Quality and Service Laundry, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1942

39 N.L.R.B. 970 (N.L.R.B. 1942)

In the Matter Of QUALITY AND SERVICE LAUNDRY , INC. and TEAMSTERS JOINT COUNCIL #55 (A. F. of L.) Case No. C-2034.-Decided March 2l, 1.942 Jurisdiction : laundry and retail dry-cleaning industry Unfair Labor Practices Interference, Restraint, and Coercion: inducing employees to withdraw from union by threats to close down plant ; threats to discharge union members ; anti-union statements indicating that employer would never bargain with the union Collective Ba',gaining: majority established by authorization petition-refusal to bargain collectively by : refusing to negotiate upon request or to set 'a definite time for future negotiations ; refusing to make itself available for further requested negotiations, thereby causing its employees to strike ; refus- ing to submit counterproposals to the union's proposed contract, while rejecting such contract-unsupported allegations of sabotage by union and other wrong- doing on-part of striking drivers, rejected as a defense to continuing refusal to bargain. Remedial Orders : strikers ordered reinstated and awarded back pay-alleged wrongdoing by some-strikers, who acted with color of legal right and not to exert illegal pressure on employer in retaining funds ' of employer collected after the strike began, held not to warrant denial of their reinstatement where no arrests or convictions were secured, such allegation was not raised in good faith, and where the situation would not have arisen if employer's conduct had not caused the strike; striker who was convicted of assault and battery and fined $500 and one year' s suspended jail sentence, as well as striker who stated at hearing that be did not desire reinstatement, omitted from reinstate- ment order; fact that some strikers may have obtained substantially equivalent employment held to be immaterial to question of whether policies of Act will be effectuated by ordering their reinstatement ; employer ordered to bargain with union and to cease and desist its unfair labor practices Practice and Procedure : purported settlement of prior unfair labor practices disregarded where not performed in good faith, and where employer continued its unfair labor practices subsequent to such alleged settlement. Unit Appropriate for Collective Bargaining : all drivers at the respondent's laundry, exclusive of supervisory employees Messrs. Earle K. Shawe and Elgin Hardin, for the Board. Mr. Walter L. Green, of Hyattsville, Md., and Mr. Louis A. Spiess, of Washington, D. C., for the respondent. Mr. John K. Keane, of Washington, D. C., for the Union. diary N. Persinger, of counsel to the Board. 39 N. L. R B., No 103 970 QUALITY AND SERVICE LAUNDRY, INC. 971 DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Teamsters Joint Council #55 (A. F. of L.), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Di- rector for the Fifth Region (Baltimore, Maryland), issued its com- plaint_d'ated October 16, 1941, against Quality and Service Laundry, Inc., Bladensburg, Maryland; herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and'Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance (1) , that the respondent on and after April 1, 1940, urged, persuaded, and warned its-employees to refrain from becom- ing or remaining members of the Union, and threatened said em- ployees with discharge and other reprisals if they became or remained members thereof; (2) that on or about June 24, 1941, and at all times thereafter, the respondent refused to bargain with the Union as the exclusive representative of its employees within an appro- priate unit; (3) that because of said unfair labor practices employees of the respondent, on or _alnout June 26, 1941, went on strike ; and (4) that by the foregoing acts and conduct, the respondent .interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act., On October 25, 1941, the respondent filed an answer, denying that it 'had engaged in the alleged unfair labor practices. The respondent also filed a motion to strike certain paragraphs of the complaint,'on the ground that they contained matters not contained in, nor relevant to, the charge on which the complaint was based. Pursuant to notice, a hearing was held from October 28 to 31 and on November 1, 4, and 5, 1941, at Washington, D. C., before Frank A. Mouritsen, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were repre- sented by counsel; all 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 beginning of the hearing, counsel for the respondent renewed its 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motion to strike certain paragraphs of the complaint, referred to above. The motion was denied. Counsel for the Board moved to strike those portions of the respondent's answer which averred acts of sabotage on the ground that such acts were not alleged to have been committed by any of the respondent's employees.. This motion was also denied. At the beginning and conclusion of the Board's case, and at the close of the hearing, the respondent moved to dis- miss the complaint. These motions were denied. At the beginning of the hearing, the respondent also moved to exclude all witnesses. This motion was denied.. During the course of the hearing, the re- spondent moved for a,n adjournment in order that it might petition the Board to review certain rulings of the Trial Examiner, and in order to institute criminal proceedings against certain of its drivers. These motions were also denied. At the conclusion of the hearing, counsel for the Board moved to conform the,pleadings to the proof. This motion was granted over the respondent's objection. During the course of the hearing, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no projudicial errors were committed. Except as noted below, the rul- ings are hereby affirmed. . On December 18, 1941, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all the parties. He found that the respondent had engaged in and was engaging in unfair. labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from such unfair labor practices and take certain affirmative action in order to effectuate the policies of the Act. Thereafter, the respondent duly filed with the Board exceptions to the Intermediate Report, and a brief in support of such exceptions. Pursuant to notice, a hearing for the purpose of oral argument was held on January 29, 1942, before the Board, at Washington, D. C. The respondent was represented by counsel and participated in the hearing. The Board has considered the exceptions and brief filed by the respondent, and, to the extent that the exceptions are inconsistent with the findings of fact, conclusions of law, and order set forth below, finds them to be without merit. . ` . Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Maryland corporation with its plant and prin- cipal place of business located at Bladensburg, Maryland , approxi- QUALrr1'Y AND SIEIRVICEI LAUNDRY, INC. 973 inately 2 miles from the boundary between Maryland and the District of Columbia . It operates a combined laundry and retail dry-cleaning establishment, and also stores furs, rugs , and articles of clothing. During part of 1940, and to June of 1941, the respondent operated, in connection with the Bladensburg plant, 17 routes-10 and a fraction within the District of Columbia, and 6 and a fraction within the State of Maryland. The respondent's drivers transport garments, rugs, and furs in trucks, from those of its customers who reside in the District of Columbia , to its plant in Maryland to be serviced , and after servic- ing return the articles by truck to the customers. The supplies and materials used by the respondent in the conduct of its business include soap , bluing, bleach , cleaning solvent, coal, paper, tape, and padding. During the calendar year 1940 the re- spondent purchased $34,700 worth of such supplies . Supplies and materials totaling approximately $13,200 were shipped to the re- spondent's plant from points outside the State of Maryland. The respondent 's gross revenue for the year 1940 totaled- approximately $236,691; and approximately 45 percent of this amount was obtained from customers served by it in the District of Columbia. II. THE LABOR ORGANIZATION INVOLVED Teamsters Joint Council #55 is a labor organization affiliated with the American Federation of Labor through International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a labor organization., The Union 1 admits to membership employees of the respondent. IT[. THE UNFAIR LABOR PRACTICES A. Inter f crence, restraint, and coercion On the evening of June 28, 1940, eleven of the respondent's drivers inet at the home of Melvin A. Beasley, who was at that time one of the drivers , and considered the advisability of joining a labor organ- ization. After discussing the matter among themselves, the drivers called in Robert C. Lester, president of and an organizer for the Union. Lester spoke to them concerning the benefits of organization acid the drivers then signed applications for membership in the Union. The applications were turned over to Jack Edwards, one of the drivers, who was also an official union organizer. On the morning following this meeting , Roland H. Berger, presi- dent of the respondent, called to his office each driver individually, as he returned from his route. Arlie Don Long, one of these drivers, In this Decision we do not distinguish bee een the various Teamster affiliates, 974 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD gave the following uncontradicted version of what occurred m Berger's office : Berger stated to Long that he had heard that the drivers had met at Beasley's home, and asked Long if he had joined the Union. Upon receiving an affirmative answer, Berger said that he could not understand why the drivers wanted to "do'this to me." He also said, "I am not going to have those fellows coming in here and telling me how to run my business. Before I will recognize the union I will close my doors. That will mean the end of your job, my job, and the Q & S Laundry." Long then stated to Berger that he was "rather sorry" that he had signed an application after getting Berger's "point of view" on union activity; and added that the applications which the employees had signed were not effective since they were not accompanied by an initiation fee. Berger replied that he was glad to know this, that he might be able "to do away with . . . (the applications) on this ground." Counsel for the respondent stipulated that Long's testimony correctly represented the facts of this conference and that Berger took similar action with respect to, and made similar statements to; all the drivers who had joined the Union. Shortly after Berger's talks with the drivers, J. A. Nearing, a super- visory employee,, told Frank L. Eustace, a driver who had signed an application, that he was -a "hell of a fellow" for signing up with the Union, and asked him why he had done so. Later that same day, Nearing said to Eustace: "Frank, you know before Mr. Berger will sign a contract, he will close up this laundry." These findings are based upon the uncontradicted testimony of Eustace. Nearing was not called as a witness. As a result of Berger's hostile attitude, the drivers decided to with- draw from the Union, and they sought to regain possession of their applications. However, John Keane, union counsel, advised them that the applications had been sent to the Regional Office of the Board in Baltimore. When Long reported this fact to Berger, the latter suggested that the men draw up a letter of withdrawal from the Union in order "to kill the applications." Berger told Long that lie would secure information as to -how the ^ letter of withdrawal should be drafted. Shortly thereafter, Berger instructed Long to go to the home of Nearing, who would assist him in preparing the letter of withdrawal. Long did so, on July 10, 1940. - Nearing drafted such a letter. and gave it to Long with directions to get signatures from all the drivers who had joined the Union. When Long had procured the signatures, he gave the original of the letter to Berger, who thanked him and said that he "would not.forget (Long) for it." Berger then 3 Nearing is supervisor over seven ]aundrv routes The evidence shows that he, as well as his immediate superior. norace E. Snowden , NN ho is super visor over all the drivers, has power to recommend the hiring and discharge of di wens. We find that both Snowden and Nearing are supcrv msoi v employees QUALITY AND SERVICE LAUNDRY, INC. 1975 had Long send a signed copy of the withdrawal letter to the Union by registered mail, and instructed hire to turn in any expense he in- curfed in mailing the letter, on his expense account, but not to specify what it represented. The foregoing facts are undisputed. Long testified without contradiction that during the time he was securing signatures to the letter of withdrawal; Nearing remarked to him, "Edwards is the guy that brought all this on-just as soon as we get something on him he will go away from here." Shortly thereafter, on or about August 1, 1940, Edwards was discharged by the respondent. ,Long testified that when he asked Nearing why Edwards had, been discharged, the latter replied: "You know what the trouble was." Nearing was not called to deny or explain this statement. Beasley testified that after Edwards was discharged, Snowden, who was supervisor over all the drivers, stated to him, Beasley, that they had "finally gotten rid of Edwards," that "union activity was finished in the plant," that henceforth "they would be able to go ahead at an even pace," and that if the respondent found that any employee was presently leading the Union in the plant, it would discharge that employee also. Snowden denied that he had made the statements ascribed to him by Beasley. Under all the circumstances, including the respondent's prior coercive activities with respect to membership in the Union, we do not credit Snowden's denial, and ,\\-e find that he made the statements set forth above.3 