American Linen Service Co.

National Labor Relations Board - Board Decisions

Nov 30, 1942

45 N.L.R.B. 902 (N.L.R.B. 1942)

In the ' Matter of JOSEPH L. FRADKIN AND BEN SINGER , CO-PARTNERS
TRADING AS AMERICAN LINEN SERVICE COMPANY , AND AMERICAN
LAUNDEREES , INC,. and CLEANERS AND LAUNDRY WORKERS UNION,
LOCAL 188-B , A. C. W. A. ( C. I. 0 :)
Case No. C-2.'527.-Decided November 30, 1942
Jurisdiction : laundry industry within District of Columbia.
Unfair Labor Practices
Interference, Restraint, and Coercion: threats of discharge if union activity con-
tinued ; posting of voluntary wage increase shortly before Board election.
Discrimination: refusal to reinstate or reemploy union employee after absence
from work due to illness because of her union activity.
Testifying under the Act: charges of discrimination for, dismissed.
Remedial Orders : cease and desist unfair labor practices; reinstatement and
back pay awarded.
DECISION
,AND
ORDER
On -September 11, 1942, the Trial Examiner issued his Intermediate
,Report in ,the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and that they
take certain affirmative action as set forth in the copy of the Inter-
mediate Report annexed hereto. Thereafter, the respondents filed
exceptions to the Intermediate Report.
At-the hearing herein, on motion of counsel for the Board, the
Trial Examiner permitted amendment of the complaint to include an
allegation that the respondents' refusal to reinstate Julia" Bau11 con-
stituted an unfair labor practice within the meaning of Section 8
(4) of the Act. The respondents then moved for a continuance of
10 days in which to file an answer to the complaint as amended,
and in which to prepare their defense. The motion was denied by
the Trial Examiner, with leave to the respondents to file an answer
to the amended-coniplaint at any time before the case was transferred
to the Board. Since we are dismissing the allegation, thus added
to the complaint, as did the Trial Examiner, his rulings permitting
the amendment and denying the continuance are not prejudicial to the
respondents and the Board deems it unnecessary to decide whether
they were erroneous. The Board has considered the other rulings
45 N. L. R. B., No. 132.
902
A1-IE,RICA\ LTNEN SERVICE CO11PANY 903
made by the Trial Examiner at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby affirmed. ,'
Pursuant to notice, a hearing for the purpose of oral argument
was held before the Board at Washington, D. C., on October 29,
1942) at which the respondents and the Union were represented by
counsel. The Board has considered the Intermediate Report, the
respondents' exceptions, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations made by the
Trial Examiner, with the exceptions and additions noted below.
1. The Trial Examiner has found that the respondents, because of
what happened during the election held on November 21, 1941, then
"inferred that Baull was a Union partisan" and "had reason to be-
lieve Baull's vote would be a vote for the Union." We deem it un-
necessary to decide this question. The record shows, as the Trial
Examiner has found, that on or about February 13, 1942, Fradkin
learned that the Union had filed a charge with the Board alleging
that the respondents had discriminated against Baull because of her
union activity. Since the Trial Examiner has found, and we agree,
that the respondents' discrimination against Baull lay in their failure
to reinstate or reemploy her subsequent to February 13, 1942, we be-
lieve it sufficient for our decision herein, and we find, that on and after
February 13, 1942, the respondents knew that Baull was a union
adherent.
2. The Trial Examiner has found that Julia Baull's ballot in the
election of November 21,.1941, "assumed unusual significance" ' because
of the very small difference between the number of ballots cast in favor
of the Union and the number of ballots cast against the Union, and
that the importance of Baull's ballot coupled with the Union's insist-
ence that it be counted explained in part the respondents' unwilling-
ness and failure to reinstate or reemploy Baull. The respondents con-
tend that the Trial Examiner's finding is not supported by the record
and, in support of their contention, point to the fact that they also
challenged the ballot cast by employee Alice Clark. The record shows,
however, that the Union did not press its contention that Clark's ballot
be counted, and that the respondent shortly after the election with-
drew its objection to the counting of Clark's ballot, whereas it con-
tinued to press vigorously its objection to the counting of Baull's
,ballot. We therefore find that the -respondents' reliance° upon their
challenge to Alice Clark's ballot and the respondents' exception to the
Trial Examiner's finding as to the importance of Julia Baull's ballot
.are without merit. The finding is hereby sustained.
3. The Trial Examiner has recommended that the respondents offer
Julia Banll immediate and full reinstatement to her former or a sub:
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantially equivalent position. The respondents contend that the
recommendation is unwarranted because Baull has obtained substan-
tially equivalent employment elsewhere. For the reasons stated in
Matter of Ford Motor Company and International Union United
Automobile Workers of America, Local Union No. 249, 31 N. L. R. B.
