Savoy Laundry, Inc.

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other protected activity by nonemployee organizers . Hence it is not enough, even under cases embracing this latter doctrine , to show that union officials were frus- trated in their organizing attempts and abandoned further union solicitation because such officials did not desire to subject employees to the risk of being discharged for signing union membership cards; an additional element must be also established, i.e., that employees will inevitably learn of the threat or coercive conduct. Ultimately, the problem then is to ascertain whether Hilderbrand 's threats did more than cause McLain and other union officials to stop organizing Ladd's em- ployees. This narrows down the issue to whether the circumstances touching upon Hilderbrand's uttering of threats insure that Ladd's employees will learn thereof. It is reasonable to infer-and I draw such inference-that Ladd's employees were insulated against feeling the coercive impact of such threats because there is no evidence in the record that McLain ever returned to the jobsite or otherwise com- municated with Ladd's employees after December 3, 1963. Accordingly, I find that the General Counsel's case must fail because proof is missing that any employee knew or was bound to be cognizant of Hilderbrand 's threats. It will therefore be recommended that the complaint be dismissed. Upon the basis of the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Baltimore Building and Construction Trades Council, AFL-CIO, is a labor organization within the meaning of Sections 2(5) and 8 (a) of the Act. 3. Respondent's foreman, Hilderbrand, is a supervisor under Section 2(11) of the Act. 4. Although Hilderbrand told McLain that Hilderbrand would discharge any em- ployees who signed union membership application cards or who he heard had signed the same, such statement standing alone does not transgress Section 8(a)(1) of the Act; there must also exist a showing that the, circumstances insure that Ladd's em- ployees would learn about it. Upon the credible evidence, the conclusion must be drawn that such assurance is lacking. 5. On the facts found herein Respondent has not engaged in any unfair labor practice solely because Hilderbrand 's threat alluded to in the preceding paragraph was neither heard by nor communicated in any manner to Ladd's employees. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in this proceeding, it is recommended that the complaint be dismissed. Savoy Laundry, Inc. and Food, Beverage and Express Drivers Local Union No. 145, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 2-CA-808,0. July 28, 1961 SUPPLEMENTAL DECISION AND AMENDED ORDER On May 24, 1962, the Board issued its Decision and Order in the above-entitled proceeding. The Circuit Court of Appeals for the Second Circuit issued its decree, on March 2, 1964, enforcing the Board's Order in all respects except that: (a) The provisions of said Board's Order calling for the reopening of Respondent's wholesale shirt division are hereby deleted from said Order; and (b) the back- pay awards in said Order are hereby remanded to said Board for fur- ther consideration. 148 NLRB No. 5. SAVOY LAUNDRY, INC. 39 We have reconsidered our Decision and Order of May 24, 1962, in the light of the circuit court's opinion,' and we believe its backpay provisions, despite the deletion of the restoration order, are neces- sary to effectuate the policies of the Act. A number of the discrimina= tees have worked for Respondent for many years and have skills which may be utilized in jobs connected with the operations which Respondent retained after discontinuing its wholesale accounts. Moreover, Respondent may have expanded its operations since' the hearing or may do so in the future, thus establishing the possibility that jobs will be available for the discriminatees when compliance is secured. Accordingly, the termination of backpay upon such rein- statement offer may be expected for some, if not all the discriminatees. And, as to those for whom jobs may not be available, backpay is terminable when they secure, or have secured, substantially equivalent jobs elsewhere. Thus, two alternate standards for terminating the accrual of backpay are set forth in the Order. • The court's concern that the latter standard, the date employees secure substantially equivalent jobs elsewhere, may result in a ". . . backpay award . . . without time limitation" impels us to ex- plain fully the basis for this novel backpay remedy as compared to the usual backpay order (which is expressed in the first alternative above). When, early in its existence, the Board established its usual backpay order, it set forth a broad formula for the computation of backpay, i.e. ". . . a sum of money equal to that which each [discriminates] would normally have earned as wages during the period from the date of his discharge to the date of . . . offer of reinstatement .. . less the amount which each earned subsequent to discharge... "a It was claimed at the time that such remedy was unfair and punitive. Thus it was asserted that an employer who, for economic reasons, ceased