New French Benzol Cleaners and Laundry, Inc.

11 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that the Respondent violated Section 8 (b) (1) (A ) of the Act in the incidents herein set forth. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with its business operations described in section I, above, 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 certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom , and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Local 452, International Union of Operating Engineers , AFL-CIO , is a labor organization within the meaning of Section 2 ( 5) of the Act. 2. By threatening to inflict bodily injury upon employees, damaging property, and blocking or interfering with the ingress and egress of employees and others at the premises of Giles & Ransome , Inc., the Respondent has restrained and coerced the employees of the Company in the exercise of rights guaranteed by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and ( 7) of the Act. [Recommendations omitted from publication.] New French Benzol Cleaners and Laundry , Inc. and Anne Burke, Joyce Cone, Frances Durant, Katherine Smith, and Joyce Vaughn. Cases Nos. 12-CA-2145-1,12-CA-2145-2, 12-CA- 2145-3, 12-CA-2145-4, and 12-CA-2145-5. November 21, 1962 DECISION AND ORDER On June 25, 1962, Trial Examiner Henry S. Salim issued his Inter- mediate 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 attached Intermediate Report. There- after, counsel for the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. 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 [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error has been committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings and conclusions of the Trial 139 NLRB No. 88. NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC. 1177 Examiner only to the extent that they are consistent with the Decision herein. 1. The Trial Examiner recommended dismissal of the 8(a) (1) allegation with respect to the Respondent's conversation with Joyce Cone on September 18, 1961. We do not agree. Shortly after, and on the same day as, the meeting with Teamsters Business Representative Schutzer in which Isadore Hershkovitz, Re- spondent's president, refused to recognize the Union, Hershkovitz had a conversation with Joyce Cone in his private office during which he said : "Joyce, what is this I hear about you girls joining the union?" And, I said, "Yes we did, Mr. Izzy," and he said, "Well the union isn't going to help you, it's only going to hinder you." And I didn't say anything during this whole conversation. I just sat there and listened and he said, "Do you know what Eli Schutzer said to me when he was here this morning?" "No," I said, "I have no idea." ... "I asked him what he could do for you girls and he said nothing but as long as they want to give me their money I'll take it." He said Doris who was the Assistant Bookkeeper ... had come into his office and said that she was approached by us about joining the Teamsters Union and about signing a card, and that she refused, and Mr. Izzy said that Doris told him that "she thinks that you are just a bunch of silly kids" and I still didn't say anything. Contrary to the Trial Examiner, we do not view these comments as merely an innocuous inquiry. Rather, the Respondent thereby unlaw- fully interrogated Cone as to the union status of the employees and threatened reprisals for joining. The Board has held that interrogation is proper "where it is clear from the record that the only purpose was to ascertain whether a union demanding recognition actually represented a majority and where the interrogations . . . were communicated to the employees with as- surances against reprisals . . . in a background free from hostilities to unions."' These elements of permissible interrogation are not present here. There is no claim that the Respondent sought to achieve a legitimate purpose by its question, and the warning that the Union was not going to help the employees and was only going to hinder them carries the clear implication that the employees would be better off without the union.' This was thus a thinly veiled threat which revealed the Respondent's hostility toward the Teamsters and was calculated to interfere with the employees' union activities.' Also, it is patent 'Frank Sullivan and Company, 133 NLRB 726, 727, citing Burke Golf Equipment Corporation, 127 NLRB 241, 245. 2 See Produoera, Inc., 129 NLRB 1161, 1164 3 Id., at 1164-1165. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that by attributing to Schutzer 4 the statement that the Union could do nothing for the office employees but take their money, and by referring to Doris Hayes' remark, the Respondent was further exhibiting its hostility to the Union and attempting to undermine the Union's prestige in the eyes of its adherents. We further reject the Trial Examiner's conclusion that the Respondent's prior amicable relation- ship with the two unions representing its other employees 5 precluded the possibility of any present union animus. While this may show the absence of a general hostility to all unions under any circumstances, it is hardly conclusive evidence as to the Respondent's reaction in any present or future context involving other employees. Accordingly, the Board must determine from all the facts what the Respondent's posi- tion is as to the particular situation. Here, the Respondent, by its statements to Cone and by its rejection of the Teamsters' request for recognition on the untenable ground that it believed the Laundry Workers rather than the Teamsters had jurisdiction,6 clearly demon- strated its hostility to the Teamsters as the representative of its office employees. Accordingly, we conclude that, by interrogating Cone in a coercive manner, the Respondent violated Section 8(a) (1) of the Act' 2. We find, in agreement with the Trial Examiner, that the Re- spondent terminated Katherine Smith for good cause and not for any antiunion considerations. The record establishes that Smith had a high rate of absenteeism and was excessively late on several occasions despite repeated warnings by the Respondent. 3. Contrary to the Trial Examiner, we find that the termination of Frances Durant on September 25 was prompted by antiunion moti- vation rather than any valid economic considerations as contended by the Respondent. The overwhelming evidence on the record effectively negates any alleged economic necessity warranting her discharge. Uncontra- dicted testimony reveals that the Respondent's business fluctuates sea- sonally, with an uptrend from the first part of September until the end of March and a slack period through the summer until the be- ginning of the fall season; that for the 6-week period preceding Durant's discharge, the total business of the laundry department be- gan increasing from about mid-August; that the Respondent adver- At the hearing, Schutzer denied making the statement. The record establishes that the Laundry Workers International Union, Local 222, rep- resented all of the plant employees since 1956, and that the General Sales Drivers and Allied Employees Union, Local No. 198, an affiliate of International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , has represented the route truckdrivers since 1960. 6 It is well settled that employees are entitled to representation by the union of their choice if that union is willing to represent them. 4 Skyline Homes, Inc , 134 NLRB 155. The absence of evidence that any employee was actually intimidated by the Respondent's conduct is immaterial. Drennon Food Products Co., 122 NLRB 1353, 1356. NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC. 1179 tised in a local newspaper for NCR operators 8 on September 22, 23, 24, 25, 28, and 29, 1961, in response to which several applicants ap- peared at Respondent's office beginning on September 22; that the Respondent granted a pay raise to Katherine Smith in mid-September in fulfillment of its promise to do so when "business picked up"; and that in the preceding 4 years no other NCR operator had ever been laid off for lack of work. Thus, although the Respondent hired Durant in July when business was at its lowest point she was termi- nated in late September when business was approaching the peak season.9 It is apparent from these facts that the claim of economic necessity must be rejected. The Respondent's open hostility to the Union, its repeated adver- tisements for NCR operators prior to Durant's discharge, and its sub- sequent discharge of the remaining three NCR operators and re- placement of all five discharged employees, including Durant, are inconsistent with its assertion of economic justification. It is clear that the Respondent must have had knowledge of the five NCR operators' union activities at this time. The record shows that on September 16 the Respondent learned that a majority of the office employees desired to be represented by the Teamsters. Within a few days the Respondent began advertising for, and interviewing, NCR operators, although it did not then have any actual vacancies. In fact, the Respondent eventually discharged and replaced only the five employees doing this work. The inference is thus inescapable that Respondent knew which of its employees favored the Union 10 and intended to eliminate most or all of them. Further, the Respond- ent's knowledge of Durant's union activities is also inferable from its precipitate action in terminating her almost immediately after it learned of the Teamsters organizing campaign," its false asser- tion that her dismissal was necessitated by a lack of work, and the fact that the Respondent discharged her permanently rather than laying her off. Under all the circumstances, we are persuaded and find that Frances Durant was discriminatorily terminated for her union activities in violation of Section 8(a) (3) of the Act. 8 The Respondent's only National Cash Register operators were the five alleged dis- criminatees named herein . These five were also the only office employees who had signed union cards. 