After the respondent had procured the drivers' defection from the Union in July 1940, the Union made several attempts to bargain with ,the respondent. The respondent, however, refused to bargain on the ground that the Union no longer represented the drivers. The Union then filed charges with the Regional Office of the Board, alleging that the respondent had violated Section 8 (1) of the Act. Although the record is not entirely clear, it appears that after the filing of these charges, conferences were held between counsel for the respondent and a representative of the Board's Regional Office, con- cerning the posting of a notice by the respondent which would inform the drivers of their rights under the Act, and eradicate the effects of the respondent's conduct hereinabove set forth. The parties, however, could not agree on the form of such a notice. Thereafter, the respond- ent's counsel, without further consultation with any representative of 1 -The respondent objected to the introduction of any testimony concerning the discharge of Edwards, on the ground that by agreement between union counsel and the respondent. Edwaids had been paid a lump sum in lieu of reinstatement Counsel for the Board stated on the record that he was introducing the foregoing testimony for the sole purpose of show- ing that'the respondent, by the remacl:s of its supervisory emplovees concerning the reason for Edward's discharge, interfered with and intimidated others of its employees in the exercise of rights guaranteed in the Act The Trial Examiner permitted the introduction of the fomegmng testimony for this purpose We make no finding- herein that the respond- ent in fact discharged Edwards because of his union membership or activities 44S105-4 2-vol 19--C 3 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board, drafted a statement of the labor policy of the respondent, which he gave to Berger. This statement was read by Snowden, on behalf of Berger, at a din- ner given for the drivers by the respondent in October 1940. The state- ment informed the drivers that they had a right to join or not to join a union; that the respondent had always been and was still willing to help its employees solve their "personal problems;" that the prosperity of both the respondent and the drivers depended upon mutual "loy- alty" ; and then continued as follows : I hope, however, that you will not allow anyone to frighten you or coerce you into a state of fear which will lead you to do any.- thing destructive of your own interests and of our business. The statement concluded with a quotation from a statement by Henry Ford, the final portion, of which was as follows : We think our men ought to consider wheter (sic) it is necessary for them to pay some outsider every month for the privilege of working at Fords', or, whether any union can do more for them than we are doing. If the union leaders are sincere, they should go into business themselves .. . I have always made a better bargain for our men than an out- sider could. We have never had to bargain against our men, and we don't expect to begin now. Fustace testified that Snowden then stated that the respondent "had gotten along without labor troubles until that time, and that he did not see why it could not continue to do so and to get along without a union." Snowden did not deny that he made these remarks, but admitted rather that he "mnay have" done so. The respondent contended'at the hearing that the statement read by Siiowden constituted an effective antidote to its prior coercive conduct. We cannot agree. Following as it did the respondent's coercive and hostile statements and actions, which culminated in the drivers' with- drawal from the Union, the statement, far from nullifying these prior activities, served notice upon the employees that the respondent con- tinued its dislike and distrust of labor unions, and that it did not intend to deal with unions. We are convinced from the preceding events, from the nature-of Snowden's statements, and as well from the subse- quent events,-and we find, that Snowden's statements were tin integral - part of the respondent's coercive course of conduct. `After Snowden's foregoing statements, the drivers conducted a vote to determine whether a majority of them wanted a union. The results, announced by Snowden, indicated that a majority of those voting were against a union, several cast blank ballots, and one voted in favor of a QUALITY AND SERVICE LAUNDRY, INC. 977 union.4 On the day after the dinner, meeting, Nearing stated to Long that he would like to "get hold of" the driver who had voted in favor of a union. On or about March 13, 1941, the respondent wrote to the Regional Director enclosing a copy of a notice which it claimed it had posted, pursuant to prior arrangement with representatives of the Board. The notice set forth Section 7 of the Act, and stated that the respondent intended to abide by the provisions thereof. However, witnesses for the Board testified, without exception, that they had never seen such a - notice on the respondent's premises. Indeed, Leonard Dearstine, su- pervisor over all employees except drivers, admitted that he had never seen the notice, and testified that if it had been posted he could hardly have failed to observe it. President Berger, although testifying that he had posted the notice on the drivers' bulletin board, admitted that, so far as he knew, it had remained posted for only a day or so. We find that the notice was either not posted or that it remained posted for no more than a few days, and that in either event the respondent did not effectively communicate to the employees its renunciation of its prior coercive conduct. Moreover, as- found below, the respondent con- tinued its course of interference, restraint, and coercion. Since the respondent did not perform its part of the settlement in good faith, we find that it will not effectuate the policies of the Act to recognize the settlement agreement here. On the contrary, we find that in order to effectuate the policies of the Act, we must make the ultimate findings of fact required. by the evidence and enter the order appropriate thereto.5 Eustace testified without contradiction that in March 1941, after the respondent had notified the Regional Director that it had posted the foregoing notice, Snowden stated to him, "Frank, I think we have got it all squelched now, got the thing all straightened out, and I don't think we will have any more trouble with the union." The, respondent held regular monthly business meetings for its drivers. At the drivers' meeting in June 1941, Bosse, one of the drivers, announced that there would be a union meeting to which all the drivers were invited. Snowden thereupon cautioned the drivers not to be "too hasty" in joining a union. At the hearing Snowden explained that he warned the drivers not to be hasty because "the last time they (the drivers) got in it they were sorry and they came back." 4 Long testified that Snowden had announced the results of the election ; Snowden