, the route manager at the South San Pedro Street plant, had become a member of Local 357 in the early part of February and attended the meeting of February 15 when the grievance committee was appointed in connection with Page'sudischarge. He had revealed his' membership to no one at the South San" Pedro Street branch, so far as the record discloses. On the morning of February 20, Gordon was standing in the doorway of the plant when Taylor arrived. Taylor walked up to Gordon and started to explain to him that he was also a member of the union and could not go through the picket line Gordon told him he would not talk to him on that or any other subject and sent him away, whereupon Taylor joined the picket line and continued there during that and the following day. On the morning of February 21, Gordon was advised by Larson to serve notices of termination of the employment contract of such of the strikers as had signed individual contracts. He immediately directed Zipperman to prepare such notices for his signature. A little later in the morning, Posner telephoned Gordon and 4° Gordon admitted having refused to meet with the committee, but denied the other statements herein attributed to him In view of all the circumstances and the history of_ the A F of L in 1941, this denial is not credited and,Gatewood's recital, on which this finding is based, is accepted as correct NATIONAL LINEN SERVICE CORP. 231 asked him whether he was now ready to talk with the union . Gordon 's reply was that he felt as though he had been "double crossed" and that he would not talk to the union so long as the picket line existed , but that if Posner would withdi aw the picket line immediately he would talk with hint on the following Monday, February 23. Posner agreed to this but did not ieinove it immediately At about 11 o'clock Posner again , called Gordon and asked hint why he had not p,iid offFthe men Gordon made a similar inquiry of Zippernian and was told that they had not appeared for their checks Shortly thereafter , Smith and Campbell went into the office to get the checks for all the strikers and, while there, were shown the notice of termination of the contract which Zipperman had prepared , addressed to a number of those who were then on the picket line After a few moments delay, Smith and. Campbell were handed a number of envelopes which Zippernian explained contained the pay checks of the sti ikers and the notices of termination of contracts . These notices were identical and read as follows: NO LICE 4i To: Jimmie McNeese,"Harlow Ray, Wade Campbell, Chas Kramer, George Price, Joe Woolbright, Herschel Davis,•Jimnmie Smith, Jimmie Fry, George Koontz, Chas Callahan, Malcolm Bixby, Claude DeBaroff, F K. Bowers, Don Olson, George Taylor. YOU, `AND' EACH OF YOU WILL PLEASE TAKE NOTICE : That by reason of your joining in a strike, or picketing, or a walk-out, contrary to the provisions of your employment contract and master contract therein referred to and made a part thereof, said employment contract and master contract, as to l you, arid each of you, were automatically terminated and cancelled as of the commencement of such strikes, picketing or walk-outs. Dated at Los Angeles, California, this 21st day of February, 1942. UNITED LINEN SUPPLY Co. By (s) N. M GO RDON. Not all the strikers were given the notices above quoted. They were received only by those who had signed individual contracts and whose contracts had in turn been fully executed by Gordon. Those whose contracts had been signed by the employee but had not yet been executed by Gordon, received no such notice nor did the few who had not yet signed, nor the inside workers who are not a part of the drivers and helpers' group One of the strikers who had a fully executed contract was also omitted 42 Since the delivery of the foregoing notices to the employees named therein, none of them has been offered reinstatement to his previous or equivalent employment by United or National at any of their branches.' From the foregoing it is found: 1 That by the repeated insistence of Gordon and the other officers acid supervisors of United' that the drivers and helpers at, the South San Pedro ai It was conceded by Gordon and Zipperman that all the men listed in the notice were. at the time, eniploiees of United and that the employment of each was deemed terminated by this notice and for the reasons stated Each was also a member of Local 357 42 Fleetwood Turner had fully executed his contract pi for to the stake, walked the picket line for about 3 weeks and then took other employment in the City of Los Angeles. He received his check on February 21 from Wade Campbell in the same manner as the other stiikeis did During the course of the beaming Zipperman, who was supposed to have the custody of all the signed contracts , found a great deal of d faculty in assembling them for use at the hearing It is entirely possible that the omission of Turner's name from the list of those to whom the notice was directed was an oversight and not an intentional omission. 