Intertown Corp.

National Labor Relations Board - Board Decisions

Jul 21, 1950

90 N.L.R.B. 1145 (N.L.R.B. 1950)

In the Matter Of INTERTOWN CORPORATION (MICHIGAN) and RETAIL,
WHOLESALE AND DEPARTMENT STORE UNION, CIO
Case No. 7-CA-158.-Decided Juily 21,1950
DECISION AND ORDER
On December 23, 1949, Trial Examiner James R. Hemingway 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 copy of the Inter-
arnediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recommended dismissal of those allegations of the com-
plaint. Thereafter, both the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner at the
h4aring and finds that no prejudicial error was committed.2 The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in this case
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and modifications :
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three -member panel
( Chairman Herzog and Members Houston and Murdock].
2 The Respondent contends that the Trial Examiner should have passed initially upon
the question of jurisdiction in an Intermediate Report confined to that issue . The cases
eited by the Respondent in support of this contention, however, hold only that a Trial
Examiner may dismiss a case on jurisdictional grounds alone ; they do not hold that
where jurisdiction is contested , the Trial Examiner is required ,to rule on it first, or that he
Cannot hear the merits , reserving his determination of jurisdictional questions. We
therefore find no merit in this contention.
As to the Respondent ' s exception to the Trial Examiner ' s refusal to permit litigation of
the Union 's compliance status , we have consistently held that compliance with Section
9 (f), (g), and (h) of the Act is not a litigable issue . Ray Smith Transport Company, 89
NLRB No. 134.
Nor do we find error , as contended by the Respondent , in the Trial Examiner 's rulings as
to evidence relating to alleged violations of Section 8 (b) (1) (A ) and 8 ( b) (4) (B) by
the charging union . Such evidence was received in the form of testimonial offer of proof.
No violation of Section 8 (b) (4) (B ) is established as the offer of proof in this respect
relates solely to action at the scene of the primary dispute. Cf . The Pure Oil Company,
54 NLRB 315 . Our disposition of the offer of proof relative to violation of Section 8 (b)
(1) (A) is set forth in the section of this Decision entitled "The Remedy."
90 NLRB No. 151.
1145
P
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We find, as did the Trial Examiner, that the operations of the
Respondent, which is engaged primarily in the operation of an office
building, affect commerce, and that the policies of the Act will be
effectuated by the exercise of our jurisdiction.3 The basis for this
finding is set forth in considerable detail in the Intermediate Report.
We note especially, in this connection, the fact that D. F. Broderick,
president of the Respondent, controls the two insurance company
tenants, whose activities clearly affect commerce within the meaning
of the Act,4 and which, in turn, control the Respondent, and that those
companies have their home offices in this building.
2. It is clear that from the time it learned of organizational activ-
ity among its employees, the Respondent embarked upon a campaign
to thwart the Union's efforts and to create an atmosphere in which
free expression of the employees' desires would not be possible.
Especially significant in this connection were : The Respondent's dis-
criminatory discharge of Marion Burger,5 Pauline Novinskey, and
Hazel Fekete in violation of Section 8 (a) (3) of the Act, and its
granting of wage increases, giving gifts to employees, promising fur-
ther benefits; and on numerous occasions interrogating 7 its employ-
ees about their union sympathies, in violation of Section 8 (a) (1)
of the Act.
The Respondent also refused to bargain with the Union after it had
been designated by a majority of the employees in an appropriate unit.
The Trial Examiner found that such refusal dated from October 1,
1948, when the Respondent received the first union letter. In this
letter the Union claims to represent a majority of the employees, sug-
gests an election to be held by the State Board, and requests a meeting
with the Respondent, but does not clearly request recognition or bar-
gaining. In view of our decision in The Solomon Company," it might
3 In his description of the use of space in the Respondent 's building , the Trial Exam-
iner inadvertently stated the amount of space occupied by doctors and dentists to be
53,058 square feet ; the correct figure is 55,058 square feet . Similarly , the amount of space
occupied by optical companies is 1,841 and not 1,481, square feet. The Trial Examiner
also inadvertently stated that 65.8 percent of Dearborn National Insurance Company prem-
iums in 1948 were on insureds in Michigan ; the correct figure is 56 . 8 percent. These
typographical . errors do not. affect the Trial Examiner ' s conclusions or our agreement with
them.
4 Tri-State Casualty Insurance Company, 83 NLRB 828.
We do not pass upon whether the various enterprises located in the Respondent 's build-
ing, which the Trial Examiner indicates are within the scope of our jurisdiction , are so in
fact.
5In discussing the discharge of Burger , the Trial Examiner states that Bonin, the Re-
spondent 's superintendent , was aware that Polish women do not get along well with
women of other nationalities . This was merely a reference to a statement to this effect
made by Bonin himself at the hearing.
6 Macon Textiles, Inc., 80 NLRB 1525 ; Hudson Hosiery Company, 72 NLRB 1434.
7 See particularly , in connection with the Respondent ' s use of the open ballot : Ken-
tucky Utilities Company, Inc., 83 NLRB 981; Stocker Manufacturing Company, 86 NLRB
666.
84 NLRB 226.
INTERTOWN CORPORATION (MICHIGAN) 1147
appear that this letter did not constitute a sufficiently unambiguous
request for bargaining. However, as the Respondent construed the
letter as a request that it meet with the Union as the bargaining repre-
sentative, we shall, although the matter is not free from doubt, adopt
the Trial Examiner's finding of a refusal to bargain on October 1,
1948. In any event, it is clear that the Union's second letter, received
by the Respondent on October 23, 1948, made an unequivocal request
for bargaining, and that on and after that date, the Respondent
continued its refusal to bargain with the Union in violation of Section
8 (a) (5) of the Act.
We therefore find, as did the Trial Examiner, that the Respondent's
threats, promises of benefit, interrogations, discharges, and refusal
to bargain, in violation of Section 8 (a) (1), (3), and (5) of the Act,
caused the strike of October 25, 1948, and that the strike was con-
sequently an unfair labor practice strike.
The Respondent contends that as the Union, in its October 22 letter,
set an October 26 deadline for the Respondent's consent to a State
Board election, it was required to await the expiration of that period
before striking. We find no merit in' this contention. The immediate
cause of the strike appears to have been the Respondent's unfair labor
practices on October 24, and the Respondent's campaign to destroy
the Union cancelled any obligation the Union might otherwise have
had to await the expiration of its deadline.
We reject also the Respondent's further contention that the strike
was illegal because the Union did not comply with the strike vote
formalities of the.Michigan statute. The courts have consistently held
that the provisions of State statutes inconsistent with the Act are not
controlling upon us,9 and indeed the very statute invoked by the
Respondent has been recently invalidated by the Supreme Court.10
3. We agree with the finding of the Trial Examiner that the Re-
spondent discriminatorily denied reinstatement to the nine striking
employees who applied on December 8, 1948.
4. As set forth in the Intermediate Report, picketing of the Re-
spondent's building ended about December 25, 1948. On October 29,
1948, the Union had filed with the Board a charge alleging violations
of Section 8 (a) (1), (3), and (5) by the Respondent; and, on January
25, March 7, and May 31, 1949, it filed amended charges.
On April 27, 1949, the Union wrote to the Respondent requesting
reinstatement for all the striking employees, including the 9 who had
already made, application and about 27 others. The Respondent made
0 Hill v. Florida, 325 U. S. 538. Cf. Dalton Telephone Company, 82 NLRB 1001; Ep-
pinger & Russell Co., 56 NLRB 1259.
10 Autom obile Workers Union v. O'Brien, 339 U. S. 454.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no reply to this request. The Trial Examiner found that as to this
latter group, there was serious doubt that they still retained their
employee status, and, therefore, that there was no unfair labor prac-
tice committed by the Respondent in failing to reinstate them. For
the reasons set forth below, we do not agree.
On November 3,1948, a few days after the strike began, and while the
Respondent's building was still being picketed, the Respondent sent
a notice to each striker, which was headed "Termination," and with
which was enclosed the employee's withholding tax receipt. By regu-
lation,1' these receipts are not to be sent before either the end of the
calendar year or the termination of employment. Furthermore, the
Respondent testified that it considered the strikers who applied for
reinstatement on December 9 as new applicants for employment. It
appears.from this that the Respondent intended its November 3 letter
to sever its employment relationship with the strikers. It cannot
therefore be said that these termination notices were mere "tactical
maneuvers" 12 designed to coerce the employees into returning to work.
We therefore find that on November 3, 1948, the Respondent discrimi-
natorily discharged its employees-who had gone out on an unfair labor
practice strike.
The above finding of discriminatory discharges establishes the right
to reinstatement of these striking employees. Even absent such a
finding, however, we would order their reinstatement, as we do not
agree with the Trial Examiner's finding that the strikers had lost
their employee status prior to the request for their reinstatement on
April 27, 1949. This finding is apparently based upon an assumption
that the removal of the picket line, on or about December 25, 1948,
indicated abandonment of the strike. It does not follow, however,
from the fact thatpicketing had been discontinued, that the strike had
been abandoned, and there is no clear evidence that the strikers in-
tended, when they stopped picketing, to abandon the strike. On the
contrary, it would appear, from the charges and amended charges
which were filed during the period in question, that the Union was
seeking to remedy the unfair labor practices which had caused the
strike through Board procedures rather than by a picket line.
Therefore, whether we regard the strikers as having been discrimi-
natorily discharged, or as continuing unfair labor practice strikers, we
find in any event they had retained their right to reinstatement upon
application, and, consequently, that the Respondent's refusal to rein-
state them on April 27, 1949, was violative of Section 8 (a) (3) and
(1) -of the Act.
26 U. S. C. 1625 (a).
3z Cf. Rockwood Stove Work8, 63 NLRB 1297.
INTERTOWN CORPORATION (MICHIGAN) 1149
The Remedy
Having found, contrary to the Trial Examiner, that the Respond-
ent discriminatorily denied reinstatement to those strikers whose first
application was made on April 27, 194:9, we find it necessary to order
their reinstatement with back pay. We have also found that these
strikers were discriminatorily discharged on November 3, 1948, while
they were on strike. , Under these circumstances, we shall require the
Respondent to make these strikers whole for their losses in earnings
from April 27, 1949,13 the date on which, by applying for reinstate-
ment, they expressed their desire to return to work and to terminate
their status as unfair labor practice strikers, to the date of the
Respondent's offer of reinstatement.
We agree with the Trial Examiner's findings with respect to the
three discriminatory discharges and the discriminatory refusal to
reinstate the nine strikers who applied in December .1948, and shall
therefore require the Respondent to reinstate all these individuals with
back pay from. the dates of their discharge, and their application for
reinstatement, respectively, to the date of the Respondent's offer of
reinstatement.
Since the issuance of the Trial Examiner's Intermediate Report,
however, the Board has adopted a method of computing back pay
different from that prescribed by the Trial Examiner.- Consistent
with the new policy we shall order that the loss of pay be computed
on the basis of each sepa.rat calendar quarter or portion thereof
during the period from the Respondent's discriminatory actions to
the date of a proper offer of reinstatement. The quarterly periods,
hereinafter called "quarters," shall begin with the first day of Janu-
ary, April, July, and October. Loss of pay shall be determined by
deducting from a sum equal to that which the employee would
normally have earned for each quarter or portion thereof, his net
earnings,15 if any, in other employment during that period. Earnings
in one particular quarter shall have no effect upon the back-pay liabil-
ity for any other quarter.
11 hi'assey Gin and Machine Works, Inc., 78 NLRB 189; Kallaher and Mee; Inc., 87
NLRB 410; Alside, Inc., 88 NLRB 460.
In accordance with our usual practice, the period from the date of the Intermediate
Report to the date of the order herein will be excluded in computing the amount of
back pay to which the strikers who first applied for reinstatement on April 27, 1949, are
entitled, as the Trial Examiner did not recommend their reinstatement or an award of
back pay to them.
14 F. W. Woolworth Company, 90 NLRB 289.
11 Crossett Lumber Company, 8 NLRB 440; Republic . Steel Corporation v. N. L. R. B.
311 U. S. 7.
1150 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due.-
The Respondent contends that the strikers are not entitled to re-
instatement because of their conduct during the strike. The Trial
Examiner found that the conduct alleged in support of this conten-
tion was too minor to warrant the denial of reinstatement . We agree
with this characterization except as to the conduct of Arthur Carl
Stearns. Stearns warned Sanders , a nonstriking employee , that un-
less he stayed out of the Respondent 's building , he would find his
"head split open and in a gutter ... You have already been spotted
,out . . . They'll bring in a strong arm gang. . . ." Because of these
threats, Sanders obtained police protection . Stearns also called em-
ployee Crowe and warned him that if he did not cooperate with the
strikers his body would be found in an alley. We believe that Stearns'
conduct exceeded permissible bounds, and shall therefore not order
either reinstatement or back pay for him.17
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the Board hereby
orders that the Respondent, Intertown Corporation (Michigan), De-
troit, Michigan, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Retail, Wholesale and Depart-
ment Store Union, CIO, or in any other labor organization of its
employees, by discharging or refusing to reinstate any of its ern-
ployees, or in any other manner discriminating in regard to their hire
or tenure of employment, or any term or condition of their employ-
ment;
(b) Refusing to bargain collectively with Retail, Wholesale and
Department Store Union, CIO, as the exclusive representative of its
employees in the appropriate unit ;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Retail, Wholesale and Depart-
ment Store Union, CIO, or any. other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargain-
ing 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
16 F. W. Woolworth Company, 90 NLRB 289.
IT CP. Porto Rico Container Corporation, 89 NLRB 1570.
INTERTOWN CORPORATION (MICHIGAN) 1151
by an agreement requiring membership in a labor organization, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Mary Zelepis, Margaret Baxter, Shirley Baxter, Eva
King, Mary Muraszewski, Albina Klenczar, Katherine Radzienta,
Clarence Bulley, and Stephanie Stomber, immediate and full rein-
statement to their former or substantially equivalent positions, with"
out prejudice to their seniority or other rights and privileges, and
make them whole, in the manner set forth in the section entitled "The
Remedy," for any loss of pay they may have suffered by reason of
the Respondent's discriminatory refusal to reinstate them on Decem-
ber 8, 1948;
(b) Offer to Marion Burger, Pauline Novinskey, and Hazel Fekete
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole, in the manner set forth
in the section entitled "The Remedy," for any loss of pay they may
have suffered by reason of the Respondent's discriminatory discharge
of them on October 1, 1948;
(c) Offer to the employees named in Appendix A, attached hereto,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay they
may have suffered by reason of the Respondent's discrimination
against them by making payment to them in the manner provided in
the section entitled "The Remedy", above ;
(d) Upon request, make available to the Board or its agents, for
examination and copying, all payroll record, social security payment
records, time cards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due and the right of
reinstatement under the terms of this Order;
(e) Upon request, bargain collectively with Retail, Wholesale and
Department Store Union, CIO, as the exclusive representative of its
employees in the appropriate -unit, and, if agreement is reached,
embody such understanding in a written, signed agreement;
(f) Post immediately in its building in Detroit, Michigan, copies
of the notice attached hereto marked Appendix B.18 Copies of said
notice, to be furnished by the Regional Director for the Seventh
Region (Detroit, Michigan), shall, after being duly signed by the
18 In the event that this Order is enforced by a. decree of a United States Court of
Appeals, there shall be inserted before the words, "A Decision and Order ," the words,
"Decree of the United States Court of Appeals Enforcing."
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, be posted by it immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material;
(g) Notify the Regional Director for the Seventh Region in writing,
within ten (10) days from the date of this. Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminated in regard to the hire and tenure of
employment of Helen Olech, be, and it hereby is, dismissed.
APPENDIX A
Harry Bell
Margaret Braun
Ceola Daniels
Irene Derkatz
Florence Glowacki
Antonina Godlewski
Gabriel Gory
Frances Kubinski
Sadie Lichtenberg
Ethel Mangrum
Mary Jane McClelland
Cecil R. McDonald
William McRae
Eileen Collidge Pardue
Bernice Preskop
W. H. Roesler
Margie Roody
Irene Anna Schulti
Mary Smith
Helen Regina Stefanek
Leo Williams
Fannie May Wilson
Verla M. Wolff
Mary Zaluke
Madeleine M. Ziarnik
APPENDIX B
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 in, any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist RETAIL, WHOLESALE
AND DEPARTMENT STORE UNION, C . I. 0., or any other labor organ-
ization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and
INTERTOWN CORPORATION (MICHIGAN) 1153
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Margaret Baxter
Shirley Baxter,
Harry Bell
Margaret Braun
Clarence Bulley
Marion Burger
Ceola Daniels
Irene Derkatz
Hazel Fekete
Florence Glowacki
Antonina Godlewski
Gabriel Gory
Eva King
Albina Klenczar
Frances Kubinski
Sadie Lichtenberg
Ethel Mangrum
Mary Jane McClelland
Madeleine M.
Cecil R. McDonald
William McRae
Mary Muraszewski
Pauline Novinskey
Eileen Collidge Pardue
Bernice Preskop
Katherine Radzienta
W. H. Roesler
Margie Roody
Irene Anna Schulti
Mary Smith
Helen Regina Stefanek
Stephanie Stomber
Leo Williams
Fannie May Wilson
Verla M. Wolff
Mary Zaluke
Mary Zelepis
Ziarnik
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all our employees
in the bargaining unit described herein with respect to rates of
pay, wages, hours of employment, or other conditions of employ-
ment, and, if an understanding is reached, embody such under-
standing in a written signed agreement. The bargaining unit is :
All employees working in the building of the undersigned,
located at 10 Witherell Street, Detroit, Michigan, except guards,
professional, office, and clerical employees, and supervisors.
All our employees are free to become or remain members of the
above-named union or any other labor organization except to the
extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the amended Act. We will not discriminate
in regard to hire or tenure of employment or any term or condition of
'employment against any employee because of membership in or activ-
ity on behalf of such labor organization.
INTERTOWN CORPORATION (MICHIGAN),
Employer.
By -------------------------------------------
Dated--------------------
(Representative ) ( Title)
903347-51-vol. 90-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Mr. Jerome H. Brooks, for the General Counsel.
11r. John T. Higgins , of Detroit , Mich ., for the Respondent.
Messrs. William McClow and Leonard R . Levin, of Detroit, Mich ., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge filed on May 31, 1949, by Retail, Wholesale and
Department Store Union, C. I. 0., herein called the Union, the General Counsel for
the National Labor Relations Board, herein respectively called General Counsel
and the Board, by the Regional Director for the Seventh Region (Detroit, Michi-
gan), issued his complaint dated June 15, 1949, against Intertown Corporation
(Michigan), hereinafter called the Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor. practices affecting commerce within
the meaning of Section 8 •(a) (1), (3), and (5) and Section 2 (6) and (7) of
the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act.
