The American-Linen Service Co.

National Labor Relations Board - Board DecisionsApr 18, 1942

40 N.L.R.B. 729 (N.L.R.B. 1942)

In the Matter Of JOSEPH L. FRADK IN AND BEN SINGER, A PARTNERSHIP, TRADING AS THE AMERICAN-LINEN SERVICE CO. AND THE AMERICAN LAUNDRIES, INC. (A SUBSIDIARY AND AFFILIATE OF THE AMERICAN LINEN SERVICE Co.) and CLEANERS AND LAUNDRY WORKERS UNION, LOCAL 188 B; A. C. W. A. (C. I. 0.) Case No. R-.015 SUPPLEMENTAL DECISION AND DIRECTION Api it 18,1942 On October 31, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above entitled proceeding! Pursuant to the Direction of Election, an election by secret ballot was conducted on November 21, 1941, under the direction and supervision of the Regional Director for the Fifth Region (Baltimore, Maryland). On January 5, 1942, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties an Election Report. As to the balloting and its results, the Regional Director reported as follows : Total on eligibility list-------------------------------------- 69 Ballots cast------------------------------------------------ 58 Votes cast for Cleaners and Laundry Workers Union, Local 188 B, A C W. A. (C. I 0 )------------------------------ 27 Votes cast against Cleaners and Laundry Workers Union, Local 188 B, A. C. W. A. (C. I. 0.) ------------------------------ 25 Challenged ballots------------------------------------------ 6 In his Election. Report the, Regional Director recommended., that the challenges to the ballots of Ralph Rose, Jack Chernikoff, and Harry Scaggs' by Cleaners and Laundry Workers Union, Local 188 B , A. C. W. A. (C. I. 0.), herein called the Union, should be sustained, and the challenged ballots should not be counted ; and that 1 36 N. L R B 565 40 N L R. B, No 123. 729 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the challenge to the ballot of Virginia Higgins by the Union should be overruled , and the challenged ballot should be counted. He further recommended that as to the challenge to the ballot of Julia Baull by Joseph L. Fradkin and Ben Singer, a partnership , trading as the American Linen Service Co . and the American Laundries , Inc. (a subsidiary and affiliate of the American Linen Service. Co .), herein jointly called the Companies, testimony be taken before a Trial Examiner ; and that the challenge to the ballot of Alice Clark by the Companies should be overruled , and the challenged ballot should be counted. , , On January 12, 1942, the Companies filed Objections to the Election Report. In the Objections , the Companies withdrew their challenge to the ballot of Alice Clark, and', moved that the Board not issue a certification of representatives , for the reason that the Union only polled 27 votes out of a total eligibility of 69. On February 4, 1942, the Regional Director issued a Report on Objections , in which he found the Companies ' contentions to be without merit. The Union filed no Objections to the Regional Director 's recommendation as to Virginia Higgins. By Order dated February 13, 1942, the Board acting pursuant to Article III, Section 9, of said Rules and Regulations , having found that the Objections, raised substantial and material issues with respect to the conduct of the ballot , ordered that a hearing be held on the Objections , for the purpose of taking testimony with respect to Julia Baull , Jack Chernikoff , Ralph Rose , and Harry Scaggs, the four persons the validity of whose ballots remain in issue, and directed the Regional Director to issue a notice of hearing. On February 23, 1942, the Regional Director issued a notice of hearing , copies of which were duly served upon the Companies and the Union. Pursuant to notice , a hearing was held on March 6, 1942, at Wash- ington , D. C., before William P. Webb, the Trial Examiner duly des- ignated by the Chief Trial Examiner . The Board, the Companies, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard , to examine and cross -examine witnesses , and to introduce evidence bearing on the issues was afforded all parties . At the commencement of the hearing , counsel for the Companies renewed the motion made in the Objections , that the Board not issue a certification of representatives since the Union only polled 27 votes out of a total eligibility of 69. The Trial Examiner denied the motion. The ruling is hereby affirmed. During the course of the hearing, the Trial Examiner made other rulings on motions and ob- jections to the admission of evidence . The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. - a _ =THE- AMERICAN LINEN -SERVICE CO.