Liberty Cleaners

National Labor Relations Board - Board Decisions

Jan 21, 1977

227 N.L.R.B. 1296 (N.L.R.B. 1977)

1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tony De Clue, an Individual d/b/a Liberty Cleaners
and d/b/a T & T Drapery Service , T & T Drapery
Service, Inc., and Real Cleaners , Inc. and Laundry,
Dry Cleaning and Dye House Workers Internation-
al Union, Local 161 , affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 14-CA-
9194-2
January 21, 1977
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On September 7, 1976, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings,' findings, and conclu-
sions 2 of the Administrative Law Judge only to the
extent consistent herewith.
The General Counsel has filed exceptions contend-
ing that the Administrative Law Judge's recommend-
ed remedy, Order, and notice should be modified to
require that Respondent: (1) reimburse the contractu-
ally designated pension, health, and welfare funds for
payments wrongfully withheld by Respondent; (2)
give retroactive effect to its contract with the Union
without the requirement that the Union first demand
that Respondent bargain with it; and (3) make
employees whole for wages they may have lost by
virtue of Respondent's unilateral change in the
contractually established mode of paying overtime
wages. We agree.
Having found that Respondent violated Section
8(a)(5) of the Act by its failure to adhere to the terms
of the existing collective-bargaining agreement, we
shall require it to give immediate retroactive effect to
the contract without the requirement imposed by the
Administrative Law Judge that the Union must first
demand that Respondent bargain with it. We shall
also order that Respondent reimburse the pension,
'
Chairman Murphy and Member Jenkins adopt the ruling of the
Administrative Law Judge that the pretrial affidavit of Respondent 's owner,
Tony De Clue, should be admitted into evidence Since there is adequate
evidence in the record exclusive of the affidavit to support the Administra-
tive Law Judge 's conclusions , Member Walther does not find it necessary to
decide whether the affidavit was properly adnutted into evidence
2 We reject Respondent's contention that the illegal union-security clause
contained in art 11, par A, of the collective -bargaining agreement voids the
227 NLRB No. 188
health, and welfare funds for those moneys it failed to
pay as required by the contract. Vin James Plastering
Company, 226 NLRB 125 (1976). Also, we shall order
that Respondent make the employees whole for
wages lost due to its unilateral change in the method
of computing overtime pay. Atlas Tack Corporation,
226 NLRB 222 (1976).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Tony De Clue, an Individual d/b/a Liberty Cleaners
and d/b/a T & T Drapery Service, T & T Drapery
Service, Inc., and Real Cleaners, Inc., St. Louis,
Missouri, his agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with Laundry, Dry Clean-
ing and Dye House Workers International Union,
Local 161, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive representative of the
employees in the following unit found to be appropri-
ate for the purposes of collective bargaining:
All cleaning, laundry, and drapery service em-
ployees employed by Respondent, excluding of-
fice clerical and professional employees, guards,
and supervisors as defined in the Act, and all
other employees.
(b) Failing or refusing to abide by or adhere to the
collective-bargaining agreement between Respondent
and the Union except for the defective union-security
clause therein.
(c) Inducing or attempting to induce or encourage
employees to bargain individually concerning terms
and conditions of employment while its employees
are represented by an exclusive bargaining represen-
tative.
(d) Unilaterally changing the method of computing
overtime pay and discontinuing payments to the
existing pension and health and welfare plans and
changing other terms and conditions of employment
without notifying the Union of its intention to do so
or affording the Union an opportunity to bargain on
the subject.
entire contract The provision reads, in relevant part "The Employer agrees
to employ only members of the Union in good standing "We find, in
agreement with the Administrative Law Judge , that Respondent willingly
agreed to the inclusion of the clause in the contract , and Respondent did not
claim to the Union that the invalid clause was a basis of its refusal to
continue honoring the contract , and we note that the contract contains a
savings and separability clause See N L R B v Rockaway News Supply
Company. Inc, 345 U S 71 (1953)
LIBERTY CLEANERS
(e) Making promises of benefit to induce employees
to withdraw from the Union, and soliciting and
coercing employees to withdraw from the Union.
(f) In any other manner interfering with, restrain-
ing, and coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Give immediate retroactive effect to the existing
agreement between the Respondent and the Union,
except for the defective union-security clause therein.
(b) Resume payments to the contractually designat-
ed pension and health and welfare funds and make
restitution to the funds for payments not made in the
past, with interest at the rate of 6 percent per annum.
(c) Make employees whole for any loss of earnings
they may have suffered by reason of its unilateral
change in the method of calculating overtime pay,
with interest at the rate of 6 percent per annum.
(d) Upon request, bargain with the aforementioned
labor organization concerning wages, hours, and
other terms and conditions of employment in behalf
of its employees in the bargaining unit found appro-
priate.
(e) Preserve and, upon request, make available to
the Board and its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay and any other moneys due under the
terms of this Order.