232 DECISIONS OF NATIONAL LABOR' RELATIONS "BOARD Street branch refrain'from using a labor union as a means of collective bargain- ing, and that they conduct such bargaining and negotiations with' reference-Lo such grievances as might arise, directly and as individuals or, groups, with Gordon, United has so interfered with, restrained, and coerced its employees iii the exercise of the rights guaranteed to them in Section 7 of the Act, as to cause them to abandon the right freely to choose their collective bargaining agents, and -to resort to the medium of the apparently independent committee prescribed by Gordon ; that in so doing United has dominated and interfered with the formation and administration of a labor organization among its employees, to wit --the committee ; and by reason of such domination and interference has caused the committee and the employees themselves to enter into a master contract and individual subsidiary contracts. affecting wages, hours, and general conditions of employment and has assumed to enforce certain of the provisions of such contracts, without itself observing the apparent spirit thereof ; that such master contract and the individual subsidiary contracts were not the result of free and open bargaining and negotiation by the committee, but were dictated, by United and are not the free and uncoerced acts and deeds of either the committee or the employees who executed the various individual con- tracts. That prior to the strike of February 20, 1942, Gordon was fully advised that Local 357 was the 'designated representative for collective bargaining pur- poses of substantially all of the drivers and helpers in the South San Pedro, Street .branch ; that a committee had been appointed by such drivers and helpers to confer with'Gordon, together with Gatewood, the known representative and business manager of Local 357, and that on both February 16, and February 19, Gordon, with such knowledge, refused, upon the request of Gatewood, to meet with such committee under any circumstances and that 'the strike of February 20, 1942, was occasioned by such refusal ; that the contract of February 11 and itll individual contracts executed in connection therewith are, were and at all times have been void and of no effect; that the refusal of United to discuss the Page discharge with the duly appointed grievance committee' was violative of the .spirit of the contract in-any event, and, in view of the fact that a reasonable time had not been given to adequately set up the grievance machinery, was in violation of• the terms of the contract itself as reasonably interpreted and was motivated by the bad faith of United growing .out of the discovery that substantially all of , the ,drivers and helpers had become members of the union; and that the discharge by United of the strikers named in the notices, by invok- ing a provision of the void contract was motivated by their collective action for their mutual aid and protection as members of Local, 357 and was designed to and did discourage membership in -Local 357 and interfere with, restrain, and coerce the employees of United in the exercise of the riglits guaranteed them In Section 7 of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of National, Linen Service,,and United set forth in Section III above, occurring in connection with the operations of the,respondents described in Section I above, have a close, intimate and Substantial relation to trade, traffic and commerce among the Several States, and tends to lead' to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Respondents National and Linen Service vigorously; contend that they are.not proper parties in this action and that in no respect can they be held responsible for any unfair labor practices which might have been committed by, United. NATIONAL LINEN SERVICE CORP. 233 In support of this ' contention these respondents rely almost entirely upon the decision of the United States Court of Appeals for the District of Columbia in Press Co., Inc. v. N. L. R B, et al, 118 Fed (2nd) 954 , The brief of these re- spondents forcefully points out either the elements of similarity between the circumstances in this situation and those, which existed in the cited case, or circumstances here existing, which, these respondents claim, are-more favorable to their contention than the more or less paralleling facts found in the Press Company case. There are many similarities in the two cases but the-distinction lies in those factors here present, which were missing in the Press Company case. In that case, the Court dwelt almost solely on the technical separateness of the two corporations and measured the question of responsibility according to the strict application of the rule against joint liability at law as between two independently created corporate entities. It apparently based its decision, on the absence of a showing that the holding company, in'its corporate capacity 'and through formal appropriate corporate action, had exercised control over the internal, operations of the newspaper published by the subsidiary. It rejected the argument of the Board that the "dual capacities of the policy making execu- tives and the realities of the relationship" compel the Board to disregard the artificialities of the so-called corporate independence of the subsidiaries and controlled affiliates, and to go direct to the governing and policy making