Mid-West Towel & Linen Service, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1963

143 N.L.R.B. 744 (N.L.R.B. 1963)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the statutory representative or otherwise to interfere with the Union . Therefore,
because of the limited scope of the Respondent 's refusal to bargain , and because of-
the absence of any indication that danger of other unfair labor practices is to be
anticipated from the Respondent 's conduct in the past , it shall not be recommended
that the Respondent cease and desist from the commission of any other unfair labor
practices.
CONCLUSIONS OF LAW
1. The Pascagoula Metal Trades Council, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees at Respondent 's Pascagoula , Missis-
sippi, shipyard, excluding managerial employees , supervisory employees , office clerks,
instructors in the welding school or other craft schools that may be established by
the Company, watchmen or policemen who are deputized , commissioned or ap-
pointed by the city of Pascagoula , or other public authority, instrument men, in-
spectors , office porters, cost-department clerks, and checkers constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
3. The Respondent has refused to furnish information to the Union as detailed
in the body of this recommended decision in violation of Section 8(a)(5).
4. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Mid-West Towel & Linen Service , Inc. and Local 135, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men, and Helpers of America . Case No. 25-CA-1667. July 23,
1963
DECISION AND ORDER
On April 26, 1963, Trial Examiner James V. Constantine 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 attached Intermediate,
Report. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the amended
complaint. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and the Respondent filed a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
143 NLRB No. 90.
MID-WEST TOWEL & LINEN SERVICE, INC. 745
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.2
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
1 We note that the Trial Examiner in section III, C, inadvertently referred to June 29,
1962, rather than September 29, 1962, as the date on which Felton, Childs, 'Chesney, and
Kierstead went to homes of employees, and in his Conclusions of Law, No 7, he in-
advertently referred to May 6, 1962, rather than October 6, 1962, as the date Respondent
refused to bargain with the Union.
In the absence of exceptions thereto, we adopt pro foi rime the Trial Examiner' s recom-
mendation that the complaint be dismissed insofar as it alleges that the Respondent en-
gaged in certain other conduct in violation of Section 8(a) (1) of the Act.
s Member Brown agrees with the Trial Examiner that the Union on October 6, 1962,
represented a majoiity of the employees in an appropriate unit, because, an his opinion.
the best evidence of the employees' intent, i e., their signatures to cards which designated
the Union as their bargaining agent, establishes that the Union enjoyed majority status
when It requested recognition on that date He believes it unnecessary and inappropriate
to consider what representations the Union's solicitors may have made or what the em-
ployees may have been told.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge was filed on October 22, 1962, by Local 135, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen , and Helpers of America . Upon that
charge the General Counsel of the National Labor Relations Board by the Regional
Director for the Twenty-fifth Region ( Indianapolis , Indiana ), issued his complaint
dated November 16, 1962, against Mid-West Towel & Linen Service, Inc., herein
called Respondent or the Company. Said complaint as amended at the hearing, in
substance , alleges that Respondent has engaged in and is engaging in unfair labor
practices comprehended by Section 8(a)(1), (3 ), and (5 ), and affecting commerce
as defined by Section 2(6) and (7) of the National Labor Relations Act, herein called
the Act. Respondent 's answer, while admitting some facts , has put in issue the
commission of unfair labor practices affecting commerce.
Pursuant to due notice , a hearing was held before Trial Examiner James V.
Constantine at Muncie , Indiana, on January 29, 30, and 31, 1963. All parties were
represented at and participated in the hearing , and had full opportunity to introduce
evidence , examine and cross-examine witnesses , submit briefs , and offer oral argu-
ment. Briefs have been received from Respondent and the General Counsel.
At the beginning of the hearing Respondent moved to include certain prehearing
documents as part of the record. This motion was granted . Respondent next moved
to dismiss the complaint on the ground that certain information was erroneously
denied to it by prehearing interlocutory rulings made by another Trial Examiner.
This motion was denied for two reasons . ( 1) I felt that I was not vested with authority
to review another Trial Examiner 's rulings, and ( 2) if I was so empowered, I would
not as a matter of discretion reexamine prior interlocutory rulings of another Trial
Examiner . Cf. 132 A.L.R. 22 et seq. When the General Counsel rested , Respondent
moved to strike the testimony of witnesses Childs, Kierstead , and Smith on the ground
that the General Counsel refused Respondent 's request to make available prior to
the trial their prehearing written statements . This motion was denied. At this
stage of the proceeding Respondent again moved to dismiss the complaint. This
motion was also denied . Respondent 's motion to correct the official report is granted
in the absence of opposition thereto, except for item 29 therein (which appears to
be a typographical error).
