Swan Super Clearners, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1965

152 N.L.R.B. 163 (N.L.R.B. 1965)

SWAN SUPER CLEANERS, INC. 163
'Swan Super Cleaners , Inc. and Amalgamated Clothing Workers
of America, AFL-CIO. Case No. 9-CA-2878. April 27, 1965
DECISION AND ORDER
On April 20, 1964, Trial Examiner W. Gerard Ryan issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint. Thereafter, the
Respondent, the Charging Party, and the General Counsel filed excep-
tions to the Decision, and the Respondent and the Charging Party also
filed supporting briefs. The Respondent filed an answering brief to
the exceptions of the Charging Party and the General Counsel and a
motion to strike the exceptions.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs of the parties, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following addi-
tions and modifications :
1. The Trial Examiner found, without discussion, that there was no
evidence in the record to support the allegation in the complaint that
Sonjia Wade was discharged in violation of Section 8(a) (3) of the
Act and dismissed the complaint in respect thereto. The Charging
Party and the General Counsel contend that under the Board's Rules
and Regulations 2 the Trial Examiner is required to set forth relevant
evidence supporting his conclusion and that the Board should either
remand the case to the Trial Examiner for further proceedings to sat-
isfy such requirements or overrule the Trial Examiner on the basis of
the record evidence. In its answering brief the Respondent contends
that the record evidence supports the dismissal and that there is no
valid basis for either remanding the matter for further findings and
discussion or reversing the Trial Examiner's dismissal of the allegation
involving Wade.
1 This motion is denied, for we find that the exceptions challenged adequately comply
with the Board's requirements in view of the Trial Examiner's Decision discussed below.
Cf Patrick F. Ice,, d/b/a Pat Izzi Trucking Company, 149 NLRB 1097.
2 Section 102 45(a), Series 8, as amended
152 NLRB No. 13.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While we agree with the Charging Party and the General Counsel
that the Decision of the Trial Examiner is deficient because of the fail-
ure to set forth the rationale upon which he based his ultimate finding
in regard to Wade,3 we are of the opinion that the issues were fully
litigated and that a remand is not necessary. Contrary to the Trial
Examiner , we are convinced upon the basis of the entire record that a
preponderance of evidence compels findings that on April 29, 1963,4
the date of Wade's discharge, the Respondent was aware of Wade's
interest and activity in behalf of the Union and that the reason put
forward for her discharge was a pretext.
The record shows that Wade signed an authorization card at the end
of March, and on April 10 had a union meeting at her home which
eight or nine employees attended. Wade testified without contradic-
tion that she attended all of the Union's meetings, except one, and that
she obtained authorization cards from approximately five or six em-
ployees before her discharge. Although the Trial Examiner found
that Respondent's President Gelpi first learned of union activity
among his employees after Wade's discharge on May 3, it is significant
that he did not make similar findings in regard to A. B. Johnson, man-
ager of the laundry department in which Wade was employed, and
Kenneth Bader, district superintendent and Johnson's immediate
supervisor. On the contrary, the Trial Examiner found on the basis
of credible evidence that Johnson and Bader not only knew that the
Union was active prior to April 29, but had knowledge who had started
the Union, who had signed cards, and who had attended meetings.5
On April 24, 6 days before Wade's discharge, Johnson asked Lillian
Hall if she had attended a union meeting the previous night; on
May 16 Johnson told Hazel Williams that the Company knew where
the employees were holding meetings, who had signed cards, and who
had started the organizational activity; and on or about May 22, John-
son told Julia Long that he knew she and others were for the Union
because he had somebody go to union meetings and report to him
everything that was transacted. About the middle of May, Bader, in
Johnson's presence, called Hazel Williams and a group of laundry de-
partment employees together to discuss the Union's organizational
campaign, telling the group that he knew who had signed union cards,,
where they were holding meetings, and who had started the Union.
'See Funkhouser Mills, Division of the Ruberoid Company, 132 NLRB 245.
All dates herein referred to are for the year 1963.
The Respondent has excepted to the credibility findings of the Trial Examiner on-
the basis that they are contrary to the evidence . After a careful review of the record,
we conclude that the Trial Examiner 's credibility findings are not contrary to the clear
preponderance of all the relevant evidence . Accordingly, we find no basis for disturbing
the Trial Examiner's credibility findings in this case . Standard Dry Wall Products Inc,,
91 NLRB 544, enfd 188 F. 2d 362 (C.A. 3).
SWAN SUPER CLEANERS, INC. 165
Clearly, both Bader and Johnson not only knew of the Union's
organizational activity among the approximately 65 employees in the
laundry department both prior to and at the time of Wade's discharge,
but we find they also specifically knew of Wade's interest and activity
in behalf of the Union at the time of her discharge.
As to Wade's discharge on April 29, the record shows that there is no
dispute as to the following facts : Wade's duties in the laundry depart-
ment were to iron shirts at the touch-up unit on a press generally used
for regular size shirts. Rowland Isler, who is listed on the Respond-
ent's payroll as assistant manager, saw her send small-size shirts to the
so-called baby press. Isler told her that Manager Johnson wanted
her to press small-size shirts on her own press. Wade said she was not
required to press small-size shirts and she always sent them to the baby
press. Isler reported this to Johnson, and Johnson came over to in-
struct her how to press small shirts on her press. She was told by John-
son that in the future she was to press such shirts and not send them to
the baby press. After Johnson left, Wade found she was unable to
press small shirts on her press and Johnson was again notified. John-
son consulted with Bader and, after the approval of General Manager
Wolf, discharged her.
The alleged reason for Wade's discharge was "insubordination."
Johnson testified that Wade had a long history of being insubordinate
and uncooperative. He also testified that she had previously pressed
small shirts on her press and that such work was part of her job. He
contended that he was particularly disturbed because while instructing
her on April 29, she deliberately paid no attention, folded her arms, and
looked the other way. Bader testified that he observed the incident
and corroborated Johnson's contention that he was dissatisfied with
her work, had previously complained about her, and tried to have her
transferred out of the department. Wade testified that she was not sup-
posed to press the shirts she was sending to the baby press and that
she did not know how to press such shirts. She further testified that
her work had always been satisfactory and that she never had been
previously reprimanded or warned about her work prior to April 29.
Although Wade had worked at the Respondent's plant since 1959, no
evidence was presented that she had ever been officially given notice
that her work in terms of production and skill was below expectations
during the 4-year period prior to her discharge. Nor is there any indi-
cation that, at the time she was being instructed on April 29, her alleged
uncooperativeness was called to her attention or that she was told that
her work was otherwise unsatisfactory. Indeed, it is uncontroverted
that about 10 days before her discharge she received a 5-cent-an-hour
wage increase together with about 18 other employees. Bader admits
that the increase was given with his approval. Although Johnson and
Bader testified that the increase was a routine length of service raise
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given about three times a year, the exact basis upon which such increases
are given is not clear from the record. Wade testified without contra-
diction that she had received five such raises since 1959. Furthermore,,
Swain, who replaced Wade, testified that although she presses certain
small shirts as part of her job, others she sends to the baby press as
Wade had done.
The above facts relating to Wade's termination must be considered
against the background of the Respondent's active and vigorous union
animus, as detailed in the Trial Examiner's Decision. On the basis of
this background and the entire record, we are convinced, contrary to
the Trial Examiner, that Respondent's termination of Wade's employ-
ment on April 29 was motivated, not by insubordination or dissatisfac-
tion with her work, but by Respondent's hostility to her union activi-
ties. Accordingly, we find that Respondent thereby violated Section
8(a) (3) and (1) of the Act.6
2. The Trial Examiner excluded Isler and Jim Johnston from the
appropriate unit on the basis they are allied with management and
take the place of the manager whenever he is absent. The Respondent
contends that either on the stated grounds, or otherwise, there is no
basis in the record for their exclusion from the bargaining unit. We-
agree with the Trial Examiner that Isler and Johnston should be
excluded from the appropriate unit but, as discussed below, would do so,
for different reasons.