9It is clear that the Respondent did not lay off Durant, as it alleged , but in fact dis- charged her permanently. This is evidenced by Vice President Aaron Hershkovitz ' state- ment to her at the time of her termination that "if business picks up, I'd just hire another girl." 10 An additional ground for so inferring is that the Respondent must have gained knowledge as to which of its employees were union adherents from the additional fact that there was only a small number of office employees in the unit working in an area immediately adjoining the offices of Respondent's officials. Standard Rate & Data Service, Inc, 133 NLRB 337; Wiese Plow Welding Co., Inc, 123 NLRB 616, 618. it See Allied Distributing Corporation and Standard Optical Company, 130 NLRB 1348, 1349-1350, enfd. 297 F. 2d 679 ( C.A. 10 ) ; Skyline Homes, Inc., supra. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Trial Examiner found that Burke, Cone, and Vaughn had quit when they announced their refusal to work in protest of the discharge of Smith and Durant. We disagree. The record establishes that as a result of the discharge of Smith and Durant, the five girls met outside the plant on September 26, shortly before starting time. When Respondent's vice president, Aaron Hershkovitz, saw them outside and asked Burke, Cone, and Vaughn why they were not working, Vaughn replied that they refused to work until Smith and Durant were rehired. Hershkovitz thereupon told them to "go home, just go home." Burke, Cone, and Vaughn then decided to go to the office for their paychecks since they believed that they had been discharged.12 An argument ensued, the Respondent contending that the three girls had quit and could not, therefore, ob- tain their checks until Friday, the next regular payday. The girls insisted that they had not quit but had been fired and were entitled to their pay immediately. They were thereupon given their paychecks and rejoined Smith and Durant outside the plant. The five girls then began picketing the plant but without picket signs. In a short time three plant employees who were just arriving at work and two plant employees who left the plant joined the picket- ing office employees. The 10 girls continued to patrol around the plant, advertising the grievances vocally. The Respondent summoned the police, and upon their arrival Isadore Hershkovitz informed them that he had fired all of these girls and wanted them arrested. All 10 were taken to the police station but were released shortly thereafter. The Respondent permitted the five plant employees to return to work that same day. It is obvious from the above facts that Burke, Cone, and Vaughn were engaged in concerted action which constituted lawful strike ac- tivity protected by Section 7 of the Act. Under the circumstances here, the absence of prior union authoriza- tion of the concerted activity did not render their conduct unpro- tected.13 Nor was the strikers' failure to discuss the discharges of za It was the Respondent's practice to issue paychecks to dischargees immediately but to make final payment on the next regular payday to employees who quit voluntarily 13 See Phiianz Oldsmobile, Inc., 137 NLRB 867; Sunbeam Lighting Company, Inc, 136 NLRB 1248. While Member Leedom dissented in those cases , he believes that the instant case is distinguishable therefrom In Philanz, he found that a strike by employees to compel a consent election was not authorized or ratified by the union and, as the em- ployees did not elect to withdraw their designations of the union which was seeking a Board-directed election pursuant to these designations , such an unauthorized strike is tantamount to a strike in derogation of the authority vested by the employees in their representative . He cannot make such findings here . In Sunbeam, Member Leedom found that an unauthorized walkout of employees to compel granting of their bargaining de- mands derogated from the status of their certified bargaining representative , then en- gaged in bargaining on their behalf. Here, again , he can make no such findings in the instant case. Here, unlike Sunbeam, the union had not established status as exclusive bargaining representative of the employees ; and, unlike Phiianz and Sunbeam, the em- NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC. 1181 Smith and Durant with the Respondent fatal, since the Respondent it- self foreclosed any further discussion by directing them to go home immediately upon learning of their grievances. Furthermore, as we have found that Respondent's discharge of Durant was unlawful, and as Burke, Cone, and Vaughn struck at least in part to protest Durant's discharge, it follows that the three were unfair labor practice strikers.14 We also conclude from the above facts that the Respondent dis- charged the striking office workers. Thus, Burke, Cone, and Vaughn repeatedly stated that they had no intention of quitting; payment was made to them on the date of termination rather than the next usual payday; and Hershkovitz himself informed the police that he had fired all of the strikers. In these circumstances, we are persuaded by Aaron Hershkovitz' statement directing the girls to "go home, just go on home" immedi- ately upon learning of their collective action, and in view of the absence of any asserted good cause for their termination, that the Re- spondent seized the occasion to rid itself of Burke, Cone, and Vaughn solely because of their known union activities and their participation in the strike. It is well settled that an employer may not punish its employees for engaging in protected concerted activities.15 As we have concluded that these three employees were discharged because they had en- gaged in and were engaging in conduct which we have found to be protected union and concerted activities, we find that the Respondent's retaliation against them constituted a violation of Section 8(a) (3) and (1). 5. The Trial Examiner recommended dismissal of the 8 (a) (1) al- legation in the complaint concerning the arrest of the unfair labor practice strikers because he found that the strikers engaged in name calling and trespassed upon the Respondent's property, and that some plant employees' complaints prompted the Respondent to summon the police. However, we do not find that the language employed by the strikers, as set out in the Intermediate Report : "Hey you chicken... . You coward. . . . You're afraid ; you're scared . . . ," constitutes misconduct so flagrant as to remove the protection of the Act.15 We note further that Aaron Hershkovitz was unable to name even one of the alleged complaining employees, and the Respondent failed to as- ployees' concerted activity in question was not inconsistent with, or in opposition to, any action of the union . Under the circumstances , Member Leedom agrees with his colleagues in this case that the concerted activity of the employees here was protected activity not- withstanding the absence of prior union authorization 14Mitchell Concrete Products Co, Inc., 137 NLRB 504 16 N.L R B. v. Washington Aluminum Company, Inc, 370 U.S. 9. 16 See Stewart Hog Ring Company, Inc., 131 NLRB 310, 313, footnote 7. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sert either of the above factors or the alleged trespass as the basis for the arrest. In addition, although the Trial Examiner found that the strikers stepped onto the driveway adjoining the plant, there is no evidence that this created any real threat to Respondents' property. Furthermore, the immediate release of the employees and the absence of further action persuades us that in fact no good grounds for arrest existed. Nor is there any indication that the strikers' conduct would constitute good grounds or that the Respondent had any reason to be- lieve that it did." On the contrary, the record forcefully shows that the Respondent was not motivated by any of the above factors but, rather, sought to harass the strikers in order to stifle their concerted activities. Thus, the evidence reveals that the Respondent's real concern 18 was the fact that some of its plant employees had already joined forces with the strikers, thereby doubling the number of striking employees. Further, Isadore Hershkovitz' bald assertion to the police that he had fired all of these girls and his sole reliance upon this when he sought their removal from the premises indicates that the strike activity was the real reason and the alleged improper conduct was a mere afterthought and pretext. The Board has held that such action in causing the arrest of striking employees in order to interfere and restrain its employees in the con- duct of their strike activity is violative of Section 8 (a) (1) of the Act is Accordingly, we find that the Respondent, by thus interfering with its employees' right to engage in protected, concerted activities guar- anteed by Section 7, has violated Section 8 (a) (1) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with its operations described in the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. The unfair labor practices found are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 17 See The W. T. Rawleigh Company, 90 NLRB 1924 , enfd . as modified in other respects 190 F 2d 832 (CA 7). 