parent organization, if the Board is to fulfill its obligation to prevent' unfair labor practices affecting 'commerce as provided for-in Section 10 (a) of the Act. Since the Press Company decision was handed down, the Supreme Court in Phelps Dodge Corporation'v. N. L R B, 313 U S. 171, has clearly confirmed what has been previously said by other courts and by the Supreme Court in previous decisions, that the Board acts in a public-capacity to give effect to the declared' public policy of the Act, to eliminate and prevent obstructions to interstate commerce by encouraging collective bargaining, and in so doing, it is vested with a broad discretion to take whatever reasonable steps will effectuate this national policy ; and that the Board, "in collaboration with limited judicial review, must not be'confined within (the) narrow canons of equitable relief-deemed suitable by chancellors in ordinary private controversies " Phelps Dodge Corporation v. N. L. R. B, supra , The language of the court in the Press Co decision is closely applied to the facts in that specific' ease. When as closely applied- here, the instant situa- tion appears' readily distinguishable. In the Press Co. case, although Gannett was the president of each of the various corporations, including the one directly involved, and, as found by-the court "controll'ed its policy," there is nothing in that decision to indicate that Gannett controlled the policy other than'by "remote control" or that he devoted any of his time to direct personal supervision of the operations of the various newspapers, or the personnel relations or working conditions in each plant. The facts indicate that he did not Here however, Weinstein was not only the president of each of these corporations but, without discrimination between them, paid regular visits approximately-each month to the various plants regardless of whether they were.•plants operating under National, Linen Service or United, and, as the "driving force," gave each of them his impartial supervision and, when occasion 'demanded, made emergency visits for the purpose of•handling'personnel problems, one of which was the visit he paid to Los 'Angeles on January 13, 1941, when he assembled the -drivers and helpers of the South San Pedro Street branch at a dinner given especially for 'them, dwelt at length'oil the problems which had induced the drivers to become members of the union in order to have their grievances' corrected,. described his general, over-all labor relations policies with reference to all his plants and finally acceded to some'of their demands by making a-change in-management 234 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD witch he announced at the meeting, all of which, it has been found, was done to to discourage the drivers and helpers at the South San Pedro Street plant from maintaining their membership' in the union and to demonstrate to them that action through the medium of a labor organization was not necessary to obtain relief for such grievances as they may have had It has been found that in this connection 'Weinstein, (lid., not appear. before these men-solely as the president of the United but as the president of the National system, and of :National which controls that system. This situation also contains another factor of control by National over the internal affairs of United when con- sideration is given to the manner in which' the financial affairs of United are handled.. It has been found that while the local officials in Los Angeles have a very limited power to draw checks against the deposited funds of United, the major control over those funds rests in Atlanta where checks not only may be signed by Weinstein, but also by Weinberg, Jacobs and Vicknair, who, with Weinstein, constitute the controlling executives of National,, but who are in no sense, from a technical standpoint, associated or identified with United as officers, directors or,, substantial stockholders This leaves no option but to find that-this authority is granted Weinberg, Vicknair and Jacobs solely because of their official positions as- the chief executive officers of National and, to give National, to that extent, vital control over the affairs of United, which control National did in fact exercise. Pursuing therefore' the principle enunciated in the Phelps Dodge case and bearing in mind -th^it the,Board is charged with•'a responsibility 'to prevent unfair labor practices and is not restricted, by the technical legal artificialities that have grown up in the law pertaining to cor- porations, it must be found that the Supreme Court, by its pronouncement in the Phelps Dodge decision, has released the' Board from the close restrictions indicated in the Press Co decision, even if that case were not distinguishable from this, and that the Board is empowered to, and, in order to effectuate the policies of the Act frequently must, realistically disregard corporate artificiali- ties and-direct its remedial orders Ito the fountain head of the unfair labor prat- tices. In this case that fountain bead is National Linen Service Corporation which in effect has become the corporate personification of I M Weinstein. It Is impossible under these circumstances, to