(f) Post at its facility in St. Louis, Missouri, copies
of the attached notice marked "Appendix."3 Copies
of said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by
Tony De Clue, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by him for 60 consecutive days thereafter, in conspi-
cuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
3 In the event that this Order is enforced by a Judgment of a United States
heCourt of Appeals, the words in the notice reading "Posted by Order oft
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
1297
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL bargain, upon request, with Laundry,
Dry Cleaning and Dye House Workers Interna-
tional Union, Local 161, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of:
All cleaning, laundry, and drapery service
employees of Tony De Clue, an Individual
d/b/a Liberty Cleaners and d/b/a T & T
Drapery Service, T & T Drapery Service,
Inc., and Real Cleaners, Inc., excluding
office clerical and professional employees,
guards, and supervisors as defined in the Act,
and all other employees.
I WILL abide by and honor the collective-
bargaining agreement I have signed with Laundry,
Dry Cleaning and Dye House Workers Interna-
tional Union, Local 161, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, except
for the defective union-security clause therein.
I WILL NOT induce or attempt to induce
employees to bargain individually concerning
terms and conditions of employment while you
are represented by an exclusive bargaining repre-
sentative.
I WILL NOT make promises of benefit to
employees to induce them to withdraw from union
membership, or solicit or coerce employees to
withdraw from union membership.
I WILL NOT unilaterally change the method of
computing overtime pay and other terms and
conditions of employment without telling the
Union I intend to do so and giving the Union the
opportunity to bargain on the subject.
I WILL make my employees whole for any loss
of earnings they may have suffered by reason of
my unilateral change in calculating overtime pay,
with interest at the rate of 6 percent per annum.
I WILL resume the payments to the contractual-
ly designated pension and health and welfare
funds and make restitution to the funds for
payments not made in the past, with interest at the
rate of 6 percent per annum.
I WILL NOT in any other manner interfere with,
restrain , or coerce any employees in the exercise
of rights guaranteed them by the National Labor
Relations Act.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TONY DE CLUE, AN
INDIVIDUAL D/B/A
LIBERTY CLEANERS AND
D/B/A T & T DRAPERY
SERVICE, T & T
DRAPERY SERVICE, INC.,
AND REAL CLEANERS,
INC.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: Laundry,
Dry Cleaning and Dye House Workers International
Union, Local 161, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called the Union, filed a charge on
March 22, 1976,1 later amended on June 29, against Tony
De Clue, an Individual d/b/a Liberty Cleaners and d/b/a
T & T Drapery Service, T & T Drapery Service, Inc., and
Real Cleaners, Inc., herein jointly referred to as Respon-
dent, alleging that Respondent had violated Section 8(a)(1)
and (5) of the Act. On May 27, the Regional Director of
Region 14 of the National Labor Relations Board, herein
called the Board, issued a complaint and notice of hearing.
Thereafter, said Regional Director, on June 30, issued an
amended complaint and notice of hearing. The amended
complaint alleges that Respondent has, since on or about
February 24, 1976, refused to bargain with the Union in
violation of Section 8(a)(5) of the Act, and by its president,
supervisor, and agent Tony De Clue interfered with,
restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act, on or about February 24 and 25,
1976, by (1) telling employees that Respondent would not
operate under the union contract; (2) telling employees to
resign or withdraw from the Union in order to continue
working for Respondent; (3) promising employees benefits
in order to encourage their withdrawal from the Union; (4)
telling employees that Respondent would cease making
health and welfare contributions required by the existing
collective-bargaining agreement between the parties; and
(5) caused an employee to type union resignation letters for
other employees. Respondent duly denies the commission
of any unfair labor practices.
The hearing in this matter was held before me on July 15,
1976, in St. Louis, Missouri. Although the Union appeared
and proffered testimony at the hearing, Respondent elected
to appear only by counsel and no witnesses were called on
Respondent's behalf. Counsel for Respondent cross-exam-
ined witnesses, objected to certain of General Counsel's
evidence, argued orally, and otherwise participated fully in
the hearing of the case. A posthearmg brief was submitted
by the General Counsel, but none was received from the
Respondent.
I All formal documents, motions for continuance, and related oral
conversations were filed or occurred in 1976
Procedure
The complaint and notice of hearing issued on May 27,
1976, and set a hearing date of June 21. Respondent, by
counsel, on June 11, requested a continuance to July 25.
The Regional Director, on June 17, rescheduled the hearing
to July 12, and the amended complaint and notice of
hearing issued June 30,2 with a hearing date set forth
therein of July 12. On the record at the hearing General
Counsel represented, without contradiction by Respon-
dent's counsel who was present, that the General Counsel
and Respondent's counsel agreed on July 9 that the hearing
would be held on July 15. On July 12, Respondent Tony De
Clue wrote the following letter to General Counsel:
Mr. Witte:
You have had this case against T&T Drapery Service,
Inc., since March or April of 1976. You have put it off
several times but at the time I was not extremely busy,
so I cancelled everything I had to do each time this case
came up and you put it off to another date. We where
suppose to have a court date today July 12th, 1976 at
9:00 A.M. at which I appeared and was informed by
you that it was cancelled again. I did not receive any
notice of this cancellation.
Mr. Witte please do not assume things. My attor-
ney you said was notified. My attorney has many clients
and probably could not reach me. Since my attorney
will not have to pay for the outcome of this hearing I am
advising you that as of this date I cannot be available
until August 11, 1976 anytime after that date.
At this time I wish to state that if this case is tried
without my presence, (you are wasting the tax payers
money) I will not honor any decision the N.L.R.B.
hands down and if I have to take it to a higher court that
is what I will do.
