Family Laundry & Dry Cleaning, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1964

147 N.L.R.B. 251 (N.L.R.B. 1964)

FAMILY LAUNDRY & DRY CLEANING, INC. 251.
there is no agreement covering the Employer's employee's sufficient to.
constitute a bar.7
4. The Petitioners seek to represent iii separate units the Employer's
snackbar employees working in the West Jefferson Boulevard, Canoga
Park, and Pacoima stores. White Front and Local 770 contend that
only storewide units are appropriate. The Employer takes no posi-
tion with respect to the composition of the units.
The record does not show that the Employer has any other em-
ployees working in these stores. As the snackbar units sought by the
Petitioners comprise all of the Employer's employees working at the
White Front stores involved in these proceedings, we find that they
constitute separate appropriate units.
We find that the following employees constitute separate units ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
(1) All snackbar waiters and waitresses, cooks, and dishwashers
employed at the Employer's facilities at 5433 West Jefferson Boule-
vard, Los Angeles, California, excluding all other employees, guards,
and supervisors as defined in the Act.
(2) All snackbar waiters and waitresses, cooks, and dishwashers
employed at the Employer's facilities at 213 Roscoe Boulevard,
Canoga Park, California, excluding all other employees, guards, and
supervisors as defined in the Act.
(3) All snackbar waiters and waitresses, cooks, and dishwashers
employed at the Employer's facilities at 9727 Laurel Canyon, Pacoima,
California, excluding all other employees, guards, and supervisors as
defined in the Act.
[Text of Direction of Elections omitted from publication.]
7 We note that , although the Employer executed the same type of license agreement with
White Front for its facilities at the San Bernardino store, the Employer executed a
collective-bargaining contract with a labor organization other than that representing the
White Front employees . Cf. Bargain City, U.S.A., Inc ., 131 NLRB 803 . Inasmuch as we
hold that the contract is not a bar , we find it unnecessary to consider other contentions
made by the Petitioners in connection with the contract -bar issue.
Family Laundry & Dry Cleaning, Inc. and Laundry & Dry
Cleaning International Union , AFL-CIO. Cases Nos. 5-CA-
2652 and 5-RC-4324. June 3, 1964
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On February 28, 1964, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respondent
147 NLRB No. 30.
252, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 un-
-fair labor practices alleged in the complaint, and recommended that
such allegation be dismissed, He found further that the Respondent
had interfered with an election held on September 10, 1963, and recom-
mended that it be set aside. Thereafter, the General Counsel and the
Union filed exceptions to the Trial Examiner's Decision and support-
ing briefs, and the Respondent filed an opposition to exceptions filed
by General Counsel and Petitioner and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this proceeding 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 Trial
Examiner's Decision, the exceptions, the Respondent's opposition, the
briefs, and the entire record in these cases, and hereby adopts the
Trial Examiner's findings, conclusions, and recommendations with the
following exceptions and additions.'
1. We find, in agreement with the Trial Examiner, that the Respond-
ent interfered with, restrained, and -coerced its employees in violation
of Section 8(a) (1) of the Act, and further interfered with a Board-
conducted election. There were no exceptions to these findings. The
General Counsel and the Union have excepted to the Trial Examiner's
recommended dismissal of the allegations that two employees, Esther
Gist and Owen Abrams, were discriminatorily,discharged in violation
of Section 8(a) (3) of the Act. We find merit in these exceptions.
2. As found by the Trial Examiner or shown by undisputed testi-
mony, the Respondent, soon after the Union began organizing in July
1963, embarked on a campaign to thwart any attempt by its employees
to organize. Lee, the Respondent's president, called a meeting of em-
ployees early in August, during which he stated that he did not want
the Union, that he knew who joined the Union, and that before he
would let the Union in he would run the business with his family.
1 The Charging Party's request for oral argument is hereby denied as the record in this
proceeding, including the exceptions, the Respondent 's opposition , and the briefs, ade-
quately presents the issues and positions of the parties. The Respondent's motion, denied
by the Trial Examiner at the hearing and renewed in the Respondent's brief, "to strike
the testimony regarding the union activity of Esther Gist and Owen Abrams because of
their failure and refusal . . . to disclose the names of the employees they . . . passed
union cards to or signed up in the union ,',' and its motion, made for the first time in its;
brief, to strike the testimony regarding "Section S(a) (1) activity which took place prior
to ... the date of the Consent Election Agreement ," are denied as lacking in merit.