Copies of the complaint, with copies of the third amended charge attached, to-
gether with notice of hearing, were duly served on the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that from about September 1, 1948, to the date of the complaint, the Respondent,
by its officers, agents, and employees, interfered with, restrained, and coerced its
employees in the exercise of their 'right to form, join, and assist labor organiza-
tions, to bargain collectively through representatives of their own choosing, and to
engage in concerted activities and other mutual aid. and protection, particularly
by granting a unilateral wage increase, making gifts to employees, questioning
employees abort union membership, activities, and sentiments, threatening em-
ployees with loss of employment and other injurious consequences, encouraging
its employees to establish an "independent" union and discontinue their interest
in the Union, and informing certain employees that it did not intend to rehire any-
one who was on the Union's picket line during a strike then being held ; refused to
recognize and bargain with the Union, although the latter represented a majority
of the Respondent's employees in an appropriate unit ; discharged Marion Burger
and Pauline Novinskey on October 1, 1948, discharged Hazel Fekete on October 2,
1948, and discharged Helen Olech on October 8, 1948, and thereafter refused to
reinstate them, because they joined and assisted the Union and engaged in con-
certed activities for the purposes of collective bargaining and other mutual aid
and protection ; that on about December 8, 1948, the Respondent denied a re-
quest for reinstatement of 10 employees who had, among others, gone out on an
unfair labor practice strike, and that on April 27, 1949, the Union requested the
reinstatement of the same 10 employees and 26 others who had engaged in the
same strike, but that the Respondent refused and continued to refuse to reinstate
them because said employees had joined and assisted the Union and engaged in
other concerted activities for the purposes of collective bargaining and other
mutual aid and protection,
The Respondent in its answer, duly filed on July 1, 1949, admits having given
certain employees a wage increase but denies that it was for the cause alleged ;
admits having made certain gifts to employees, but denies that they were for
the cause alleged; and denies other acts claimed to be violations of Section 8 (a)
INTERTOWN CORPORATION (MICHIGAN) 1155
(1) of the Act ;' admits the discharge of the aforesaid four employees but denies
that it was for the cause alleged ; admits that it refused to recognize and meet
with the Union for the purposes of collective bargaining , but denies the appro-
priateness of the alleged unit and denies that the Union was the representative
of a majority of the employees ; in effect, denies the alleged cause of the strike,
admits the applications for -`reemployment" by some employees individually
and admits receipt of the Union ' s request for reinstatement of "a number of
former employees"; it also admits , in effect,2 the refusal to reinstate said em-
ployees. both those who made individual request therefor and those named in
the Union 's request for reinstatement "because," the answer reads , "(1) all of
said employees had failed to report to work, after respondent had agreed to
an election requested by the Union and the employees to determine the question
of union representation; and that respondent had to employ replacements and
could not discharge replacements to create jobs for such former employees, and
(2) said Union had never established the right to act as bargaining representa-
tive of said former employees, while they were employees of respondent."
Pursuant to notice, a hearing was held in Detroit, Michigan , between July
19 and August 13, both inclusive, 1949, before the undersigned duly designated
Trial Examiner. The General Counsel and the Respondent were represented
by counsel and the Union by representatives. All participated in the hearing
and were afforded opportunity to be heard, to examine and cross-examine wit-
nesses , and to introduce evidence pertaining to the issues.
At the opening of the hearing the Respondent made a motion to dismiss the
complaint on the ground that it was not subject to the Board's jurisdiction but
in the alternative , if the Board could take jurisdiction , it should not do so.as a
matter of policy in this case (1) because of the essentially local character of the
Respondent's business and (2) because the Union "though purporting to seek
equity under the `Labor Management Relations Act, 1947' has itself violated
said Act, and does not come into equity with clean hands, in that said Union
in its attempt to organize respondent 's employees in October , 1948, committed
unfair labor practices , in violation of Sections 8 (b) (1) (A), and 8 (b) (4) of
said Act....' The undersigned ruled that evidence on the facts concerning
commerce should be taken first , independently of the unfair labor practice evi-
dence, but ruled that evidence of violations of the Union would not then be
taken, nor would any evidence of a violation of Section 8 (b) (4) be taken in
the absence of a charge.' After the evidence on commerce was completed, the
undersigned announced that he would reserve ruling thereon and rule on it
in this Report . Because of the findings herein made , the Respondent ' s motion
to dismiss the complaint is hereby denied.
At the opening of the hearing, counsel for the General Counsel, hereinafter
called G. C. counsel, moved to amend the complaint by adding two additional
alleged violations of Section 8 (a) (1) : That the Respondent on about November
1 The answer sets up explanations of the Respondent ' s conduct and recites matters of
evidence relied on by it which it is unnecessary to detail.
The answer first makes a flat denial of the allegations of the complaint ( which alleges
it personal request for reinstatement by 10 employees and a refusal by the Respondent to
reinstate them ) ; the answer then by evidentiary pleading admits that it informed such
employees that replacements would not be discharged [to make positions for them, pre-
sumably] and that such employees would be notified if the Respondent decided to reemploy
them.
2 The undersigned stated that evidence of acts constituting a violation of Section 8 (b)
(1). (A) would be admissible, if at all, only as part of the Respondent's defense to the
unfair labor practices.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'3, 1948, notified its employees then on strike that their employment was termi-
nated, and that the Respondent negotiated directly with its employees concern-
ing their union representative to the exclusion of the Union at a time when the
Union was the exclusive representative of the Respondent's employees! The
.motion was granted.
On August 1, 1949, during the hearing, Respondent asked and was granted
leave to file an amended motion to dismiss. The amended motion added as
grounds for dismissal (I) that as to relief sought "to compel the Respondent to
reemploy, with back pay, former employees who instigated and engaged in a
strike on October 25, 1948, and subsequent days" the strike was illegal under
Michigan's law, and (2) that the complaint was issued in violation of Section
10 (b) of the Act. As to the first ground, the undersigned ruled that that would
be considered as part of the Respondent's defense to the unfair labor practice
allegations of the complaint. The motion was denied as to the second ground 6
On the last day of the hearing, the Respondent moved, and was granted. per-
mission, to amend its answer to reply to those portions of the complaint which
had been added by amendment, and to add one paragraph substantially the same
as that setting forth the first added ground in the amended motion to dismiss,
and a second paragraph raising the' equitable doctrine of "clean hands" as a
defense to the entire complaint. A motion by G. C. counsel to strike the amend-
ment was denied. ,
At the end of the hearing G. C. counsel moved to amend the complaint to con-
form to the proof as to names and dates and insubstantial variances. The motion
was granted.
The undersigned reserved ruling on the offer of General Counsel's exhibit
number 124, a subpoena upon one Bernice Prezkop, pending receipt of proof of
service, and granted a limited time after the close of the hearing to tender sucl4(
proof. Such proof was received, upon stipulation, within the time fixed, and
General Counsel's exhibits number 124 (the subpoena) and 125 (the affidavit of
service) are now received in evidence. ,
The parties also agreed on the record to the taking of a deposition of one
Dr. Dyer and, upon request, the undersigned ruled that if such deposition were
received by him on stipulation before the date for filing of briefs, including any
and all extensions of time, it would be received as part of the record. A depo-
sition of said Dr. Dyer and a deposition of his assistant, Irene Maine, were sent
to the undersigned within the time fixed for filing of briefs. Although leave
to take the deposition of Maine had not been applied for in advance, her deposi-
tion related to the same subject matter as that of Dr. Dyer, and as the deposi-
tion was taken in the presence of the Respondent's counsel and the G. C. counsel,
without objection, at the same time as the deposition of Dr. Dyer, and was covered
4 The language of this amendment was further amended by motion granted later in the
hearing. The changes were not substantial.
5 The original charge was filed on October 29, 1948 , and a copy of it was served on the
Respondent and received by it on November 3, 1948 . The first amended charge , filed on
January 25, 1949, was served on the Respondent and received by it on January 27, 1949.
The amended charge added a list of the names of certain employees allegedly refused rein-
statement on December 8, 1948. The second amended charge filed on March 7, 1949, and
received by the Respondent on March 8 , 1949, added one name to the list of names just
'mentioned. The third amended charge, filed on May 31, 1949, and received by the Re-
spondent on June 1, 1949 , added the names of other employees who had participated in
the strike and who had not been reinstated following a request by the Union for their
reinstatement made on April 27, 1949. In the Respondent 's brief it accepts the ruling of
the Trial Examiner as correct.
INTERTOWN CORPORATION (MICHIGAN) 1157
.by the same stipulation as that of Dr. Dyer, the undersigned will receive it as
part of the record along with that of Dr. Dyer. To eliminate any question that
the hearing, which was closed subject to the right to submit such evidence, is in
fact closed, it is now formally closed.
At the close of the hearing, on request of the parties, a date was fixed for the
filing of briefs and for proposed findings of fact and conclusions of law. A brief
has been received from' G. C. counsel and a brief and proposed findings of fact and
conclusions of law have been received from the Respondent. The Respondent's
proposals are ruled upon as follows :
The Respondent's proposed findings of fact are coirimingled to some extent with
argument, and all the proposed conclusions of law are in argumentative form and
are inseparable from the rest of the Respondent's brief. The latter cannot
therefore be separately ruled upon. Of the-proposed findings of fact, I have
rejected those which I found to be argumentative, those which are irrelevant,
those which are not supported by the record in whole or part, those with typo-
graphical errors changing the facts as shown in the record, and those which
create an improper inference. In accepting others it is not my intention to do
so to the prejudice of any findings specifically made herein under the heading
"Findings of Fact." Those which I have accepted are accepted to the extent
that they are consistent with the findings made in the succeeding section of this
Report.
Rejected :
I (heading) ; 1.2; 1.3; 1.5; 1.10 (2) ; 1.12; 1.14 (2) (c) ; 1.14 (2) (e) ; 1.14
(3), (b), (c), (d), (f), (g), (h) ; 1.14 (4) ; 1.14 (8) ; 1.15; 1.15 (1) (a), (c)
1.15 (3) (a), (b), (c) ; 1.15 (4) (1).
II (heading) ; 2.1; 2.2 (1), (3), (4), (5) ; 2.2 (7) ; 2.3;.2.4; 2.6; 2.6 (1) ;
2.6 (2) (d), (e) ; 2.6 (3) (a); 2.6 (4), (a), (b), (c), (d), (e), (f), (g),
(h), (i) ; 2.6 (6) (a).
III including all subparagraphs.
IV, (4).
V (heading).
V1, 6.
Accepted: All others.
Upon the entire record and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation, having its office and principal
place of business in a 34-story office building in Detroit, Michigan, known as the
David Broderick Tower, the title to which it holds, and which it manages and
operates. It is engaged in the business of owning and operating real estate,
operating as a real estate broker, and making loans and investments. The Re-
spondent denies that it is engaged in commerce within the meaning of the Act.
The General Counsel contends that the Respondent is engaged in commerce
within the meaning of the Act: (1) Because many of the tenants of the Respond-
ent are engaged in interstate commerce; (2) because the Respondent engages
in certain interstate activities or in transactions with others who are engaged in
interstate commerce; and (3) because the Respondent is one of a number of
related enterprises under the control of David F. Broderick, some of which-enter-
prises are engaged in interstate commerce.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The business of the tenants in the David Broderick Tower
Among the tenants in the David Broderick Tower, hereinafter called the build-
ing, which is owned and operated by the Respondent as the principal part of its
business, are retail stores, occupying about 20,970 square feet, slightly more than
15 percent, of the total of about 137,961 square feet of rentable area ; insurance
companies,' occupying about 21,039 square feet, also a little more than 15 percent
of the total ; bus companies, occupying 2,200 square feet ; radio station, 4,101
square feet ; sales agencies , 4,722 square feet ; advertising companies , 1,065 square
feet; doctors and dentists, 53,058 square feet; optical companies, 1,481 square
feet ; dental laboratories, 1,734 square feet, and a miscellany of others.
Of these, some are clearly engaged in business activities affecting commerce
among the several States. An Awrey Bakeries retail store is located on the
ground floor, and the 31st floor is used by the Booth Radio Stations , Inc., for
broadcasting of programs over Station WJLB and WJLB-FM, and for sales and
administration of programs. Both companies have been found by the Board to be
engaged in commerce within the meaning of the Act.'
Meyer Jewelry Company, occupying space in the basement, on the first floor,
including a balcony ; 8 and on the, second floor, is engaged in the retail sale of
jewelry, electrical appliances, radios, television, and it also has an optical depart-
ment. During the year 1948,.the value of goods purchased by that company was
approximately $750,000, of which about 75 percent by conservative estimate was
shipped to it from points outside the State of Michigan' Its sales were mostly
local.
.The Fine Arts Optical Company, manufacturing eye glasses in the building,
purchased approximately $30,000 worth of goods in the operation of its business
in 1948, all of which came from outside the State of Michigan. Its sales are all
local.
Among the sales agencies are agents of manufacturers whose plants are located
outside the State of Michigan and an exporter.
In the operation of the building the Respondent operates a freight elevator to
the fifth floor, which carries substantial quantities of goods for Meyer Jewelry
Company and other tenants. A strike involving the elevator operators employed
by the Respondent in the latter part of 1948 to some extent affected the facilities
for moving shipments of goods to tenants into the building . It is impossible
to tell to what extent the strike may have deterred prospective customers from
coming into the building.
B. The interstate activities of the Respondent
In connection with the ownership and operation of the building in 1948, the
Respondent paid, on a mortgage indebtedness to Equitable Life Assurance Society
of the United States, interest in, the amount of $57,308.68. It also placed fire
and extended coverage insurance on the building in the total amount of $1,550,000
6 Among the tenant insurance companies doing an interstate business are the Sun Life
Insurance Company of Canada, branch office ; Equitable Life Insurance Company of Iowa,
branch office ; Massachusetts Indemnity Insurance Company, branch office ; the State Life
Insurance Co., general soliciting agent ; Dearborn National Insurance Company and
Casualty Company, home office and-Detroit branch office.
7 Awrey Bakeries, Inc., 44 NLRB 801 ; Booth Radio Stations, Inc., 79 NLRB 964.
8 The balcony space is not included in the Respondent's figures on total area allotted to
retail stores.
9 See King Brooks, Inc., 84 NLRB 652 ; P . B. Afagrane Store, Inc ., 84 NLRB 345.
INTERTOWN CORPORATION ( MICHIGAN) 1159
with various insurance companies, some of which have their home offices in
States other than Michigan.
In the maintenance and construction work on the building the Respondent in
1948 purchased. materials and supplies costing $26,737.46, of which $1,175.78
represented goods coming directly from points outside the State of Michigan. Of
the $26,737.46, $6,193.27 was charged to the construction account 10
The building is only one of the Respondent's interests. Through a subsidiary
corporate set-up the Respondent controls and supervises the operation of invest-
ment property, both in and outside the State of Michigan. The Respondent owns
the controlling interest in Geoda Corporation (Michigan), hereinafter called
Geoda." In 1948 the latter acquired all the stock of Marble Arcade, Inc., herein-
after called Marble Arcade, a Florida corporation, owner of a 10-story office
building in Lakeland, Florida. Funds for the purchase of that stock by Geoda,
to the extent of approximately $100,000 of the $169,000 purchase price were fur-
nished by the Respondent. In 1948, officers of the Respondent made visits to
Florida in connection with this transfer and the Respondent received a fee of
$7,774.26 as a result of its service in connection therewith. Since the acquisition
of Marble Arcade by Geoda, the former purchased an apartment building in
Miami Beach, Florida, with funds furnished by Geoda.
Title to Geoda Farms, a 14-acre estate, near Detroit, was held by Geoda
during 1948, but at the end of that year it was transferred by it to Marble
Arcade. This estate is rented as a private residence, at a very modest rental,"
to D. F. Broderick, whose name heads the list of directors of the Respondent,
Geoda, and Marble Arcade, and who is president of the Respondent and Geoda.
The directors of the Respondent and Geoda are identical and, with the ex-
ception of one of the four vice presidents of each, the officers of the two cor-
porations are the same. Two of the three directors " of Marble Arcade are
directors and officers of the Respondent and Geoda. Six of the seven officers " of
Marble Arcade are officers of the Respondent and Geoda, and four are directors
of the Respondent and Geoda. All six of the common officers are located in
Detroit. The committees which run Marble Arcade when the board of directors
are not in session are composed of directors located in Detroit. During 1948
Geoda made purchases of linens. and keys for the apartment house in Miami
Beach.
Geoda has no property, rental, or otherwise, where it conducts its business,
and it has no employees except officers and directors. Irene Jacobs, treasurer
of each of the three corporations, received her salary entirely from the Re-
spondent. The bookkeeping of all three corporations is done in the Respondent's
office. No record is kept of the time the treasurer spends on work for the
several corporations.
10 In many instances of goods delivered by the seller to the Respondent, the seller had
acquired the goods by shipment from points outside the State of Michigan and resold
them to the Respondent in the same form.
11 The name Geoda is derived from Georgia and David, grandchildren of D. F. Broderick,
whose interest in the Respondent will be more fully explained hereinafter.
12 The property has been appraised on a reproduction basis in excess of $500,000 and
on a current-basis of about $350,000. The rent is $2,400 per year. Geoda in 1943 paid
expenses of more than $10,000 for maintenance. Taxes for 1948 were $1,233.35 ; insurance,
$1,244.33.
73 The third director of Marble Arcade, Inc., is the on-the-grounds manager of the Lake-
land, Florida, building, C. A. Patrie.
14 The seventh officer who is not an officer of the Respondent and Geoda is the same
Fatrie.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.D. F. Broderick, president and director of the Respondent and Geoda, director
of Marble Arcade, and member of all the committees (executive. investment,
personnel, and salary) . of each, received no salary from Geoda or Marble Arcade
in 1948 but did receive a substantial salary from the Respondent. A. R. Jurisch,
secretary of all three, received no salary from any of them but from other corpora-
tions in the building related by common directors and officers.
During 1948, in the operation of its business, the Respondent expended various
sums of money for travel, telegraph, and telephone between Michigan and other
States. Of $2,843.50 expended for travel of its officers in the transaction of its
business in 1948, approximately 75 percent was expended for travel to points
located outside the State of Michigan.
During 1948 the Respondent loaned various sums of money to, and held notes
receivable of, various corporations doing business in States other than Michigan,
including Geoda and Broderick Corporation (New York). Those of Geoda it
held in various sums, the largest being one in the principal sum of $182,154.62.
It also held the note of Underwriters Acceptance Corporation (Delaware) in the
sum of $85,681.37. The latter apparently does business in States other than
Michigan, as it receives a percentage of premiums as a commission on insurance
for an account of Dearborn National 'Insurance Company and Dearborn Na-
tional Casualty Company in Indiana.
C. The Respondent's relationship to other corporations engaged in interstate
commerce
1. The corporate pyramid
The Respondent is one of a large group of apparently closed corporations in a
pyramid dominated by David F. Broderick; hereinafter called Broderick. At
the top of the pyramid is Underwriters Acceptance Corporation (Delaware),
a Delaware corporation, herein called UAC, incorporated in 1935 by Broderick
under the name Intertown Corporation (Delaware)," as a holding company
to hold his stock in various corporations then in existence or thereafter organ-
ized. At the time of the hearing, the stock in UAC was divided almost entirely
among Broderick and various of his relatives. The only exceptions are Brod-
erick's personal secretary, who now is an officer and director of a number of
corporations in the pyramid, and the David and Georgia Broderick Foundation.
