Macke Laundry Service Co. of D.C.

MACKE LAUNDRY SERVICE COMPANY 1 Macke Laundry Service Company of D.C. and Wash- O-Matic Service Co. and District Lodge No. 67, International Association of Machinists and Aero- space Workers, AFL-CIO. Cases 5-CA-4620 and 5-CA-4826 April 23, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On November 16, 1970, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled pro- ceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that the Respondents cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent Wash-O-Matic Ser- vice Co. filed exceptions to the Trial Examiner's Deci- sion and a supporting brief, and Respondent Macke Laundry Service Company of D.C. filed a brief sup- porting the exceptions. The General Counsel filed a memorandum in support of the Trial Examiner's Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, briefs, and memo- randum, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Re- spondents, Macke Laundry Service Company of D.C. and Wash-O-Matic Service Co., Beltsville, Maryland, their respective officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' We have affirmed the Trial Examiner's findings that Price and Gill were not supervisors and that the Respondents' conduct toward them violated the Act. Accordingly, we find it unnecessary to pass upon his additional com- ments regarding the effect of Respondents' actions had the employees in fact been supervisors. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge filed on January 7, 1970, by District Lodge No. 67, International Association of Machinists and Aerospace Workers, AFL- CIO, and an amended charge filed thereafter on March 17, 1970, both against Macke Laundry Service Company of D.C., a Respondent herein, the Acting Regional Director for Region 5 of the National Labor Relations Board, herein re- ferred to as the Board, issued a complaint on behalf of the General Counsel of the Board alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq. ), herein called the Act.' Thereafter, following the submission by counsel for the Gen- eral Counsel of certain data in explication of allegations of the complaint on motion of Respondent's counsel and pursuant to order of Trial Examiner Charles W. Schneider, Respond- ent filed its answer wherein, while admitting certain allega- tions of the complaint, it denied the commission of any unfair labor practice. Subsequently during the course of the trial of this matter, as will be described in fuller detail hereafter, a charge was filed on June 26, 1970, by the Charging Union herein against Wash-O-Matic Service Co., also a Respondent herein, and during the trial before me, upon motion of coun- sel for the General Counsel on July 21, 1970, over the objec- tion of Attorney Thomas Canafax, appearing in behalf of both Respondents, and after extended argument, the two cases were consolidated and the complaint amended accord- ingly. Pursuant to notice the trial was held before me in Washing- ton, D.C., on June 24 and 25, July 21 and 22, and August 5, 1970, where all parties were present and afforded full oppor- tunity to be heard, present oral argument, and file briefs with me.' Briefs were filed September 25, 1970, by Respondents and counsel for the General Counsel. Upon consideration of the entire record, including the briefs filed with me, and specifically upon my observation of each witness appearing before me,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE NATURE OF THE RESPONDENTS' BUSINESSES Respondent Macke Laundry Service Company of D.C., hereinafter referred to as Macke, is a District of Columbia corporation with its office and plant presently located at 5006 Herzel Place, Beltsville, Maryland, where it receives and con- ditions laundry machines and dryers, distributes them among apartment houses and garden apartments throughout the metropolitan area of Washington, D.C., and installs them for operation and use at such locations. During the course and conduct of its business operations during the year immedi- ately preceding the issuance of the complaint herein Macke received at its Maryland plant from points and places outside the State of Maryland machinery and equipment valued in excess of $50,000 and received revenues in excess of $50,000 from the distribution and installation of its products in the District of Columbia and the Commonwealth of Virginia.' During the course of the trial of this matter the General Counsel's motion was granted for the withdrawal of those allegations in the complaint relating to a refusal to bargain in violation of Sec. 8(a)(5). The details of Respondent Wash-O-Matic Company's participation in this matter, an issue before me, are set forth hereafter. Cf. Bishop and Malco, Inc., 159 NLRB 1159, 1161. The stipulation of the parties at the hearing. 190 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wash-O-Matic Service Co., hereinafter called Wash-O- Matic, was stipulated to be a Maryland corporation, where, at 3408 52nd Avenue, Bladensburg, Maryland, prior to on or about December 5, 1969, it was engaged in the receipt, condi- tioning, distribution, and operation of laundry machines and dryers in a manner similar to the operations of Macke as described above. On September 1, 1969, Macke purchased all of the out- standing stock of Wash-O-Matic. At this time Macke's opera- tions were conducted at 2507-B 50th Avenue, Hyattsville, Maryland. On or about December 5, 1969, the operations of Macke and its now wholly-owned subsidiary, Wash-O-Matic, were moved to the present location of 5006 Herzel Place, Beltsville, Maryland, where during all times material herein they are engaged in the operation and servicing of coin- operated laundry machines and dryers which they install and maintain, as previously described. In the operation of this enterprise following the move to Beltsville there is disclosed a significant integration of officer and supervisory personnel. Thus, as of December 23, 1969, the following were stipulated to be officers of Macke: presi- dent-Marvin Laubgross; vice president-Isadore Abrams; treasurer-C. Wesley LaBlanc; secretary-Balfour Gold- man. As of the same date the following were stipulated to be officers of Wash-O-Matic: president-Jacob Korth; vice president-Marvin Laubgross; vice president-Jack Hiort- dahl; treasurer-C. Wesley LaBlanc; secretary-Balfour Goldman. On or about January 1, 1970, Korth, who appears to have been physically incapacitated for a number of weeks preceding that date,' resigned as president of Wash-O-Matic I From the examination of President Laubgross at the hearing it was impossible to elicit from him a meaningful answer as to when, during the period of 5 weeks preceding January 1, 1970, Korth was present and when he was absent due to illness. Accordingly, my finding is based on the only reasonable inference to be drawn from Laubgross' evasive testimony. At this point it should be noted that based on my observation of Laubgross as a witness and on the instances of evasion manifest throughout his tes- timony I cannot accept his testimony as credible evidence and will rely on it only when it constitutes an admission against his own or either of Re- spondents' interests or when it consists of uncontroverted fact peculiarly within his knowledge. In addition to the evasion recited above other instances illustrative of evasion which have compelled my judgment in this matter are: Laubgross' evasive testimony in response to inquiries by counsel for the General Coun- sel relative to the shop duties and sick status of two employees, Sondheiver and Hernandez; and his explanation to me why he could not provide the answers to questions concerning Respondents' operations. Thus: Q. He (Employee Rutland) worked primarily for Mr. Lewis. Is that correct? A. Primarily. Q. Primarily. And he spent most of the time working for Mr. Lewis. Right? A. I don't know. TRIAL EXAMINER: Counsel just a second. Mr. Laubgross, what is your position? THE WITNESS: I'm president of the company. TRIAL EXAMINER: Have you been on leave recently? THE WITNESS: Yes, last week. TRIAL EXAMINER: I mean, for an extensive leave? THE WITNESS: No. TRIAL EXAMINER: Can you explain why you have difficulty to an- swer questions of this sort concerning your operation, if you are presi- dent of it? THE WITNESS: I'm not familiar with it. TRIAL EXAMINER: How much of your personal time do you spend at your occupation as president of this organization? THE WITNESS: One hundred per cent. TRIAL EXAMINER: Well, where do you do your work? THE WITNESS: Wherever I need to. TRIAL EXAMINER: I assume most of it- THE WITNESS: In Chicago, in San Diego, if needed. and was succeeded by its then Vice President Marvin Laub- gross the president of Macke. At about the same time Gold- man resigned as secretary of Macke and of Wash-O-Matic. Hiortdahl, who described himself as a one-time supervisor in Wash-O-Matic's employ, continued as its vice president. In addition to the integration manifest by dual offices of president, secretary, and treasurer, the overlapping