FAMILY LAUNDRY & DRY CLEANING , INC. ' '25-3
On several occasions, Lee called groups of employees into his office,
made similar threats , and asked the employees how they felt about the
Union. He also promised various employees that if the Union were
defeated he would give the employees additional pay, vacations, and
holidays . During two union meetings held at Abrams ' home, which
was located across the street from the plant , Lee stood where he could
observe those attending , and later interrogated employees about who
attended the meetings, and commented that he knew who attended
because he saw them going to the meetings . In addition , Wong, the
Respondent 's manager, promised employees more pay and longer vaca-
tions if the Union were defeated, and threatened a group of drivers
that the Respondent would eliminate delivery work if the Union came
in. This conduct continued until the election held on September 10.
Lee had told employees he would get rid of the "union ring leaders,"
specifically naming Gist. Both Gist and Abrams were discharged
prior to the election.
3. Esther Gist , who had been employed by the Respondent for almost
6 years , was discharged on September 9, the day before the election.
Gist had been active in the union campaign and attended a number of
meetings , including the two held at the Abrams ' home across the street
from the plant , which Lee observed? In addition , she solicited em-
ployees to sign union cards. Both Wong and Lee questioned her sev-
eral times about her union activities and, as the Trial Examiner
found, Lee told employee Murphy that he knew who the "union ring
leaders" were , named Gist as one, and said that he "was going to get
them out of there." The record shows that he made similar remarks
to two other employees.
Gist, as the Respondent knew, was pregnant and had a small child.
Prior to going on her vacation , scheduled for the last week in August,
she notified Wong that she had a medical appointment on the Tuesday
after Labor Day and would be unable to report that day. . She testified
that her son . was circumcised during her vacation , that she had to take
him back to the hospital on the Wednesday of Labor Day week for a
checkup , and that, as she had missed 2 days of work during the holi-
day week and would , under the Respondent 's practice , have lost her
holiday pay, she decided not to return for the remainder of the week.
She also testified that on Tuesday night she asked employee Whitney
to tell Wong that she would not be in on Wednesday , that later she
told Whitney she would not be in the remainder of the week , and that
she assumed that Whitney, who had daily conversations with Wong,
would relay this information to Wong. Wong, however, denied that
he was told Gist would be absent after Tuesday, and Whitney did not
2 The Trial Examiner stated that Gist "attended both union meetings, " but other meet-
ings were held in addition to those at Abrams' home.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testify: -When Gist'reported to work on Monday, September 9, Wong
told her she 'had been replaced. Wong admitted in his testimony,
however, that she had not in'fact been replaced as of September 9.
The only reason given by the Respondent for Gist's discharge was
this failure to notify the Respondent that she would' be absent. The
record shows that, while.the Respondent expects employees to call in
if they are to be absent, the rule, an oral one, is frequently breached,
with no disciplinary action taken. Furthermore, Wong admitted that
1-day absences are condoned,'that employees'are taken back even after
longer unexcused absences, that he sometimes telephones or sends some-
one to the home of an absent employee to inquire as to the reason for
the absence, ' and that he likes to give employees a second chance.
Wong, however, gave Gist no opportunity to explain her absence al-
though she admittedly was an "above average" employee, had a good
attendance record, and had never before failed to call in when she was
going to be absent or late.
Accordingly, in view of all the circumstances, particularly the facts
that the rule about reporting absences was frequently violated by em-
ployees with no disciplinary action taken, that Gist was discharged
for her first violation of the rule, that the Respondent told her when
she reported back for work that her job had been filled when in fact
it had not been filled, and that the Respondent had threatened that it
would get rid of her because she was one of the "union ring leaders,"
we are convinced, and find, contrary to the conclusion of the Trial
Examiner, that the assigned reason was a pretext, and that the Re-
spondent in fact discharged Gist, in violation of Section 8(a) (3) and
(1) of the Act, because of her participation in union activities.
4. Owen Abrams, who was hired as a driver in late July 1963, was
active in the union campaign. The union meetings on August 2
and. 161 were held at his home across the street from the plant and
were observed by Lee. After each of these meetings, Lee interrogated
Abrams about the meeting and about who had attended.
