Kraus & Co.

National Labor Relations Board - Board Decisions

Aug 23, 1940

26 N.L.R.B. 1004 (N.L.R.B. 1940)

In the Matter of KRAUS & COMPANY, A CORPORATION, COMMONLY
KNOWN IN THE TRADE AS KRAUS CLEANERS and ASSOCIATION OF
CLEANERS,'DYERS & LAUNDRY WORKERS, LOCAL 110
Case No. C 1608.-Decided August 28, 1940
Jurisdiction : dry cleaning and storage industry.
Unfair Labor Practices
Interference, Restraint and Coercion: interrogation concerning union member-
ship; anti-union statements.
Discrimination: charges of, dismissed.
Mr. Clarence D. Musser, for the Board.
Canale, Glankler, Loch cf; Little, by Mr. Hamilton E. Little and
Mr. Frank J. Glankler, of Memphis, Tenn., for the respondent.
Mr. George Gregory, of Memphis, Tenn., for the Union.
Miss Marcia Hertzmark, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Association of Cleaners, Dyers &
Laundry Workers, Local 110, herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Tenth Region (Atlanta, Georgia), issued its com-
plaint,, dated April 2, 1940, against Kraus & Company,' Memphis,
Tennessee, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices 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 were duly served upon
the respondent and the Union.
Concerning the unfair labor Practices, the complaint alleged, in
substance, (1) that on or about September 14, 1939, the respondent
discharged Annie Bell Carr and Joe Poaston,2 and on or about Sep-
tember 23, 1939, discharged Spencer Brooks, George Gregory, and
I Incorrectly designated in the pleadings as Kraus Cleaners.
! Incorrectly designated in the complaint as Postom.
26 N. L. R. B, No. 103.
1004
KRAUS & COMPANY 1005
Lucious Carter,' because of their membership in and activities in be-
half of the Union; and (2) that the respondent, by its officers, agents,,
and supervisory employees (a) openly threatened to discharge em-
ployees if they became members of any labor organization; (b) made
anti-union speeches to the employees; and (c) exercised surveillance
over the activities of union members as a means of preventing em-
ployees from exercising the rights guaranteed them by the Act.
Pursuant to notice, a hearing was held at Memphis, Tennessee, from
April 1.5 to 20, 1940, before Albert L. Lohm, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel and participated in the hearing. The Union
was represented by its vice president. Full opportunity to be heard,.
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
On the day the hearing commenced the respondent filed a motion
to dismiss the -complaint on the ground that it was not engaged in
commerce within the meaning of the Act. Ruling was reserved on
this motion. On the same day the respondent filed an answer to the
complaint denying the jurisdiction of the Board and denying the
commission of the unfair labor practices alleged in the complaint.
At the conclusion of the Board's case the Trial Examiner granted a
motion of counsel for the Board to conform the pleadings to the
proof. During the course of the hearing the Trial Examiner made
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed. The
respondent filed a brief with the Trial Examiner.
The Trial Examiner thereafter issued his Intermediate Report,
d.a.ted. June 6, 1940, copies of which were duly served upon all the
parties, denying the motion of the respondent to dismiss the com-
plaint. He found that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) of the Act and recom-
mended that the respondent cease and desist from engaging in such
practices. He recommended that the complaint be dismissed in so
far as it alleged that the respondent had engaged in unfair labor
practices within the meaning. of Section 8 (3) of the .Act, and also
recommended the dismissal of the allegation that the respondent had
openly threatened to discharge employees if they became members
of a labor organization. The Union filed exceptions to the Inter-
mediate Report. The respondent filed. exceptions to the Trial Exam-
iner's finding that the respondent is engaged in commerce within the
meaning of the Act, and requested permission to argue orally before
the Board.
Pursuant.to notice, a hearing was held before the Board in Wash-
3 Incorrectly designated in the complaint as Loucian Carter.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ington, D. C., on July 30, 1940, for the purpose of oral argument.
The respondent was represented by counsel and the Union by its vice
president. The Board had considered the exceptions to the Inter-
mediate Report, and the oral argument in support thereof, and, in so
far as the exceptions are inconsistent with the findings, conclusions,
and order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Kraus & Company, a Tennessee corporation with its office and place
of business in Memphis, Tennessee,. is engaged in the business of
cleaning, pressing, dyeing, and storing of men's, women's, and chil-
dren's wearing apparel,'household furnishings, etc. It is the largest
concern of its kind in the Southern States and its volume of business
in 1939 totaled $451,844. Of this amount, approximately 91 per cent
represented revenue from business whose source was in Memphis and
vicinity and 9 per cent represented revenue from business obtained
from surrounding counties in Mississippi, and Arkansas. During
the same period the respondent purchased $57,221.84 worth of ma-
chinery and supplies, of which approximately 44 per cent originated
in the State of Tennessee, and 56 per cent originated outside of that
State. The respondent normally employs approximately 274 persons,
of whom about 194 are production employees. . It ,owns and operates
34 trucks which are used to call for and deliver the articles serviced
by it.