The record shows the, following supervisory hierarchy and its rela-
tionship to the laundry unit : Andre J. Gelpi is Respondent's president
and in charge of overall operations and spends very little time in the
laundry. Under Gelpi is Joseph G. Wolf, general manager, who is
directly responsible for the Respondent's entire operation which
includes six retail stores, a drycleaning plant, and related operations,
including the laundry. Approximately 485 employees are employed in
the Respondent's various operations. The record shows that Wolf
seldom has occasion to be in the laundry. Kenneth Bader, district
superintendent, is under Wolf and has charge of the Respondent's six
retail stores, the drycleaning operations, and laundry department, and
is the supervisor of the managers of the separate retail stores and the
laundry department. There are approximately 50 employees in the
various stores, and approximately 65 in the laundry. From time to
time during the week, Bader drops into the laundry to check on its
overall operations.
A. B. Johnson is manager of the laundry department and, according
to Respondent's officials and supervisors, is the department's only
'The record shows that wade purportedly signed an authorization card for the
Union to represent her prior to her discharge However, we find it unnecessary, and
do not make a finding as to the validity of her authorization card since on May 15,
when the Union requested recognition, it had a clear majority without including wade in
the unit of 65 eligible employees.
SWAN SUPER CLEANERS, INC. 167
supervisor . He has complete charge of hiring, discharging , assigning
of work, adjusting of grievances , granting time off, and of all other
policy matters relating to personnel . The department covers approxi-
mately one-eighth of a city block on one open floor and consists of the
following operations : re-wash, wrapping , shirt checking , finishing,
and washing . Among the approximately 65 employees the following
job classifications are represented: markers, washroom men, check-out
girls, re-wash employees , press operators , sorters, checkers, bundling
wrappers , and bundle dispatchers . With the exception of the two
washroom men , Isler and Johnston are the only males employed in the
laundry, and the only employees who are paid on an hourly basis and
do not punch a time clock. The hourly rate of the laundry employees
is about $1 .40 an hour plus certain incentive pay. Johnston makes
from $85 to $95, and Isler from $100 to $105 a week . Their work rec-
ords are kept by the laundry manager, A . B. Johnson.
The Respondent contends that Isler and Johnston are "pushers"
and have no supervisory authority . Although Isler is listed on the
Respondent's payroll as "assistant manager," neither Isler nor John-
ston attends supervisory meetings nor do they train new employees.
Their main duty is "to watch the floor work and see that the work goes
to the girl , that each girl has sufficient work, and follow the production
through." They have authority to move employees around temporarily
and do production work only if a section is overloaded or to help out
in order to keep the work moving . When A. B. Johnson is absent or
not available , they regularly substitute for him and in his absence are
the only ones with authority in the laundry room . According to John-
son, Bader, and Wolf, if any major personnel policy decision has to be
made or any major problem arises, Isler and Johnston are expected to
call them . The Respondent contends that the work is routine and runs
without direct supervision.
Bertha Hobbs, Anna Poindexter , and Bessie Lumkins, laundry room
employees , all testified that they consider Isler and Johnston their
supervisors who tell them what to do , and who take charge when A. B.
Johnson is absent. Hobbs testified that Isler was introduced to her as
assistant manager and that she considers Johnston , who has the same
duties, as an assistant manager. For example , Hobbs testified that
Isler can assign work to her such as pressing a shirt, and can ask her
to do it over if he is not satisfied, and frequently has done so. She also
testified that Johnston has the same authority and that they are both
all over the laundry department and constantly assign and check on
work.
Respondent contends that the record does not support the Trial
Examiner 's finding that Isler and Johnston should be excluded from
the unit because they are managerial employees . The Board has de-
fined managerial employees as those who formulate, determine, and
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effectuate an employer's policies.? There is no evidence in the record
that Isler and Johnston play any part in the formulation or determi-
nation of the Employer's policies; therefore, we find merit to the
Respondent's exceptions. However, although the Trial Examiner
made no specific findings in regard thereto, the Respondent's contention
that the two individuals in question are "mere pushers" and only
engaged in the "sporadic exercise of supervisory authority" grossly
understates their status.
It is uncontroverted that Isler and Johnston are, for the vast major-
ity of time, the only individuals who are responsible for the laundry
room operations with authority to see that the work is properly done.
Considering the nature of the work, the various types of jobs and oper-
ations which must be coordinated, and the physical size of the plant,
a ratio of 1 supervisor to approximately 65 employees appears low.
Of significance also is the fact that, unlike other employees, both are
salaried and their weekly incomes are substantially higher than those
of the hourly paid employees. Moreover, they are not only considered
by the employees to be supervisors, but regularly substitute for John-
son when he is absent and at such times are the only ones in authority in
the laundry. While they do not hire or discharge, adjust grievances or
the like, as noted above, in the case of Wade, it was Isler who reported
her alleged unsatisfactory work performance and apparently checks
and reports work infractions of other employees. It is also uncontro-
verted that they assign work, temporarily transfer employees, request
them to re-do or correct work, and in general see that the work is effi-
ciently organized and performed. We find, on the basis of the fore-
going facts and the entire record, that Isler and Johnston responsibly
direct the work of employees in the laundry department and are there-
fore supervisors within the meaning of Section 2(11) of the Act.8
Accordingly, we shall, in agreement with the Trial Examiner, exclude
them from the unit.
THE REMEDY
Unlike the Trial Examiner we have found that the Respondent dis-
charged Sonjia Wade on April 29,1963, in violation of Section 8 (a) (1)
and (3) of the Act. Accordingly, we shall order the Respondent to
cease and desist therefrom, and require that it take certain affirmative
action which we find necessary to remedy and remove the effects of this
unfair labor practice and to effecutuate the policies of the Act. Accord-
ingly, we shall order that Wade be offered immediate and full rein-
statement to her former or substantially equivalent job without preju-
dice to her seniority or other rights and privileges, and make her whole
for any loss of pay suffered by her by reason of the discrimination
7 See, e g, Eastern Camera and Photo Corp., 140 NLRB 569, 571.
8 Jas. H. Matthews & Co., 149 NLRB 161 and cases cited.
SWAN SUPER CLEANERS, INC. 169
against her, from the date of her discharge on April 29 to the date of
the offer of reinstatement. Loss of pay shall be computed as prescribed
in F. W. Woolworth Co., 90 NLRB 289, and interest on such backpay
shall be computed at 6 percent per annum in accordance with Isis
Heating cf Plumbing Co., 138 NLRB 716. We shall also order that
Respondent make available to the Board, upon request, payroll and
other records in order to facilitate the checking of the amount of
backpay due.
Apart from the foregoing, we shall otherwise adopt the remedy set
forth in the Trial Examiner's Decision.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the recommended Order of the Trial Examiner, and orders that
the Respondent, Swan Super Cleaners, Inc., its officers, agents, succes-
sors, and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, with the following modifications and additions.
1. Paragraph 1(e) shall be relettered (f) and the following para-
graph added:
"(e) Discouraging membership in Amalgamated Clothing Workers
of America, AFL-CIO, or any other labor organization, by dis-
criminating in regard to the hire and tenure of employment of its
employees."
2. Paragraph (b) and (c) shall be relettered (d) and (e) and the
following paragraphs added :
"(b) Offer to Sonjia Wade full reinstatement to her former or sub-
stantially equivalent position and make her whole for any loss of earn-
ings suffered as a result of the discrimination against her in the manner
described in the section above entitled "The Remedy." Notify the
above-named employee if presently serving in the Armed Forces of the
United States of her right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from
the Armed Forces.
"(c) Preserve and, upon request, make available to the Board or its
agents, for examination or copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due under
the terms of this Order."
3. The following paragraphs are to be added following the third
indented paragraph in the Appendix attached to the Trial Examiner's
Decision :
WE WILL NOT discourage membership in Amalgamated Clothing
Workers of America, AFL-CIO, or any other labor organization
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of our employees, by discriminating in any manner with regard to
hire, tenure, or any term or condition of employment.