Abrams testified that on Saturday, August 17, he had to go to
Georgia to arrange for the hospitalization there of a sick child, that
he did not return in time to report for work on Monday, and that
when he reported for work on the next day Wong told him that he
had been replaced.
The Trial Examiner found that the Respondent had "more than
sufficient cause" for discharging Abrams because, in addition to not
reporting for work 1 day, Abrams had falsely stated on his applica-
tion for employment that he had never been arrested; he had taken
3 We hereby correct the inadvertent error in the Trial Examiner's Decision which re-
ferred to the date of the second meeting as August 17.
FAMILY LAUNDRY & DRY CLEANING, INC. 255
home a pair of pants-which he claimed as his own , but which he re-
turned when it developed that he had been mistaken ; and there were
indications that he was drinking on the last Saturday he worked.
As set forth above, however , 1-day absences are admittedly con-
doned. The Respondent , moreover, had apparently condoned these
other derelictions of Abrams . Wong ] earned of Abrams' police record
about 2 weeks before his discharge, but said nothing to Abrams about
it. The pants incident also occurred about 2 weeks before his dis-
charge . Wong admitted that - he had smelled alcohol on Abrams'
breath on Saturday , but permitted him to go out on his route , and that
other employees had been discovered drinking on the job and were
not discharged . Wong also admitted that Abrams would have been
sent out on his route if he had come to work on Monday, and , in fact,
he twice sent to Abrams ' home on Monday to see if he was there.
After Abrams' discharge, Wong told employee Fendall , according to
the latter's uncontradicted testimony , that "You know Abrams was
working for the union and trying to get the truck drivers to vote for
the union , and that Monday that he stayed off was a good reason to
let him go."
On the entire record, and particularly the foregoing , we are con-
vinced that the Respondent seized upon Abrams' 1-day absence as a
pretext for his discharge , that the other reasons advanced by it are
afterthoughts, and that the Respondent in fact discharged Abrams,
as it did Gist, pursuant to its intention of getting rid of the "union
ring leaders." Accordingly, we find that the Respondent , by its dis-
charge of Abrams, violated Section 8 ( a) (3) and (1) of the Act.
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 in order to effectuate the policies of
the Act.
Having found that the Respondent discriminatorily discharged
Esther Gist on September 9 and Owen Abrams on August 20, 1963,
we shall order the Respondent to offer to them immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their rights or privileges, and make them whole
for any loss of earnings they may have suffered as a result of the dis-
crimination against them, by payment to each of them of a sum of
money equal to the amount they would have earned from the date of
the discrimination to the date of the offer of reinstatement, less earn-
ings during said period to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90
I
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 289, and shall include the payment of interest at the rate of
'6 percent-per annum, to be computed in the manner set forth in Isis
Plumbing cC Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, the
commission by the Respondent of similar and other unfair labor prac-
tices may be anticipated. We shall therefore order the Respondent
to cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act 4
Having further found that the Respondent interfered with the elec-
tion conducted on September 10, 1963, we shall set aside the selection
and direct the Regional Director to conduct another election at such
time as he deems appropriate.
CONCLUSIONS OF LAw
Upon the basis of the foregoing and the entire record in the case,
,we hereby substitute the following conclusion of law No. 4 for the
Trial Examiner's conclusion of law No. 4, and make the additional
conclusion of law No. 6:
4. By discriminating in regard to the hire and tenure of em-
ployment of Esther Gist and Owen Abrams because of their ac-
tivity on behalf of the Union, the Respondent had engaged in and
was engaging in unfair labor practices within the meaning of
Section 8(a) (3) and (1) of the Act.
6. The aforesaid conduct constitutes unfair labor practices
.affecting commerce within the meaning of Section-2(6) and (7)
of the Act.
ORDER
11
Pursuant to Section 10(c) of the National Labor Relations Act,,as
amended, the National Labor Relations Board hereby orders that the
Respondent, Family Laundry & Dry Cleaning, Inc., Washington,
D.C., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Laundry & Dry Cleaning Inter-
national Union, AFL-CIO, or in any other labor organization of its
employees, by discriminatorily discharging, or in any other manner
discriminating against them, in regard to their hire or tenure of em-
ployment, or any term or condition of employment, except to the
extent- permitted by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(b) Interrogating, its employees concerning their, union member-
ship or activities in a'manner violative of Section 8(a) (1) of the
Act; threatening its employees with closing the plant, elimination of
Austin Powder Company, 141 NLRB 183.