production some time after the illegal discharge, but before compliance, would not be in. a position to offer reinstatement and thus cut off backpay, and this circumstance would appear to require him to pay backpay indefinitely; or, a discriminatee could, after discharge,- take an extended vacation at respondent's ultimate expense; or a dis- criminates, who was disabled after discharge, would apparently be entitled to collect backpay despite the fact that he was not able to work and thus mitigate respondent's backpay obligation. Antici- pated evils of this kind could be multiplied virtually indefinitely. But the continued development of a body of backpay law has estab- lished reasonable rules for the fair administration of this remedy which have dispelled the fears. Thus, where an economic shutdown occurs, i.e., work is unavailable during a backpay period, backpay 1327 F 370 (C.A. 2), decided January 24, 1964. 2 Pennsylvania Greyhound Linea, Inc., 1 NLRB 1, affd. 303 U.S. 261. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not normally accrue; 8 discriminatees who do not make a reason- able search for work during a backpay period are denied backpay for such periods of willful idleness; 4 and discriminatees who have withdrawn from the labor market, whether by reason of disability or for other reasons, do not receive backpay for such periods of withdrawal.' These, and many other rules pertaining to the administration of the Board's backpay remedy, were developed as the cases arose. Nor has this process ended, for new situations, arising continually, require further clarification of the Board's remedy as applied to specific cir- cumstances. New rules concerning the administration of the remedy are announced as the cases are heard through the Board's compliance procedures. Compliance procedures are an indispensable element in assuring that Board remedies are equitably applied.- For it is almost axio- matic that the record before the Board concerning the unfair labor practice is inadequate for the spelling out of a precise, detailed remedy. Between the time of hearing and compliance, many new events may occur which have a critical bearing on backpay recovery by dis- criminatees such as changed pay rates, changed hours, changed em- ployment availability in respondent's plant, withdrawal of discrimi- natees from the labor market, their reemployment by respondent, etc. For this reason, the backpay remedy is extremely broad, leaving for the compliance stage the determination of relevant current circum- stances and the application of the remedy to such circumstances.6 If, at that time, the respondent objects to the way in which the Regional Director intends to administer the Order, it can avail itself of a second hearing at which the questions at issue are presented before a Trial Examiner and the specific factual circumstances bearing on these ques- tions are fully explored. A Supplemental Board Order would then issue as to such questions.' Both the original Order and the Supple- mental Order are subject to review by the circuit court of appeals. It is our intent, in formulating this backpay remedy, that estab- lished backpay rules governing the conduct of discriminatees will apply to this remedy as well. Thus, discriminatees will be required to make a reasonable search for work during periods of unemploy- s J. R. Todd, d/b/a Central Minerals Company, 59 NLRB 757; Satchwell Electric Con- struction Company, Inc., 128 NLRB 1265, 1279. ' Phelps Dodge Corp. v. N.L R B., 313 U.S. 177. Columbia Pictures Corporation, et al., 82 NLRB 568; Kopmon-Woracek Shoe Mfg. Co., 66 NLRB 789, enfd . 158 F. 2d 103 (C.A. 8). 6 The last paragraph of the Order below reserves to the Board ` . . the right to modify the backpay and reinstatement provisions of this Order , if made necessary by circumstances not now apparent." ' National Labor Relations Board, Rules and Regulations and Statements of Procedure, Series 8, as amended, U . S. Government Printing Office, Washington , D.C., 1962, Sections 102 52 through 102.59 , inclusive. SAVOY LAUNDRY, INC 41 ment, backpay will not accrue during periods when a disciimi natee is unable to work or othernise out of the labor market, etc And it is not unreasonable to assume that since the issuance of our oiiginal order herein, a matter of some years, most if not all of the discrimi- natees have succeeded in finding substantially equivalent employment, so that the question of unlimited backpay liability is in reality only a matter of academic importance In any event, we are not over- looking the possibility that theie are consideiations existing which would favor placing a limitation on the Respondent's backpay lia- bility despite a discrimmatee's unsuccessful seaich for equivalent em- ployment Thus, depending on evidence of the Respondent's business experience, it is conceivable notwithstanding its discrimmatoiy actions that at some point of time the Respondent, had it resumed operations pursuant to oui Order, would have been economically justified in terminating its wholesale shirt division and thus have limited its backpay liability However, until these problems are explored in a compliance pioceeding, we