Modern Cleaners Co.

MODERN -CLEANERS COMPANY 37 SENTATIVE GROUP, the GRIEVANCE COMMITTEE, the JOB EVALUA- TION COMMITTEE, the CLOTHING COMMITTEE, the BENEFIT FUND COMMITTEE, and the ELECTION COMMITTEE, or dominate or inter- fere with the formation or administration of, or contribute finan- cial or other support to, any other labor organization of our employeesr WE WILL NOT recognize or in any other manner deal with the above-named Group or Committees, or any successor thereto, as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment. WE WILL NOT otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE HEREBY disestablish the EMPLOYEE REPRESENTATIVE GROUP, the GRIEVANCE COMMITTEE, the JOB EVALUATION COMMITTEE, the CLOTHING COMMITTEE, the BENEFIT FUND COMMITTEE, and the ELECTION COMMITTEE, as the representatives of any of our em- ployees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. SHARPLES CHEMICALS, INC., Employer. Dated -------------------------- By -------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. LAURA GIALLANZA, AN INDIVIDUAL , D/B/A MODERN CLEANERS COMPANY, QUALITY CLEANERS COMPANY, AND MAY CLEANERS COMPANY and LOCAL No. 65, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. L. Case No. 3-CA-f98. July 8,1952 Decision and Order On December 12, 1951, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. The Trial Examiner also found 100 NLRB No. 17. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent had not engaged in certain other unfair labor practices and recommended that those allegations of the complaint be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report,2 the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modi- fications. 1. Like the Trial Examiner, we find on the record as a whole that Donald Zirkelbach was discharged because of his union and concerted activities in violation of Section 8 (a) (1) and (3) of the Act, and not for the reasons assigned by the Respondent. 2. We find, as did the Trial Examiner, that the Respondent dis- charged employees Kinne, Wyckoff, Gerould, Carey, Coogan, Lodato, and Furlong because of their protected union and concerted activity in refusing to work unless Zirkelbach and Stuart were reinstated, and therefore violated Section 8 (a) (1) and (3) of the Act.' We find it unnecessary, however, to adopt the Trial Examiner's speculative findings with respect to the G. C. Conn case. 3. In concluding that the Respondent discriminated against Ivan Colegrove, the Trial Examiner found that he was not a supervisor, as urged by the Respondent. We do not agree. The record shows that Colegrove was classified by the Respondent as foreman of the wool and silk finishing department; that he re- ceived the same rate of pay as Edward Brown, the foreman of the drivers and whom the Trial Examiner found to be a supervisory em- ployee; and that Colegrove's next job with a competitor of the Re- spondent was that of shop superintendent; this, according to Cole- grove's testimony, entailed the "same sort of work" he had performed with the Respondent. In view of the foregoing and the absence of any countervailing evidence, we find that Colegrove was a supervisor within the meaning of the Act. We therefore further find that, under "Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson], 2 The Intermediate Report contains certain typographical errors with respect to the following citations, which are hereby corrected : p. 22, footnote 30, Capital City Candy Co., •71 NLRB 447; Twin City Milk Producers Assn., 61 NLRB 69; Schramm and Schmeig Com- pany, 67 NLRB 980. N. L. R B. v Kennametal, Inc., 182 F. 2d 817 (C A 3) ; N. L. R. B v. Tovrea Packing Ca, 111 F. 2d 626 (C A 9) ; N. L. R. B. v. National New York Packing d Shipping Co , Inc , 86 F 2d 98 (C A 2) : American Manufacturing Company of Texas, 98 NLRB 226. MODERN CLEANERS COMPANY 39 the circumstances of this case, Colegrove's discharge was not violative of the Act .4 4. We agree with the Trial Examiner that the Respondent violated the Act in soliciting individual strikers to abandon the strike and re- turn to work. In so agreeing, we are satisfied that such solicitation constituted an integral part of a pattern of illegal opposition to the purposes of the Act as evidenced by the Respondent's entire course of conduct 5 Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Laura Giallanza, an indi- vidual, d/b/a Modern Cleaners Company, Quality Cleaners Company, and May Cleaners Company, Hornell, New York, and her agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local No. 65, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., or any other labor organization of her employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Dominating and interfering with the formation and admini- stration of Modern Cleaners Employees Association, or the formation and administration of any other labor organization of her employees, and from contributing support to it or to any other labor organization of her employees. (c) Interrogating her employees concerning their union or con- certed activities; 'sponsoring petitions which provide for employees to reject their collective bargaining agent; granting wage increases to striking employees during a strike; and soliciting individual em- ployees to discontinue or abandon strike activity. (d) In any other manner interfering with, restraining, or coercing her employees in the right to self-organization, to form labor organi- zations, to join or assist the above-named labor organizations or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- 4N. L R. B v. Edward G Budd Manufacturing Co., 169 F 2d 571 (C. A. 6) cert. denied 335 U. S. 908 ; Palmer Manufacturing Corporation, 94 NLRB 1477; Accurate Threaded Products Company, 90 NRLB 1364 ; Pacific Gamble-Robinson Company, 88 NLRB 482. e See The Texas Company, 93 NLRB 1858; American Manufacturing Company of Texas, 98 NLRB 226. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Donald Kinne, Harry E. Wyckoff, Richard Gerould, Henry L. Carey, Donald Zirkelbach, John L. Coogan, Salvatore E. Lodato, and Robert Furlong, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make whole each of said employees in the manner set forth in section V of the Intermediate Report, entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (b) Disestablish and withdraw all recognition from Modern Clean- ers Employees Association as a representative of any of her employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely dis- establish said organization as such representative. (c) Post at her plant in Hornell, New York, copies of the notice attached hereto and marked "Appendix A." s Copies of such notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Third Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS.FURTHER ORDERED that the complaint bet and it hereby is, dis- missed, without prejudice, insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of Wayne Stuart. IT IS ALSO FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of Ivan Colegrove, Marian Albert, Lena Rosell, Esther Moran, Mildred Brown, Beatrice ReCouper, and Duane Powers. s In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." MODERN CLEANERS COMPANY Appendix A NOTICE TO ALL EMPLOYEES 41 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that : I WILL NOT interrogate employees concerning their union or concerted activities; sponsor petitions which provide for em- ployees to reject their collective bargaining agents; grant wage increases to striking employees during a strike; and solicit in- dividual employees to discontinue or abandon strike activity. I WILL NOT in any other manner interfere with, restrain, or coerce my employees in the exercise of their right to self-organ- ization, to form labor organizations, to join or assist LOCAL No. 65, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS; WARE- HOUSEMEN AND HELPERS OF AMERICA, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. I WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Donald Kinne Donald Zirkelbach Harry E. Wyckoff Salvatore E. Lodato Richard Gerould Robert Furlong Henry L. Carey John L. Coogan I HEREBY disestablish MODERN CLEANERS EMPLOYEES ASSOCIA- TION as the representative of any of my employees for the purposes of dealing with me concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, and I will not recognize it or any successors thereto for any of the above purposes. I WILL NOT dominate or interfere with the formation or ad- ministration of any labor organization or contribute financial or other support to it. All my employees are free to become or remain members of LocAL No. 65, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. L., or any other labor organization. I will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any em- ployee because of membership in or activity on behalf of any such labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. LAURA GIALLANZA, an individual, d/b/a MODERN CLEANERS COMPANY , QUALITY CLEANERS COMPANY, AND MAY CLEANERS COMPANY, Employer. Dated--------------------------- By--------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by Local 65, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., herein called the Teamsters, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, by the Regional Director for the Third Region (Buffalo, New York), issued a complaint dated January 29, 1951, against Laura Giallanza, an individual, d/b/a Modern Cleaners Company, Quality Cleaners Company, and May Cleaners Company, herein called the Respondent, alleging that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices, the complaint alleges that (a) The Respondent on or about January 3, 1950, did discharge Donald Kinne, Harry E. Wyckoff, Richard Gerould,' Henry L. Carey, Donald Zirkelbacb, Wayne Stuart, John L. Coogan, Salvatore E. Lodato, and Robert Furlong, and on or about January 16, 1950, did discharge Marion Albert, and at all times since these dates refused and failed to reinstate said employees, for the reason that they joined or assisted Modern Cleaners Employees' Protective Association, herein called the Association where feasible, or Local 65 of the Teamsters, or engaged in concerted activity for the purpose of collective bargaining or other mutual aid or protection ; (b) the Respondent did on or about January 11, 1950, initiate, form, sponsor, and promote Modern Cleaners Employees' Association, herein on occasion called the "Independent," and from on or about January 11, 1950, to date has assisted, dominated, contributed to the support of, and interfered with the administration of, the "Independent"; (c) the Respondent by her agents and ' Named as Richard Gerald in the complaint. His real name is Richard Gerould. This was corrected at the hearing herein by the General Counsel's general motion to have the complaint conform to the proof as regards minor matters such as names, dates, etc., which was granted by the undersigned without objection. MODERN CLEANERS COMPANY 43 supervisory employees, including Charles J. Giallanza, Sr., Charles J. Giallanza, Jr., Paul Nicholson, Edward Brown, and Ralph Locker, from on or about January 2, 1950, to date has engaged in the following