Please advise us of the date of the hearing after
August 11, 1976.
Yours truly,
T & T Drapery Service, Inc.
Tony De Clue s/s
The following day, July 13, Respondent's attorney made a
written request for a continuance because De Clue would
be out of town on business in July. On July 13, the Acting
Regional Director demed the requests for continuance. No
request for continuance was made to me at the hearing.
At the hearing, the General Counsel' s witnesses identified
the signature of Tony De Clue on each page of a four-page
affidavit, and, after showing that De Clue had been
subpenaed to appear at the hearing on July 12 and asserting
without contradiction by Respondent's counsel that Re-
spondent's attorney had been advised on July 9 to have De
Clue come in on July 15 rather than July 12, General
Counsel offered the affidavit into evidence as containing
admissions against interest . Respondent's counsel objected
2 In both cases the notice of hearing contained the language , after the
date and hour set for hearing, "or as soon thereafter as you may be heard "
LIBERTY CLEANERS 1299
to its admission on the grounds that (1) De Clue was
subpenaed to appear on July 12, he did so appear, the
subpena was not continued and no new subpena was
issued; (2) the statement was made by De Clue without
advice of counsel and never was brought to the attention of
Respondent's counsel until the day of the hearing; and (3)
the statement contains a paragraph relating that De Clue
was assured by the Board's agent taking it that it would be
kept confidential unless and until he was called to testify at
a hearing, but that De Clue was not called to testify on July
15 and therefore the document remained confidential and
further that De Clue had a right to be present to rebut its
contents.
I personally compared the signatures on the document
with that on his letter to Witte set forth hereinabove,
concluded it was De Clue's signature (indeed, the argu-
ments of Respondent's counsel testify to the document's
authenticity), and received it into evidence pursuant to
Federal Rules of Evidence, Rules 901 and 903 (see also
Rule 804(a)(5)).
After carefully considering the contentions of the parties,
the record, and the applicable rules of law, I reaffirm my
ruling at the hearing admitting De Clue's pretrial statement
into evidence as containing admissions against interest. De
Clue was duly subpenaed to appear on July 12. He was fully
aware, at least by July 12 when he wrote his letter, that the
hearing had been postponed. Respondent, through its
attorney, was aware on July 9 that De Clue was to appear
on July 15. Respondent's request for continuance dated
July 13 sets forth as reason therefore that De Clue's
contemplated absence was for business purposes which
have not been shown to be of superior urgency or
importance to the hearing in the instant case. Indeed, De
Clue's letter reflects an intention only to appear at a time of
his own choosing and a clear resolve not to comply with
any request or subpena to appear until August 11, all in the
face of the clear advice in the notice of hearing that the
hearing would begin on July 12 "or as soon thereafter as you
may be heard" (emphasis supplied). It is one thing for
Respondent to choose to appear only by counsel. It is quite
another for Respondent to seek suppression of his prehear-
ing statement because he chooses not to appear in person.
Were I to exclude De Clue's prehearing statement, it would
be tantamount to recognition of a license to avoid any
adverse effect of one's own recorded admissions at any time
the affiant decides to absent him or herself from hearing,
and would constitute a permit to a respondent to set his
own hearing date at his own leisurely convenience, notwith-
standing the statutory imperative to proceed with the
utmost dispatch. I decline to issue such a license or permit.
No good cause has been shown why De Clue was not
present at the hearing, and it would be an exercise in futility
for General Counsel to reissue, even if it was necessary, a
subpena specifically requiring his attendance on July 15
when De Clue's letter of July 12 asserted in unmistakable
terms that he would not appear. Furthermore, to require
General Counsel to resort to the courts to seek enforcement
of the subpena before accepting the affidavit into evidence
would be an unwarranted stay of the expeditious hearing
and resolution of the issues raised by the complaint and
answer. For essentially the same reasons, Respondent may
not seek refuge in the pledge of confidentiality set forth in
his prehearing statement. He was subpenaed for hearing
and declines to appear between the dates of July 12 and
August 11, thus effectively disabling General Counsel from
securing his oral testimony at the July 15 hearing. By
causing the impossibility of fulfillment of the very condition
he relies on (i.e., being called to testify in person on July
15), but for a pro forma and foredoomed call at the hearing
for the purposes of perfecting the record, Respondent has
effectively abrogated the condition, and any obligation of
confidentiality incumbent on the General Counsel to which
De Clue may have been entitled are removed by De Clue's
own free choice. It is fair to assume that any declarations in
his prehearing affidavit adverse to his pecuniary or propne-
tory interests, both of which are involved in the case at bar,
are either substantially accurate or, at the least, the ones
most favorable to his cause that he chose to make. That he
was not present at the hearing to further explicate the
matters set forth in his affidavit is of his own choosing, and
Respondent cannot now be heard to complain that he had
no opportunity to explain the contents thereof. Similarly,
that De Clue gave an affidavit without advice of counsel is
no bar to its admission where, as here, no element of
compulsion, trickery, or other impropriety in securing the
statement has either been alleged or shown to be present.