1B This is illustrated by Aaron Hershkovitz ' testimony on direct examination , ". . . Then 2 other girls joined them , 2 other Colored girls, and as a matter of fact, one girl had just started working there the day before and she joined them and I was surprised myself at what happened and I didn't even have time to know them or for them to know me or for anybody to do that, and all they did is talk to the employees and to wave their hands like this, that they should come out and join them." 19 The W. T. Rawlesgh Company, supra. NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC. 1183 THE REMEDY As we have found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully discharged Frances Durant on September 25, 1961, 1 day prior to the strike, we shall, in accordance with established Board policy,20 order that the Respondent offer her immediate and full reinstatement to her former or sub- stantially equivalent position, without prejudice to her seniority or other rights and privileges, and make Durant whole for any loss of pay suffered as a result of the discrimination against her, by payment to her of a sum of money equal to the amount she normally would have earned from the date of discrimination to the date of an offer of rein- statement 21 Having also found that the Respondent unlawfully dis- charged Anne Burke, Joyce Cone, and Joyce Vaughn, we shall order that the Respondent offer Cone and Vaughn 22 immediate and full reinstatement, upon application, to their former or substantially equiv- alent position, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired to replace them. We shall also order that, in the event Respondent's refusal, if any, to reinstate Cone and Vaughn upon request, that the Respond- ent make them whole, by payment to each of them a sum of money equal to that which she would normally have earned as wages during the period from 5 days after the date on which she applies for rein- statement to the date of Respondent's offer of reinstatement .13 All backpay will be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 28924 Because the discriminatory discharge of Durant, Cone, and Vaughn and the Respondent' s entire course of conduct evince a studied intent to thwart the rights of employees in freely selecting their collective-bargaining representative, we shall issue a broad cease-and-desist order. 20 Knickerbocker Plastic Co , Inc., 132 NLRB 1209, 1212 ; Interior Enterprises, Inc, 125 NLRB 1289, 1290. 21 A P W Products Co, Inc., 137 NLRB 25. 22 Anne Burke is excepted from this Order because she was offered reinstatement by the Respondent but has refused to return to work. z1 See Central Oklahoma Milk Producers Association, 125 NLRB 419 , enfd. 285 F. 2d 495 (C A. 10). 24 Backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. For the reasons stated in his dissent in that case, Member Leedom would not award inter- est on backpay and does not approve the award here. 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAw 1. The Respondent, New French Benzol Cleaners and Laundry, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, General Sales Drivers and Allied Employees Union, Local No. 198, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organ- ization within the meaning of Section 2(5) of the Act. 3. By interrogating Joyce Cone concerning the employees' member- ship in, sympathies for, and activities on behalf of the General Sales Drivers and Allied Employees Union, Local No. 198, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a) (1) of the Act. 4. By terminating Katherine Smith for good cause, the Respondent did not engage in an unfair labor practice within the meaning of Section 8(a) (3). 5. By discriminatorily discharging Frances Durant, Anne Burke, Joyce Cone, and Joyce Vaughn because of their union and concerted activities, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 6. By causing the arrest of the unfair labor practice strikers, the Respondent has engaged in an unfair labor practice within the mean- ing of Section 8 (a) (1) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, New French Benzol Cleaners and Laundry, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in General Sales Drivers and Allied Employees Union, Local No. 198, an affiliate of International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other organization, by discriminatorily discharging any of its employees because of their union membership or activities, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating its employees as to their membership in, sym- pathies for, or activities on behalf of General Sales Drivers and Allied Employees Union, Local No. 198, an affiliate of International Broth- NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC. 1185 erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Frances Durant immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole in the manner set forth in the section of this decision entitled "The Remedy," dismissing, if necessary, any employee hired to replace her. (b) Upon application, offer Joyce Cone and Joyce Vaughn imme- diate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section of this decision en- titled "The Remedy," dismissing, if necessary, any employees hired to replace them, and make each of them whole for any loss of pay suffered by her as a result of its failure to reinstate her within 5 days after her unconditional application for reinstatement. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay which may become due and the rights of employment under the terms of this Order. (ci) Post at its plants at Miami, Florida, copies of the attached notice marked "Appendix." 25 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by the Respondent or its representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. 25 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 Ordei" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent has engaged in any unfair labor practices except as specifically found above. APPENDIX 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 discourage membership in General Sales Drivers and Allied Employees Union, Local No. 198, an affiliate of Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of our em- ployees, by discriminatorily discharging any of our employees be- cause of their union membership or activities, or by discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees as to their membership in, sympathies for, or activities on behalf of General Sales Drivers and Allied Employees Union, Local No. 198, an affiliate of Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, in a manner constituting interference, restraint, or coercion in viola- tion of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, to bar- gain 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 re- frain from any and all such activities. WE WILL offer to Frances Durant immediate and full reinstate- ment to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings suffered by her as a result of our discrimination against her. WE WILL offer Joyce Cone and Joyce Vaughn, upon application, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each whole for any loss of pay NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC. 1187 suffered as a result of our failure to reinstate her within 5 days after her application. NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Serv- ice Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 112 East Cass Street, Tampa 2, Florida, Telephone Number, 223-4623, if they have any question concerning this notice or compli- ance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding upon a complaint issued on November 15, 1961, and amended on November 28, 1961, against New French Benzol Cleaners and Laundry, Inc., herein called both the Respondent and the Company, involves independent viola- tions of Section 8(a)(1) and (3) allegations of discriminatory terminations of five individuals. The proceeding was initiated by charges and amended charges filed by Anne Burke, Joyce Cone, Frances Durant, Katherine Smith, and Joyce Vaughn, the alleged discriminatees herein, on various dates between September 27, 1961, and