Upon the entire record in this case , including the stipulation of the parties, and
from my observation of the witnesses , I make the following:
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , an Indiana corporation, is engaged , at Muncie , Indiana, in the business
of commercial and industrial washing, renting, and distributing of towels and uni-
forms. During the year preceding the issuance of the complaint it purchased goods
and materials valued in excess of $50,000 directly from States other than the State of
Indiana. I find that Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act
to assert jurisdiction over this proceeding.
if. THE LABOR ORGANIZATION INVOLVED
Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, hereinafter called Local 135 or the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Many of the factual issues were disputed and ably contested. Where dispute exists,
it has been resolved in accordance with my appraisal of the credibility of the wit-
nesses and reasonable inferences drawn from the evidence. In determining credibility
I have credited some witnesses in part and rejected in part testimony of the same
witnesses, whether they were called by the General Counsel, the Union, or the Re-
spondent; but in general I have not narrated evidence (Trumball Asphalt Co. of
Delaware v. N.L.R.B., 314 F. 2d 382 (C.A. 7)) in connection with the evaluation of
the credibility of witnesses. All evidence has been considered, and none has been
overlooked, in arriving at the ensuing findings of fact and conclusions of law,
although I have "not annotated to each finding the evidence supporting it." See
United States v. Pierce Auto Freight Lines, 327 U.S. 515, 529.
A. Interference, restraint, and coercion
It is alleged that Respondent committed specified acts proscribed by Section 8(a) (1)
of the Act. In this connection, I make the following subsidiary findings.
About 3:30 p.m on October 4, Ben Hertz, Respondent's vice president and a super-
visor within the scope of Section 2(11) of the Act, called employee Childs to his
office. Hertz first inquired whether Childs was aggravated or disgusted with the
Company, suggesting that Childs was unhappy because employees Decker and
Menard became supervisors ahead of him. Childs denied he was aggravated, assert-
ing that he could not be when he was making $178 a week, but did state he was un-
happy that Decker was selected over him as a supervisor. Hertz then explained that
promotions were based on merit, that Decker deserved to be made a supervisor,
and that, since Childs was almost there, he also could become a supervisor if he just
kept working hard. Hertz then asked Childs if he "had heard of the union rumors"
and if Childs were the "ringleader" of the union movement at the Company.
Childs answered in the negative. Continuing, Hertz explained that he could not
understand why the employees needed a union, especially the Teamsters when others
were trying to get rid of them; that the Company's employees made more money
than most union contracts called for; that if the rest of the employees want a union,
"you got it," but urged Childs not to join. During the conversation, Hertz assured
Childs that it was all right if they wanted a union and that no one would be fired
for union activities. At some point in the conversation, Childs indicated that he
was not interested in the Union because he was making good money.
During the evening, Hertz learned from employee Janney that Childs had
previously asked Janney to sign a union card. Later that evening, Childs and other
employees attended a union meeting at the Holiday Inn in Muncie. After he
returned home, Hertz called Childs about 10:30 p.m. to come to the office. Childs
did go at once. On obtaining a negative reply from Childs when Hertz asked him if
Hertz ever lied to him, Hertz then accused Childs of lying about his union activity
and stated that a liar is no better than a thief. Childs defended his prevarication by
asserting he lied to save his job Hertz then asked Childs to tell him "all about this
union," and, when Childs remarked that he had just returned from a union meeting,
Hertz asked him to disclose the name of the union, of its business agent, and of those
present. Although Childs refused, Hertz persisted in the question and added that if
Childs would not divulge this information, Hertz would have no respect for Childs
or Childs' job. By about 11:30 p.m., Childs identified Local 135 as the union hold-
ing the meeting, and immediately thereafter Childs left.
MID-WEST TOWEL & LINEN SERVICE, INC. 747
On Saturday, October 6, Hertz telephoned Childs at his home to read him a letter
from Local 135 requesting recognition. Hertz then asked him for suggestions as to
what to do about the Union, and asked Childs to "talk the boys out of the Union."
Hertz again asked to know the names of those attending the union meeting of
October 4, and how many were present, because Hertz "had to know where he was
at." Childs disclosed the number present but withheld their names.