994, at 1099-1100, we find that Baull's reinstatement or reemployment
is necessary in order to effectuate the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
'of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Joseph Fradkin and Ben
Singer, co-partners trading as American Linen Service Company, and
American Laundries, Inc., Washington, D. C., and their officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Cleaners and Laundry. Workers
Union, Local 188-B, Amalgamated Clothing Workers of America
(C. I. 0.), or in any other labor organization of their employees, by
discharging or refusing to reinstate any'of their employees or in any
other manner discriminating in regard to the hire and tenure of
employment of their employees;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
join, form, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted activ-
ities for the purposes of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7'of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Julia Baull immediate and full reinstatement or re-
employment in her former or a substantially equivalent position,
without prejudice to her seniority and other rights and privileges;
(b) Make'whole Julia Baull for any loss of pay she may have
suffered by reason of the respondents' discrimination against her, by
payment to her of a sum of money equal to the amount which she
would normally have earned as wages during the period from the
date on which the respondents discriminatorily failed to reinstate or
reemploy her to the date of the respondents' offer of reinstatement or
reemployment, less her net earnings during such period;
(c) Post immediately in conspicuous places throughout their
plant, and maintain for a period of at least sixty (60) consecutive
days from the date of posting, notices to their employees stating:
(1) that the respondents will not engage in the conduct from which
AMERICAN LINEN SERVICE COMPANY - 905
they are ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondents will take the affirmative ac=
tion set forth in paragraphs 2 (a) and (b) of this Order; and (3)
that the respondents' employees are free to become or remain mem-
bers of Cleaners and Laundry Workers Union, Local 188-B, Amal-
gamated Clothing Workers of America, C. I. 0., and that the re-
spondents will not discriminate against any of their employees be-
cause of membership in or activities on behalf of that organization;
(d) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondents discriminated against Julia Baull within the
meaning of Section 8 (4) of the Act, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Earle K. Shaive and Mr Hei titan Lazarus, for the Board.
Mr. Lour A. Sapless and Mt. Jack Politz, of Washington. TD C., for the
respondent.
STATEMENT OT THE CASE
Upon an amended charge duly filed on August 21, 1942, by Cleaners and Laundry
Workers Union, Local 188B, A. C.'W. A., herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional Director for the
Fifth Region (Baltimore, Maryland) issued its complaint dated August 21, 1942,
against Joseph Fradkin and Bell Singer, co-partners trading as American Linen
Service Company and American Laundries, Inc, herein jointly called the re-
spondents, alleging that the respondents had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and notices of hearing thereon,
were duly served upon the respondents and the Union
With respect to the unfair labor practices, the complaint alleged that the
respondents: (1) on or about January 20, 1942 discharged and thereafter refused
to reinstate Julia Baull because she joined and assisted the Union and engaged
in concerted activity with other employees for the purpose of collective bargain-
ing or other mutual aid or protection, and at all times thereafter failed and
refused to reinstate her; (2) by various enumerated acts' beginning on or about
October 1, 1941, interfered with, restrained, and coerced their employees in the
exercise of the rights guairanteed in Section of the Act. On August 27, 1942, the
respondents filed their answer wherein they admitted certain allegations of the
complaint with reference to the nature of their busine.' but denied that they had
engaged in any unfair labor practices.
1
'The acts alleged were- ( a) urging , persuading , and warning employees to refrain
from becoming or retraining members of the Union ; (b) threatening employees with
discharge and other reprisals if they joined and assisted the Union; (c) inteifeting with
employees in the exercise of their rights to cast or not cast ballots in.an election conducted
on October 31, 1941, under the direction of the Regional Director for the Fifth Region
of the National Labor Relations I:oard.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held between August 31, 1942, and September
3, 1942, inclusive, at Washington, D. C., before Peter F. Ward, the undersigned
Trial Examiner duly designated by the Chief Trial Examiner. The Board and
the respondents were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
At the opening of the hearing counsel for the Board moved to strike out a
portion of the answer of the respondents. The undersigned reserved ruling.