FAMILY LAUNDRY & DRY CLEANING, INC. 257
jobs, or other reprisals on account of their union activities; promis-
ing benefits to influence their votes in a Board election or to induce
antiunion activities; and keeping union meetings- under- surveillance.
(c) In, any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to join
or -assist any labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in other concerted activi-
ties for the purpose of mutual aid or protection as guaranteed in Sec-
tion 7 of the Act, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as authorized by 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
would effectuate the policies of the Act :
(a) Offer to Esther Gist and Owen Abrams immediate and full re-
instatement to their former or substantially equivalent positions, with-
out prejudice to their rights or privileges, and make them whole for
any loss of earnings suffered by reason of the discrimination against
them in the manner set forth in the section above entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and 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.
.(c) Post at its plant at Washington, D.C., copies of the attached
notice marked "Appendix." 5 Copies of such notice, to be furnished
by the Regional Director for the Fifth Region, shall, after being duly
signed by an authorized representative of the Respondent, be posted
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply
herewith.
It is further ordered that the election conducted at the Respond-
ent's plant on September 10, 1963, be, and it hereby is, set aside.
[Text of Direction of Second Election omitted from publication.]
5 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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
756-236-65-vol. 147-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EIr1PLOxEES
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Laundry & Dry Clean-
ing International Union, AFL-CIO, or in any other labor or-
ganization of our employees , by discriminatorily discharging, or
in any other manner discriminating against them in regard to
their hire or tenure of employment, or any term or condition of
employment , except to the extent permitted by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT interrogate our employees concerning their union
membership or activities in a manner violative of Section 8 (a) (1)
of the Act ; threaten our employees with closing the plant, elim-
ination of jobs, or other reprisals on account of their union ac-
tivities; promise benefits to influence their votes in a Board elec-
tion or to induce antiunion activities ; or keep union meetings
under surveillance.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization , to join or assist any labor organization , to bargain
collectively through representatives of their own choosing, to
engage in other concerted activities for the purpose of mutual aid
or protection as guaranteed in Section 7 of the Act , or to refrain
from any and all such activities , except to the extent that such
right may be affected by an agreement requiring membership in
,a labor organization as authorized by Section 8 (a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer to Esther Gist and Owen Abrams immediate and
full reinstatement to their former or substantially equivalent
positions , without prejudice to their rights or privileges, and
make them whole for any loss of earnings suffered by reason of
the discrimination against them.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named or any other
labor organization , except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
- ' ' FAMILY LAUNDRY & DRY CLEANING, INC. 259
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.
FAMILY LAUNDRY & DRY CLEANING, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
No.-We will notify the above-named employees if presently serv-
ing in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland,
Telephone No. 752-8460, Extension 2100, if they have any question
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed November 18, 1963 ,1 in Case No . 5-CA-2652 by Laundry &
Dry Cleaning International Union , AFL-CIO, herein called the Union or the Peti-
tioner, against Family Laundry & Dry Cleaning , Inc., herein called Family, the
General Counsel issued complaint alleging Family had violated Section 8(a)(1)
and (3 ) of the Act. The answer of Respondent denied the commission of unfair
labor practices.
On December 9, the National Labor Relations Board issued an order directing a
hearing in Case No. 5-RC-4324 upon issues raised by objections filed by the Peti-
tioner in said proceeding.
On December 12, the Regional Director issued an order consolidating cases and
notice of hearing.
This consolidated proceeding , with all parties represented , was heard before Trial
Examiner John F. Funke at Washington , D.C., on January 13, 14, and 15, 1964. At
the conclusion of the hearing the parties were given leave to file briefs. A brief was
received from the Respondent on February 18, 19642
Upon the entire record in this case, and my observation of the witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Family is a corporation organized and existing under the laws of the District of
Columbia, where it is engaged in the operation of a laundry and drycleaning plant.
Its revenue during a representative 12-month period from such services was in excess
of $175 , 000 of which it is estimated that 95 percent of said revenue was received
from wholesale customers , including customers in Maryland and Virginia. During
said period Family received goods and materials at its plant in a value amounting to
approximately $30,000, originating from points outside the District of Columbia.