About 4 p.m. on October 4, 1962, as employee Kierstead was preparing to load
his truck, Hertz invited him to his office. When Kierstead entered, he found Robert
Pearson, Respondent's sales manager (whom I find to be a supervisor under Section
2(11) of the Act), and Don Hartling, Respondent's plant manager, also in the room.
Hertz then stated that Hartling had reported that Kierstead spoke disparagingly of
Respondent in front of some employees and inquired of Kierstead why he was not
satisfied; and, upon being informed by Kierstead that loading and unloading condi-
tions were unsatisfactory, urged Kierstead to quit "since you don't like it around
here." Kierstead refused to quit at that time but requested 2 weeks to think it over.
Hertz denied this request for time. Kierstead then asked if he was being discharged
because, being 41, he was being made "an example [as] . . . an old man . and
scare the other fellows, or is it all over the Union?" Hertz commented that Kierstead
made disturbing remarks which could cause trouble for Hertz and that "it causes
dissention in the men when you tell them when they should or shouldn't unload the
trucks, and that [Hertz] preferred that Kierstead leave the Company's employ." i
Hertz added that Pearson had planned on firing Kierstead "seven or eight times" but
Hertz prevented accomplishment of such action. After further conversation, Hertz
discharged Kierstead.
About 11:15 p.m. of the same day, as a result of a telephone message by Hertz
given to Kierstead's wife, Kierstead telephoned Hertz and learned that he was wanted
at Hertz' office. As Kierstead arrived, shortly after 11: 30 p.m., Sales Manager Pear-
son also came in. Hertz then expressed regret that he had fired Kierstead and im-
mediately rehired him. Hertz also stated that he would appreciate it if Kierstead re-
frained from making any more speeches in front of the plant, and emphasized that
loading and unloading duties were inseparable attributes of Kierstead's job. Kierstead
concurred that loading and unloading were part of his job. During the conversation,
Hertz said he knew where Kierstead was when he called his home. Kierstead volun-
teered that he was at a union meeting; thereupon, Hertz asked him how many and
who were there Continuing, Hertz asked Kierstead if he knew what he was getting
into and stated that the Union could not make him add another $30,000 addition
to the building to facilitate loading and unloading; nor could the Union prevent
firings for cause, and that every route salesman daily makes enough mistakes to be
fired.
B. The discharge of Thomas Smith
At about 5:30 p.m. on October 4, 1962, Hertz called route salesmen Thomas Smith
and John Felton to the office. Hertz informed them that he had heard some talk
about a union and asked them if they had heard about it, and why they needed one.
When Smith replied that he had heard, Hertz sought the identity of the Union.
Smith said he did not know but thought it was either Local 135 or Local 188 of the
Teamsters. Hertz then asked for their complaints, to which they replied, "The con-
ditions in the plant." A long discussion then occurred concerning loading and un-
loading conditions. Hertz said he knew about "the conditions in the plant," that he
was doing all he could to remedy them, and that the Union could not make him
change those conditions. Continuing, Hertz assured them that if they wanted a
union they could get it and he would pay union wages, but insisted he was paying
higher than union wages. While Felton was present, Smith and Hertz engaged in an
argument about a truck breaking down on Smith. During this argument, Hertz char-
acterized Smith as a chronic complainer or "habitual bitcher." Hertz closed by ask-
ing Smith to quit. Then Hertz excused Felton, who went away.
Hertz then asked Smith why Smith was trying to hurt him, asked Smith if he were
seeking a steward's job, wanted to know if Smith was "the ringleader" in unionizing,
and invited Smith to go to work in a union place if he "wanted the union so bad"
instead of trying to bring a union into the plant and hurt Hertz. Hertz asked Smith
i It is not denied that shortly before this Kieratead talked to five or six route salesmen,
that Hartling overhead it 'and called it to the attention of Hertz, and that is why Hertz
called Kierstead to his office. I find that, in talking to the five or six fellow employees,
Kierstead did not mention the Union but rather complained about working conditions
associated with loading and unloading the trucks, insisted that his duty to the Company
stopped as soon as he brought in his truck to the garage, and stated that he was not being
paid to load and unload it.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he had done anything for which he could be fired and added that he could fire
Smith or "all you boys involved in this and the union wouldn't make me keep you"
because he could find a reason to discharge them. Then Hertz instructed Smith not
to come in the next day for work but only to pick up his severance pay.