of func- tions was particularly evident in the handling of personnel actions which form the substance of this proceeding. Thus, when the two employees involved, Woodrow Gill, Jr., and Edwin B. Price, were interviewed for what was claimed to be a promotion to foreman it was Gill's credited and undenied testimony that it was Abrams, the vice president of Macke, who did most of the talking to the two men, both of whom originally worked for the Wash-O-Matic organization. And it was Wash-O-Matic's vice president, Hiortdahl, who ulti- mately effected their termination in the presence of Laub- gross, the president of both organizations, after their confron- tation with Attorney Joel Keiler who in this proceeding originally entered an appearance as an attorney for Macke and thereafter for Wash-O-Matic. The supervisory level of the operation discloses no less intermingling after the consolidated move of December 5. Thus Foreman Hill, who prior to December 1969 worked for Wash-O-Matic, and Foreman Violette, who worked for Macke, presently exercise areas of supervision, one over in- stallation and the other over servicing, recognizing no distinc- tion as to employment origin of employees whom they su- pervised. Additionally, it appears from the credited observation of Employee Gill that Foreman Violette is given orders by Laubgross, Abrams, and Hiortdahl without refer- ence to which organization each is an official of. Finally, as an individual instance, Gill credibly cites employee Sherer, an employee originally hired by Macke, as being supervised by Hill, a foreman originally with Wash-O-Matic. And, as an indicia of the unification of personnel achieved by the time Gill was terminated he credibly described the substitution of the Macke uniforms for Wash-O-Matic uniforms among em- ployees originally hired by Wash-O-Matic.b As previously described, all operations are centered at the Herzel Place plant and all dispatches emanate from there, as do all deliveries of equipment, replacements, and supplies; and in the operation of the servicing and repair functions there is but one stockroom. That the unification described above has not been com- pletely effected is evident from the retention of certain iden- tification of earlier organizations . Thus trucks still bear the name Wash-O-Matic, an indicia of initial ownership; but they are used for all deliveries and servicing. Some of the laundry machinery in use at rental locations bears the name of Wash- O-Matic and the early 1969 predecessor of Macke, Bendix; these being the organizations which originally installed the machines. And finally, the payrolls of the two organizations continued to be separate; the original Macke employees being paid by checks bearing Macke's name and the former Wash- O-Matic employees with checks bearing that organization's name. For reasons not evident in the record this separation continues.' TRIAL EXAMINER: And what percentage of your time do you spend in Washington? THE WITNESS: What percentage of my time? Ninety percent. I as- sume you mean the metropolitan area? Finally, his reply to me when asked the duties of C. Westley LaBlanc, the treasurer of both organizations: "I don't know what his job is, frankly." Gill testified that he personally was measured for the new uniform after the merger. He did not remain to receive the finished product. ' Following the merger it is stipulated that the Wash-O-Matic payroll and paychecks were prepared by an independent organization , Capital Electric MACKE LAUNDRY SERVICE COMPANY Upon consideration of the foregoing evidence of unified operations, common and interlocking corporate relation- ships, common supervision, unified application of personnel administration, total stock-ownership of one corporation by the other, common company policy including labor relations policy as evidenced by Abrams' and Hiortdahl's joint partici- pation in personnel action, and Attorney Keiler's functioning in behalf of both organizations in the matter of the employee terminations in this proceeding, I conclude and find that Wash-O-Matic and Macke herein constitute a singular em- ployer for asserting the Board's jurisdiction and for the reme- dying of such unfair labor practices as may be found herein.' As it has been established by stipulation of the parties that the direct out-of-state purchases of the Respondents are in annual amount in excess of $50,000 and as it has likewise been established that the annual out-of-state rentals and services are valued in excess of the same amount, I conclude and find that Respondents Wash-O-Matic and Macke, as a single em- ployer, are engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is stipulated and I accordingly conclude and find that District Lodge No. 67, International Association of Machin- ists and Aerospace Workers, AFL-CIO, is a labor organiza- tion as defined by Section 2(5) of the Act. III. ADEQUACY OF NOTICE AND DUE PROCESS It has been claimed in behalf of Respondent Macke that the complaint issued against it and against Respondent Wash-O- Matic should be dismissed because of a failure to properly join Wash-O-Matic as an essential party to the proceeding. Similarly, it has been claimed in behalf of Respondent Wash- O-Matic that by being made a party to these proceedings in an improper and untimely fashion it has been denied due process by being deprived of the opportunity to be present when evidence concerning it was adduced and that it has thus been denied the right adequately to cross-examine witnesses. Because the contentions of Respondents and the claim of Attorney Keiler at the hearing that Wash-O-Matic was not presented at the time the evidence was presented are so incon- sistent with the record made in this proceeding a resume of the relevant portions of the record must necessarily be set forth before any resolution of the issue can be accomplished. When the hearing opened on June 24, 1970, upon a com- plaint issued against Macke, the Trial Examiner requested appearances of counsel for the record, a response to which included the following: MR. CANAFAx: For Respondent, Thomas Canafax, Jr., of the firm of Arent, Fox, Kintner, Plotkin and Kahn, Federal Bar Building, 1815 H Street, N.W. Wash- ington, D.C. MR. KEILER: Also for Respondent, Joel I. Keiler, same firm and same address. Mr. Keiler, whose conduct has been alleged to be a violation of the Act (infra), was present thereafter for 2 full days of hearing and the purpose of his appearance and presence was stated by his associate, thus: Co., in which Wash-O-Matic's president, Jacob Korth, had a financial inter- est. There is no explanation for the abandonment of Capital's service and the continued separate preparation of checks after Korth's resignation as president of Wash-O-Matic and Laubgross' assumption of that office in addition to his presidency of Macke. 8 J. Howard Jenks d/b/a Glendora Plumbing, 165 NLRB 105; Overton Markets, Inc., 142 NLRB 615; Aluminum Tubular Corp. and Flag Pole Equipment Co., Inc., 130 NLRB 1306. 3 MR. CANAFAx: Mr. Keiler, of course, is an attorney of record in this case, has entered an appearance. He's also essential to assist me in the conduct of Respondent's [Macke] case. During the 2 days that Mr. Keiler was thus assisting in behalf of Respondent Macke 12 witnesses were called by counsel for the General Counsel in support of allegations in the com- plaint, including those that alleged that Mr. Keiler had un- lawfully interrogated two employees and had threatened them with discharge. Among these witnesses were both em- ployees involved and Marvin Laubgross, president of Wash- O-Matic and Macke. The testimony of these 12 encompassed all of General Counsel's case-in-chief, and the record dis- closes that during the course of this testimony Keiler not only participated but was also involved in the continuing prepara- tion of the case.' By the close of the second day of hearing it became evident that although counsel for the General Counsel's substantive case had been presented additional time would be necessary to negotiate stipulations pertaining to the nature of the opera- tions of the two organizations, a subject which developed in significance as the examination of witnesses had progressed. I adjourned the hearing sine die, directing counsel for the parties to confer and return at an early future date with adequate payroll data that had not been forthcoming to that point and with such stipulations as they could arrive at con- cerning the nature and relationship of the two corporations involved. In directing an early resumption I made the follow- ing observation: ... I am going to ask Mr. Canafax and Mr. Slaughter to collaborate on selecting the most opportune and earli- est meeting date for resumption, having in mind that any commitments that counsel may have which relate to Labor Board hearings are subordinant to this particular case which is presently in hearing. So that if anybody's excuse is that they have another case to try before the Board, that case comes second, this is