denied that he had done so However, lie admitted that lie was pleased at the outcome We do not credit Snowden 's denial in this respect , and find , as did the Trial Examiner, that Snowden did announce the election results 5 Matter of Picker X-Ray Corp , etc and International Association of Machinists, 12 N L. R B 1384, Matter of Harry A. Half, etc. and International Ladies Garment Workers' Union, 16 N L R B. 667 ; Matter of Phillips Petrolewm Company and Oil Workers Inter- national Union, Local No 212, 23 N L It . B. 741. Cf Matter of New Idea, Inc and Federal Labor Union, etc, 31 N L R B 196 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nearing also advised the men not to act too quickly, stating that "Henry Ford had gotten along without the union and we can do the same tiling here." Long and John Kirkpatrick, drivers, testified that Dear- stine` announced at this same meeting that he would discharge any employee under his supervision who engaged in union activities.e Dearstine denied that he had made this statement. Under all the cir- cumstances, however, we find, as did the Trial Examiner, that Dearstine made the threat attributed to him by Long and Kirkpatrick. Upon the entire record, we find that the conduct of the respondent, taken in its entirety, was coercive; and that by causing its employees to withdraw their applications for membership in the Union, and by the threats and other anti-union statements of Berger, Snowden, Nearing, and Dearstine, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain, collectively - 1. The appropriate unit The parties agree that the drivers constitute an appropriate unit. The Union contends and, pursuant to our usual practice under such circumstances as are here disclosed, we find, that supervisory employees should be excluded from the unit.' We find that all drivers employed by the respondent at its Bladens- burg plant, excluding supervisory employees, at all times material herein constituted, and that they now constitute, a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to employees of the respondent the full benefit of the right to self-organization and to collective bargaining and otherwise effectuates the policies of the-Act. 2. Representation by the Union of a majority in the appropriate unit On June 24, 1941, the respondent had in its employ 18 nonsuper- visory drivers. Between June 19 and Julie 24, 1941, 13 of these drivers designated the Union as their agent for collective bargaining.4 As noted aboie, Dcaistine ii,ia auperiiaoi ooer all emplo3ees at the laundiv except drivers ^ Snowden and Nearing, as supervisory employees, are thus excluded from the unit The respondent introduced testimony to show that Melvin A Beasley's position was similar to that of Snowden and Nearing Since Be.isley is not presently working for the respondent and does not desire reinstatement, and since his inclusion in of exclusion from the appro- priate unit will not be determinative of any issue in this mattes, we find it unnecessary to decide whether Beasley during his employment emime within the appropriate unit. B The authorization petition which these employees signed was introduced into evidence The respondent did not dispute the authenticity of the signatures Beasley has not been considered in arriving at these figures QUALITY AND SERVICE LAUNDRY, INC. 979 We find that on and at all times after June 24, 1941,. the Union was and now is the duly designated representative of a majority of the employees in the aforesaid appropriate unit,, and that, by virtue of Section 9 (a) of the Act, the Union at all such times was and now is the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 3. The refusal to bargain ; the strike a. Sequence of events The complaint alleges, and the answer denies, that the respondent refused to bargain with the Union on and after June 24, 1941. On or about June 19, 1941, the drivers drafted.a proposed contract which they turned over to James Holden, business agent, and Robert Lester, president of the Union. On June 21,.Holden telephoned Berger three times in an effort to arrange a bargaining conference. Although Holden left his name and telephone number, Berger did not return the calla Thereafter, Lester called Walter Green, the respondent's counsel, and a conference was arranged between the respondent and the Union, to be held on Tuesday, June 24. On that day Lester and Holden met with Berger and Green. The union representatives stated that they represented a majority of the drivers, submitting in substantiation of their claim a petition signed by 13 of such drivers. At no time during this conference did Berger or-Green raise a question as to the Union's majority. Lester and Holden then handed Berger the Union's pro- posed contract. Berger and Green read the contract, and a discus- sion of its terms ensued. Lester and Holden testified substantially as follows concerning what then took place: Green stated that the re- spondent -could not then bargain about the contract because he was going out of town for a week or ten days, 'that lie would give the con- tract consideration, and that the respondent "might" have a conference with the Union when he returned. Lester then remarked that although ordinarily the Union-would be amenable to some delay on,the part of an employer, the drivers would probably, strike in this case unless the respondent gave them some indication that it was prepared to bargain in good faith and that it did not intend to repeat the coercive tactics it had used in 1940. Green retorted : "Well, we are not prepared to dis- cuss any contract-I will probably talk•to you when I come back." Lester then requested Green and Berger to initial any provision of the contract, or to sign a separate memorandum recognizing the Union as bargaining agent for the drivers. Berger replied that he would not sign a union contract because the "repercussions in-the laundry indus- 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD try" would ruin him. To Lester's request that the respondent agree to any section of the contract, or even agree to recognize the Union in writing, Green replied : "No Bob, you misunderstand-we propose that we will take this under advisement and we will let you know when we meet you again in the first part of July . . . whether or not we will be able to negotiate with you." [Italics supplied.] The conference ended at this point. Berger and Green denied that they refused to negotiate with the Union on June 24, or that they avoided setting a definite date for future negotiation. They testified, substantially, that they believed that the parties should be in complete agreement on the contract before the respondent signed it or any portion of it; and, that they merely stated to the Union that they required time in which to consider the contract. Berger also denied that Lester asked him to initial any one clause of the contract as evidence of his good faith, claiming that Lester- limited his request to the first clause of the contract, which provided for a closed shop. He did