October 25, 1961. The hearing was conducted on January 4 and 5, 1961, at Miami, Florida, before Trial Examiner Henry S. Sahm. The General Counsel presented oral argument but filed no brief and the Respondent filed a brief on February 23, 1961. Upon the entire record in the case, and from observation of the demeanor of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent is a Florida corporation engaged in the operation of a drycleaning and laundry establishment and also operates retail stores in the greater Miami area. Respondent annually purchases directly from and receives from sources outside the State of Florida, detergents, cleaning fluid, and other supplies in an amount in excess of $18,000. Respondent annually performs services valued at an amount in excess of $500,000. The Respondent in its answer admits that it annually performs services in excess of $500,000 and that it receives from sources outside Florida cleaning supplies in excess of $18,000, but denies it is engaged in commerce within the meaning of the Act. This inflow of out-of-State supplies is sufficient to give the Board legal jurisdiction over Respondent's operations. N.L R.B v Cowell Portland Cement Company, 148 F. 2d 237, 242 (C.A. 9), cert. denied 326 U.S. 735; Joliet Contractors Association et al. v. N.L R.B., 193 F. 2d 833, 840-842 (C.A. 7). See also N.L.R.B. v. Vulcan Forging Company, 188 F. 2d 927, 930 (C.A. 6); N.L.R.B. v. Dixie Terminal Co., 210 F. 2d 538 (C.A. 6), cert. denied 347 U S. 1015. Respondent apparently contends that a different conclusion is required because the out-of-State supplies were not shipped directly to it from outside the State. But this contention overlooks the fact that 672010-63-vol. 139-70 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act is not limited (as are some Federal statutes-cf. F.T.C. v. Bunte Bros., 312 U.S. 349, 351; Kirschbaum Co. v. Walling, 316 U.S. 517, 522, 523) to activities in interstate commerce, but extends to activities affecting interstate commerce. A cessa- tion of Respondent's business due to a strike would "affect" commerce at least to the extent that the demand for out-of-State supplies would be curtailed by $18,000 per year. Since this impact on commerce is more than de minimis,' the Act's juris- dictional requirement is met. As the Supreme Court stated in United States v. Women's Sportswear Mfrs'. Assn., 336 U.S. 460, 464, in discussing an analogous problem under the Sherman Act: The Trial Court appears to have dismissed the case chiefly on the ground that the accused Association and its members were not themselves engaged in inter- state commerce. This may or may not be the nature of their operation con- sidered alone, but it does not matter. Restraints, to be effective, do not have to be applied all along the line of movement of interstate commerce. The source of the restraint may be intrastate, as the making of a contract or combination usually is; but neither matters if the necessary effect is to stifle or restrain commerce among the states. If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze. The Board has held that in addition to showing that a retail company's annual business amounts to at least $500,000 a year, as required to meet the Board's mone- tary standard for asserting jurisdiction, it must be shown that the Retailer's opera- tions affect interstate commerce in order for the retail employer to come within the Board's jurisdiction? In this regard what the Court of Appeals for the Second Circuit had to say in N.L.R.B. v. Reliance Fuel Oil Corporation 3 is particularly pertinent: Section 2(7) of the National Labor Relations Act defines " affecting commerce" as "in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." Therefore, if the em- ployer is himself engaged in interstate commerce, without more the jurisdic- tion of the Board is established. If the employer is not engaged in interstate commerce, the acts in question must lead or tend to lead to a dispute which must burden or obstruct the free flow of interstate commerce. We believe that in enacting this double test Congress intended the courts to examine whether or not a labor dispute involving only employers not engaged in interstate com- merce did or did not directly or indirectly burden or obstruct interstate com- merce. Had Congress meant to give the Board jurisdiction of all labor disputes involving employers who purchased more than a de minimis amount of supplies which had at one time moved in interstate commerce, it would have been easy enough to say so. The Board stated in the Jackson's Party case, supra, that: The Board's current standard for exercising jurisdiction over a retail concern which falls within its statutory jurisdiction is a minimum gross annual volume of business of $500,000. Carolina Supplies and Cement Co., 122 NLRB 88. In such instances, however, some proof must be made of legal or statutory jurisdiction, that is, that the employer involved is engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended, in addition to a showing that the relevant gross volume test has been met. Catalina Island Sightseeing Lines, 124 NLRB 908; Westside Market Own- ers Association, 126 NLRB 167. . It is not enough to show that the Em- ployer's gross annual volume of business satisfies the Board's standards for asserting jurisdiction over retail establishments. The Board's authority over commerce is very broad. It even extends to local activities [which] "in the interlacings of business across State lines affect such commerce." Polish National Alliance of the United States of North America v. N.L.R.B., 322 U.S. 643, 647. Its jurisdiction, perhaps, is limited only to the extent that de minimis non curat lex. N.L.R.B. v. Fainblatt, et al., 306 U.S. 601. How- '12V L R.B. v. Fainblatt, et al , 306 U S 601, 606 ; N.L.R B. v Harvey Stoller, d/b/a Richland Laundry & Dry Cleaners. 207 F. 2d 305, 307 (C.A 9), cert. denied 347 U.S. 919; N.L.R B. v. Mid-Co Gasoline Company, 183 F. 2d 451, 452 (C.A. 5) ; N.L.R.B. v. Gulf Public Service Company, 116 F. 2d 852, 854 (C.A. 5). s James D Jackson, d/b/a Jackson's Party Service, 126 NLRB 875. 3 297 F. 2d 94, cert. granted 369 U.S. 883. NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC. 1189 ever, as to what is precluded by the de minim is maxim must be determined on a case-by-case basis subject, of course, to the Board's relevant gross volume test being satisfied.4 In 1950 when the Board adopted for the first time monetary jurisdictional standards, it stated: 5 it would better effectuate the purpose of the Act, and promote the prompt handling of major cases, not to exercise its jurisdiction to the fullest extent possible under the authority delegated to it by Congress, but to limit that exercise to enterprises whose operations have, or at which labor disputes would have, a pronounced impact upon the flow of interstate commerce. In 1954, the 1950 jurisdictional standards were changed at which time the Board stated: In making these modifications, we have given due consideration to all of the criteria spelled out by the Board in 1950, including (1) the problem of bringing the caseload of the Board down to manageable size, (2) the desirability of reducing an extraordinarily large caseload in order that we may give adequate attention to more important cases, (3) the relative importance to the national economy of essentially local enterprises as against those having a truly sub- stantial impact on our economy, and (4) overall budgetary policies and limita- tions. If one of the inevitable consequences of our action is to leave a somewhat larger area for local regulations of disputes, we do not share our colleagues' apparent view that this is a sinister development. We do say, however, that a desire to establish broader State jurisdiction is in no wise a factor in our decision. We are concerned here solely with the problem of defining the limits of our jurisdiction pursuant to the discretionary power vested in us by the Congress.6 On October 2, 1958 (Press Release R-576), the Board announced the adoption of revised jurisdictional standards? The reasons for its action is detailed in Siemons Mailing Service, 122 NLRB 81. At page 84 of that decision, the Board stated: Under the new standards, the Board will continue to apply the concept that it is the impact on commerce of the totality of an employer's operations that should determine whether or not the Board will assert jurisdiction over a par- ticular employer. It would appear, therefore, that the full sweep of Congress' power under the commerce clause-and hence of the Act's coverage-is not limited to operations which are "in commerce," but extends to local and intrastate activities which would have an impact on the free flow of commerce. The reach of the National Labor Relations Act is thus to be tested by determining whether interstate transportation or the flow of commerce across State lines would tend to be impeded if the business immediately involved were disrupted as a result of a labor dispute caused by unfair labor practices. If so, the Act applies, regardless of the volume of interstate com- merce affected, provided it is more than de minimis.8 The Board has recently held in a case which is dispositive of the issue raised by Respondent that under the same facts as are applicable in the case at bar, Respond- ent was engaged in commerce. In the Crystal Laundry and Dry Cleaning Company case,9 the Respondent operated a retail laundry and drycleaning enterprise in Ohio. Its gross annual sales were in excess of $600,000 and it had an indirect inflow from points outside Ohio which was "in excess of $18,000." The Board found that the Respondent was engaged in commerce.io See N L R B. v. Suburban Lumber Company, 121 F. 2d 829 (C.A. 3). Hollow Tree Lumber Company, et at., 91 NLRB 635, 636. e Breeding Transfer Company, 110 NLRB 493, 497. 