II. THE ORGANIZATION INVOLVED
Association of Cleaners, Dyers & Laundry Workers, Local 110, is
an unaffiliated labor organization, admitting to membership those
persons who, have been engaged in the cleaning, pressing, and dyeing
business for a period of a year, excluding foremen, office help, truck
drivers, and routemen.
111. THE UNFAIR LABOR PRACTICES
A. Background
On November 22, 1938, as a result of a price war in the cleaning
industry in Memphis , the price for cleaning and pressing a suit was
reduced from 75 cents to 50 cents. Abe Scharff , president of the
respondent , announced. to the employees that he thought the condition
would be only temporary and that he did not contemplate reducing
wages. However, on May 29, 1939, he told them that the continua-
tion of the price war had necessitated a decrease in the rates paid to
the employees from 6% cents to 5 cents for pressing a suit. There
KRAUS & COMPANY 1007
was general dissatisfaction in the respondent's plant thereafter, and
Scharff employed an expert from the American Institute of Launder-
ing-to make a study of conditions in an effort to improve them. On
July 20, during Scharff's absence from the city, a new "unit system"
was installed in the pressing department of the respondent's plant.
Previously, pressers had worked in groups, each of which serviced
coat, pants, or vest of a suit. Under the new system, three pressers,
an inspector, and an iron girl were grouped together as a unit and
pressers were given their choice as to the articles they pressed. When
Scharff returned from his vacation early in September he found that
the method of computing wages, established during his absence, was
too complicated, and lie inaugurated a system whereby a presser re-
ointsceived eight points for pressing a complete suit, allocating four.
for a coat, three points for the pants, and one point for a vest, and
was paid 5 cents for each eight points pressed.
B. Interference, restraint, and. coercion
Early in August 1939, 13 of the pressers employed by the respond-
ent organized a union which was perfected on August 16. Lloyd B.
Bensinger, secretary-treasurer of the respondent, who was in charge
of the plant during Scharff's absence, W. J. Nunnery, plant super-
intendent, and Newton Greene, foreman of the men's woolen depart-
ment, testified that they learned of the formation of the Union almost
immediately thereafter and that it was a matter of common knowl-
edge throughout the plant. Nunnery stated that he discussed with
Bensinger "what the attitude of the company should be towards the
Union" and that they reached the conclusion that they could do
nothing about it,-"they had a right to form a union if they wanted
to." Scharff was informed of the Union's organization within a few
days after his return by either Greene or Nunnery.
It appears from the record that in spite of the decision that the
respondent could do nothing about the Union, Nunnery attempted to
discourage the activities of the employees in connection therewith.
He admitted inquiring of at least two employees whether they had
joined the Union. Although he denied generally having told any
employee not to join the Union, it is clear from the evidence that his
actions subsequent to its formation were calculated to discourage
membership in the Union. Thus, when an employee asked him if it
was true that she had to belong to the Union to hold her job, Nunnery
replied, according to his own testimony, that she did not have to
belong to "anything unless he told her; when we wanted her to join
the Union we would tell her." Shortly after the Union was organ-
ized, Artie Hynes, a presser and one of the charter members of the
Union had a conversation with Nunnery in which. the latter told
Hynes that he knew the employees were meeting. Hynes confirmed
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that fact and informed Nunnery that the employees in the men's
department, were dissatisfied. Ile suggested that if Nunnery` would
talk to them "he could get things straight." Nunnery replied that
Greene was in charge in that department but went on to say that there
was no use "going down there and throwing away money," that the
employees did not know what they were doing, "somebody would be
down there taking their money, it would just be $2 thrown away."
Nunnery assured Hynes that the employees had a right to join any
church or organization they wanted, but asserted that "unions were
for men like bricklayers and carpenters, that pressers did not need
a union." Nunnery did not deny any of the foregoing statements,
and we find that he made them.
About the first of September, Wardna Collier, inspector and
department manager in the ladies' woolen department, urged Nunnery
to take steps to improve working conditions because the employees
were dissatisfied and. were forming an organization. He instructed
her to tell the employees in her department to stay out of. the Union
because those who were forming it were "not their friends but came
from the north for their money." Collier thereupon told the colored
girls in her department not to join the Union.4 Collier testified that
one of them stated that she` would not join the Union because site
needed her job. At about the same time Spencer Brooks, a presser in
unit 4, heard Nunnery inquire of Tom Ruffin, a porter, whether lie
had heard of the Union. When Ruffin did not reply, Nunnery said,
"I would advise you to join; go down there and find out about it and
let me know." Ruffin attended the union meeting that evening,
quoted Nunnery, and stated, "I have never been a snitcher, and I never
expect to be one." Nunnery admitted asking Ruffin if lie belonged
to the Union but denied that he suggested that Ruffin attend the
meeting or supply him. with information concerning the Union. We
find, as did the Trial Examiner, that Nunnery spoke to Ruffin sub-
stantially as recited above.