Each has a relatively small interest. The controlling interest is held by Brod-
erick and his wife. In addition to his own shares, Broderick is trustee of the
shares of his daughter, his grandchildren, and his sister. UAC owns the con-
trolling interest (all except directors' qualifying shares) in Dearborn National
Insurance Company, a Michigan corporation, herein called DNIC, whose re-
lationship with the Respondent will be hereinafter described. DNIC owns the
controlling interest in Dearborn National Casualty Company, a Michigan corpora-
tion, herein called DNCC, which, in turn, owns the controlling, interest in the
Respondent.
The Respondent, in addition to owning the controlling interest in Geoda,
also owns the controlling interest in Dearborn Coach Company, a Michigan
corporation, herein called Dearborn Coach, which in turn owns all the stock
of Lincoln Park Coach Company, and the controlling interest in Broderick Corp-
oration (Michigan). The latter corporation owns the, capital stock of three
1s The name was later changed to D. F. Broderick, Inc. (Delaware) before it was again
changed to its present name on August 18, 1944.
INTERTOWN CORPORATION (MICHIGAN) 1161
corporations, the Broderick Corporation of Illinois, of Indiana, and of New York.
In addition to the foregoing, there are a number of other corporations, some
of which are nonoperating, which need not now be mentioned.
With minor exceptions, Broderick heads the list of directors and officers of
all the foregoing corporations. In the list.of officers of the various corporations,
introduced in evidence by the Respondent, A. W. Roehm is listed as president of
Broderick Corporation of Illinois, Indiana. and Michigan, but although Brod-
erick's name heads the list of directors of these corporations, it also heads
the list of officers (ahead of the president) with the title of chairman. He is,
not an officer of Marble Arcade, Inc., but he heads the list of directors and all
the committees. He is not listed as an officer or director of Lincoln Park Coach
Company, but this company is owned by Dearborn Coach of which he is director
and president.
2. Interrelation of the pyramid corporations
The two insurance companies, DNIC and DNCC, occupy the same space in
the building on the 30th floor with additional space on the 26th, 27th, 28th, 32d,
and 33rd floors, and they operate very much as a unit, in the States of Michigan,
Ohio, and Indiana. Their rent in the building is equally divided and is later
adjusted on a net premium basis. They have the same directors, officers, and
generally the same employees. Their employee payroll is also divided equally
between them and adjusted at the end of the year on a net premium basis. They
operate as "companion" companies in regard to the issuance of "comprehensive
coverage" on automobile risks. Letterheads relating to such joint business bear
the name "Dearborn National Insurance Companies." Purchasers of insurance
carried by the two companies, placed through the common agents of the two
in Michigan, Ohio, and Indiana, are largely the same. Annually they publish
a joint report to the public. A picture of the building, under which are the
words "Head Office," appears on the joint DNIC-DNCC stationery.
The Respondent owns all the office furniture and all the equipment (not classed
as expendable) used by the two insurance companies in their offices in Detroit,
Lansing, and Grand Rapids, Michigan, in Cleveland, and Columbus, Ohio, and
Indianapolis, Indiana." The insurance companies make no payment for the
use thereof. The Respondent likewise owns two automobiles and a truck. One
of the automobiles is used by an adjuster for the two insurance companies. In-
surance, operating, and maintenance costs on this car are paid by DNIC," but
the latter pays nothing specifically for use of the car. The other car is used
by Broderick personally and is garaged at Geoda Farms when he is there. It
.has been used by Seidler in business of one of the corporations with which he
is connected. The truck may be used by any of the pyramid corporations, but
it is garaged at Geoda Farms when it is not in Detroit.
T. E. Seidler and Broderick testified that Geoda Farms was purchased with
the idea in mind of having that property serve as the home office of DNIC-DNCO.
10 The depreciated value of the furniture and equipment being used by DNIC-DNCC at
the end of 1948 was approximately $9,000.76, divided as follows :
That in the home office in Detroit '$5,240.76.
That in the branch office in Detroit $1,236.40.
That in the Grand Rapids, Michigan , office $460.30.
That in the Lansing , Michigan , office $ 670.40.
That in the Cleveland , Ohio , branch office $ 650.28.
That in the Columbus , Ohio , branch $ 430.15.
That in the Indianapolis, Indiana, office $312.50.
17 The original cost _ of insurance - on all cars is borne by UAC and 'is later prorated.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But the purchase was made by Geoda, after decision of the directors of the
insurance companies and Geoda, and the stock of Geoda was bought by the
Respondent rather than by the two insurance companies.
A special corporation, Utilities Service Corporation, the stock of which is
owned by UAC, acts as a central purchasing agency for various corporations in
the pyramid, including the Respondent, DNIC, DNCC, and Dearborn Coach.
The same order form may be used by any of the corporations. There is a stock-
room on the 26th floor of the building for DNIC and DNCC in which are kept
supplies of those companies and certain supplies of other corporations in the
pyramid, including a few for the Respondent. The rent for the space occupied
by the stockroom is allocated to Broderick Corporation (Michigan), DNIC,
DNCC, and the Respondent, but the space is leased by the Respondent to itself.
In the home office of DNIC and DNCC on the 30th floor of the building and of
Dearborn Coach on the 26th floor there are switchboards with tie lines by which
it is possible to communicate with each other. The Respondent, although on a
separate telephone number, and although it does not have a switchboard, may, by
use of push buttons, connect with the DNIC-DNCC switchboard without using
an outside line. The Respondent also has a tie line to Broderick Corporation
(Michigan), an insurance agency which occupies space in the same office area
with the Respondent. By means of four key cabinets it is possible for any one
of the pyramid corporations in the building to reach any other in the building if
the line is not otherwise in use.
UAC carries a group insurance policy covering employees of DNIC, DNCC,
Broderick Corporation (Michigan), the Respondent, and to a very limited extent
of Dearborn Coach, which already had an employee insurance plan when it was
acquired by the Respondent.
The office employees of the pyramid corporations are paid semimonthly on the.
same day. The vacation plans for office employees are the same. During a
strike of the building's service employees in the latter part of 1948, employees of
DNIC-DNCC, among others, assisted in operating the elevators. Each of the
pyramid corporations has a personnel and salary committee which passes on
employment and salary adjustment matters. Broderick and his secretary,
Jurisch, are on each. During a strike of Dearborn Coach employees in 1949, the
chief negotiator for Dearborn Coach was Carl Pratt, who is vice president of
Dearborn Coach as well as of the Respondent.
The printed lease form used by the Respondent for leases of space in the build-
ing contains a provision permitting the lessor (Respondent) to procure certain
kinds of insurance for the lessee's and lessor's benefit and to charge the amount
of the premium to the tenant as part of the rent. Pursuant to such provision, the
Respondent refers the tenants to A. W. Roehm, Broderick's son-in-law and
president of Broderick Corporation (Michigan), for insurance service; and
Broderick Corporation (Michigan), insurance brokers, customarily place such
insurance with DNIC and DNCC. The Respondent and Broderick Corporation
(Michigan), are in space reached by the public through the office entrance to room
number 308 of the building. The names of both are on the entrance door as well
as on the windows on the Woodward Avenue side of the office.
In addition to receiving free use of office furniture and equipment and an
automobile belonging to the Respondent, DNIC and DNCC have been given by
the Respondent a rental rate for the space occupied by them which is below the
prevailing rate for comparable space in the building. There is no formal lease
between the Respondent and DNIC-DNCC. The Respondent writes letters to
itself, purporting to lease various spaces to itself. Such space is then allocated
INTER'TOWN CORPORATION ( MICHIGAN) 1163
by the general auditor to DNIC-DNCC as They need it. Pratt testified, "We
make these agreements [for lease by Respondent to itself ] primarily to keep
track of the space and it has been our policy for quite some time to not confine
or compel the insurance companies to be obligated on a fixed obligations [sic],
so we let them have space from time to time , that is vacant , as they need it,
shift them around from space to space , and this is our method of keeping track
of them ." On the building directory in the lobby, the Respondent 's name is listed
as on the 30th floor, the office of DNIC-DNCC . The same directory lists the "office
of building" as room number 308 , the Respondent ' s office. Registered mail ad-
dressed to the Respondent is delivered to the 30th floor and is receipted for by an
employee of DNIC. The Respondent explained this by testimony that Jurisch,
secretary of the Respondent , formerly had an office on the 30th floor. Jurisch ad-
mitted that she was also Broderick 's private secretary . She moved from the 30th
floor to the 32d floor in about October or November 1948 . She and Broderick
were in room 3214 but moved to the space in room 3210-12 in about May 1949
after construction work therein was finished.
The Respondent , Broderick Corporation ( Michigan ), DNIC-DNCC, Geoda,
and Marble Arcade, have identically the same members on their respective
executive committees ( the committee empowered to act when the directors are
not in session ) : Broderick , Higgins ( Respondent 's counsel ), A. R. Jurisch
(Broderick 's personal secretary as well as corporation officer and director),
and C. R. Pratt ( manager of the building as well as officer and director of
many of the pyramid corporations ). Broderick ; Pratt, and B. Jasper (vice
president in charge of operations of.Dearborn Coach ) constitute the executive
committee of Dearborn Coach. Similarly there are interlocking directors in
all the pyramid corporations and there are many common officers.
T. E. Seidler , whose office is in the space occupied by DNIC -DNCC, is general
auditor of each of the pyramid corporations , although as to a few he holds the
title of treasurer . Although he renders services to all, he has, since July 1948,
received his salary entirely from Dearborn Coach, and no proration of his salary
is made to the other corporations . In prior years , however, he has received his
salary in whole or part from DNIC. Other officers likewise act for a number
of the pyramid corporations but are on the payroll of only one or two.
In 1947 Broderick received a salary only from the Respondent and Dearborn
Coach despite his office of president of most of the pyramid corporations. In
1948 Broderick and his wife received compensation from the Respondent, Dear-
born Coach , Broderick Corporation (Michigan ). and DNIC.
Jurisch is secretary of the 16 corporations in the pyramid , including Respond-
ent, and also is assistant treasurer of 11 . of the 16. She renders services to
all, but she receives her salary from DNIC and Dearborn Coach alone . Pratt,
vice president of the Respondent , is also vice president of all the pyramid
corporations except Marble Arcade , Lincoln Park Coach , and Utilities Service
Corporation , of which he is president . He is also treasurer of the 4 bus com-
panies. His 1948 salary as officer, however , was paid entirely by the Respondent
and Dearborn Coach.
Irene Jacobs is treasurer and assistant secretary of 7 of the 16 corporations,
including the Respondent , and also is assistant secretary and assistant treasurer
of another . She renders services to all those of which she is an officer but
receives her salary entirely from the , Respondent.
Although salaries of officers are not prorated, certain expenses , such as for
rent, travel , and entertainment may be charged first to one of the corporations
and then at the end of the'year they are prorated by Seidler, on the basis of an
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
estimate, to the corporations involved. Assets of one corporation are, when
the directors see fit, exchanged between various corporations in the pyramid..
3. The interstate commerce activities of the pyramid corporations
The activities of the Respondent and its subsidiaries, Geoda and Marble Arcade,
have already been described.
DNIC-DNCC are engaged in the fire and casualty insurance business in three
States. Their home office is in the building in Detroit, but they have branch
offices in various cities in Michigan, Ohio, and Indiana. In 194S DNIC sold
fire, extended coverage, tornado-windstorm, sprinkler leakage, riot-civil cony-
motion, motor vehicle, inland marine, vandalism, and use and occupation in-
surance. Total net premiums in 1948 were $1,111,210.65 of which 65.8 percent
represented premiums on policies issued to insureds in the State of Michigan,
22.3 percent, insureds in Ohio, and 20.9 percent, insureds in Indiana. Total
1948 net premiums written by DNCC were $1,287,684.86, of which 58.5 percent
represented premiums on policies issued to Michigan insureds, 27 percent, Ohio
insureds, and 14.5 percent, Indiana insureds. DNIC in 1946 entered into a
treaty reinsurance arrangement with Eagle Fire Insurance Company, Newark,
New Jersey, the South Carolina Insurance Company, Columbia, South Caro-
lina, and the United States Branch of the Switzerland General Insurance Com-
pany, Ltd., Zurich, Switzerland. DNCC maintains a reinsurance contract with
Employers Reinsurance Corporation of Kansas City, Missouri. DNIC and DNCC
1 are without question conducting a business which affects commerce within the
meaning of the Act.18
- The common stock of Dearborn Coach is owned, 92,800 shares by DNCC, and
224,000 shares by Respondent. All its preferred stock is owned by DNCC.
Dearborn Coach owns the stock of Lincoln Park Coach Company. Broderick
owned all the stock of Intertown Lines System Corporation, which in turn owns
all the stock of Northwestern Coach Lines Corporation. The 4 last-named
corporations operate a public transportation system in Wayne County, Michigan.
Physically they operate very much as a unit.. The office space and office staff
for all are the same. Employees are used interchangeably. The management
is the same. On the buses owned by Dearborn Coach and used by it and the
other companies, following the name Dearborn Coach, appear the words "Inter-
town Lines System." 39 All the buses are operated intrastate, servicing about
150 square miles in Wayne County, but that Dearborn Coach's operations affect
interstate commerce is apparent from the following facts : Its purchases of gaso-
line and lubricants from Standard Oil Company of Indiana for 1948 totaled
`approximately $277,355, all of which was processed outside the State of Mich-
igan and transported to tank farms in the Detroit area from which the Standard
Oil Company delivers it, among others, to Dearborn Coach. The latter rents
the tires for use on its buses from the Goodyear Tire and Rubber Company,
which provides 2 employees at the Dearborn Coach garage to service them.
Dearborn Coach owns a terminal building in Wayne, Michigan, called the Wayne
Waiting Room. This terminal is used not only by Dearborn Coach but also
by intrastate and interstate Greyhound buses. Dearborn Coach services the
Ford Motor Company's Rouge Plant, going both directly into and along side
18 See Tri-State Casualty Insurance Company, 83 NLRB 828.
11 Jasper , vice president in charge of operations and a director of each of the four coo-
porations did not know the function of Intertown Lines System and did not know why
Lincoln Park Coaches were marked with the name of Dearborn Coach.
INTERTOWN CORPORATION (MICHIGAN) 1165
the premises, the General Motors Company's Cadillac plant, the Chrysler Cor-
poration's DeSoto Plant, and the Gar Wood plant. It also carries as passengers
mail men with their mail bags under a contract with the United States Govern-
ment for between $5,000 and $10,000 annually 20 In another case, Dearborn Coach
stipulated that it was engaged in commerce within the meaning of the Act.
Broderick Corporation (Michigan), owning the Broderick Corporations (Illi-
nois), (Indiana), and (New York), uses a name-plate sticker on the insurance
policies that it procures which names the cities of Chicago, Detroit, London, San
Francisco, and Bloomington, presumably to represent that it does business there.
Although the subsidiaries are rather inactive and although Broderick Corpora-
tion (New York) gave up its New York office, it is maintaining two or three large
assureds as a nucleus around which to begin future operations. Roehm and an-
other Broderick Corporation employee periodically visit New York to maintain
relationship with a New York account.
The Respondent argues that its operations are local and that, on precedent, the
Board should not assume jurisdiction over a company that operates an office
building even if it could. The Respondent relies principally on Midland Building
Company, 78 NLRB 1243, and Central Tower, Inc., 84 NLRB 357. Assuming, with-
out deciding, that those cases would be controlling in the instant case if the
basis of jurisdiction here were limited to the Respondent's operation of the
building,' I find that there is a marked distinction in the instant case from those
cited because of the Respondent's operations through, and in coordination with,
related corporations. It is impossible to view the facts established in this case
without seeing the real situation behind the corporate veil. It is quite obvious
that Broderick has built up a corporate structure for his convenience in making
investments and carrying on the activities, of his various enterprises. Every-
thing is coordinated to those ends. Although Broderick and other adverse wit-
nesses called by the General Counsel sought to deprecate his omnipotence, all
facts and rational deductions point to Broderick as the complete master of the
activities of the corporations in the pyramid; He is in a position to determine
which corporations shall own the stock of any other and, within legal limits,
which corporations shall hold legal title to certain assets. It was Broderick
personally who made the contract for the purchase of the building here involved.
In that contract he reserved the right "to assign this agreement to a corporation
controlled by him." The various corporations have dealt among themselves in a
variety of ways which can only indicate a common interest. They lend money
to each other, they transfer assets to one another in simulated sales of stock
which are designed to result in a contributed surplus, they make advances for
expenses and later, in some instances, prorate them, and they lend or lease per-
sonal property to each other. The Respondent's very existence in this far-flung,
multicorporation enterprise might, alone, suffice to justify the assumption of
jurisdiction by the Board.R2 But the Respondent is even more closely connected
to interstate operations than through its kinship (by virtue of Broderick's domi-
nation and control) to the other corporations. The Respondent, through its
20 Local bus companies have heretofore been found to be engaged in commerce within
the meaning of the Act in Rosedale Passenger Lines, Inc., 85 NLRB 527 ; Gate City Transit
Lines, Inc., 81 NLRB 79 ; El Paso-Ysleta Bus Company, Inc., 79 NLRB 1068 ; Amarillo
Bus Company, 78 NLRB 1103.
2' See also Corrigan Properties, Inc., 87 NLRB 252.
A2 The Board has frequently assumed jurisdiction on the basis of totality of operations.
Tanner-Brice Co., 82 NLRB 477: Block and Kuhl Deportment Store, 83 NLRB 418; Goar's
Service and Supply, 85 NLRB 219.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subsidiaries, Geoda and Marble Arcade, carries on, in Florida, operations of a
similar character to those conducted in Detroit. That is not to say that the
operations of a subsidiary corporation are necessarily to be regarded as the
operations of the parent corporation, but here there is more than mere ownership
of stock to tie the Respondent to its subsidiaries Geoda and Marble Arcade.
Through common directors and officers their interests and operations are inter-
twined. No closer relation existed between parent and subsidiary in other cases
in which the Board has assumed jurisdiction.23
But the Respondent not only is a parent corporation ; it also is a subsidiary
corporation. It is owned immediately and mediately by DNGC and DNIC,
respectively. And it is apparent that those insurance companies make use of
the Respondent to their own ends. The. fact that, although the Respondent
owns all furniture and office equipment, the insurance companies make use
thereof without cost is just one -indication that the Respondent is used by the
insurance companies as a repository for their physical assets. In the same line
is the Respondent's Ford automobile used by the insurance adjuster. The Re-
spondent's pick-up truck and Lincoln automobile apparently are in a class by
themselves, as the former is made available to any of the corporations while the
latter is, to all intents Broderick's personal V r. More than one fact suggests
that the building, itself, is an asset designed primarily for the use of the insur-
ance companies. A picture of the building on stationery leads the public to
believe that it belongs to the insurance companies. Alone of the tenants, the
insurance companies have no formal lease. They use space which the Respondent
allocates to itself, move about in the building to any vacant space as suits their
convenience, and are charged less than the current rate of rent. Because of their
control of the Respondent, the insurance companies could, if they desired, pay no
rent at all, just as they pay nothing for furniture and equipment. The fact
that they pay any rent may be deduced to be for bookkeeping purposes or as a
contribution to maintenance. It is noteworthy that the rent charged DNIC-
DNCC of $2 per square foot is exactly the same as the Respondent charges itself
and Broderick Corporation (Michigan) for the space occupied by them on the 3rd
floor.