acts and conduct: (1) Interrogated her employees concerning their union membership and activity; (2) solicited her employees to abandon a strike or other concerted protective activity and return to work; (3) granted a pay increase to induce and encourage her employees to abandon a strike and their other concerted activities and to refrain from assisting, becoming members or remaining members of the Association ; and (4) urged and persuaded her employees to join or become members of the "Inde- pendent" and to refrain from becoming members of or from assisting the Asso- ciation or the Teamsters; (d) on or about January 5, 1940, the employees of the Respondent at her Hornell, New York, plant ceased work concertedly and went on strike, and that the strike was caused and prolonged by the unfair labor practices of Respondent as described above; (e) subsequent to the strike described above, the following employees, Ivan Colegrove, Esther Moran, Mildred Brown, Lena Rosell, Beatrice ReCouper, and Duane Powers applied for reinstatement to their former or substantially equivalent positions, and that the Respondent did refuse or failed to reinstate them to their former or sub- stantially equivalent positions or employment, for the reason that they joined or assisted the Association, or engaged in concerted activity for the purpose of collective bargaining or other mutual aid or protection ; and (f) by the conduct described above the Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing her employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the Act. The Respondent filed an answer on or about February 19, 1951, in which it admitted certain jurisdictional facts, denied that the charging union and the Association were and are labor organizations, and denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Hornell, New York, on March 27, 28, 29, and 30, 1951,2 before the undersigned Trial Examiner. The General Counsel, the Respondent, the Association, and the Independent were represented by counsel, and the Teamsters by a lay representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the case, the Respond- ent moved to dismiss the complaint, ruling thereon was reserved by the Trial Examiner. It is hereby denied in part and granted in part as will be indicated hereinafter. At the same time the General Counsel moved to conform the plead- ings to the proof as regards names, dates, and other minor variances. It was granted without objection by the undersigned. Though given an opportunity, none of the parties desired to present oral argu- ment at the conclusion of the hearing. The General Counsel and the Respondent filed briefs with the undersigned. In addition, counsel for the Respondent filed proposed findings of facts and conclusions based thereon. They are disposed of hereinbelow. The undersigned rules as follows on the Respondent's proposed findings of fact : He accepts Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 21, 23 (a), (c), (d), (e), (f), 2 The delay in the issuance of the Intermediate Report herein was occasioned by the illness of the Trial Examiner during the months of May, June, July, August , September, and October. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 27, 31, 33; he rejects 12, 13, 14, 15, 16, 17, 18, 19, 20,3 22, 23 (b), 25, 26, 28,4 30, 32, 34, 35, and all its subdivisions, 36, 37, 38, 40, 41, 43, 44, 45, 46, and- 47. Proposed findings 24, 29, 39, and 42 are disposed of as follows : 24 is accepted except as to the last sentence thereof which is rejected; 29 is accepted in part but that portion thereof beginning with "The fact that she ceased working etc." is rejected; 39 is accepted except as to Ivan Colegrove; 42 is rejected insofar as it relates to Ivan Colegrove in proposed finding 39. The Respondent's proposed "Conclusions of Law" are rejected in their entirety. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is engaged in the retail dry cleaning and laundry business, having her plant in Hornell, New York. During the year 1949, she maintained 20 pickup and delivery routes, 15 of which operated exclusively within the State of New York, 4 of which operated partly in the State of New York and partly in the State of Pennsylvania, and 1 of which operated exclusively within the State of Pennsylvania. Hornell is located near the border of the State of Pennsylvania. In 1949 the Respondent employed 9 drivers. Each of them operated 2 or 3 of the above routes, making 2 trips weekly on each route. On these trips, they picked up the work to be serviced by Respondent and brought it to Respondent's plant in Hornell. The work is processed there and then delivered by the drivers on their second trip of the week. In some locations, the Respondent maintained what are known as "drops" or "agencies," that is various stores, etc., operating on a commission basis, where laundry work was left by residents of such locations and from which the drivers picked up the work, took it to Hornell for processing, and when finished returned it to the proper location. These "drop" or "locations" constitute but a small portion of the Respondent's business, the major portion thereof resulting from pickups by the drivers from residences of their customers on the various routes above described. Respondent owns certain trucks which are operated in the name of Quality Cleaners Company. The latter Company does the same type of work as does Respondent Modern Cleaners and all its work is processed at the same plant. Charles Giallanza, Jr., son of Respondent Laura Giallanza, owns and operates five retail stores in New York under the name May Cleaners Company. The income received from both of the above-named Companies is included in the income fig- ures hereinafter set forth. During the calendar year of 1950 the Respondent's gross income from the sources described above was $164,887.43, or which $31,921.16, or 19.3 percent, was derived from customers in the State of Pennsylvania. In 1950 the Respond- ent's gross income from the same sources was approximately $131,000, of which $25,283 was derived from customers in the State of Pennsylvania, or approxi- mately 19.3 percent. The above facts concerning the Respondent's business for the years 1949 and 1950 are premised on the pleadings, stipulation of the parties, and the "Findings E As a whole, proposed finding 20 is not in accord with the testimony adduced at the hearing herein and the undersigned's findings based thereon. 4 The fact that Furlong may or may not have been a member of either the Association or the Teamsters is immaterial since the complaint also alleges "concerted activities." Hence, this allegation is sufficient to cover Furlong's situation. (See J. B. Wood, an indi- vidual, d/b/a Wood Manufacturing Company, et al., 95 NLRB 633.) MODERN CLEANERS COMPANY 45 of Fact" as to the Respondent's business in the case of "Laura Giallanza, doing business under the trade name and style of Modern Cleaners Company and Chauf- feurs, Teamsters, Warehousemen & Helpers, Local Union No. 65, AFL and Mod- ern Cleaners Employees' Association," before "The State Labor Relations Board," 13 SLRB No. 72, Case No. W. U.-654. The New York State Labor Relations Board dismissed the above case, on April 7, 1950, "without prejudice to refiling with this Board in the event that the National Labor Relations Board declines jurisdiction." In view of the foregoing and upon the record as a whole, the undersigned is convinced and finds that the Respondent herein is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. At times the flow of commerce across the State lines of New York and Pennsyl- vania is small, but even so it constitutes almost 20 percent of the total gross of the Respondent's business, and is in excess of $25,000 for the years 1949 and 1950. This, however, is of no moment in view of the Board 's recent declaration of policy wherein it set $25,000 per annum as the minimum figure before it will assert jurisdiction . Since $25,283 is in excess of that amount , jurisdiction of the Board is established. Again, the Board on several occasions has asserted jurisdiction over businesses similar to that of the Respondent herein .' At all times material herein the Respondent employed approximately 30 persons. II. THE OEGANIZATIONS INVOLVED Upon the entire record in the instant case the undersigned finds that the organizations listed herein below were organized for the purpose of and in fact functioned as vehicles for the Respondent's employees to bargain collectively with her on matters concerning their wages , hours, grievances, and other con- ditions of employment, and hence are labor organizations within the meaning of Section 2 (5) of the Act: (a) Local 65, International Brotherhood of Teamsters, Chauffeurs, Warehousemen , and Helpers of America , AFL; (b) Modern Cleaners Employees Protective Association ; ( c) Modern Cleaners Employees Association. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The discharge of Donald Zirkelbach' and Wayne Stuart 1. Respondent's organizational setup As indicated above, the Respondent is a privately owned company with its principal place of business in Hornell , New York. In addition it operates two branch offices at Wellston and Cannister, New York. Hornell is near the Penn- sylvania State line and in the course of its business the Respondent operates several routes in Pennsylvania . At all times material herein the Respondent employed eight driver-salesmen. It was their job to service the various routes at regular intervals, solicit new business , call on established customers, pick up clothing to be dry cleaned and laundered, and to deliver and collect for the serv- ices rendered. The trucks are owned by the Respondent. The Respondent's supervisory hierarchy during the period of time involved herein was as follows : Laura Giallanza, the nominal owner of the Company ; Charles Giallanza, Jr., her son, and business manager ; Charles Giallanza, Sr., ° See N. L. R. B. v. White Swan Co, 118 F. 2d 1002, cert. den. 314 U. S. 648. ° The Respondent's records show a "Gerald" Zirkelbach first went to work on October 17, 1949. This name appears on the payrolls for the weeks ending October 22 and 29, 1949. (See General Counsel's Exhibit No. 10 .) Thereafter the name of Donald Zirkelbach appears. From the record as a whole the undersigned Is convinced and finds that the name "Gerald" is erroneous and should have read "Donald " 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her husband, who while not one of the registered owners of the Company is never- theless active in its management, which will be shown in more detail hereinafter; Paul Nicholson, plant superintendent ; and Edward Brown, route manager in charge of the driver-salesmen. The Respondent's plant in Hornell, New York, is a 2-story building. On the first floor it has a collecting and delivery station where local customers bring their garments for dry cleaning and laundering. Upstairs is located the main plant and the business office. At all times material herein Margaret Brown had charge of the downstairs station, and Sabra C. Wing the upstairs business office. In all the Respondent had in her employ at this time approximately 32 employees including clericals but excluding those in a supervisory capacity. 