believe it is piematuie to assume that this remedy piovides unlimited backpay acciual We also believe this iemedy is less onerous than our standard re- instatement and backpay order Insofar as the disci iminatees for whom jobs are not available in Respondent's plant aie concerned, it falls somewhat short of restoimg the status quo ante They have been deprived of jobs, some of long standing, which this iemedy may not iestore If they secure substantially equivalent employment else- where, such employment must be as new employees without the pi o- tection of seniority and other rights and privileges And as for those discriminatees who have secured such employment and are later offered reinstatement pursuant to this Order, they will have had their backpay terminated as of the time of the earlier outside employment The Circuit Couit of Appeals for the Third Ciicuit has approved a Board backpay order which is substantially in this foim 8 More- over, the Circuit Court of Appeals for the Seventh Circuit, although disapproving the restoration-of-operations poition of the Board's Order in Hugh Mayor, d/b/a Hugh Mayor Truck Service 9 stated that it would have enforced an order "substantially in the foim proposed by the Trial Examinei," including a backpay piovision like that used herem 10 It is our view that, for the reasons stated above, ievision of our back- pay order is not required by the deletion of the restoration provision 8 N L R B v Philadelphia Dress Joint Board, etc (Sldele Fashions, Inc, et al ), 305 F 2d 825 (CA 3), enfg 133 NLRB 547 See also NLRB v St Cloud Foundry and Machine Co, Inc, 285 F 2d 429 (C A 8), enfg 130 NLRB 911, on petition for summary entry of decree 0129 NLRB 322 10 N L R B v Hugh Major, d/b/a Hugh Major Truck Service, 296 F 2d 466 (C A 7) 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMENDED ORDER11 Upon the entire record in this case, and pursuant to Section 10(c) of the Natinoal Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Savoy Laundry, Inc., Stratford, Connecticut, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Food, Beverage and Express Drivers Local Union No. 145, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization of its employees, by discharging or in any other manner discriminating in regard to their hire or tenure of em- ployment or any term or condition of employment. (b) Granting wage increases to its employees in order to under- mine the Union's authority and the rights of the employees to bar- gain through an exclusive bargaining agent. (c) Refusing to bargain collectively with the above-mentioned Union as the exclusive representative of all the employees in the following appropriate unit : All production and maintenance employees at Respondent's Strat- ford, Connecticut, plant, excluding office clerical employees, profes- sional employees, watchmen, guards, drivers, and supervisors as de- fined in the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to, refrain from any and all such activities, except as authorized in Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer reinstatement to their former or substantially equivalent jobs, as available, to the following employees: Lucille Wright Eliza Wright Hattie Moore Hattie Dawson Betty Lou Thigpen Nazie Ree Bobo Elaine Anderson Sarah Fernandes Lola Rodriguez Jessie Banks Margaret Simpson Anna Barnes Agnes Fields Easter Mae Byrd Sherry Tutt Lola Sanders Alice Robinson 11 So that all of the Respondent 's obligations hereunder may be contained in one Instru- ment, we have decided to issue an amended order containing not only our reaffirmation of those provisions of our previous Order which we have reconsidered, but also the provisions which have already been enforced by the court. , SAVOY LAUNDRY, INC. 43 Create a preferential hiring list containing the names of any em- ployees above-named for whom there, are not sufficient job openings and, as job openings occur thereafter, offer reinstatement to said em- ployees to their former or substantially 'equivalent jobs. The Re- spondent shall notify the Union and the listed employees of the estab- lishment of such list. (b) Make them whole for any loss of pay suffered by reason of the discrimination against them, from the date of their discharge on Feb- ruary 23 or 24, 1961, to the date of the offer of reinstatement or until such earlier time as each secures, or did secure, substantially equiv- alent employment with another employer, less any intermediate earnings. (c) Make whole Bertha Jones, Rosetta Madison, Elsie Rucker, Dorothy Teasley, and Ethel Whitley for any loss of pay suffered by reason of the discrimination against them, from the date of their dis- charge on February 23 or 24, 1961, to the date of their reinstatement, less any intermediate earnings. (d) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (e) Bargain collectively, upon request, with Food, Beverage and Express Drivers Local Union No. 145, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as exclusive bargaining representative of its employees, and, if under- standing be reached, embody such understanding in a signed agreement. 