The history of some of the corporations bears out the inference that the Re-
spondent is a repository of physical assets of the insurance interests of Brod-
erick. The Respondent's answer states : "The several D. F. Broderick, Inc.,
(Michigan), (New York), (Illinois), (California), etc., operated as agents and
managers, under contract with Home Insurance of New York and its affiliates
writing insurance on automobiles. . . . The agency and management contract
between the several D. F. Broderick, Inc., (New York), (Illinois), (California),
(Michigan), etc., companies terminated on December 31, 1941,- and all business
thereunder was completed and wound up on June 30, 1942. After said business
was wound up and completed, D. F. Broderick Inc. (New York), D. F. Brod-
erick Inc. (Illinois), D. F. Broderick Inc. (California) and other D. F. Brod-
erick Inc., (State) companies except D. F. Broderick Inc. (Michigan) and D. F.
Broderick Inc. (Delaware) were dissolved.... The remaining insurance busi-
ness of D. F. Broderick Inc. (Michigan) . . . was organized into Broderick
Corporation (Michigan) on the 29th day of June 1944, and the other assets of
D. F. Broderick Inc. (Michigan) . . . were merged with Intertown Corporation
11(Michigan) . . . [Respondent herein] on the 30th day of August 1944. . . .
= Atlanta Brick and Tile Company, 83 NLRB 1154 ; King Trend.le Broadcasting Cor-
poration, 74 NLRB 926.
INTERTOWN CORPORATION (MICHIGAN) 1167
It is to be noted that the agreement for the purchase of the building was
consummated on June 13, 1944; that the closing date was "as of" July 1, 1944;
that Broderick Corporation (Michigan) was organized on June 29, 1944, and
that assets other than the insurance business of the D. F. Broderick Corporation
(Michigan) were merged with the Respondent on August 30, 1944, at a time
that must have approximated the date of the Respondent's acquisition of title
to the building.
The present Utilities Service Corporation, which now acts as a purchasing.
agent for the pyramid corporations, was formerly known as Jefferson Adjust-
ment Bureau, Inc. It continued the franchise of the latter but changed the
name when its functions changed. Under its former name it acted as adjusters
and investigators for DNIC-DNCC. It was from Jefferson Adjustment Bureau,
Inc. that the Respondent acquired the Ford coupe that is now still used by au
adjuster for the insurance companies. According to Broderick's testimony,
more than one such car was "bought" from Jefferson Adjustment Bureau, Inc.
at that time.
Except for the legal fiction of a separate corporation for holding title to the
building the case would be quite similar to that of the Tri-State Casualty In-
surance Company, 83 NLRB 828.
Whatever the legal reasons for the large number of corporations, through
their community of interest, property, and management, they cohere as one
enterprise. Where the total operations of such a combination affect commerce
within the meaning of the Act, the Board can and does assume jurisdiction2' I
find that the operations of the Respondent, for all the reasons heretofore
stated, affect commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Retail, Wholesale and Department Store Union, C. I. 0., is a labor organi-
zation admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
1. Organization of the Union
The Respondent's nonoffice employees began to organize about September
20, 1948. Application -cards for the Union were procured by employees Ar-
thur Stearns, Clarence Bulley, and Walter Roessler. They gave cards to
employees of various classifications, and by September 30,25 approximately 29 or
30 application cards had been executed. On that date, the Union wrote to the
Respondent, addressing it by the name of the building, claiming to represent
e majority of the latter's employees, stating that the Union was informing the
Michigan State Labor Mediation Board of its claim, that the Union desired to
have an election conducted by that agency, and that the Union was prepared
25N. L. R. B. v. Federal Engineering Co., 153 F. 2d 233 (C. A. 6), enf'g 60 NLRB 592
(a corporation owned the physical properties, while a partnership ran the business) ; St.
Joseph's Lead Company and Lead Belt Water Company, 66 NLRB 561 (a mining and
smelting company and a water distributing company) ; Bulletin Company, 85 NLRB 568
(Homemakers Center operated a restaurant with display booths, while Bulletin Company
published a newspaper).
25 All dates used in this section refer to the year 1948 unless otherwise shown.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to meet and discuss the matter with.-the Respondent. At this time, Pratt
manager of the building, was in Florida on business. He had been there
most of the summer and had been there continuously from August on, but he
was being kept informed of labor conditions by Irene Jacobs, Respondent's
treasurer and assistant secretary and by Robert Bonin, building superintend-
ent. The Union's letter came to the attention of Bonin on October 1. Bonin
ate lunch in the basement with some of the servicemen that day and, com-
. menting on the Union's letter, he said, according to Stearn's undenied and
credited testimony, "Ain't this nice. Won't we have fun out of this?" He
also said, according to Stearns, that the CIO were a bunch of Communists
and that anyone who would join the CIO was "nuts."
On that same day,. an elevator operator was discharged, and that evening
three cleaning women were discharged. The employees inferred that the dis-
charges were made because bf union activities. Three of these four discharges
will be related hereinafter.
Pratt returned from Florida by train, arriving in Detroit on Sunday,.
October 3.
2. Wage increases and gifts
In mid-August 1948, Bonin had written to Pratt in Florida that the night
cleaning force was dissatisfied with wages and he asked advice, and Jacobs
had written that "the elevator situation has come to a head." On September
17, Jacobs, and on September 28, Bonin, wrote Pratt indicating that wages were
still a problem. Jacobs wrote that no harm would be done in waiting another
month. Bonin, in his letter of the 28th, recommended a general increase.
On Pratt's return, he saw the Union's letter, referred it to Higgins, conferred
with Jacobs and Bonin, and decided to give general wage increases. Neither
Pratt nor anyone else for the Respondent replied to the Union's letter. ' Within
a week after his return, Pratt gave pay raises to the day force, including car-
penters, painters, electricians, etc., of about $20 per month. About October
8, -1948, he called all the cleaning women together in a meeting and announced
that he was giving them a raise of 10 cents an hour. According to Pratt, he
told the cleaning women that the Respondent was not too well satisfied with the
cleaning, that with the increase he expected better results, and that, based on
the good results hoped for, the Respondent was going to give each cleaning woman
a Thanksgiving turkey. Albina Klenczar quoted Pratt as saying, among other
things, that the building was much cleaner than during the war time and that
they should not quarrel with their forelady but mind her. This is not neces-
sarily inconsistent with Pratt's testimony of what he said about the quality
of the work and I credit both. He also discussed shortening the weekly hours
from 36 to 34. The increases of all employees were made effective retroactively
to October 1.
On the afternoon of Monday, October 11, Pratt instructed Victoria Armour,
the elevator starter, to notify the elevator girls that there would be a banquet
at the Fort Shelby Hotel the evening' of the following day and that they should
all try to be there. Armour did so. A couple of the girls said they could not
be there. Armour returned to Pratt and reported this. Pratt told her to tell
these girls that Broderick was leaving for Florida and that he wished them all
to attend26
26 One of the girls, Eva King, testified Armour told her, "Mr. Broderick said that if I
didn't attend, he would take it that I didn't want my job." Shirley and Margaret Baxter
testified to substantially the same effect. Pratt and Broderick denied having told Armour
INTERTOWN CORPORATION (MICHIGAN) 1169
At the Fort Shelby Hotel the next evening, October 12, Pratt presided at one
end of the.table and Broderick at the other end. Cocktails and food were
served, and Pratt addressed the elevator girls to say that they were to receive
a 10 cents an hour increase in wages; that the Respondent was going to set up a
plan whereby they would be reimbursed twice a year for their shoes; that he
had learned they were not paying good attention to their work and that he hoped
they would live up to the rules and regulations for elevator operators. He told
them the cost of their new winter uniforms which had been recently delivered
and said he expected them to keep the uniforms neat. The girls suggested that
Pratt ought to make arrangements to have their hair dressed, too. Pratt said
that there was a very high class beauty parlor "on our floor" and that he might
be able to work out a deal to have their hair serviced once or twice a year or as
often as it seemed necessary. Broderick passed out boxes, each containing
three pairs of nylon hose. A couple of the girls testified that Broderick offered
them jobs in Florida. Broderick testified, and I find, that, in banter with a few
of the girls near him who were talking of his spending so much time in Florida,
he said that maybe they would like work there. I find that this was not a serious
offer.
3. Questioning about union, activity, membership, and representation
a. Unsystematic questioning
The testimony of witnesses as to dates was, in general, very unreliable, and I
have sought to establish dates by relative events. Frances Harkiewicz, fore-
lady of the cleaning women, testified that she first learned of union activity on
October 8, after the 10-cent raise had been announced, when Ethel Mangrum, one
of the cleaning women, told her that the raise came too late, that "we signed to
the Union." Mangrum was one of those who at first refused to sign a card. She
did sign a card on October 21 but appears not to have been very favorable to the
Union. When the strike started on October 25, she walked the picket line for 4
days and quit. On November 17, while the strike was still in progress, she re-
turned to work for the Respondent. As she had not joined the Union until
October 21, it is improbable that she would have spoken on October 8 in the first
person plural in making the statement quoted by Harkiewicz. Harkiewicz testi-
fied that about mid-September she would find women off their floors "ganging up
on me" and that she reported to Bonin that something was wrong. I infer that
this occurred during the period when women were talking about the Union and
getting application cards signed. Harkiewicz' testimony was a mixture of truth,
half truth, exaggerations, and fabrications. Because her testimony was not trust-
worthy and because reliable evidence indicates otherwise, I find that October 8
was not the date on which Harkiewicz first learned of union activity.
Pauline Novinskey testified that on the night that she turned in her union
application card, which was on September 27 or 28, Harkiewicz came to where
she was working in the building and asked if she had signed a union card.
Novinskey answered that she had, and Harkiewicz replied, "It is a free country,
I guess ; you can do as you please." I credit this testimony and find that by
September 30, Harkiewicz knew of the union organizational activity. According
to Marion Burger's credited testimony a union meeting was held on Friday,
to make such a statement and Armour denied that she made it. I believe and find that
Armour may have said something which was misconstrued or, in retrospect, reconstructed
with a different meaning by King and the Baxter sisters and that they were not threatened
with diucharge.
903847-51-vol. 90 7 5
I
1170 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
September 30, and she as well as other cleaning women attended it before coming
to work. At work that evening, Harkiewicz asked Burger if she knew there had
been a meeting. Burger answered negatively and Harkiewicz said there had
been a meeting that night and asked if Burger had been to it. Burger answered,
"No, I am not lying." Harkiewicz then said, according to Burger, "I don't know
why you should be .. . If we find out the guilty one [it] will be just too bad."
Burger also testified that Harkiewicz said if the cleaning women went to any
more meetings they would be fired. At about the same time, although it might
have been later, Harkiewicz questioned other cleaning women. She asked Sadie
Lichtenberg if she was going to join the Union. Lichtenberg replied in the nega-
tive, 'and Harkiewicz, according to Lichtenberg's not specifically denied testi-
mony, commented, "You're better off." Mary luraszewski testified credibly that
on about October 3, Harkiewicz asked her if she belonged to the Union. Appar-
ently, Muraszewski did not answer until Harkiewicz repeated the question.
Muraszewski answered that she did, and Harkiewicz stated, according to Muras-
zewski's testimony not specifically denied by Harkiewicz, "When I find out all
the women [who] belonged to the Union, the whole bunch of them are going to
go." Around October 13, Harkiewicz asked Katherine Radzienta, according to
the latter's undenied and credited testimony, if she bad been to a meeting.
Radzienta denied that she bad. Radzienta testified that Harkiewicz then said
if she went to a meeting she would be fired. On an unfixed date after September
25, Harkiewicz asked Ceola Daniels at work in the building if she got "one of those
cards" that the girls were passing out, referring to the application cards. When
Daniels falsely denied that she had, Harkiewicz said, according to Daniels' testi-
mony, "Don't you fool with them because you will get yourself in a lot of trouble."
During the first week of October, Jacobs separately called a couple of elevator
girls to the building's office for the purpose of inspecting their new winter
uniforms which had just been issued. Of Mary Smith, assistant elevator
starter, Jacobs asked if she knew anything about the Union. Of Eva King,
Jacobs asked if she had joined the Union. When King said she had not, Jacobs
asked if any of the other. girls had, King replied in the negative. Jacobs said,
according to King, "You know, the head of the Union are all Communists, Eva."
b. Systematic questioning
When Pratt returned from Florida, he communicated with Higgins to discuss
the union situation. By arrangements made by the Michigan State Labor Me-
diation Board, representatives of the Union and of the Respondent were to
appear before a state conciliator to discuss arrangements for a consent election
on October 14. On October 13, the day following the dinner given by the Respond-
ent for the elevator girls and the day preceding the date set for conference at
the State Labor Mediation Board, Pratt had the employees called in singly or
in small groups to his private office. First he called the maintenance men, later
the elevator girls, and finally the cleaning women. As they appeared, he would
INTERTOWN CORPORATION ( MICHIGAN) 1171
present to them several sheets of memorandum paper which had been made
up with two columns of ruled lines preceded by the following :
TO DAVID BRODERICK TOWER OPERATING AND MAINTE-
NANCE EMPLOYEES
FROM DAVID BRODERICK TOWER MANAGEMENT
SUBJECT I/O (MICH.)-XF OPERATIONS-PERSONNEL
We are in receipt of a letter from the Greater Detroit Joint Board Retail,
Wholesale and Department Store Union , CIO, an exact copy of which is
quoted below :
[The Union 's letter of September 30 is quoted]
In view of the fact that this Union claims to represent the majority of
our employees and has asked to meet with us as your representative, will
you please be so kind as to indicate by affixing your signature in the space
provided below whether or not this Union is authorized to represent you.
We desire this information for our guidance in any discussion we may
have with the Union concerning your wages , hours and working conditions.
The Greater Detroit Joint Board, The Greater Detroit Joint Board
Retail, Wholesale, and Department Retail , Wholesale and Department
Store Union , CIO IS NOT author- Store . Union, CIO IS authorized to
ized to represent me. represent, me.,
The maintenance men, the first group called, were kept in the outer office until
Broderick came out of Pratt's private office. Then , with Higgins present, at least
for a while , Pratt first had the three painters in and requested them to sign one
way or the other. One of them, James Crowe , testified that before he signed
his name Pratt asked if he approved of the Union. Each of the painters signed
in the left -hand corner . Next he called in.the two carpenters . After a prelim-
inary statement , Pratt told them that the CIO was more of a janitor's union
and that the A. F. of L. was more for mechanics. He told them they should
investigate and know what they were joining; that this Union was Communistic.
One.carpenter signed the left-hand column; the other refused to sign under
either column . Next came the building engineer , classed as supervisory. He
signed the left-hand column. As others followed , they either signed the left-
hand column or refused to sign at all. Those few that failed or refused to sign
were called back the next morning and again were asked to sign. The elevator
girls were called one by one that afternoon . When Pratt talked to Assistant
Starter Mary Smith, he said , as quoted by himself , "Of course , Mary, you are a
supervisory employee ; you are not eligible for Union membership . . . If you
want to belong . to a Union , primarily you would have to go back to an elevator
operator ." Mary Zelepis , another elevator girl, testified that when she asked
more time to think it over, Pratt asked if she liked her job and that when she
answered that she did , he said, "By that I think you know which way to sign."
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the cleaning women arrived at 6 p . in., they, too , were conducted to the
office and one by one were taken into Pratt's office by Harkiewicz , who translated
into Polish what Pratt said to those who did not speak English well , and they
were asked to sign the list. Harkiewiez showed Albina Klenczar , the last of the
cleaning, women called, that the others were signing against the Union and asked
if she belonged to the Union. Klenczar asked time to think it over , but Pratt
said it had to be done that day and he could not give her any more time. She
also asked that all the women be together in the room but Pratt refused that
request, too . Pratt asked her if she liked her job. After she answered that in
some ways she did and some ways she did not, Pratt asked her if she was going
to sign. She said, "No" and was taken to work. Mary Muraszewski was another
who refused to sign. Pratt asked Harkiewiez if Murazewski was a good worker.
Harkiewiez said she was , and Pratt, according to Muraszewski 's undeni .ed testi-
mony, said if she were not, he would fire her for not signing ., By the morning
of October 14, there were on this paper , which for convenience will be called
the "open ballot," 34 signatures including supervisory employees , all in the left-
hand column.
The next day, McClow (whose appearance is shown on page 1 hereof), for the
Union, and Higgens for the Respondent , were at the State Labor Mediation Board
in separate rooms. Higgins told a conciliator that he did not wish a joint meeting,
and exhibited the open ballot as evidence that the Union was not entitled to an
election. As the Respondent refused to consent to an election and as the State
Board conducted consent elections only, the Union was not asked to give proof
of its representation.
4. Events preceding the strike
On October 21 at a union meeting the employees present voted to authorize
a strike if the Respondent failed to consent to an election. On Friday, October
22, the Union wrote to the Respondent accusing it of unfair labor practices and
threatening. that unless the . Respondent agreed to a consent election or met
with the Union to negotiate a contract by Tuesday, October 26, the employees
would strike for recognition. The Union sent a copy of this letter to the State
labor mediation board.
On Monday, October 25, late in the afternoon, Pratt sent for the day main-
tenance force of 11 men and 1 woman. Higgins was present. According to
Pratt's version, he "told them the. Company had no desire to influence them one
way or the other" ; that there was "an orderly way to go about it," and it would
be disastrous to have a strike in the building because sick people were coming
to visit doctors and dentists and it would be unfair to tenants and the public
if there was a strike. "I told them that this particular Union I wished they
would investigate thoroughly, I had some knowledge, and reports that they
were to the left, and that, `if you consider a 'Union of this kind, due to the fact
that you have 25, some 25 cleaning women, then the cleaning women primarily
would outvote the rest of the employees,' " would have the majority control.
He told them that in the United Artists' Building (which he formerly managed)
"most of the tradesmen" were in the A. F. of L. and "told them there were three
or four different types of Union that they could think about joining. One of
them was the A. F. of L., a craftsman's union . . . I said it is possible
to have an independent Union, if you want." A few other preliminary remarks
by Pratt were testified to by some of the employees, but in general they con-
firmed Pratt's testimony, albeit with a variation in the form of language used.
Arthur Stearns, for example, testified that Pratt had first read the letter from
INTERTOWN CORPORATION (MICHIGAN) 1173
the Union. He quoted Pratt as saying that he did not know the man who signed
the letter from Adam, that he did not know why this group of employees should
pick out this type of union, and that he asked why they did ,not' have their own
little independent union or the A. F. of L. I find the testimony consistent to
this point and credit Pratt's and Stearns' testimony.