sustain the position taken herein by National and Linen Service. Since it has been found that the respondents have engaged in unfair labor practices, it will be recommended that they and each of them cease and desist therefrom and take certain affirmative action•.designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. - Sipce it has been found that the termination- of the employment-of- Deliner Thorne, Walter Lyons and Elbert lI Adamson involved no unfair labor practices on the part of the respondents or any of them, it will be recommended that the complaint be dismissed insofar as it pertains to the termination of the employ- ment of these men. - Since it has been found that National and Linen Service together with United have interfered with, restrained and coerced their employees-in the exercise of the rights guaranteed them in Section 7 of the Act by discouraging them from maintaining their membership in or affiliation with a labor organization for the purposes of collective bargaining, and that they, through and with United, as a subsidiary and dominated affiliate of National, have, by the discharge of numerous of their employees at United, by refusing to bargain with a labor organization representing their employees at United in an appropriate unit, and by•dominating a labor organization among their employees and requiring their employees to execute individual contracts of employment and by 'the other acts hereinbefore NATIONAL LINEN SERVICE CORP. 235 set out, further interfered with, restrained and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, it will be recommended that National and Linen Service cease and desist from discouraging their and each of their employees and the employees of each and every of their controlled affiliates," subsidiaries and branches from joining, affiliating with, supporting, or otherwise identifying themselves with any labor organization, and since, in the view of the circumstances reflected herein, and- the domination and control of United by National and Linen Service, it appears that there is grave danger that, unless appropriately restrained from so doing, National and Linen Service will engage in other and further unfair labor practices, it will be further recom- mended that National' and Linen Service' also desist from, in any other manner interfering with, restraining or coercing their and each of their' employees and the employees of each and every of their controlled affiliates, subsidiaries and branches, in the exercise of the rights guaranteed in Section 7 of the Act. It haviiig been found that Lenora Drew, Nels C Sorensen, Charles Flanagan, Carl W. Geisen, Harry, Steiner, William Anderson, Lee'Nalley,-, Paul C Belsher, George W Elkins, Leslie Rogers, Emil Perl, James McNeese, Harlow Ray, Wade Campbell, Charles Kramer, George Price, Joe Woolbright, Herschel Davis, James Smith, James Fry, George Koontz, Charles Callahan, Malcolm Bixby, Claude DeBaroff, S K Bowers, Don Olson and George Taylor, at various times as here- inbefore related, have been discriminated against by the respondents as to their hire and' tenure of: employment, it will be recommended that they and each of them be offered immediate and full reinstatement to the former or. substantially equivalent positions last occupied by them, respectively, at the respective plants or branches of United at which they were last employed, without prejudice to their seniority or other rights and privileges, provided that in the event said employees or any of them shall fail for a period of 30 clays after receipt of the offer of reinstatement, above provided for, to report for employment pursuant to said offer, the obligation of the respondents and each of them to reinstate any of the employees so failing to report shall thereupon be terminated, except as to any of such persons who 'may then be 'in' the, armed' forces' of-the,-UnitedStates ; such persons shall be entitled to reinstatement upon demand at any time within 40 days after honorable discharge from the armed forces of the United States. It will also be recommended that the respondents make the said Lenora Drew and each and every of the other employees last above listed whole for any loss of pay they may have suffered by reason of the respondents' discrimination in their hire-and tenure of employment, by payment to each of them of a sum of money equal to the amount he would have earned as wages had he been con- tinued in his employment with the respondents, from the date of such discrimi- nation to the date of such offer of reinstatement, 'less his net earnings" during such period ' 97 By the ter in "controlled affiliate" is meant any corporation m which National , through direct ownership of a majority of the voting stock , or by indnect ownership theieof through a "controlled of Bate," is in a position to control the conduct of such affiliate or subsidiary through the exercise of its voting control in the selection of directors and officers u By "net earnings" is meant eai flings less, expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for- the, respondent , which would not have been incuried but for his-unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of' Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer sea, Lumber and Sawmill lVorheis Union, Local 1590 , 8 N L. R B 440 Monies received for work perfumed upon Federal, State, county , municipal , of other work-relief piolects shall be considered as eainiugs , See Republic Steel Corporation v N. L. R B, 311 U S 7. 