7 See Appendix A attached hereto 8 N L R B v. Fainblatt, et at., 306 U S. 601, 607; Santa Cruz Fruit Packing Co v. N L R.B., 303 U.S. 453, 467; N L R B. v. Bradford Dyeing Association, 310 U.S. 318, 326; N.L R.B. v. Denver Building and Construction Trades Council, et at., 341 U.S. 675, 684 ; N L RD. v. Suburban Lumber Company, 121 F. 2d 829, 832 (C.A. 3), cert. denied 314 U S. 693 9132 NLRB 222. 10 Cf. N.L.R.B. v. Michael Benevento, et at., d/b/a Benevento Sand t Gravel Company, 297 F. 2d 873 (C.A. 1), where the court held that : The Board may not base assertion of jurisdiction over employer engaged in local sand and gravel business solely upon admitted allegation that employer sold products valued in excess of $50,000 in previous year to concrete company within same State, which company purchased and received in same year from outside State products valued in excess of $50,000. Impact, if any, of purely intra- 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is found, accordingly, that the Respondent in this proceeding is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction over it. U. THE LABOR ORGANIZATION General Sales Drivers and Allied Employees Union, Local No. 198, an affiliate of 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. M. THE ALLEGED UNFAIR LABOR PRACTICES A. The testimony Katherine Smith, Frances Durant, Joyce Cone, Anne Burke, and Joyce Vaughn, the alleged discriminatees, comprised five of the nine women employed by Respond- ent in its office.ll They all did clerical work operating various types of business machines. Katherine Smith went to the Teamsters Union hall on September 14, 1961, and obtained authorization cards from Eli Schutzer, business manager of the Union. At the solicitation of Smith, these union authorization cards were signed by Burke, Cone, Durant, and Vaughn on September 15, but Doris Hayes, the bookkeeper, and Grace Armstrong, the telephone operator, refused to sign cards. Smith returned the five signed cards to Schutzer on September 15. The same day that he received the five signed cards, Schutzer mailed a letter to Respondent stating the Union represented a majority of its office employees and requested that Respondent recognize it as bargaining representative of these em- ployees. A meeting was arranged for September 18, with Isadore Hershkovitz, president of Respondent Company. Hershkovitz told Schutzer that inasmuch as its employees, with the exception of its route drivers,12 had been represented by the Laundry Workers International Union, Local 222, since 1956, that he believed it would be more appropriate for that union to represent the office clericals. The meeting ended at this point on a friendly note with the matter left open for further discussion. On the morning of September 22, Smith was called into the office of Aaron Hersh- kovitz, vice president of Respondent, and notified that he was terminating her services as of the close of business that day due to repeated tardiness and absenteeism in the 10 months she had been working for the Company. Hershkovitz told Smith he was discharging her because she had continued to disregard his repeated requests to report for work on time, not to take 2 hours for lunch, and not to leave the office before quitting time. Smith immediately telephoned Schutzer, the Teamsters' representative, and advised him that she had been fired. It appears, although the record is not clear as to the details, that Schutzer, the Teamster Union's representative, that same morning, con- tacted Louis Siegel, president of the Laundry Workers Union, who represents Respondent's plant employees, to intervene with Respondent's officials on behalf of Smith, to give her another chance. This was done and Smith was rehired by Respondent the morning of the same day she was discharged. The same day she was rehired, which was a Friday, Aaron Hershkovitz testified that Smith "took two hours for lunch" and the following Monday, September 25, she was approximately an hour late in reporting her work, whereupon she was again discharged about 4:30 p.m. but not before Aaron Hershkovitz first reported to Schutzer that Smith had continued to disregard the previous warnings and that he was going to discharge her that same day. Frances Durant was called into the office of Aaron Hershkovitz around 4 p.m. on September 25 and told by him that she was being laid off because "business is slow." On cross-examination, Durant testified she was "laid off," not fired, and Hersh- state activity upon interstate commerce is not to be determined by application of formula, but must be determined by Board as matter of fact in each case ; question whether employer's operation "affected" commerce may depend, at least in part, upon whether concrete company could readily supply its needs for sand and gravel by purchase from other producers In neighborhood if employer's operations should cease because of labor difficulties Il The other four were Dorothy Barnes, office manager, Gazella Newman, payroll clerk, Doris Hayes, bookkeeper, and Grace Armstrong, telephone operator 12 The Respondent's route drivers previously were represented by the Laundry Workers Union but since November 6, 1960, the Teamsters Union has represented them. NEW FRENCH BENZOL CLEANERS AND LAUNDRY, IN C. 1191 kovitz testified she was laid off ". . . because of lack of work . . ." When Schutzer, the union representative, heard of this, he telephoned Isadore Hershkovitz who told him, "that business was slow and he didn't need the amount of girls that he had and that he was letting [Durant] go and that she was the last girl." Schutzer, the Teamsters' union representative, testified that he asked Isadore Hershkovitz the reason for Durant's layoff and was told that Durant was being laid off because she was the last office clerical hired and on the basis of seniority she was the first to be let go. It is uncontradicted that Durant's layoff was in the order of seniority. When the other three alleged discriminatees, Burke, Cone, and Vaughn learned of Smith and Durant being terminated on September 25, they arranged to meet after work at the Teamsters' office. At that time they decided to meet at the Respondent's plant the following morning to "protest" the discharge of Smith and Durant.13 The five girls met on the outside of the plant the following morning. They all walked onto the parking lot, where they spoke to two of the Respondent's route truckdrivers relating to them what had occurred. Jerry Feldman, one of the routemen and a member of the Teamsters Union, testified that the girls said "... they were not working there.. . ... At approximately 8:30 a.m., Aaron Hershkovitz walked over to where the girls were talking to the routemen and asked Vaughn, Cone, and Burke why they were not at their desks in the office and working as it was past 8 o'clock, the time that the office employees commence work. Joyce Vaughn replied, ". . . we refuse to work until Katherine Smith and Frances Durant [are] rehired" to which Hershkovitz said: "Well, you might as well go home" although he assured Vaughn, Burke, and Cone that he had not fired them but that they had quit.14 These three girls then went to the office while Smith and Durant, the two who had already received their checks when they were terminated the day before, waited outside the plant. Hershkovitz asked Burke, Cone, and Vaughn to return on Friday, the regular payday, but the three girls told him they would not leave until they were paid, whereupon he had checks made out to their order but not before reiterating that he had not fired them but rather they had quit. After Vaughn, Cone, and Burke received their checks, they left the office around 9 o'clock and rejoined Smith and Durant outside the plant. The five girls then decided to picket the plant. As they were about to began picketing the plant, they saw three 'laundry and dry cleaning department employees walking toward them who were reporting for work at 9 a.m.15 A discussion ensued and these three employees joined them in picketing the plant. As the eight girls walked on the sidewalk around the plant, they began to shout to the workers inside the plant that they had been unjustly fired and they asked them to join them.16 Katherine Smith, on cioss-examination, testified as follows: Q. Well, why were you telling them all these things? Were you trying to get them to come out and join you? A. Yes. * * * * Q. You just wanted them to come out and let the machines operate by them- selves. Is that what you want the Examiner to understand? A. Sir, in my understanding of a strike it doesn't matter what machine is moving or isn't moving if the people leave it. That is the company's obliga- tion to have them started up again. * * * * * * * Q. You were trying to get all the people to come out of the plant and join you in your protest? A. Yes. "Durant testified they decided "we would strike or picket in protest of what they had done to Katherine Smith and myself " 14 According to Aaron Hershkovitz' version, Joyce Vaughn, when told that he was not going to put Smith or Durant back to work, said: "Well, then . . . we are all quitting" to which he replied, "If you are quitting go on home." 15 These girls previously were ordered to report at 9 a.m. instead of the regular starting time of 8 am as this was the slack summer season for Respondent 's plant until the tourist season commenced. 