During the hearing the undersigned granted the aforesaid motion. During the
hearing, on motion duly made the Board, over the objection of the respondents,
was allowed to amend its complaint to include allegations that the respondents,
from on or about February 14, 1942, and at all times since February 14, 1942;
refused to reinstate Julia Baull, hi violation of Section 8 (4) of the Act, because
she caused charges to be filed on her behalf under the Act.2 The respondents
were afforded leave to file an answer to the amended complaint. The respond-
ents requested a continuance of 10 days in which to file an answer and to present
testimony with reference to the amendment of the complaint. The request was
denied. The respondents were given leave to file an answer to the amended com-
plaint with the Trial Examiner at any time before the case is transferred,to the
Board. At the conclusion of the hearing, the parties argued orally before the
undersigned. An opportunity was offered for filing briefs. No briefs were filed.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSfl ESS OF THE RESPONDENTS
Joseph Fradkin and Ben Singer are co-partners operating a rental linen service
in the District of Columbia doing business under the name of American Linen
Service Company. American Linen Service Company owns linens, delivers them
to its customers, receives payment for the use of these linens, collects soiled
linens, and returns them to its place of business where it sorts them. American
Laundries, Inc., is a District of Columbia corporation, more than 50 percent of
the stock of which is owned by Fradkin and Singer. Fradkin's'wife owns the
remainder of the stock. American Laundries, Inc., takes the linens from the sort-
ing room, washes and finishes them, and delivers them to the stock room. For
this service American Laundries, Inc., receives a fee from American Linen
Service Company. American Laundries, Inc. does no work for persons or firms
other than American Linen. American Linen Service Company does a gross
annual business of over $25,000, of which approximately 5 percent is from cus-
tomers located outside the District of Columbia. For the purpose of these pro-
ceedings, the respondents admitted that they were engaged in commerce within
the meaning of the Act.3
II. THE ORGANIZATION INVOLVED
Cleaners and Laundry Workers Union, Local 1838 Amalgamated Clothing
Workers of America, is a labor organization affiliated with the Congress of
Industrial Organizations admitting to membeiship employees of the respondents.
8A second amended charge containing allegations concerning the refusal to reinstate
Julia Baull because she caused charges to be filed in her behalf was filed by the Union
on September 1, 1942.
8 These findings are based upon a stipulation entered into by counsel for the Board'and
counsel for the respondents.
AMERICAN LINEN SERVICE COMPANY 907
III. THE UNFAIR LABOR PRACTICES
A Chronology of events; interference, restraint, and coercion
In July 1941, the Union began organizational activities among the respondents'
employees. On or about August 6, the Union filed a petition for investigation
and certification of representatives pursuant to Section 9 (c) of the Act' About
this time, Joseph Fradkin, a co-partner in the American Linen Service Company
and vice president of American Laundries, Inc., summoned at random eight or
ten girls individually to his office and discussed the Union with each of them.'
He told each of these employees that she was free to join or not join the Union
as she saw fit. Shortly thereafter, according to Fradkin, he made a similar state-
ment to "all of the girls" at a meeting called for that purpose.
Marion Conrad Cole testified that in September 1941, while she was employed
by the respondents as a uniform folder, Fradkin summoned her into his office.
Fradkin stated, according to Cole, that he wanted to know' if the witness knew
anything about the Union and if she understood its significance. Cole replied
that she had heard something about it and that she thought she understood.
Fradkin then said that he was not telling her to join or not to join, that that was
entirely up to her, but that he wanted her "to try and undersand these things "
Cole further testified that "he asked me, had he been fair."'
On September 10, 1941, the Regional Director for the Fifth Region issued a
notice of hearing on the petition previously filed by the Union in Case No.,R-;3025.
On September 17, 1941, a hearing was held upon the petition and the Board on
October 30, 1941; directed that an election should be held 7
Dora Blackwood, an employee of the respondents, testified without contra-
diction, and the undersigned finds, that some time in the fall of 1941 she attended
a union meeting. that the, day after the meeting Fradkin asked her about the
meeting and whether she would attend other meetings. The witness told him,
that she had gone to the meeting,and Fradkin said it was all right.
The election was scheduled for' November 21, 1941 A few days prior to the
election, the respondent posted the following notice:
To All Eraplojees
Your company has been deeply concerned about the increase in your cost of
living. After a great deal of thought and consideration, we have decided to
increase the earning power of our employees effective from November 3rd
1941.
4 Docketed as Case No. R-3025.
5 Fradkin testified that these conversations and his subsequent statement to the assem-
bled employees took place during the period of the union organizational drive
6 Fradkin denied that he ever said anything to the employees other than that'they were
free to join a union or not as they saw fit He did not deny, however, that he might
have told some of the employees that lie had been fair . The undersigned finds that this
conversation occurred as testified to by Cole.
7Matter of Joseph L FradAin and Ben Singer, a partnership tiading as The American
Linen Service Co. and The A merican Laundries Inc., 36 N. L. R B 565.
"The testimony as to the date on which the notice was posted was conflicting. Board
witnesses Cole and employee Rose Proctor, fixed the date of posting as November 20, the
day before the election Fradkin testified that the notice n as posted on or about Novem-
ber 12 Superintendent John Crummet testified, however, that the notice was posted
during the third week in November. Willie Porter, an employee, first testified that the
notice was posted the day of the election, but on cross-examination fixed the date of the
posting as the Friday before the election As hereinafter found, Fradkin was not a
reliable witness and the undersigned does not accept his version . The undersigned finds
that the notice was not posted until the third week in November.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This increase is based on the report of the Bureau of Statistics of U. S.
Department of Labor to the effect that the cost of living has increased
67%a in recent months. Accordingly, we are increasing our employees
wages 6 7%.
Your company will endeavor to meet future increases in cost of living as
officially announced by the Bureau of Statistics of the Department of Labor
in its quarterly reports.