Around the latter part of October, Nunnery told Collier that lie
would "give $20 of his money if he could get something on Charlie
[McKinney] so he could fire him." Collier warned. McKinney, who
was president of the Union, and Artie Hynes to be careful about their
work and to "take whatever they give you from the lady which gives
out the work . . . and don't say anything about it because they are
after your hide, and especially you, Charlie, they are offering money
to get a bona fide excuse on you to fire you." When Nunnery was
questioned at the hearing with respect to his statement to Collier lie
explained, "After I had known that she [Collier] had the president
and another officer of the Union in her department . . . naturally
I talked to her and told her this situation and I also told her there had
4 About 112 of the respondent's employees are colored.
KIiAUS & COMPANY 1009
been some bad work in other departments and she better watch her
work." Nunnery did,not specifically deny that he made the state-
ments attributed to him by Collier, and we find that he made them.
Lucious Carter, a presser in unit 4, testified that Lanning Smith, a
foreman, asked him about September 12 if be belonged to the Union.
When Carter answered affirmatively, Smith said, "You boys don't
need no union." Smith did not testify at the hearing although he
was still in the employ of the respondent at that time.
We find that the respondent, by the statements of its supervisory
employees described above, has interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed by Section
7 of the Act.
C. The alleged discrimination
Annie Bell Carr and Joe Poaston were discharged on September 14,
1939. Poaston was a presser and Carr an inspector in'unit 1. Both
were admittedly capable . employees. Carr had worked for the
respondent since 1928, and had joined the Union on September 9,1939;
Poaston began working in February 1939, and was one of the charter
members of the Union. The complaint alleged that they were dis-
charged because of their membership in the Union. The Trial Ex-
aminer found that they were discharged for reasons other than their
union membership and activities, and recommended that the com-
plaint be dismissed as to them. The Union excepted to the Trial
Examiner's finding and recommendation.
It is necessary to describe the conditions which existed in the re-
spondent's plant during August and September to understand the
circumstances surrounding the dismissal of Carr and Poaston. As
has been .stated -above, the dissatisfaction of the employees, particu-
larly the pressers, with their wages and hours during this period led
to the formation of the Union. It is admitted that during this time
the respondent was having difficulty getting its work out\on time and
in proper condition. When Scharff returned to Memphis early in
September he found that numerous complaints were being made by
customers as to the quality of the work, and that the hotels and others
were complaining about the delay on`garments sent for special 1-day
service. Scharff testified that "our production was poor, our service
was rotten, and our work was almost that . . . I don't think I have
been ever harassed so much in my life with the number of complaints
I had on my return from my trip."
On the day of Carr's and Poaston's discharge, one of the respond-
ent's routemen delivered a suit to a customer who had recently
returned several garments because they were improperly serviced.
The suit was inspected by the customer and refused because it had
spots on the sleeve and front of the coat and was not well pressed.
The routeman took the suit directly to Scharff, rather-than' to the
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint department, and complained about the poor work.' Scharff
called Nunnery and Greene to his office and directed, "Whoever is
responsible for the pressing and examination of this suit, get rid of
them immediately . . . Whoever they may be, fire them." Greene
examined the ticket on" the suit, ascertained that it had been pressed
in unit 1, and confronted Carr. with it. Carr informed Greene that
Poaston had pressed it, whereupon Greene discharged Carr and
Poaston immediately.
Poaston admitted that he pressed the suit but Carr denied at the
hearing that she was responsible for its inspection, stating that
Greene had been inspecting at the time the suit went out of the unit.
Greene testified that he could not remember whether or not he had
inspected the suit, but stated that when he brought it to Carr after
the customer had returned it she said that she had sent the suit back
to the spotters the previous day. It is conceded that the suit was
sent out in an improper condition, and that it was Poaston's duty to
inspect the suit before he pressed it and. to send it back to the spotters
if it was found not to have been properly cleaned. It is also admitted
that the respondent had no way of ascertaining which of the spotters
or cleaners had serviced the suit.
We do not think it is material under the circumstances to place the
blame for the improper final inspection of the garment upon Carr.
It is not shown that Scharff knew of the union membership of either
Carr or Poaston and it is also evident that at the time he directed the
discharges he did not even know who was responsible for servicing
the suit in question.
