Crystal Laundry and Dry Cleaning Co.

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 618 is a labor organization within the meaning of Section 2(5) of the Act. 3. By its conduct described above in section III, the Respondent Corporation has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (2 ), and (3 ) of the Act. 4. By its conduct described above in section III, Local 618 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1) (A) and (2) of the Act. [Recommendations omitted from publication.] Crystal Laundry and Dry Cleaning Company and Sales Drivers, Sales & Service Local 176, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case No. 9-CA-2161. July 19, 1961 DECISION AND ORDER On December 14, 1960, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report at- tached hereto. Thereafter, the General Counsel and Respondent filed exceptions to the Intermediate Report, and the Respondent also filed a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner, but only to the extent consistent with our Decision herein. 'The Respondent excepted to the Trial Examiner's finding that Respondent was en- gaged in commerce within the meaning of the Act. We find no merit In this exception The record discloses that Respondent , which operates a retail laundering and dry cleaning enterprise in Dayton , Ohio, made gross sales In excess of $600 ,000 for the 12-month period preceding the hearing, and had an indirect Inflow from points outside the State of Ohio during the same period in excess of $18,000. Accordingly, we find that the Respond- ent is engaged In commerce and that it will effectuate the policies of the Act to assert jurisdiction over it. See Carolina Supplies and Cement Co , 122 NLRB 88. The General Counsel also excepted to the Trial Examiner's failure to find that Re- spondent violated Section 8(a)(1) of the Act by Respondent President Schryver's state- ment to employees that "lie would close the place down and rent the place out for stor- age" before he would allow the Union to represent his employees Even assuming, as did the 'Trial Examiner , that Schryver made this remark , we concur in the Trial 132 NLRB No. 19. CRYSTAL LAUNDRY AND DRY CLEANING COMPANY 223 The complaint alleged that the Respondent violated Section 8 (a) (1) of the Act by engaging in a series of secret polls of its em- ployees to determine their sentiments concerning the Union. The Trial Examiner dismissed this allegation on the ground that the poll- ing did not occur in a context of threats of reprisal or promise of benefit for engaging in or refraining from engaging in union activi- ties. We do not agree with the Trial Examiner's disposition of this issue. The Union commenced its organizational campaign among Re- spondent's employees in May 1960. Upon learning of this organiza- tional drive, Respondent expressed its opposition to the Union and conducted a series of four secret polls with ballots reading as follows: What do you Think TODAY I have signed a union card .. I'm in favor of it____________ q I have signed a union card . . but wish I hadn't----------- q I haven't signed a card .. but I might be interested-------- q I haven't signed a card .. and don't want to sign one_______ q The first poll was taken on June 27, 1960. The results were unani- mously against the Union. As these results did not jibe with the rumors Respondent had heard about its men joining the Union, Re- spondent took a second poll on June 29. The results of the second poll remained the same as the first. Shortly after the second poll, union representatives for the first time called upon the Respondent and claimed recognition as ma- jority representative. Respondent denied recognition on the basis of the results of the previous polls. However, this union visit prompted the Respondent to take a third poll on July 23. Before taking this poll, which Respondent explained to its drivers that "of course, there might be a very good answer to [the difference between the claim of the Union and the showing made by the balloting], maybe some of the fellows had changed their minds since we had taken the last ballot, let's take another one, let's see what the facts are today." When this ballot failed to reveal any substantial senti- ment for the Union, Respondent called this to the attention of its employees, stating "somebody is lying, now you fellows I know, I work with every day, I surely don't think you are lying, on the other hand, these [union representatives] came in with a straight face yesterday and said that they had over 50 percent of our fellows signed up. If the ballot the day before yesterday was, and some of you were mistaken, let's be honest with ourselves, it's a secret ballot." On July 25, the fourth ballot was taken and again indicated a lack of sentiment for the Union. Examiner's view that the remark lost its coercive effect in light of Schryver' s subsequent, repeated statements that he would keep the plant operating so long as he was physically and financially able to do so. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 11, the Union filed a representation petition, and a Direction of Election was issued on October 31. The Union won the election and was duly certified on December 8. The Board has held that an employer may lawfully poll his em- ployees concerning their desires as to representation, provided that the evidence clearly establishes that the purpose of the poll is to as- certain whether a union demanding recognition actually represents a majority of employees so as to permit the employer to recognize the union.' In addition, the poll must be conducted against a background free of hostility toward unions.' Such freedom from hostility is not restricted to the absence of employer unfair labor practices.4 In the instant case, the timing of the polls and their number, as well as the content of the ballots, convince us that the Respondent conducted the polls without any genuine purpose of ascertaining whether the Union represented a majority in order to determine whether to accord it exclusive recognition. The polls taken on June 27 and 29 were conducted prior to any demand by the Union for recognition and in the face of Respondent's expressed opposition to the Union. Having denied the Union's request for recognition on the basis of these two polls, the Respondent nevertheless persisted in taking additional polls for the asserted purpose of ascertaining whether "the fellows had changed their minds" about the Union. We note too that Respondent had expressed its hostility to union or- ganization and failed at any time to state that union adherence would not subject union employees to reprisals. Moreover, the inquiries which appeared on the ballots sought to elicit information as to whether the employees "might be interested" in the Union or whether the employees wished they had or had not signed union cards. Such inquiries do not reflect a sincere effort to determine the majority or minority status of the Union. Rather it is apparent from all the circumstances that the polls were intended to and did constitute an attempt to coerce the employees in the exercise of their right to join a labor organization 5 The fact that the Union subsequently won the election among Respondent's employees does not validate Respond- ent's earlier conduct.' On the basis of the foregoing and the entire record, we conclude that Respondent's polling in the circumstances of this case interfered with its employees' rights guaranteed under Section 7 of the Act and thereby violated Section 8 (a) (1). Accordingly, we find merit in the General Counsel's exception to the Trial Examiner's failure to find ' See Murray Envelope Corporation of Mississippi, 130 NLRB 1574; Burke Golf Equipment Corporation , 127 NLRB 241 8 See Blue Flash Express, Inc, 109 NLRB 591, 592-593. 4 Ib¢d 6 See Murray Envelope Corporation of Mississippi , supra, footnote 2 0 Id CRYSTAL LAUNDRY AND DRY CLEANING COMPANY 225 that Respondent's polling was violative of the Act, and we reverse the Trial Examiner in this regard. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which the Board finds necessary to effectuate the policies of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the Act, as amended, the National Labor Relations Board hereby orders that Respondent, Crystal Laundry and Dry Cleaning Com- pany, Dayton, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Polling its employees to determine their union sympathies and desires in a manner constituting interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor,- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Dayton, Ohio, copies of the notice attached hereto marked "Appendix." I Copies of the notice, to be furnished by the Regional Director for the Ninth Region, shall, after being signed by a duly authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps,,shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other materials. (b) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. I 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 " 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES 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, we hereby notify our employees that : WE WILL NOT conduct polls of our employees for the purpose of ascertaining their union sympathies or desires in a manner constituting interference, restraint, and coercion within the mean- ing of Section 8 (a) (1) of the Act. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in their right to self-organiza- tion, to form labor organizations, or to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. CRYSTAL LAUNDRY AND DRY CLEANING 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 AND RECOMMENDATIONS STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before the duly designated Trial Examiner in Dayton, Ohio, on November 1, 1960. The issues litigated were whether Crystal Laundry and Dry Cleaning Company, herein called Respondent, is engaged in commerce or in a business affecting commerce and subject to the juris- diction of this Board and whether Respondent violated Section 8(a)(1) of the Na- tional Labor Relations Act, as amended, herein called the Act, by interrogating its employees as to their union affiliations and by threatening employees with economic reprisal for their union activities . After the close of the hearing, counsel for'Re- spondent filed with the Trial Examiner a brief which has been considered in pre- paring this report. Upon the entire record and observations of witnesses, the Trial Examiner makes the following: CRYSTAL LAUNDRY AND DRY CLEANING COMPANY FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT 227 Respondent, an Ohio corporation, is engaged in the business of retail laundering and dry cleaning in Dayton, Ohio. In the 12 months preceding the hearing, Re- spondent had gross sales in excess of $600,000. In the same period, Respondent had an indirect inflow of supplies from outside the State of Ohio valued in