F Unless otherwise noted all dates refer to 1963.
z Respondent 's motion to strike the testimony of Fowler and McAllister on the ground
the General Counsel refused to produce their pretrial statements is denied. The request
for the statements was not timely made.
260 DECISIONS OF NATIONAL LABOR 'RELATIONS' BOARD
Respondent is engaged in a business affecting commerce within the .meaning of
,the Act.
kiII:-`THE LABOR ORGANIZATION INVOLVED
Petitioner is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
1. Violations of 8(a)(1)
Esther F . Gist testified that she had been employed at Family in various capacities.
from November 1957 until September 1963 . Sometime in July she signed an
authorization card with the Petitioner which had started an organization campaign
among the employees of Family about that time . Gist attended union meetings and
tried to induce other employees to sign cards.
In early August , according to Gist , Raymond Lee,3 president of Family, called a
meeting of the employees . He had in his hand a letter from the National Labor
Relations Board which he waved at the employees and said they were trying to get a
union in the plant . He stated that he did not want a union ; that he had the names
of the employees who joined the Union ; and that before he would let the Union
come in he would close the laundry and the employees would have to picket outside
the plant while he and his family ran the laundry .4
Gist further testified that Allen Wong , general manager of the laundry , asked her,
shortly after Lee made his speech , if she was interested in the Union and that there-
after she had almost daily conversations with either Lee or Wong concerning the
Union. On two separate occasions she and the other markers (there were five
markers ) were called to Lee 's office where Lee repeated his threat to close down the
laundry and go to Paris for 3 months before he would let the Union come in .5 On
the day before she went on vacation (her vacation started August 23) Lee spoke to
her, asked her which side she was on, told her he had done her many favors, and
asked her not to join the Union . Lee also told her that if the Union did not get in
the employees with 3 years ' employment would receive 2 weeks ' vacation, that
May 30 would be made a paid holiday , and that if he made money he would give it
to the employees.
Vernes Fowler , an employee , testified that Lee called her into his office and asked
her why ' she had not taken a copy of a letter he had passed out (presumably a reply
to a letter from the Union ) and told her it was because she- was one of the ring-
leaders of the Union . Later she, Catherine Pace , and Ethel Chambers were called
to Lee's office and asked how they felt about the Unions and were told that if the
Union came in they would be on a picket line while the girls who did not vote for
the Union would be working. ,
Fowler testified that she attended meetings at the home of Owen Abrams, a
driver employed by Family . Abrams' home was diagonally across the street from
Family and the entrance was visible from the window of . Lee's office. Fowler stated
that she went in the back door of the house because she could see Lee standing at
the window looking in the direction of Abrams' house and that the next day he told
her he knew she went to the meeting because he saw some of the girls go in the
front door.?
Geraldin McAllister , an employee , testified that the day before the National Labor
Relations Board election Lee told her that she would have gotten a pay increase if
she had not been sick but that she would receive it if she was not for the Union.
3 It appears that the correct name of Raymond Lee Is Bong Yee but since he is referred
to throughout the testimony as Mr . Lee, that name is used in this Decision.
* This testimony was corroborated , in substance , by employees Vernes Fowler , Geraldin
McAllister , Violet Minor, Mary Wilson , Catherine Murphy, and Patsy Jones.
c This , remark was also attributed to Lee by employees Vernes Fowler , Geraldin
McAllister , Violet Minor, Mary Wilson , and Catherine Murphy.
9 Other employees who were interrogated as to their union sympathies or attendance at
union meetings were: Geraldin McAllister, Violet Minor , Massie Dyson , Mary Wilson, and
Patsy Jones.
7 Other employees who testified that they saw Lee looking from his office or standing
outside the plant looking toward the Abrams' house at the times union meetings were
held were : ,Geraldin McAllister, Owen Abrams, and Catherine , Murphy. .
FAMILY LAUNDRY & DRY CLEANING, INC . 261
Owen Abrams, a driver, testified that the day after the first meeting at his home
Lee called him to his office and told him he had let him down by having the meet-
ing, asked him who was there, and told Abrams he wanted the names of the em-
ployees who had attended. He also told Abrams that if the Union came in he would
close the plant and the drivers would be out of work. After the next meeting at his
home Abrams was again interrogated by Lee as to the employees who attended it.