After his preliminary remarks, according to Pratt, he told them that he
and Higgins were going to leave the room and let them discuss the situation
and to call him when they were ready, "and if they wanted us as a company,
to consent to an election, . . . by the State Mediation Board for recog-
nition of this particular Union, if that was the consensus of opinion of the
employees, that we would arrange for this election with the Mediation Board
on the following day." The witnesses differed on whether or not the last quoted
statement was made, the majority of them denying or saying they had no recol-
lection that any such assurance of an election was given. Resolution of the
conflict will be made later herein.
Pratt and Higgins left the room. In the outer office, Higgins dictated another
open ballot form, which recited the Union's claim, in its letter of October 22,
to represent 95 percent of the employees, the employees' signing of the open
ballot of October 13 in opposition to the Union, and continued, "In order to
definitely determine the accuracy of the claims of the Union above referred to
and put an end to the controversy between said Union and the employees of
the David Broderick Tower, the undersigned employees have designated again
whether or not they desire to be represented by said Union. This document
submitted to the Michigan State Labor Mediation Board shall constitute a
request by that Board to refuse to entertain further claims of said union if a
majority of the undersigned do not desire to be represented by said union,
and if a majority does desire to be represented by said union, then this docu-
ment shall constitute a request to the employer to consent to an election ." There
followed lines for signatures against or for the Union.
After a discussion among themselves in which they decided that they wanted
to remain with the Union and to have a secret ballot, the group of maintenance
employees called Pratt back in. He asked if they had made up their minds,
and they told him they wanted a secret ballot. Pratt turned to Higgins who
had come into the room and, according to Stearns, asked if Higgins had one
of those ballots in his brief case. Higgins got out a sample ballot and handed
it to Pratt, who held it up and asked if they would put A. F. of L. or something
else on the ballot. Higgins started to leave the room, and Pratt said that
Higgins had a paper "out there." The employees filed out. Clarence Bulley,
a carpenter, followed Higgins to the outer office and watched as Jacobs handed
the new open ballot form to Higgins. Bulley looked at it and said that was not
what the employees were asking for, that this one was the same as the one of
October 13, and that the employees wanted a secret ballot. Higgins asked
Bulley, according to the latter, "How would you make that ballot, put the
A. F. of L. on it?" Bulley said that they had already selected the Union and
it should just be yes or no. The group then left.
Before quitting time, Pratt had the elevator girls brought, in a group, to his
private office and made similar statements to them, suggesting the A. F. of L.
or an independent union. He made no further attempt to use the open ballot,
but otherwise went through the same procedure.,
The meeting of the elevator girls with Pratt ended at about 5 p. m. and the
union employees went directly to the union hall and reported events at a
meeting which was being held that evening. McClow inferred , correctly, that
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pratt intended to call the cleaning women in that night for the same kind of
program, and he therefore recommended that the cleaning women not go to work
that evening. As a result, the cleaning women were all instructed not to report
for work that night and they did not report. The employees present voted at
that meeting to strike. The strike started, and the next morning a picket line
was formed.
5. The events following the beginning of the strike
On Sunday, October 31, Harkiewicz telephoned Ceola Daniels, one of the
cleaning women, and told her that if she wanted her job back she had better
stay out of the picket line because she was picking the women she would take
back.
During the strike the State labor mediation board sought twice to arrange
meetings between the Union and the Respondent, but Pratt informed it that the
Respondent was getting along all right and indicated that there was no reason
to meet with the Union. On the third attempt, that board asked the Respondent
to come as a courtesy to it. Sometime in December a meeting was arranged and
the Respondent agreed to appear under protest. This meeting was attended by
McClow and one or two others for the Union, by Higgins for the Respondent, and
by Dr. Rex Cranson for the State labor mediation board. At this meeting the
Union stated that it wanted an election. Higgins said that the Respondent on
the night before the strike had offered to give the employees a State labor media-
tion board election, but that they had jumped the gun and went on strike, and he
indicated that the Respondent was getting along satisfactorily and saw no reason
for an election.
On about December 8, the Union sent those on the picket line into the building
by ones and twos to ask for their jobs back. About nine employees so applied ZT
Pratt told them all substantially the same thing-that they were not needed but
that he would call them if he wanted them. None of these employees was ever
reinstated. Of those who went on strike, three abandoned the strike and were
taken back in November. One carpenter, Michael Cooper, who did not continue
on the picket line after mid-November, and who indicated to Pratt that he was
not too sympathetic toward union activities, was recalled on January 3, 1949.
One cleaning woman, Anna Machiniak, was reemployed on December 27, if the
Respondent's records are correct, or January 3, 1949, if Machiniak's memory is
correct. She telephoned Harkiewicz to ask for her job. Harkiewicz hesitated
until Machiniak explained that "I was no longer in the line." 28 No other strikers
were recalled. At the time of the application of these employees for reinstate-
ment their jobs were not all filled. Pratt told these employees that he would get
2T Mary Zelepis , Margaret and Shirley Baxter, Eva King, Mary Muraszewski , Albina
Klenczar, Katherine Radzienta , Clarence Bulley, and Stephanie Stomber. Radzienta
applied again on January 18, 1949 , and talked to Bonin. Bonin told her he had seen her
in the picket line and was afraid to take her back . During January 1949, the Respondent
was running a "want ad" for night cleaning women.
28 An exhibit prepared from the Respondent ' s records indicates that a cleaning woman
who was in the Respondent 's employ at the time of the strike , Mary Zaluki , was reem-
ployed on January 11 , 1949. Zaluki 's name was not among those on a "list of employees
terminated" which the Respondent furnished , although all those who went on strike are
shown on the list as having terminated their employ on October 25 or 26. Zaluki's name
is on a list which the Union prepared , before the strike, of application signers, but her
application card was not among those offered in evidence and she did not testify. The
record does not disclose , therefore, when or why her employment was terminated , although
presumably it was or she would not have been reemployed .. I am not counting her as either
a striker or as a union applicant.
INTERTOWN CORPORATION (MICHIGAN) 1175
in touch with them if he needed them. He did not do so. But in January 1949
the Respondent was advertising for an elevator operator, janitresses, and a man
for general utility work. I find it unnecessary to determine whether or not the
position of each striker was unfilled at the time of his application for reinstate-
ment because I find that the strike was an unfair labor practice strike, caused
by the Respondent's refusal to bargain and its other unfair labor practices. The
refusal to reinstate those strikers who applied for reinstatement within a reason-
able time after the discontinuance of the picket line was therefore a discrimina-
tion against them because of their union membership and activity in violation of
Section 8 (a) (3) of the Act.
The picket line ended sometime in December 1948. On April 27, 1949, the
Union wrote the Respondent saying that the strike had been terminated "some
time ago," that the Respondent had failed to reemploy members who had partici-
pated in strike action, and enclosing a list of names of employees with, a request
for their reinstatement. This produced'no result. A serious question is`raised
as to whether the strikers for whom reinstatement was requested by the Union for
the first time on April 27, 1949,29 had retained their employee status. There was
no evidence from which it might be inferred that the strike was still current in
April 1949, some 4 months after the end of the picket line. No evidence was ad-
duced to show that any of the employees who did not make personal application
had been discouraged therefrom by the Respondent's refusal to reinstate the
nine who had unsuccessfully applied for reinstatement, although some of them
testified as witnesses. In this respect this case differs from the case of E. A.
Laboratories, Inc 30 I therefore find that no unfair labor practice was shown to
have been committed by the Respondent by failing to reinstate those strikers
listed in the Union's letter who had not previously made personal application for
reinstatement 31
B. The refusal to bargain
1.,The appropriate unit
The complaint alleges that all employees of the Respondent working in the
building, except guards, supervisors, professional, and office and clerical em-
ployees as defined in the Act, constitute a unit appropriate for purposes of col-
lective bargaining. The answer denies this. No evidence was offered by the
Respondent to show wherein the unit was inappropriate or what unit would be
more appropriate. All employees in the unit alleged to be appropriate service
the building, all work in the building under the same manager, Pratt, and the
unit is one -common in building maintenance cases 32 I find that the alleged
unit is appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
The Respondent contended that the assistant 'elevator starter was a super-
visory employee and should be eliminated. The starter was conceded by both
Respondent and General Counsel to be a supervisor. At the Fort Shelby Hotel
dinner for the elevator girls on October 12, 1948, Pratt told them that the ele-
vator starter, Victoria Armour, had authority to hire and fire. He did not tell
21The Union had not included the names of these employees in any charge before the
third amended charge of May 31, 1949.
30 86 NLRB 711.
81 The list included the names of all who had not been reinstated as well as of some that
had been.
22 Bailey Department Stores, Inc ., 85 NLRB 312 ; Courier-Post Company , 71 NLRB 1188 ;
Southern California Edison Company , Ltd., 56 NLRB 1172 ; The Texas Co., 21 NLRB 110.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them that the assistant starter had such authority. The Respondent's contention
that the assistant starter was a supervisor was based on the fact that she sub-
stituted for the starter when the latter was sick, on vacation, and during her relief
periods in the building. She also operated an elevator to relieve an elevator
operator during two half-hour periods. Although she was expected to report
infractions of rules by operators,. she apparently had no authority effectively
to recommend discipline, and the only time when she made a recommendation,
as far as the evidence shows, Jacobs rejected it. The starter's principal occu-
pation is giving the electric signals to regulate the 'operations of the elevator
cars by the operators and giving information to the public in the lobby.. Elevator
starters are not necessarily supervisory employees excluded from the unit "
I would not presume authority of an elevator starter to hire and fire or other-
wise have supervisory authority where it was not expressly given, as here. The
fact that the assistant starter acts as a substitute in the starter's physical opera-
tions • is not in itself sufficient, in my opinion, to give rise to the presumption
that the. substitute thereby acquires the same authority to hire and fire that
the starter has. Authority may be given by an employer because he places
confidence in the person, and he might not be willing to give it to anyone in
the position of an elevator starter. The Respondent furnished lists of employ-
ees for use in evidence and noted thereon, by the word "supervisory," that the
forelady of the cleaning women, the engineer, and the elevator starter were super-
visors, but although the assistant starter is shown as a salaried employee rather
than hourly wage employee, there is no. notation that she is "supervisory." On
all the evidence, I conclude that the assistant starter is not a supervisor and
should be included in the unit.
There was testimony by one of two night watchmen that he spent about half
of his time operating an elevator during the night. I find that he, as well as
the other night watchman, is in the class of guards to be excluded from the
unit under the terms of the Act. These two cases require no restatement of the
unit heretofore found appropriate.
2. The Union's majority in the' appropriate unit
On October 1, 1948, the Respondent had 44 maintenance -and service employ-
ees in the appropriate unit, according to payroll information furnished by it.
There was offered in evidence a total of 36 union application cards. Of the 36,
27 bear dates before October 1, 1948. In addition to the 27 cards, there was
evidence that one card bearing date of October 8 was a replacement because the
first one, signed before October 1, was lost and that another card signed before
October 1 which was lost was not replaced by a new card.34 There was also
evidence indicating that an undated card (bearing neither handwritten date nor
postmark) was in fact signed before October 1, and that there may have been
other cards which inferentially were lost. It would be unnecessary, however, to
count beyond the 27, as that was enough to give the Union a clear majority. The
27 includes cards of two of the women discharged on October 1, Marion Burger
and Dorothy Gallagher. Although that of Burger, discharged about 6 p. m. that
night should be counted, that of Gallagher, who was discharged sometime dur-
ing the day of October 1 and whose discharge is not included in the complaint,
33 The J. L. Hudson Company, 56 NLRB 406; The Texas Co., 21 NLRB 110.
34 The first was that of Pauline Novinskey whose first card never reached the Union.
The second was that of Hazel Fekete whose card was lost after it was received by the
Union. Both should be counted. This increases the Union 's majority to 29.
INTERTOWN CORPORATION (MICHIGAN) 1177
may be eliminated on the ground that it was not clearly shown that she was
employed at the time of the receipt of the Union's letter. There still would re-
main a minimum of 26 cards dated before October 1, which were offered in evi-
dence. Counting the 2 lost cards there were 28. This was more than enough to
give the Union a majority.
I find that on October 1, 1948, and at all times material thereafter, the Union
was, has been, and is, the exclusive representative of all the Respondent's em-
ployees in the unit above found appropriate, for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
3. Conclusions on the refusal to bargain and on intereference, restraint,
and coercion
As previously related, the Respondent made no reply to the letter of Septem-
ber 30, in which the Union claimed to represent the employees. It refused to
bold a joint conference at the State labor mediation board on October 14
and until December 1948 no representative of the Respondent saw or talked
with a representative of the Union. Even then it was as a courtesy only to the
State labor mediation board. From the time of the receipt of the Union's
letter on October 1, all the evidence indicates a plan of opposition to the Union.
Bonin's sarcastic comment about having fun and condemning the Union as
communistic, while not prohibited speech, forecast the Respondent's opposition.
Even if (contrary to the findings herein) the discharge of three cleaning women
on the night of the very day of the receipt of the Union's letter of September 30
was not discriminatory, the timing thereof was calculated to create the impres-
sion in the minds of the employees that it was. It is interesting to note the
change in Harkiewicz' attitude with reference to the Union between the time
of what was, as far as the evidence shows, the first conversation that she had
about the Union, that with Novinskey, when her attitude was one of uncompre-
hending indifference and the time of the conversation with Burger when she
threatened that it would be "just too bad" when she found the "guilty one."
It seems not improbable that Harkiewicz, who reported to Bonin every day, had
in the interim reported her discovery to someone above her in management,
and had learned of management's opposition to the Union. Harkiewicz testified
that about mid-September she would find her women "ganging up" on her, would
find them off their floors talking to other women, and noted that they used
the back stairs to avoid her. Harkiewicz testified with reference to this that
She told Bonin that the women probably were not satisfied with their wages.
It may be mere coincidence that the day after Harkiewicz questioned Novinskey
about her union membership, Bonin recommended, in his memorandum to
.Pratt, an increase in wages to 72 cents an hour with a 30-hour week for the
cleaning women. But it is improbably that Harkiewicz, who gave evidence
of reporting even trivial incidents to Bonin, did not report her knowledge of
union activities. Her testimony, which placed her knowledge of union organ-
ization as after the wage increase, is too inconsistent with the credible evidence
to be accepted.
The questioning of employees by Harkiewicz and Jacobs was per se interference
and coercion, repeatedly condemned by the Board.' ' The solicitation of signa-
tures of the employees on an open ballot likewise was per se in violation of the
s' Standard-Coosa-Thatcher Co., 85 NLRB 1358,. and cases there cited.
1178` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act.36 All of this was inconsistent with a good faith intent to question the Union's
right of representation.
The meetings conducted by Pratt with the service crew and elevator operators
on October 25 had for their purpose the attempt to cause some or all of the em-
ployees to abandon the Union in favor of an independent union or of the A. F. of L.
An offer to a group of the employees to consent to an election to be conducted
by the State labor mediation board, even if clearly and unconditionally made,
would not be the equivalent of a proper notice thereof to the Union. On the
contrary, if would be further evidence of the Respondent's efforts to deal directly
with its employees to the exclusion of the Union. But I find that the so-called
offer of an election was conditioned on enough employees declaring, themselves
to satisfy Pratt that he was not successful in his efforts to turn them to an inde-
pendent union or to the A. F. of L. The very fact that, after this so-called offer
was made, Pratt called in the elevator operators to attempt to influence them
proves that the Respondent had not yet yielded to the Union 's demand for an
election. From Pratt's and Higgins' remarks to the first group of employees on
October 25, it is apparent that the Respondent approved the idea of a secret
ballot only if it would mean voting the Union out in favor of some other union
or no union ; hence the meetings on that clay. On.all the evidence I find that the
meetings of October 25 were not consistent with a good faith intent to question
the Union's majority representation. I do not find that any expression of views,
arguments or opinions by Pratt about the Union in these meetings was violative
of the Act. But insofar as the meetings were designed to learn the employees'
attitudes and sympathies, they were violative of Section 8 (a) (1) of the Act
and further support a finding of 8 (a) (5) of the Act.
The record shows that the Respondent had in mind that when Pratt returned
from Florida some wage adjustments would be made. But the Respondent ap-
peared to be postponing the date as long as possible . The hurried increases to
all employees during the first part of October immediately after the Union's claim
to recognition, especially when combined with the Respondent's ignoring of the
Union, were timed and designed to undermine the Union. It is also to be noted
that the increase of 10 cents an hour to the cleaning women was much more than
Bonin had recommended to Pratt in his memorandum of September 28. At that
time the rate was 70 cents an hour and he had recommended 72 cents. The 10-
cent increase made the rate 80 cents. Both the dinner for the elevator operators
with gifts of nylon hose and the promise of Thanksgiving turkeys to the cleaning
women were so out of the usual course for the Respondent as to be inconsistent
with routine increases and donations and as to characterize the whole program
of increases and promised benefits as one to lure the employees away from the
Union. I find therefore that the giving of the increases and making of gifts and
promised benefits at the time and in the manner in which they were given was a
violation of Section 8 (a) (1) of the Act and further supports a finding of Sec-
tion 8 (a) (5) of the Act.
In the light of all this evidence, I find that the Respondent's refusal to recognize
or bargain with the Union dates from'October 1, 1948.'7
When Pratt told Mary Smith, the assistant elevator starter, that if she wanted
to belong to the Union she would have to go back to being an elevator operator,
he was probably doing so under. a double mistake of law ( I) that she was a
supervisor and (2) that supervisors cannot be members of a union. A mistake
° Kentucky Utilities Co., Inc., 81 NLRB 1006; Stocker Manufacturing Company, 86
NLRB 666.
31 See Joy Silk Mills, Inc., 85 NLRB 1263.
INTERTOWN CORPORATION (MICHIGAN) 1179
of law does not, however, excuse what is otherwise a coercive statement a8 There-
fore, this statement likewise is found to violate Section 8 (a) (1) of the Act.
C. The discharges
1. The group discharge
a. The hiring and early employment of Novinskey, Burger, and Feteke
Pauline Novinskey was employed by the Respondent on November 21, 1946,
Marion Burger on October 8, 1947, and Hazel Fekete on July 8, 1948. Novinskey
had, before her employment by the Respondent, worked as a charwoman at the
Washington Boulevard Building for 2 years. When Novinskey started there,
Harkiewicz was also a charwoman there but later became forelady. Harkiewiez
recommended Novinskey to Bonin.
After Bonin had hired Burger as a cleaning woman, Harkiewicz put her with
Noviuskey to acquaint her with the rooms and routine. A month later, against
Harkiewicz' wishes, Bonin promoted Burger to the position of assistant fore-
lady at a wage of 75 cents an hour, 5 cents more than the rate for cleaning
women. This was the only time that Bonin could remember when there had
been an assistant forelady.