Upon consideration of the entire record,3 the brief
submitted by the General Counsel, and my careful observa-
tion of the witnesses as they testified, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The complaint alleges, Respondent admits, and I find
that T & T Drapery Service, Inc., is now, and has been at all
times material herein, a Missouri corporation, and that
during the current fiscal year, a representative period, T &
T Drapery Service, Inc., in the course and conduct of its
business operations, performed services for its nonretail
and commercial customers at its St. Louis, Missouri, facility
valued in excess of $50,000 of which services valued in
excess of $50,000 were furnished to enterprises, each of
which had gross annual sales of $50,000, and each of which
purchased goods and materials valued in excess of $5,000
directly from suppliers located outside the State of Missou-
ri, and/or sold goods and materials to customers located
outside the State of Missouri valued in excess of $5,000.
For the reasons explicated more fully hereinafter I find
that Tony De Clue d/b/a Liberty Cleaners and T & T
Drapery Service, T & T Drapery Service, Inc., and Real
Cleaners, Inc., are, and have been at all times material, a
single integrated enterprise engaged in the business of
furnishing dry cleaning and laundry services, with its
principal office and place of business at St. Louis, Missouri.
Since about January 1973, Tony De Clue has engaged in
substantially the same business operations under the
3 I note that although G.C. Exh 3, the collective-bargaining agreement
referred to herein, was received into evidence by me and properly bound into
the exhibit file by the court reporter, the reporter inadvertently omitted to
number it and mark it as identified and received Therefore, I have marked
"G C 3" thereon to avoid future confusion of the record
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
successive business names of Liberty Cleaners, T & T
Drapery Service, and T & T Drapery Service, Inc.,4 and
has, dunng that entire period of time up to and including
the present, maintained and exercised exclusive control of
labor relations; acted as the principal, if not sole, manager
of said operations; maintained sole ownership or financial
control of said operations; and employed substantially the
same employees and supervisory personnel. Respondent,
Tony De Clue, an individual d/b/a Liberty Cleaners and
d/b/a T & T Drapery Service, T & T Drapery Service, Inc.,
and Real Cleaners, Inc., are each individually and all
collectively an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2 (5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts 5
Tony De Clue, hereinafter referred to variously as De
Clue, the employer, and Respondent, purchased Frank's
Deluxe Cleaners on Cherokee Street in St. Louis, Missouri,
in December 1972 or January 1973. On January 29, 1973,
he employed Lucy Barnett (who will hereinafter be referred
to by her married name of Kilpatnck)6 and, finding she was
a union member who would not work in a nonunion shop,
signed a collective-bargaining agreement with the Union on
February 14, 1973, using as the firm's name Liberty
Cleaners. Thereafter, on February 1, 1974, he again signed
an agreement for Liberty Cleaners with the Union running
through November 30, 1976, which was incorporated with
the earlier agreement to form the entire existing contract
between the parties. At some prior time to July 1975, in
about April 1975, according to the testimony of Kilpatrick,
which I find to be uncontrived, straightforward, and worthy
of belief, De Clue changed the firm's name to T & T
Drapery Service but did not so advise the Union until July
or August 1975, when he told Union President Beckrum
(whose uncontradicted testimony is credited, although in
some instances confused as to exact dates of occurrences),
that he was going to change the name of the Company to T
& T Drapery, and asked if he would have to sign a new
contract. Beckrum replied that is was not necessary to sign
a new contract since the existing agreement was binding
through November 1976 regardless of a business name
change and De Clue could not change that agreement. De
Clue did not tell Beckrum at this time that he planned to
incorporate. The articles of incorporation for T & T
Drapery Service, Inc., were signed by De Clue on July 15,
1975. Kilpatrick credibly testified that the first she was
aware of the incorporation was near the end of 1975, about
4 And Real Cleaners, Inc, to the extent it may now remain in existence,
although it would appear from the credible evidence that Real Cleaners, Inc,
has been subsumed by T & T Drapery Service, Inc, and its name
abandoned
The facts related herein are based on a synthesis of the credible
testimony of Kilpatrick and Beckrum , the exhibits, stipulations of the parties,
and careful consideration of the logical consistency and inherent probability
of the facts found
3 months after the move when De Clue, in passing, said,
"We are a corporation now."
Prior to August 1975, the monthly union dues collection
sheets , a copy of which was given to the employer each
month listing the employees and the amounts collected,
listed the employer as Liberty Cleaners. After De Clue's
advice to Beckrum that he was changing the firm's name,
beginning with the August dues sheet and continuing
through the November sheet (which was the last month for
which dues were collected), the employer's name appeared
as "T & T Drapery." Even after De Clue incorporated in
July 1975 he continued to use checks drawn on "T & T
Drapery Service" as late as October 27, 1975, when he
transmitted pension and welfare moneys to the Union on
such a check.
That Respondent continues to date to use stationery
bearing the heading "T & T Drapery Service" and the
address "4546 Gravois," even though now incorporated, is
shown by De Clue's letter of July 12, 1976, to the General
Counsel which bears such a letterhead and is signed:
T & T Drapery Service, Inc.
Tony De Clue
In August 1975, De Clue purchased Real Cleaners, Inc.,
and moved his operation from Cherokee Street to the Real
Cleaners location on Gravois. Although the Real Cleaners'
facility was already substantially equipped, De Clue moved
some equipment in from his old facility.? There was no
change in the type of product handled or the manner of
work performed, except for the change in identity of the
walk-in customers occasioned by the relocation, nor was
there any such change during the various firm name
changes. The actual operation remained the same from
1973 until at least February 1976, which is the last period
on which evidence was proffered.
