Crystal Laundry and Dry Cleaning Co.

National Labor Relations Board - Board Decisions

Jul 19, 1961

132 N.L.R.B. 222 (N.L.R.B. 1961)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Respondent Corporation is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 618 is a labor organization within the meaning of Section 2(5) of the
Act.
3. By its conduct described above in section III , the Respondent Corporation has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1), (2 ), and (3 ) of the Act.
4. By its conduct described above in section III, Local 618 has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(b)(1) (A) and
(2) of the Act.
[Recommendations omitted from publication.]
Crystal Laundry and Dry Cleaning Company and Sales Drivers,
Sales & Service Local 176, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 9-CA-2161. July 19, 1961
DECISION AND ORDER
On December 14, 1960, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and Respondent filed
exceptions to the Intermediate Report, and the Respondent also filed
a supporting brief.
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 In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, but only to the extent consistent
with our Decision herein.
'The Respondent excepted to the Trial Examiner's finding that Respondent was en-
gaged in commerce within the meaning of the Act. We find no merit In this exception
The record discloses that Respondent , which operates a retail laundering and dry cleaning
enterprise in Dayton , Ohio , made gross sales In excess of $600 ,000 for the 12-month
period preceding the hearing , and had an indirect Inflow from points outside the State of
Ohio during the same period in excess of $18,000 . Accordingly, we find that the Respond-
ent is engaged In commerce and that it will effectuate the policies of the Act to assert
jurisdiction over it. See Carolina Supplies and Cement Co , 122 NLRB 88.
The General Counsel also excepted to the Trial Examiner's failure to find that Re-
spondent violated Section 8(a)(1) of the Act by Respondent President Schryver's state-
ment to employees that "lie would close the place down and rent the place out for stor-
age" before he would allow the Union to represent his employees Even assuming, as
did the 'Trial Examiner , that Schryver made this remark , we concur in the Trial
132 NLRB No. 19.
CRYSTAL LAUNDRY AND DRY CLEANING COMPANY 223
The complaint alleged that the Respondent violated Section
8 (a) (1) of the Act by engaging in a series of secret polls of its em-
ployees to determine their sentiments concerning the Union. The
Trial Examiner dismissed this allegation on the ground that the poll-
ing did not occur in a context of threats of reprisal or promise of
benefit for engaging in or refraining from engaging in union activi-
ties. We do not agree with the Trial Examiner's disposition of this
issue.
The Union commenced its organizational campaign among Re-
spondent's employees in May 1960. Upon learning of this organiza-
tional drive, Respondent expressed its opposition to the Union and
conducted a series of four secret polls with ballots reading as follows:
What do you Think TODAY
I have signed a union card .. I'm in favor of it____________ q
I have signed a union card . . but wish I hadn't----------- q
I haven't signed a card .. but I might be interested-------- q
I haven't signed a card .. and don't want to sign one_______ q
The first poll was taken on June 27, 1960. The results were unani-
mously against the Union. As these results did not jibe with the
rumors Respondent had heard about its men joining the Union, Re-
spondent took a second poll on June 29. The results of the second
poll remained the same as the first.
Shortly after the second poll, union representatives for the first
time called upon the Respondent and claimed recognition as ma-
jority representative. Respondent denied recognition on the basis
of the results of the previous polls. However, this union visit
prompted the Respondent to take a third poll on July 23. Before
taking this poll, which Respondent explained to its drivers that "of
course, there might be a very good answer to [the difference between
the claim of the Union and the showing made by the balloting],
maybe some of the fellows had changed their minds since we had
taken the last ballot, let's take another one, let's see what the facts
are today." When this ballot failed to reveal any substantial senti-
ment for the Union, Respondent called this to the attention of its
employees, stating "somebody is lying, now you fellows I know, I
work with every day, I surely don't think you are lying, on the other
hand, these [union representatives] came in with a straight face
yesterday and said that they had over 50 percent of our fellows
signed up. If the ballot the day before yesterday was, and some of
you were mistaken, let's be honest with ourselves, it's a secret ballot."
On July 25, the fourth ballot was taken and again indicated a lack of
sentiment for the Union.
Examiner's view that the remark lost its coercive effect in light of Schryver' s subsequent,
repeated statements that he would keep the plant operating so long as he was physically
and financially able to do so.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 11, the Union filed a representation petition, and a
Direction of Election was issued on October 31. The Union won the
election and was duly certified on December 8.