WE WILL offer immediate and full reinstatement to Sonjia Wade
to her former or substantially equivalent position without preju-
dice to her seniority or other rights and privileges, and make her
whole for any loss of earnings resulting from the discrimination
against her.
4. The following shall be added immediately below the signature
line at the bottom of the Appendix attached to the Trial Examiner's
Decision.
NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of her right to
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W. Gerard Ryan at a hearing in
Columbus, Ohio , on 8 hearing days between September 18 and October 15, 1963, on
the complaint 1 of General Counsel and the answer of Swan Super Cleaners, Inc.,
herein called the Respondent . 2 The issue litigated was whether the Respondent
violated Section 8(a)(1), (3 ), and (5 ) of the Act. There was no oral argument.
Only the Respondent filed a brief.
Upon the entire record in the case and from my observation of the witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted , and I find that at all times material
herein, the Respondent , an Ohio corporation , is engaged at Columbus, Ohio, in the
operation of a laundry plant and retail drycleaning stores. During the past calendar
year, Respondent 's gross sales exceeded $500,000, and during the same period its
direct inflow of goods and products , in interstate commerce , was valued in excess of
$50,000 and was shipped to its Columbus , Ohio, plant from points outside the State of
Ohio; and that at all times material herein the Respondent has been an "employer" as
defined in Section 2 ( 2) of the Act , engaged in "commerce" and in operations "affect-
ing commerce" as defined in Section 2(6) and ( 7) of the Act , respectively.
1 The complaint was amended at the hearing as follows:
5(a)v. Change "vacation" to "holiday" ( so that it reads "holiday pay " instead of
"vacation pay ")
5(b)x. The conduct of said Johnson on or about August 9 , 1963, in interrogating
Helen Hobbs , an employee , regarding her union sympathies and activities.
5(b)xi On or about August 24, 1963 , in admonishing Elizabeth Murphy and Betsy
Lumpkins , both Respondent 's employees, to talk to Helen Hobbs , an employee, and
other employees to convince them to get rid of the Union and warning that their
failure to do so would be too bad.
5(d)x. On or about July 22, 1963, in interrogating Burma Jean Steward about
whether she or her sister , both Respondent ' s employees , had signed union cards and
indicated to said employee that she had done herself harm because of her union
activity and sympathy.
2 The charge was filed on June 6, 1963 , and an amended charge was filed on June 27,
1963. The complaint issued on July 31, 1963.
SWAN SUPER CLEANERS, INC. 171
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleged , the answer admitted , and I find that at all times material
herein, Amalgamated Clothing Workers of America, AFL-CIO, herein called the
Union, is and has been a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The 8 (a)(1) violations
The complaint alleged, the answer denied and I find, that in violation of Section
8 (a) (1) the Respondent interfered with , restrained , and coerced its employees in the
exercise of their rights under Section 7 of the Act. My reasons follow.
Andre Gelpi , president of the Respondent , first heard of the union campaign on
Friday, May 3.3 Manager Johnson telephoned and said he had a "flyer " or leaflet
that had been distributed by the Union . Gelpi told Johnson to bring it to the office
immediately . He also summoned Joseph Wolf and Kenneth Bader who came immedi-
ately to the office. Gelpi who was quite amazed read the leaflet to them and told
them to go back to their jobs as he could not do anything until he talked to his attor-
ney. The following Monday, Attorney Chester, Bader, Wolf, Johnson, and Gelpi
discussed the situation in Gelpi's office. Chester advised Gelpi to talk to the employ-
ees and explain his side of it but not to threaten , promise, or interrogate the employees.
On the following day, May 7, Gelpi called the employees together in the rear of the
laundry and Gelpi stood up on one of the marking platforms to speak to them. He
told them he had just found out that the Union was trying to unionize the employees
in the laundry and that he was quite hurt and did not think they needed a union as he
thought the Company was doing very well by them. He told them they had top grade
Blue Cross and Blue Shield coverage , paid vacations , and excellent working condi-
tions. He also said , "We have our chicken dinners , and our Christmas parties, our
baseball games [all of which are free]; our loans and draws [salary advances ] anytime";
and that they could come to him with any problems which he would try to solve for
them. Gelpi then asked if there were any questions and there were two pertinent
questions : ( 1) concerning seniority when a woman returned to work following
childbirth, and (2) holiday pay. Gelpi promised them that effective that day employ-
ees who returned to work after childbirth would not lose their seniority as they had in
the past; and pieceworkers for holiday pay would get the average they had made the
day before instead of receiving an hourly rate as previously . Gelpi testified that
he did not say that all the Union wanted was their dues or that the Union was made
up of a bunch of racketeers. He testified that he did not say if the Union came in
there would be no more loans, no more "draws," Christmas parties, or baseball games;
that he did not condition the changes in holiday pay or in seniority upon the employees
rejecting the Union . Gelpi admitted that the changes in seniority were reflected in
wage increases based on seniority and length of vacations to which they were entitled.
Another advantage of having seniority restored was that employees did not have to
wait 3 months to get their Blue Shield and Blue Cross benefits but automatically were
covered when they returned to work. Gelpi testified further that he was very much
upset about the Union and his purpose in his speech was to explain to the employees
the benefits they already had.
It is settled that the grant of benefits to induce employees to reject a union violates
Section 8 (a)( I) of the Act , even though , as here, the grant is made without express
condition that the employees reject the Union. As the Supreme Court recently
observed . "The danger inherent in well-timed increases in benefits is the suggestion of
a fist inside the velvet glove. Employees are not likely to miss the inference that the
source of benefits now conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged." N L.R.B. v. Exchange Parts Com-
pany, 375 U.S. 405, 409 Accord: NL.R.B. v. Hoffman-Taff, Inc., 276 F. 2d 193,
198 (C.A. 8); N.L.R.B. v Crown Can Company, 138 F. 2d 263, 267 (C.A. 8), cert.
denied 321 US. 769; N.L R.B. v. Pyne Molding Corporation, 226 F 2d 818, 820
(C A. 2) ; N L R B v. West Coast Casket Company, Inc, 205 F. 2d 902, 905 (C.A. 9).
Accordingly , I find that a significant factor in changing the seniority policy and the
rates for holiday pay was a desire to influence the choice of the employees during the
organizational efforts of the Union, since it "was so timed as to show that its purpose
was to ... thwart the organization of the employees ." Pyne Molding Corporation,
supra. The foregoing findings are based upon Gelpi's own testimony.
On or about August 24 Manager Johnson told Elizabeth Murphy that he had heard
that Helen Hobbs was 100 percent for the Union and asked Murphy to tell Hobbs
3 All dates herein refer to 1963 unless otherwise stated
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union was not any good. During the conversation Bessie Lumpkin appeared and
Johnson said that Bessie knows that Helen told her the Union was in. Johnson then
told Rowland Isler, his assistant, to get a little book which Murphy referred to and
"reading from it" stated if the Union got in there would be fewer girls and lower
wages; the conversation ended by Johnson telling Murphy that Helen Hobbs was for
the Union and it was going to be too bad and, shaking his finger at her, for Murphy to
go around in the shop and tell the girls the Union was no good.
On or about April 24 Johnson asked Lillia Hall if she had attended a union meet-
ing the night previous.
On or about May 16 Johnson told Hazel Williams that the Company knew where
the employees were holding meetings, who had signed cards, and who had started it.
On a day in May subsequent to May 7 when union organizers were distributing
leaflets outside the plant, Johnson told Hazel Williams and a group of employees not
to forget which side their "bread and butter" is on, and turning directly to Williams
told her not to forget who signs her check and then he directed Isler to go and wam
the girls not to forget who signs their checks. Later after Johnson had sent a couple
of girls out to get the leaflets he remarked that "the union men do not give a `so-and-
so' about you-all they want is your union dues "
On or about May 22 Johnson went to Julia Long's work station and said he had
heard she was for the Union. When she denied it, he replied that he had definitely
heard it. About a half-our later Johnson came back with a newspaper clipping which
reported the indictment and arrest in New York of one officer manager of the Union's
insurance fund and told her this was the "same outfit you are trying to get in here."