19 Joyce Cone testified that as they walked around the plant they asked the workers in- side "to help us." It appears that they would have to shout in order to be heard by the employees inside the plant, as the sidewalk on which they were walking was about 21 feet from the plant and the machines in the plant, which were operating, make considerable noise. Smith also testified it was necessary for them to raise their voices in order to be heard by the workers inside the plant. 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two more girls, who worked in the laundry and dry cleaning department , then came out of the plant and joined the eight who were already picketing. After the picketing by the 10 girls continued for some period of time and the em- ployees inside the plant left their work and came to the windows to see what was going on outside, Isadore Hershkovitz, Respondent's president, asked Jerry Feld- man, one of the route truckdrivers , if he would ask the pickets to quiet down and not make so much noise as they were disrupting the operations of the plant . 17 Feldman conveyed the request to the 10 picketing girls but according to Aaron Hershkovitz' testimony, Feldman reported back to him that "It looks like they are not even listen- ing to me." The Respondent thereupon called the police who arrived at the plant around 11 a.m. The 10 pickets were arrested and taken to the police station. The five employees who joined the five alleged discriminatees in picketing the plant returned to work the same day they were arrested. Conclusions It should be noted at the outset that all of the Respondent 's approximately 150 employees (except the 9 office workers ) were members of the Laundry Workers and Teamsters Unions which the Respondent had recognized and had entered into collective,bargaining contracts with for some years past. There is uncontroverted evidence that the Respondent and Unions had enjoyed amicable bargaining relations extending back to 1956. This probative and significant factor also casts doubt upon the General Counsel 's contention that the five girls were discriminatorily terminated in retaliation for engaging in union activities .18 . a crucial element-independent evidence of antiunion motivation-essential to finding a prima facie case of discrim- ination within the meaning of the Act , is lacking." 19 1. The discharges Katherine Smith, in the approximately 10 months she was employed by Re- spondent, was chronically late and repeatedly absent from work and on a few occasions she did not notify any of Respondent's officials she would not be in to work .20 She admitted she was absent from work six or seven times, once for 2 days, but on these occasions, she testified, she either had a neighbor telephone the plant or she would notify her coworker, Anne Burke, an alleged discriminatee in this proceeding 21 The office hours were 8 a.m. to 5 p.m. Grace Armstrong, Respondent's telephone operator, testified that Smith on various occasions would report for work at 10 or 11 Aaron Hershkovitz testified that he heard the pickets call to the employees inside the plant: "Hey you chicken . . . You coward . . . . You're afraid ; you're scared . . " i6 N.L R B v. Chronicle Publishing Company, Inc , 230 F 2d 543, 547-548 (C A. 7), where the court said: We think It pertinent to observe that the Board has long pressed upon courts the importance to be attached to a hostile anti -union attitude on the part of an employer in characterizing its acts This has often been referred to as background, and in innumerable cases has been utilized for concluding that an act by an employer, otherwise innocent, is discriminatory. Conversely, we think that an employer with a friendly, sympathetic union attitude is entitled to credit in characterizing its acts which in themselves may not be discriminatory. 1e Economy Stores, Incorporated, 120 NLRB 1 , 8; Schwab Manufacturing Company v. N.L.R.B., 297 F. 2d 864 ( C.A. 5). See also Celanese Corporation of America , 95 NLRB 664, 667, and N.L R B. v. Reed d Prince Manufacturing Company, 205 F. 2d 131, 139- 140 (CA 1). 20 This finding Is based upon the credible testimony of Aaron Hershkovitz and Grace Armstrong who impressed the Trial Examiner favorably Smith's testimony is not credited that she was never told by Respondent to notify an official or the telephone operator or office manager when she would be absent from work. Equally implausible Is Vaughn's testimony that the Respondent did not reprimand her on those occasions when she was absent from work and did not so notify them. Moreover , the rebuttal witnesses' answers (except Schutzer ) were voiced in response to leading suggestive questions pro- pounded by the General Counsel which further militates against the weight to be given their testimony , as the vice in a leading question is that it suggests the desired answer which the witness will often merely adopt. 21 Burke testified on rebuttal that Smith telephoned her seven or eight times she would not be in to work and neighbors telephoned "the rest of the time " NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC. 1193 10:30 a.m., take 2 hours for lunch, and leave work as early as 2 or 2:30 p.m. Armstrong testified that on September 11, Smith reported for work at 11 a.m.; Sep- tember 12 at 9 a.m., and took 2 hours for lunch; September 13 she came to work at 8.30 a.m.; at 9 a in. on September 14; and on September 15 at 9:30 a.m. When it was pointed out to Smith on cross-examination that it was company rules to notify either the telephone switchboard operator, her supervisor, or a company official that she would be absent from work, she incredibly testified that as far as she was concerned Anne Burke (an office clerical) "was my supervisor, and in a small way, although Mr. Aaron [Hershkovitz] was the boss." Nor is her testimony believable that she was not instructed by Respondent to call plant officials to advise them when she would be absent from work. Moreover, it is incredible, as the General Counsel's witnesses testified on rebuttal, that it was in accordance with company policy when calling in to report they would not be at work for them to notify their coworkers in the office and not the company officials directly or through the telephone operator whose duty it is reasonable to infer was to report such absences to management. To ignore the fact that employers require their employees to notify company officials or other designated personnel under such circumstances is to ignore the facts of industrial life and how businesses operate. Such testimony not only does not withstand scrutiny in the light of orthodox indus- trial realities but is manifestly implausible in that it would compel a disregard of human experience in such matters. Aaron Hershkovitz testified that he warned Smith on three or four occasions in August and September about reporting late for work, taking more than a half hour for lunch, and leaving work before quitting time. Smith originally admitted that she was late for work three or four times a week, then changed her testimony by claiming she was late only once or twice a week. She also acknowledged she was late "several" times, "a half hour or an hour after 8:00 o'clock and on one occasion I came in 2 hours after 8.00 o'clock." She also testified that although lunch was a half hour, she took 1 hour because, as she justified it in her own words "what can you do in a half hour." She also justified her repeated tardiness by explaining that when Aaron Hershkovitz brought this to her attention, she told him that other office employees also came in late. Hershkovitz testified that he explained to her that when the Company tolerated reasonable tardiness on the part of its employees, it was because it was infrequent and they were late only a few minutes?a When Hershkovitz warned her, Smith testified, "I didn't want to argue the point any further. . ." which might be taken as a tacit admission on her part that Hershkovitz' point was well taken. On September 22, when Smith was fired the first time, she testified that when Hersh- kovitz told her that he was discharging her for tardiness and absenteeism, she only "thanked [him] and I just walked out." On September 25 when she was