The Board has held that an employer may lawfully poll his em-
ployees concerning their desires as to representation, provided that
the evidence clearly establishes that the purpose of the poll is to as-
certain whether a union demanding recognition actually represents
a majority of employees so as to permit the employer to recognize the
union.' In addition, the poll must be conducted against a background
free of hostility toward unions.' Such freedom from hostility is not
restricted to the absence of employer unfair labor practices.4
In the instant case, the timing of the polls and their number, as
well as the content of the ballots, convince us that the Respondent
conducted the polls without any genuine purpose of ascertaining
whether the Union represented a majority in order to determine
whether to accord it exclusive recognition. The polls taken on June
27 and 29 were conducted prior to any demand by the Union for
recognition and in the face of Respondent's expressed opposition to
the Union. Having denied the Union's request for recognition on
the basis of these two polls, the Respondent nevertheless persisted in
taking additional polls for the asserted purpose of ascertaining
whether "the fellows had changed their minds" about the Union.
We note too that Respondent had expressed its hostility to union or-
ganization and failed at any time to state that union adherence would
not subject union employees to reprisals. Moreover, the inquiries
which appeared on the ballots sought to elicit information as to
whether the employees "might be interested" in the Union or whether
the employees wished they had or had not signed union cards. Such
inquiries do not reflect a sincere effort to determine the majority or
minority status of the Union. Rather it is apparent from all the
circumstances that the polls were intended to and did constitute an
attempt to coerce the employees in the exercise of their right to join
a labor organization 5 The fact that the Union subsequently won the
election among Respondent's employees does not validate Respond-
ent's earlier conduct.'
On the basis of the foregoing and the entire record, we conclude
that Respondent's polling in the circumstances of this case interfered
with its employees' rights guaranteed under Section 7 of the Act and
thereby violated Section 8 (a) (1). Accordingly, we find merit in the
General Counsel's exception to the Trial Examiner's failure to find
' See Murray Envelope Corporation of Mississippi, 130 NLRB 1574; Burke Golf
Equipment Corporation , 127 NLRB 241
8 See Blue Flash Express , Inc, 109 NLRB 591, 592-593.
4 Ib¢d
6 See Murray Envelope Corporation of Mississippi , supra, footnote 2
0 Id
CRYSTAL LAUNDRY AND DRY CLEANING COMPANY 225
that Respondent 's polling was violative of the Act, and we reverse the
Trial Examiner in this regard.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action which the Board finds necessary to
effectuate the policies of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the Act, as amended, the National Labor Relations Board hereby
orders that Respondent, Crystal Laundry and Dry Cleaning Com-
pany, Dayton, Ohio, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Polling its employees to determine their union sympathies and
desires in a manner constituting interference, restraint, and coercion
within the meaning of Section 8 (a) (1) of the Act.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,
to form labor organizations, or to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as modified by the Labor,-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Dayton, Ohio, copies of the notice attached
hereto marked "Appendix." I Copies of the notice, to be furnished
by the Regional Director for the Ninth Region, shall, after being
signed by a duly authorized representative of the Respondent, be
posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Rea-
sonable steps,,shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by other materials.
(b) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT conduct polls of our employees for the purpose
of ascertaining their union sympathies or desires in a manner
constituting interference, restraint, and coercion within the mean-
ing of Section 8 (a) (1) of the Act.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in their right to self-organiza-
tion, to form labor organizations, or to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized by Section 8 (a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the National Labor Relations Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
CRYSTAL LAUNDRY AND DRY
CLEANING COMPANY,
Employer.
Dated---- ------------ By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly designated
Trial Examiner in Dayton , Ohio, on November 1, 1960. The issues litigated were
whether Crystal Laundry and Dry Cleaning Company, herein called Respondent, is
engaged in commerce or in a business affecting commerce and subject to the juris-
diction of this Board and whether Respondent violated Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended, herein called the Act, by interrogating its
employees as to their union affiliations and by threatening employees with economic
reprisal for their union activities . After the close of the hearing, counsel for'Re-
spondent filed with the Trial Examiner a brief which has been considered in pre-
paring this report.
Upon the entire record and observations of witnesses , the Trial Examiner makes
the following:
CRYSTAL LAUNDRY AND DRY CLEANING COMPANY
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
227
Respondent, an Ohio corporation, is engaged in the business of retail laundering
and dry cleaning in Dayton, Ohio. In the 12 months preceding the hearing, Re-
spondent had gross sales in excess of $600,000. In the same period, Respondent had
an indirect inflow of supplies from outside the State of Ohio valued in excess of
$18,000.