not deny that he refused to sign a separate memorandum recognizing the Union as exclusive bargaining agent. Indeed, Green admitted at the oral argument before the Board that the respondent refused to grant written recognition to the Union although it was not questioning the Union's right to act as such representative. In view of the respondent's anti-union activities and attitude, in- cluding Berger's statement in June 1940, that before he would recog- nize a union he would "close his doors," and the other circumstances herein set forth, we find that the version of Berger and Green as to what occurred at the meeting on June 24, insofar as it conflicts with the version of Lester and Holden, is not worthy of belief; and we accept, as did the Trial Examiner, the testimony of Lester and Holden as being a substantially accurate account of what occurred at this meeting. On the evening of June 24 Lester reported to the union membership that Berger had refused to agree to any portion of the Union's pro- _ posed contract, and that the respondent was "taking the same attitude toward bargaining that it had in the past." Thereupon, the Union decided, according to the uncontradicted and credible testimony of James Brothers, a driver, as follows: (Brothers) : The men decided they had had trouble before in regard to organizing, and if they didn't take action at once some of us would be fired, and it would all fall through again, and that consequently the best thing to do was to take action immediately. Q. What do you mean by "fall through again"? A. Once before when they were organized out there,' when it came to a show down a lot of men were scared out of it for fear they would lose their jobs. QUALi'I'Y AND SERVICE LAUNDRY, INIC. 981 Q. Was that discussed ? A. That was discussed at this meeting. Q. What was the outcome of the meeting? A. We decided to notify Mr. Berger we were coining out Thurs- day morning on a strike. Q. You were going out on strike Thursday unless what? A. Unless he agreed to a clause in, the contract and accepted Lester as our bargaining agent. Brothers also testified that the drivers had decided to strike because Lester had reported to them that "the Company wouldn't agree to any clause in the contract." Kirkpatrick, another of the drivers, testi- fied that the decision to strike followed Lester's report that "the Com- pany said point blank that they would not negotiate." On the following morning, June 25, Lester telephoned Green and told him that the Union had voted to strike unless the respondent granted it another meeting. Green promised to call Lester back after he bad consulted another attorney concerning the Union's proposed' contract. Keane, counsel for the Union, saw Green, on this same morning. Keane asked that the respondent at least grant the union representatives another meeting so that he could report to the men that the respondent was bargaining, and thus forestall the strike. Green stated to Keane, as he had to Lester, that he wished to consult another attorney about the contract and that he would call him back. Keane then asked Green to call him at the union office so that the union membership might have concrete evidence that the respondent pro- posed to bargain. This Green promised to do. Thereafter, although Keane waited at the union hall all afternoon, no call from Green was forthcoming. Other union representatives waited at union head- quarters until after midnight, but Green did not telephone. Lester called Green's office four times on June 25, giving his name to the person who answered the phone. He also made repeated calls to Berger's office without success. On Wednesday night Keane called Green's home, leaving a message with Green's wife asking that Green call him back no matter how late he arrived home.' Green did not call. The men assembled at the union hall on the evening of June 25, and, upon learning that no further word had been received from Berger or Green, reaffirmed their vote to strike, taken the night before. That same night Lester told Keane over the telephone that the men were going to strike at 6 a. in. the next day "because they could not reach Berger; could not reach Green . . . (and) the Company was not dis- posed at all to bargain in good faith . . ." Lester then instructed Keane to call at any time before six the next morning if he heard from 982 , DECISIONS OL NATIONAL LA13OR RELATIONS BOARD either Berger or Green. As stated above, however, Green and Berger failed to communicate with either Lester or Keane., On the morning of June 26, the respondent's drivers went on strike. They picketed the respondent's plant and its trucks; and they also visited the respondent's customers, advising them that the drivers were on strike, and requesting there not to patronize the respondent. The strike was still current at the time of the hearing. On the day the strike started, Keane called Green and suggested that representatives of the respondent and the Union meet immedi- ately and attempt to settle the strike. Green rejected this proposal, and suggested instead that he and Keane meet privately to discuss the matter. Keane then went to Green's office, on the evening of the 26th. Green handed Keane a copy of the Union's proposed contract upon which he, Green, had made certain changes and notations and stated : "This is what we were going to offer you if you had not gone out on strike." Keane said, "Well, offer it to us now." Green replied, "I can't offer it to you now . . . you have driven him (Berger) into the Association (of Laundries)." On July 2, Green met with representatives of the Union. Green accused the Union, in general terms, of being responsible for certain acts of sabotage which had been committed against the respondent's property during the strike. The union representatives disclaimed all knowledge of, or responsibility for, the sabotage. The respondent made no effort to prove that the Union had engaged in any sabotage. Green in substance stated that the drivers had angered Berger by going out on strike so quickly, and that "the great difficulty now is that Mr. Berger doesn't know whether he can trust you or not." At a meeting on July 23, 1941, the parties discussed the settlement of certain financial accounts outstanding between the striking drivers andthe respondent. At this conference also, Green took the position that Berger would not bargain with the Union-until the alleged acts of sabotage ceased and the drivers settled their accounts with the respondent. On August 6 the parties met again. After a brief discussion of some of the terms of the Union's proposed contract, Louis A. Spiess, an attorney who had been retained by the respondent, made the following statement to the union representatives present: Frankly, we may as well be-truthful about this thing. You are here trying to sell Berger something he does not want to buy. These findings are based upon the credible and mutually corroborative testimony of Holden, Lester, and Keane Green did not deny that he received the telephone messages left by Lester