All hourly paid building service employees were hired by the Respondent on
a 30-day trial basis. If they were found satisfactory they were given a 5-cent
automatic increase. According to Burger's undenied and credited testimony,
Harkiewicz in July 1948 commented on the fact that Fekete was a very good
worker. The fact that she was retained at the end of that 30-day period con-
lirms Burger's testimony that her work was satisfactory at that time.
b. Burger's demotion
As assistant forelady, Burger trained the new employees, helped get the
equipment ready each night a half hour early, helped Harkiewicz with her
duties, and acted as forelady when Harkiewicz was absent. She continued as
assistant forelady until August 31, 1948. On that day Bonin made out a notice
of demotion for Burger in which he stated, "Due to the fact that it has been
forcably [sic] brought to my attention it is necessary for me to relieve you of
your duties as assistant forelady because you are not suited for the work."
Harkiewicz gave this to Burger that night and, according to the latter's credited
testimony, when she asked what it was about, Harkiewicz replied, "I'm sorry,
I don't know anything about it." The testimony of Bonin and Harkiewicz as
to the reason for the demotion is confusing. According to Bonin, it was his
idea in 1947 to have an assistant forelady, but when he told Harkiewicz to pick
one out Harkiewicz failed to do so. When Bonin asked why, she answered that
she could not make up her mind that any of the women then employed were
capable. Thereafter, when Burger was employed, Bonin thought she would make
a good assistant forelady and, without Harkiewicz' concurrence promoted her
after her 30-day trial period. Bonin testified that in the several conferences
he had with Harkiewicz she never did seem to be too well pleased with Burger
as an assistant. "She possibly didn't like the way she combed her hair, I
don't know. But I know that she did say she wasn't much good on several
occasions." Some of the criticism of Burger which Bonin testified to he placed
as after her demotion and was not such as would have been cause for her
88 American Needlecrafts, Inc., 59 NLRB 1384; Standard- Coosa-Thatcher Co., supra.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demotion. His testimony of what led up to Burger's demotion was somewhat
vague and confused. While Harkiewicz was away on her vacation [which I
fix as the 2 weeks preceding August 10, 1945] Burger acted as forelady. "During
that period," testified Bonin, "I could not place my finger exactly on anything
that was wrong, but I felt something was wrong because of the number of
complaints that were being registered with the Building Office [relating to] the
quality of the cleaning or absence of cleaning. Of course, there were, always
have been, quite a few complaints. They seemed to increase during this period
to' a small extent. Subsequent to Mrs. Harkiewicz' return from her vacation
there were a lot of small matters that turned up at that time, petty thievery,
and offices that had never been entered, the waste paper baskets that weren't
even emptied and the ash trays still full of cigarette butts, indicating that no
one had even entered the offices. At that time we felt it must be due to poor
supervision." As the latter incidents occurred after Harkiewicz' return from
her vacation, according to Bonin, the poor supervision, if such was the cause,
would seem to be primarily Harkiewicz' fault. There was evidence that the
labor turnover was very high in the summer of 1948. According to employment
records, 15 janitresses (cleaning women) quit between June 1 and September
30. Bonin testified that he had to hire S cleaning women to get 4. Also,
absences of cleaning women were frequent. The shortage of cleaning women in
the summer would be the first explanation that an administrator would think
of as a cause for the complaints of inadequate cleaning. In a memorandum
from Jacobs to Pratt on September 7, while Pratt was in Florida, she reported
that 6 new night janitresses had been hired that day to bring the total to 26
and that Bonin had said this number would be trimmed down to 24 or 25. Em-
ployment records disclose that 2 of the women hired on September 7 quit by
September 11. At the end of September, the night cleaning force consisted of
21 night cleaning women. On cross-examination Bonin admitted that the Re-
spondent was short handed while Pratt was in Florida and that when a woman
was absent Harkiewicz would tell the women to hurry their work to do the
work of absent women. Bonin's attempt to blame Burger for the tenants'
complaints and his ignoring the shortage of labor makes it appear that his
testimony was biased, that he was consciously framing his testimony to be
most favorable to the Respondent's interests. Other portions of his testimony
likewise lead me to this evaluation of his testimony. His bias led him into
inaccuracies and contradictions. I find his explanation of Burger's demotion
unconvincing.
Burder testified that during Harkiewicz' vacation she heard no complaints
from tenants and that Bonin did not speak to her about any. She testified that
during that time she asked Bonin for a raise in pas' and that Bonin had replied
that if he gave her one he would have to give one to all the cleaning women.
She asked him if he did not think they were all entitled to one and he answered
that he thought they were and he would see what he could do. She asked
Bonin if he could not let her have Harkiewicz' salary while the latter was on
vacation , but Bonin refused.
Harkiewicz testified that when she returned from her vacation some of the
cleaning women would tell her that Burger spent most of her time on the 30th
floor with Novinskey and that they could not get good service from her, that
she would not come right away when they rang the bell for her to get soap.
Burger testified that she was not told of any complaints from cleaning women.
Harkiewicz further testified that cleaning woman, Mary Zaluki, told her that
INTERTOWN CORPORATION (MICHIGAN) 1181
she saw Burger going through Bonin's desk and that "Burger was showing my
check to the women," that she took Burger to Bonin's office and that Bonin
questioned Burger about it and she did not deny it-she just laughed about it.
Harkiewicz explained that by "showing her check" she meant that Burger
"went from floor to floor and was telling the women I made so much money." 3°
She further testified that she told Bonin the next day to discharge Burger but
that Bonin had said he would not do so but that he was going to demote her:
Oddly enough, Bonin, who was asked the reason for Burger's demotion, men-
tione(l no such incident and did not tell about the conversation related by.
Harkiewicz. Burger was not asked about this by Respondent's counsel when
she was on the stand, and Mary Zaluki, the cleaning woman named by Harkie-
wicz as the source of her information, was not called as a witness. As I have
found Harkiewicz an untrustworthy witness, I do not credit her uncorroborated
story. From all the testimony, I conclude that there were a few tale bearers
among the cleaning women who would report things to Harkiewicz and that, as in
most cases of tale telling, the stories became more distorted each time they were
told. Harkiewicz, herself, had a tendency to exaggerate and to testify to some-
thing as habitual which there is every reason to believe was based on a single
report to her. Furthermore, she seemed to take a malicious pleasure in so word-
ing her testimony about Burger as to vilify her. For example, Harkewicz,
after casting suspicion upon Burger's honesty, was asked to enumerate all the
things Burger was supposed to have taken. After naming a number of things
i_ which will be more fully covered later herein) mostly based on hearsay, Harkie-
wicz testified, "She went through a woman's purse. She told me herself she'
had done it." It turned out on further cross-examination that the purse be-
longed to a cleaning woman who had been seriously hurt, that Harkiewicz had
given the purse to Burger and had taken the woman to a doctor, presumably in
the building, that they had sent the woman home in a cab, and that when Harkie-
wicz afterwards vocally expressed her concern over whether the woman had
had enough money, Burger, according to Harkiewicz, said, "I looked in her -purse,
opened up her purse and she had a lot of money." I would conclude that Burger
thought in advance of what Harkiewicz thought of too late-the injured woman's
ability to pay for her transportation. I ain fully convinced that Bonin was aware
of Harkiewicz' distaste for an assistant. He had to appoint one in the first place
over Harkiewicz' own wish and he testified that no assistant forelady' was ap-
pointed after Burger was demoted, although in his- opinion one was needed;
because Harkiewicz was unable to recommend anyone for the job. He was also
aware of the fact that Polish women did not always get on well with women of..
other nationalities. Harkiewicz gave evidence of being extremely jealous of
her authority and of looking upon an assistant as an encroachment upon that
authority. Bonin, an intelligent man, undoubtedly realized that many of Harkie-
wicz' tales about Burger were petty incidents exaggerated by Harkiewicz. Al-
though it is possible that Bonin demoted Burger because he felt that Harkiewicz
never would get along with an assistant forelady, I am not at all convinced that
the real reason was revealed in any form. A scrap of evidence here and a scrap
there give rise to the suspicion that Burger may, during Harkiewicz' vacation,
have talked about a union as a means of getting a raise,-but the evidence is
too insubstantial to make a finding. thereof.
^ After this explanation, Respondent's counsel asked, "You mean she got your check
out of Mr. Bonin's desk?" Harkiewicz answered, "Yes, and was showing it." Her vacil-
lating. testimony did not inspire confidence in its accuracy.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Union activity of Burger , Novinskey , and Fekete
Burger signed an application card for the Union on September 25, 1948, and
she asked a number of employees to join. She gave union application cards to
seven cleaning women,• including Novinskey. Burger testified that she went
down the back stairs from the 9th floor where she was working to the 6th floor
to give a card to Ceole Daniels, one of the cleaning women. As Daniels' appli-
cation card was dated September 25, 1948, that, presumably, was the date of
the incident. Harkiewicz was aware of the fact that the women, and specifically
Burger, would use the back stairs to see one another and to avoid her, She
testified, "Sometimes I would go to a certain floor and I couldn't find my women.
They would be working on the 9th and I would find them on the 6th floor." She
identifies Burger as one of those she discovered doing that. Iarkiewicz' sus-
picions were aroused by this, as she reported to Bonin that there was something
wrong. She testified that a couple of days later she observed a similar instance
of women being off their floors,90 that she spoke to the women about it and that
was the last they did it in the halls, that after that they would do their talking
around the time clock. As previously found, Harkiewicz began to question the
cleaning women about their union membership and activities at about this time.
The conversation she had with Burger about the meeting of September 30, in
which she threatened discharge to those who went to meetings has been previously
related.
Novinskey received her application card from Burger and signed it about
September 27 or 28. She testified that she was told at the union hall by other
members to turn the cards in to the night watchman to be picked up later by
someone else and that she turned her card in to a night watchman with a first
name of Norman. The only night watchman of that name is Norman Walls. He
did not sign a union application card, although the other night watchmen did.
The Union never received this card that Novinskey signed. Walls was called as
a witness by the Respondent to testify about other subject matter but did not
40I believe this was another instance of Harkiewicz exaggeration or fabrication and was
brought about by the suggestion of counsel in the following manner :
Q. Well, how long after the first time you saw that grouping did you see another
grouping of that type?
A. In the dressing room. They would hear me coming with the keys, or something,
everybody would say , "Here she comes ." I heard that quite a few times.
Q. Did you observe them on any other occasions , except the one you mentioned,
being gathered together in the building somewhere other than the dressing room?
A. Yes , they were on their work . They are supposed to be working on a certain
floor ; they would be on another floor.
Q. What I am trying to get now , the second time you observed them while they
were supposed to be working on their stations or floors?
A. That's right. '
Q. Was there a second time that you saw them grouping together like that?
A. Yes.
Q. Well, how long after the first time was it?
A. Maybe a couple of days later they would do the same thing.
Q. Did you talk to them again about it?
A. No, I talked to Mr. Bonin. I told him that probably they are not satisfied with
the wages.
Q. Did you talk to the women again after you saw them the second time going away
from their stations and gathering in groups?
A. Yes, I talked with them in the dressing room where everybody was in the dress-
ing room.
Harkiewicz' testimony was filled with such shifting answers.
INTERTOWN CORPORATION. (MICHIGAN) 1183
explain about Novinskey's card.91 When Novinskey learned that the Union had
not received her card she signed another one. As previously related, on the
night that Novinskey turned her first card in to Walls, Harkiewicz asked her if
she had signed a card, and Novinskey replied that she had.
Fekete was asked to sign a union application card about September 20 by one
of the elevator girls, who gave her two extra cards at the time and asked her
to pass them on to cleaning women. Fekete signed one card and gave it back
to the elevator girl and gave the other two to other cleaning women. Several
other cleaning women asked Fekete for application cards, having heard that she
had them. Fekete's card was not offered in evidence, although she testified that
she saw it in McClow's custody when she paid. her union dues on October 8.
d. The discharje of Burger, Novinskey, and Fekete
On October 1, 1948, Fekete did. not come to work. Burger and Novinskey with
the rest of the women had to wait in the dressing, room for Harkiewicz, who
was not there at starting time as she usually was. When Harkiewicz did come,
she called Burger and Novinskey, saying that Bonin wanted to see them in the
engine room. There, Bonin told Burger and Novinskey that their work was un-
satisfactory and that he was letting them go and he handed them their checks.
Novinskey asked Bonin if it had taken him 2 years to let her know about her
work. He told Novinskey that there had been a lot of complaints about her work.
Novinskey asked why she had not been notified. Bonin did not answer. In
testifying, Bonin could not remember these remarks of Novinskey, but he tes-
tified that she told him, she knew why he was firing her, that he asked why, and
that she just answered, "That is all right, you know," 4: and that she left the room,
saying that she would be back. Bonin testified that just before discharging these
two women he had made a speech to all the women. Olech testified that Bonin
warned the cleaning women, just after he had discharged Burger and Novinskey,
that more would be discharged if there were any more reports of unsatisfactory
work. It is apparent that the discharge, in the presence of the other women, was
intended to inspire fear.
When Fekete arrived for.work on Saturday; October 2, her time card was not in
its customary place. When she reached the basement, Harkiewicz met her and
said, according to Fekete's credited testimony, "You don't work here no more."
Harkiewicz took her to the office on the third floor, and took an envelope contain-
ing two checks from it. One was her check for the pay period ending September
30, and the other was for the day before when she did not work. As Harkiewicz
took Fekete to her locker, Fekete asked why she was discharged and if it was
because she had not come to work the night before. Harkiewicz replied that
that was not the reason and that if she had come the night before she would
have been given her checks then. Fekete asked the reason for her discharge and
Harkiewicz said because Fekete's work was unsatisfactory. When Fekete dis-
puted that, according to her testimony, Harkiewicz said, "Don't argue with me ;
argue with the boss." Fekete told Harkiewicz that she had been her boss, and
Harkiewicz said, "Well, maybe it is the face we don't like." Fekete said that
her face had nothing to do with her work and that maybe -the reason for her
41 G. C. counsel asked Walls if any cards had been passed to him . Walls answered, "Well,
there might have been some passed .out, but if they asked me to hand them to someone-"
He never finished nor was asked to finish this answer. '
49 The reporter 's punctuation tends to change the meaning of this quotation . The em-
phasis was on the word "you."
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge was that she had argued with a woman named Martha. Then as related
by Fekete, Harkiewicz said, "When you work around here, you have to keep your
mouth shut." The allusion to an argument with Martha, whom I identify as
Martha Cebulski, was explained by Fekete as follows : Fekete had heard from an
elevator girl that Cebulski had shown a union application card to Harkiewicz.
Fekete told Burger and Burger spoke to Cebulski. Cebulski then came to Fekete
and asked who had told her that. Cebulski, called as a witness by the Respondent,
was not specifically asked about this, but on cross-examination she identified
Burger and Fekete as leaders, and testified that Burger started the union move-
ment while Harkiewicz was on her vacation" Cebulski did not join the Union.
She-testified she would have "if the Company would have got a Union."
e. Reasons given for Burger's discharge; conclusions
Bonin testified on direct examination that he thought Burger would quit when
he demoted her, but that he thought then that she would be given a chance,
"but we didn't have too much experience as to capabilities of Marian Burger in
relation to cleaning offices, in relation to being a janitress steady. Understand
that she did clean offices during her term as an assistant supervisor. However,
they were of short duration . . . But when Marian was demoted to janitress,
why, we found that she actually wasn't a very good one at all. That was one of
the contributing factors to her discharge, or possibly the main one." On cross-
examination Bonin admitted, when shown by the records that Burger had been
hired as a janitress and had served as such for the 1-month trial period before
her promotion, that his memory had failed him. Bonin's memory failed him again
when he testified : "Well, as I recall it, the decisions accumulated. The actual
decision possibly to discharge the women who weren't doing a good job accumu-
lated from the time Mr. Pratt returned and we had a subsequent conversation to-
gether up until the time of the actual act of discharging three cleaning women.
What I mean to say, the decision wasn't made in a minute. It was an accrual of
,opinions and facts over a period of time." Of course, Pratt did pot return until
after the three women were discharged. If Bonin talked to Pratt about it in
advance it must have been by long distance telephone. On redirect examination,
Bonin was asked to fix a time after Pratt's return when he discussed his authority
to discharge. Bonin answered, "Well, I believe it was possibly 3 or 4 days after
his return. The discussion was in generalities, as near as I can remember. I
might have mentioned some names through reports, written reports from Frances'
notes about Marian Burger, possibly, and Pauline Novinskey, but I hate to swear
to it. It is a little bit too hazy." No such reports or notes of Harkiewicz, if they
existed, were offered in evidence, to clarify matters.
The only other criticism that Bonin testified to concerning Burger was stated
by him in response to a question about Burger's demotion. Concerning the high
labor turnover, he testified that just before Burger's discharge "it was brought to
my attention by Mrs. Harkiewicz, but I couldn't say how she got her information,
that part of this turnover, unusual turnover, was due to her [Burger]. She
talked too much." Nothing was said to Burger about this, apparently ; it was
not one of the reasons.stated by Bonin to Burger at the time of her discharge ; and
it was not included on the Respondent's personnel records as a reason for
43 If Cebulski so reported to Harkiewicz in August ,* this might account for Burger's
demotion . Harkiewicz associated the group conversations with the period following, her
vacation in her own testimony.
INTERTOWN CORPORATION (MICHIGAN) 1185
Burger's discharge. The payroll notice as originally typed stated merely,
"Dismissal. Employee's work was not satisfactory."
The Respondent's answer enumerated several grounds for Burger's discharge
in narrative form: (1) Insubordination; (2) Burger asserted resistance to the
authority of her superior forelady continuing to the time of her vacation from
July 28 to August 9; (3) upon her return from her vacation the forelady reported
to management that Burger, during the forelady's absence., had attempted to
promote discord among the crew of cleaning women and against the forelady,
that management investigated " and found that Burger had stimulated resistance
to the authority of the forelady and insubordination among the cleaning crew,
and that Burger was demoted to janitress, (4). that subsequent to the demotion
of Burger, a tenant reported the disappearance of miniature bottles of whiskey
from his office, that shortly after this report, Burger was reported as having
exhibited that kind of bottles in the cleaning crew's rest room and claiming that
a tenant had given her the whiskey, and that in order to avoid having the matter
reported to the prosecuting attorney's office, management decided to and did
discharge Burger.
In view of the fact that the only ground given on the original personnel record
was that Burger's work was not satisfactory, a reason not specifically stated
in the answer, the enumerations in the answer, appear as afterthoughts to bolster
the Respondent's case. There was no evidence that even approached a proof
of insubordination by Burger. And if, as the answer states, her resistance to
authority continued until the time of I3arkiewicz' vacation, it may be wondered
why the Respondent so long tolerated it. Harkiewicz testified to differences of
opinion she had with Burger on the qualification of employees but nothing that
could be called insubordination. There was no substantial evidence that Burger
was promoting discord among the cleaning women and against the forelady, and
Burger denounced any such accusation as false. The only clues to any activities
of Burger during Harkiewicz' vacation that might have promoted discord are
Burger's testimony of her conversation with Bonin concerning a raise in pay,
Cebulski's testimony that Burger started the union talk during Harkiewicz'
vacation, and Harkiewicz' testimony, "the women were telling me different things
'what was going on when I was on my vacation," such as that Burger would spend
most of her time on the 30th floor with Novinskey and that when the women
would ring for Burger they would not get good service. But the last even if true
would not substantiate a charge of promoting discord among the women and
against the forelady.