Johnson then said the girls better get themselves together in the next 2 or 3 days,
because Mr. Gelpi "had his money made" and if he heard of anybody talking union
talk around there, "you had to go." Johnson then added that if she were not for the
Union to tell the rest of the employees that the Union was no good. Later on the
same day Johnson returned and asked Long why was Barbara Reid for the Union;
that he knew Reid was for the Union and that he knew a lot more that he could name
because he had somebody go to the union meetings and report to him everything that
went on in the meeting.
On or about August 1 4 Johnson approached Helen Hobbs who was at work and
said he wondered why she would go around telling the girls that "there is a union in."
He informed her it was a violation of the National Labor Relations Board to tell them
there was a union in when it was not in.
On or about May 7 Joseph Wolf, an admitted supervisor, in the presence of Willie
Fross, asked Barbara Reid if any of the girls had talked to her about a union.
About the middle of May Kenneth Bader, the district supervisor for the Respond-
ent, called Hazel Williams and a group of girls together (Manager Johnson also
present), showed the girls what he called a union contract, and said if the Union got
in they would make less money; a small place like theirs did not need a union, that
union officials lined their pockets with union dues; and the bosses take out union dues
every week "before you get your money " Bader said he knew everyone had
signed a card, where they were holding a meeting, and who had started a union. He
said that some of the girls had told him they had signed cards and had gone to meet-
ings. Bader also told Williams that someone had told him that she was holding
meetings at her home and she denied it; he asked if she signed a card and she said yes.
Bader then asked her if they did not have a meeting last week on this street and she
could not tell him because she never attended the meeting. About 1 week later Bader
asked Williams if she had been talking to Wolf about transferring and asked if she
wanted a transfer. She replied, "Not particularly." He then asked if she had signed
a card; she said yes; he said he heard she had been holding union meetings. At the
first speech referred to herein by Bader, Bader said the whistle would blow for lunch
and return and if late, employees would be docked or fired: that there would be no
more loans, parties, chicken dinners, or games because the Union did not give loans;
and that the Company would enforce union rules and regulations.
On May 21 Kenneth Bader told Barbara Reid that he had some papers he wanted
to show her that the Union was "not worth a damn" and he was going to have copies
made to show the girls.
A week or 10 days after May 7 Kenneth Bader approached Burma Steward who had
applied to the Company for a loan and he asked her if she had received the paper the
union man was passing out. When she said she had not he said he wanted her to read
it. He went on to say that Gelpi did not have to loan the money; that they would
close up before they would stand for a union. He said if she had not signed a card
to think it over before she signed because "they did not mean us any good and all
4 The complaint was issued July 31.
SWAN SUPER CLEANERS, INC. 173
they wanted were our dues." On or about July 22 in another conversation with
Bader he told her that with "so much union stuff going around" Mr. Gelpi did not
know whom to trust and whom not to trust.5
On or about May 7 Bader approached Mattie L. Garner and told her he had heard
she was passing out cards which she denied. On or about May 16 in another conver-
sation with Garner just prior to her transfer to a job in one of Respondent's dry-
-cleaning stores Bader told her he did not want to hear anything about the Union in
the other store to which she was going.
The foregoing findings are based upon the credited testimony of Elizabeth Murphy,
Lillia Hall, Hazel Williams, Julia Long, Helen Hobbs, Barbara Reid, Burma Steward,
and Mattie L. Garner.
B. The alleged violation of Section 8(a)(3)
There is no evidence in the record to support the allegation in the complaint that
Sonjia Wade was discharged in violation of the Act. The complaint in that respect
should be dismissed.
C. The violation of Section 8(a)(5) of the Act
1. The appropriate unit
All employees of Respondent at its Columbus, Ohio, laundry plant, exclusive of
confidential employees, professional employees, office clerical employees, guards,
manager and assistant manager, and all supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
2. The Union's majority
The General Counsel contends and the Respondent disputes that Sonjia Wade and
Mary Hunt should be included in the unit and that Rowland Isler, Jim Johnston,
Sherbaedean Stewart, and Joann Sunderland should be excluded from the unit.
As hereinafter found, Sonjia Wade, Mary Hunt, Rowland Isler, and Jim Johnston
should be excluded from the unit and Sherbaedean Stewart and Joann Sunderland
should be included in the unit.
Accordingly I find that on May 15, 1963, there were 65 employees in the unit;
namely: Lucille Alexander, Franklin Ames, Loretta Brownlow,° Sandra Byrd, Pari
Campbell, Delores Carter, Melvin Carter, Hazel Cheatham, Ozie Christie, Lovania
Clark, Marguerite Coats, Mabel Dailey, Carrie Davis, Myra Franks, Willie Frost,
Mattie Garner, Antha Giles, Rachel Glover, Ella Gordon, Shirley Green, Clara Ann
Hall, Lillia Hall, Lois Harris, Pat Harris, Mary Hawes, Bertha Hobbs, Ethel Howard,
Rosetta Howard, Ruth Howard, Dennis Jarrell, Delores Jordan, Alexander Kovash,
Beulah Lane, Irene Lewis, Julia Long, Bessie Lumpkins, Ledora Martin, Ruby
McCloud, Irma McLaurin, Elizabeth Murphy, Susie Norman, Anna Poindexter,
Barbara Reid, Mary Revels, Margaret Roundtree, Mary Russell, Alma Scales, Viola
Scroggins, Agnes Shouse, Molly Skillman, Eva Stephen, Burma Steward, Katie Swain,
Pearl Turner, Joann Sunderland, Minnie Upton, Anna Washington, Jo Ann Watson,
Elizabeth Watterson, Sherbaedean Stewart, Hattie Whitfield, Marva Whitfield, Evelyn
Wilkins, Hazel Williams, and Anna Wynn. Thus the Union represented 35 employees
of 65 employees in the unit on May 15.
My reasons for arriving at the above findings are:
Sonjia Wade is excluded from the unit because she was not an employee on May 15
because she was discharged on April 29, for reasons not violative of the Act.
'At the time Bader asked her if she got one of the union leaflets, he also told her
"before you sign, if you are going to sign a card . . . I would like for you to give a
lot of thought to this, because Swan gives the loans and gives us draws [advances against
salary]" and then he compared the rates of pay that Swan paid with other cities where
the same union herein had contracts showing that the rates in other cities were lower
than the rates paid by Swan and concluded that it would lower the rates now paid and
the employees would not get higher wages. He also told her to think how good Gelpi
was to them because he did not have to give her that money because he could take
that money and just put it in the bank. Bader continued to say that Gelpi did not
charge the employees interest on the money and that Gelpi did not need the laundry
and that if the Union came in he would close the laundry down because he did not
need the money.
9 The italicized names designate the 35 employees in the unit whose cards were valid
designations on May 15.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joann Sunderland is included in the unit because she was hired before May 15 to
begin work on May 15. She worked from May 15 until June 1 in the shake depart-
ment in the laundry as a floorgirl and also filled in as a presser. There is nothing in
the record to indicate that she was hired as a temporary employee.
Sherbaedean Stewart is included in the unit because when she left in January
because of pregnancy, Manager A. B. Johnson promised she could have her job back.
She returned to the job she had left in the latter part of May or first part of June. She
had her vacation in June because she had not lost her seniority.
Mary Hunt is excluded from the unit. She testified that she has done no work for
the Respondent since April 18, when she received an injury while working and at the
time of the hearing herein was still under the doctor's care She signed a card for the
Union on April 18, after she had been injured. The Respondent has opposed her
claim for workmen's compensation in that proceeding which was still pending at the
time of the hearing herein. Hunt testified that she did some work for another
employer, namely, H. L. Green's Department Store, on July 5 and worked for about
9 days, "As long as I could stand." She has not worked since.
In view of the fact that she has never returned to work for the Respondent and
obtained employment with another employer and since there is not sufficcent evidence
in this record to determine that on May 15 she was in the position of an employee who
was away from work because of illness with a reasonable expectation of returning to
her job when she recovered, I find she should be excluded from the unit on May 15.