All of De Clue's employees were union members begin-
ning in March 1973 and continuing through November
1975, when he had seven union members working for him,
not including Kilpatrick who, although a union member,
became a supervisor in about April 1975. In addition to the
seven , De Clue had two other employees whom he had
retained from the Real Cleaners operation and who did not,
so far as the record shows, join the Union. All seven of his
union member employees had worked at the Cherokee
facility until they transferred with the operation to the
Gravois location. It is therefore clear that all of the
employees of Respondent when the matters at issue arose,
but for the two retained from Real Cleaners, were union
members and that there was a distinct continuity of work
force. This conclusion is firmly based on the dues remission
sheets and the credible testimony of Kilpatrick which also
establishes that the employees remained the same and
union membership remained the same until the Respon-
dent's alleged unfair labor practices in February 1976.
6 General Counsel asserts in his brief that although the transcript refers to
the witness as Kirkpatrick her proper name is Kilpatrick I will therefore
refer to her as Kilpatrick
7 A spotting board, dress form , water cooler, ironing board, and one
counter
LIBERTY CLEANERS 1301
The only supervisory or managerial personnel at any time
under any of Respondent's various names were Kilpatrick,8
De Clue, and Mrs. De Clue. The evidence is uncontroverted
and dispositive that Tony De Clue was the individual who
did all the hiring and firing, formulated and directed
Respondent's labor relations policies, negotiated with the
Union, directed and controlled the financial affairs of
Respondent, and actively performed the day-to-day over-
sight and supervision of the entire operations and work
force.
The first indication given to the Union by Respondent
that Respondent wanted to sever their collective-bargaining
relationship occurred in November 1975 when De Clue told
Beckrum that he wanted to get out of the Union. Beckrum
told De Clue that he could not do so because he had a
binding contract with the Union until the end of November
1976. De Clue responded that he was not going to have the
contract. Beckrum made no further reply and left the
premises. Thereafter, Beckrum received no further dues,
pension, or welfare funds from Respondent and his
telephone calls to the facility seeking to contact De Clue
received no response.
Finally, having been unsuccessful in his efforts to contact
De Clue, Beckrum called Kilpatrick on February 20, 1976,
and told her that De Clue had not transmitted the withheld
dues, or the Employers' contributions to the welfare and
pension plans, for the past 3 months. The following
Monday, February 23, Kilpatrick and employees Stewart
and Williams met with De Clue when he came into work.
Kilpatrick related the content of Beckrum's call and asked
if it were true that De Clue had not paid and that employees
were no longer covered by hospitalization insurance. De
Clue countered by asking her if she was planning to go to
the hospital, to which Kilpatrick replied that she hoped not.
Stewart then inquired what had happened to the money De
Clue had withheld from their pay for union dues. De Clue
responded that he would have to pay that, but he was
undecided as to whether he was going to pay into the
welfare and pension plan and he was considering getting
out of the Union. Stewart then turned to Kilpatrick and
asked if Kilpatrick could continue to work there if De Clue
got out of the Union. Kilpatrick, who has been a union
member for some 30 years, explained that she was not
supposed to as a union member. De Clue interjected that
Kilpatrick could indeed work in a nonunion shop. De Clue
then announced there would be a meeting with employees
on Tuesday morning, February 24, at which time he would
discuss the matter "as far as the union is concerned."
The meeting set by De Clue was held on February 24 in
his office with his wife, Kilpatrick, and employees Stewart,
Rhodes, Taylor, and Williams present. All present, except
Mr. and Mrs. De Clue, were union members. De Clue
recorded his remarks and the parties stipulated to the
introduction into evidence of an accurate transcription of
the recording in lieu of testimony by witnesses about the
meeting. I approved the stipulation and received the
transcription into evidence. The recording does not contain
the remarks of the employees present. The relevant remarks
of De Clue at the meeting are as follows:
In May of 1975 we had a contract with Local 161,
with Liberty Cleaners.... We advised George that we
were changing our Company name to a corporation,
and Liberty Cleaners would no longer be in existence
and asking if he wanted us to sign a new contract. Well,
he didn't see fit to do that, and we have never been
approached to sign one, which means that you people
working here, OK, have not had a contract since June 1
of 1975, whenever Liberty Cleaners went out of busi-
ness, OK. We do not see fit to enter into anything with
them anymore which means that you are in a bad
position since you are union members .. . . All I can say
is, that we are not going to be union, a union shop
anymore. Now if you want to stay with us, I don't know
what the procedure is whether you get a withdrawal
from the union, whether you get a leave of absence or
whether you just resign. . . . For the ones who plan to
stay with us, the pay will not be cut, and you'll get your
raises every year like you always did. We will offer an
insurance program that is much better than what you
have now ... this isn't something you've got to decide
right at this moment . . . . It'll be as of Monday
morning .... I'd like for you all to stay. But I am not
going to be a union shop anymore. That's where we
stand.... I am not going to pay overtime for over 8
hours, but if at the end of the week end there is 46 hours,
you get 6 hours of overtime.... All your vacations will
be the same, everything. There won't be any changes
except that we'll offer you a better insurance and life
insurance programs . . . we have a minority of union
people in this shop, not a majority . . . you five people
are in the union . . . I'm not saying if you don't go non-
union you haven't got your job, all I'm saying is I am
not going to take the responsibility of paying your union
dues, I will not pay your health and welfare dues to the
union . . . if they want to stay, fine, and continue to be
a union member, let them find out where that money
comes from, if they want to pay it, but I am not going to
pay it. Period.... I mean each one of you has to decide
for yourself what you get out of your union. And I'm
not knocking them, at all. I just don't think that it serves
our company purpose whatsoever. . . . I have no
contract. That was for Liberty Cleaners. And Liberty
Cleaners closed as of June 1, 1975. I do not and have
not had a contract since then . . . . Your union
representative and your president was notified of that
fact. Yes, if I was still under contract, I'd live up to my
contract . But I'm not. That contract runs up to
November .... I'm not firing anybody. I'm saying that
you get together with you union, OK, and if they want
to pay your health and welfare and if they want to pay
your pension plan, and if they want to pay your union
dues, then, hell, walk in and hit the clock and I'll pay
you. But I am not paying them .... I have come to the
decision that it is your union that has fouled up on it, we
don't have no problems without it, it is just hanging
round, hanging around, we ask them for a person to
come in and give you a day's work, and they can't
produce them, so they mean nothing to this company.