first. Mr. Keiler did not return upon resumption of the hearing on July 2110 being in attendance, according to Attorney Cana- fax, at a Board proceeding in Louisiana, despite my earlier caution concerning priority of such matters. It would appear from the record, however, that he had actively participated in the recess negotiations, Attorney Slaughter stating on the record that he and Mr. Keiler had conferred on a number of occasions, twice during the previous week. At the July 21 resumption, counsel for the General Coun- sel, over Respondent Macke's objection, introduced into the record a charge dated June 26, 1970, in Case 5-CA-4826, against Wash-O-Matic and moved for the consolidation of both cases and the amendment of the complaint to include Wash-O-Matic as a Respondent and as a responsible party to the unlawful conduct alleged by amendment. In ruling on the introduction of the charge I noted that with relation to the 6-month limitation of Section 10(b) of the Act conduct prior to December 26, 1969 (the date of the alleged refusal to bargain, an allegation which has since then been withdrawn from the complaint), would not be consid- ered an unfair labor practice, that the new charge named Marvin Laubgross who had already appeared as a witness identifying himself as a representative of Macke, and that the 9 At the adjournment of the first day of hearing Keiler addressed the following inquiry to the Examiner: "Your Honor, before we adjourn, may we, between today and tomorrow morning, speak to this witness about subjects that are not-?" 10 A telegraphic order of the undersigned dated July 2, 1970, setting the resumption date for July 21, 1970, was directed to Attorney Keiler as well as to his associate, Attorney Canafax. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two alleged discriminatees in the case as it involved Macke, Messrs. Gill and Price, were also mentioned in the new charge. I then rule as follows: Since in these three respects there is a more than a distinct similarity between items referred to, I will find, necessarily, that there is some relevance between one document and the other, without in any way implying that, as to the merits that will be discussed hereafter, I feel that there should or should not be amendments to the Complaint. The fact of the matter is that this particu- lar charge relates to the matter before me. Because it does, I rule that General Counsel's Exhibit 1(y) and the attached documents, 1(z) and 1(aa) be admitted into evidence. In ruling on counsel for the General Counsel's motion to consolidate the two cases I stated as follows: Addressing myself to the motion to amend the Com- plaint by consolidating with Case No. 5-CA-4620 the charge in Case No. 5-CA-4826, which was filed and served on Wash-O-Matic on or about June 26th of this year, it appears, as I noted previously in the admission of the document designated as General Counsel's Ex- hibit 1(y), that there was a relation between the subject matter of the charge against Wash-O-Matic and the alle- gations of the Complaint against Macke Laundry in the case which we are presently hearing. Now, we have come to the second step, and I think the courts, in sustaining the Board's discretion to consoli- date cases, have indicated that consolidation of cases is actually a housekeeping procedure permitted generally for the purpose of alleviating the administrative troubles of the Board, saving the taxpayers money, and expedit- ing proceedings generally. And the courts, as I under- stand the rulings, have indicated that there must be a fair relationship, fair and reasonable relationship between the cases sought to be consolidated. And I have already found that there is a relationship between the two when I admitted that document into evidence, the charge. My feelings have not subsided since that occurred and I note on the record that, inasmuch as it is discretionary with the Board to grant such a consolidation and that the ends of justice and common sense would be served, and that, in any event, the Respondent in this case will have, or I will see that he has full opportunity to meet any new allegations that may arise, and essentially all of the same cards will be provided to the Respondent, and since certain ends of justice will be served, I grant the motion to consolidate. Thereafter, counsel's proposed amendments to the complaint were set forth in detail in the record and a written copy of his proposals introduced as an exhibit for the guidance of the Examiner, and the parties objections were raised by Attorney Canafax. As the objection to the amended complaint based on the time limitations of Section 10(b) have no application ex- cept to the allegation of a refusal to bargain, and that allega- tion has been withdrawn from the complaint, my denial of that particular objection cannot now be in issue. My ruling on the objection to the remainder of the amendments to the complaint follows: Now, as to the rest of the objection to the amendment of the Complaint, I am not so naive as to understand that there are before me and there always have been before me in fact, if not in legal entity, the individuals who form a part or did form at some time a part of either Macke or Wash-O-Matic, or both, including those who are before me as witnesses. Nor am I so naive as to feel that these people who even at the time testified that they were officers in common.of both organizations, the officer of one did not know what the other organization was doing. I do not think in a situation like this that I have to accept the proposition as a rule that the right hand does not know what the left hand is doing. I think the record will amply substantiate that when it is studied in detail, and I say this from my recollection of the record, that is not to say that I have made up my mind that these two organizations are joint employers or so integrated as to constitute that by inference. I have the right, however, to find out if what appears on the surface is true upon complete study bears out the findings that it is a joint operation, I have the right to have all the evidence before me that I might make the determination and not be required, as your motion would require me, to decide it off-the-cuff. In other words, I am ruling in this instance that I am going to let this stuff in, and I will not use those nasty words "for what it is worth" because it might be worth the whole case, but I am going to let it in because it has the color of relevance to the allegations made, and the color of relevance is substantiated by the evidence that I have already received here ... Mr. Laubgross, among others, has testified to this, if I can use it again, ball of wax, and he has failed in certain respects to provide ... us information concerning this ball of wax, which I suspect may be elicited hereafter in the trial and which I, as your Examiner, have the right to know about, be- cause I am the one to decide whether they are or are not integrated organizations. So, for that reason, I would be remiss in my obliga- tions to the other parties if I were to say that these are irrelevant and that they belong in a separate case. Be- cause, after all, it is within my discretion as set forth by the rules and the cases to permit amendments of this sort. Now, we come to the last item, and that is the question of due process. Due process, I think, here has certain limitations. I recognize that technically Wash-O-Matic was not a party to this proceeding during the first two days of the hearing. But I do know that sitting before me during all that time and testifying at that bench was the gentleman whom it is stipulated was president of Wash- 0-Matic. So, I am not going to hide my head in a pile of sand in that area. Nor am I constrained to feel that due process is con- strained by surprise. This charge was filed almost a month ago, and the Counsel, if I may compliment him, has a reputation of being astute and quite aware of the vagaries of labor relations and procedure. And since this is the case, I think that anyone knows that once a charge is filed what follows is quite possible the complaint in the same hearing. And I am not suggesting that they should have by some clairvoyance figured out what the com- plaint was going to be, but you at least should know that something was in the wings. Moreover and more directly to the point, there was evident to me at the time the case was heard the last time the need for a further exploration of the several aspects of Wash-O-Matic and Macke. There were several efforts made at that, over objection on several occasions by Counsel and by an apparent lack of knowledge or under- standing by some of the witnesses as to what the relation- ship was between those two organizations, information that would be of most essential character in determining the jurisdiction of the'Board, the nature of the alleged bargaining unit or the bargaining unit involved here, things of that sort. MACKE LAUNDRY SERVICE COMPANY I know that Counsel is quite aware of the usual