- TM ` 731 Upon the record so made, the Election Report, the Objections. the Report on Objections, and the record previously made, the Board, acting' pursuant to Article III, Sections 8 and 9, of said Rules and Regulations, hereby makes the following: SUPPLEMENTAL FINDINGS OF FACT Eligibility of Baull, Rose, Chernikotf, and Scaggs 1. Julia Baull The Companies challenge the ballot of Julia Baull on the ground that she voluntarily quit and, up to the time of filing the Objections, had not applied for reemployment. Baull was employed by the Companies in May 1941 as a uniform folder. She worked until October 3, 1941, when she became ill at work and went home. She underwent a surgical operation during' the following week. On October 8, 1941, Baull sent Frances Butler, her niece, to John L. Crummett, her supervisor, for her pay. She gave her niece a -letter addressed to Crummett, in which she stated that she was very sick and that it would be a couple of weeks before she could return, but that she hoped that when she was better he would still have a place open for her. Butler testified that when she delivered the note and told Crummett that Baull was very ill, Crum- mett said, "I am sorry Julia is sick. Tell her if I can I will come to see her this evening, and if I don't you tell her whenever she can report back, her job is open." Butler testified further that she relayed this message to Julia. Miss Willie Porter, an employee in Baull's department, testified, without contradiction, that when she requested permission of Crummett to wear Baull's uniform, he acqui- esced, but instructed her not to remove Baull's name from the uniform, because he expected her to return.' ' Marian Conrad Cole, another employee in Baull's department, testified, without contradic- tion, that she complained to Crummett concerning the work of the employee who was substituting for Baull, and that Crummett said, "Make out the best you can that way until Julia returns." Cole further testified that although there are no set rules, employees Â«-ho have been out a length of time have been returned to their former jobs. Crummett testified that he has been employed by the Companies only since August- 1941 and does not know the Companies' previous practice in this regard; that if a girl is out 2 or 3 days- he keeps her job open, but if she is away 2 or 3 weeks he fills her job and she has to wait her time. He denied the testimony of Butler concerning their conversation when Butler delivered Baull's note, stating that he 732 DECISIONS- OF' NATIONAI LABOR RELATIONS BOARD told Butler that when Baull recovered she should come and,see him, but that he could-not guarantee anybody a job. On the entire record, in- cluding the uncontradicted testimony of Porter and Cole, we believe Butler. Baull left the hospital on November 19, 1941, but was not dis- charged from the care of her physician until December 15, 1941, at which time her physician stated in a letter (which was introduced in evidence) that she was not ready for work but needed another 3 weeks for -recuperation. , On January 20,4942,, she, applied for, her job, and Crummett informed her that he had put somebody in her place; that there was no vacancy; and that if occasion to hire her arose he would let her know. Baull testified that the Companies never informed her that she would not be reemployed; that she had not quit or been discharged, and that she desired her job. We are of the opinion, and find, that- at the time of the election of November 21, 1941, Baull had not quit her employment with the Companies, but that she was on that date an employee in the appropriate unit who had not worked during the pay-roll period immediately preceding the Board's Direction of Election-because she was ill. Accordingly, Baull was entitled to vote. We shall direct that her ballot be counted; 2: Ralph Rose The Union challenged -Rose's _ballot,,on the,.-ground that he is a supervisory employee and, as such, is excluded from the unit found by the Board to be appropriate. Rose has been employed as a washman in'the washing and drying department of the Companies for approximately 6 years. He is the only washman and is the highest paid employee in that department. Joseph L. Fradkin, one of the partners of the Companies, testified that lie (Fradkin) is in charge of the department; that while lie is out no one is in charge; that although he has given Rose authority to hire on occasions when an employee does not report, that authority is sub- ject to Fradkin's approval and that Fradkin sets the compensation of employees. Amos Brown, an employee in the department, testified, however, that Rose, not Fradkin, gives him and his fellow-worker their orders, -and that Fradkin is in and- out while Rose is in the department all day. He also testified, and this is not disputed, that Rose hired him, told him what his salary would be, and that he worked at that salary for several weeks. Robert,L. Settles, who worked for the Companies from January to October 1941 as an extractor in the washroom, testified that Rose discharged him and that when he reported to Fradkin, Fradkin told him to straighten the matter out with Rose. As to this incident, Fradkin testified that he had instructed Rose not to let Settles-go to THE AMERICAN LINEN SERVICE GO. 733 work but to tell Settles to report to him, and that when Settles re- ported to Fradkin and asked'why lie was being discharged, Fradkin informed him that he was undependable. Rose testified that he coin- plained to Fradkin concerning Settles and informed Fradkin that he would not work with Settles, whereupon Fradkin told Rose not to allow Settles to 'go to work when he reported but to refer him to Fradkin, and that he did so. Rose admitted, however, that in his opinion Settles was discharged because of Rose's complaint. We find that the record sustains the Union's contention that Rose has super- visory 'powers and was excluded from the" appropriate unit by our Decision and Direction of Election. We shall sustain the recom- mendation of the Regional Director in regard to the ballot of Rose, and shall direct, that his ballot not be counted. 