(s) JosEra L FRADI UN.
Joseph L. Fradkin.
It was undenied that a notice of election was posted on the same bulletin board
on either November 18 or November 19, 1941, and that both notices were on the
bulletin board simultaneously and in close proximity. Fradkin testified that the
respondents had considered a wage increase in the summer of 1941 and had
requested Jack Politz, their counsel, to obtain information from the Bureau of
Labor Statistics as to the advances made in the cost of living in the District of
Columbia. ' Fradkin stated that the respondents had made no definite decision at
that time as to what method was to be utilized in the granting of a wage increase,
but that it was finally determined to grant a wage increase proportionate to the
increase in the cost of living as shown by the statistics compiled by the Bum eau
of Labor Statistics. The respondents contend that the wage increase was based
solely upon the change in living conditions prevalent during the fall of 1941 and
that the granting of the wage increase had no connection with the pending election
to be conducted by the Board or with union activity among its employees.
The evidence shows that by October 17, at least, the figures compiled by the
Bureau of Labor Statistics were in the hands of Politz, counsel for the respond-
ents. On October 22, the statistics were forwarded to the respondents by Politz.
The notice to the employees announcing the wage increase was not posted until
after the Board's Direction of Election dated October 31, 1941, and shortly before
the Board election conducted on November 21, 1941 It is clear that the respond-
ents realized that the posting of the notice would have a disadvantageous effect
upon the Union's chances of winning the election, and that they intended to
influence the attitude of their employees by the posting of the notice. No evidence
was offered to explain a delay of several weeks, although the required statistics
were available, in announcement of the wage increase. No reason was advanced -
by the respondents as to why the granting of the wage increase, which was in fact
retroactive, could not have been announced either prior to the direction of the
election or subsequent to the holding of the election. Employees are entitled to
be free in the exercise of their choice as to whether or not they wish to be repre-
sented by labor organizations! In the face of a pending election it is clear that
the respondents had a duty to exhibit absolute neutrality and not to influence,
directly or indirectly, the employees' choice. In view of the evidence that the
notice was not posted until the week of the election and in view of the absence of
any convincing explanation for the delay in announcing the granting of the wage
increase until that critical period, the undersigned is convinced and finds that
the announcement of the wage increase was a tactical maneuver having its roots
in the respondents' opposition to the organization of their employees.
Rose Proctor testified that on the day of the election, November 21, Fradkin
asked her if she knew whether or not Marion Cole and Willie Porter had been
"down at the Labor Board " When Proctor answered' in the negative Fradkin
said, "Well, I want you to understand that I can hire and fire." Fradkin denied
that he had ever engaged in any such conversation. Fradkin was an evasive
In the Matter of Sunbeam Eleetito Manufactui mg Company, 41 N L R. B 469.
1
AMERICAN LINEN SERVICE COMPANY 909
witness and showed a lack of frankness incompatible with credibility. The
undersigned credits the testimony of Proctor.10
The undersigned finds that the respondents, and each of them, by the posting
of the notice announcing the wage increase and by Fradkin's statement to Proctor
containing a thinly veiled threat of discharge if union activity was continued,
have interfered with, restrained, and coerced their employees ' in the exercise of
their right to self-organization, to form, join, or assist labor organizations, to
,'bargain collectively through repiesentatives of their own choosing, and to engage
in,concerted activities for the purposes of collective bargaining and other mutual
aid and protect ion as guaranteed in Section 7 of the Act.
B The discharge of Julia Baud
Julia Baull was employed by the respondents in May of 1941. She signed an
application card for membership in the Union on July 14, 1941. She attended
one or two union meetings On October 3, 1941, Baull became ill at work and
went home. During the following u eek she underwent a surgical operation.
On October 8, 1941, Baull sent Frances Butler, her niece, to John L. Crummet, her
supervisor, for her pay She gave her niece a letter addressed to Crummet in
which she stated that she was very ill, that it would be a "couple of weeks" before
she could return, but that she hoped that when she was better be would still have
a place open for her., Butler testified that when she delivered the note and told
Crummet that B:nill was very ill, Crummet said that he was sorry that Julia was
ill and that Butler should tell Banal that whenever Baull could report back her
job would be open Butter relayed this message to Baull - -
Willie Porter, an employee in Baull's department, testified that sometime before
the election of November 21. she requested permission of Crummet, the superin-
tendent of the plant, to wear Banill's uniform. that lie gave her permission to wear
the uniform but instructed her not'to remove Baull' s name , which had been
stamped on the uniform, because he expected Baull to return.