proce- dure in this matter whereby in advance of a trial of this sort Counsel gets together and provides the investigating arm of the Board , although they are not required to, with the details of organizational structure that would sim- plify that particular part of the trial. Now, I do not know whether and I am not going to quarrel about whether that sort of operation occurred prior to the trial in the filing of pleadings here, but I am aware of the normal procedure by the Board to obviate problems as to the nature of the employer 's business and the extent of his operations , and that sort of thing. All of this came out during the first two meetings, and it became so involved and so useless of further explora- tion at the time, apparently , General Counsel was not aware at the time, as he expressed it on the record, that there was a Wash -O-Matic ... . organization in the wings or existed . That is his problem, that is not mine. But, having determined a fact that he was not able to glean in the investigative stage of this proceeding, he was certainly entitled to find out the nature of that fact before he proceeded with the case. And I am not saying that his case was improperly prepared , there is not the least bit of evidence of that. However, aware that there is more to this case than met the eye, insofar as organizational structure was con- cerned, I directed the parties to please go outside and stipulate, as I do in many cases and I am successful in most, suggesting that the parties, for heaven 's sakes, go outside and stipulate as to what this organization is all about. And, usually , it turns out that everybody knows the nature of an organization and its internal structures, how it works and who is dependent on whom and who is related to whom, everybody knows this but the Trial Examiner, since they're all obvious facts that were put together in the stipulation . I was hopeful that we could get one. We got one ; we got a stipulation here but, appar- ently, it brings out the facts which were not available at the beginning of this hearing. Since that is the case , and since it involves people who have been mixed up in this case from the beginning, there is no other alternative that I can see that an attor- ney prosecuting the case can avail himself of except to amend his complaint , as he has done here. I see no element of surprise here, in general . There may be some surprise as to some statements but, certainly, for the most part, I would suggest that Counsel for Respondent must know the structure of his organization and must also know the general nature of the business that it took over some time in the latter part of 1969. Such being the case, such being the background, I fail to be persuaded that there was anything about any of the periphery of the matters alleged by way of amendment that come as a complete surprise or are of such a nature as to violate anybody's rights of due process. However, after I have ruled , and if it appears now to be the ruling in granting the motion , I will indicate now that, should I grant the motion , Counsel has all the time he feels necessary within reason to prepare his Answer to the amendments made and to prepare such additional portions of his defense as may be needed to meet the allegations in the Complaint. With that assurance to Counsel and on the basis of the reasons which I have given ... I grant the motion to amend the Complaint in the respects requested by Mr. Slaughter on behalf of General Counsel. 5 At this time I reaffirm these rulings which I made at the hearing for the reasons given and restated above. Immediately thereafter at the hearing, by way of extension of my remarks , I stated: I do not mean to quibble or quarrel with you, Mr. Canafax, but you do understand that, insofar as this particular Trial Examiner is concerned in this particular case, you will have all the reasonable time necessary to prepare an Answer to the additional items introduced in the Complaint . Insofar as I am concerned, you will have a reasonable opportunity by way of time to prepare your- self to meet not only the new allegations but to prepare the defense which you allege you need. Thereafter Attorney Canafax, by way of oral answer, denied the allegations of the complaint as amended and offered to file a written answer which I found it unnecessary to require of him. Following the amendments of the complaint on July 21, the only additional testimony adduced by counsel for the General Counsel pertained to the interrelationships between Macke and Wash-O-Matic. The two witnesses recalled for this purpose were Employee Gill and Macke's president, Laubgross, both of whom had previously testified while At- torney Keiler was present . They remained throughout the entire hearing thereafter. Respondents' defense consumed the afternoon of July 21 and all day July 22 . Because Attorney Keiler was absent on a Board matter in Louisiana and was not then available to testify respecting conduct attributed to him by witnesses who had testified on the first 2 days of the hearing, an adjournment to August 5 was requested and granted for the purpose of taking his testimony. At the resumed hearing on August 5, Attorney Keiler appeared and represented both Respondents . On behalf of Respondent Macke he rested his case. On behalf of Respond- ent Wash-O-Matic he moved that counsel for the General Counsel put on his direct examination one more time so that I can adequately cross-examine in regard to my new assign- ment as counsel for Wash-O -Matic. Conscious of the fact that Keiler had been present throughout the entire examination of General Counsel's witnesses as it related to substance of the unfair labor practices alleged, that Keiler by his own admission during the course of argument on the motion had already read the stenographic transcript of the hearing to that point, and that the two witnesses, Gill and Laubgross, who had testified on July 21 in Keiler's ab- sence were then present in the court room and available had Keiler specifically requested their recall , I denied his motion that the case-in-chief be, in effect, retried. Whereupon Re- spondent Wash-O-Matic rested and the hearing was ad- journed sine die, pending the receipt of briefs which I have since considered. Conclusions As Respondents state in their briefs the failure to join an indispensable party to an action could effectively foreclose action against any of the parties and result in the dismissal of a complaint . Based on the findings I have already made as to the integrated nature of the two corporations here the affairs of Wash-O-Matic are clearly "so inter -related and in- ter woven ... as to make it an essential party to this proceed- ing."" Therefore, it was not only appropriate but necessary " Don Juan Co., Inc., and Don Juan, Inc., 79 NLRB 154, 155 ,enfd. 178 F.2d 625 (C.A. 2). See also N.L.R.B. v. Federal Engineering Co., 153 F.2d 233 (C.A. 6). 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that counsel for the General Counsel, upon being appraised of the true facts, take the steps which would effect the neces- sary joinder. This he did as the nature of the relationship between the two first became apparent at the hearing and after the Union sought to join Wash-O-Matic by the filing of the charge agaist it. Respondents do not dispute this joinder. They strenuously urge it in their brief. Their complaint is that it is untimely. But geared to the circumstances here, however, many of them of Respondents' own creation, what Respondents are actually saying is that because the need for joinder of parties did not become evident soon enough it cannot be effected at all. Quite apart from its inherent contradictions this argument, it seems, places too high a premium on clairvoyance and secrecy. For the record is clear that the details of the merger of Wash-O-Matic with Macke were not available to the Gen- eral Counsel during the investigatory stages of the proceed- ing. Moreover, the examination of the witnesses and the pro- curement of documentary evidence in an effort to develop evidence of the nature of these organizations during the hear- ing proceeded at a most discouraging pace and required an extensive adjournment to eventually accomplish it. So, when the joinder of a party is sought after such effort and that joinder has been permitted it certainly cannot then be branded as late or untimely. Indeed to accept such an argu- ment would encourage a suppression of evidence. I therefore reject it. On the contrary I would find that under the circum- stances present at and before the hearing the joinder of Wash- O-Matic as an essential party to this proceeding was timely, having been vigorously sought as soon as its relationship to Macke was made known to counsel and could be amply explored. What remains to be considered is whether this timely, essential joinder of Wash-O-Matic was, as Respondent claims, lacking in adequate notice and due process. My re- marks in this area must of necessity be directed to Attorney Keiler, who