s Kilpatrick testified and General Counsel concedes that Kilpatrick has
been a supervisor within the meaning of Sec 2(11) of the Act since about
April 1975
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Absolutely nothing. The only thing I ask you, it's
necessary let me know before Monday morning wheth-
er you're going to come in or not ... .
The dues that I have collected from you, I have to
pay them. OK. All I'm doing is holding them out. But I
haven't decided whether I'm going to pay the health
and welfare or not . . . . But the union dues well be
paid ....
On Thursday, February 26, De Clue called Kilpatnck
into his office and asked her what was wrong, was there
anything wrong with the job? Kilpatrick told him there was
nothing wrong with the job, she didn't have anything
against him , but she did not want to resign from the Union
after 30 years' membership. De Clue asked her to stay, but
she said she would have to resign from the Union to do so,
whereupon he told her to think about it and let him know
what she was going to do by that afternoon. About 5 p.m.,
De Clue came to Kilpatrick and asked what she had
decided. She replied that she would let him know the
following morning. The next day, Friday, February 27, De
Clue had a called meeting in his office at 10:30 a.m. with his
wife, Kilpatrick, and employees Williams, Rhodes, Taylor,
and Stewart present. De Clue asked who was going to stay
as an employee and who was going to leave. Taylor gave De
Clue a signed statement that he resigned his union
membership,9 and De Clue said he knew Stewart was
staying. Both Kilpatrick and Rhodes told him they wanted
their jobs, but would not resign from the Union. De Clue
told Rhodes she could not get a similar job elsewhere and
told Kilpatrick that she was making a big mistake. After
further irrelevant conversation, De Clue told Rhodes and
Kilpatrick to pickup their checks the following Monday.
When Kilpatrick came in on Monday to get her check, De
Clue told her he did not think the Union was any good and
it did not help the members or the employer, after he had
asked her if she had changed her mind.
After the February meetings with employees, De Clue
visited Beckrum's office, in late February or early March,
and told Beckrum the members did not want to belong to
the Union. About a month thereafter, before the charge in
the instant case was filed on March 22, De Clue and his
attorney came to the union office and met with Beckrum.
De Clue declared that the Union was trying to put him out
of business, he was not able to pay into the welfare and
pension fund, and he wanted the Union to waive these
payments. De Clue also asserted that since he had incorpo-
rated he had no binding contract with the Union. Beckrum
retorted that De Clue did have a contract until November
1976. Respondent and the Union had no further meetings
prior to the hearing. Respondent did not file any notice of
termination of contract with the Federal Mediation and
Conciliation Service.
9 The statements were typed up and delivered to each employee on
February 27 by employee Stewart who told employees that De Clue had said
to throw them away if they did not sign them, according to Kilpatrick whom
I credit in this regard Apart from the foregoing, the only evidence relating to
the "resignation slips" is De Clue's assertion in his prehearing statement that
Steward asked him how to resign from the Union and he told her that, if he
was her, he would type up a resignation slip
10 Although Respondent's answer denies the appropriate unit allegation,
as well as all other allegations but for filing and service of the charges,
B. The Alleged Refusal To Bargain and Other Acts
Tending to Interfere With, Restrain, and Coerce
Employees in the Exercise of Their Statutory Rights
The complaint alleges essentially that commencing on or
about February 24, 1976, Respondent refused and refuses
to bargain collectively with the Union as the exclusive
collective-bargaining representative of all the employees in
an appropriate unit described as:
All cleaning, laundry, and drapery service employees
employed by Respondent, excluding office clerical and
professional employees, guards, and supervisors as
defined in the Act, and all other employees.10
The complaint bases the alleged refusal to bargain on
several grounds, including Respondent's alleged direct
bargaining with employees concerning wages, hours, and
working conditions; Respondent's alleged refusal to make
health and welfare fund payments; Respondent's alleged
unilateral rejection of the existing collective-bargaining
agreement without offering to meet and bargain with the
Union thereon and without filing the notices of termination
with the Federal Mediation and Conciliation Service as
required by Section 8(d) of the Act; and Respondent's acts
and statements of February 24 and 25, 1976, allegedly
designed to undermine the Union's status as majority
representative of unit employees.