2. The discharge of Donald Zirkelbach' Zirkelbach was hired by the Respondent sometime around the middle of October 1949 as a driver-salesman He was assigned to "Route No. 2" which includes routes in both New York and Pennsylvania. During the first 2 weeks of his employment he went with Edward B. Brown, who at the time was assigned to Route No. 2. About November 1, 1949, the route was turned over to him, and from that date until his discharge on January 2, 1950,8 he was on his own. Brown was promoted to route supervisor after be turned the route over to Zirkelbach. Thereafter, as was the custom, Brown made periodic trips with Zirkelbach to check on his work and to assist him in any manner that he could. Brown on several occasions while he was on the route with Zirkelbach, mentioned to him the fact that it was the policy of the Respondent to secure signed contracts from its driver-salesmen for their mutual aid and protection. At the same time Brown and Giallanza, Jr., were discussing the contract with other driver-salesmen. The contract in question is a standard one and used throughout the dry-cleaning industry. Its pug pose is obvious. It is drafted in language that will protect an employer in the event that a driver quits and then solicits business on his former route for a competitor. The Respondent had had contracts with its driver- salesmen in the past and at least one of her drivers, Salvatore Lodato, was then under contract. In the latter part of December 1949, several of the drivers became concerned about the Respondent's insistence on signed contracts and decided to seek the advice of an attorney in this regard. Accordingly, on Saturday morning, De- cember 31, 1949, drivers Wayne Stuart and Dick Gerould called on Sherman Shults, a local attorney, and submitted to him a copy of the proposed contract for his consideration. On the same afternoon drivers Donald Kinne, Jack Coogan, and Henry Carey also visited Shults ' office for this purpose. The ques- tion posed by the drivers to Shults was whether or not the signing of the contract would be binding upon them and its legal effect, if any. Shults informed them that he would look up the New York law in this regard and advise them later. Shortly after the drivers left his office Shults called Stuart and advised that since five of the drivers had sought his advice as regards the legality of the con- tract in question, that it might be well to have all the drivers meet with him. 'r Except where such matters as conflicts in the evidence and credibility of witness are discussed hereinbelow, the findings in this section of the Intermediate Report are made upon evidence which is either undisputed or which is at variance only as to immaterial details, or are made upon the preponderance of the reliable, probative , and substantial evidence in the record considered as a whole. s The Respondent contends Zirkelbach was discharged December 31, 1949. The under- signed finds to the contrary for reasons which will 'be shown hereinafter. MODERN CLEANERS COMPANY 47 As a result of this suggestion a meeting of all the drivers was held in his office on Monday afternoon , January 2, 1950, and an agreement was signed authorizing and designating him as their collective bargaining representative to negotiate with the Respondent on wages and other conditions of employment. At the same time, at Shults' suggestion, the drivers formed an independent labor or- ganization. They decided to call the organization "Modern Cleaners Employees Protective Association" and elected the following officers : Salvatore Lodato, president, Donald Kinne, secretary and treasurer. In addition to the foregoing, Shults discussed the Respondent's proposed contract with the drivers and ad- vised them that in its present form it was legal and binding upon each driver who signed it. He also advised them not to sign it until he discussed the matter' with the Respondent as regards certain modifications and demands which he felt should be embodied therein. Shortly after the meeting broke up Shults called Giallanza, Jr., and advised him that he represented the Respondent's drivers and wanted to discuss the proposed contract with him. Giallanza agreed to meet with Shults that same evening at 8: 30 p. in. Shults' testimony as to what transpired at this meeting, which the undersigned credits, is set forth herein below. Q. Did you meet Mr. Giallanza, Junior, at 8: 30? A. Yes, Mr. Horey, my associate and I met with Mr. Giallanza in my office at 8: 30. Q. What transpired at this meeting? A. Well, he told-I told Mr. Giallanza that I had- the same thing that I told him on the telephone , that I represented all of the drivers , and that I wanted to discuss the matters concerning their employment with him, and he said, "Well, who do you represent?" And I said, "Well, you know who I represent. I represent all your drivers." "Well, what are their names?" And I said, "I don't think that is important; if you-" I said, "If you want to recognize me as their bargaining agent I will show you where they have signed an authorization for me and we'll compare those signatures on my authorization with your payroll. But it is only on the condition that you will recognize me as the agent and enter into a contract with me as agent for these employees." (Emphasis supplied.] Trial Examiner SHAW : Pardon me. Will you establish the date of this conversation? The WITNZas : This was Monday afternoon, January 2nd. Monday night, January 2nd. Trial Examiner SHAW: Let me see the exhibit. Q. (Continued ) It was at 8:30 and he said , "Well, what do your men want ?" And I said, "We had a meeting this afternoon and organized our- selves into a group," and that we had some demands ; that in view of the fact that he had submitted a written contract to the boys , they wanted some other matters put into this contract, and I read off to him 15 demands, 13 or 15 demands, with reference to their employment. As we continued to discuss the matter he-I asked him if he was willing to talk over these demands and this contract, and he got mad-that is a characterization of his temper at that time-he says, "I will be damned if you are going to run my business . To hell with you." And he got up and walked out. Q. (By Mr. Weld ) Were these demands that you were making concerning working conditions at the plant? 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Yes, I have the demands in my file. They were read to Mr. Giallanza at that time. After leaving Shults' office, Giallanza, Jr., called several of the drivers and queried them as regards their meeting with Shults. Among those he called were Lodato, Kinne, and Zirkelbach. Zirkelbach testified that Giallanza, Jr., called him three times on the night of January 2, 1950, and asked him in the first two calls if he intended to sign the proposed contract. Zirkelbach advised him that he could not because he had authorized Attorney Shults to act as his attorney in this regard and could not do so until he talked the matter over with him. In the third and last call Giallanza, Jr., told him that it was his last chance to agree to sign the contract, and that if he didn't he "was through." Zirkelbach again, for the same reason set forth above, refused to do so. The next morning, January 3, 1950, Zirkelbach reported for work as usual and according to his uncontradicted and undenied testimony went to the Respond- ent's office and deposited the money he had collected on his route on Saturday, December 31, 1949. He further testified that it was the custom and practice for the drivers to take their collections home with them when they returned to the plant at night from their routes. Zirkelbach also testified that after he turned in his receipts for December 31, 1949, as described above, he met Giallanza, Jr., in front of the plant ; that the latter asked him in substance if he had changed his mind about signing the contract; that he replied in the negative; and that Giallanza, Jr., again told him that he was through. Present at the time were drivers Richard J. Gerould and Wayne Stuart. Following the above conversation Zirkelbach went around to the garage where the rest of the drivers were assembled. What transpired there will be set forth in detail hereinafter. The Respondent contends that Zirkelbach was discharged for cause and in support of her contention offered the testimony of Giallanza, Jr., and Edward B_ Brown, route manager. Charles Giallanza, Jr., testified that, Brown informed him that while driving Zirkelbach's route during the latter's absence from work in November 1949, he discovered that Zirkelbach had not been calling on certain regular customers; that he had been informed by customers that Zirkelbach had been drinking while servicing the route ; and that his customer charges on the books were excessive.' He further testified that Zirkelbach kept cash out of his daily collections for his own personal use; that he neglected his work by working as a part-time bar- tender ; that he had been informed that on at least one occasion he had absented himself from work on a pretense of illness when he was in fact on a "drunk"; and that in view of the above-described derelictions of duty and misconduct on the routes serviced by Zirkelbach, he discharged him on the night of December 31, 1949. Zirkelbach admitted that he had kept out of his daily collections various sums of money for his personal use. However, the Respondent's records indicate that it was common practice for the driver-salesmen to do so. For example, the daily cash record of each driver for the period that Zirkelbach was employed shows that the following drivers followed this practice :'o 9It was the Respondent's policy for the drivers to leave the garments at the homes of her customers in the event that they were absent when they were delivered and to turn the unpaid delivery slip in to the office as a cash item . They were then expected to call back at the customer's home, collect the item and turn the cash in to the office and receive credit for it. 10 The undersigned sets forth herein only those cash items which are in excess of Rt- MODERN CLEANERS COMPANY 49 Harold Carey $20.00 Donald Kinne 20.43 Sal Lodato 5.91 B. D. Brown 4.77 Robert Furlong 34. 92 Harry Wyckoff 18.09 Richard Gerould 42.26 Wayne Stuart 10.40 Richard Reynolds 1.40 Jack Coogan 1.25 Howard Zimmerman 4. 