characterizes himself as the belatedly assigned counsel for Wash-O-Matic, because it is his associations with the case and the arguments raised by him both at the hearing and in the Wash-O-Matic brief filed under his signature with me which gives rise to the issue. I have expressed myself in this area as I ruled on the several motions directed to the joinder of Wash-O-Matic and the amendment of the complaint (supra). At the expense of repe- tition the intensity of the arguments raised requires a further elaboration. But I must make it clear at the outset that I am not disposed to engage in legal charades. Attorney Keiler sat before me at counsel table for the 2 full days during which the General Counsel's case-in-chief, ex- cepting only the details of corporate merger, was put into evidence. And during this period he actively assisted his asso- ciate in the trial of the matter. In the period of adjournment which followed it was Attorney Keiler, who, according to record statements, negotiated with Attorney Slaughter in be- half of the General Counsel the stipulations relative to the corporate structure on which much of my finding are based (supra). And well in advance of the final resumption of the hearing the complete transcript of the hearings to date was available to all parties and their representatives, including Attorney Keiler. Wash-O-Matic's president, Marvin Laubgross, and its vice president, John Hiortdahl, were both present at counsel's table throughout the entire hearing and both testified at length not only with respect to the unfair labor practices alleged but also with respect to the nature of the two corpora- tions and the details of their merger. Early in the hearing both had been identified as officers in Wash-O-Matic and indeed it was Laubgross' testimony, on the first day of the hearing, which for the first time disclosed the close relationship that existed between Wash-O-Matic and Macke. Thus Laubgross was called as a witness by counsel for the General Counsel for the purpose of obtaining the company payroll requested by supoena duces tecum. In the course of questioning to verify the status of individuals believed to be employees of Macke and the proper subject of representation by the Union, Laub- .gross was asked to identify two individuals actually known to be employees, Turkette and Vanderhoof. Laubgross, in a se- ries of answers, denied that either was an employee of Macke, only to admit as to one employee, after a specific question by me, "Well, who is he an employee of?" that the employee worked for Wash-O-Matic, an entity not previously alluded to or known to the record. This is the genesis of Wash-O- Matic's belated entry into the case. There remains one further consideration of representation of Wash-O-Matic at the hearing. Attorney Canafax was present throughout the hearing and ably and effectively repre- sented all parties' interests adverse to either the original or to the amended complaint, including the interposition of an oral answer denying the allegations of the amendments. I there- fore reject any suggestion that Wash-O-Matic suffered in any manner due to Attorney Keiler's absence. Therefore, I will not accept as accurate such statements made to me by Attor- ney Keiler as, "On August 5 counsel for Wash-O-Matic made his initial appearance in the proceedings," or "Wash-O-Matic was not represented by counsel, and therefore was unable to object to General Counsel's motion," or that "Wash-O-Matic was never afforded an opportunity to cross-examine or even to be represented at the time that the evidence was pre- sented." Under all of the circumstances I have detailed above I am persuaded that any handicap under which Wash-O-Matic or its counsel may have labored may fairly be said to have been self-created. It is inconceivable that a serious argument will be made that those who represented both parties and were privy to all that transpired with respect to each could claim their notice of what transpired to be deficient or their rights to due process to be impaired by a failure to be confronted with evidence or a lack of opportunity to cross-examine wit- nesses. Because I deem the further consideration of the facts and the circumstances surrounding the transactions com- plained of to be but a belaboring of the obvious I am satisfied to conclude and find upon the record as it was made that Wash-O-Matic, a necessary party to this proceeding, received the most timely notice possible and that the notice was com- pletely adequate to appraise Wash-O-Matic and its represen- tatives of unlawful conduct attributed to it. With respect to the due process afforded it, I am persuaded that Attorney Canafax provided more than adequate representation to all parties, that Attorney Keiler was aware or at least should have been aware of all evidence presented against all respond- ents, having been present when the bulk of it was introduced and having admitted to the possession of the transcript of the hearing, and that adequate opportunity for cross-examination of witnesses was available not only to Attorney Canafax but also to Attorney Keiler who was present when all of the witnesses called by General Counsel testified, among other items, concerning Keiler's alleged misconduct. And as to the two witnesses recalled to testify during Keiler's absence they, Laubgross and Gill, were available in the hearing room on the final day of the hearing when Keiler was protesting the lack of opportunity to cross-examine. Certainly as to their particu- lar testimony, the only testimony which Keiler had not heard, cross-examination would most certainly have been permitted had Keiler but requested. MACKE LAUNDRY SERVICE COMPANY I do not consider the citation of authority necessary to support the conclusions I have reached here. I am, however, constrained to comment on authority cited by Respondents in opposition to rulings I have already made and have reaffirmed here. The United States Supreme Court in Morgan v. U.S., 304 U.S. 1, 26, stated that a hearing fails for adequacy if findings have been made "after an ex parte discussion with [the prosecutors] and without according any reasonable oppor- tunity to the respondents in the proceedings to know the claims thus presented and to contest them." The circum- stances of Keiler's assumed knowledge here of what was transpiring and President Laubgross' continued presence at the hearing clearly eliminates any analogy between the in- stant case and the cited one based on the knowledge of the claims presented and an opportunity to contest them. In Lane Cotton Mills, 9 NLRB 952, the action found by the Board to be fatal was a denial of a motion to postpone the beginning of a hearing requested for the purpose of providing opportunity to prepare to meet the allegations of an amended complaint. Unlike this situation the instant case presents a hearing well under way with all parties present and a full disclosure made of everything but the detailed of corporate organization which would go to establish a joinder of the parties. Nor can it be said here, as there, that full opportunity was not provided for preparation. As quoted above (supra) this is precisely what the undersigned did here to provide to Respondents the protection that was lacking in the cited case. I therefore consider this case as cited to be inapposite. In N.L.R.B. v. Jordan Bus Company, 380 F.2d 219, 222- 223 (C.A. 10), notice of joinder of parties found to be inade- quate was dated 2 days before an adjourned hearing resumed and was not received until the morning of the hearing. I fail to see how such a situation can be equated here with a notice of a resumed hearing given at least 2 weeks in advance, fol- lowed by a series of negotiations relating to the newly discov- ered subject matter between the parties and their representa- tives, including Attorney Keiler who claims that despite the hearing which followed he and Wash-O-Matic were prejud- iced by lack of adequate notice. Equally inapposite but for other reasons, is N.L.R.B. v. Hopwood Reinning Co., 98 F.2d 97 (C.A. 2). In that case the joinder of parties was accomplished by the issuing of an amended charge against a hitherto uncharged employer and the amendment of the complaint to include the new party followed forthwith. The case thus brings into issue the scope of a charge and the validity of amendments to a complaint against the party not properly charged. There is no such problem here. The charge filed in June 1970 by the Union against Wash-O-Matic has never been challenged nor has it been claimed that amendments based thereon would be im- proper. As this instant case is an issue of adequacy of notice and not of pleadings the Hopwood case is of no relevance here. In summary, therefore, based on the circumstances set forth herein and as they appear in the record, I conclude and find that Wash-O-Matic is a necessary party to these proceed- ings, that it was timely joined, that notice of such joinder was as timely as the circumstances would permit and completely