It appears from the pleadings and Respondent's oral
argument, as well as the entire record relating to Respon-
dent's statements to the Union, that, apart from a bare
denial of the allegations of the complaint, Respondent's
defense is based on three contentions: (1) there is no
integration of enterprises or alter ego situation present
because of changes in formal business name, intervening
incorporation, changes in address and facility, and the
purchase of new equipment, all of which shows the
existence of new entities not parties to or bound by the
contract executed in 1974; (2) there is no jurisdiction over
Respondent, apparently in the theory of lack of integration;
and (3) the 1974 contract is void ab initio because it
contains an illegal and unenforceable union-security clause.
A clear preponderance of the credible evidence establish-
es that all of the individually named Respondent compa-
nies are, and have been at all times material, engaged in the
same continuing business operations of Tony De Clue, who
is, and has been at all times material, the sole or primary
owner of said operations and has personally been the sole
business manager as well as the sole promulgator and
conductor of labor relations for Respondent under its
various names. I find that under each and every trade name
alleged in the complaint Respondent has been and is a
disguised continuance or alter ego of Respondent Tony De
Clue and is a single integrated enterprise with the same
jurisdictional data relating to T & T Drapery Service, Inc, and the status of
the Union as a labor organization , Respondent proffered no evidence
bearing on the question of unit composition, and I find from a careful
consideration of the record testimony of Kilpatrick and Beckrum , and the
specific job classifications set forth in the contract which all clearly fall
within the generic description of "All cleaning, laundry, and drapery service
employees," that the unit description alleged by the complaint accurately
reflects the composition thereof, and further find it is a unit appropriate for
collective bargaining
LIBERTY CLEANERS 1303
continuing methods of operation, services performed, and
work force.ii Therefore, inasmuch as the Board's jurisdic-
tional standards, as well as the statutory standards, have
been met by the admitted jurisdictional facts relating to T &
T Drapery Service, Inc., which I have found to be part of
Respondent's integrated enterprise, the Board has jurisdic-
tion over Respondent.
I further find that the existence of an unenforceable
union-security clause in the collective-bargaining agree-
ment is no impediment to the finding of an unlawful refusal
to bargain herein. Respondent willingly agreed to the
inclusion of the clause in the contract.12 The contract
contains a severability clause, providing, "This contract is
made in full belief by both parties hereto that it is legal in all
respects. If any section, clause, sentence, or part of this
Agreement is for any reason held invalid, unenforceable by
operation of law, or otherwise, such decision shall not effect
the remaining portions of this Agreement." Further, the
record is clear that Respondent at no time prior to the
hearing made any claim to the Union that the invalid
union-security clause was a basis for its refusal to continue
honoring the contract, but relied solely on the act of
incorporation as the legal basis for its refusal.
In addition to the unrebutted presumption of majority
flowing from the existing contract, the evidence establishes
an actual majority of union members in the appropriate
unit heretofore found, from 1973 through February 27,
1976, when Respondent engaged in acts which I hereinafter
find unlawful in order to rid itself of the Union. I therefore
find, as the complaint alleges, that the Union is and has
been at all times material the exclusive collective-bargain-
ing representative of the unit employees.
I find Respondent did, on or about February 24, 1976,
unilaterally change existing overtime wage rates, and
disavow the existing health and welfare plan, thereby
modifying the collective-bargaining agreement described
above, and on or about February 24, 1976, unilaterally
rejected the collective-bargaining agreement after being
repeatedly and correctly advised by Union President
Beckrum that the agreement was effective until November
1976, and could not be changed at Respondent's whim. I
also find that commencing on February 24, 1976, Respon-
dent has refused and continues to refuse to recognize, meet,
and bargain with the Union even though the Union,
commencing on February 24, 1976, and continuing to date,
and more particularly on March 22 and June 29, 1976, with
a filing of charges, requested and is requesting Respondent
to bargain collectively with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment. I further find that Respondent, on or about
February 24, 1976, attempted to bargain directly with its
employees regarding wages, hours, and other conditions of
employment without notice to or consent of the Union. By
such acts and by each of them, Respondent did refuse to
bargain collectively and now refuses to bargain collectively
with the representative of its employees and thereby
engaged in and is engaging in unfair labor practices
11 American Trailer & Equipment Corp and its Brunswick Body Works
Division, 151 NLRB 867, 879-880 (1965), M P Building Corporation, 165
NLRB 829 (1967), Johnson Electric Company, Inc, d/b/a Johnson Electric
Company, 196 NLRB 637 (1972)
12 The clause in question is plainly invalid because it requires the
affecting commerce within the meaning of Sections 8(a)(5)
and (1) and 2(6) and (7) of the Act.