79 Donald Zirkelbach 88.46 [includes cost of a uniform] As to the excessive charges that Zirkelbach is alleged to have carried on his account, the Respondent's own records show that they totaled $10.20 for the entire period of his employment u The Respondent offered no substantial evidence to corroborate Brown's testi- mony as regards Zirkelbach's alleged misconduct and negligence while servic- ing his route. For example, the Respondent failed to produce at the hearing a single customer, as a witness, who allegedly paid Zirkelbach for cleaning and the like and which he failed to account for at the office. The record clearly shows that Brown's testimony in this regard was based upon information ad- mittedly secured after Zirkelbach's discharge. Nor is there any substantial evidence in the record to corroborate Brown's testimony that Zirkelbach's ab- sence from work during November 1949 was due to his imbibing to excess. Hence Zirkelbach's testimony that his absence was due to being kicked by a horse, stands undenied in the record and is credited by the undersigned. The record shows that shortly after Zirkelbach was discharged he applied for a position with The National Biscuit Company and gave the Respondent as a reference in his application. Giallanza, Jr., admitted at the hearing herein that he received an inquiry from this company as regards Zirkelbach and that he did not inform them that Zirkelbach had misappropriated funds while he was em- ployed by the Respondent. Concluding Findings In view of the foregoing and upon the record as a whole the undersigned is convinced and he so finds that Zirkelbach was discharged by the Respondent on the night of January 2, 1950, and that the Respondent reaffirmed her action in this regard on the morning of January 3, 1950; that his discharge was because of his concerted activities with other employees in seeking a modification of the terms of the contract proposed by the Respondent, and not for the reasons ad- vanced by the Respondent at the hearing herein which the undersigned finds to be mere pretext. As indicated above it was the terms of the proposed contract that motivated the drivers to seek the advice of Attorney Shults. In the course of their meeting with him questions concerning wages, hours, and other conditions of employment were discussed. As a result of these discussions Modern Cleaners Employees Protective Association was formed. It is well settled that such concerted ac- tivities on the part of employees is protected by the Act. u The undersigned is not unmindful of the fact that certain of the Respondent 's exhibits from which the above figures were taken were rejected at the hearing because of their questionable authenticity ; however, since he makes no specific finding in this regard, he is of the opinion that they too may be used for the purpose of presenting the over-all picture. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In reaching his conclusion as regards the discharge of Zirkelbach, the under- signed took into consideration the following factors. In the first place the answer of the Respondent is in effect a general denial of each and every allegation in the complaint except as regards to certain formal matters. An examination of the record clearly shows that its defense to Zirkelbach's dis- charge is predicated in its entirety on the premise that he had been derelict in his duties, and had conducted himself in an improper manner while servicing his route. It is significant that the Respondent did not advance at the hearing herein as a cause of Zirkelbach's discharge his refusal to sign the proposed contract, but chose to stand on his alleged derelictions and misconduct on the route as the sole reasons for her action in this regard i$ The reasons advanced by the Respondent in justification of her discharge of Zirkelbach and the evidence offered in support thereof are hereby rejected by the undersigned for the following reasons: (1) Her contention that he had misappropriated funds and was a dishonest employee is, in the considered opinion of the undersigned, not convincing. According to Giallanza, Jr., he discharged Zirkelbach on Saturday night, December 31, 1949, upon his return to the plant from his route. Yet, in the face of her contention that Zirkelbach was dishonest, Giallanza, Jr., permitted him to take home and carry on his person his collections for the day, $38.59. According to Zirkelbach he turned the money into the office on the morning of January 3, 1950. His testimony in this regard stands undenied and uncontradicted in the record and hence is credited by the undersigned. That the Respondent would permit an employee who, to say the least, was under the suspicion of dishonesty to withhold her funds after he had been discharged doesn't ring true, and consequently its contention and evidence offered in support thereof is rejected by the under- signed. Again, the Respondent admittedly failed to report Zirkelbach's alleged dishonest practices to prospective employers shortly after his discharge. Such conduct is hardly to be expected from an employer who only recently has discharged the same individual for misappropriation of funds. (2) In support of the Respondent's contention that Zirkelbach's misconduct while serving his route was a motivating factor in its decision to discharge him she offered the testimony of Brown, the route supervisor, and Giallanza, Jr. An examination of their testimony in this regard clearly shows that it was predicated on alleged conversations between Brown and various customers on the route after Zirkel- bach's discharge. The record also shows that not a single customer who allegedly filed complaints with Brown was called as a witness to corroborate his testimony in this record. Nor was any showing made at the hearing herein that they were unavailable as such. Hence her contention in this regard is predicated on second and third degree hearsay and is rejected by the undersigned. It is well settled that Respondent must allege and prove by a preponderance of reliable, probative, and substantial evidence that an alleged discriminatory discharged employee was discharged for cause 13 Here the Respondent has failed to do so. In view of the foregoing and upon the record as a whole the undersigned is convinced and he so finds that the Respondent by engaging in the conduct described above violated Section 8 (a) (3) and (1) of the Act. 2. The alleged discriminatory discharge of Wayne Stuart At the time of the hearing Wayne Stuart was in the Armed Forces and was unable to appear and testify therein . While it is true that the General 12 See discussion infra on this point. 18 See Ohio Associated Telephone Company, 91 NLRB 162, and cases cited therein. MODERN CLEANERS COMPANY 51 Counsel offered some evidence in support of the allegation in the complaint that Stuart was discriminatorily discharged by the Respondent it was, in the considered opinion of the undersigned, not substantial enough to justify a finding to that effect. Consequently, the undersigned recommends that this allegation in the complaint be dismissed without prejudice. 3. The alleged discharge of the drivers, the strike of the inside workers, and the events that flowed therefrom a. The discharge of the drivers Shortly after discharging Zirkelbach and Stuart, Giallanza, Jr., went to the garage where the drivers were assembled preparatory to servicing their routes. He found them assembled in a group ; included therein were Zirkelbach and Stuart. Giallanza, Jr., told the drivers that he had discharged Zirkelbach and Stuart for just cause. In the discussion that followed his announcement in this regard, Sal Lodato, acting as spokesman for the drivers, protested the discharge of Zirkelbach and Stuart and requested their immediate reinstatement. Gial- lanza, Jr., refused to do so and asked the drivers to go out on their routes and promised to discuss the discharges with them later. The drivers, however, re- jected his proposal and insisted that the two dischargees be reinstated forthwith. He then turned to the drivers, who at this time were standing in a semicircle facing him, and asked each individually if he intended to take his truck out on the route. Each in words or substance in answer to this query refused to do so until the two dischargees were reinstated. Giallanza, Jr., again refused to do so and told each driver individually that he "was through," which the undersigned finds to mean "discharged." The drivers then left the garage in a body and went to the office of Attorney Shults. The above account as to what transpired at the meeting between Giallanza, Jr., and the drivers is taken from the testimony of drivers Lodato, Kinne, Zirkelbach, and Carey, which the undersigned credits and finds to be a true account thereof, for reasons which will be set forth hereinafter. Giallanza, Jr.'s testimony as regards the meeting described above is in sub- stantial agreement with that of the witnesses called by the General Counsel, except as to the actual discharge of the drivers. According to Giallanza, Jr., the drivers walked off the job after they had re- fused his request to take their trucks out on the routes and to forego their insist- ence that Zirkelbach and Stuart be restored to their jobs forthwith as a condi- tion precedent. He denied that he told each of the drivers that he was "through." In support of his testimony in this regard the Respondent offered that of Brown, her route manager, and garage employees Houghtailing and Rawady. They testified to the effect that they did not hear Giallanza, Jr., make the statement attributed to him by Zirkelbach, Lodato, Kinne, and Carey. Rawady and Brown admitted that they heard only excerpts from the conversation. Houghtailing testified in substance that he was about 12 feet from Giallanza, Jr., while he was talking to the drivers, and that he did not hear him tell the drivers that they "were through." The undersigned has carefully considered Giallanza, Jr.'s testimony as regards the circumstances surrounding the discharge of the drivers and he is convinced and finds that he told each of them individually that they "were through," (in other words discharged) when they refused to take their trucks out for reasons which have been set forth hereinabove. His finding is predicated upon Giallanza, Jr.'s entire testimony during the course of the hearing, particularly as regards 227260-53-vol. 100--5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the circumstances surrounding the discharge of Zirkelbach. Consequently, he discredits his testimony in this regard." The testimony of Brown, Rawady, and Houghtailing regarding what was said by Giallanza, Jr., in his conversation with the drivers at the time of their dis- charge has been carefully considered by the undersigned, and he is convinced and finds it to be of no probative value in view of all the surrounding circum- stances and the record as a whole. Concluding Findings The undersigned has found above that the Respondent by Giallanza, Jr, dis- charged drivers Donald Kinne, Harry E. Wyckoff, Richard T. Gerould, Henry L. Carey, John L. Coogan, Salvatore E. Lodato, and Robert Furlong on the morning of January 3, 1950, because they refused to take the trucks assigned them out on their respective routes because the Respondent discharged and refused to reinstate drivers Donald Zirkelbach and Wayne Stuart." There is ample evidence in the record to support the above finding. An examination of the credited testimony of witnesses called by the General Counsel and the Respondent clearly shows that the controversy between the Respondent and the drivers arose over the contract of employment submitted to the drivers by Giallanza, Jr. Unquestionably this was a prerogative of management and clearly involved the terms and conditions of employment of the drivers. Under- standably the drivers were concerned over the terms and conditions of the con- tract and concertedly