At a staff conference in June 1962, Hertz claims he discussed Smith's alleged
shortcomings and ". . . it was decided at that time that Tom Smith would have to
go," as soon as the vacations ended but to try to rehabilitate Kierstead. Vacations,
according to the testimony, were staggered from June to September. I make no find-
ing as to whether such decision to fire Smith was made in June, because as explained
hereinafter, I find that the retention of Smith from June to October 4 amounted to
condonation.
C. The alleged refusal to bargain
Route Salesman Norman K. Childs actively solicited employees to join the Union.
On September 29, 1962, he obtained the signature of employee Eddie Chesney.
Childs "picked up" about 30 other blank cards earlier in the day from Pat Mahoney,
a union representative, pursuant to prior arrangements. Thereafter, on the same
day, Childs, accompanied by Chesney, visited the homes of other employees to obtain
signed cards. Those whom they called on were driver- salesmen Jim Kierstead, Don
Nelson, John Glen Cox, and Gene V. Coats. All but Nelson, who was not home,
signed union cards .2 Then the two returned to Kierstead's home.
Kierstead then joined them, and the three together continued on with their visits
to the homes of other driver-salesmen. They called on Larry Kaderly (who re-
fused to sign because of religious scruples), Norman King, and John Felton, the latter
two signing cards. Thereupon, Felton joined Childs, Chesney, and Kierstead in the
journeys to homes of employees on the same day, i.e., June 29, 1962, a Saturday.
The four proceeded to the Starlight Tavern where they encountered and successfully
recruited to membership James Murphy, and then returned to Donald Nelson's home
where they found him in. Nelson also signed a card From there, the same four
called on Howard Davis, Jack Hoover, Robert Nemyer, Thomas Smith, and Phillip
Fosnaugh, all of whom signed union cards. Thereafter the party of four disbanded.
On Sunday, September 30, 1962, Childs, Kierstead, Fosnaugh, Felton, King, and
Nemyer resumed the visits to employee homes. Smith was with them part of the
time. They called upon Lewis Mathew and Jack Lutz, both of whom they signed up,
and John McCreery 3 and Jack Janney,4 neither of whom was at home.
Other employees were later signed up by Childs alone-Jerry Johnson on October 4
and Kenneth Addington on September 30. All cards executed by the employees were
then turned over to Business Representative Pat Mahoney of Local 135.
Lewis Mathew, who signed a card on September 30, did so after being told that
several others had executed them. He "took it that [those soliciting] meant that we
would have an election." He explained that he was not sure "whether they said it
or not," but it was "my understanding" that "we" would have an election and that
"it [the signing] would not result" in the Teamsters "being enabled to represent"
him. However he did have "some idea, by election or otherwise," that he "would
have" a unippn by signing. Although he had an opportunity, Mathew did not read
the card.
Employee Gene Coats, who signed a card, was told by those seeking it that the
signatures of over 50 percent of the employees were required "before you had a
chance to get the Union in," and that no election was mentioned. On the other
hand, employee Janney signed his card, without reading it, upon the representation
of Norman Childs (who handed it to him) that "here is your union card."
Phillip Fosnaugh, who signed a card, was told by Chesney who gave it to him
that "it was a union card," and Fosnaugh thereby "understood ... if we signed the
card, that we was in favor of having the Union." Chesney also told him at the time
that "they needed a majority of these in order to have a chance for the Union."
Employee John McCreery, who signed a card given to him by employee Norman
King, "filled in the card" himself, signed it, and handed it back to King. Although
King told McCreery the card was for "the Teamsters," he "didn't say what local or
anything" more precise to identify the labor organization. King also said that "if
they got 50 percent of the drivers to sign cards, a union would come and have an
election " By this McCreery understood that in signing the card "the union would
come down there and take a vote as to whether we wanted a union or not." McCreery
2 Union cards mentioned herein contain the legend, among other things, that they are
"application for membership and authorization for representation."
McCreery signed one later that day at the request of Norman King.
4 Janney signed on October 2 at the request of Childs.
MID-WEST TOWEL & LINEN SERVICE, INC. 749
also testified credibly that he wanted his card back, but I do not find that he ever
communicated this to the Union.
Jack Hoover, who received his card from Norman Childs, first testified that he
"understood" or "assumed" from the representations made to him by Childs, "that
signing the card was to obtain an election," and that "they needed a majority of the
cards signed to obtain an election." I am unable to make a finding as to what was
said to Hoover because, after making contradictory statements, he finally averred
he "did not know" what was said to him. Hence I do not find that Childs mentioned
the word "election." Although Childs inserted the date, Hoover "filled in" the
remainder of the written portion of the card without reading it, and then signed it.