In view of the foregoing, the Trial Examiner finds and concludes that Respondent
is engaged in commerce within the meaning of the Act and that the Board's require-
ments for the assertion of jurisdiction have been satisfied. See Crystal Laundry &
Dry Cleaning Company, Case No. 9-RC-4179 (not published in NLRB volumes).
II. THE LABOR ORGANIZATION INVOLVED
Sales Drivers, Sales & Service Local 176, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent has been in existence, in various legal forms, in Dayton, Ohio, since
1895. The employees involved in this case are the sales drivers of Respondent.
There are normally 22 of these drivers or salesmen, and these are grouped into 4
flights. These flights gather for sales meetings each morning prior to leaving on their
route for the day. The sales meeting for the first flight (consisting of seven sales
drivers) starts at 7:30 a.m. and the following flights meet at half-hour intervals
thereafter. The events involved herein took place at these sales meetings.
Commencing sometime in May 1960, the Union made an organizational effort
among Respondent's sales drivers. Upon learning of this, Martin W. Schryver, Re-
spondent's president, commenced discussing the matter at the morning sales meetings.
Schryver outlined Respondent's history and its prior experience with the Union in-
volved herein and indicated that Respondent had experienced considerable diffi-
culties with the Union, including a disruption of its business and violence. Also, at
these meetings Schryver read portions of The Reader's Digest condensation of
Robert F. Kennedy's book entitled "The Enemy Within," relating to the International
Union with which the Union involved herein is affiliated (see March 1960 issue of
The Reader's'Digest). Schryver's remarks were in effect and substance an urging of
Respondent's employees not to become affiliated with the Union. Although the
matter is not free from doubt, the Trial Examiner believes and finds that the remarks
were not violative of the Act (on their face they were not coercive and the doubt
arises because of the setting in which the remarks were made).
According to the testimony of General Counsel's witnesses (Jesse Murphy, Paul
Woods, and Albert Austin), in the early part of June or July 1960, President
Schryver at one meeting of the first flight, stated, "Before he would allow a union to
come in there he would close the place down and rent the place out for storage" or
words to that effect There is a conflict of testimony concerning these remarks by,
Schryver but the Trial Examiner believes a resolution of this conflict not necessary
herein. For the purpose of deciding this case the Trial Examiner will assume,
arguendo, that the versions given by the General Counsel's witnesses accurately re-
flect what was said It is quite clear from the record that at most only one such
statement was made and that thereafter Schryver repeatedly stated that he was
"going to keep the plant operating as long as he was physically able"-as long as his
health and financial position permitted, and in spite of any adverse conditions that
might be created by active unionism. In the opinion of the Trial Examiner,
Schryver's later statements were adequate to relieve Respondent from responsibility
for the earlier remarks, assuming the earlier remarks were as indicated above and
clearly coercive.
On four occasions, June 27 and 29 and July 23 and 25, 1960, Respondent's presi-
dent (Schryver) took a secret ballot of his sales drivers. The ballot read as follows:
What Do You Think TODAY
I have signed a union card . . . I'm in favor of it ______________________ q
I have signed a union card . . but wish I hadn 't______________________ q
I haven 't signed a card . . . but I might be interested ____________________ q
I haven't signed a card . . . and don't want to sign one _________________ q
614913-62-vol. 132-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first ballot was taken shortly after Respondent learned, via rumors and union
"cards laying around the plant," of the Union 's efforts to organize and was taken
because Respondent was "interested in what the group thought." The ballots cast
on this occasion indicated that none of the employees had signed a union card
which did not jibe with the rumors and the second ballot was then taken because
of this situation. In each instance the foregoing reasons for the balloting were
given by Respondent to the employees prior to their voting. The third ballot was
taken shortly after union representatives had called upon Respondent and made a
claim to represent a substantial number, if indeed not a majority, of Respondent's
employees and because Respondent doubted this claim, in the light of the previous
ballots. This explanation was given to the employees prior of their balloting • and
Respondent added that "of course, there might be a very good answer to [the differ-
ence between the claim of the Union and the showing made by the balloting], maybe
some of the fellows had changed their minds since we had taken the last ballot,
let's take another one, let's see what the facts are today." This ballot did not reveal
any substantial sentiment in favor of the Union and Respondent called this matter
to the attention of its employees and remarked that "somebody is lying. Now you
fellows I know, I work with every day, I surely don't think you are lying, on the
other hand, these [representatives of the Union] came in with a straight face yes-
terday and said that they had over 50 percent of our fellows signed up. If the
ballot the day before yesterday was, and some of you were mistaken, let's be honest
with ourselves, it's a secret ballot." The fourth balloting followed these remarks
and again indicated a lack of sentiment for the Union.