sought the advice of Attorney Shults in this regard. The upshot of their meeting with Shults was the organization of the Modern Cleaners Employees Protective Association. Shortly thereafter Shults called Giallanza, Jr., and informed him of the drivers' action and requested a meeting with him to discuss the issues involved. Shults and Giallanza, Jr., met that evening in Shults' office. What transpired at their meeting has been set forth hereinabove and will not be reiterated here. Suffice it to say, however, that the record is clear that Giallanza, Jr., was fully advised at the meeting of the concerted ac- tivities of the drivers. This is further evidenced by the fact that Giallanza, Jr., called certain drivers after he had left Shults' office. Consequently, the under- signed finds that the Respondent was fully aware of the concerted activities of the drivers at the time she discharged them on the morning of January 3, 1950. It is significant that Giallanza, Jr., did not mention the proposed contract to the drivers at the time he discharged them. Nor is there any substantial evi- dence in the record that the Respondent relied on the refusal of the drivers (in- cluding Zirkelbach) to sign a contract of employment as a reason for their discharge. Had Giallanza, Jr,, predicated the dischargees solely on their re- fusal to sign the proposed contract, the undersigned might well have found otherwise herein under the authority of the G. C. Conn Ltd. case, 108 F. 2d 390-98, and other cases set forth in the Respondent's brief. (Absent of course a refusal by the Respondent to bargain with the drivers on the terms and condi- tions of the contract.) This Giallanza, Jr., failed to do .Under such circum- stances the undersigned finds that the cases involving management prerogatives are not applicable to the facts found hereinabove. Clearly the action of the drivers prior to and at the time of their discharge was protected concerted activity, and their refusal to take their trucks out until Zirkelbach and Stuart were restored to their jobs was for their mutual aid and protection. Consequently the undersigned concludes and finds that the Respond- 14 See supra 15 See supra as regards the discharge of Wayne Stuart. MODERN CLEANERS COMPANY 53 ent discriminatorily discharged drivers Donald Kinne, Harry E. Wyckoff, Richard T. Gerould, Henry L. Carey, John L. Coogan, Salvatore E. Lodato, and Robert Furlong, because of their union and concerted activities which is clearly violative of Section 8 (a) (3) and (1) of the Act, and in contravention of the rights guaranteed employees by Section 7 of the Act.16 b. The strike and the alleged discharge of certain inside employees Following their discharge the drivers went to Attorney Shults' office, and discussed the situation with him. During the course of the discussion Shults suggested that it might be well, under the circumstances, to have the inside em- ployees join the Modern Cleaners Employees Protective Association. The drivers agreed with Shults, and instructed him to have petitions prepared for that purpose. Then they left his office and contacted the inside employees during the day. By this means they secured approximately 20 signatures to the petitions. That same evening, Tuesday, January 3, 1050, all the employees, who had signified their desire to join the Modern Cleaners Employees Protective Asso- ciation by signing the above petitions, and the drivers met with Shults at the Hornell city hall. At this meeting the inside employees insisted that the Asso- ciation be reorganized in order to give them adequate representation in its activities. All agreed that this should be done and as a result of this action on the part of the membership of the Association new officers were selected. Sal -Lodato resigned as president and was succeeded by Ivan Colegrove, an inside employee. The discharge of the drivers was the main topic of discussion at the meeting, and it was the consensus of opinion that the inside employees would strike the plant the next morning, January 4, 1950. Shults cautioned those present against such action, and suggested that it would be best for him to first talk to Giallanza, Jr., concerning the Association's position, reinstatement of the drivers to their jobs, and recognition of the Association as the sole repre- sentative for the purposes of collective bargaining. This was agreeable to the membership. Shortly thereafter Shults called Giallanza, Jr., and advised him that he repre- sented the Association, which in turn represented a majority of all the Respond- ent's employees, and requested recognition as the sole representative for the purposes of collective bargaining. Giallanza, Jr., refused his request. Shults' version of his conversation with Giallanzo, Jr., which the undersigned credits, is set forth herein below. Well, as soon as I got home that night I called Charles Giallanza on the telephone. I reached him at about 11: 00 or 11: 30. It might have been 12:00 o'clock; it was sometime after 10: 30, after this meeting broke up, and I stated-to Charles Giallanza, Junior, then, I said, "Chuck, I want to inform you now that I represent a majority of all your workers. Not just the truck drivers, but the majority of all your workers," and he said, "Well, who are they?" And I said, "Well, the same thing goes as I told you yes- terday, that if you would like to recognize me and the Modern Cleaners Em- ployees Protective Association as a collective bargaining agent and will enter into an agreement to that effect, I will then take my petitions that I have and compare the signatures with your payroll cards so that you will know that I represent a majority of the workers. If I do not represent a 19 See Gullet Gin Company/, 83 NLRB 1, and cases cited therein ; Cudahy Packing Com- pany, 29 NLRB 836, 866, Niles Firebrick Company, 30 NLRB 426; N. L. R. B. v. Kenna- metal, Inc., 182 F. 2d 817 (C. A. 3) ; Modern Motors, Inc., 96 NLRB 964. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority of your workers, then you don't have to talk to me at all." And I said, "It is a serious proposition because I am making a demand on you now for recognition." And he said on the telephone that he would run his own business his own way. The next meeting of the Association was held at noon January 5, 1950, in Terry's Restaurant. At this meeting, the employees voted to strike the plant in protest of the action of the Respondent in discharging the drivers. Shortly thereafter the inside employees of the Respondent walked out of the plant. As indicated above, Attorney Shults cautioned the membership of the Associ- ation at the meeting on January 3, 1950, against hasty strike action because the Association was a small labor organization and not affiliated with one of the large international unions. After the strike started Shults " got in touch with the Teamsters and the Laundry Workers Union, both affiliated with the American Federation of Labor, and requested that they send representatives to Hornell to talk to the membership of the Association. In the meantime some of the em- ployees went back to work, and many of those who continued on strike were anxious to go back to their jobs. The record clearly indicates that the strike was an abortive affair, and its purpose and the consequences thereof not fully understood by the inside employees, except to the extent that it was in protest to the discriminatory discharge of the drivers'' As a result, the membership of the Association now realized the advantages of being affiliated with one of the international unions, and a meeting for this purpose was called on Saturday morning, January 7, 1950, at "Union Hall" in Hornell. Approximately 20 strik- ing employees attended the meeting. Also present were George Hart, repre- sentative of the Teamsters Union, and Michael Ervolino, representative of the Laundry Workers Union. During the course of the meeting the drivers selected Hart, and the inside workers Ervolino, as their respective representatives, and requested them to see the Respondent and endeavor to reach a settlement of the strike. The selection of Hart and Ervolino to act as their representatives was by voice vote. Hart and Ervolino met with Giallanza, Sr., and Giallanza, Jr., at the plant at 11 p. in. that evening. They told them that the striking employees were anxious to end the strike and return to work unconditionally. The Respondent agreed to restore all of the striking employees to their jobs except Ivan Cole- grove and the drivers. The Respondent refused to restore Colegrove to his job for the reason that she considered him a supervisory employee (foreman of her wool cleaning department), and hence she was not required to restore him to his position. On the following Monday, January 9, 1950, all of the striking inside employees who reported for work at the plant were restored to their jobs except Ivan Colegrove who, as pointed out above, the Respondent refused to reinstate. The following inside employees did not report to work on the morning of January 9, 1950, Esther Moran, Mildred Brown, Lena Rosell, Beatrice ReCouper, and Duane Powers. Nor is there any evidence in the record that they notified the Respondent in any manner that they were either unable to come to work at that time, or that they intended to report at a later date. The complaint alleges in substance that Esther Moran, Mildred Brown, Lena Rosell, Beatrice ReCouper, and Duane Powers applied for reinstatement to their former or substantially equivalent positions, and that the Respondent refused 17 There is substantial, probative, and credible testimony in the record to substantiate this conclusion. is See Kallaher and Mee, 87 NLRB 410, as cited in Fifteenth Annual Report of the Board, p. 108. MODERN CLEANERS COMPANY 55 or failed to do so, "and continues to refuse to reinstate said employees to their former or substantially equivalent positions or employment." According to the credible testimony of Lena Rosell , one of the five female employees named above who did not report to work on the morning of January 9, 1951 , she did not ask for reinstatement to her former position until April 28, 1951. At that time she, accompanied by Esther Moran, Mildred Brown, and Beatrice ReCouper, went to the plant for the purpose of applying for reinstate- ment to their former positions. Upon arrival at the plant they were unable to see either of the Giallanzas, who at the time were absent. They then went to Mrs. Wing, the head bookkeeper , and informed her that they desired reinstate- ment to their jobs, and requested that she deliver their message to the Re- spondent. The next morning Wing told the Giallanzas of their request for reinstatement. There is no testimony in the record that the Respondent there- after contacted any of the four employees named above and offered to rein- state them to their former jobs. Rosell further testified that this was the only time she requested the Respondent to reinstate her to her former position. The record is silent as regards the activities of Esther Moran, Beatrice ReCouper, and Mildred Brown after they made their request for reinstatement on April 28,19 - 50. Inasmuch as they did not choose