However, Hoover did testify credibly that, at the time of subscribing the card he
was and still is "at the present time ... in favor of the Union."
Norman King received his card from Norman Childs, who told him that "it was
for the purpose of obtaining an election." Nevertheless King filled out the entire
card and signed it, for the purpose of "obtaining" or "to get" a union.
On October 6, 1962, Respondent received by mail the Union's demand for recogni-
tion and its petition for certification in Case No. 25-RC-2307. They designate the
unit as "All sales-drivers employed by the Employer at its Muncie, Indiana, estab-
lishment; but excluding all office clerical employees, and all guards, professional
employees and supervisors, and all other employees."
On Monday evening, October 8, Respondent held a regular meeting of its sales
employees at the Flamingo Restaurant in Muncie. All driver-salesmen (a total of
24) and route supervisors came to it. Hertz appeared later, about the time the
evening meal was finished. He requested all supervisors and three newly hired
driver-salesmen employees (none of whom had signed union cards) to leave and
then spoke to the remaining 21 assembled driver-salesmen.5 After first stating that
he had received a letter from Local 135 requesting recognition, and a "letter from
the NLRB," Hertz commented that he could not understand why the employees
needed anyone to do their talking for them; that his door was always open to
employees who wanted to see him; and that he was deeply hurt by this, which he
described as just like his son slapping him in the face. He stated that they could
have a union if they wanted one Proceeding with his talk, Hertz stated that he
would do his best to iron out their problems and that he had to know where he
stood. He ended by asking the employees to inform him "whether he should recog-
nize the Union or fight them to an election"; he reiterated that he had to know
where he stood, but that he would abide by their decision. At this point employee
Janney suggested a vote by ballot. Thereupon Lou Mathew, another employee,
went into another room, obtained some sheets of paper, distributed these papers,
and had them serve as ballots.
Hertz then left to go to an adjoining room and closed the door while the employees
held a secret vote. They wrote "yes" or "no" only on the ballots. When Hertz
returned, at the invitation of Janney, he counted the ballots with the help of an
employee. Hertz then announced that the result of poll showed a majority opposed
to the Union (14-6), for which Hertz thanked them. Hertz then commented that he
interpreted the vote as their command that he "fight the Union to an election " An
employee then asked how to get their cards back. Hertz replied that they should
retain an attorney for this purpose. Thereafter, in the presence of Hertz, an employee
suggested the formation of a committee to take their gripes and complaints to Hertz,
and the employees immediately selected one.
At this meeting employee Jerry Johnson asked Hertz whether "if they joined a
union, any of the benefits and bonuses would be taken away from them, such as
the annual company fishing trip ... the ... race track trip ... or the football game."
Hertz replied that he "was not at liberty to discuss it."
D. The unilateral increases in wages
James Murphy, a route salesman in Respondent's executive valet service, started
,on March 12, 1962, with a minimum guaranteed salary of $75 a week. About 2
weeks later this was increased to $80 and about a month thereafter it was raised to
$85 a week. On or about the Thursday or Friday following the meeting of October 8,
1962, Hertz told Murphy that his minimum had been raised to $100 a week for a
13-week trial period. At about this same time Hertz raised the minimum weekly
guaranteed wages of newly hired employees to $100 a week. It affected only
B Respondent in its brief states that the purpose of this conversation was to discuss
the Union 's letter demanding recognition and the Union 's representation petition.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
Jerry Johnson and Ed Reno. This latter raise was put into effect because Respondent
was finding it difficult to attract new sales drivers on a commission basis unless they
were assured a weekly compensation of at least $100. All other route sales drivers,
although remunerated on a commission basis, were actually earning more than
$100 a week, and, accordingly, were not concerned with the new guaranteed
minimum.
Concluding Findings on Interference, Restraint, and Coercion
1. As to interrogation
Hertz twice spoke to employee Kierstead on October 4, 1962. 1 find no interroga-
tion regarding the Union took place on the first occasion of their meeting. If mate-
rial, I find that Kierstead's discharge at the time was for cause, i.e., for making re-
marks amounting to insubordination, and was not discriminatorily motivated. But
1 do find that Hertz did question Kierstead concerning the Union at the second or
night meeting. Such interrogation, not having been found justified for legitimate
objectives, is found to be coercive. Orkin Exterminating Company of South Florida,
Inc., 136 NLRB 399.