Rowland Isler and Jim Johnston are excluded from the unit because they are allied
with management and take the place of A. B. Johnson, the manager of the laundry,
whenever he is absent.
Both Kenneth Bader, the district supervisor, and A B. Johnson testified that A. B.
Johnson, the manager, is the only supervisor at the laundry which at times has 70
employees. Bader testified that at some of the company drycleaning stores which
have less than 20 employees there are a manager and assistant manager. It is interest-
ing to note, in passing, that General Counsel's Exhibit No. 43 which is the list of
employees prepared by the office manager sets out the name of "Rowland Isler,
Asst. Mgr."
Bertha Hobbs testified that Manager Johnson introduced Isler to her as assistant
manager and that they were to do as Isler told them. Several witnesses called by the
Respondent also testified that Isler and Jim Johnston were their bosses. Rosetta
Howard testified that Jim Johnston is one of "our bosses" and that Isler is one of the
managers and that Isler and Johnston "take over" for Manager A. B. Johnson if
Johnson is absent. Anna Washington testified that if Manager Johnson is absent
Isler takes his place and that both Jim Johnston and Isler are their supervisors
Anna Poindexter, also called by Respondent, testified that both Jim Johnston and
Isler are supervisors who direct the work, take over, and are in charge when Manager
Johnson is absent and give the orders.
Bessie Lumpkins testified that Jim Johnston and Isler were their supervisors and
when Manager Johnson is absent "if there are things we don't know how to do, they
tell us what to do."
Manager A. B. Johnson testified that the duties of Jim Johnston and Isler are to
follow the flow of work and see that the work goes through the laundry and if a girl
has not sufficient work, they see that she has work. He testified further that Jim
Johnston and Isler perform production work, if a department is loaded down with
work, by stepping in and helping out to do the work there. While he testified that they
have no authority to hire or fire, he did testify that if he were not available, Jim John-
ston and Isler have authority to move an employee temporarily from one job to
another to help for awhile and then to move her back to her original position. He
also testified that if there was a breakdown or an emergency situation at the laundry in
his absence Jim Johnston or Isler would call Kenneth Bader, the district supervisor.
He further testified that he, the manager, is the only supervisor of 72 employees, that
he is in charge of all of them and no one else has any authority other than his; and-
that Jim Johnston and Isler do not attend supervisor's meetings.
Based upon all the foregoing I have excluded both Rowland Isler and Jim Johnston
from the unit since they are identified as part of manager and have been represented-
to and accepted by the employees as their "bosses."
The Respondent challenges the validity of nine cards introduced by the General`
Counsel bearing signatures of Ruth Howard, Ella Gordon, Eva Stephen, Shirley
Green, Clara Ann Hall, Delores Jordan, Irene Lewis, Anna Washington, and Viola,
Scroggins.
SWAN SUPER CLEANERS, INC. 175
Ruth Howard, Eva Stephen, and Ella Gordon all signed cards reading:
Application for Membership
in the
Amalgamated Clothing Workers of America
I, the undersigned, employee of
Swan Cleaners [or Swan's Laundry]
hereby apply for membership in the
Amalgamated Clothing Workers
of America and do herewith
authorize its officers to represent
me in collective bargaining
with my employer. [Emphasis
supplied.]
Charles P. Garish, a witness called by the General Counsel, testified that Ruth
Howard signed the card in his presence and that he was a witness to her signature.
Ruth Howard testified that in February she was at home with her sister, Ella
Gordon, when two union representatives called who told them the different things
the Union would offer. One of the representatives asked if they wanted to sign and
they told him they did not. He then said he was trying to get a percentage of the girls
to sign the cards so they could come in and vote for the Union. Ruth Howard replied
she was undecided and asked if she would have a chance to change her mind. The
representative replied yes and she then signed the card. She testified further that the
following day she changed her mind but never at any time thereafter did she tell
anyone she had changed her mind although she later attended a free union dinner and
although she saw the union representatives at the dinner she did not talk to any of
them. Here, as in Cumberland Shoe Corporation, 144 NLRB 1268, it does not appear
that she was told that the only purpose of the cards was to vote in an election. In
this case as in Cumberland, supra, the card on its face explicitly authorized the Union
to represent her in collective bargaining with her employer. On such facts the
Board held in Cumberland that the failure of the union solicitors affirmatively to
restate this authorization does not indicate that it was abandoned or ignored. Cer-
tainly on May 15, 1963, the Union was entitled to rely upon her signed authorization
in the absence of any notification from her that she did not want the Union to repre-
sent her. Accordingly, I find her card should be counted as a valid card.?
Garish testified that the card of Ella Gordon was signed by her in his presence.
Ella Gordon, the sister of Ruth Howard, testified that in February two union repre-
sentatives called at her home, and that one was a white man and one was a colored
man who was a preacher. She testified the preacher stated "how the Union was" and
"what all they would give the employees" and he stated further that they needed
enough people to try to organize to have an election, and that he only had so many
girls already signed up to vote for a union and he needed some more. She testified
that at that point her sister, Ruth Howard, inquired if she signed the card whether she
would be able to change her mind and he replied that she would. Gordon testified
further that he said there would be an election whenever he got so many girls signed
up; and in answer to a question as to whether he said anything else she testified "he
said a lot of things." Gordon continued to testify that she signed a card at that time
but she had not then made up her mind as to whether or not she wanted a union. She
testified further that the next morning she made up her mind that she was not for the
Union, meaning that she did not want the Union. The record does not disclose that
after she signed the card she ever told the Union or anyone else that she had made up
her mind that she did not want the Union. For the reasons stated supra, in finding
the card of Ruth Howard to be valid I accordingly find that Ella Gordon's card should
be counted as a valid card.
Charles P. Garish testified that on January 21 he was a representative for the
Union and continued in that capacity until February 11; and that on January 21, in
7The validity of union authorization cards as evidence of majority representation is
not impaired by assertions by a small minority of the employees that they signed cards
in the belief that they were necessary for a union election. NLRB. v. Stow Manu-
facturing Co , 217 F. 2d 900, 902 (CA 2), cert denied 348 U.S. 964 ; N L R B. v. Green-
field Components Corporation, 317 F. 2d 85, 89 (C A. 1) ; N L.R B. v Gorbea, Perez et
Morell, S en C. 300 F 2d 886, 887 (C.A 1) ; N.L.R B. v Whctelight Products Division
etc., 298 F. 2d 12, 14-15 (C A. 1), cert denied 369 U S 887, N L R B v Sunshine
Mining Co, 110 F 2d 780, 790 (CA 9), cert denied 312 U.S 678, Joy Silk Mills, Inc.
v. N L.R.B., 185 F. 2d 732, 743 (C.A D C ), cert denied 341 U S 914.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company with James Moore, he called at the home of Eva Stephen. He explained the
benefits the Union would try to get in collective bargaining and asked her to sign a
card. He testified that he witnessed the signature of Eva Stephen on the card in ques-
tion (General Counsel's Exhibit No. 5) which she signed in his presence at her home.
Eva Stephen testified that in the wintertime a colored man and a white man came
to her house and introduced themselves as union men trying to get in a union. She
testified that they talked with her and she listened. They said they wanted "to get it
organized so we could be off on holidays, so we would get paid, that we would get sick
leave and so forth and so on." She testified that she cannot remember all that was
said. She testified that she said to the union representative, "The Company don't have
too much else, they are awful nice, we already get what you mostly offer us." She
continued, " `But the only thing,"' I said, " `we don't get, like retirement, that is about
the only thing we don't have down there at our job.' "
She testified one of the representatives said, "Mrs. Stephen will you sign the card,"
and she replied, "I am not interested in it right now."
She testified further that "they kept on insisting, they said there was nothing to it
just sign the card just getting up names." She testified further that they kept on talking
"and so I did sign it a small white card I signed but I thought I was just giving them
my name."
She testified that when she signed the card she did not know she was joining the
Union and did not intend that the Union should speak for her.
When asked if General Counsel's Exhibit No. 5 was the card that she signed she
testified she printed her name but the signature on the card is not her signature.
