Tanner's Cleaners

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the light of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. C & C Plywood Corporation is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Plywood, Lumber and Sawmill Workers Local Union No. 2405, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits employees of C & C Plywood Corporation to membership. 3. Respondent did not, through management's promulgation of a premium pay plan for glue spreader crew workers prior to consultation with union representatives, or through its refusal to rescind the plan upon union demand, refuse to bargain with the Charging Party, within the meaning of Section 8(a)(5) of the Act, as amended; nor has Respondent thereby interfered with, restrained, or coerced employees in their exercise of rights statutorily guaranteed, within the meaning of Section 8(a) (1) of the Act, as amended. RECOMMENDED ORDER Upon these findings of the fact and conclusions of law, and upon the entire record in the case, my recommendation is that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, dismiss the present complaint in its entirety. Cy Tanner d/b/a Tanner's Cleaners and Cleaning and Laundry Workers Union, Local 457, Amalgamated Clothing Workers of America, AFL-CIO. Case No. 5-CA-.671. August 25, 196 . DECISION AND ORDER On May 12, 1964, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. He further found that the Re- spondent had not engaged in another unfair labor practice alleged in the complaint and recommended that such allegation be dismissed. Thereafter, the Respondent and the Charging Union each filed excep- tions, with supporting briefs, to the Decision. Pursuant to the' provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and briefs, and the entire record in this case, and here- by adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order recom- 148 NLRB No. 48. TANNER'S CLEANERS 427 mended by the Trial Examiner and orders that Respondent, its agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. The complaint, with respect to any alleged unfair labor practices other than those found by the Trial Examiner, is hereby dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding on a complaint 1 pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein called the Act ), heard by Trial Examiner Joseph I. Nachman at Washington, D.C., on April 7, 1964 , involves allegations that Cy Tanner d/b/a Tanner's Cleaners (herein called Respondent or Company), violated Section 8(a)(1) and ( 3) of the Act. All parties were afforded full op- portunity to be heard, to adduce pertinent evidence , to examine and cross-examine witnesses, and to argue orally on the record . Oral argument was waived . Although indicating an intention to file a brief, neither the General Counsel nor Respondent did so. A brief was received from the Charging Union , and has been duly considered. Upon the pleadings , stipulations, evidence, and the entire record in this case, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT2 I. THE UNFAIR LABOR PRACTICES ALLEGED A. Interference, restraint, and coercion Respondent, a sole proprietor, operates a chain of nine retail laundry and dry- cleaning stores in the Washington , D.C., metropolitan area. Apparently after some organizational activity, Cleaning and Laundry Workers Union , Local 457, Amalga- mated Clothing Workers of America, AFL-CIO (herein called the Union ), filed a representation petition . An election was held November 15, 1963, resulting in its being certified , on November 26, 1963, as the collective -bargaining representative of Respondent's employees . During the course of the preelection campaign Respondent wrote certain letters to its employees which letters , while not alleged to be violative of Section 8(a)(1) of the Act, do demonstrate Respondent's union animus. The complaint alleges that during the preelection campaign Respondent interrogated employees concerning their union activities and sympathies , and the union activities and sympathies of their fellow employees , and shortly after the election requested an employee to engage in surveillance of another employee , an active adherent of the Union, for the purpose of securing evidence to be used by Respondent as a pretext in discharging the union adherent . These allegations are denied by Respondent. The evidence relating to those allegations is as follows: The day prior to the election held November 15, 1963, Tanner asked employee Freddie Bussey if he knew anything about the Union . Bussey replied that he thought the Union was a good idea. Tanner then told Bussey that the Union could not do anything for the employees that he (Tanner) could not do; that he could still hire and fire as he pleased.3 During the week preceding the election , Tanner asked employee McKeever Posey what she knew about the Union, and commented that he had heard that another em- ployee (Valarie Hiller), a friend of Posey's, had attended several union meetings.4 On the day preceding the election , Tanner also talked to employees in one of his stores, including Mary Charles, about the Union . Charles testified that on this oc- casion Tanner told the employees that if the Union were successful , he would never consider a 5-day week , which he felt the Union would be asking for. About 2 weeks after the election Tanner again discussed the Union with Charles , telling her that: i Issued March 11 . 1964, based on a charge filed December 16, 1963. z No issue of commerce or labor organization is involved . The complaint alleges and the answer admits facts which establish both of these elements I find the facts as pleaded 3 This finding is based on the undenied and credited testimony of Bussey. 4 This finding is based on the undenied and credited testimony of Posey. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he knew who had voted for the Union; he had helped some of those people and they had turned against him and voted for the Union; Charles was a young girl and he' felt she had been pushed into .voting for the Union by the others; some of these (specifically mentioning Hiller, among others), were troublemakers, and he had to get them, out in order to run his business the way he wanted to run it.5 At some un- disclosed time after the election,6 Tanner .called Charles and asked that she meet him at a designated place, saying he had something to discuss with her that he could not discuss at the store where Charles worked. When they met, Tanner told Charles, in substance, that he wanted to fire Varnell Peary because she was one of those pushing the Union and he could not have that in his business; Charles should watch her and work out something to get Peary out 7 According to Charles, Tanner did not at this time refer to Charles' practice of getting her own cleaning done at no cost to her by the device of "dummy tickets." 8 B. The discharge of Freddie Bussey Bussey was employed by Respondent for just over 2 years as a truckdriver. His duties consisted, for the most part, of picking up laundry and drycleaning from the various stores, taking it to a central plant for processing, and returning the processed garments to the stores to be claimed by the customer. In addition, Bussey was re- quired to stop at Tanner's home in northeast Washington, during his morning rounds, pick up Tanner's daughter and get her to a school in the vicinity of Glen Echo by 9 a.m. Bussey's starting salary was $55 weekly, and from time to time he received un- solicited increases so that his salary at the time his employment terminated was $70 weekly. Although Respondent introduced some testimony tending to show dereliction of duty on the part of Bussey, such as too many accidents with the truck, refusal to have it inspected, and delay in the delivery of supplies to the various stores, the fact remains that Tanner admitted that the aforementioned factors had nothing to do with the termination of Bussey's employment, and had he not refused to take his (Tanner's) daughter to school on November 18, as hereafter set forth, "his job would have been there." In fact, Tanner's position is that he did not discharge Bussey; that Bussey quit. The circumstances surrounding the testimony of Bussey's employment are basically undisputed. Bussey voted in the election held on Friday, November 15, and while he worked on Saturday, November 16, he did not see Tanner that day. On Monday. November 18, Bussey was late getting to work, arriving about 7:30 a.m., instead, of the fixed reporting hour of 7 a.m. Bussey explained that he had been out late the preceding night, and had overslept. According to Bussey, Tanner threatened to fire him if he was late again, and complained that Bussey would be late getting Tanner's daughter to school.9 According to Tanner, Bussey then replied that he had been told by the Union that taking Tanner's daughter to school was not part of his job 10 5 This portion of Charles' testimony was not undenied by Tanner, and I credit it 9 Charles' testimony does not disclose the precise time of this incident, except that it was after the conversation last referred to, and prior to February 1964, when Charles left Respondent's employ. Tanner fixed the time of this conversation as about 3 months before Charles quit 7 Peary had been active on behalf of the Union during the organizational campaign, hav- ing distributed authorization cards and obtained signatures to them. After the election she was a member of the Union's negotiating committee 8 Tanner admits a conversation with Charles on this occasion, but had a different ver- sion of what was said Tanner testified that he had learned from Peary that Charles was getting her own drycleaning done without cost by using "dummy tickets" ; on this occa- sion he asked Charles why she had done this and Charles told him Peary had shown her how to use the "dummy tickets," and she thought she could get away with it, he (Tanner) then told Charles that he knew Peary had been stealing, but he had no proof of it, and if she (Charles) would help get such evidence, it would be of help to Respondent ; Charles promised to help get the requested evidence and he promised to gives Charles "another chance " I do not credit Tanner because under the circumstances, including his demon- strated hostility to the Union, and the statements attributed to him which he did not deny, thus tacitly admitting them, I regard the testimony given by Charles to be the more probable. 9 Tanner did not deny that he threatened to fire Bussey for tardiness . I therefore credit Bussey in that regard. '° Bussey did not deny the statement attributed to him by Tanner who, in that regard, is corroborated by Thompson I therefore credit Tanner in that respect. TANNER'S CLEANERS 429 Tanner then told Bussey that if taking his daughter to school was too much trouble, just to forget about it, and asked Bussey for the keys to the truck.ll Tanner admitted that when he told Bussey "to forget about it," he meant Bussey's job, and that when he asked for the truck keys, he meant that Bussey was no longer employed by Respondent. Bussey handed over the keys, as requested by Tanner, and has not since worked for Respondent.12 II. CONCLUDING FINDINGS A. Interference, restraint, and coercion I find and conclude that Respondent violated Section 8(a)(1) of the Act by the following conduct, heretofore found, which tended to restrain and coerce Respond- ent's employees in the exercise of rights guaranteed to them by Section 7 of the Act: 1. The interrogation of Bussey and Posey as to what they knew about the Union, and the interrogation of Posey as to whether Hiller had attended union meetings. As this interrogation was plainly not for the sole purpose of determining whether Respondent was under a legal obligation to deal with the Union, the rule of Blue Flash Express, 109 NLRB 591, has no application here. See Zimnox Company, 140 NLRB 1229, 1234. 2. Tanner's statement to employee Charles that he knew who had voted for the Union. This statement was calculated to convey to Charles the idea that the union activities of his employees were under surveillance by Respondent , and tended to restrain or coerce them in the exercise of their Section 7 rights. 