Hertz also spoke to employee Childs on three occasions: two on October 4 and
one (over the telephone) on October 6. At both meetings on October 4, Hertz
propounded questions eliciting information regarding union activity. These ques-
tions are coercive notwithstanding that concurrently therewith Heitz assured Childs
that no reprisals would be taken against anyone who supported the Union. Savoy
Leather Mfg. Corp., 139 NLRB 425; Orkin Exterminating Company of South
Florida, Inc., 136 NLRB 399. Accordingly, Blue Flash Express, Inc., 109 NLRB
591, and cognate cases cited by Respondent are inapposite. Nor is it a defense that
Hertz was concerned that Childs lied to him about the Union. It was not proper
for Hertz to initiate discussion of such a lie, since it related to union activities. See
Barberton Plastics Products, Inc., 141 NLRB 174. Moreover, no pressing business
reason is shown why Hertz called Childs at home to come immediately to the plant
late at night to castigate Childs for lying to Hertz. The urgency of the call in my
opinion implies that it was a serious matter to Hertz, and I find that the seriousness
concerned union activity.
Again on October 4 Hertz asked some questions of employees Felton and Smith.
Those questions relating to union activity are found to be coercive. This conduct is
not immunized because it was accompanied by statements that if the employees,
wanted a union they could have a union. (See cases in preceding paragraph.)
At the Flamingo Inn on October 8, 1962, Hertz demanded 6 that the assembled
employees make known to him whether they wanted him to recognize the Union or
"fight the Union to an election." This interrogation, when assessed against the back-
ground of what transpired prior to and at the meeting, amounts to more than an
innocuous inquiry. Accordingly, I find it is coercive.
As found hereafter, the employee poll of October 8 is coercive. Since it is a type
of interrogation, it is briefly inserted here as an additional finding of interrogation.
2. Threats of discharge
As found above, Hertz stated to Kierstead that all route salesmen stumble once
or twice a day and thus presented Hertz with cause for discharge, and that the
Union could not save an employee from such action. I find that this is not coercive
because it merely restates a lawful proposition and does not contain a threat of re-
prisal. Perkins Machine Company, 141 NLRB 697. Somewhat similar pronounce-
ments were made by Hertz to Childs and to Smith at different times on October 4,
1962. For the same reason, I find that these remarks are not coercive or otherwise
proscribed by the Act.
Although Hertz engaged in conduct at the Flamingo Inn on October 8, which
herein is found to be coercive, I do not find that it constituted a threat of discharge.
Hence paragraph 5(c) of the complaint has not been established.
Also on October 4, 1962, Hertz spoke to employees Felton and Smith. I find that
at no time in his conversation did Hertz threaten either employee with discharge
for union activity. (The findings relating to the discharge of Smith, which I find is
discriminatory, are described elsewhere in this report.)
G According to Hertz, "I told them they were going to have to let me know which way
they wanted me to go ...."
MID-WEST TOWEL & LINEN SERVICE, INC. 751
No evidence was received that Delbert White engaged in any conduct , whether
reprehensible or otherwise , on behalf of Respondent . Hence I find that none of the
.allegations concerning White has been established.
3. Threats of loss of benefits
Admittedly Hertz on October 8, at the Flamingo Inn, responding to questions
about the effect of the Union on existing benefits, insisted that he was "not at liberty
to discuss those things at this time ." Equivocal answers of this type have been held
to be protected under the Act. The Lux Clock Manufacturing Company, Inc., 113
NLRB 1194 , 1198 . Hence I conclude that this evasive reply does not run afoul of
the law , and I so find.
4. The poll taken at the Flamingo Inn
Private polls conducted or sanctioned by an employer have generally been held
to offend against Section 9 of the Act unless such polls are conducted in a manner
consonant with, and are attended by, safeguards substantially equivalent to those
incorporated in the Act. T-H Products Company, 113 NLRB 1246 ; Interboro
Chevrolet Co., Inc. , 111 NLRB 783 , 784. This doctrine has been extended to unfair
labor practice cases. California Compress Company, Inc., 121 NLRB 1388, 1389,
enfd . 274 F. 2d 104 ( C.A. 9); Lincoln Steel Works, 102 NLRB 1359 . This is so
even though the poll owes its inception to a suggestion by a rank-and -file employee.
The F . C. Russell Company , 92 NLRB 206, 208.