3. Jack Chernikoff The Union challenged Chernikoff's ballot on the ground that lie is not in the appropriate unit. Chernikoff's pi imary duty is soliciting. Occasionally he makes a collection or looks after a complaint. Chernikoff frequently makes special deliveries, but only when they are in the vicinity of the pro- spective customers' he will visit that day. He signs the agreements entered into with customers, "American Linen Service, per Jack Cherpikoff." Th record does not sustain the Companies' contention that he performs the same service as truck drivers who are included within the appropriate unit. Truck drivers' salaries range from $27.50 per week to $50 per week. Chernikoff's salary is $60 per week, and the Companies classify him as a salesman (Bd. Exh. 3). We find that he is not in the appropriate unit. We shall sustain the Regional Director's recommendation in regard to Chernikoff's ballot, and shall direct that his ballot not be counted. 4. Harry Scaggs The Union challenged Scaggs' ballot-on the ground that he is a supervisory employee, and, as such, is, excluded from the unit. It contends that Scaggs spends a substantial portion of his time in instructing 'other employees in their work, that his salary is sub- stantially more than is paid any of the regular route drivers, and that he is therefore in a supervisory capacity. Scaggs is a "swing driver" whose duties are to report in the morning as do other drivers and to fill in, on any route of a driver who does not report. If all drivers report, Scaggs helps to run "specials" or works in the stockroom. Approximately 60 percent 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his time is spent in filling-in, and the remainder of his time in running "specials" and working in the stockroom, where he helps to make up orders that come from the office and have to be filled. Most of the drivers instruct new drivers. Scaggs testified that he does not normally instruct new drivers, but that if a new man was to have reported to a driver who is out and whose route Scaggs takes over, the new driver will go along with Scaggs. The salary range of the Companies' drivers as of October 25, 1941, is as follows,:, Name Capacity Length of service Age .Salary H Scaggs ------------------ ----- Driver ---------------------------- 6,4 years --------- 26 $50 00 T Callow ----- do---------------------------- 2 years ------------ 26 44 00 W. Jones------------- P. Falk ------------------------- ----- do------------------------- -----do---------------------------- 5 months---------- 8 years--- --------- 29 43 32 50 43 00 Camp Bowen -------------------- -----do--------------------------- 5 years --- --------- 28 40 00 W Nuckols--------------------- -----do---------------------------- 10 months--------- 26 35 00 R Metz - --------------------- Driver apprentice ----------------- 3 months --------- 20 29 50 Wm Powell--------------------- -----do--------------------------- 7 months-- -------- 1 year- -_ -------- 20 30 00 S. Kline- ------------------------- Driver -------------------------- 3 months---------- 27 27 50 Scaggs is one of the oldest employees, and the one most familiar with all the routes. We find that Scaggs is an employee without supervisory status and is included within the appropriate unit. We shall overrule the recommendation of the Regional Director in regard, to Scaggs,. and shall.,direct that his ballot be counted. ' Inasmuch as the Union has filed no objection to the Regional Director's recommendation that its challenge of Virginia Higgins'. ballot be overruled, and inasmuch as the Companies have withdrawn their challenge to Alice Clark's ballot, we shall direct that 'those ballots, too, be counted. DIRECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Ru'l'es' and Regulations- Series 2, as amended, it is hereby DIRECTED that, as a part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Joseph L. Fradkin and Ben Singer, a partnership, trading as the American Linen Service Co. and the American Laun- dries, Inc. (a subsidiary and affiliate of the American Linen Service. Co.), Washington, D. C., the Regional Director for the Fifth Region- (Baltimore, Maryland) shall, pursuant to the Rules and Regulations THE AMERICAN LINEN SERVICE Co. 735 of the Board, set forth above, and subject to Article III, Section 9, of said Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Julia Baull, Harry Scaggs, Alice Clark, and Virginia Higgins and shall, thereafter, prepare and cause to be served upon the parties in this case a Sup- plemental Election Report, embodying his findings therein and his recommendations as to the results of the secret ballot. ,