236 DECISIONS OF NATIONAL LABOR' RELATIOONS BOARD It is recognized that certain of the findings may appear to be at variance with the complaint. The complaint, as amended, alleges that the respondents, "by sponsoring, encouraging, assisting, interfering with and dominating the forma- tion and administration of a Special. Employees' Committee ; and' by entering into a contract covering wages, hours and working conditions with said Special Employees' Committee . . . did thereby engage in and are engaging,in unfair labor practices within the meaning of Section 8, subsection (1)'of the Act. As in the case of Highland Park Manufacturing Company, 12 N. L. R. B 1238-1251, the respondents in this case claimed no surprise or, prejudice because of the variance, if any, between the pleadings and proof. On the other hand, all the available facts upon which the findings of domination of the employees and the Special Employees' Committee are based, were exhaustively litigated by the respondents and full brought out and made the subject, of examination and cross-examination by all parties in the same manner as if the complaint had specifically charged the respondents with unfair labor practices within the mean- ing of Section 8 (2) of the Act with respect,to the domination of and interference with the Special Employees' Committee - However, having found that unfair labor practices have been engaged in and that the respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed them by Section 7 of the Act, and the respondents having been apprised by the pleadings and by the evidence adduced at the hearing,- concerning which they made no claim of prejudice or surprise, because of variance from the pleadings of the facts; which constitute such unfair labor practices, there cari be no bar to an order by,the Board directing whatever appropriate action will remedy such unfair. labor practices and effectuate the policies of the Act, including setting aside the contract with the Special Em- ployees' Committee and disestablishing the committee as,a representative of the drivers and helpers for purposes of collective bargaining. On this basis, the fol- lowing observations are made: It has been found that on January 10,'1941, Local 928 had been designated by a majority of the employees among the drivers and helpers of the South San Pedro Street branch constituting an appropriate unit for the purposes of collec- tive bargaining with United, and that on and at all times, since that date United has failed and refused to-bargain collectively with Local 928 as such representa- tive It has'also been found that through the discharges by United of,its em- ployees who maintained their membership in Local 928 and other unfair labor practices of,United together with legitimate discharges and quittings, Local 928, during the year 1941, lost all representation it had among the members of the appropriate unit heretofore defined. Although it has also been found that follow- ing or at about the time of the disappearance of the last vestige of representation of employees in the appropriate unit by Local 928, certain of the employees, of their own volition, became members of Local 357 and that thereafter- practically all the drivers in the appropriate unit, including those who had previously lieen members of Local 928, voluntarily subscribed to membership in Local 357, Local 357 has never requested the respondents, or anyof them to bargain,with it as the exclusive representative of the employees in said appropriate unit, but, in such request as was made, claimed to represent all the employees at the'South San Pedro,Street branch No proof'was offered that it represented a majority of all the employees. It could not, therefore, be found that the respondents have refused to bargain with Local 357, within the meaning of Section, 8 (5) of the Act. I ' It has been found, however, that United refused to meet with the grievance committee appointed by the drivers and ' helpers constituting the appropriate t NATIONAL LINEN SERVICE CORP. 237 unit This committee, while appointed within Local 357, was solely representa- tive of the drivers and helpers. The respondent's refusal to meet with' this committee, representing a -majority in an appropriate unit, even though' in a union claiming erroneously to represent a larger unit, constitutes interference, restraint, and coercion of the members of that unit in the exercise of-the rights guaranteed in Section t of the Act, notwithstanding that the committee and the unit it, represented was a part of the "minority" union, according to the repre- sentation claims of Gatewood. It will be recommended that the respondent United bargain collectively, on request, with Local 928, as the representative of all the drivers and helpers at the South San Pedro Street branch, with reference to }wages, hours, rates of pay and other conditions of employment. Since it has been found that the contract of February 11, 