The question here is whether the foregoing cases control the instant situation
where the employer did not physically conduct the election . In my opinion the
above cases determine the disposition of this part of the case for the following
reasons:
,(a) The poll was inspired and generated by insistences uttered by Hertz. On his
own testimony Hertz avows that he told the employees he "had to know " where he
stood and that he wanted to know whether he should recognize the Union or "fight
it to an election."
(b) Manifestly Hertz was impliedly inviting, if not expressly soliciting , a showing
of sentiment as to the Union by the employees.
(c) The proximate result of this insistence is a declaration of employee feeling
toward the Union . The fact that such manifestation of employee sentiment was
embodied in a secret ballot initiated by employees , rather than a raising of hands or
a vocal display of intent , is immaterial since it was prompted and inspired by Hertz.
(d) Hence the fact that Hertz left the room during the balloting is not controlling.
(e) I find , therefore , that Respondent was a "principal participant " (cf. The F. C.
Russell Company , 92 NLRB 206 , 208) in the election . Accordingly , Industrial
Stationery & Printing Company, 103 NLRB 1011 , upon which Respondent relies, is
distinguishable because there , unlike here , the employer did nothing which led to an
employee-sponsored election . Similarly, N.L.R.B . v. Crystal Laundry & Dry Clean-
ing Co ., 308 F . 2d 626 (C.A. 6), N.L.R.B. v. Protein Blenders, Inc., 215 F. 2d 749
(C.A. 8), and other decisions cited by Respondent on this branch of the case, are not
applicable to the facts found herein.
5. Formation of the employees' committee
As found above, this committee owes its inception and composition to employees
and not to Respondent. Moreover, the committee has not functioned since. Hence
I find that it was not formed or caused to be formed by Hertz , and, therefore, no
violation of the Act has been demonstrated by the facts pertaining to said committee.
Nor is this conclusion weakened by the fact that the committee was organized (1) in
the presence of Hertz , (2) following the secret poll, (3) and without the use of
secret ballots . This is so because the committee was sponsored solely by employees
without employer instigation or participation in its selection.
6. The unilateral wage increases
Ultimate findings upon this branch of the case are more fully recited in connection
with the alleged refusal to bargain . For present purposes , it is sufficient to mention
that employee Murphy's guaranteed minimum weekly wages and those of two new
employees were unilaterally raised to $100 while the Union enjoyed majority status,
and thus this action violated Section 8 (a)(5). I also find that such conduct
derivatively contravenes Section 8 (a) (1) also . Since I find no antiunion motivation
therefor , I find that these increases do not independently trangress Section 8(a)(1).
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings as to the Alleged Refusal To Bargain
1. The Union's majority
As noted above, by October 5, 1962, the Union obtained 20 7 signatures of em-
ployees in a unit comprised of 24 "route salesmen employed by the Employer at its
Muncie, Indiana, establishment, but excluding all office clerical employees, pro-
fessional employees, guards, and supervisors as defined in the Act, and all other
employees." 8 1 find that this unit is appropriate for the purposes of collective
bargaining. Accordingly, I find that on October 6, 1962, when Respondent received
the Union's written demand for recognition the Union represented a majority of the
employees in an appropriate unit. Although the Union's designation of the unit in
said demand varies slightly from the unit found appropriate, I find that such divergence
is insubstantial and does not destroy the validity of the Union's request for recogni-
tion. I also find that Respondent ignored the Union's demand. An employer is
under a statutory duty to recognize a majority union in an appropriate unit unless
he entertains a good-faith doubt of such majority or unless such majority has been
obtained illegally. The question is whether either or both of the foregoing defenses
have been established on the record.
2. The defense of a good-faith doubt
On the evidence before me, I am unable to find that Respondent was justified in
questioning the Union's majority. Nothing in the credited evidence points to a good-
faith doubt of majority; 9 rather, it discloses an apprehension of a union majority
and steps taken by Respondent to dispel it. Thus Vice President Hertz interrogated
employees to ascertain the identity of the Union and its business agent, as well as
the number of employee sympathetic to the Union. In addition, Hertz admittedly
demanded of his employees at the Flamingo Inn meeting that he had to know
whether they were for or against the Union, so that he would know where he stood-
a fact inconsistent with a reasonable doubt that the Union had a majority. Further,
at no time did Hertz mention at that meeting that he had a doubt about the Union's
majority, but rather talked about acquiring information whether the employees still
wanted a union-a fact showing that he had no knowledge to uphold a reasonable
belief that the Union's assertion of a majority was questionable. Finally, admittedly
at the meeting Hertz commanded that he be instructed by the employees whether he
should recognize the Union or "fight the Union to an election"-again disclosing a
state of mind inconsistent with a genuine doubt of majority and more consonant
with a mood to "fight" the Union.