and Keane nor did he deny that he failed to communicate with any union repre- sentative on June 25 . Berger testified that when Lester called him on the morning of June 25, he referred Lester to Green, and that thereafter he received no message from Lester Under all the circumstances we credit, as did the Tnal Exannnei, the testimony of Lester, Holden, and Keane, and we find as in the text above QUALITY AND SERVICE LAUNDRY, INC. 983 Berger does not want the Union and it is up to you to sell him. My suggestion to you is that you keep submitting proposals to him. You submit him a proposal and if he doesn't like that sub- mit another one, and sometime in the distant future you may hit upon one that he will be willing to buy and you will have what you want to The Union refused to proceed in this manner, stating that it had submitted its proposal, and that the respondent should submit a counterproposal. The respondent, however, refused to make any counterproposal, taking the position that it was not legally required to do so 11 b. Concluding findings The respondent had engaged in a course of interference, restraint, and coercion. Once before, in 1940, it had by its unfair labor practices destroyed the Union's majority. On June 21, 1941, Berger ignored the union agent's telephone calls. At the conference on June 24, although the Union submitted its proof of majority and the respondent did not question the sufficiency thereof, the respondent, nevertheless, refused to grant the Union exclusive recognition or to assure the Union that it would bargain collectively: On June 25, the respondent ig- nored the Union's persistent efforts to secure a conference. Accord- ingly, the Union had no other alternative but to put into operation the previously authorized strike. On and after June 26 the respondent continued in its refusal to bargain. The strike, of course, did not suspend or annul the respondent's obligation to bargain; 12 nor did the respondent's unsupported accusation that the Union was guilty of sabotage or the unsettled accounts between the drivers and the respondent have this effect 13 Since the Union was the exclusive repre- sentative of the employees, the provisions and policy of the Act clearly required that the respondent bargain collectively with it. The respondent has consistently evaded,, and refused to fulfill, this obligation. Upon the entire record, we find, as did the Trial Examiner, that the respondent, on June 24, 1941, and at all times thereafter, has iOThe finding as to Spiess ' statement is based upon the uncontradieted testimony of Holden, which was corroborated in all important particulars by that of Green, counsel for the respondent. li Spiess, as counsel for the respondent , made the following statement during the healing the record is complete that we never , representing Mr Berger , submitted any counter- proposal to the representatives of this Union , that we did not have to do it and didn't intend to do it " is Jeffery-Delritt Insulator Co v N T R tt . 91 F (2d) 114 ((-' C A 4), cei t denied, 302 U. S 731 ; Blaeh , Diamond S S Cap v N L R B, 94 F (2d) 875 (C C A 2), cert denied , 304 U S 579 mmN L R It v Carlisle Lumber Co , 94 F (2d) 138 (C C A 9), ceit denied 304 U. S. 575, N L R B v Remington Rand, Inc, et al., 94 F (2d) 862 ( C C A 2), cert denied 304 U S 576 , Republic Steel Corporation v. N. L. R. B, 107 F. (2d) 472 (C. C A 3), cert. denied, 309 U S 684. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit ; that the respondent, by the foregoing acts, has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of-the Act; and that the strike commencing June 26, 1941, was caused and prolonged by the unfair labor practices of the, respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, oc- curring in connection with the operations of the respondent described in Section I above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States and the District of Columbia and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor prac- tices, we shall order it to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act, and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. We have found that by its unfair labor practices , the respondent caused and-prolonged the strike of June 26 which was still current at the time of the hearing . The respondent contends that certain of its striking drivers, by committing acts of violence or by retaining funds belonging to the respondent after the strike began , have disqualified themselves from being reinstated. Two men were convicted of certain acts of-violence committed dur- -Ing the strike . Since one of these, Melvin A. Beasley, indicated during the hearing that he did not desire reinstatement, we shall not in any event order his reinstatement . Consequently , we find it unnecessary to discuss his conviction . The other , Arlie Don Long, was convicted in a magistrate's court of assault and battery against Jesse Wilson, a non-striking driver. Upon appeal , the Circuit Court of Prince Georges County , Maryland , imposed upon him a $500 fine and 1 year's suspended jail sentence . Under these circumstances, we find that it, would not effectuate the policies of the Act to order the reinstate- ment of Long. The respondent introduced testimony that eight of the striking drivers retained in their possession funds of the respondent collected after the strike began, and contends that these employees are guilty of "embezzlement ." The record shows that it was the normal practice for the respondent and each of the drivers to have a weekly account- ing, on the basis of all goods delivered and all commissions due; and s QUALITY AND SS`'R'VIC'E' LAUNDRY, 'INiC. 985 that between such weekly accounting periods, the driver would turn in money collected whenever the amount became too large for him to retain safely. On the Monday before the strike the drivers had their usual accounting for the preceding week. Thereafter, so far as ap- pears, all of them turned in, on either the Tuesday or Wednesday im- mediately before the strike, all the money which they had collected up to that time. However, some of the drivers had, contrary to the re- spondent's rule, extended credit to certain customers for laundry bundles which they had delivered to such customers. Knowing that they would be held responsible by the respondent for the amount of the credit thus extended, the drivers, after the strike began, collected this money from the customers. - Between July 10 and July 15, 1941, the respondent addressed to each of the striking drivers who had retained or collected money, a letter requesting the driver to come to Berger's office for the purpose of making the accounting which would normally have been due on June 30, 1941, and account for any money belonging to the respond- ent. The, drivers consulted with Keane, and he' advised them not to see Berger individually. Instead he arranged a conference with Berger and Green, and this meeting took place on July 23, 1941. At the conference it developed that there was some discrepancy