adequate, and that its attorneys had full knowledge of the evidence adduced to support the allegations against it and ample opportunity to request, prepare for, and conduct such cross-examination as was deemed necessary. IV THE UNFAIR LABOR PRACTICES 7 The first expression of interest in self-organization among Respondents' employees occurred on November 27, 1969, when employee Woodrow Gill called Walter Waddy, a field representative of the AFL-CIO, and informed him that a number of the employees wished to join a union. Thereafter, on December 4, Waddy met with 12 employees at Gill's home and discussed fully with them the details of organizing the men and the benefits and obligations of union membership. The meeting closed on the understanding that Waddy would consult with his superiors and then arrange for the represen- tatives of the appropriate labor organization to meet with them and proceed with the organizing details. Such a meeting was held on December 15 in the office of Robert H. Pruett, representative of Machinist District Lodge No. 67, the Union herein, at which time authorization cards were signed by all present and plans were perfected for final organization and a request for recognition by the employer." On the day following the first meeting of the employees at Gill's home employee Price had occasion to be riding on company business with Jack Hiortdahl, Wash-O-Matic's vice president and its responsible executive during December. In the course of a conversation as they rode along Hiortdahl asked Price what he considered to be a decent wage for a mechanic. When Price suggested $5.50 per hour Hiortdahl replied that he thought the amount was high and they dis- cussed alternative figures. Price then told Hiortdahl that some of the men had gotten together and had a meeting about wages and conditions. To which Hiortdahl replied, "Yes, I know. It's about the Union." He then told Price that a union would do them no good and that he did not think that they would get a union into the Company. He concluded the con- versation saying that the men would be better off if they got all of their grievances together as a group and came to him and talked to him, leaving the Union alone." Thereafter, on December 12, Foreman Hill sought Em- ployees Gill and Price and directed them to report to Presi- dent Laubgross' office. As each man reported as directed he was interviewed by Hiortdahl, vice president of Wash-O- Matic, and Isadore Abrams, vice president of Macke. When Gill appeared Abrams stated that he wanted to place him in a new job designated as Foreman of Planning and Installation for which he would be paid a weekly salary $175. Gill stated that he was not interested in becoming a foreman, to which Abrams replied that this was the only job they had open for him. Gill then asked for time to think about it but was told he could not have any time because Abrams had to attend a meeting. Abrams then gave him a paper to sign, telling him to take it or leave it." The paper addressed to Gill and signed by him and Hiortdahl for Respondents stated as follows: " The foregoing is the credited and mutually corroborative testimony of Union Representatives Waddy and Pruett and Employees Gill and Price. " The credited testimony of employee Price corroborated in substance by Hiortdahl-except only that Hiortdahl described the meeting as a "party" and denied that in the course of the conversation he used the word "Union." I do not credit this denial. Nor do I rely on Hiortdahl's testimony generally. I have observed him as a witness and have considered his extensive testimony. It was replete with hesitation, evasive answers, and contradictions and lacking in a knowledge concerning events and operations with which a working vice president should be expected to be familiar. For these reasons I am not disposed to credit Hiortdahl except where his testimony constitutes an admission against his own or the Respondents' interests, is corroborated by credible witnesses , as here , or relates to an uncontroverted area within his special competence. " The credited testimony of employee Gill. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is to confirm our understanding that you have ac- cepted the position of Foreman, Planning and Installa- tion of New Existing Laundry Areas, effective Saturday, December 13, 1969. Employee Price was next summoned into the office as Gill left and Price's experience paralleled Gill's as he too was offered a new position-Foreman Parts and Inventory Control. It was Hiortdahl who acted as spokesman this time, offering Price the opportunity to be taken off the timeclock and re- ceive a weekly salary of $165. He would be required to work on some Saturdays and evenings, however, until the reorgani- zation of the two companies had been completed . When Price demonstrated to Hiortdahl that he could make more money on his present hourly based job the latter, after some compu- tation , offered Price an additional $5 per week. When Price asked for time to think it over and to discuss it with his wife Hiortdahl told him that he had to have an answer right away and that if he did not accept the job there would be no other job available for him in the organization . Accordingly, Price and Hiortdahl signed a statement similar to Gill's and read- ing as follows:" This is to confirm our understanding that you have ac- cepted the position of Foreman , Parts and Inventory Control, effective Saturday, December 13, 1969. During the next half hour Gill and Price discussed the situation together and decided to request that the papers each of them had signed be returned to them . To this end when next they met Vice President Hiortdahl a few minutes later Price, speaking for both of them, told him that they had changed their minds about accepting the new job and asked for the papers they had signed . Hiortdahl told them that he did not think he could get the signed papers back, that both of them had a lot of potential with the Company , but that if the Union got in he would have to treat everyone alike. Suggesting that they forget about the Union he assured them that working conditions would improve if he were given "a little bit more time." Price and Gill grudgingly accepted Hi- ortdahl 's decision in the matter and walked off.16 By December 22, the Union had succeeded in enlisting a substantial number of the employees and on that date wrote to Respondent Macke requesting it to bargain with it as the representative of the employees . It received no reply." A week later, on December 30, Vice President Abrams communicated with both Gill and Price and told each of them that they were expected to report back to the office for an interview on the following morning and if they failed to do so it would be their "death certificate." Accordingly, on December 31, each man reported in turn to the office and was interviewed by Attorney Keiler in the presence of President Laubgross . It appears from the credited and undenied tes- timony of both Gill and Price that Keiler's interrogation of and statements to each of them were identical. Keiler opened his interview in each case by accusing the employee of "going around and trying to get people to sign union cards," an accusation which they each denied to Keiler " The credited testimony of employee Price. The mutually corroborative testimony of Gill and Price. Hiortdahl's version of this encounter agrees except that he denies any reference to the Union, for reasons previously stated I reject this denial. " There is no allegation of a refusal to bargain presently before me. Subsequent to its request to bargain the Union filed with the Board its petition in Case 5-RC-7117 for a representation election among the em- ployees . Upon the filing of the charges in the instant case alleging a refusal to bargain in violation of Sec. 8(a)(5) the petition for an election was with- drawn without prejudice to the Union's right to refile it at some future date. During the course of the hearing the allegations in the complaint which related to a violation of Sec. 8(a)(5) were withdrawn at the request of counsel for the General Counsel. at the time, while frankly admitting at the hearing that they had actually solicited cards. Keiler then asked each of them if they did not know that foremen and supervisors were not permitted to participate in union activities and were not pro- tected by the Union . Price, in his interview , replied by argu- ing with Keiler that he was not a supervisor because he did not have requisite authority . Gill did not answer to this in- quiry. Next Keiler asked each man to give him the names of the employees who had signed union organization cards and both refused to do so. When Gill refused Keiler likened his refusal to a situation where a named football player refused to give his coach information concerning a team on which he had previously played. In repeating his refusal to give the names Gill told Keiler that he was not the named player, and that they were not playing football. Whereupon