Crunimet testified that he had been employed by the respondents since August
1941. He denied the testimony of Butler concerning their conversation at the
time when Butler delivered Baull's note. Crummet testified that he merely told
Butler that when Baull recovered she should come and see him and that he could
not guarantee anybody a job Crummet also denied that he had ever, had a con-
versation with Willie-Porter about Baull's uniform or that he had ever consented
that she might wear Baull's uniform
On cross-examination Crummet testified that when Porter took Baull's uni-
form she violated a company rule. When questioned further about this incident,
however, Crunimet stated that it was the practice of employees to wear uniforms
10 The following excerpt from Fradkm's cross -exlmilia tion is illustrative -
Q Haven't you made suggestions to him, [Crummetl that certain workers who you
know were good workers you would like to have him put on? Haven't you made those,
suggestions to him from time to time?
A. I don't recall
Q You have never suggested that he hire a particular employee?
A I can make that suggestion to him and lie don't have to listen to it If he don't
want to -
Q My question is have you ever made that suggestion.
A. I don't know of any specific instance . I might have
Further, on cross-examination, Fradkin first stated that he knew nothing of Julia Baull's
union membarship until the hearing on exceptions filed by the respondent to the Regional
Director's Election Report, held on March (1, 1942 He admitted, however, that ,on or
about February 13, 1942 be had been -notified by the Board that a charge had been filed
by the Union, stating that Julia Baull had been discrnuinatorilv discharged
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on which were stamped the names of other employees , that the uniforms were
riot the property of the individual employees but were the property of the
respondents , and could be worn by any employee . He admitted that Porter,
when she borrowed Baull's uniform, did not violate a company rule. At the
previous hearing held in Case No . R-3025, upon the respondent 's objections to
the Election Report, at which the respondents contended that Julia Baull's
vote should not be counted because she was not an employee of the respondents
at the time of the election, Crummet testified that prior to the middle of Janu-
ary he had never had a conversation in regard to Julia Baull with either
Fradkin or Singer and that he had kept the Butler note in his files at all times
and had never shown it to Fradkin. At the present hearing, however, Crum-
met testified that he had spoken to Fradkin about Baull sometime after the
election and prior to January 20, 1942, and that he had shown Julia's note, to
Fradkin. Although Fradkin testified that as a result of the Union's organiza-
tional activities there had been considerable "furore" in the plant and that he
had felt it necessary to talk to the employees and state that the respondents'
position was one of absolute neutrality. Crummet testified That lie never rEO-
ticed any unrest among the employees, that he had heard no talk about the
Union ,and had heard nothing about the Union around the plant. In view of
the contradictions in Crummet 's testimony , the undersigned finds that he was
not a reliable witness. Accordingly , the undersigned credits the testimony of
Butler and Porter and finds it to be substantially in accord with the facts.
Marion Conrad Cole testified without contradiction, and the undersigned
finds, that she complained to Crummet concerning the work of Alice Clark, an
employee who was substituting for Baull, and that Crummet said , "Well, make
out the best you can, because when Julia comes back everything will be straight-
ened out."
Baull left the hospital November 19, 1941 . On November 21, the day of the
election , Julia Baull presented, herself for the purpose of voting. The respond-
ents' observers , Philip Goldstein and I . Kenneth Goldberg , after observing that
her name was not included on their eligibility list, objected to Baull's casting
a vote. Jack Kutner , the union organizer , vigorously contended that Baull was
an employee of the respondents who was absent on sick leave and should be
permitted to cast her vote. Baull was permitted to vote and her ballot was
sealed in an envelope and marked as a challenged ballot. Baull was not dis-
charged from the care of her physician until December 15. Her physician
advised her that she should not return to work for a period of 30 days. On
January 20, 1942, Baull went to the plant and informed Crummet that she was
ready to return to work . Baull testified that Crummet said , "Well , Julia, I
am sorry, but you was gone a little over your time ." Baull also testified that
Crummet stated that if it had been a period of one or two weeks he would
,have held her job open for her , but that it had become necessary to replace'
her in view of the length of her absence. According to Baull, Crummet stated
further that if he had a vacancy he would send for Baull or let her know.
Crummet denied that he told Baull that if he had a vacancy he would send
for her . In explaining his testimony, Crummet stated that since he had become
superintendent in August 1 941, that if a, girl was out for a few days he kept
her job open but that if she was away for more than two weeks he replaced
her, and that he had never sent for anyone to report for work . As stated above,
the undersigned has found that Crummet was not a reliable witness. The
undersigned therefore accepts Baull 's version of this conversation.
On February 13, 1942, the , Union filed a charge alleging that Baull had been
discriminatorily discharged . On March 6 , 1942, a hearing was held before a Trial
AMERICAN LINEN SERVICE COMPANY 911
Examiner duly designated by the Board on the objections filed by the respondents
to the Election Report of the Regional Director. The Board found in its Supple-
mental Decision and Direction u on April 18, 1942, that Baull was an employee
of• the respondents as of November 21, 1941, and was entitled to vote in the
election.