to appear at the hearing and testify in their behalf, and the General Counsel,made no showing that they were unavailable as witnesses , the undersigned finds that they likewise made no further effort to secure reinstatement after April 28, 1950. Duane Powers, who is also named in the complaint as one of the striking employees who was refused reinstatement by the Respondent to her former position, did not testify at the hearing herein and the General Counsel made no showing that she was unavailable as a witness. Ivan Colegrove was refused reinstatement to his former position on two occasions by the Respondent. As indicated above, Giallanza, Jr., told Hart and Ervolino, the A. P. L. representatives, on the night of January 7, 1950, that the Respondent would unconditionally reinstate all of the striking inside employees to their former positions except Ivan Colegrove . The Respondent speaking through Giallanza , Jr., told Hart and Ervolino that she would not reinstate Colegrove to his former job because he was a supervisory employee, and was the instigator of the strike. Sometime in May 1950, Colegrove, on the advice of Shults, called at the Respondent 's office for the purpose of asking for reinstate- ment. None of the Giallanzas was present, so he stated his offer to Mrs. Wing, the head bookkeeper. The Respondent made no effort thereafter to offer Colegrove reinstatement. The Respondent contends that Colegrove was a supervisory employee, and consequently she was justified in refusing him reinstatement to his former position . However, at the hearing herein she offered no substantial evidence as regards his duties. The only testimony offered by the Respondent as regards Colegrove was the bare statement by both Giallanza, Sr., and Giallanza, Jr., that he was a supervisor. As a matter of fact, the Respondent offered no sub- stantial evidence showing Colegrove's duties and the authority vested in him as regards his relationship with other employees. In such a state of the record the undersigned is convinced and finds that Ivan Colegrove was not a supervisory employee. In order for the Respondent to sustain her contention in this regard, she must do so by a preponderance of reliable, probative, and substantial evidence. This she failed to do at the hearing herein. To merely dub an employee as a supervisor is not enough, the Respondent must show that he is vested with the duties and responsibilities of a supervisor as defined by Section 2 (11) of the Act. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings as Regards the Nature of the Strike, and the Alleged Refusal to Reinstate Certain Striking Employees to Their Former or Sub- stantially Equivalent Positions or Employment The record is clear that an overwhelming majority 11 of the inside employees joined the Modern Cleaners Employees Protective Association on Tuesday, January 3, 1951, and attended a meeting thereof. At that meeting there was considerable discussion as regards striking the plant in protest of the Re- spondent's discharge of the drivers. The undersigned has found above that the discharge of the drivers was because of their concerted activities, and hence violative of Section 8 (a) (3) and (1) of the Act. It thus follows and the undersigned so finds that the strike of the inside employees in protest of the Respondent's action in this regard was an unfair labor practice strike. It is well settled that unfair labor practice strikers who have abandoned the strike and have unconditionally offered to return to work are entitled to rein- statement to their former or substantially equivalent employment. It is equally well settled that a refusal by a Respondent to do so is violative of the Act, absent of course reprehensible conduct during the course of the strike, with which we are not concerned herein. The record is clear that on January 7, 1950, the striking employees met and selected George Hart of the Teamsters Union, A. F. L., and Michael Ervolino of the Laundry Workers Union, A. F. L., as their representatives. The record is also clear that at this same meeting the striking employees voted to abandon the strike and return to work. Hart and Ervolino were authorized to see the Respondent and advise it of their intention in this regard. As indicated above, Hart and Ervolino met with Giallanza, Sr., and Giallanza, Jr., that evening and advised them of the strikers' decision to abandon the strike and return to work on Monday, January 9, 1950. The Respondent agreed to take all of the strikers back but the drivers and Ivan Colegrove, for reasons set forth above. By this action, Ivan Colegrove, Esther Moran, Mildred Brown, Lena Rosell, Beatrice ReCouper, and Duane Powers offered to return to work unconditionally, and made a valid request for reinstatement through their authorized agents, Hart and Ervolino, which the Respondent accepted, except as to Colegrove. Under such circumstances, an Employer normally would expect the employees involved to report to work. In the instant case, at least Moran, Brown, Rosell, and ReCouper chose to do otherwise,20 and did not report for work along with the other striking employees on January 9, 1950 Nor did they make a request for reinstatement until the latter part of April. 1950, almost 4 months after the strike was abandoned. There is nothing in the record to indicate that the Respondent at any time between January 9 and April 28, 1950, refused to reinstate the above employees. A valid offer on their behalf to return to work unconditionally was accepted by the Respondent on the night of January 7. True, it was made through an agent, but this mode of procedure is commonplace, and has been accepted by the Board and the courts as a valid offer 21 Moreover, the record clearly shows that none of the above employees made a further application for reinstatement after April 28, 1950. In such a state of the record the undersigned is convinced and finds that the Respondent did not refuse to reinstate Esther Moran, Mildred Brown, Lena Rosell, and Beatrice ReCouper, to their former or substantially equivalent '- The record shows that 19 inside employees attended the Tuesday night meeting. At that time the Respondent had approximately 30 employees including the discriminatorily discharged drivers. 40 The record is silent as regards Duane Powers. She will be dealt with hereinafter. 21 See Lightner Publishing Company, 128 F 2.d 237. MODERN CLEANERS COMPANY 57 employment. As far as the record is concerned, the Respondent agreed to re- -instate them on the night of January 7 and had every reason to expect that they -would report to work on the morning of January 9, 1950, along with the rest of the striking employees. Clearly an Employer is not required to shut down his plant to wait out the dilatory tactics of approximately 25 percent of his employ- ees, after having made a valid offer to reinstate them to their jobs. Where, as here, the site of the Employer's business is located in a small city within walking distance from the homes of the employees, and with telephone facilities Available, the failure of the above employees to at least notify the Respondent that they were unavailable for work, for one reason or another, is inexcusable. The Respondent having once made a valid offer of reinstatement was not required to make a second offer approximately 4 months after the strike was abandoned." In the considered opinion of the undersigned, the above employees by their conduct described above forfeited any rights they may have had under the Act. Consequently the undersigned recommends that that portion of the complaint which alleges that the Respondent refused to reinstate Esther Moran, Mildred Brown, Lena Rosell, and Beatrice ReCouper be dismissed. Duane Powers, who is named in the complaint as one of the striking employees who was refused reinstatement to her former or substantially equivalent position, did not appear at the hearing herein and no showing was made that she was un- available as a witness. Hence the record is silent as to her activities after the strike was abandoned. Suffice it to say, however, that the same reasoning is applicable to her situation as that set forth immediately above regarding Moran, Brown, Rosell, and ReCouper. That is, a valid offer on her behalf to abandon the strike and return to work unconditionally was made to and accepted by the Respondent through her authorized agents, Hart and Ervolino, on the night of January 7, 1950. In such a state of the record the undersigned is convinced and be so finds that the Respondent herein did not refuse to reinstate her to her former or substantially equivalent employment. Hence, the undersigned recom- mends that this allegation in the complaint be likewise dismissed. As indicated above, Ivan Colegrove was president of the Modern Cleaners Em- ployees Protective Association at the time of the strike. In the course of the conversation between Hart and Ervolino and the Giallanzas relative to abandon- ment of the strike, which has been set forth above, it will be recalled that Giallanza, Jr., told them in words or substance that under no circumstances would the Respondent reinstate Colegrove to his job because he was a super- visory employee," and for the further reason that he was the instigator of the strike. The Respondent reiterated its position towards Colegrove on or about Friday, January 13, 1950 At that time he went to the plant to collect some wages due him and saw Giallanza, Sr., who told him to get out and that the Respondent would never reinstate him to his job A few months later Colegrove, on the advice of Attorney Shults, went to the plant and in the absence of the Giallanzas left Nyord with Sirs. Wing, the bookkeeper, that he desired rein- statement to his former position. His request was ignored by the Respondent. In view of the above findings and upon the record as a whole the undersigned is convinced and finds that Ivan Colegrove was refused reinstatement to his former or substantially equivalent position by the Respondent on January 7, 1950, because of his union and/or concerted activities. On at least two occasions he was informed in no uncertain language that he was persona non grata to the -Respondent. Once to his agents, Hart and Ervolino; 4 when they called on the 52 See Barr Packing Co., 82 NLRB 1 (1949) ; E. A. Laboratories, Inc., 80 NLRB 625 and 86 NLRB 711; Joy Togs, Inc., 83 NLRB 1024. 11 The undersigned has found above that Colegrove was not a supervisory employee. 21 See supra, for the effect of an offer of reinstatement through an agent. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent for the purpose of effectuating a settlement of the strike, and a second time by Giallanza, Sr., at the plant on January 13, 1950.1 Under the circum- stances described above, it is clear that Colegrove was not only refused rein- statement by the Respondent but, to all intents and purposes, actually discriminatorily discharged, particularly on January 13, 1950, when he was ordered out of the plant by Giallanza, Sr. By the acts described above the undersigned finds that the Respondent by re- fusing to reinstate Ivan Colegrove to his former or substantially equivalent employment on January 7, 1950, violated Sections 8 (a) (3) and (1) of the Act. c. The alleged inititation, sponsorship, promotion, and support of the Modern Cleaners Employees Association in violation of Section 8 (a) (2) of the Act The Modern Cleaners Employees Association was formed a few days after the striking inside employees returned to work. While the record does not dis- close the exact date there is substantial evidence to show that it was around January 11, 1950, and the undersigned so finds. It was initiated by Paul Nicholson, plant superintendent, and Edward Brown, the route supervisor. Its avowed purpose was to deal with the Respondent on matters affecting the em- ployees' working conditions, such as disputes, grievances, and the like that arise from time to time between employees and management. Nicholson requested Ralph Locker, one of the inside employees, to prepare a petition and circulate it among the employees. According to Locker's creditable testimony the purpose of the petition was two-fold, first as a means for the employees to withdraw from membership in the Modern Cleaners Employees Protective Association, and secondly to form the Modern Cleaners Employees Association. Locker complied with Nicholson's request and circulated the petition among the employees dur- ing working hours. After the petition was circulated and a large number of employees had signed it, a formal meeting of the "Independent" was held. At this meeting Paul Nicholson, plant superintendent, was elected president; Ed- ward Brown, route manager, vice president ; Ralph Locker, secretary ; and Margaret Brown, treasurer." The first two meetings of the "Independent" were held at the plant. Since then meetings have been held at the homes of various members. The record is vague as regards the activities of the "Independent." Whether or not it actually handled any grievances for the membership or made any de- mands on management for improved working conditions is not disclosed by the record. Suffice it to say, however, that the "Independent" was available as a vehicle to handle such matters. Nor is there any substantial evidence in the record showing that dues or assessments were either authorized or collected from the membership. Again, the record is silent as regards whether or not the "Independent" had a constitution or bylaws to govern its affairs. Conclusion Regardless of whether or not the "Independent" actually functioned as a labor organization in the manner and mode ordinarily pursued by such organizations, nevertheless it was organized for that purpose, and at the time of the hearing herein was still in existence. It is clear from the record that it was initiated, formed, sponsored, and promoted by the Respondent through its top supervisory hierachy, Nicholson, plant superintendent, and Brown, route manager. More- over its organization was promulgated on company time and property by an 25 Margaret Brown was in charge of the downstairs office, where articles were left for cleaning, etc. There is no substantial evidence in the record showing that she was a super- visory employee. MODERN CLEANERS COMPANY 59 employee, Locker, especially designated by Superintendent Nicholson for that purpose. The record is also clear that following its organization the "Inde- pendent" was the recipient of support from the Respondent who permitted it to hold meetings on its premises. That the Respondent dominated the "Inde- pendent" at least in its early days is evidenced by the fact that its entire roster of officers were persons close to management either in their capacity as super- visory or office employees. In view of the foregoing findings and upon the record as a whole the under- signed finds that the Respondent by the conduct described above did on or about January 11, 1950, initiate, form, sponsor, and promote through Paul Nicholson, its plant superintendent, and``"Edward Brown, its route manager, the Modern Cleaners Employees Association, and since on or about January 11, 1950, to date has assisted, dominated, contributed to the support of, and interfered with the administration of Modern Cleaners Employees Association, and by such conduct has violated Section 8 (a) (2) and (1) of the Act. d. The alleged discriminatory discharge of Marion Alberts because of her refusal to join Modern Cleaners Employees Association Marion Alberts was employed as a clerk in the Respondent's office. Sometime in the latter part of December 1949, probably on or about December 21, she notified the Respondent that she was leaving its services as of January 21, 1950. Her reason for this action was because she was pregnant. In the interim she 'joined the Modern Cleaners Employees Protective Association. The record is not clear as to whether or not she participated in the strike which has been described above. After the strike was over and most of the employees had returned to work, she was given a raise of .021/2 cents per hour by Giallanza, Sr. On Monday morning, January 16, 1950, she was approached by Ralph Locker, who requested her to sign a petition which provided inter alia her resignation or withdrawal from the Modern Cleaners Employees Protective Association and to become a member of the Modern Cleaners Employees Association. She refused to do so, and told Locker in substance that since she was leaving the Respondent's services on January 21, she saw no point in signing the petition. Shortly thereafter Locker left the office. In about 5 minutes Giallanza, Sr., came to her and told her to go home and to "hurry up" about it. Alberts left the plant and to date has neither returned to work nor asked for reinstatement. Giallanza, Sr., admitted that he laid off Alberts on January 16, and gave as his reason for his abrupt action in this regard that since she had resigned 'and would leave within a few days that it was necessary to employ a satisfactory replacement, who had reported for work that morning. The General Counsel contends that Alberts was laid off on the morning of January 16, because she refused to withdraw from the Modern Cleaners Em- ployees Protective Association, and join the Modern Cleaners Employees Asso- ciation. Locker, though called by the General Counsel as a witness, was not queried as regards the Alberts incident. Hence as far as the record is con- cerned it is silent as to whether or not he talked to Giallanza, Sr., after his conversation with Alberts. Conclusion In order to find that Alberts was discriminatorily laid off by the Respondent on January 16, 1950, the undersigned would be required to first find that Locker 21 The record is silent as to the activities of the "Independent" after its organization had been effectuated , except to the extent that it had held some meetings at the plant and at the homes of members. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed Giallanza, Sr., that she had refused to withdraw from the Modern Cleaners Employees Protective Association' and join the Modern Cleaners Employees Association, and secondly, to infer from that, Giallanza, Sr., then discharged or laid her off because of her refusal in this regard. In other words such a finding must be predicated by building inference upon inference. In order to do so one must overlook the fact that only a few days before she was laid off she was granted a raise by the Respondent. Likewise it would necessitate ignoring the fact that she had resigned effective January 21, and the further fact that in the normal course of business she would be replaced by the Respondent. On the other hand one cannot ignore the fact that she was laid off at a time when the Respondent's antiunion conduct was at its peak. Taking all factors into consideration and upon the record as a whole the under- signed is convinced and finds that the record does not substantiate the General Counsel's contention that Marion Alberts was discriminatorily laid off or dis- charged on January 16, 1950, because she refused to withdraw from the Modern Cleaners Employees Protective Association and join the Modern Cleaners Em- ployees Association. True, there is strong suspicion that she was discrimina- torily dicharged, but suspicion, speculation, and conjecture are not evidence. Clearly one may infer from a fact that a certain incident occurred, but not by building inference upon inference. Accordingly, the undersigned will recommend that the allegation in the complaint that Marion Alberts was discharged by the Respondent on January 16, 1950, and has refused or failed to reinstate her for the reason that she joined or assisted Modern Cleaners Employees Protective Association or Local 65, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., or engaged in concerted activity for the purpose of collective bargaining or other mutual aid or protec- tion, be dismissed. C. Other acts of interference 'unth, restraint, and coercion, of Respondent's employees in violation of Section 8 (a) (1) of the Act The complaint alleges that the Respondent engaged in numerous other acts of interference with, restraint, and coercion of its employees from on or about January 2, 1950, by certain of its agents and supervisory employees, including Charles Giallanza, Sr., Charles Giallanza, Jr., Paul Nicholson, plant super- intendent, Edward Brown, route manager, and Ralph Locker. The status of the Giallanzas, Nicholson, and Brown has been discussed above, and the under- signed has found that each of them were supervisory employees. As to Locker, his status will be discussed in detail hereinafter. The undersigned has found above that in the latter part of December 1949 Charles Giallanza, Jr, discussed with several of the drivers the necessity of a contractual relationship between the drivers and the Respondent As a result several of the drivers consulted with Attorney Shults as regards their rights and liabilities under the proposed contract. At one of the meetings between Shults and the drivers, he suggested to them that he be designated as their bargaining agent to meet with the Respondent as regards wages, hours, and other conditions of employment. The drivers accepted Shults' suggestion and so designated him. Shortly thereafter Modern Cleaners Employees Protective Association was formed and organized. Shults notified Giallanza, Jr., of the drivers' action on the night of January 2, 1950.