At one of the sales meetings of flight 1, Respondent's President (Schryver), after
getting from the employees some of the advantages and disadvantages of employees
belonging to a union, listed such matters on a blackboard. When Schryver reached
employee Jesse Murphy and asked him some of the advantages of a union, Murphy
or Schryver (probably Murphy) injected into the discussion Murphy's personal
activity on behalf of the Union. In any event, there is nothing in the record indi-
cating that Respondent said or engaged in any specific conduct on this occasion to
restrain or coerce employees active on behalf of the Union.
Conclusions
As indicated above, of the several incidents 1 involved in this case only one-the
threat to close the plant-was on its face a violation of the Act and Respondent's
subsequent conduct effectively repudiated this threat. However, a question remains
as to whether these incidents taken together reveal a mosaic or pattern of inter-
ference with, restraint, or coercion of employees in the exercise of their rights
guaranteed in Section 7 of the Act. The answer to this problem involves a balancing
of Respondent's right to express .its views, arguments, or opinions and the employee's
right to engage in the activities guaranteed in Section 7 without employer inter-
ference, restraint, or coercion. The Trial Examiner has little doubt that Respond-
ent's conduct amounted to a constant reminder that Respondent was opposed to
organization of its employees and consequently might interfere with employees in
the exercise of their rights by swaying them toward Respondent's position. How-
ever, such interference, in the absence of a context of hostility or coercive flavor
(such as evidence indicating that Respondent was putting its employees on notice
that Respondent was a potent organization whose opposition was to be avoided) 2
or threats of reprisal or force or promise of benefit, does not appear to be violative
of the Act. See Section 8(c) of the Act and N.L.R.B. v. Roberts Brothers, 225 F.
2d 58, 60 (C.A. 9).
In the light of the findings and conclusions made in this report it is readily
apparent that in the opinion of the Trial Examiner the allegations of the complaint
to the effect that Respondent violated Section 8(a) (1) of the Act should be dismissed.
Ultimate Findings and Conclusions
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board's requirements for
the assertion of jurisdiction herein.
i The threat to close the plant, the statements that Respondent would operate the
plant despite its opposition to union activities as long as health and finances permitted,
the recalling of prior experiences with the Union, the reading of The Reader's Digest
article, and the secret ballots
2As noted above, Respondent at first indicated this but later (and repeatedly) indi-
cated the contrary-that despite its opposition to the Union's activities it was going to
keep its plant operating as long as health and finances permitted.
BILINSKI SAUSAGE MANUFACTURING COMPANY, INC. 229
2. Sales Drivers, Sales & Service Local 176, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America , is a labor organization
within the meaning of the Act.
3. The evidence adduced does not establish that Respondent violated Section
8(a)(1) of the Act in the manner specified in the complaint ( as amended at the
hearing).
[Recommendations omitted from publication.]
Bilinski Sausage Manufacturing Company, Inc. and Amalgam-
ated Meat Cutters, Butcher Workmen and Affiliated Crafts
of North America , District Union Local No. 1, AFL-CIO and
Local 294, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America and Independ-
ent Employees Association of the Bilinski Sausage Mfg. Co.,
Inc., Party in Interest . Cases Nos. 3-CA-1443 (formerly 2-CA-
6797) and 3-CA-1444 (formerly 2-CA-6800). July 19, 1961
DECISION AND ORDER
On November 28, 1960, Trial Examiner W. Gerard Ryan issued his
Intermediate Report 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 Intermediate
Report attached hereto. He further found that the Respondent had
not engaged in any unfair labor practice within the meaning of Sec-
tion 8(a) (2) of the Act, as alleged in the complaint, and recom-
mended dismissal of the allegation pertaining thereto.' Thereafter,
the General Counsel and the Respondent filed exceptions to the In-
termediate Report and briefs in support thereof.'
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 [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations, except as modified herein.
'As no exception was taken to the Trial Examiner 's finding that the Respondent did
not violate Section 8 ( a)(2), we adopt such finding pro forma Accordingly , we shall
,dismiss the 8(a) (2) allegation of the complaint.
2 As the complaint did not allege that a strike , commencing on February 15, 1960, was
an unfair labor practice strike, and as such issue was not litigated , we make no findings
.on the General Counsel's exceptions based on the Trial Examiner ' s failure to find that
the strike was an unfair labor practice strike and on the Trial Examiner 's failure to
recommend relief for the strikers
132 NLRB No. 18.