The respondents admitted that subsequent to January 20,.the date upon which
Baull applied for reinstatement, at least nine new employees had been hired, tliat
at least seven of these had been hired as shakers, a position which involved work
which Baull was qualified to perform. The respondents stated, however, that all
of the shakers had been hired on a temporary basis. The respondents contended
that it was not their practice to send for employees. When Crummet was asked
why he had not employed Baull to fill one of the positions for which she was
qualified , he reiterated his position that it was not his practice to send for anyone.
Fradkin testified that there was an abundant labor supply available.
However, Willie Porter testified without contradiction, and the undersigned
finds, that in January of 1941, after she had been ill for several months, she applied
for reinstatement ; that her forelady refused to reinstate her because no position
was available at that time. Thereafter, Porter applied directly to Fradliin, who
stated that there was no vacancy at the moment but that he would send for her
when one arose Subsequently, Porter was sent for and was rehired by the
respondents. The undersigned has found, moreover, that Crummet. specifically
promised Baull that he would send for her when a vacancy arose. Accordingly,
the undersigned finds that Baull had a right to rely upon the representation by
the respondents that she would be sent for and that there was no duty incumbent
upon Baull to reapply for employment.
The respondents contend that, as of January 20, Baull was no longer an employee
of the respondents. In view of the testimony of Cole, Baull, and Porter, stated -
above, and in view of the fact that the respondents had never formally or other-
wise notified Baull that her employment was terminated and that Baull had
never indicated to the respondents that she had quit her employment, the under-
signed finds that Baull was an employee of the respondents as of January 20,
1942. In the view of the undersigned, however, whether or not Baull was an
employee as of January 20 is immaterial in regard to the question decisive of the
case. Even on the assumption that Baull was not an employee, if the refusal to
rehire Baull was based on Baull's union membership or activity,"- such a refusal
would be violative of Section 8 (3) of the Ac£.u The record establishes that on
January 20 the respondents had no vacancy which Baull could fill. Accordingly,
under the circumstances described herein, the refusal to reinstate her at that
time in the opinion of the undersigned, was not discriminatory. The remaining
and decisive question is, however, as to whether or not the respondents' subsequent
failure to send for Julia Baull when a position was available which she was
qualified to fill was motivated by the union activity of Julia Baull"
3340 N L. R. B. 729.
12 The respondents contended at the bearing that inasmuch as Baull had paid no union
dues and had testified that she as not sure whether or not she was a union member, a
finding that Baull had been discriminatorily discharged because of such membership or
activity could not be sustained. Whether or not Baull was in fact a union member is
immaterial The Act protects union or other concerted activity not less than union
membership . Matter of Atlanta Flour ct grain Company , Inc, 41 N . L R. B 409
13 Phelps Dodge Corp v. N L R. B, 313 U. S. 177, modifying and remanding 113 F (2d)
202 (C. C A. 2), enf'g as mod 19 N'L. R. B 547; N. L. R. B. v. Waumbec Mills, 114 F.
(2d) 226 (C C A. 1), enf'g as mod 15 N L R. B. 37.
14 Of some bearing on this question but not decisive thereof was the testimony of
Marion Cole, who had been employed by the respondents for a period of several years,
who testified that she knew of no case in 'which an employee who had been ill had not
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was admitted that Baull was a satisfactory employee. Baulk testified
without contradiction, and the undersigned finds, that one occasion Fradkin had
complimented her upon her work.
The respondents contended that prior to January 20, 1942, they had no knowl-
edge of Baull's union activity. Goldstein,-who acted as an observer for the
respondents, testified that he had reported to the company that on the day
of the election, November 21, he had challenged the vote of Julia Baull and that
Kutner, the union representative, had contended that Baull should be,allowed to
vote. S.nce Kutner obviously possessed knowledge as to the membership of'the
Union, the reasonable inference was that Baull had engaged lit union activity,
and the undersigned is convinced that the respondents, on obtaining this informa-
tion, inferred that Bault was a union partisan. This conclusion is strengthened,
moreover by language in the answer of the respondents, which the undersigned
finds amounts to an admission that on the day of the election the respondents
learned of Baull's union activity. The answer stated :
Further answering, said companies deny that they refused to reinstate
said Julia Baull to her former or substantially equivalent position because
said Julia Baull joined and assisted the Union and engaged in concerted
activity with other employees for the purpose of collective bargaining or
other mutual aid or protection.
Further answering, these companies state that at the time Julia Baull left
her place of employment on account of illness on October 6, 1941, they never
knew or had reason to believe that she was engaged in any union activities
until she attempted to vote on Nov. 22, 1941, at all election held by the
National Labor Relations Board, .. ." LItalics supplied.]
While Baull was not an active union member, a realistic appraisal of the
evidence discloses that her vote at the election assumed unusual significance
under the circumstances.18 The respondents had reason to believe Baull's vote
would be a vote for the Union. Accordingly, her union activity in this respect
attained more than ordinary significance.