3. Tanner's request to Charles- that the latter work out some way to get rid of Peary because she was one of those pushing the Union , which he could not have in his business. B. The alleged 8 (a) (3) violation I find and conclude that the General Counsel has failed to establish by a pre- ponderance of the evidence that Bussey's discharge was discriminatorily motivated. It is true that Respondent's union animus had been established, and the dis- charge occurred shortly after the employees had, in a Board-conducted election, selected the Union as their representative. But it does not follow from those facts alone that Bussey's discharge was discriminatorily motivated.13 The latter is what the General Counsel must prove, if he is to prevail. In discharging Bussey, Tanner was motivated, I find, only by Bussey's statement that taking the daughter to school was not a part of the duties which Tanner could appropriately assign to him, and that he acted only because of this affront to managerial authority. Whether taking the daughter to school is a duty that Tanner should not have assigned to Bussey is not a relevant issue. So far as the Act is concerned , Tanner could assign Bussey to any duties, and if he discharged Bussey solely because of the latter's failure to perform those duties, as I have found to be the case here, there is no violation of Section 8(a)(3). Accordingly, I shall recommend that this allegation of the complaint be dismissed. 11 Madilyn Thompson, employed by Respodnent as a "trouble shooter"-that is, filling in for any absent employee-testified that she was present and heard the conversation be- tween Tanner and Bussey the morning of November 18 According to Thompson, Bussey, after announcing that it was not part of his job to take Tanner's daughter to school, threw the truck keys on the counter and walked out. As Tanner himself does not claim that the incident occurred as Thompson testified, and admits that he asked Bussey for the keys, I do not credit Thompson. 12In addition to the testimony set forth above, Mary Charles testified that when she met Tanner, as he had requested , the latter also mentioned that he couldn't take Bussey back ; that he (Tanner ) should have known Bussey "was pretty tight with some of the girls he wanted to get rid of " Later she testified that Tanner had said he hoped she was not mad at him ( Tanner ) for letting Bussey go, but he had to do it for reasons she would not understand. When confronted with her affidavit given the Board's agent, Charles admitted that she had there stated that Tanner told her that he fired Bussey be- cause he wouldn't take his daughter to school . In view of this inconsistency I do not credit Charles with respect to any statements allegedly made to her by Tanner as the reason for discharging Bussey. is In my view of the case, it is unnecessary to decide whether Bussey was discharged as the General Counsel contends, or quit, as Respondent contends. For the purpose of decision I have assumed that Bussey was discharged. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action found necessary to effectuate the policies of the Act. Upon the foregoing finding 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(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section II A, above, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The evidence fails to establish that the discharge of Bussey was discriminatorily motivated, and the allegations of the complaint in that respect should be dismissed. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, it is recommended that Cy Tanner, d/b/a Tanner's Cleaners, his agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interrogating his employees as to their union activities, or the union activities of their fellow employees. (b) Making statements to his employees which might reasonably be construed to mean that the union activities of such employees are or were under surveillance by Respondent. (c) Soliciting an employee to find a pretext for the discharge of other employees because of their activities in support of a union. (d) In any like or related manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist Cleaning and Laundry Workers Union, Local 457, Amalga- mated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at his principal office in Washington, D.C., and at each of his branch stores, copies of the attached notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for Region 5 of the National Labor Relations Board (Baltimore, Maryland), shall, after being duly signed by him or his duly authorized representative, be posted immediately upon receipt thereof, and shall be so maintained for 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. (b) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps he has taken to comply herewith.15 is In. the event, that this Recommended Order Is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in, the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be,further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 1 In the event that this, Recommended Order Is adopted by the Board, this provision shall be modified to read: "Notify said,; Regional Director, In, writing, within ,10 days from the date of this Order, what steps he has taken to comply herewith." INDEPENDENT STAVE COMPANY, INC. 431 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT interrogate our employees as to their union activities, or the union activities of their fellow employees. WE WILL NOT make statements to our employees that might reasonably be construed to mean that the union activities of our employees are or were under surveillance by us. WE WILL NOT ask our employees to find some excuse for discharging some other employee because of the latter's union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Cleaning and Laundry Workers Union, Local 457, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Cleaning and Laundry Workers Union, Local 457, Amalga- mated Clothing Workers of America, AFL-CIO, or any other labor organization. Cy TANNER D/B/A TANNER'S CLEANERS, Employer. Dated------------------- By-------------------------------------------- (Representative) (Title) 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Independent Stave Company, Inc. and Coopers International Union of North America, AFL-CIO and Local 42 of Coopers International Union of North America, AFL-CIO. Case Yo. 17-CA-.t78. August 25, 1964 DECISION AND ORDER On May 8, 1964, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices violative of Section 8(a) (5) and (1) of the Act and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Decision. Thereafter, the General Counsel and Respond- ent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. 148 NLRB No. 49.