Although not mentioned in personnel records, Respondent's answer, or Bonin's
testimony, Harkiewicz testified of Burger on, direct examination for the Re-
spondent that."on a certain floor that they would work, we would always have
the complaint that she-on the floors that I would put her, well, I usually
would get a complaint something would be missing." On cross-examination,
I3arkiewicz testified that from sometime in January 1948 things would be
missing from the place where Burger worked ; that she took magazines, cut
recipes from magazines, took candy and cookies, tried clothes on, went through
Bonin's desk, and went through a woman's purse. The last two have already
been related. Later Harkiewicz volunteered, "I get these complaints now, too,
'* Compare Bonin's testimony of Harkiewicz' report that he did not know where
Harkiewicz got her information.
903847-51-vol. 90 76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that candy is missing . It doesn't mean anything ." Harkiewicz named Ethel
Mangrum, Martha Cebulski, and Helen Haranczak as the source of her knowl-
edge about things that Burger had taken. The first two were witnesses for the
Respondent but neither gave testimony thereon except Cebulski as to the item
mentioned in the answer, which will be related below.
On cross-examination of Harkiewicz it was brought out that a cleaning
woman named Anna Bochenek was discharged by Bonin after Burger had
"jumped her" for taking newspapers from the newsstand in the lobby without
paying. This occurred in June 1948 according to an exhibit showing the date
of Bochenek's discharge. This incident would scarcely portray Burger as one
of a larcenous disposition.
The incident which the Respondent relied upon in its answer-the taking
by Burger of miniature whiskey bottles, was related as follows: Harkiewicz
testified that during the vacation of Katherine Radzienta, which was fixed
as the period beginning August 30 and ending on Labor Day, September 6, she
assigned Burger to take Radzieuta's floors, including the office of a Dr. Cyril
Dyer on the 16th floor, and that on a Thursday during that period (which would
have.to be September 2) Burger came down to the restroom about 15 minutes
before quitting time when only Burger, Cebulski, and she were present ; that
Burger took two minature bottles of whiskey from her apron pocket, showed
them, and remarked that a doctor had given them to her. Cebulski had already
given the same testimony although not in such great detail. Harkiewicz testi-
fied that about September 13 or 14 Jacobs asked her, "Frances, do you know
if any of the woman [sic] have ever displayed miniature whiskey bottles?"
Harkiewicz testified she then told Jacobs that Marion Burger had a couple of
them.
Jacobs testified that early in September, Dr. Dyer's office reported that minia-
ture bottles of whiskey disappeared and that later she got a report from him
that a third had disappeared, that later in the month, while she was talking
with Harkiewicz the latter told her that Burger had displayed a couple of
miniature whiskey bottles and had said that Dr. Dyer had given them to her.
Several inconsistencies between the testimony of Jacobs and Harkiewicz, and
in the latter's own testimony, as well as the testimony of Dr. Dyer and his as-
sistant, lead to the conclusion that the whole story, with the exception of the
fact that Dr. Dyer missed two miniature bottles of liquor which he had in his
office and made a report thereof to the building office, is an outright fabrication.
Jacobs put Radzienta's vacation as extending from September 5 to 12. Harkie-
wicz was pretty sure it was from August 30 to September 6, both inclusive, be-
cause she said Radzienta had especially asked for that time which included a
holiday. If Radzienta's vacation started on August 30, she would have had the
benefit of an extra day with Labor Day coming on September 6. It would have
been of no extra-benefit to her-if Labor Day came within the regular week of
Radzienta's vacation as Jacobs fixed it. So it is more likely that Harkiewicz'
memory was correct. Harkiewicz put her conversation with Jacobs as about
a week after the bottles were allegedly displayed by Burger. Jacobs put it close
to the end of the month. It would be difficult to explain why Burger was not
immediately discharged if she was identified in inid-September as a thief. Har-
kiewicz got herself into difficulty in testifying when she was trying to explain
how Burger and Cebulski were in the restroom 15 minutes ahead of the other
cleaning women on the night Burger was supposed to have displayed the bottles.
She first testified that Burger got to the dressing room early because Burger
was her assistant and had to help her put things away, and that -after Burger
INTERTOWN CORPORATION (MICHIGAN) 1187
was demoted to cleaning woman she no longer got down early. After she was
shown that Burger was demoted as of September 1, she changed her testimony
and said that even after Burger was demoted she "still was coming down in the
basement."
No reference to the bottle theft was made on Burger's personnel card at the
time of her discharge. Two such cards are typed. The one which was retained
by Jacobs contained a penned inscription adding the alleged theft. Jacobs gave
no satisfactory reason why the notation was not typed on at the time the card
was originally prepared, and she testified that she could not swear that the
,penned inscription was added before November 1. Furthermore, the bottle in-
cident was not reported to the Michigan Unemployment Compensation Commis-
sion in the Respondent's first report on October 9, 1948. It was mentioned in
a later report dated December 7, 1948.
The testimony of Dr. Cyril Dyer and his assistant, Irene Maine, discloses that
Maine brought Dyer about five miniature bottles of liquor when she returned
from her vacation the day after Labor Day; that about a week or 10 days later
Dr. Dyer opened the drawer of his desk and noticed that a bottle of Southern
Comfort was missing. He called attention to this and Maine reported the loss
to the building office. Dr. Dyer missed another one of the bottles a few days later.
Maine testified that she did not report this second loss to the office as far as she
could remember. Burger denied having taken such bottles or even having seen
them.
As the two bottles were not missing from Dr. Dyer's office at the same time,
it is extremely improbable that, had Burger been the thief, she would have
pulled two of them out of her apron pocket at the same time to show to
Harkiewicz and Cebulski. As Burger was not, after Labor Day 1948, an assist-
ant forelady, she would not have reached the rest room so far in advance of the
other women. And if Harkiewicz' memory of the time of Radzienta's vacation
is correct (and certainly the forelady would be more likely than Jacobs to
remember that) Radzienta was already back from her vacation before any such
bottles were even present in Dr. Dyer's office ; so Burger would not have had
access thereto at that time. If Burger had taken such bottles without permis-
sion, it is extremely improbable that she would have exhibited them to Harkiewicz
at all. One who takes by stealth, does not, as a rule, disclose the booty to
one who might later learn the facts and punish him. As no accusation of Burger
was made by the Respondent at the time of Burger's discharge, or in fact even
to the Unemployment Compensation Commission in the first report of discharge,
I am convinced that the idea of blaming Burger for the loss of the bottles was
conceived some time after Burger's discharge. Cebulski was a biased witness
who bore Burger a grudge for an incident that occurred during the strike.95 Both
she and Markiewicz showed their animosity for Burger in their testimony. Be-
cause of this, because both gave testimony that was not credible, on all the evi-
dence and my observation of the witnesses I discredit the testimony of Cebulski
and Harkiewicz that Burger exhibited miniature bottles of whiskey to them or
told them that they had been given to her. Furthermore, I discredit all testi-
mony that any report that Burger had shown such bottles was made by Har-
kiewicz to Jacobs before Burger's discharge.
u When Cebulski . was going to work one day during the strike, she testified , Burger
pushed her up against the building and berated her for working instead of joining the
strikers. Cebulski testified that Burger raised a paper as though to strike her. However,
she made her way into the building alone with no apparent harm. Police were stationed
in front of the building most of the time during the strike.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering the shifting grounds of the Respondent's defense together with
all the evidence, including that hereinafter related, I conclude that the Re-
spondent discharged Burger because of her union membership and activity, and
not for any legitimate reason.
f. Reasons given for Novvnskey's discharge; conclusions
The Respondent's answer alleged that Novinskey "was discharged for un-
excused absenteeism, and for insubordination to the forelady of cleaning
women, while tenants complained of work done" by her. Harkiewicz testified
that the cleaning women were frequently absent without advance notice, that
no one had ever been discharged< for that reason, and that Novinskey was not
discharged for such reason although she was absent quite a bit. Harkiewicz did
not testify to any act of insubordination. She testified that she had a personal
reason for Novinskey's discharge that the Respondent did not know about-
that she had discovered about 6 months or a year after Novinskey was hired
that she was spreading false rumors about her. As Bonin was the one who
discharged Novinskey, as he had no knowledge of this reason, and as Harkiewicz,
by her own testimony, must have known of such act by Novinskey, if such there
was, at least a year before Novinskey's discharge, I conclude that this had
nothing to do with the real reason for Novinskey's discharge.
The only cause for discharge upon which Bonin and Harkiewicz agreed was
a complaint from the switchboard operator of the Dearborn National Insurance
Company that she had found near her desk orange peel and the seeds of two
oranges. Harkiewicz testified that the switchboard operator claimed to have left
the peel on the floor for several weeks to see when the cleaning woman would pick
it up, that she had told Bonin that Novinskey would not pick it up, but that
Novinskey picked it up "after I told her." Harkiewicz described the refuse as two
seeds from an orange and the peeling spread out on the floor. Bonin testified that
the two seeds were stuck in the switchboard plugs as though they had been delib-
erately put there by someone and that the cleaning woman would not have been
expected to do anything about them if she had not put them there herself. Later
Bonin testified that, when he went to investigate, the seeds were no longer there
but the operator pointed to a fairly fresh piece of orange peel on the floor.
Although Bonin placed this in late August or early September, Harkiewicz' testi-
mony placed the complaint as before her vacation and therefore in July 1948.
Novinskey admitted that the switchboard operator had complained about her
place being dirty and that Harkiewicz had once told her about the orange peel
complaint a few months before her discharge, but she testified that the switch-
board operator was the only one who ever complained. Harkiewicz, in her
testimony, appeared to be attempting to expand trivia. On direct examination
by Respondent's counsel; Harkiewicz testified that orange peels would be under
the desk for weeks and would not be swept, that the complaint was made to the
office and that she got a note on it. This would appear to be the complaint Bonin
investigated when he learned of the seeds in the switchboard plugs and a fairly
fresh piece of orange peel under the desk. Further, on direct examination,
Harkiewicz testified that the switchboard would not be dusted, the floor would be
dirty, and there would always be something spilled on the switchboard-"It
looked purposely to me." On cross-examination, Harkiewicz testified that the
spots on the switchboard were from "some kind of water." Bonin testified to only
one complaint having been received from the switchboard operator although he
testified that Harkiewicz told him of other instances. As Harkiewicz testified
INTERTOWN CORPORATION (MICHIGAN) 1189
that she got her information on the switchboard operator's complaint from the
office, it is difficult to understand how Harkiewicz got any complaint to report to
Bonin about. The switchboard operator was not a witness. Harkiewicz also
testified that someone named Klein on the 30th floor, before her vacation and
therefore in July, told her that the floor was not swept the way it should be. As
already stated, Novinskey was absent frequently. There was no attempt to prove
that any complaints occurred at a time when Novinskey was at work. That a
floor was not swept as it should be at a time when there was a shortage of clean-
ing women and when they were being rushed with their work is understandable.
On direct examination, Harkiewicz testified that the complaint from the switch-
board girl and Klein were the only complaints she could remember, but then
testified that complaints came in after her vacation and that she spoke to Novin-
skey about them. She gave no specifications on such complaints.
The Respondent's inability to specify any complaint of Novinskey's work
after July leaves the discharge of Novinskey on October 1 as unsatisfactorily ex-
explained. I find that the reasons given by the Respondent for her discharge
were not the real reasons, that in fact Novinskey was discharged because of her
union membership and activity.
g. Reasons given for Fekete's discharge; conclusions
The Respondent's answer states that Fekete was discharged for unsatis-
factory work and her unwillingness to cooperate with the forelady in improv-
ing the unsatisfactory character of her work. Bonin and Harkiewicz, however,
added a reason or two not given in the answer. Bonin testified that Harkiewicz
told him Fekete was working on another job and that Fekete smoked on the
job after Harkiewicz had objected. Bonin testified that he did not recall spe-
cifically what was unsatisfactory about Fekete's work, but he assumed it must
have been unsatisfactory because he otherwise might have overlooked her smok-
ing. Harkiewicz testified that Fekete was tired and could not perform the work
she wanted her to, that Fekete had another job-taking in washing and working
in a market on a picking machine. Harkiewicz testified that she heard about
this from another cleaning woman about a week before Fekete's discharge.
Harkiewicz also testified that a Dr. Kiprie complained, that she took Fekete to
Kiprie's office and showed her how to do the work but that Fekete did not do
any better. She further testified that she caught Fekete smoking in a Dr. Shire's
office in August, that she spoke to Fekete and told her to smoke in the halls or
rest rooms rather than the offices. She did not testify that Fekete violated these
instructions, although she testified that Radzienta told her Fekete continually
smoked. On cross-examination, Harkiewicz testified that the Kiprie complaint
was in September but before she had caught Fekete smoking in Dr. Shire's office.
As she had already placed the smoking incident in August, the inconsistency
is apparent. Harkiewicz did not deny that she told Burger, as the latter had
testified, that Fekete was a very good worker. Fekete testified that she did what
Harkiewicz told her to do and that Harkiewicz never told her to do anything
over again. She denied that Harkiewicz ever spoke to her about her work,
volunteered that Harkiewicz had once told her that she had forgotten to lock
the doors, and that she had asked for, and Harkiewicz had given her, extra
work when other women were absent. Harkiewicz did not deny this. On cross-
examination, Harkiewicz testified that the two reasons for Fekete's discharge
were, first, she was tired because of her other job, and, second, her, smoking.
A request for extra work would not be likely to come from a tired woman. After
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harkiewicz had been led to the admission, on cross-examination, that Fekete's
job in the market was only on Saturdays, she shifted her emphasis to her con-
tention that Fekete took in washing. But on direct examination she had testi-
fied that she learned of Fekete's other jobs only a week before Fekete was dis-
charged. No evidence was offered as to how long Fekete had had such other
jobs. If she had had them any length of time, Harkiewicz would have noticed
Fekete's fatigue, if any, during her trial period. She was apparently a satis-
factory worker or she would not have been retained beyond the 30-day period.
If Harkiewicz was told a week before Fekete's discharge that Fekete had out-
side work, she apparently had not thought before then that Fekete was too tired
to be retained. I conclude that Harkiewicz thought up the fatigue excuse after
Fekete was discharged. That Fekete was an habitual smoker may be conceded.
But that was known shortly after Fekete was hired. If that had been thought
to be a ground for discharge, Fekete would have been discharged before the end
of her trial period or, at the latest, when Harkiewicz caught Fekete smoking
in an office. If either of the reasons given by Harkiewicz was a true one, the
cause for discharge would have been known long enough in advance so that
Harkiewicz could have warned Fekete that she would be discharged if the fault
were not corrected and long enough to have at least given advance notice that
she would be released at the end of the week. Failure to give any such notice
leads to the inference that the decision to discharge Fekete as well as the
others was made on October 1, the day of the receipt of the Union's letter. On
all the evidence and from my observation of the witnesses, I find that the rea-
sons given by the Respondent for Fekete's discharge were not true reasons ; that
in fact Fekete was discharged because of her union membership and activity.
As her discharge was intended to take effect on October 1, I find that that was
the date of her discharge rather than October 2 when she was notified.
h. Additional evidence as to reasons for the discharge of Burger, Novinskey, and
Fekete; general conclusions
As previously stated, an elevator operator was discharged on October 1."
Gabriel Gory, a night watchman, testified to the following : On October 2, when
he reported for work, Bonin told him that because of the lack of an elevator
operator, he was to skip his first two rounds as a watchman and run an elevator
that evening. He did so. That night between 8: 30 and 9:30 o'clock, he saw
Harkiewicz in the lobby and asked her, "Where's the elevator operator?" She
replied, according to Gory, "Didn't you hear, they were organizers." Gory asked
what she meant and she told him that they were organizing a union, that she was
a supervisor and could not join, that she had worked at many places and had had
experience with them, that the leaders spent most of their time drinking and
chasing around, that as far as the work is concerned the Union "would not benefit
you." She gave him this example, Gory testified : "If a union woman cleans an
office, I can go in there afterwards and run my finger over a molding and say,
`Look, this place is dirty. You'll have to clean it over again,"' and "they'll get
disgusted and finally we can actually fire them for unsatisfactory service." He
also quoted Harkiewicz as saying they were short of cleaning women and that
they were organizers. Harkiewicz testified that he did not recall a conversation
with Gory; then she added, "I never talked to him. I used to be afraid of him."
b Her discharge was not complained of as discriminatory in the complaint and I draw no
inferences respecting the others from her discharge.
INTERTOWN CORPORATION (MICHIGAN) 1191
Harkiewicz did not give the appearance of one who would be afraid of anyone,
much less one of Gory 's slight physique . Although I feel that , in view of the
lapse of time , Gory may not have remembered the conversation precisely, Gory
impressed me as a sincere and honest witness and I find that the conversation in
substance took place as he related it.
Mary Muraszewski testified that on a night after the discharge of Burger,
Harkiewicz assigned her extra floors to clean and that Harkiewicz had said it
was "because I sent those three women home ." Muraszewski asked why and
commented that they were good women . Harkiewicz said , according to Muras-
zewski, "They were too smart ." Muraszewski asked why and whether it was
because of the Union. Then , according to Muraszewski , Harkiewicz said, "The
whole bunch of you aren ' t worth anything ," got angry and left.
There was no attempt by the Respondent to show what precipitated the decision
to discharge Burger, Novinskey , and Fekete on October 1. But Harkiewicz vol
unteered a statement which might throw some light on this . After relating the
grouping of the cleaning women in mid -September and her discovery that they
were holding conversations which they apparently did not wish Harkiewicz to
overhear , after relating that she had reported this to Bonin and told him that
something was wrong and that the cleaning women were probably not satisfied
with their wages , and after testifying that she had spoken to the women about
not grouping up and that thereafter they had not done so but they had done their
talking around the time clock , Harkiewicz volunteered , " I recommended her
[Novinskey 's] discharge . Then may be my crew would get scared and start to
perform their work right if we discharged these three women.".
As previously pointed out , when Jacobs wrote her report to Pratt on September
7, she noted that 6 new night janitresses had been hired that day, bringing
the total to 26 , and that Bonin stated the number would be trimmed down to
24 or 25. Before the hiring of these women , the Respondent had admittedly
been short-handed. Before October 1 , the Respondent had lost several of the
cleaning staff, and on September 30 had 21 night cleaning women 47 The dis-
charge of Burger, Novinskey , and Fekete reduced the number to 18. Considering
the difficulty which Bonin admitted he had in procuring cleaning women, and
considering the fact that , when they had 20 cleaning women , they were short-
handed, and further considering the fact that 24 or 25 was apparently the
optimum number , it is inconceivable that the Respondent would reduce its staff
below even the minimum number it had been struggling along on (luring the
summer, especially by dropping experienced employees who had been satisfactory
enough to retain at the time when the faults relied upon for their discharge
were supposed to have been noted, unless something occurred just before the
discharge to cause the Respondent , suddenly to make such a decision . But the
only event which could explain such a sudden decision was the Respondent's
receipt of the Union 's letter of September 30, claiming to represent a majority
of the employees . Harkiewicz was no doubt expressing her understanding of
the effect of the 3 discharges when she testified that maybe her crew would
get scared and start to perform their work right , but evidence other than her
testimony convinces me that, by "performing their work right," Harkiewicz
meant refraining from union activity. '
47 The employment of Myrtle Faulkner, shown on the Respondent ' s payroll for the
week of September 30, was terminated on September 23. I am not counting Stephanie.