=z Later that evening Giallanza, Jr., called at least two of the drivers, Lodato and Kinne, and queried them about the concerted activities and the purpose of organizing the Modern Cleaners 27 See supra for a detailed account of the conversation between Shults and Giallanza, Jr. MODERN CLEANERS COMPANY 61 Employees Protective Association. Giallanza, Jr., admitted that he had called at least Lodato and Kinne and possibly other drivers on the night of January 2 and asked them about their meetings with Shults. The record clearly shows that Giallanza, Jr., called the drivers after he had been advised by Shults of their concerted activities and the formation of Modern Cleaners Employees Protective Association. He knew then or at least should have known that interrogation of employees as regards their union or concerted activities is violative of the Act. The Board and the courts have so found in a long line of cases, too numerous to enumerate or elaborate on herein. Moreover his interrogation must be considered in the light of the Respondent's entire course of conduct thereafter, and the whole gamut of its relationship with its employees as regards their efforts to enjoy the rights guaranteed them under Section 7 of the Act. In view of the foregoing and upon the record as a whole, the undersigned finds that the Respondent by Giallanza, Jr.'s interrogation of Lodato and Kinne concerning their union and concerted activities violated Section 8 (a) (1) of the Act. The complaint also alleges that the Respondent solicited its employees to abandon the strike described above and return to work. The undersigned has found, above, that the strike referred to was an unfair labor practice strike. During the course of the strike the Respondent admittedly, by both the Gial- lanzas, solicited Helen Poklinkowski to abandon the strike and return to work. Another striker, Mary Norton, was likewise solicited by Giallanza, Sr., during the course of the strike. Marjorie Hadley was not only solicited by Giallanza, Sr., to abandon the strike but was offered a wage increase of 10 cents per hour to return to work. Giallanza, Jr., testified without contradiction that several of the striking employees were requested to return to work by him and his father, Giallanza, Sr., among whom was Esther Moran, who worked with Helen Poklinkowski. It is well settled that the solicitation of striking employees to abandon a strike and return to work is violative of the Act. Such conduct on the part of an Employer or his representatives necessarily has the effect of undermining the authority of their chosen bargaining agent and thereby unlawfully intereferes with the rights of the employees guaranteed them by Section 7 of the Act and is violative of Section 8 (a) (1) of the Act.' The complaint further alleges that the Respondent as a further inducement to its employees to abandon the strike granted several of them wage incerases. The Respondent admits that it granted wage increases during the priod of the strike. Among those granted increases were Marjorie Hadley, 10 cents per hour, and Marion Alberts, .021/2 cents 2a The Respondent contends that she was justi- fied in granting the wage increases for the reason that she had promised the indi- vidual employees involved a pay raise before the strike. The record, however, does not sustain this contention. Take the case of Marjorie Hadley, she not only was granted a wage increase but a promotion as well. There is no substantial evidence in the record to show that the Respondent had contemplated this action prior to the strike or discussed it with Hadley, except the testimony of Giallanza, Sr., which the undersigned does not credit in this regard. In all, 11 striking employees were granted wage increases during the course of the strike. Assuming that the Respondent had discussed a wage increase with her em- ployees prior to the strike, the gravamen of its position is that it granted the 28 See Sam'l Bingham's Son Mfg. Co, 80 NLRB 1612; Cat hey Lumber Company, 86 NLRB 157 ; Cincinnati Steel Castings Company, 86 NLRB 592. 20 See infra. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increases during the period of the strike. The only plausable inference that can be drawn from the Respondent's action in this regard is that it was done for the purpose of causing her employees to abandon the strike and to discourage their union or concerted activities. It is well settled that such conduct by an em- ployer under the circumstances described herein is violative of Section 8 (a) (1) of the Act, and the undersigned so finds 85 The complaint also alleges that the Respondent by her agents and supervisory employeees including Charles Giallanza, Sr., and Charles Giallanza, Jr., Paul Nicholson, Edward Brown, and Ralph Locker urged and persuaded her employees to join or become members of Modern Cleaners Employees Association and to withdraw from and cease assisting Modern Cleaners Employees Protective As- sociation or Local 65, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L. The uncontradicted and undenied testimony in the record clearly shows that the Respondent by its plant superintendent, Paul Nicholson, requested Ralph Locker, a presser," to prepare a petition which provided in its, caption that the signatories thereto desired to withdraw from the Modern Cleaners Employees Protective Association and become members of the Modern Cleaners Employees Association. The undersigned has found above that the latter organization was initiated, sponsored, formed, and supported by the Respondent in violation of Section 8 (a) (2) and (1) of the Act. Clearly the action of the Respondent described above was violative of the Act. Particularly, where as here, the 8 (a) (2) dominated labor organization was initiated, sponsored, and formed by the Respondent's top supervisory em- ployees, Nicholson and Brown. Moreover, since the plant is small their sponsor- ship becomes all the more coercive because of their close association with the rank-and-file employees during working hours. Such conduct is clearly violative of the Act and requires no lengthy discussion herein. Suffice it to say, however, that the Board in a recent case, Phillips and Buttoroff, 96 NLRB 1091, 29 LRRM 1009, where a similar situation was before it, held that : .. . It is well established that an employer violates Section 8 (a) (1) of the Act, where, as here, it obtains resignations from a union by suggesting and directly assisting, whether or not it enforces such conduct with explicit threats of reprisal. See Lindley Box & Paper Company, 73 NLRB 553 [20 LRRM 1008] ; Southern Block and Pine Corporation, 90 NLRB 590 [26 LRRM 1253]. In view of the foregoing and upon the record as a whole, the undersigned finds that the Respondent by the conduct described herein immediately above violated Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, 80 See Capital City Candy Co., 72 NLRB 411; Twin City Milk Producers Assn., 62 NLRB 282; Scharr and Shunery, 67 NLRB 980. 31 The General Counsel contends in his brief that Locker was a supervisory employee of the Respondent at the time this incident occurred. The proof is to the contrary. There is no showing in the record that he exercised or was vested with any of the attributes of a supervisor as set forth in Section 11 of the Act. This is not to say, however, that the Respondent was not responsible for his actions. To the contrary, the undersigned finds that she is on the principle of agency. There is no question about it, Locker was desig- nated by Nicholson, the plant superintendent, to not only prepare the withdrawal petition, but to circulate it among the employees. A more clear-cut case of agency would. be difficult to find. Consequently the undersigned finds that the Respondent, as the principal is responsible for the acts of her agent, Locker, in engaging in the conduct described above. - -MODERN CLEANERS COMPANY 63 have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that she cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent initiated, sponsored, dominated, and interfered with the formation and administration of and contributed support to the "Independent." It will therefore be recommended that the Respondent withdraw all recognition from the "Independent" as representative of her em- ployees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish it as such representatives. It has been found that the Respondent discriminatorily discharged Donald Kinne, Harry E. Wyckoff, Richard Gerould, Henry L. Carey, Donald Zirkelbach, -John L. Coogan, Salvatore E. Lodato, Robert Furlong on January 3, 1950, and Ivan Colegrove, who was refused reinstatement to his former job following his unconditional offer to abandon the strike and return to work, on January 7, 1950. It will be recommended the Respondent offer to each of the employees named above immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges. It further will be recommended that the Respondent make whole each of said employees for any loss of pay they may have suffered by reason of the Respondent's discrimination by payment of a sum of money equal to that which each would have earned as wages from the date of the discrimination to the date of an offer of reinstatement, less their net earnings during said period. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters , shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to which they would normally have earned for each quarter or portion thereof, their net earnings , if any, in other employment during that period . Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. In accordance with the Woolworth decision " it will be recom- mended that Respondent , upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. As to Wayne Stuart, who is named in the complaint as having been dis- criminatorily discharged by the Respondent on January 3, 1950 , the undersigned will recommend that the complaint be dismissed as to him without prejudice for reasons set forth hereinabove. . The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated. The previous purposes of the Act may be frustrated unless Respondent is required to take some affirmative action to dispel the threat. It will be recommended, therefore, that Respondent cease and desist from in any manner interfering with, restrain- ing, or coercing her employees in the exercise of rights guaranteed by the Act. a2 F. W. Woolworth Co., 90 NLRB 289. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS or LAW 1. Local No. 65, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, A. F. L.; Modern Cleaners Employees Pro- tective Association ; and Modern Cleaners Employees Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees named above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By dominating and interfering with the formation and administration of and by contributing support to Modern Cleaners Employees Association, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the, meaning of Section 8 (a) (1) of the Act. 5. The reliable, substantial, and probative evidence adduced at the hearing herein does not conclusively show that the Respondent discriminatorily dis- charged Wayne Stuart. 6. By discharging Marion Alberts the Respondent did not engage in any unfair labor practices. 7. By failing to get in touch with and to offer reinstatement to Lena Rosell, Esther Moran, Mildred Brown, and Beatrice ReCouper on April 28, 1950, when they made application at Respondent's office for reinstatement, the Respondent did not engage in any unfair labor practice. 8. By failing to reinstate Duane Powers to his or her former position or substantially equivalent position the Respondent did not engage in any unfair labor practices.' 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] 33 The record does not divulge the sex of Duane Powers. PLUSS POULTRY, INC. PETITIONER and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL. Case No. 32-RM 23. July 8, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Anthony J. Sabella, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 100 NLRB No. 7.