1(f) 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 determine the amounts of backpay due under the terms of this Order. (g) Post at its Stratford, Connecticut, plant, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent's representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. Mail copies of said notices, signed by Respondent's representative, immediately upon receipt thereof to the Union and to each of the listed employees. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (h) Notify'the Regional Director for the Second 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 FIIRTIIER ORDERED that the Board reserves to itself the right to modify the backpay and reinstatement provisions of this Order, if made necessary by circumstances not now apparent. MEMBER JEN$INS took no part in the consideration of the above Supplemental Decision and Amended Order. 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, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Food, Beverage and Express Drivers Local Union No. 145, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization of our employees, by discharging or discriminating against them in regard to their hire and tenure of employment. WE WILL NOT grant unilateral changes in wages of our em- ployees without consulting and bargaining in advance with the foregoing labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right of self- organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except as authorized in Section 8(a) (3) of the Act, as amended. WE WILL offer reinstatement to their former or equivalent jobs, as available, to the following employees: Lucille Wright - Agnes Field Hattie Dawson Elaine Anderson Jessie Banks Alice Robinson Lola Sanders Eliza Wright Betty Lou Thigpen Sarah Fernandes Margaret Simpson Sherry Tutt Easter Mae Byrd Hattie Moore Nazie Ree Bobo Lola Rodriguez Anna Barnes SAVOY LAUNDRY, INC. 45 WE WILL create a preferential hiring list containing the names of any employees aforenamed for whom there are not sufficient job openings and as job openings occur we will -offer reinstate- ment to these employees to their former or substantially equiva- lent jobs. WE WILL make whole the above-named employees for any loss of pay from the date of their discharge on February 23 or 24, 1961, to the date of the offer of reinstatement, or until such earlier time as each secures, or did secure, substantially equivalent em- ployment with another employer, less any intermediate earnings. WE WILL make whole the following named employees for any loss of pay from the date of their discharge on February 23 or 24, 1961, to the date of their reinstatement, less any intermediate earnings. Bertha Jones Ethel Whitley Rosetta Madison Elsie Rucker Dorothy Teasley WE WILL make whole for any loss of pay any employee named in the fourth indented preceding paragraph, above, for whom no job openings are available that are the same or substantially equivalent to their former jobs and who have not been offered re- instatement, by paying her a sum of money equal to the amount she would normally have earned as wages from the date of her discharge on February 23 or 24, 1961, until such time as she se- cures, or did secure, substantially equivalent employment with another employer, less any intermediate earnings. WE WILL bargain, upon request, with Food, Beverage and Ex- press Drivers Local Union No. 145, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, with respect to the unit consisting of all production and maintenance employees at our Stratford, Connecticut, plant, ex- cluding office clerical employees, professional employees, watch- men, guards, supervisors, and drivers. SAVOY LAUNDRY, INC., Employer. Dated---------------- By-------------------------------------- (Representative ) (Title) NoTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, 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. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. Mary Carter Paint Co., Victor Paint Co. Division , Petitioner and Retail Store Employees, Local Union No. 876, Retail Clerks International Association, AFL-CIO, Petitioner and Amalga- mated Clothing Workers of America , Retail and Department Store Employees, AFL-CIO, Petitioner. Cases Nos. 7-RM-475, 7-RC-6129, 7-RC-6133, and 7-RO-6134. July 28, 1964 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held in De- troit, Michigan, before Hearing Office Ruth Greenberg. The Hear- ing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. Retail Store Employees, Local Union No. 876, Retail Clerks International Association, AFL-CIO (Retail Clerks), seeks a unit of Mary Carter Paint Co., Victor Paint Co. Division (Employer) em- ployees at the 14 Detroit and Pontiac, Michigan, stores. The unit sought would include the warehouse manager, store managers, assist- ant store managers, and sales employees and would exclude the wall- paper sales manager, the divisional sales manager, and the area sales manager, Sidney Fields. The Amalgamated Clothing Workers of America, Retail and Department Store Employees, AFL-CIO (Amalgamated), seeks two multistore units, one consisting of the above specified employees at the Employer's Detroit and Pontiac 148 NLRB No. 6.