excess of $18,000. In view of the foregoing, the Trial Examiner finds and concludes that Respondent is engaged in commerce within the meaning of the Act and that the Board's require- ments for the assertion of jurisdiction have been satisfied. See Crystal Laundry & Dry Cleaning Company, Case No. 9-RC-4179 (not published in NLRB volumes). II. THE LABOR ORGANIZATION INVOLVED Sales Drivers, Sales & Service Local 176, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Respondent has been in existence, in various legal forms, in Dayton, Ohio, since 1895. The employees involved in this case are the sales drivers of Respondent. There are normally 22 of these drivers or salesmen, and these are grouped into 4 flights. These flights gather for sales meetings each morning prior to leaving on their route for the day. The sales meeting for the first flight (consisting of seven sales drivers) starts at 7:30 a.m. and the following flights meet at half-hour intervals thereafter. The events involved herein took place at these sales meetings. Commencing sometime in May 1960, the Union made an organizational effort among Respondent's sales drivers. Upon learning of this, Martin W. Schryver, Re- spondent's president, commenced discussing the matter at the morning sales meetings. Schryver outlined Respondent's history and its prior experience with the Union in- volved herein and indicated that Respondent had experienced considerable diffi- culties with the Union, including a disruption of its business and violence. Also, at these meetings Schryver read portions of The Reader's Digest condensation of Robert F. Kennedy's book entitled "The Enemy Within," relating to the International Union with which the Union involved herein is affiliated (see March 1960 issue of The Reader's'Digest). Schryver's remarks were in effect and substance an urging of Respondent's employees not to become affiliated with the Union. Although the matter is not free from doubt, the Trial Examiner believes and finds that the remarks were not violative of the Act (on their face they were not coercive and the doubt arises because of the setting in which the remarks were made). According to the testimony of General Counsel's witnesses (Jesse Murphy, Paul Woods, and Albert Austin), in the early part of June or July 1960, President Schryver at one meeting of the first flight, stated, "Before he would allow a union to come in there he would close the place down and rent the place out for storage" or words to that effect There is a conflict of testimony concerning these remarks by, Schryver but the Trial Examiner believes a resolution of this conflict not necessary herein. For the purpose of deciding this case the Trial Examiner will assume, arguendo, that the versions given by the General Counsel's witnesses accurately re- flect what was said It is quite clear from the record that at most only one such statement was made and that thereafter Schryver repeatedly stated that he was "going to keep the plant operating as long as he was physically able"-as long as his health and financial position permitted, and in spite of any adverse conditions that might be created by active unionism. In the opinion of the Trial Examiner, Schryver's later statements were adequate to relieve Respondent from responsibility for the earlier remarks, assuming the earlier remarks were as indicated above and clearly coercive. On four occasions, June 27 and 29 and July 23 and 25, 1960, Respondent's presi- dent (Schryver) took a secret ballot of his sales drivers. The ballot read as follows: What Do You Think TODAY I have signed a union card . . . I'm in favor of it______________________ q I have signed a union card . . but wish I hadn't______________________ q I haven't signed a card . . . but I might be interested ____________________ q I haven't signed a card . . . and don't want to sign one _________________ q 614913-62-vol. 132-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first ballot was taken shortly after Respondent learned, via rumors and union "cards laying around the plant," of the Union's efforts to organize and was taken because Respondent was "interested in what the group thought." The ballots cast on this occasion indicated that none of the employees had signed a union card which did not jibe with the rumors and the second ballot was then taken because of this situation. In each instance the foregoing reasons for the balloting were given by Respondent to the employees prior to their voting. The third ballot was taken shortly after union representatives had called upon Respondent and made a claim to represent a substantial number, if indeed not a majority, of Respondent's employees and because Respondent doubted this claim, in the light of the previous ballots. This explanation was given to the employees prior of their balloting • and Respondent added that "of course, there might be a very good answer to [the differ- ence between the claim of the Union and the showing made by the balloting], maybe some of the fellows had changed their minds since we had taken the last ballot, let's take another one, let's see what the facts are today." This ballot did not reveal any substantial sentiment in favor of the Union and Respondent called this matter to the attention of its employees and remarked that "somebody is lying. Now you fellows I know, I work with every day, I surely don't think you are lying, on the other hand, these [representatives of the Union] came in with a straight