discharged for the second and final time, she was told by Isadore Hershkovitz, according to her own testimony: "You are always coming in late and staying out without any cause and fooling around in the office and other things. . . . He had my final check and I thanked him and walked out " Smith remaining silent other than to thank her employer who had just finished firing her would not seem to comport with the normal behavior of an aggrieved employee who claims she has been unfairly, un- justly, and discriminatorily discharged. Then too, Aaron Hershkovitz testified he feared that over a period of months Smith's flagrant and repeated disobedience of working hours would have an adverse effect on morale insofar as setting a bad example for the other office employees The company policy against tardiness, overstaying lunch time, leaving early, and unreported absences from work was repeatedly breached. It was up to Respondent to determine the appropriate disciplinary action and the trier of these facts cannot say that its choice of penalty was unreasonable under the circumstances revealed here or that its discharge of Smith discloses an attempt to seize upon Smith's rereated flaunting of Respondent's working rules as a means of getting rid of an active union proponent. On the contrary, the record shows Respondent's patient efforts to deal in an evenhanded manner with a situation which could have under- mined the office employees' morale and ultimately interfered with the efficiency of the office staff was the motivating reason. Corroborative of this conclusion that Smith was discharged for nondiscriminatory cause is Respondent rehiring Smith because if it wanted to rid itself of her, it would not have reinstated her after she 22 Anne Burke on rebuttal testified that when she was late it was "mostly a quarter or an hour" and she characterized Respondent's attitude and policy with respect to tardi- ness as being "very nice" 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was originally discharged on September 22. It is concluded and found, therefore, for the reasons stated above that Smith was discharged for good cause 23 Frances Durant, it is found, was laid off for economic reasons, namely, lack of work due to a seasonal decline in business. There is not a scintilla of evidence, as delineated above, to substantiate the General Counsel's contention that union activi- ties motivated Respondent's actions. On the conrary, it is uncontradicted that there is an appreciable decrease in Respondent's business each year during the summer when Miami feels the results of the fluctuations in the number of winter residents in that area 24 It is found therefore, that neither wrongful motives nor proscribed reasons motivated Respondent in laying off Durant but rather that her dismissal resulted from a planned program to reduce personnel as an economic measure made necessary by vahd economic reasons. 2. The picketing incident With respect to the five alleged discriminatees' testimony that their purpose in picketing Respondent's plant was to "protest" the terminations of Smith and Durant, it is significant that at no time prior or subsequent to the picketing did they request the opportunity to discuss these terminations with Respondent's officials. On cross- examination, Smith testified as follows: Q. . So you went there for the purpose of protesting the fact that you were fired. Now, who did you make your protest to? A. We were going to protest by striking or by walking. Q. Then you were not going there to ask management to reinstate you. . But you went there to protest by trying to get other people to come off the job and to stop work. A. Not only me sir, as an individual; it was the 5 of us. Q. And who did you go to to protest; some of the drivers wasn't it; is that right? A. Yes. * * * * * * Q. So you went there for the sole purpose then of causing a disturbance and trying to disrupt business. A. No, I did not, sir. Q. You went there, to one one in authority, asking them to put you back to work or to protest your firing for union activities, as you call it. A. Yes. Q. Well, who did you go to in authority and who did you ask to put you back? A. I am answering your questions, I think, wrong, sir, but what I am answer- ing is as a concluding remark. In making my statement over again, I said yes, it's correct, I did not go to anyone in authority. As for the contention of the General Counsel that Cone, Vaughn, and Burke were discharged prior to the time they began picketing, this contention is belied by Smith's testimony, on cross-examination, that subsequent to the time they began picketing, and while walking around the plant, she called out to the employees inside that "we refused to go back to work." It is found, accordingly, that Cone, Vaughn, and Burke were not discharged but that they quit voluntarily in protest of Smith and Durant's terminations.25 Indicative of the circumstances under which this picketing was initiated and con- ducted is the significant fact that Schutzer, the Teamsters' business agent, whom these five girls authorized to represent them, neither authorized the picketing nor knew anything about it. In fact, when Isadore Hershkovitz telephoned Schutzer during the picketing episode and protested to him about the girls creating a disturbance outside the plant, Schutzer testified: ". . . I told him I didn't know anything about it, 23 Froit+y Morn Heats, Inc v N L R B, 296 F 2d 617 (C A 5) ; N L R B v Fontaine- bleau Hotel Corp, d/b/a Hotel Fontainebleau, 300 F. 2d 662 (CA 5). See Section 10(c) which provides, in part, that an employee discharged "for cause" shall not be reinstated. a See footnote 15, supra 23 Whether the alleged discriminatees' picketing under these circumstances was un- protected activities is not here decided as it is not believed necessary to so find in order to resolve the salient issues in this proceeding. It might be noteworthy, however, that the shouting of the girls importuning working employees inside the plant to join them is not orthodox picketing procedures where the marchers normally employ picket signs or handbills. NEW FRENCH BENZOL CLEANERS AND LAUNDRY, INC. 1195 didn't know what was going on ...." Schutzer also testified that the girls never told him of their intention to picket Respondent's plant.26 The General Counsel's allegation in the complaint that Respondent refused to reinstate Cone, Vaughn, and Burke is contrary to the evidence. Vaughn testified that she never asked to be reinstated. Moreover, not only were they assured by Aaron Hershkovitz on the morning of September 26 when they refused to return to work that he had not fired them but he also sent one of his route truckdrivers to Burke's home after the picketing incident to ask her to return to work. In fact, Burke told Feldman, Respondent's truckdriver, the day after the picketing incident, that she "was dissatisfied with the office job." 3. The alleged violations of Section 8(a)(1) The complaint alleges: Since on or about September 14, 1961, and continuing to date, Respondent has interfered with, restrained and coerced, and is interfering with, restraining and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, by the following acts and conduct: (a) On or about September 18, 1961, Respondent, by its president, Isadore Hershkovitz, interrogated employees concerning their attitude toward the Union and their union activities. (b) On or about September 29, 1961, in reprisal against its employees because of their union and other concerted activity, Respondent informed its employees that they could no longer receive incoming personal telephone calls, nor could they any longer place outgoing personal telephone calls. (c) On or about September 25, 1961, Respondent caused local police to arrest certain of Respondent's employees who were lawfully exercising their right under the Act to picket in protest of Respondent's unfair labor practices. In determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1), the test is whether the conduct is reasonably calculated, or tends, to interfere with the free exercise of the rights guaranteed by the Act.27 Then too, in determining this, consideration must be given to all the attendant circumstances 28 It might be well to mention, therefore, that in determining whether Respondent violated Section 8(a)(1) consideration has been given also to Respondent's amicable relationship with the two unions who represented all of its approximately 150 plant and truckdriver employees. Joyce Cone testified that on September 18,29 when she brought coffee to the office of Isadore Hershkovitz, he said to her: "Joyce, what is this I hear about you girls joining the union?" And, I said, "Yes we did, Mr. Izzy," and he said, "Well the union isn't going to help you, it's only going to hinder you." And I didn't say anything during this whole conversation. I just sat there and listened and he said, "Do you know what Eli Schutzer said to me when he was here this morning?" "No," I said, "I have no idea." .. . "I asked him what he could do for you girls and he said `nothing but as long as they want to give me their money I'll take it.' " He said Doris who was the Assistant Bookkeeper . . . had come into his office and said that she was approached by us about joining the Teamsters Union and about signing a card, and that she refused, and Mr. Izzy said that Doris told him that she thinks that "you are just a bunch of silly kids" and I still didn't say anything. In determining whether the allegation of the General Counsel that Isadore Hershkovitz' conversation, supra, is coercive interrogation within the meaning of Section 8(a) (1), the following factors must be considered: the background in which the conversation took place, the time and manner under which it was made, and all of the surrounding circumstances necessary to conclude whether or not such con- versation had the coercive characteristics proscribed by Section 8(a)(1) of the Act.30 Applying these indicia, it is found that the General Counsel's contention is 'a Sebutzer denied that he had threatened to file an unfair labor practice charge if the girls were not reinstated 27 N L R.B. v. Illinois Tool Works, 153 F. 2d 811 , 814 (C.A. 7). 