We find that Poaston and Carr were not discharged because of their
union membership and activity.
George Gregory, Spencer Brooks, ,and Lucious Carter were employed
by the respondent as pressers in unit 4. Each was an officer of the
Union and active in its organization. All had worked for. the respond-
ent several years and they were admittedly capable employees.
On September 23, 1939, they were discharged, assertedly for "general
inefficiency." The complaint alleged that they were discharged
because of their membership and activity in the Union. The Trial
Examiner found that they were not discharged for this reason • and
recommended that the complaint be dismissed as to them. The
Union excepted to the finding and recommendation of the Trial
Examiner.
The respondent contends that the complainants were discharged
because they had willfully failed to produce the amount and quality
of. work of which they were capable. In support of this contention
it introduced in evidence statistics compiled from its pay roll and
other records which disclose that unit 4 produced less work than any
The routemen are paid on a percentage basis and loss of customers affects their wages.
KRAUS & COMPANY 1011
other unit ; also that , although it was able to show a relatively high
production rate during the early weeks of August when the unit sys-
tem was first installed, its rate dropped noticeably during the 3 weeks
in September prior to the discharge of the complainants . It further
appears from the evidence that unit 4 received more "comebacks"
from customers , due to improper work, than any other unit, and "that
Scharff was in possession of these compiled statistics at the time he
decided to discharge Gregory, Brooks, and Carter . The complain-
ants did not deny that the statistical compilations introduced in evi-
dence by the respondent were accurate . Moreover, they did not
deny that Scharff and other supervisory employees of the respondent
constantly urged all employees during this period to increase their
production . and maintain a high quality of workmanship . Gregory
admitted that his unit was told two or three times that it was the
slowest unit and that it should be able to do better.
The complainants offered at the hearing various explanations for
the facts shown by the respondent 's records . Gregory asserted that
the lack of production was due to the fact that unit 4, although it had
one more pressing machine than other units ,, was handicapped by
having two machines which were narrower than those in the other
units and therefore required more strokes per garment . Gregory
admitted , however, that he, himself, was using the regular type of
machine and did not attempt to justify his own poor record on that
ground. Moreover , this reason is not convincing since the respond-
ent's records show that in August unit 4 was able to turn out an
amount of work with the same machines which was close to the aver-
age for the department . Gregory also claimed that during September
his unit was not given work regularly , that work was held back.
However, Morris Green, who was in charge of allocating work to the
units, and Essie Woods, whose duties included the distribution to the
units of " specials," or rush work, denied the truth of this allegation
and asserted that work was distributed without discrimination to the
various units.
Brooks advanced , as a reason for the poor production showing of
unit 4, the contention that Susie Bailey, the inspector in that unit, and
Newton Greene, the foreman, were guilty of unfair inspection which
caused a loss of time . He asserted that on occasions he was forced to
spend several hours doing work which had been rejected for "technical
reasons" by the inspectors . Not only is this denied by Bailey and
Green, but Brooks , in testifying as to his efficiency , stated that he
had less "comebacks " from inspectors than other pressers.
Carter claimed that the lack of production in unit 4 was caused by
insufficient available work . However, he admitted on cross-examina-
tion that during this period it was necessary for the respondent to
hire extra pressers to take care of the volume of work.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the explanations given by the complainants are with-
out merit and that Gregory, Brooks, and Carter were not discharged
because of their union membership and activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth 'in Section III B above,
occurring in connection with the operations of the respondent .de=
scribed in Section I above, have a close, intimate; and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, we shall order it to cease and desist from such
practices and to take certain affirmative action which we find neces-
sary to effectuate the policies of the Act.
`Since we have found that the respondent has not discriminated'
against Carr, Poaston, Gregory, Brooks, and Carter, we shall dismiss
the complaint in so far as it alleges that the respondent has violated
Section 8 (3) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Association of Cleaners; Dyers & Laundry Workers, Local 110,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees. in
the exercise of their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid and protection
as guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of See-
Lion 8 (1) of the Act.
3. The aforesaid unfair practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 1.0 (c) of the
National Labor Relations Act, the National Labor Relations Board
KRAUS & COMPANY 1013
hereby orders that the respondent, Kraus & Company, Memphis, Ten-
nessee, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist Association of Cleaners, Dyers.
& Laundry Workers, Local 110, or any other labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining and 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 purposes of the Act:
(a) Post immediately in conspicuous places at its plant and main-
tain for a period of at least sixty (60) consecutive days from the date
of posting, notices to its employees stating that the respondent will
not engage in the conduct from which it is ordered to cease and desist
in paragraph 1 of this Order;
(b) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the Act.
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