The undersigned has found that the respondents, through Crummet, agreed
to send,for Baull when a vacancy arose. It) the absence of any convincing ex-
planation, the respondents' subsequent failure to send for Baull can only be
explained by the respondents' antipathy toward the Union. The respondents'
desire to prevent union certification was exhibited by the announcement of a
wage increase designed to prevent a union victory at the polls On the entire
record, the undersigned finds that the respondents failed to reinstate Julia Baull
when positions became available, because of her union activity.
been reinstated by the respondents Fradkin testified that the company had no fixed
policy in regard to reinstatement of employees who had been ill foi it period of more than
2 weeks He testified that in at least 50 cases employees whose work was satisfactory
had been refused employment because their positions had been filled However, when
asked to give the names of some of these employees he was able to furnish only twb
names The undersigned finds howevei, based on all the facts herein, that it was the
practice of the respondents when positions were available. to reinstate employees who
had been ill for substantial periods of time
15Aloieover, assuming aiguendo that the respondents were unaware, of Baull's union
activities on January,20, nevertheless, Fradkin admitted, as found above, that he learned
on or about February 13, that the Union had filed a charge with the Board on behalf of
Baull. As of this time, therefore, the respondents had reason to, believe that Baull
was a union member As found below, at least some of the vacancies for positions which
Baull could fill did not appear until subsequent to Febi nary 13
i The vote, according to the Election Report of the Regional Director issued by him
on January 5, 1942, and duly served on the parties. prior to the counting of six challenged
ballots, was 27 for the Union, 25 against the Union
AMERICAN LINEN SERVICE COMPANY 913
' The undersigned finds that the respondents by refusing to reinstate Julia
-Baull when a' position became available have discriminated in regard- to the
hire and tenure of employment of Julia Baull, thereby discouraging membership
in a labor organization and interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in Section 7 of the Act.
C. The alleged refusal to reinstate because charges were filed by the Union with
reference to Julia 13aull
Jack Kutner testified that two or three weeks prior to August 31, 1942, he had
a conversation with Louis Spiess, counsel for the respondents, in which he sug-
gested that the discharge of Julia Baull could be adjusted. During this con-
versation, Spiess said that he was sorry for Baull, but that he believed that the
Labor Board "messed itall up" and that the respondents were now stubborn and
would not reinstate Baull.P
Irving He=bling, a field examiner for the National Labor Relations Board,
testified that on or about June 20, 1942, he discussed the possible reinstatement of
Julia Baull with Spiess and recommended to Spiess that Baull be returned to
work with back pay. Spiess stated that the respondents would not do that, that
although Baull,had been a competent employee and probably would have been
returned to work in the normal course of events, because the Union had filed the
charge Spiess would not give the Union an opportunity to claim a victory by
having Julia Baull reinstated while the charge was pending.18 On cross-
examination, Helbling admitted that Spiess might have stated that the National
Labor Relations Board had raised this question about the respondents violating
the law and that Spiess had said that he insisted upon a court decision as to
whether the respondents were violating the law. During the hearing, Spiess,
counsel for the respondents, stated for the record that he had told Helbling that,
"in view of the charges of the National Labor Relations Board, that we had
refused to reinstate Julia Baull, because of union activities, and my recommenda-
tion would be that she not be reinstated until the case had been tried and a court
ordered us, and that is our position."
The Board contended that the testimony of Kutner and Helbling and the state-
ment of Spiess demonstrated that the refusal to reinstate Baull was based on
the fact that charges had been filed on her behalf under the Act, and that the
respondents thereby violated, Section 8 (4) of the Act. The testimony and the
statement relied upon by the Board can fairly be regarded as amounting to a
refusal to entertain a settlement and an indication that the respondents would
insist upon a'court determination of the question as to whether or not the
respondents' refusal to reinstate Julia Baull was discriminatory and in violation
of the Act. In the opinion of the undersigned, such a position is in no way
violative of the Act. The respondents are within their legal rights in refusing
to agree to a settlement and-in insisting upon exercising the right to a court de-
termination granted to the respondents by the Act.
The undersigned will recommend that the complaint be dismissed insofar as it
alleges that Julia Bvill was refused reinstatement because charges were filed on
her behalf in violation of Section 8 (4) of the Act.
IV. THE EFF P CT OF TIIE UNFAIR LABOR PRACSICEB UPON COMMERCE
The activities of the respondents set forth in Section III above, occurring in
connection with the operations of the respondents described in Section I above,
1T This finding is based on the uncontradicted testimony of Kutner
18 The testimony of Helbling was uncontradicted Spiess did not testify.
493508-43-vol. 45-5S
914 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
have a close, intimate, and substantial relation to trade, traffic, and commerce
within the District of Columbia, and tend to lead to labor disputes burdening
and. obstruct ing^commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondents have engaged in certain unfair
labor practices, it will he recommended that the respondents cease and desist
therefrom and lake certain affirmative action designed to effectuate the policies
of the Act.