1942, and the indi- vidual contracts subsidiary thereto, were not the free and uncoerced acts of the employees or the committee, and that the said master contract is with an or- ganization of the employees of United, with the formation and administration of which United has interfered and which it has dominated and supported, it will be recommended that the master contract of February 11, 1942, and all individual contracts entered into pursuant to the terms thereof be set aside and held at naught, and that no force and effect be given it or them by' any of the parties thereto, provided, however, that in so setting aside the contracts, United shall not, be permitted to withdraw or diminish any of the benefits to its em- ployees provided for under the terms of such contracts, but that all such benefits recited in such contracts shall be regarded as incidents of employment as a driver or driver's helper at the South San Pedro Street branch of United. It will also be recommended that United cease and desist from recognizing, dealing with, negotiating with, or otherwise regarding the Special Employees' Committee referred to in the contract of February 11, 1942, as in any manner representing any of its employees for purposes of collective bargaining with reference to wages, hours, rates of pay, hours of employment' or other conditions of em- ployment, and shall fully and completely disestablish said Special Employees' Committee as such representative. In addition to the foregoing, it will be recommended that United post certain notices at both its South San Pedro Street branch and its Hollywood branch with reference to compliance with the recommendations herein contained and that National, on behalf of itself, Linen Service and United, shall cause certain notices with reference to compliance with the recommendations herein contained, to be published for a period of four consecutive months in "Linenews," the official house organ of the National system, and distributed in the usual manner among all the employees of National, Linen Service and United. Upon the basis of the above findings of fact and upon the, entire record in the case the undersigned makes the following : CONCLUSIONS OF LAW 1.'Laundry Workers International Union, A. F of L ; Laundry and Linen Supply Drivers, Local 928. A F of L.; and Amalgamated Clothing Workers of America, Laundry Division, Local 357, C. I. 0, are respectively labor organizations, within the meaning of Section 2 (5) of the Act. 2 National Linen Service Corp, Linen Service Corporation of Texas and United Linen Supply Co. and each of them is an employer of the employees at the Hollywood and South San Pedro' Street branches, within the meaning of Section 2-(2) of the Act. 3. All employees engaged as drivers and drivers' helpers at the, respondents' South San Pedro Street branch in Los Angeles, California, exclusive of super- 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visors, constitute a unit appropriate for the purposes of collective bargaining, within the-meaning of Section 9 (b) -of the Act. :a 4 Laundry and Linen Supply Di fivers, Local 928, A. F of L, was on January 9; 1941, and at all tunes since said date has been the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a), of the Act. 5 By refusing on January 10, 1941, and at all times thereafter, to bargain collectively with Laundry and Linen Supply Drivers, Local 928, A F of L, as the exclusive representative of all of-its employees in said unit, the respondents and each of them have engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 6 By refusing on February 16 and 19, 1942, and at all times thereafter to meet with the grievance committee duly appointed by a majority of the drivers and helpers, at the South San Pedro Street branch, respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of "the Act. 7 By interfering with and dominating their employees in the organization of the- Special Employees' Committee and by entering into a contract with said Special Employees' Committee and individual contracts subsidiary thereto, with the respective individual employees, as a result of such interference and domina- tion, the respondents and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 8 By discriminating in regard to the hire and tenure of employment of Lenora Drew, Nels C. Sorensen, Carl NV. Geisen, Charles Earl Flanagan, Harry Steiner, William Anderson, Lee Nalley, Paul Belsher, George Elkins, Leslie Rogers, Emil Perl, James 'McNeese, Harlow Ray, Wade Campbell, Charles Kramer, George Price, Joe Woolbright, Herschel Davis, James Smith, James Fry, George Koontz, Charles Callahan, Malcolm Bixby, Claude DeBaroff, F. K Bowers, Donald Olson, and George Taylor, thereby discouraging membership in Laundry Workers Inter- national Union, A F of L. Laundry and Linen Supply Drivers, Local 928, A. F of L, and Anirllgamated`Clothing Workers 6f"America, Clothing Division, Local 357, C. I 0, the respondents and each of them-have engaged and are engag- ing in unfair labor practices,within the meaning of Section 8 (3) of the Act. 9 By interfering with; restraining, and coercing their employees in the exer- cise of the rights guaranteed in Section 7 of the Act the respondents and each