be- tween the amounts of money which the respondent claimed the driv- ers owed and the amounts which the drivers claimed they owed, since, as some of the drivers testified without contradiction, the re- spondent claimed that they were responsible for business done on Thursday, Friday, and Saturday after the strike started, when other drivers were operating the strikers' routes. The respondent and Keane ' arranged to have a representative of the respondent accom- pany the striking drivers around the routes and check at the places where the respondent claimed that the strikers had collected money for business transacted after the commencement of the strike. Al- though this was done, the differences were not resolved, and at the time of the hearing, a final accounting had not been made between the parties. Berger testified that he had placed the matter in the hands of 'the District Attorney for Prince Georges County, about a month before the hearing, but that he had requested that any prose- cution of the drivers be held temporarily in abeyance. Berger did not testify that the District Attorney had decided to prosecute. The following uncontroverted evidence was introduced by Board's counsel to show that the money belonging to the respondent was retained by the strikers, not as a means of exerting illegal pressure upon the respondent, but solely in order to protect what they con- ceived to be well-founded claims which they had against the respond- ent: The respondent owed the drivers their commissions and salary for the 3 days preceding the strike, and the respondent had on de- 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posit from the drivers cash bonds sufficient in amount to cover any money which the drivers had collected or retained. In addition, some of the striking drivers had solicited and collected rugs and furs which were in storage with the respondent at the time of the strike, and upon which, in the normal-course of events, they would receive commissions. One of the drivers, E. R. Randolph, abandoned the strike several weeks after it commenced. The respondent had sent him one of the letters asking for an accounting and a report. When he returned to work, he and the respondent had an accounting and reached a compromise over the amount due. From all that appears, the prin- cipal difference that existed between Randolph and the other drivers- who owed money was that he abandoned the strike and they con- tinued it. The retention of funds by Randolph did not bar his rein- . statement; the respondent has shown no bona fide or convincing rea- son why other striking- drivers should be treated differently. Upon the entire record, we are convinced that the strikers who re- tained money acted in good faith and with color of legal right ;14 and that the respondent does not plead their alleged wrongdoing in good faith, but rather as a further device to avoid the consequences of its unfair labor practices. Under these circumstances , since the dispute over the amounts owing would not have arisen if the respondent had not forced the employees into a strike by its unfair labor practices, since the experience of Randolph shows that the dispute can be solved without difficulty once the men are back, and since finally, the em- ployees'in question have not been convicted of any crime ,' we find, as did the Trial Examiner , that it will effectuate the policies of the Act to order their reinstatement. At the hearing the respondent attempted to show that five of the strikers had obtained substantially equivalent employment subsequent to the strike. The Trial Examiner excluded the evidence , and stated that with respect to the reinstatement issue he would assume that such drivers. had obtained substantially equivalent employment. For the reasons . stated in the Ford case'16 we find that whether or not the em- ployees obtained substantially equivalent employment, effectuation of 14 Compare generally in this connection Restatement, Agency § 404 when Agent Has Lien Unless he undertakes dulmes inconsistent with such a right or otherwise agrees that it is not to exist (a) an agent has a right to retain possession of m)ioney , goods, or documents of the principal, of which he has gained possession in the proper execution of his agency , until he is paid the amount due him from the principal as compensation for services performed 01 as indemnity for money advanced or liability incurred by him in connection with such things ; 15 See Republic Steel Corp. v N. L R B , 107 F ( 2d) 472 ( C C. A. 3 ), enforcing as niod 9N L R.B.219. 16 See utter of Ford Motor Company and Intei national Union United Automobile w17oo1- ,crs of America, Local Union No 219, 31 N L R. B 994 QUALITY AND SERVICE LAUNDRY, INC. I 987 , the policies of the Act requires that the respondent be ordered to re- instate them." In view of the foregoing, we shall order the respondent (1) to offer reinstatement to their former or substantially equivalent positions, Nvithout prejudice to their seniority and other rights and privileges, to all those employees, excluding Melvin A. Beasley and Arlie Don Long, who went on strike 'on June 26, 1941, or thereafter, and who have applied for and have not been offered reinstatement; and (2) upon application to offer reinstatement to their former or substantially equivalent positions to all those employees, excluding Melvin A. Beas- ley and Arlie Don Long, who went on strike and have not previously applied for reinstatement. Such reinstatement shall be effected in the following manner : All employees hired after the commencement of the strike shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If, thereupon, by reason of a reduction in force 18 there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstate" ment, all available positions shall be distributed among such remain- ing employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee be- cause of his union affiliation or activities. Those employees remaining after such distribution, for whom no employment is immediately avail- able, shall be placed upon a,preferential list prepared in ' accordance with the principles set forth in the previous sentence and shall there- after, in accordance with such list, be offered employment in their former or substantially equivalent positions, as such employment be- comes available and before other persons are hired for such work. We shall order the respondent to make whole those employees who went on strike on Junt 26, 1941, or thereafter, and who have applied for and have not been offered reinstatement, for any loss of pay they may have suffered by reason of the respondent's refusal, if any, to reinstate, them, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from five (5) days after the date on which he applied for rein- statement to the' date of the respondent's offer of reinstatement or placement on a preferential list, less his net earnings,19 if any, during 17 Continental Oil Co. V. N L R B., Nov. 13, 1941 (C C A. 10), 9 I. R R. 625, en- forcing In Matte of Continental Oil Company and Oil IVoilcis Intcinational Union (C 1. 