On voir dire examination concerning two other union application cards she said
she received later by mail (Respondent's Exhibits Nos. 4 and 5) she testified that the
cards came after she had signed General Counsel's Exhibit No. 5 as follows:
Q. Did you get this before or after you signed the white card here? Did you
sign this card and then get this in the mail?
A. Yes, I signed that card first [General Counsel's Exhibit No. 5]. I signed
that back in the winter.
Q. Back in January.
A. Yes, I signed that the night they came to my home.
Q. In January?
A. I guess it was January.
Q. It says "1-21-63."
A. Yes.
Q. Now I show you Respondent's Exhibit No. 4 marked for identification.
When did you receive this9
A. I would say it came about 6 weeks to the best of my knowledge after I
signed the card.
On cross-examination she testified:
Q. So you didn't know what you were signing when you signed?
A. Well I knew I was signing my name.
She was asked when she made up her mind whether or not she wanted to be for the
Union and she answered, "Well in fact my mind was made up before I signed the card
I didn't want no union."
She testified further:
Q. So when you signed the card you decided you didn't want a union, isn't
that right?
A. Sure, yes, I didn't want no union. He just asked me to sign the card, he
didn't say anything that I was a union member or nothing.
* * * * * * *
Q. After you signed the card did you have anything to do with the Union?
A. No.
During the cross-examination Stephen was asked for a specimen signature which
is in evidence as Charging Party's Exhibit No. 1. The Charging Party introduced the
expert testimony of Lloyd Shupe on rebuttal who testified that the same person signed
General Counsel's Exhibit No. 5 and Charging Party's Exhibit No. 1.
I do not believe Eva Stephen's testimony that she did not sign the card in evidence
as General Counsel's Exhibit No. 5. I believe that she printed her name on the card
as she testified and that contrary to her denials she also affixed her signature to the
card. She impressed me as untrustworthy. Throughout her testimony she testified
several times that she signed the card.
SWAN SUPER CLEANERS, INC. 177
On the basis of the entire record including the testimony of Charles P. Garish and
Lloyd Shupe which I credit and upon the admissions of Eva Stephen which I credit
although I reject her testimony in part where she denied signing the card, I find that
the card of Eva Stephen was signed by her on January 23 and should be included in
the card count on May 15.
Shirley Green testified that in March 1963 she signed a card (General Counsel's
Exhibit No. 8) at the request of Chester Makoski, a representative for the Union.
The card provided in part:
I, the undersigned, an employee of Swan's Cleaners hereby authorize the Retail
and Department Store Employees Division of the Cleveland Joint Board
A.C.W.A.-AFL-CIO to represent me for the purpose of collective bargaining.
THIS IS THE
AMALGAMATED
AFL-CIO s
Green testified that Makoski, accompanied by a little, short, fat man came around
at a time when she was getting ready to leave and Makoski asked her to wait because
he had something for her benefit to talk over. She testified that Makoski inquired as
to the amount of her hourly and weekly wages and what kind of work she did. She
testified further that Makoski said there would be a vote for the Union, they would
vote it in, there would be an election and he would let her know. She continued to
testify that Makoski said a majority of the girls had signed and it would cost $30 for
those waiting to sign later. She testified that: He did not say anything about joining
the Union but did say he was trying to get it organized; they had not got it together
yet; the cards did not mean anything; and they were just trying to get it together and
there would be a vote on it. She testified further that when she signed the card she
did not intend to have the Union speak for her.
I find Shirley Green's card to be valid. Nowhere does the record show that she was
told the only purpose of the cards was to vote in an election. Here, as in Cumberland,
supra, the card on its face explicitly authorized the Union to represent her in collective
bargaining with her employer. Further the Board has held in numerous cases that
subjective intent does not operate to change the written authorization on the card. It
appears that the conversation about $30 probably refers to an initiation fee if the
employees subsequently become members of the Union. Again the Board has held
that waiver of an initiation fee does not operate to invalidate a signature. (Gorbea,
Perez & Morell, S. en C., 133 NLRB 362, 142 NLRB 475, enfd. denied 328 F. 2d
679 (C.A. 1).)
Clara Ann Hall testified that Makoski and another union representative came to her
house one day after working hours. They sat down and Makoski talked to her about
the Union She testified Makoski told her there would be voting on the Union, a
machine would be set up and "no one would know how I voted but them" and when
she signed the card "no one would see the card but them" and how she voted. She
"testified further that Makoski stated 20 percent of the girls had already signed. She
then signed the card which she gave to Makoski.
On direct examination she testified she did not read the card but she printed in the
answers in the spaces provided and signed it
She testified that only reason she signed the card was because Makoski said there
would be voting set up by a machine and no one would know but them how she
voted, and that she did not intend to have the Union speak for her and when she signed
the card she had not made up her mind about the Union.
On cross-examination she repeated that she did not read the card but that she filled
in all the blanks (except the word "Swans") and signed it.
Hall testified further that the next day she made up her mind that she did not want
the Union. She testified further that, although she made up her mind that she did
not want the Union, she did nothing about it, as follows:
Q. What did you do to convey your thoughts and impression to anybody else?
A. I didn't do anything. I didn't go to no one and tell anyone about what I
had thought.
She testified further that after she made up her mind she made no effort to get the
card back.
8It should be noted that the wording on this card was an authorization to represent
her for the purpose of collective bargaining only and did not constitute an application
for union membership as the cards did which were signed by Ruth Howard , Ella Gordon,
Eva Stephen, and Rachel Glover.
789-730--66-vol. 152-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It does not appear from this record that she was told that the only purpose of the
cards was to vote. Here the card on its face explicitly authorized the Union only to
act as bargaining agent of the employees and there is no evidence to negative the
overt action in signing the card. Finally she did nothing to indicate to the Union or
anyone else that after signing the card she "made up" her mind that she did not want
the Union . Accordingly I find Hall 's signed card to be valid.
Chester Makoski testified that Delores Jordan signed her card in evidence as
General Counsel 's Exhibit No. 12 at her home and in his presence on or about
April 16, 1963.
Delores Jordan testified that the first time she signed a card was in July 1963 and
that she mailed it to the Union . She denied that she signed a card when Makoski and
another man came to her home which she said was around May . She testified when
they asked her to sign a card she told them she was not sure that she wanted to
become involved ; that she did not sign a card then and they left after leaving a paper
for her to read.
On cross-examination she testified that she filled in all the spaces on the card and
signed it but cannot remember whether the date was filled in or not but in any event
she did not write in the date on the card. At another point she testified the card was
signed sometime 3 or 4 weeks prior to August 8.
She further testified on cross-examination:
Q. If I told you that your card was furnished to the National Labor Relations
Board on June 26, and not in July, would you still say that you did not sign the
card until in July?
A. I don't know when I signed the card. The reason I remember is because
even when they came by in the evening , I was half asleep . I was laying on the
couch sleeping , because when they came and I asked them if they could come
back, and they asked me if they could talk to me a few minutes , and I was half
asleep then. I don't even remember half the things they even said when they
were there.
Q. You remember you didn't sign the card?
A. I don't remember signing the card, but they told me they would come back.
They gave me a paper to read and left the card there for me to sign.
Jordan's contradictory testimony that ( 1) she signed the card in July (3 or 4 weeks
prior to August ); ( 2) she does not know when she signed the card; and (3 ) she does
not remember signing the card on or about April 16, but that the card was left there
for her to sign, is not sufficient to overcome the testimony of Chester Makoski which
I credit that she signed the card in his presence on April 16 . I find her card to be valid.
Irene Lewis testified that Chester Makoski and another representative for the Union
visited her at home and told her they were trying to get a union organized at the laun-
dry. Makoski , according to Lewis , said they were trying to get the union organized
and they had to have a certain percent of the girls and "then, what we do, we vote
on it, after we get a certain percent to get it organized , we vote on it, as to whether it
comes into the Company or not." Lewis then asked what it was all about and inquired
as to what the advantages were in joining the Union . Makoski said the majority of
the girls had signed up. When Lewis said she would like to know more about it, he
explained that meetings were held at various homes of employees and if she had no
transportation to the meetings , transportation would be provided . Makoski inquired
if she would be interested in attending the meetings and she replied that she would be
interested , as she would like to find out more about it and just what was going on.