of - them have engaged in and are engaging in unfair labor practices within the meaning of Section S (1) of the Act 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 11 In terminating the employment of Delmer Thorne, Walter Lyons, and Elbert l'1 Adamson,, respondents have engaged in no unfair labor practices within the meaning of the Act. - RECOMMEND 1TIONS Upon the basis of the, above findings of fact and conclusions of law the under- signed recommends that the respondents National Linen Service Corp.; Linen` Service Corporation of Texas, and United Linen Supply Co, and each of them, and their `and each of thdir'bfiicer's,.'agerits, representatives, successor's, and assigns, shall: - 1 Cease and desist from (a) Discouraging membership iii Laundry Workers International Union, A! F. of L.; Laundry and Linen Supply Drivers, Local 928, A. F of L ; and Amalgamated Clothing Workers of America, Laundry Division, Local 357, C I 0., t NATIONAL LINEN SERVICE CORP. 239 or any other labor organization of their or any of their said employees or in any other manner discriminating in regard to their hire-or tenure of employment or any term or condition of employment ; (b) Dominating or interfering with the administration of,the Special Em- ployees' Committee or with the formation or administration of any other labor organization of their or any of their employees and from contributing support to said Special Employees' Committee or to any other labor organization of their or any of their employees, and giving effect to any contract or contracts they or any of them may have entered into with the said Special Employees' Committee or with their or any of their individual employees'by virtue of the terms of any such contract entered into with the Special Employees' Committee, provided that in compliance herewith, the respondents and any of them shall not withdraw or diminish any of the benefits to their or any of their employees granted under the terms or provisions of such contract or contracts with respect to wages, hours of employment or vacations ; (c) Refusing to bargain collectively with Laundry and Linen Supply Drivers, Local 928, A. F. of L., as the exclusive representative of all drivers and drivers' helpers employed at the South San Pedro Street plant in Los Angeles, California, exclusive of supervisors; (d) In any other manner interfering with, restraining, or coercing their or any of their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of col- lective,. bargaining or any other mutual xaid and protection, as, guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act : (a) Offer to Lenora Drew, and each and every of the other persons listed on Appendix A attached hereto, immediate and, full reinstatement to the former or substantially equivalent positions last occupied by them at the respec- tive branches at which they were, last employed, without prejudice to their seniority and other rightstiand privileges, provided that in the event any of said employees shall fail for a period of thirty (30) days after receipt of the offer of reinstatement made in writing by the respondent, to 'report for employment pursuant to said offer, the obligation to reinstate such of said employees as shall so fail to report shall be terminated, except that in the event any of said persons shall at the time of said offer be in the armed forces of the United States, such persons shall be entitled to reinstatement upon demand at any time within forty (40) days after honorable discharge from the armed forces of the United States ; (b) Make the said 'Lenora Dre`ty and each and every of the other persons listed on Appendix A attached hereto, whole for any loss of pay they may4 have suffered as the result of the respondents'^discrimination against them, by payment to each of them of a sum of money equal to that which each normally would have received as wages and bonuses, if any, in the employment of the respondents, during the period from the date of discrimination against him to the (late of the'respondent's offer of reinstatement, less his net earnings 45 during said period ; ' (c) -Withdraw all recognition from the Special Employees' Committee or their successors, if any, as the representative of any of the employees of the respondents or any of them, for the purpose of'dealing with the respondents or any of them, concerning grievances, labor disputes, rates of pay. wages, hours of employment '5 See footnote 44,, supra. 