Stomber, the day maid , or Walter Roessler, a janitor , because they do not come within
the description "night cleaning women " as used by Jacobs.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On all the evidence and on my observation-of the witnesses, I find that Burger,
Novinskey, and Fekete were discriminatorily discharged because of their union
membership or activity and not because of the reasons advanced by the
Respondent.
2. The discharge of Helen Olech
Helen Olech was one of the six night cleaning women hired by the Respondent
on September 7, 194S. She signed an authorization card for the Union on
September 28. It was Burger who gave her the card to sign.
Olech was so confused on dates that it is difficult to determine the time of
occurrences. Olech testified that Harkiewicz came to the 27th or 28th floor
where she was working "the next day after our union meeting" and told Olech
that she was a new worker and should be careful what she said and did.
Although this was testified to as a separate incident from the one occurring
on the night of her discharge, and G. C. counsel's questions sought to fix the
date as a day or-two after the discharge of Burger, Novinshey, and Fekete,
Olech testified that it occurred on the day after the second union meeting, which
was held on a Friday or Saturday, and which, Olech testified was "the date
after the woman got fired." The only union meeting conforming to that descrip-
tion was the one held on Friday, October 8, the very night that Olech`was
discharged.48 I find that such statement, if made.by Harkiewicz, was- made
as a part of the conversations between them on the night of October 8 as related
herein.
On the night of October 8, Olech came to work directly from a union meeting.
That evening after she had finished washing the stairs, Olech testified, Harkie-
wicz took her down on the elevator to "the floor", apparently, where she had
rooms to clean. There, according to her account, the following colloquy ensued :
Harkiewicz said, "I thought I told you to be careful what you say and do around
here." Olech asked her what she meant by "these warnings" and whether it
would have anything to do with the Union. Harkiewicz replied that Olech
knew very well what she meant. Olech said, "Phooey, if you were any kind of
a forelady, us women wouldn't have to join the Union. I mean, you wouldn't
go down to the office and tell them we're dissatisfied with the wages." Harkie-
wicz' account went this way: On Friday, October 1,49 Olech washed 3 flights
of stairs from the 30th to the 28th floor, Friday being the day for washing
stairs, and then rang for Harkiewicz and, when she came, asked for Saturday
off. Harkiewicz told her she could not give her Saturday off because of the
shortage of help. Harkiewicz took her to the 22nd floor where Olech was supposed
to clean and Olech -pointed her finger at Harkiewicz and said, "I will tell you
why you are short of help, because you discharged these women, because you
are no damn good." Harkiewicz asked what Olech meant and Olech replied,
"Well, I will tell you, you get all the credits from the office, you don't go to the
office and ask for.us poor women to get any more money." Harkiewicz thereupon
discharged Olech.
48 Harkiewicz testified that on the night Olech was. discharged, which Harkiewicz mis-
takenly testified was October 1, Olech washed the stairs between the 30th and 28th
floors. This conforms to Olech's testimony of the location of the first conversation. Al-
though Harkiewicz ' testimony of the conversation between Olech and herself differs in
some details from Olech ' s account , the two accounts contain enough points of similarity
to indicate that they referred to the same incident.
49 Harkiewicz was obviously mistaken about the date as the records show that Olech
was discharged on October 8 as Olech testified.
INTERTOWN CORPORATION (MICHIGAN) 1193
It is unlikely that either Olech or Harkiewicz would remember all that was
said or the precise words used. The words quoted by Olech appear in part to
be out of context and incomplete. Harkiewicz testified on cross-examination
that she discharged Olech because she "couldn't afford having a person pointing
at my face and argue with me.", If the testimony of both be combined, I believe
the conversation between them could be reconstructed very nearly as it actually
took place. It seems quite probable, however, that Harkiewicz' warnings to
Olech to be careful of what she said and did related to Olech's manner of speaking
to Harkiewicz rather than to any veiled reference to union activity. Although
the personnel record gave "unsatisfactory work" as the reason for Olech's dis-
charge, Harkiewicz made no contention in her testimony that that was the
reason. Bonin gave what I regard as careless testimony about Olech. First
he testified that Olech was employed subject to a 30-day trial period, during
which her work was not satisfactory. Asked to give the facts upon which that
conclusion was reached, Bonin answered that whether or not a person is to be
discharged is left more to an impression he gets rather than to actual facts.
He then testified that Harkiewicz had received complaints of Olech's work, that
"to substantiate more or less the supervisor's word" he went through the offices
on the floor on which Olech worked, and that there was quite a bit left to be
desired as far as her cleaning was concerned. Asked to be specific, he testified
that "there was a complaint that the office was not being cleaned well." He was
unable to state from whom the complaint was received and displayed a total lack
of knowledge of the subject and an effort to make up something to substantiate
his reckless assertion that Olech's work was unsatisfactory.
The Respondent's answer that Olech was discharged "during 30-day trial
period of employment during which her work proved unsatisfactory" is not
supported by credible or substantial evidence. Olech's 30-day trial period, begun
on September 7, during which she received 65 cents an hour pay was completed
on the night of October 6. By the personnel record of her discharge, her pay
was shown as 70 cents an hour, the rate paid after the employee had success-
fully completed the 30-day trial period. The Respondent's ineffectual attempt
to discredit Olech's work tends to confirm the findings herein that a similar
attempt was made, though unsuccessfully, in the case of Burger, Novinskey, and
Fekete. It also gives rise to the suspicion that the Respondent desired to conceal
the real reason for Olech's discharge.
However, the discharge of Olech was apparently spontaneous and not planned
as it was in the case of the other three, for Olech was permitted, unlike Burger,
Novinskey, and Fekete; to start work the night she was discharged. Also, it
may be noted, Bonin was responsible for the discharge of the first three, while
Bonin was' apparently not even consulted by Harkiewicz "before she discharged
Olech. There is no evidence indicating that Harkiewicz suspected Olech of
union sympathy before October S. The evidence indicates that Olech was dis-
charged either because of what she said or because of the manner in which
she spoke to Harkiewicz. Harkiewicz's testimony was- that Olech was dis-
charged for arguing and pointing her finger at her. Whether or not Olech's
censure of Harkiewicz was deserved, Olech's manner was disrespectful of her
superior and this lends support to the latter reason. On all the evidence and
from my observation of the witnesses 5' I conclude and find that Olech was
50 Olech's testimony of her conversation with Harkiewicz was given in a rapid and rather
derisive tone of voice . Her speech was unrestrained by tact and Harkiewiez might easily
have resented it as insolent.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged because of the manner in which she spoke to Harkiewicz, and not
because of her union membership or activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section 5, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to, and have led to, labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in certain unfair labor
practices. It will therefore be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
The Respondent argues that on the afternoon of October 25 it agreed to a
consent election and that, as the Union struck in spite of this and abandoned the
orderly processes of the law, the Union was in a position similar to that of a
union striking in violation of a contract and that ,hence the strikers were
properly discharged after the strike. The Respondent further argues that the
strike was in violation of a statute of the State of Michigan which prohibited,
with criminal penalties, the calling or instigating of a strike unless there first
be conducted_by the State labor mediation board an election by secret ballot,
held on the employer's premises ; and that, as this statute was not complied with,
the Respondent was justified in not reemploying-the strikers.
The first argument I have already rejected as factually not accurate. If the
Respondent had in good faith bound itself to a consent election by any state-
ment to Stearns or Bulley (even assuming that this would be a proper notifica-
tion to the Union), it would not have been necessary for the Respondent to get
any further consensus of opinion from the rest of, the employees. The Respond-
ent, if it assembled its employees at all, could have told them merely that it had
agreed to hold a consent election and that the employees could decide in that
election what they wanted. The Respondent's continued divisive efforts in its
meeting with the elevator girls, and its intended meeting with the cleaning
women, indicated its lack of good faith intent that any proposal made to the
day men should be an agreement then consummated.
As. to the second argument-that the strike was in violation of statute-it
may be stated, that, before the strike was called, an injunction had issued in
Wayne County, Michigan, enjoining the enforcement of the penalty provisions
of that statute 61 As• a result, the State labor mediation board was not con-
ducting any strike votes at the time of the strike in this case, and it was im-
possible for the Union to have a statutory strike election. It did all it was
able to by conducting its own strike vote. But if, by Michigan law, the insti-
gators of the strike were subject to criminal penalties, that law imposes no
penalty on strikers as such and does not provide that strikers shall lose their
employee status. Furthermore, it has previously been decided that, although a
strike is called in violation of a similar law, the strikers are not thereby de-
51 International Union, United Automobile , etc. Workers of America , CIO v. McNally,
325 Mich. 250 , 24 LRRM 2261 ( Mich. Supreme Ct., 6-29-49). The constitutionality of the
Michigan statute was attacked , and the lower court held it unconstitutional . This! decision
was reversed by the State Supreme Court.
INTERTOWN CORPORATION (MICHIGAN) ' 1195
prived of their reinstatement rights .2 The Respondent also offered evidence
with the object of proving that certain strikers had engaged in illegal conduct
during the strike. I find that such conduct, limited mostly to name calling and
minor incidents, was not such, even if the testimony of Respondent's witnesses
be credited, as to render the strikers unfit for further employment 63 Therefore,
as it has been found that the Respondent has discriminated against certain strik-
ers, (Mary Zelepis, Margaret Baxter, Shirley Baxter, Eva King, Mary Muras-
zewski, Albina Klenczar, Katherine Radzienta, Clarence Bulley, and Stephanie
Stomber), it will be recommended that they be offered immediate and full rein-
statement to their former or substantially equivalent positions," without preju-
dice to their seniority or other rights and privileges. It will further be recom-
mended that the Respondent make each of them whole for any loss of pay
suffered by reason of the Respondent's discrimination against him, by payment
to him of a sum of money equal to the amount which he normally would have
earned as wages during the period from the date of his request for reinstate-
ment to the date of the Respondent's offer of reinstatement less his net earn-
ings n during said period.
As it has been found that the Respondent discriminated in regard to the hire
and tenure of employment of Marion Burger, Pauline Novinskey, and Hazel
Fekete, it will be recommended that the Respondent offer them immediate and
full reinstatement to their former or substantially equivalent positions 58 without
prejudice to their seniority or other rights and privileges. It will be further
recommended that the Respondent make them whole for any loss of pay suffered
by reason of the Respondent's discrimination against them, by payment to each
of them of a sum of money equal to the amount she normally would have earned
as wages during the period from the date of the Respondent's discrimination
against them to the date of the Respondent's offer of reinstatement, less her net
earnings 5'l during said period.
As the right of the foregoing nine strikers and the three discharged women
to reinstatement to their former positions is not dependent upon the existence
of a vacancy, they should be offered reinstatement even if it means that the
Respondent has to discharge employees who were hired after the respective dates
of the discrimination against the 12-named employees.
As it has been found that on and after October 1, 1948, the Respondent refused
to bargain with the Union as the exclusive representative of all the Respondent's
employees in the appropriate unit, it will be recommended that upon request,
the Respondent shall bargain with the Union as such representative and, if agree-
ment is reached, embody such understanding in a written agreement.
From the commission of the aforesaid unfair labor practices, especially the
discriminatory discharges, and from the entire record in the case I conclude
that the commission in the future of acts of interference and of other unfair
labor practices may be anticipated from the Respondent's conduct in the past 58
"Hamilton v. Y. L. R. B.' 160 F. 2d 465 (C. A. 6).
63N. L. R. B. V. Reed & Prince Mfg. Co., 118 F. 2d 874 (C. A. 1) ; Kelco Corp., 79
NLRB 759.
64 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position
wherever possible and if such position is no longer in existence then to a substantially
equivalent position ." See The Chase National Bank of the City of New York, an Juan,
Puerto Rico, Branch, 65 NLRB 827.
51 Crossett Lumber Company , 8 NLRB 440 , 492-498.
56 See footnote 54, supra.
54 See footnote 55, supra.
18N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
1196 * DECISIONS OF NATIONAL LABOR RELATIONS BO..-MD
It 'will therefore be recommended that the Respondent cease and desist from
the conduct which has herein been found to be a violation of the Act and from
in any other manner infringing upon the rights guaranteed to its employees in
Section 7 of the Act. Since it has^been found that the Respondent did not dis-
criminate in regard to the hire and tenure of employment of Helen Olech or
of any strikers other than the nine specifically named herein, it will be recom-
mended that the complaint be dismissed as to them.
CONCLUSIONS OF LAW
1. Retail, Wholesale and Department Store Union, affiliated with the Congress
of Industrial Organizations, is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
2. By denying reinstatement to the following strikers : Mary Zelepis, Margaret
Baxter, Shirley Baxter, Eva King, Mary Muraszewski, Albina Klenczar, Kath-
erine Radzienta, Clarence Bul1ey, Stephanie Stomber ; and by discharging and
failing and refusing to reinstate Marion Burger, Pauline Novinskey, and Hazel
Fekete, the Respondent has discriminated against them in regard to their hire
and tenure of employment, thereby discouraging the formation of, and member-
ship in, a labor organization, and has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. All employees working in the Respondent's building at 10 Witherell Street,
Detroit, Michigan, except guards, supervisors, professional and office and clerical
employees as defined in the Act, constitute a unit appropriate for purposes of,
collective bargaining within the meaning of Section 9 (b) of the Act.
4. On October 1, 1948, and at all times material thereafter, Retail, Wholesale
and Department Store Union, C. 1. 0., was, has been, and now is the exclusive
representative of all the Respondent's employees in said appropriate unit, within
the meaning of Section 9 (a) of the Act.
5. By refusing on and after October 1, 1948, to recognize and bargain with
Retail, Wholesale and Department Store Union, C. I. 0., as the exclusive repre-
sentative of all the Respondent's employees in said appropriate unit, the Re-
spondent has engaged in an unfair labor practice within. the meaning of Section
8 (a) (5) of the Act.
6. By interrogating its employees concerning their union membership, views,
and activities, by threatening them with loss of employment because of their
union membership and activities, by giving its employees substantial increases
in pay and gifts and promises of future benefits while refusing to recognize
the employees' chosen representative, and by seeking to undermine the Union
by dealing directly with its employees concerning wages and hours of employ-
ment and manner of deciding on a choice of bargaining representative, as well as
by the other unfair labor practices herein found, the Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act and has thereby engaged 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
meaning of Section 2 (6) and (7) of the Act.
8. The Respondent has not engaged in unfair labor practices by discharging
Helen Olech ' or by failing to offer reinstatement to strikers other than those
heretofore named.
INTERTOWN CORPORATION (MICHIGAN) 1197
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, I rec-
commend that the Respondent, Intertown Corporation (Michigan), Detroit,
Michigan, its officers, agents, successors, and assigns, shall :
1. Cease abd' desist from :
(a) Discouraging membership in Retail, Wholesale and Department Store
Union, C. I. 0., or in any other labor organization of its employees, by discharging
or refusing to reinstate any of its employees, or in any other manner discrimi-
nating in regard to their hire or tenure of employment, or any term or condition
of their employment;
(b) Refusing to recognize, or, on request, to bargain collectively with, Retail,
Wholesale and Department Store Union, C. I. 0., as the exclusive representative
of its employees,in the appropriate unit;
(c) In any other manner interfering with, restraining, or coercing its employ-
ees in the exercise of the right to self organization, to form labor organizations, to
join or assist Retail, Wholesale and Department Store Union, C. I. 0., or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes 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 authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action, which I find will effectuate the
policies of the Act :
(a) Offer to Mary Zelepis, Margaret Baxter, Shirley Baxter, Eva King,'Mary
Muraszewski, Albina Klenczar, Katherine Radzienta, Clarence Bulley, Stephanie
Stomber, Marion Burger, Pauline Novinskey, and Hazel Fekete immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, in the manner set forth
in the section entitled "The remedy," above;
(b) Make whole all the employees named in subparagraph 2 (a) above for any
loss of pay they may have suffered by making payment to them in the manner
provided in the section entitled "The remedy," above ;
(c) Upon request, bargain collectively with Retail, Wholesale and Department
Store Union, C. I. 0., as the exclusive representative of its employees in the appro-
priate unit, and, if agreement is reached, embody such understanding in a written
agreement ;
(d) Post immediately in its building in Detroit, Michigan, copies of the notice
attached hereto marked Appendix A. Copies of said notice, to be furnished
by the Regional Director for the Seventh Region (Detroit, Michigan), shall,
after being duly signed by the Respondent, be posted by it immediately upon
receipt thereof, and maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Seventh Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report of
what steps the Respondent has taken to comply herewith.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also recommended that unless on or before 20 days from the date of the
receipt of this Intermediate Report the Respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it al-
leges that the Respondent discriminated in regard to the hire and tenure of
employment of Helen Olech or of the strikers other than those named in para-
graph 2, ( a) of this Section.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty ( 20) days from the date
of service of the order transferring the case to the Board , pursuant to Section
203.45 of said Rules and Regulations , file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such excep-
tions to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections ) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party may,
within the same period , file an original and six copies of a brief in support of the
Intermediate Report. 'Immediately upon the filing of such statement of excep-
tions and/or briefs , the party filing the same shall serve a copy thereof upon each
of the other parties . Statements of exceptions and briefs shall designate by
precise citation the portions of the record relied upon and shall be legibly printed
or mimeographed , and if mimeographed shall be double spaced. Proof of service
on the other parties of all papers filed with the Board shall be promptly made as
required by Section 203.85. As further provided in said Section 203.46 should
any party desire permission to argue orally before the Board , request therefor
must be made in writing to the Board within ten (10 ) days from the date of
service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions,
. and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 23rd day of December 1949.
JAMES R. HEMINGWAY,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist RETAIL, WHOLESALE AND DEPARTMENT STORE
UNION, C. I. 0., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
INTERTOWN CORPORATION (MICHIGAN) 1199
WE WILL OFFER to the employees named below* immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the
discrimination.
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment, or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All employees working in the building of the undersigned, located at 10
Witherell Street, Detroit, Michican, except guards, supervisors, professional,
and office and clerical employees as defined in the said Act.
*Mary Zelepis , Margaret Baxter, Shirley Baxter, Eva King, Mary Muras-
zewski, Albina Klenczar , Katherine Radzienta ,• Clarence Bulley, Stephanie
Stomber, Marion Burger, Pauline Novinskey, and Hazel Fekete.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of such labor
organization.
INTERTOWN CORPORATION (MICHIGAN),
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.