28 N L R B v. Popeil Brothers , Inc, 216 F 2d 66, 68 (C A 7). 2DThis conversation occurred the same day , shortly after Schutzer, the Teamsters' business agent, had been in to see Isadore Hershkovitz about the Union representing the office clericals 30 United Fireworks Mfg. Co., Inc. v. N.L.R B ., 252 F. 2d 428, 430 (C.A. 6). 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wholly without the support of substantial evidence in the record taken as a whole. Based on Cone's own testimony, Hershkovitz' conversation with her is no more than innocuous inquiry which is not prohibited by the Act and it was so understood by Cone. The impact of interrogation on an employee determines its legality and there is nothing to show or from which it might be interred that the conversation with Cone was interpreted by her as coercive. The conversation shows it was neither threatening nor conducted otherwise than in a friendly and casual manner. Moreover, the record is devoid of any evidence that it had "the slightest effect in actually preventing or discouraging membership in the union." 31 Corroborative of this conclusion is the uncontradicted evidence showing Respondent never evi- denced animus or any other manifestations of hostility toward unions or its employ- ees' union activities Moreover, this conversation was not an unfair labor practice for the reason that Hershkovitz' remarks contained no expression of "threat of reprisal." Section 8(c) of the Act. And in the absence of any evidence adduced by the General Counsel of Respondent's prior union hostility, no veiled threat can be inferred from this conversation. Accordingly, it is found that this conversation did not constitute unlawful interference, restraint, or coercion within the meaning of Section 8(a)( I) of the Act. Frances Durant and Joyce Cone testified that on September 25, they were notified that all employees could no longer use company telephones for personal calls There is not a scintilla of evidence that the curtailment of this privilege was for the purpose of discouraging union activity among the employees. On the contrary, in view of Respondent's exemplary record and relationship with the unions in this proceeding, in conjunction with the right of an employer to initiate changes in his business operations to increase efficiency, it is found that the General Counsel has not proved by a preponderance of the evidence that this rule change was motivated by pro- scribed considerations. The General Counsel's representative has not cited any authority for the allega- tion in the complaint that Respondent causing the pickets to be arrested was a violation of Section 8(a)(1). The General Counsel in an administrative ruling did refuse, however, to issue a complaint upon a union's charge that a respondent violated the Act when pickets were arrested.32 Under the circumstances in the instant proceeding, it is found that the arrest of the pickets was not a violation of the Act within the meaning of Section 8(a)(1). The facts with respect to the allegation that Respondent violated Section 8(a)(1) when it caused the alleged discrimmatees to be arrested for picketing the plant has been discussed above. The record is clear that the Charging Parties, at times, during the course of their picket- ing, trespassed on Respondent's property, shouted derogatory statements, and called the employees in the plant names, all of which resulted not only in a commotion but also disrupted the operation of the plant to such an extent that some of the working employees requested Aaron Hershkovitz to see what he could do about having the pickets removed from outside the plant. In the absence of any legal precedent by the Board holding that the arrests of the five alleged discriminatees under these circumstances is an unfair labor practice and the Trial Examiner is unaware of any, it will be recommended that this allegation of the complaint be dismissed. In view of the foregoing conclusions, and upon the entire record, it is found that the evidence warrants no finding that the Respondent committed unfair labor prac- tices within the meaning of Section 8 (a) (3) and (1) of the Act, and it will, therefore, be recommended that the complaint be dismissed in its entirety.33 i Schwob Afanufactnring Company v N L.R B, 297 F 2d 864 (C.A. 5). 32NLRB General Counsel administrative ruling, No F-69S (1958), 43 LRRb11045 13 The conventional "Conclusions of Law" which are customarily repeated at this point are omitted as they will be found in the body of the Intermediate Report APPENDIX A The following is a compilation of the jurisdictional standards, together with the Board decisions in which the particular standard was promulgated: 1. Nonretail: $50,000 outflow or inflow, direct or indirect. Siemons Mailing Service, 122 NLRB 81. Direct inflow refers to goods shipped or services furnished by the employer outside the State. Indirect outflow includes sales within the State to users meeting any standard except solely an indirect inflow or indirect outflow standard. Direct inflow refers to goods or services furnished directly to the em- ployer from outside the State in which the employer is located. Indirect inflow refers to the purchase of goods or services which originated outside the employer's State but which he purchased from a seller within the State. Direct and indirect SOUTH RAMBLER COMPANY 1197 outflow may be combined and direct and indirect inflow may also be combined to meet .the $50,000 requirement. However, outflow and inflow may not be combined. 2. Office buildings: Gross revenues of $100,000, of which $25,000 or more is derived from organizations which meet any of the standards except the indirect out- flow and indirect inflow standards established in the Siemons Mailing case, Mistletoe Operating Co., 122 NLRB 1534. 3. Public utilities: $250,000 gross volume of business, or $50,000 outflow or inflow, direct or indirect. Sioux Valley Empire Electric Association, 122 NLRB 92. 4. Newspapers and communication systems-radio, television, telegraph, and telephone: $100,000 gross volume of business. Raritan Valley Broadcasting Co., Inc., 122 NLRB 90. Newspapers: $200,000 gross volume of business. Belleville Employing Printers, 122 NLRB 350. 5. Retail: $500,000 gross volume of business. Carolina Supplies and Cement Co., 122 NLRB 88. 6. Hotels: $50,000 gross revenues. Floridan Hotel of Tampa, 124 NLRB 261. 7. Transportation enterprises, links and channels of interstate commerce: $50,000 gross revenues from furnishing interstate transportation services, or performing service§ valued at $50,000 or more for enterprises which meet any of the standards except the indirect outflow and indirect inflow -standards established in the Siemans Mailing case. H.P.O. Service, Inc., 122 NLRB 394. 8. Transit systems: $250,000 gross volume of business. Charleston Transit Company, 123 NLRB 1296. 9. Taxicabs: $500,000 gross volume of business, retail standard applies. Carolina Supplies and Cement Co., 122 NLRB 88, 89, footnote 5. 10. National Defense: Board asserts jurisdiction over all enterprises, as to which it has statutory jurisdiction, whose operations have a substantial impact on national defense. Ready Mix Concrete and Materials, Inc., 122 NLRB 318. South Rambler Company and Taxi Cab Drivers, Chauffeurs and Helpers, Local No. 762, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 17-CA-1957. November 01, 1962 DECISION AND ORDER On August 9, 1962, Trial Examiner Harold X. Summers 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 attached In- termediate Report. The Trial Examiner also found that the Re- spondent had not engaged in any other unfair labor practices as alleged in the complaint. Thereafter, the Respondent and the Gen- eral Counsel filed exceptions to the Intermediate Report and briefs in support thereof.' 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 [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The I The Respondent's request for oral argument is denied inasmuch as the positions of the parties are adequately set forth in the record, exceptions, and briefs. 139 NLRB No. 104. r