240- ployees' Committee as such representative ; DECISIONS OF NATIONAL,-LABOR ,RELATIONS BOARD or other conditions of employment, and completely disestablish the Special Em- (d) Upon request, bargain collectively with Laundry and Linen Supply Drivers, Local 928, A. F.,of L, as the exclusive representative of all employees.engaged as drivers, and drivers' helpers at the respondents' South San Pedro Street branch in, Los Angeles, California, exclusive of supervisors. in respect td rates of 'pay, wages„hours of employment, or other conditions of employment; (e) That the respondent United Linen Supply Company post immediately" in conspicuous places throughout both its plants in Los Angeles, California, and maintain for a period of at least sixty (f0), consecutive days from the date of posting. notices to its employees stating (1) that said respondent will not engage in the conduct from which it is ordered to cease and desist in' paragraphs 1 (a), (b)', (c), and (d) of these recommendations; (2) that said'respondent will take the affirmative -action set forth in paragraphs 2 (a), (b), (c), and (d) of these recommendations ; (3) that the contract of February 11, 1941, entered into with the Special Employees' Committee and all the individual contracts subsidiary thereto are set aside and held at naught, but that none of the benefits granted to said employees under.the provisions of such contract or contracts, with reference to wages, rates of pay, hours of employment or vacation with be diminshed or withdrawn but will remain in full force and effect ; and (4) that the respondents' employees are,free to become and remain members of Laundry Workers Inter- national Union, A F• of 'L ; Laundry Linen Supply Drivers, Local 928, k F.' of L. ; or Amalgamated Clothing Workers of America, Laundry Division, Local -357, C., I. 0., and that the said respondents will, not discriminate against any employee because of membership in or activity on behalf of those organizations or any of them or any other labor organization (f) That respondent National cause to be published in the monthly house oigan known as "Linenews," on behalf of itself, Linen Service and United, for a period of four consecutive months, and to be distributed among the employees of National, Linen Service and United,in the same manner in which the said paper has here- tofore,been distributed, a. notice that the said respondents and each of them will not engage in the conduct from which it is recommended that they and each' of them'cease and desist in paragraphs '1 (a), (b), (c), and (d) of these recom- mendations, (2). that- the respondents will take the affirmative action set out in paragraphs 2 (a), (b), (c),-and (d) of these recommendations, and that the em- ployees of each of said respondents, are free to become or remain member's of Laundry Workers International Union, A. F. of L, Laundry and Linen Supply Drivers, Local 928, A. F. of, L., and Amalgamated Clothing Workers of America, Laundry Division., Local 357, C I. 0 ,,and that the respondents and each of,them will not discriminate against any employee ^because_of membership in or activity on behalf of those or-any other labor organizations ; (g) Notify the Regional Director for the Twenty-first Region in,writing within twenty (20) days from the receipt of this Intermediate Report what steps the respondents have,taken to comply therewith. It is also recommended that insofar as the same pertains'to the alleged dis- criminatory discharges of Delmar Thorne, Walter Lyons, and Elbert M. Adamson, the complaint herein be dismissed It is further recommended that unless on or before twenty (20) days from the date of the receipt of this Intermediate Report the respondents and each of them shall notify said Regional Director in writing that they will individually comply ,,with the foregoing recommendations the National Labor Relations Board issue an order requiring them to take the action aforesaid. - As provided in Section 33 of Article II of the Rules,and 'Regulations of the National Labor Relations Board, Series 2-as amended, any party may within NATIONAL LINEN SERVICE CORP. 241 thirty (30) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington,'D C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part'of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with, the original and four copies of, a brief in support thereof As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within twenty (20) days after the date of the order transferring the case to the Board ' . I , R N. DENHAM, Dated : October 6, 1942 - Trial Examiner. APPENDIx A Lenora Drew; inside plant worker. discharged June 5, 1939. Nels C. Sorensen, driver, discharged March 28, 1941. Charles E. Flanagan, driver, discharged April 4, 1941. Carl W. Geiseu, driver, discharged April 22. 1941. Harry Steiner, driver, discharged 'May.23, 1941. William Anderson, driver, June 20, 1941. Lee Nalley, driver, discharged August 12, 1941. Paul Beisher, driver, discharged August 13, 1941. George W Elkins, driver, discharged September 27, 1941. Emil Perl; inside plant worker, discharged October 18, 1941. Leslie Rogers, driver, discharged October 21, 1941. James McNeese, driver, discharged February 21, 1942. Harlow Ray, driver, discharged February 21, 1942 Wade Campbell, driver, discharged 'February 21, 1942. Charles Kramer, driver, discharged February 21, 1942. George"Price, driver, discharged' February 21, 1942. Joe Woolbright, driver, discharged February 21, 1942. Herschel Davis, driver, discharged Februiry 21, 1942. James Smith, driver, discharged February 21, 1942 James Fry, driver, discharged February 21, 1942. George Koontz, driver, discharged February 21, 1942. Charles Callahan, driver, discharged February 21, 1942. Malcolm Bixby, driver, discharged February 21, 1942.- Claude DeBaroff, drrder, discharged February 21, 1942 F. K Bowers, driver, discharged February 21, 1942. Don Olson, driver, discharged February 21, 1942. George Taylor, route manager, discharged February 21, 1942.