0 ), 35 N. L. R. B 331. 11 At the time of the hearing the respondent was operating 14 routes and employing 14 drivers. . 19 By ' nei. 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-- NQhere 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 Ci ossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lubube, and Saiomill IVoikers Union, Local 2790, 3 N 1. R n 440 Monies received for 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such period. We shall also order the respondent to make whole those employees who went out on strike on June 26, 1941, or thereafter, and who have not previously applied for reinstatement for any loss of pay they may suffer by reason of the respondent's refusal, if any, to rein- state them upon application as provided above, by payment to each of them of a sum of money equal to that whicli'he would normally have earned as wages during the period from five (5) days after the date on which he applies - for reinstatement to the date of the respondent's offer of reinstatement or placement on a preferential list, less his net earnings, if any, during such period. Since we have found that the respondent has unlawfully refused to bargain with the Union, we shall order the respondent, upon request, to bargain collectively with the Union as exclusive representative of the employees within the appropriate unit.20 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. Teamsters Joint Council #55, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. All drivers in the Bladensburg plant of the respondent, exclud- ing supervisory employees, constitute a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of the Act. - 3. Teamsters Joint Council #55, affiliated with the American Fed- eration of Labor through International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and at all times since June 24, 1941, has been, the, exclusive representatives of all Footnote 19-Continued. work performed upon Federal , State , county, municipal , or other work -relief projects shall be considered as earnings . See Republic Steel Corpm atton Y. National Labor Relations Board, 311 U. S. 7. 20 The respondent proffered evidence , which was rejected by the Trial Examiner, that Mai shall McGee and Joseph Abbott, union organizers but not employees of the respondent, bad been convicted , respectively , of assault and battery and disturbing the peace. We are unable to see how the convictions of these persons have any bearing on the guilt or innocence of the striking employees . In any event the Trial Examiner's ruling did not prejudice the respondent because we find that - these convictions do not affect our findings that it will effectuate the policies of the Act to order the respondent to reinstate its own employees and to bargain with the Union Moreover , Section 106 of the Norris -LaGuardia Act, 29 U. S C. A. 106, provides No officer or member of any association or organization , and no association or organization participating or interested in a labor dispute , shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members , or agents , except upon clear proof of actual participation in or actual au- thorization of, such acts , or of ratification of such acts after actual knowledge thereof. Cf. Republic Steel Corporation v National Labor Relations Board, 107 F (2d) 472 (C C. A 3). QUALITY AND SERVICE LAUNDRY, INC. - 989 the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Teamsters Joint Council #55, as the exclusive representative of its employees in the appropriate uit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER , Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby- orders that the respondent, Quality and Service Laundry, Inc., Bladensburg, Maryland, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Teamsters Joint Council #55, affiliated with the American Federation of Labor through Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all drivers at its Bladensburg plant, excluding supervisory employees, with respect to rates of pay, wages, hours of employment, or other conditions of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through lep- resentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid'and pro- tection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the National Labor Relations Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Teamsters Joint Council #55, affiliated with the American Federation of tabor through Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the respondent's drivers in its Bladensburg plant, excluding supervisory employees, with' respect to rates of pay, wages, hours of employment, and other condi- tions of employment; and if an understanding is reached on any such matters, embody such understanding in a signed agreement; 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer to those employees who went on strike on June 26, 1941, or thereafter, and who have applied for and have not been offered rein- statement, except Melvin A. Beasley and Arlie Don Long, immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, in the manner provided in Section V above;.and place those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (c) Upon application, offer to those employees who went on strike on June 26, 1941, and thereafter, and who have not previously applied for reinstatement, except Melvin A. Beasley and Arlie Don Long, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in Section V above, plac- Ing those employees for whom employment is not immediately avail- able upon a preferentiallist in the manner set forth in said section, and thereafter in said manner, offer them employment as it becomes avail- able ; (d) Make whole the employees specified in paragraph 2 (b) above, for any loss of pay they may have suffered by reason of the respond- ent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he would normally have earned as wages, during the period from five (5) days after the date on which he applied for reinstatement to the date of the respondent's offer-of reinstatement or.placement upon a preferential list, less his net earn- ings, if any, during said period; (e) Make whole the employees specified in paragraph 2 (c) above, for any loss of pay they may suffer by reason of the respondent's refusal, if any, to reinstate them pursuant to paragraph 2 (c) above, by pay- ment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from five (5) days after the date of his application for reinstatement ,to the date of the offer of employment or placement upon a preferential list, less his net earnings during that period; (f) Post immediately in conspicuous places throughout its Bladens- burg plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b), (c), (d), and (e) of this Order; QUALITY AND SERVICE LAUNDRY, INC. 991 (g) Notify the Regional Director for the Fifth legion in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. CHAIRMAN MILLIS took no part in the consideration - of the above Decision and Order. 448105-42-vol ::0-G4