Makoski replied that one of the girls would contact her and then asked her to sign a
card. She signed a card which was dated April 16. The card was similar to all other
cards (except the four cards referred to supra, signed by Ruth Howard, Ella Gordon,
Eva Stephen , and Rachel Glover ) and read:
I, the undersigned , an employee of
Swans hereby authorize the Retail
and Department Store Employees
Division of the Cleveland Joint Board
A.C.W.A . - AFL-CIO to represent me
for the purpose of collective bargaining
THIS IS THE
AMALGAMATED
AFL-CIO
Lewis did not attend any union meetings because no one contacted her thereafter.
She inquired about the meetings from one of the employees ( Sonjia Wade) who
SWAN SUPER CLEANERS, INC. 179
replied that she knew nothing about it. Lewis testified further that when she signed
the card she did not intend to have the Union represent her and did not know it was
representing her.
It is clear to me from Lewis' testimony that there is nothing in the record to indicate
that Makoski told her the only purpose of the cards was to vote in an election
(Cumberland, supra). She signed the card after Makoski discussed the advantages of
the Union pursuant to her inquiry and after she had stated that she would like to
attend union meetings to learn more about the Union. As in Cumberland, supra,
there is no evidence here to negative the overt action in her signing the card designat-
ing the Union as bargaining agent, and the instant situation is not one in which the
Union has beguiled employees into signing union cards. Her testimony that she did
not intend when she signed the card that the Union act as her bargaining representative
does not overcome the clear express written language on the card which she signed.
At no time thereafter did she ever notify the Union that she withdrew her authoriza-
tion. I find her card to be valid.
Chester Makoski testified that Anna Washington signed her card in his presence at
her home on April 23.
Anna Washington testified that prior to April 23, employee Mattie Garner asked
her on several occasions to just sign a card so she could vote. Washington testified
further that Garner said to sign the card, it was to vote if you wanted a union or not;
that it was not for a union and the she was not signing any union. Washington, on
cross-examination, testified that she signed a card to get rid of Garner and returned
the card to Garner. Further on cross-examination, Washington testified that Garner
told her the card was to vote either way, if it came to a vote.
Washington also testified that a few days later Makoski and another man came to
her home and said the Union was having a meeting that night and if she could come
transportation would be provided. Washington testified that she then told Makoski
that she did not want to be bothered with a union and wanted no part of it. Accord-
ing to Washington, Makoski then told her she had already signed a card, to which she
replied that the card did not mean anything and she did not like the Union. She
testified that she also told him she did not want to be bothered by a union because she
was satisfied "the way we are" and continued, "We have every advantage that anybody
would want on a job, if they want to work."
On the basis of Washington's testimony, I find her signed card to be invalid, because
although she had signed it, she had repudiated it by notice to Makoski, and it should
not be counted as a valid card on May 15, when the demand for recognition was made
by the Union.
Chester Makoski testified that on March 27 Viola Scroggins signed a card in his
presence at her home.
Viola Scroggins testified that when she returned home from having a beer at the
corner, she found her husband and two union representatives at home who were talk-
ing together discussing the Union. She told her husband she did not want any part
of the Union because the Union could do nothing for her, saying , "I have all the rights
that the Union was offering . We were already given those rights." Makoski, one of
the union representatives , asked where and she referred to a former employer . Scrog-
gins testified further that Makoski asked her if she would mind signing the card to
help out; that they were only trying to see how many they could get to campaign for
a union; that there would be a registered vote and all for a union; that the thing he
had was not a union, he was just going around seeing how many he could get for a
union, representatives for the union. She testified further that her husband put her
name and address on the card and she signed it without reading it or knowing what
was on it except her name. Her husband, according to her testimony, told her she
could sign it if she wanted to because it is not a union and she was not signing up for
a union. During all that time Makoski was present and made no reply to her husband
because her husband told him he knew all about a union and that he was a union
member and officer. Scroggins testified further that Makoski said it was not joining
the Union, that they were campaigning, and that Makoski then added in substance that
he had been trying to organize the Respondent for 14 years and they were going to
get it "if we have to fight it in court." She testified further that when she signed the
card, she did not intend to have the Union speak for her and did not intend to join
the Union.
On cross-examination , Scroggins was an evasive and self-contradictory witness.
She was asked if there were any discussions with Makoski regarding her sister (Anna
Washington , who also worked for Respondent ). She replied:
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yes, I asked him had he been to my sister's home.
Later, she testified:
Q. You did ask Mr. Makoski if he had been to see your sister?
A. No, I didn't.
Q. You just said you did.
A. I didn't say that he had been to see her, not then
Q. I asked you if you did not tell him, or ask him if he had been to see your
sister?
A. As a fact, I asked at the time who all had signed those cards and he said
everybody.
Q. What did he say?
A. He said all of them had signed those cards, and I said, "Do you mean to
tell me Dolly, too?" He replied, "Yes."
Q Who is Dolly?
A. Howard.
Q. Then you asked him if your sister had signed a card, is that right?
A. No I didn't.
Q. Did you say anything about your sister to Mr. Makoski7
A. I asked him about each and every one that had signed a card, and he said
everybody, and I said, "Including my sister, toot" He said, "Yes, you are not
joining no union." I said, "All right, because I don't want no type of union."
When Scroggins was asked the direct question as to why she signed a card, she finally
replied:
Because I didn't read it, why I signed it, my husband pushed me and said, "It's
not joining no union, sign it, so we can get rid of him," so I signed it.
She repeated her testimony that her husband had already filled out the card and
told her, "It is not joining a union. Sign it, so we can get rid of him."
She testified further that her husband is secretary of a union to which he belongs.
Scroggins testified further that 1, 2, or 3 weeks later, Makoski telephoned to tell
her they were having a meeting at employee Hazel Williams' house and to inquire
if she were coming, and told her transportation would be furnished . She replied,
"We have two cars. I have plenty of transportation." She did not tell him she
would not attend . The reason for not attending the meeting , according to her testi-
mony, was that she was drinking beer and when she drinks beer she does not drive
her car.
She testified at another point in cross -examination when the topic was again
adverted to, as follows:
Q. . . Now isn't a fact that you discussed with Mr. Makoski the night you
signed the card , about your sister?
A. I didn't discuss that much with him.
Q. "That much" did you discuss it at all, I want you to think about it
A. I asked him who all had signed those cards. I got proof by my husband
that that is the words I said.
Q. Did you mention your sister at all to Mr. Makoski?
A. Not that I can remember.
Q. You seem to remember everything else. Do you remember?
A. I don't remember everything else. I just remember some things.
After signing the card and giving it to Makoski on March 27, 1963, the record
shows that never thereafter did she repudiate the card. A few days later when
Makoski telephoned about a meeting to be held at Hazel Williams' house and inquired
if she had transportation, she did not tell him that she was repudiating her signature
on the card but only told him she had two cars and plenty of transportation, but did
not tell him she would not attend . Here, as in Cumberland, supra, it does not appear
that she was told that the only purpose of the cards was to secure an election. She
was told that she was not joining the Union by signing the card and that he was trying
to see how many he could get to campaign for the Union in its organizational efforts.
Accordingly , I find her card was valid and should be counted in the Union's card
count.
In sum I have found that on May 15, 1963, there were 65 employees as named,
supra, in the unit and the Union had 35 valid cards, which is a clear majority.
On May 15, 1963, the Union sent to Andre J. Gelpi, president of Respondent, a
telegram in which the Union stated that it represented a majority of the employees
in an appropriate unit in the laundry plant ; demanded recognition as duly authorized
collective-bargaining agent for all employees in the said plant excluding all confiden-
SWAN SUPER CLEANERS, INC. 181
tial employees, professional employees, office clerical employees, guards, managers
and assistant manager, and supervisors as defined in the Act; requested a conference
to negotiate a collective-bargaining agreement; and stated further that if the Respond-
ent had any good-faith doubt as to whether the Union represented a majority, the
Union was prepared to submit to a cross-check of the authorization cards against the
payroll by an impartial mutually agreeable person; and that the Union awaited the
Respondent's reply.