Mary Wilson, a former employee, testified Lee told her he knew she was for the
Union, told her that if the Union came in he would put her out of her job himself,
and promised a party for the girls with liquor if the Union did not get in. Wilson
stated that this conversation took place the week before the election. She also
stated that "about two weeks before the last two meetings of the election" Wong told
her that if the Union did not get in he would give the girls hospitalization and give
them May 30 as a paid holiday.
Thomas Fendall, a driver, testified that the day before the election (the election
was held September 10) when he returned from his run Lee and Wong were by the
doorway where the drivers unload. Wong told him he was doing a good job and
hoped he would be on his (Family's) side in the election. Lee told him he would
advertise and build up the route and guarantee him $100 a week if the Union did
not get in. Fendall stated that after Wong "went down and got us the right to
vote" 8 the drivers were called to Lee's office and Wong told them that if the Union
came in the wholesaling would be closed (the drivers picked up the wholesale de-
liveries) and only the front would remain open.9
Patsy Jones, an employee, testified at a time not specified that Wong promised her
a raise in pay for all employees and 2 weeks' vacation if the Union did not get in.
Allen Wong, manager of Family, admitted telling some of the girls that if the
Union came in "then at that time they will get the girls out and picket." He also
told them, "If we can make it fine. Maybe if not at that time, we would have to close
up the plant." Wong admitted telling one of the girls that he would not work there
if the Union came in. Wong's testimony, as recorded, is confusing, particularly
with respect to the offer of 2 weeks' vacation and a paid holiday on May 30. In
any event the testimony of the General Counsel's witness insofar as it relates to Wong
is substantially uncontradicted and, as it relates to Lee, entirely uncontradicted.
2. The discharge of Gist
Esther Gist, employed generally as a marker, testified that she had worked for
Family from 1957 until she was discharged on September 9. She attended both
union meetings and tried to get other employees to sign authorization cards with the
Union. As previously set forth, she was interrogated on several occasions as to her
union activity or membership by both Wong and Lee and the record establishes that
she was regarded by them as an instigator of the Union.10
At the close of business on Friday, August 23, Gist was to start her vacation,
returning the day after Labor Day, September 3. On that afternoon she was called
into Lee's office and was again interrogated as to her union sympathies and was told
the employees would get a 2-week vacation if the Union did not get in. In this
conversation she told Lee she could not return on September 3 since she had an
appointment at the health clinic. Lee said nothing. While Gist was on vacation
her son was circumcised and had to return to Children's Hospital on September 4
for a check. According to Gist she told another employee, Beachola Whitney, a
marker, to tell Wong she would not be able to return on September 4.11 Having
missed 2 days of a holiday week,12 Gist stayed out the balance of the week without
8 A stipulation for a consent election was signed by Family and the Union on August 23.
The original petition excluded the drivers from the bargaining unit. They were included
at the request of the Respondent, which explains Wong's remark.
9 ,Corroborated by driver Robert Williams.
A0 Catherine Murphy testified, and I credit her, that one evening during Labor Day week,
the week preceding Gist's discharge, Lee told her that he knew who the ringleaders were,
that they were Esther Gist and Vernes Fowler, and that lie was going to get them out
of there.
"Whitney was not called as a witness so it-is not known whether she gave this in-
formation to Wong. Wong denied receiving it. Gist testified that Whitney told her on
September 4 that Wong asked her if Gist had quit but Gist did not make any attempt to
correct any ,such misapprehension although she spoke to Whitney every night that week
on the telephone.
is It was a rule at Family that an employee who was absent during a holiday week did
not get paid for the holiday.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notifying Family and reported on Monday, September 9.. Wong asked her into the
office where he told her she had been replaced.
The only cause given by Wong for her discharge is her failure to report for work
during Labor Day week and failing to call in to explain her absence. There is
testimony by Wong that on September 10 he heard that Gist had called the plant
on Friday, September 6, but his testimony is unclear on this point and Gist gave no
testimony as to such a call.
3. The discharge of Abrams
Owen Abrams was employed as a delivery and pickup driver for Family from
the latter part of July until August 20. Abrams testified that he signed a union
card and attempted to "entice" other employees to sign cards. Two union meetings
were held at his house and the record establishes that Lee and Wong, who ran the
business, knew of these meetings. It is undenied that Lee asked Abrams after the
first meeting held on-about August 2 to get the names of the employees who at-
tended and that after the second meeting held on August 17 he asked him for the
namesA.