With respect to the allegations of independent violations
of Section 8(a)(1) of the Act, which General Counsel argues
were designed to undermine the Union in violation of
Section 8(a)(5), I find that De Clue's statements made in the
meeting of February 24, 1976, to his employees contain
promises of benefit consisting of a better insurance plan
and continued yearly raises and other benefits in order to
entice his employees to abandon the Union, and therefore
violated Section 8(a)(1) of the Act. And I also find that the
entire tenor of his remarks set forth supra was such as to
make it appear to his employees that union membership or
representation was futile, and that although he was not
discharging anyone for remaining in the Union he was
rather blatantly soliciting them to withdraw from the Union
with the accompanying direct coercive inference that he did
not expect them to remain his employees if they remained
union members. This was clear advice to union members
that if they did not resign from the Union he preferred that
they not stay, and that to stay in his good graces they would
have to resign from the Union. I find that the foregoing
remarks and inevitable impression they would make on his
employees constituted interference with and restraint upon
the free exercise of their Section 7 rights in violation of
Section 8(a)(1) of the Act, and I further find that all of the
foregoing acts violative of Section 8(a)(1) were designed to
undermine the Union's status as collective-bargaining
agent, and thus also violated Section 8(a)(5) of the Act.
I cannot, however, as General Counsel would have me
do, find that De Clue, by his statements, placed an absolute
requirement on his employees to abandon the Union as a
condition of continued employment; rather, he plainly told
them they could stay as employees and remain union
members if they wanted to. Nor do I find that Respondent
caused umon resignation forms to be typed up and
distributed to employees. The evidence only shows that
employee Stewart prepared and distributed these forms
after asking De Clue how to go about resigning and
receiving the answer that, if it were he, he would prepare a
written resignation. There is no evidence whatsoever that
De Clue solicited Stewart to prepare or distribute the forms
to other employees other than uncorroborated hearsay.
Upon the basis of the above findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Tony De Clue, an individual d/b/a
Liberty Cleaners and d/b/a T & T Drapery Service, T & T
Drapery Service, Inc., and Real Cleaners, Inc., is now and
has been at all times material herein , each individually and
all collectively , an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Umon is a labor organization within the mean-
ing of Section 2(5) of the Act.
employment only of members in good standing , or, in the case of union
inability to supply experienced help, membership within 10 days for
experienced help hired from sources other than the Union, or membership in
less than 30 days for inexperienced employees hired by Respondent
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The following unit constitutes a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All cleaning, laundry, and drapery service employees
employed by Respondent, excluding office clerical and
professional employees, guards, and supervisors as
defined in the Act, and all other employees.
4. At all times since February 14, 1973, and continuing
to date, the Union has been the exclusive representative of
all the employees within said appropriate unit for purposes
of collective bargaining, within the meaning of Section 9(a)
of the Act.
5. By unilaterally changing, on February 24, 1976, the
existing overtime wage rates, and disavowing and discon-
tinuing payments to the existing health and welfare plan on
February 24, 1976, and thereby modifying the agreement
effective February 1, 1974, to November 30, 1976, Respon-
dent affected the wages, hours, and working conditions of
its employees without affording the Union an opportunity
to bargain on the subject, and refused to bargain collective-
ly with the Union as the exclusive collective-bargaining
representative of the employees in the aforesaid unit and
thereby violated Section 8(a)(5) and (1) of the Act.
6. By unilaterally rejecting the aforementioned collec-
tive-bargaining agreement on February 24, 1976, Respon-
dent refused to bargain collectively with the Union as the
exclusive collective-bargaining representative of all the
employees in the unit heremabove described and thereby
violated Section 8(a)(5) and (1) of the Act.
7. By attempting to bargain directly with its employees
regarding wages, hours, and other conditions of employ-
ment without notice to or consultation with the Union,
notwithstanding the Union's status as collective-bargaining
representative of said employees and the terms of the
existing collective-bargaining agreement, Respondent re-
fused to bargain collectively with the Union as the exclusive
bargaining representative of all the employees in the unit
described above and thereby violated Section 8(a)(5) and
(1) of the Act.
8. By refusing since on or about February 24, 1976, to
recognize , meet, and bargain with the Union with respect to
rates of pay, wages , hours of employment, and other terms
and conditions of employment, notwithstanding the
Union's status as exclusive collective-bargaining represen-
tative of the employees in the unit set forth hereinabove,
Respondent violated Section 8(a)(5) and (1) of the Act.
9. By attempting to undermine the Union's status as
exclusive bargaining representative of all unit employees,
on or about February 24, 1976; by making promises of an
improved insurance plan and other benefits to unit employ-
ees; by soliciting and encouraging said employees to resign
from the Union; and by expressing coercive displeasure
with those employees who might remain union members,
Respondent interfered with, restrained, and coerced said
employees in violation of Section 8(a)(1) of the Act and
refused to bargain with the Union in violation of Section
8(a)(5) and (1) of the Act.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
11. The General Counsel has failed to prove by a
preponderance of the evidence that Respondent required
resignation from the Union as a condition of continued
employment, or that Respondent solicited employees to
prepare, distribute, or sign union resignation forms.
THE REMEDY
In order to remedy the unfair labor practices found
herein my recommended Order will require Respondent to
cease and desist from further violations, to revoke its
unilateral changes, to give retroactive effect to all the terms
and conditions of the collective-bargaining agreement,
except the unlawful union-security clauses therein, to
bargain with the Union herein at the request of the Union,
and to post an appropriate notice.
[Recommended Order omitted from publication.]