Andre J. Gelpi testified that upon receipt of the telegram he immediately tele-
phoned to his attorney, John J. Chester, who said he would like to have the telegram
right away whereupon Gelpi sent it immediately to Chester's office. Gelpi continued
to testify that Chester telephoned to him and Gelpi asked, "Well, what does it look
like9 What is going to happen?" Gelpi testified that Chester replied. "Well, let's
just sit tight. There is one of two things will happen, either you will be paid a visit
by the Union representatives or they will petition for an election, so just sit back and
see what transpires." Andre testified further "and that is what we did."
The record does not contain any evidence that Gelpi ever expressed to the Union
any doubt he may have had concerning its claim to represent the majority. At no
time thereafter did the Respondent ever contact the Union or did the Union com-
municate further with the Respondent.
The Respondent on various dates on and after May 3 engaged in conduct consti-
tuting interference, restraint, and coercion violative of Section 8(a) (1), as heretofore
found, designed to dissipate the Union's majority.
An employer may refuse recognition to a union when motivated by a good-faith
doubt of that union's majority status. Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732,
741 (C.A D.C.), cert. denied 341 U S. 914; N.L R.B. v. Chicago Apparatus Company,
116 F. 2d 753, 758 (C.A. 7). The principle applied is the equitable one that an
employer who has a good-faith doubt of majority has a right to have the doubt
resolved and is "entitled to adequate proof" in a Board election that the union in
fact represents a majority. N.L R.B. v. Chicago Apparatus Company, supra, p. 758.
But since this exception to the mandatory duty prescribed by the statute is based upon
equitable principles, the employer is not permitted to avoid bargaining where, as
here, it engages in unfair labor practices which tend to dissipate the union's majority.
N.L.R.B. v. Federbush Company, Inc., 121 F. 2d 954, 956 (C A. 2). Such an
employer, having made "no attempt to learn the facts" and instead embarked on an
unlawful course of action designed to undermine the union must "take the chance
of what [the facts] might be." N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862, 869
(C.A. 2) cert. denied 304 U.S. 576 Such an employer cannot later be heard to say
it doubted the union's majority. N.L.R.B. v. Samuel J. Kobritz, d/b/a Star Beef
Company, 193 F. 2d 8, 14 (C.A. 1); N.L.R.B. v. Reed & Prince Manufacturing Com-
pany, 118 F. 2d 874, 886 (C.A. 1), cert. denied 313 U.S. 595; Scobell Chemical
Company, Inc. v. N.L.R.B., 267 F. 2d 922, 926 (C A. 2).
An employer's failure to respond to union offers to prove majority representation
is evidence that its doubt of majority is not based on good faith. N.L R B. v. Dahl-
strom Metallic Door Company, 112 F. 2d 756, 757 (C.A. 2); N L R B v Irving
Taitel et al, d/b/a 1. Taitel and Son, 261 F. 2d 1, 4 (C A 7), cert denied 359 U.S.
944; N.L.R.B. v. Barney's Supercenter, Inc., 296 F. 2d 91, 94 (C.A. 3); Scobell
Chemical Company v. N.L.R B., supra.
Accordingly, on the entire record, I find that the Respondent refused to recognize
the Union, not because it doubted its representative status, but because it was seeking
to forestall collective bargaining with the Union which represented a majority in an
appropriate unit in violation of its obligation under the Act. I therefore find that
the Respondent on and after May 15, 1963, refused to bargain in good faith with the
Union as the representative of its employees in an appropriate unit in violation of
Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth 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.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. I have found that on May 15, 1963,
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and at all times thereafter , the Union was the authorized and exclusive representative
of the Respondent 's employees in an appropriate unit for the purposes of collective
bargaining , and that on and after that date , the Respondent refused to bargain with
said representative in violation of the Act. Accordingly, I shall recommend that the
Respondent be ordered to bargain , upon request, with the Union as the authorized
and exclusive representative of its employees in the appropriate unit described herein,
and in the event an understanding is reached , embody such understanding in a signed
agreement.
In view of the nature of the unfair labor practices found to have been committed,
the commission of similar and other unfair labor practices reasonably may be antici-
pated. I shall therefore recommend that the Respondent be ordered to cease and
desist from in any manner infringing upon rights guaranteed to its employees by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. Amalgamated Clothing Workers of America , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act
3. All employees of Respondent at its Columbus , Ohio, plant , exclusive of confi-
dential employees , professional employees , office clerical employees, guards, manager
and assistant manager, and all supervisors as defined in the Act , constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times since May 15, 1963, and continuing to date, the Union has been
the exclusive collective -bargaining representative of all employees in said unit for the
,purposes of collective bargaining with the Respondent regarding rates of pay , wages,
hours of employment , and other terms and conditions of employment.
5. By refusing , on May 15, 1963, and at all times thereafter , to bargain collectively
with the Union , the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (5) and ( 1) of the Act.
6. By its interrogation , threats, and promises of benefits, thereby interfering with,
restraining , and coercing its employees in the exercise of their rights guaranteed by
Section 7 of the Act , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
8. The Respondent did not, on or about April 29, 1963, discharge Sonja Wade
in violation of Section 8 (a) (3) or ( 1) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case , and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , it is recommended that the Respondent , Swan Super
Cleaners, Inc., its officers , agents, successors , and assigns , shall
1. Cease and desist from-
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with Amalgamated Clothing Workers of
America, AFL-CIO, as the exclusive representative of all its employees in the fol-
lowing appropriate unit. All employees at Respondent 's Columbus , Ohio, laundry
plant , exclusive of confidential employees , professional employees , office clerical
employees , guards, manager and assistant managers , and all supervisors as defined
in the Act.
(b) Interrogating employees concerning their membership in the above-named
Union or any other labor organization in the manner constituting interference,
restraint , or coercion in violation of Section 8(a)(1) of the Act.
(c) Threatening employees with reprisals if the Union organizes the plant.
( d) Creating the impression of surveillance of union activities.
(e) In any other manner interfering with, restraining , or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act
(a) Upon reequest , bargain collectively with the above -named Union as the exclu-
sive representative of all the employees in the unit found to be appropriate and
embody in a signed agreement any understanding reached.
SWAN SUPER CLEANERS, INC. 183
(b) Post in conspicuous places at its place of business in Columbus , Ohio, includ-
ing all places where notices to employees customarily are posted , copies of the
attached notice marked "Appendix ." s Copes of said notice , to be furnished by the
Regional Director for Region 9, shall, after being duly signed by the Respondent's
representative , be posted by it immediately upon receipt thereof and maintained by
it for a period of 60 consecutive days thereafter . Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify said Regional Director , in writing , within 20 days from the receipt of
this Decision , what steps the Respondent has taken to comply herewith.'°
0In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "a
Decision and Order."
101n the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read * "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify you that:
WE WILL, upon request, bargain collectively with Amalgamated Clothing
Workers of America, AFL-CIO, as the exclusive representative of all employees
in the bargaining unit descriped below, with respect to rates of pay, wages, and
other conditions of employment , and if an understanding is reached, embody
such understanding in a signed agreement . The bargaining unit is:
All employees at the laundry plant exclusive of confidential employees,
office clerical employees , guards, manager and assistant managers, and all
supervisors as defined in the Act.
WE WILL NOT interrogate our employees concerning their membership in or
activities on behalf of the Union or any other labor organization in a manner
constituting interference , restraint, or coercion in violation of Section 8(a) (1)
of the Act.
WE WILL NOT threaten our employees with reprisals in the event the Union
enters into a collective -bargaining agreement with us.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in union or other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion or to refrain from any or all such activities.
All of our employees are free to become, remain , or refrain from becoming or
remaining members of any labor organization.
SWAN SUPER CLEANERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200, if they have any question concerning this notice or compliance with its
provisions.