face yes- terday and said that they had over 50 percent of our fellows signed up. If the ballot the day before yesterday was, and some of you were mistaken, let's be honest with ourselves, it's a secret ballot." The fourth balloting followed these remarks and again indicated a lack of sentiment for the Union. At one of the sales meetings of flight 1, Respondent's President (Schryver), after getting from the employees some of the advantages and disadvantages of employees belonging to a union, listed such matters on a blackboard. When Schryver reached employee Jesse Murphy and asked him some of the advantages of a union, Murphy or Schryver (probably Murphy) injected into the discussion Murphy's personal activity on behalf of the Union. In any event, there is nothing in the record indi- cating that Respondent said or engaged in any specific conduct on this occasion to restrain or coerce employees active on behalf of the Union. Conclusions As indicated above, of the several incidents 1 involved in this case only one-the threat to close the plant-was on its face a violation of the Act and Respondent's subsequent conduct effectively repudiated this threat. However, a question remains as to whether these incidents taken together reveal a mosaic or pattern of inter- ference with, restraint, or coercion of employees in the exercise of their rights guaranteed in Section 7 of the Act. The answer to this problem involves a balancing of Respondent's right to express .its views, arguments, or opinions and the employee's right to engage in the activities guaranteed in Section 7 without employer inter- ference, restraint, or coercion. The Trial Examiner has little doubt that Respond- ent's conduct amounted to a constant reminder that Respondent was opposed to organization of its employees and consequently might interfere with employees in the exercise of their rights by swaying them toward Respondent's position. How- ever, such interference, in the absence of a context of hostility or coercive flavor (such as evidence indicating that Respondent was putting its employees on notice that Respondent was a potent organization whose opposition was to be avoided) 2 or threats of reprisal or force or promise of benefit, does not appear to be violative of the Act. See Section 8(c) of the Act and N.L.R.B. v. Roberts Brothers, 225 F. 2d 58, 60 (C.A. 9). In the light of the findings and conclusions made in this report it is readily apparent that in the opinion of the Trial Examiner the allegations of the complaint to the effect that Respondent violated Section 8(a) (1) of the Act should be dismissed. Ultimate Findings and Conclusions In summary, the Trial Examiner finds and concludes: 1. The evidence adduced in this proceeding satisfies the Board's requirements for the assertion of jurisdiction herein. i The threat to close the plant, the statements that Respondent would operate the plant despite its opposition to union activities as long as health and finances permitted, the recalling of prior experiences with the Union, the reading of The Reader's Digest article, and the secret ballots 2As noted above, Respondent at first indicated this but later (and repeatedly) indi- cated the contrary-that despite its opposition to the Union's activities it was going to keep its plant operating as long as health and finances permitted. BILINSKI SAUSAGE MANUFACTURING COMPANY, INC. 229 2. Sales Drivers, Sales & Service Local 176, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. 3. The evidence adduced does not establish that Respondent violated Section 8(a)(1) of the Act in the manner specified in the complaint (as amended at the hearing). [Recommendations omitted from publication.] Bilinski Sausage Manufacturing Company, Inc. and Amalgam- ated Meat Cutters, Butcher Workmen and Affiliated Crafts of North America, District Union Local No. 1, AFL-CIO and Local 294, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America and Independ- ent Employees Association of the Bilinski Sausage Mfg. Co., Inc., Party in Interest. Cases Nos. 3-CA-1443 (formerly 2-CA- 6797) and 3-CA-1444 (formerly 2-CA-6800). July 19, 1961 DECISION AND ORDER On November 28, 1960, Trial Examiner W. Gerard Ryan 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 Intermediate Report attached hereto. He further found that the Respondent had not engaged in any unfair labor practice within the meaning of Sec- tion 8(a) (2) of the Act, as alleged in the complaint, and recom- mended dismissal of the allegation pertaining thereto.' Thereafter, the General Counsel and the Respondent filed exceptions to the In- termediate Report and briefs in support thereof.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- -member panel [Chairman McCulloch and Members Leedom and Brown]. The Board 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations, except as modified herein. 'As no exception was taken to the Trial Examiner's finding that the Respondent did not violate Section 8 ( a)(2), we adopt such finding pro forma Accordingly , we shall ,dismiss the 8(a) (2) allegation of the complaint. 2 As the complaint did not allege that a strike , commencing on February 15, 1960, was an unfair labor practice strike, and as such issue was not litigated , we make no findings .on the General Counsel's exceptions based on the Trial Examiner 's failure to find that the strike was an unfair labor practice strike and on the Trial Examiner's failure to recommend relief for the strikers 132 NLRB No. 18.