On ugust 17, Abrams testified that he received a telephone call from his wife
in Columbus, Georgia, advising him that their daughter was sick and that he should
come and get her in the hospital. About 9 p.m. (the 17th was a Saturday), Abrams
drove to Columbus with two drivers accompanying him so it would not be necessary
to stop en route. He did not return in time to report for work on Monday and
when he reported for work on Tuesday, August 20, he was told by Wong that he
had been replaced-that there was no one to make his run on Monday and a
replacement had been hired.
Wong testified that he had hired Abrams July 24, less than 1 month prior to his
discharge. At the time Wong hired him he asked him if he had a police record
and told him he would want a police clearance. Abrams told him he had no record
but never produced the clearance. A couple of weeks later a countergirl told Wong
they were missing a pair of pants so Wong checked with his drivers. At this time
Abrams told him he would get the pair of pants and later he returned with them,
telling Wong he had gotten them at 1648 Columbia Road, a wholesale account.
Wong called the account and was told they had not given Abrams a pair of pants.
Wong then checked Abrams' record at the local precinct and found Abrams had
a record of four arrests.13 Despite the fact that Abrams told him he had no police
record and that Abrams stated in his written application for employment (Re-
spondent's Exhibit No. 1) that he had never been arrested, Wong took no action.14
The next incident involving Abrams occurred on Saturday, August 17. Wong
testified that when Abrams reported in he (Wong) smelled liquor on his breath.
Abrams was allowed, however, to make his first run but Wong testified that the
run, a normal l^hour run, took Abrams 21/2 hours. Wong stated he received calls
from wholesalers that afternoon that Abrams was "loaded" and that when he
(Wong) returned to the plant later in the afternoon (he had been out collecting)
the employees informed him Abrams had been drinking. Abrams drove in with
his wife in the truck and another employee, Richard Lipscomb, had to unload the
truck.ls When Abrams failed to report to work on Monday morning and Abrams
received a complaint from a customer that no call had been made, Wong decided
to replace him. About noon a driver named Fisher was hired to make Abrams'
run. When Abrams reported in about 8 a.m. on Tuesday, Wong told him he could
not use him any more.
Is The precinct record (Respondent's Exhibit No. 2) shows Abrams was arrested four
times. The first arrest, for disorderly conduct, shows Abrams was fined $5 ; the second,
for drunk and disorderly, shows two fines of $10; the third, for disorderly conduct, shows
no disposition ; and the fourth, for operating a lottery and possession of numbers slips,
was dismissed.
14 If Wong is correct in estimating the time as about 2 weeks after Abrams' employ-
ment, then he received this information after the first meeting at.Abrams' house, which
was held August 2.
u Lipscomb, a maintenance employee, testified that he was at the laundry on Saturday,
August 17, when Abrams drove into the yard with his wife in the truck. Lipscomb testi-
fied that Abrams was sober enough to drive but that he "wasn't normal." According to
Lipscomb, Abrams had some more deliveries to make but left the yard without making
them. Lipscomb reported this incident to Wong, including the fact that he did not think
Abrams was in a condition to make further deliveries.
FAMILY LAUNDRY & DRY CLEANING, INC. 263:
Abrams was not called to rebut-the testimony of Wong and Lipscomb but on
direct he explained the pants incident as a mistake.. He took the pants from the
laundry line thinking they were his own and when notified that a pair was missing.
he went home, checked, and found he had taken the wrong pair. He then returned.
them. As to the alleged drinking on Saturday, August 17, Abrams denied that he
had been drinking before he went-to work or that he had anything to drink that day.
B.. Conclusions
1. As to violations of • Section 8 (a) (1)
On testimony which is uncontradicted and inherently credible, I find that Re-
spondent violated Section 8(a)(1) by:
(a) Telling its employees it would close the plant if it went union; that it would
eliminate the wholesale work if it went union; telling an employee it would fire her
if it went union.
(b) Interrogating its employees concerning union sympathies, membership, and
attendance at union meetings.
(c) Keeping union meetings under surveillance and telling employees it knew
who attended union meetings.
(d) Offering its employees 2 weeks' vacation and an additional paid holiday if
the plant did not go union; promising one employee a pay raise and another increased
earnings if the plant did not go union; promising an employee a party for the girls
with liquor if the plant did not go union.