The undersigned has found that the respondents discriminated in regard to
the hire and tenure of employment of Julia Baull. The record does not indicate
the precise date when Julia Baull, absent discrimination, would have been
reinstated. The record discloses that Julia Baull -,i-as qualified to perform the
duties of employment involved in performing the work of a shaker. It is clear
from the record that the respondents have, subsequent to January 20, 1942, hired
new employees as shakers. The undersigned finds the respondents' discrimina-
tion against Julia Baull was exercised as of the date when the respondents
first hired a new employee as a shaker subsequent to January 20, 1942. The
undersigned will recommend that the respondents offer to Julia Raull imme-
diate reinstatement to her former or substantially equivalent position without
prejudice to her seniority and other rights and privileges, and make her whole
for any loss of pay she may have suffered by reason of the respondents' discrimi-
nation against her by payment to her of a sum of money equal to the amount
which she would normally have earned as wages from the date of the respond-
ents' discrimination against her to the date of the offer of reinstatement, less
her net earnings 20 during such period.
Upon the foregoing findings of fact and upon the entire record in'the case. the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Cleaners and Laundry Workers Union Local 188B, Amalgamated Clothing
Workers of America, C. I. 0, is a labor organization, within the meaning of
Section 2 (5) of the Act. -
2. By discriminating in regard to the hire and tenure of employment of Julia
Bau]l, thereby discouraging membership in Cleaners and Laundry Workers
Union Local 188B, Amalgamated Clothing Workers, of America, C. I. 0., the
respondents have engaged in-and are engaging in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
- 3. By interfering with, restraining, and coercing their employees in the exercise
of rights guaranteed in Section 7 of the Act, the respondents have engaged in
19 It appears from the testimony of Crummett that Julia May Kennedy was employed as
a shaker 4 or 5 months prior to the hearing This testimony would indicate that a position
was available at least by April which involved duties which Baull was capable of
performing.
90 By "net earnings" is meant earnings less expenses such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R. B. 440. Monies re-
ceived for work performed -upon Federal, State, county, municipal, or other work-relief
projects shall be considered as earnings See Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
AMERICAN LINEN SERVICE CODIPANY 915
and, are engaging in unfair labor practices, within the meaning of Section 8
'(1) of the Act.
4. The respondents have not discriminated against Julia Baull, within the
meaning of'Section 8'(4) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce Within the meanink of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of. the foregoing findings of fact and conclusions of law the
undersigned recommends that the respondents Joseph Fradkin and Ben Singer,
co-partners trading as American Linen Service Company, and American Laun-
dries, Inc., Washington, D. C., and each of them, their officers, agents, successors,
and assigns, shall:
1 Cease and desist from :
(a) Discouraging membership in Cleaners and Laundry Workers Union Local
188B, Amalgamated Clothing Workers of America, C. I. 0., or any other labor
organization of their employees, by discharging. refusing to reinstate, or in
any other manner discriminating in,regard•to the hire,and tenure of employment
of their employees ;
(b) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to join, form, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, as guaranteed in Section 7
of the National Labor Relations Act.
2. Take the following affirmative action which the undersigned finds will
effectuate, the policies of the Act :
(a) Offer to Julia Baull immediate and full reinstatement to her former
or substantially equivalent position without prejudice to her seniority and other
rights and privileges ;
(b) Make whole Julia Baull in the manner set forth in the section entitled
"The remedy" above , for any loss of pay she may have suffered or may hereafter
suffer by reason of the respondents' discrimination against her, by payment
to her of a sum of money equal to ' the amount she would normally have
earned as wages, but for such discrimination, less her net earnings" luring such
period ;
(c) Post immediately in conspicuous places throughout their plant, and main-
tain for a period of at least sixty (60) consecutive days from the date of post-
ing, notices to their employees stating (1) that the respondents will not engage
in the conduct from which it is recommended that they cease and desist in
paragraph 1 (a) and (b) hereof; (2) that they will take the affirmative action
set forth in paragraph 2 (a) and (b) hereof; and (3) that respondents' employees
are free to become or remain members of Cleaners and Laundry Workers Union
Local 188B, Amalgamated Clothing Workers of America, C. I. 0., and that the
respondents will not discriminate against any of their' employees because of
membership-in or activities on behalf of that organization;
(d) Notify the Regional Director for the Fifth Region in writing within twenty
(20) days of the receipt of this Intermediate Report what steps the respondents
have taken to comply herewith.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report the respondents notify said Regional
41 See footnote 20, supra.
916 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to
take the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondents discriminatorily refused to reinstate Julia Baull because
charges were filed in her behalf under the Act.
As provided in S ,ction 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty ( 30) days from the date of the entry of the order transferring the case to
the Board , pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington , D. C., an original and four
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections ) as he relies upon, together with the original and four
copies of a brief in support thereof . As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within twenty ( 20) days after
the date of the order transferring the case to the Board
Dated September 11, 1942
PETER F. WARD
Trial Ewaminer.