Keiler re- plied that if Gill did not comply with his request for the names "they would probably dismiss" him. When Price was asked by Keiler for the names of the employees he had signed up Price told him that before he made any statement he would like to consult a lawyer . Keiler, stating that they did not have time for this, told him that his job was in jeopardy and that if he did not cooperate with him by providing the requested information he might very well lose his job. Price continued in his refusal and left. Within 5 minutes after their interviews with Attorney Keiler, Vice President Hiortdahl sent for Gill and Price in turn. Gill credibly and briefly described his meeting by stating that Hiortdahl called him into Laubgross ' office and told him that he would have to terminate him. Price 's credible account of his termination was more extended . Hiortdahl first asked him if he did not know it was against the law for foremen to participate in union activities. And Price's reply was that he had been promoted only to keep him from participating in the Union. The discussion ensued as to Price's failure to cooper- ate with Keiler and a repetition by Hiortdahl of Keiler's original statement that this failure to cooperate would cost his job. At about this time Hiortdahl consulted with President Laubgross who was standing in the hallway, about 15 feet away. Upon his return he informed Price that he was fired. B. The Nature of Gill's and Price's "Promotion" Determinative of the supervisory status claimed to be vested in Employees Gill and Price by Respondent 's person- nel action of December 12 is the actual duties performed or to be performed and not merely a recited catalogue." Hiortdahl claims to have informed Gill that he would have the installation crew under his direct control , that they would report directly to him, and that he would have the authority to recommend their hiring , firing, and wage increases. Addi- tionally Hiortdahl stated that Gill would be responsible for the layout of new and renovated laundry rooms in apartment houses served by the Respondents. Hiortdahl also claims to have informed several installer-employees , including em- ployees Conte and Voss, that they would work under Gill's supervision . Quite apart from Gill's denial that this authority was stated to him by Hiortdahl, a denial which I credit, and also apart from the fact that I do not credit Hiortdahl gener- ally (supra) and that neither Voss nor Conte were called to verify that they were claimed to have been told, it is still Gill's duties, assignments, and activities following the so-called pro- motion that are determinative and not what he was told. Thus '" It is well established that a rank-and-file employee is not transformed into a supervisor merely by investing him with a "title and theoretical power to perform one or more enumerated supervisory functions ." N.L.R.B. v. Southern Bleachery and Print Works, 257 F.2d 235,239 (C.A. 4), cert. denied 359 U.S. 911. See also Ohio Power Company v. N.L.R.B., 176 F.2d 385 (C.A. 6). MACKE LAUNDRY SERVICE COMPANY he credibly testified that the installion and service work which he had done prior to December 12 was identical to that performed thereafter. In this respect I am not persuaded by the three instances of supervision referred to me by Respond- ents. These three occasions, the only ones relied on, involved a "breaking-in" assignment where Hiortdahl accompanied Gill to an Arlington apartment house to consider the reorgan- izing of the laundry room . Gill's credited description of the incident finds Hiortdahl carrying on all of the conversation with the resident manager of the apartment and then discuss- ing with Gill the problems involved in the adding and hook- ing up one washing machine to be added to those already installed there." The second supervisory assignment was to a location on 39th Street, N.W., Washington. Gill made no reference to this in his testimony and Hiortdahl, when pressed to tell what had been done, stated that he did not know if anything had been done until the installation work was actually performed 2 weeks after Gill's termination. The third supervisory assignment cited by Hiortdahl did not materia ize, the building contractor at the site not being avail- able to let Gill into the building when he was supposed to have visited it. One final factor requires some consideration-Gill's new salary. When Gill was "promoted" his right to overtime ceased according to Hiortdahl. A quick computation based on figures in the record reveal that, considering the average amount of overtime he would have earned , Gill's raise in pay under the new arrangement would come to less than $10 a week.20 Upon the foregoing findings I would conclude that it has not been established on credible evidence that Employee Gill was given the supervisory status with which Respondents claimed he was vested upon his so-called promotion on December 12. Employee Price's claimed supervisory status is in no more favorable posture. At the outset it is to be noted that because of the recent consolidations of the operations of Wash-O- Matic and Macke it was essential that there be a certain amount of reorganization and consolidation of supplies in the stock rooms of the respective companies. Hiortdahl claims that after December 12, as a consequence of the integration of the two toolrooms, the assignment of Price to be in charge of the new one was really an augmented job, particularly as it required the assistance of another employee. This man, Farrell, was identified as being subordinate to Price and the basis, together with the enlargement of the room , of the newly created supervisory status. The fact of the matter is, however, that Hiortdahl admitted that Farrell had worked with Price prior to December 12, moving the old toolroom to the new location and setting up the new one, and that he "believed" Farrell was working with Price between December 12 and 31, 1969, the period when Price was claimed to be a supervisor on the basis of his supervision of one employee. The criteria relied on to establish Price's supervisory status is certainly nebulous. He was in charge of the same kind of an operation he had always been in charge of, assisted by the same person, whenever he could be spared, to quote Hiort- dahl, who had previously helped him. While it is true that Price was converted from an hourly wage to a weekly salary it was determined by calculations indulged in as Price and Hiortdahl testified that Price 's previous wage pay had on " 1 do not credit Hiortdahl's contrary description of a more complicated job and of more participation by Gill. " Gill's new salary was $170 . As a rank-and-file employee his wage rate was $3 .50 per hour for a 40-hour week, with an average of 4 hours overtime weekly at the time and a half rate of $ 5.25 per hour . Thus his average weekly pay as a rank-and-file employee would have totaled $161. 9 occasion exceeded his newly established salary and, more- over, he had been told that for a while at least he might have to work extra hours with no added compensation.21 Upon consideration of all of the foregoi, factors I con- clude and find that it has not been established on credible evidence that Employee Price was given the supervisory status with which Respondent claimed he was vested upon his so-called promotion on December 12. C. Conclusion It is well established that a personnel action , be it a transfer or promotion to supervisory or nonsupervisory status, that is effected for reasons related to an employee's union member- ship or participation constitutes unlawful discrimination .21 Here the circumstances of the so-called promotions of Gill and Price are suggestive of something more than improved operations . Thus, hard upon Gill's contact with the Union the employees met with representatives of the Union and discussed organization and thereafter signed authorization cards at Gill's and Price's request. And among these em- ployees signing cards was Hiortdahl's brother-in-law, em- ployee James Turkette. It was Hiortdahl who actually testified to knowledge of a "party" being held at which the men discussed wages and working conditions, information he had gleaned from his truck ride with Price (supra). Whether on this December 5 trip Hiortdahl identified the gathering of employees as a "party," or as Price credibly quotes him, "yes, I know. It's about the Union ," it is clear that he then knew that the men were engaged in a concerted activity. This evidence , added to the smallness of the working force which in itself in these circumstances permit an inference to be drawn of knowledge of such activity," employee Turkett's close relationship to Vice President Hiortdahl, and the precipitate personnel ac- tion which Respondent took with respect to the two organiz- ing leaders , all make it abundantly obvious that the Respond- ents were well aware of the union activity around them and that they took immediate steps to counter it. Against a backdrop of Respondents ' awareness that Gill and Price were organizing employees the circumstances which follow assume a most significant connotation and give substance to the suspicion that Gill 's "supervisory" status was a mere illusion punctuated with one assignment where he remained completely in Hiortdahl 's shadow and two other assignments that never even materialized (supra). It explains why the responsibility which Price exercised in the stock room suddenly mushroomed to "supervisory" porportions as he continued to do the same job in merely a new and aug- mented stock room with the same part-time assistance there- after as he had before. Upon all of the foregoing I conclude and find that the personnel action which Respondents took with respect to Gill and Price on December 12 and the fiction which it maintained thereafter were accomplished for consid- erations connected with their membership in and their activi- ties on behalf of the Union and were intended for the ultimate action which it took thereafter on December 31.24 " The facts herein , unless attributed otherwise, are based on the credited testimony of Price . For reasons previously stated I do cot rely on Hiort- dahl's testimony unless specifically noted. " Benson Wholesale Co., 164 NLRB 536, 543, 548-549; Filtors, Inc., 163 NLRB 1046, enfd. 401 F.2d 434 (C.A. 2); Bernhard Conrad Embroi- dery Company, 156 NLRB 1056. " WiesePlow Welding Co., Inc., 123 NLRB 616; L. E. Johnson Products, Inc., 179 NLRB No. 10. " L. E. Johnson Products, Inc., 179 NLRB No. 10. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this posture in which I find Employees Gill and Price on December 31 the interviews which Attorney Keiler con- ducted in Respondents' behalf and the actions which Re- spondents took thereafter are discriminatory. What has oc- curred here, reduced to its simplest terms, is that two rank-and-file employees who are first invested with fictitious titles and duties, which I have found to have been for a discriminatory purpose, are then questioned concerning the union activity in which they have engaged and are threatened with discharge if they failed or refused to comply. Were Gill or Price truly supervisors Keiler's interrogation and threats may well have been beyond the scope of this proceeding; but we do not reach that issue here. Price and Gill were not supervisors, but employees. Because the interro- gation and accompanying threats to employees as I have described them have so consistently been found to be unlaw- ful interference, restraint, and coercion of employees and their fellows I find that citation of authority in support of such a proposition is quite unnecessary at this junction. Moreover, assuming, contrary to the findings that I have made, that each promotion was actually to a supervisory status the interrogation and threats would be equally unlaw- ful. Because no amount of supervisory authority could possi- bly justify the discriminatory motive which prompted it the interrogation and threats which follow are not exempt from the Act's proscription." I accordingly conclude and find that under all of the circumstances herein the interrogation of employees Gill and Price and the threats to discharge them constitute violations of Section 8(a)(1) of the Act. Needless to say if Keiler's threats to Price and Gill that they would be discharged if they failed to reveal the names of employees who joined the Union constituted unlawful in- terference, restraint, and coercion, certainly the implementa- tion of such threats could be no less. Nor does it require any extensive reconsideration of the background here to conclude that Hiortdahl's effective implementation of Keiler's threats by terminating Gill and Price did discriminate against each of them. Indeed the testimony of all witnesses uniformly described the discharge of each man as being for his refusal to divulge the names of the union members. Being employees, and not supervisors exempt from the process of the Act, this is an obvious discrimination for reasons of union membership and activity. I accordingly conclude and find that Respond- ents have thereby violated Section 8(a)(3) of the Act, as well as additionally interfering with them and the other employees and restraining and coercing them in violation of Section 8(a)(1). V. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the Respondents set forth in section IV, above, occurring in connection with the Respondents' opera- tions described in section I, above, have a close, intimate, and substantial relationship 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. VI. THE REMEDY I have found that the Respondents, by interrogating and threatening their employees, have interfered with, restrained, and coerced them in violation of Section 8(a)(1) of the Act and by terminating these employees for their failure to di- vulge the answers to the questions propounded to them with respect to the membership of other employees have thereby 15 Benson Wholesale Co., supra; Filtors Inc., supra; Bernhard Conrad Embroidery Company, supra. discriminated against them in violation of Section 8(a)(3). I shall accordingly recommend that Respondents cease and desist therefrom and because of the gravity of their conduct shall also recommend that they cease and desist from infring- ing in any other manner on the rights of the employees guar- anteed by the Act.26 Affirmatively I shall recommend the reinstatement of Woodrow Gill, Jr., and Edwin B. Price with backpay to be computed in the customary manner," with interest at the rate of 6 percent per annum.28 RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend" that Macke Laundry Service Company of D.C. and Wash-O-Matic Service Company, Respondents herein, their respective officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating their employees concerning their fellow employees' membership in or activities on behalf of District Lodge No. 67, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, or any other labor organization. (b) Threatening employees with discharge as a conse- quence of their failure or refusal to divulge the names of employees who have joined the aforesaid Union. (c) Discouraging membership in the above-named Union by discharging or otherwise discriminating against employees for their activities in behalf of such Union. (d) In any other manner interfering with, restraining, or coercing its employees or unlawfully discriminating against them in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies: (a) Offer reinstatement to Woodrow Gill, Jr., and Edwin B. Price to their former or substantially equivalent employ- ment and make them whole for any loss of compensation suffered as a result of Respondents' discrimination against them. (b) Post at their Beltsville, Maryland, plant copies of the attached notice marked "Appendix."10 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by the Respondents, shall be posted immediately upon receipt thereof in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of the Trial Examiner's Deci- sion, what steps they have taken to comply therewith." 6 N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 437. " F. W. Woolworth Co., 90 NLRB 289. Isis Plumbing & Heating Co., 138 NLRB 716. ° In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order , and all objections thereto shall be deemed waived for all purposes. '° In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 31 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 5, in writing, within' 20 days from the date of this Order, what steps the Respondents have taken to comply herewith." MACKE LAUNDRY SERVICE COMPANY APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate you about your fellow employees' membership in or activities on behalf of District Lodge No. 67, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL NOT threaten you with discharge if you refuse or fail to divulge the names of employees who have joined the above-named Union or any other labor organization. WE WILL NOT discourage membership in or activities on behalf of the above-named Union or any other labor organization by discharging any of our employees or otherwise discriminating against them. WE WILL offer reinstatement to Woodrow Gill, Jr., and Edwin B. Price to their former or substantially equivalent employment, dismissing if necessary any re- placement hired since their discharge , and WE WILL make each of them whole for any loss of pay incurred as a result of our discrimination against them. WE WILL NOT in any other manner interfere with our employees or restrain or coerce them in the exercise of rights guaranteed them by the National Labor Relations Act, as amended. 11 All our our employees are free to become or refrain from becoming members of the above Union or any other labor organization. Dated By Dated By MACKE SERVICE COMPANY OF D.C. (Employer) (Representative) (Title) WASH-O-MATIC SERVICE COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by any- one. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301-962-2822.