2. The objections in Case No. 5-RC-4324
The petition in Case No. 5-RC-4324 was filed on August 6, 1963, and the election
was held September 10.16 Between this date and the date of the election, I find
Respondent engaged in conduct, as set forth in the preceding paragraph, which
restrained and coerced its employees and which warrants the finding that para-
graphs 4(a), (b), (c), and (d) of the objections to the conduct of employer affecting
the results of the election be sustained.
3. As to violations of Section 8(a)(3)
I cannot conclude that either Gist or Abrams was discharged in violation of the
Act. It is true that both Lee and Wong manifested a continuing hostility toward
union organization and restrained and coerced the employees in their efforts to com-
bat it, even to the extent of threatening employees with discharge if the Union became
the bargaining representative. Indeed, a specific threat was made to another employee
by Lee that he would get Gist. Nevertheless both employees gave Family good reason
for the discharges. I am unwilling to hold that an employee may, as Gist did, re-
main away from her employment for 3 days without giving notice simply because
she has joined a union and become identified as one of the ringleaders. Union
membership does not create an immunity against discharge regardless of other
unlawful conduct on the part of an employer and, as the First Circuit Court of Ap-
peals has stated, "the fact that a Respondent may have been pleased that an employee
gave it good cause for discharge does not make the discharge discriminatory." 17
With respect to Abrams, the employer had more than sufficient cause for discharge.
Abrams had lied on his application form with respect to four previous arrests, not
all of which could have escaped his memory at the time he was applying for employ-
ment . On Saturday, August 17, Wong testified that he smelled liquor on Abrams'
breath before he commenced his run, that he received complaints from customers
that Abrams was "loaded" while on the run, and that another employee had reported
that when Abrams returned with the truck he had not unloaded it. I agree that it is,
or should be, unusual for an employer to permit a driver to take a truck out when his
breath smelled of liquor but the record establishes that discipline, particularly with
respect to drinking , was lax in the plant . In spite of these reports received by Wong
of Abrams' deportment on Saturday, he testified that Abrams would have had a job
had he reported on Monday morning. This failure to either report or give notice
made it necessary for Wong to hire a new driver to make the Monday deliveries. It
can hardly be said that a discharge under these circumstances was unlawful. I
clearly distinguish the discharges in this case from those where the employer asserted
16 This is the critical period in evaluating conduct slleced to have affected the results
of an election . Goodyear Tire and Rubber Company, 138 NLRB 453.
17 N.L.R.B. v. Lowell Sun Publishing Company, 320 F. 2d 835 (C.A. 1).
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a false reason to conceal the discriminatory motive, where there was disparity of
treatment between the discharged employee and other employees who had committed
similar offenses,18 or where a rule, long dormant in practice, is suddenly invoked
against a union member. It is true that the flagrant abuses of the employees' rights
under the Act make the discharges strongly suspect and entitled to the closest scrutiny.
When, however, an employee engages in conduct for which any other employee
could and should have been discharged, his union membership provides no exemption.
It is recommended that the complaint insofar as it alleges Respondent violated
Section 8 (a) (3) of the Act be dismissed.
IV. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, I shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action in order to effectuate the policies of
the Act.
I shall also recommend that the election in Case No. 5-RC-4324 be set aside and
a new election directed.
Upon the basis of the foregoing findings and conclusions, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Laundry & Dry Cleaning International Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section
S(a) (1) of the Act.
4. Respondent has not discriminated against its employees within the meaning
of Section 8(a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the meaning
of Section 8(a) (1) of the Act.
[Recommended Order omitted from publication.]
18 The General Counsel attempted to show that other employees had been reinstated
after unexcused absences. Wong's explanation, and a credible one, was that employees
often returned after an absence of weeks or months looking for employment and, if It was
available, they were given it.
Milk, Ice Cream Drivers and Dairy Employees , Local No. 783
,of International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Cream Top Creamery,
Inc. Case No. 9-CB-1139. June 4, 1964
DECISION AND ORDER
On January 22, 1964, Trial Examiner James F. Foley issued his
Decision in the above-entitled case, 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 af-
firmative action, as set forth in his attached Decision. Thereafter,
the Respondent filed exceptions to the Decision together with a sup-
porting brief. The General Counsel and the Charging Party filed
exceptions and supporting briefs relating to the scope of the Trial
Examiner's Recommended Order.
147 NLRB No. 34.