Accordingly, I find that on October 6, 1962, upon receiving the Union's demand
for recognition, Respondent did not entertain a good-faith doubt of its majority
This of course does not dispose of the matter, for if the Union's majority was in fact
tainted by fraud, coercion, or other reprehensible conduct, Respondent need not bar-
gain with or recognize it. I proceed to resolve the issue of whether the Union rep-
resented a majority properly obtained.
3. The defense of an illegally obtained majority
Respondent contends that the Union's majority lacks legislative approval because
it is infected with misrepresentations used in soliciting signatures to cards. This
misinformation is depicted to be principally that employees "were advised that the
purpose of the cards was only to obtain a representation election or to learn further
facts concerning Union organization." (See Respondent's brief, p. 94.) While I
recognize that cards obtained by misrepresentations are unreliable to show majority
and will vitiate a Union's majority status (Englewood Lumber Company, 130 NLRB
394), I find that Respondent has failed to show that the misstatements disclosed by
the record were made to a sufficient number of the employees signing cards to affect
the Union's majority. Perhaps realizing this, Respondent has aruged that "the only
reasonable inference is that . . . the same sales technique [was used] on all"
the employees solicited.
7This includes Smith The count is 19 if Smith, who was discharged on October 4, is
excluded
8 "All other employees" are represented by Local 3017 of Laundry and Dry Cleaning
Union.
9 Indeed, Hertz testified that before the meeting at the Flamingo Inn he had "no idea
[of] the strength of the union among the drivers salesmen
MID-WEST TOWEL & LINEN SERVICE, INC. 753
But I do not draw this inference for several reasons: (1) No pressure was used to
cause employees to sign, and therefore, they were free to know what they were
signing; (2) most of the employees filled in the cards themselves and then signed
them; (3) the cards in large letters state that they are applications for membership; io
(4) some employees were told the cards were for the purpose of union representa-
tion; and (5) at the Flamingo meeting both the employees present and Hertz regarded
the cards as membership cards. In connection with (5), it is patent that the cards
would not bother or disturb an employee who wanted an election for, if Respondent is
right that the subscribers thereto only wanted an election, the employees at the
Flamingo voted to have an NLRB election. But no reason is advanced why the
employees would want their cards returned if such cards would assure them of an
NLRB election. Nor did Hertz himself consider the cards as calling for an election;
rather he looked upon them as membership cards and insisted that those signing
them inform him whether they wanted to adhere by the cards or "fight" to an election.
Certainly if he thought the cards called for an election he would have assented to
their remaining in the possession of the NLRB and would not have advised seeing a
lawyer to recall the cards.
Nor do I find that other irregularities exist as argued on pages 95 and 96 of
Respondent's brief. They need not be discussed.
Hence I find that the Union's majority was not illegally obtained and that it is
an uncoerced majority.
Nor do I find that the Union lost its majority before October 6, 1962, as argued
by Respondent. On this segment of the case, the only evidence is the testimony by
Hertz that Childs on October 4 told him that the union movement was "over "
Assuming that Childs uttered these words, it does not follow that they thereby
destroyed the Union's majority. Not only was Childs unauthorized to commit the
Union to an abandonment of its organizing campaign, but the words themselves do
not compel the deduction that the Union had terminated its drive. Of course these
words may suggest that, on the issue of good-faith doubt, Hertz was warranted in
concluding the Union lacked a majority; but that is not the question before me upon
this branch of the case.ii If, however, these words connote a loss of majority,
I find that such loss is attributable to Respondent's unfair labor practices. Joy Silk
Mills, Inc. v. N.L.R.B., 185 F. 2d 732, 744 (C.A.D.C.).
4. The defense that the poll establishes a loss of majority
As noted above, I have found that the poll taken at the Flamingo Inn on October 8
contravened the Act, and that such illegality was not removed by Hertz' accompanying
statements that he had no objections to the Union and that he would abide by the
decision of the employees It follows that the results of the poll must be disregarded
because they are infected by Respondent's unfair labor practices preceding and
contemporaneous with the poll. Joy Silk Mills, Inc. v. N L R.B., supra, at 744
Nor is it a defense that Respondent was confronted simultaneously with both an
unfair labor practice proceeding alleging a refusal to bargain and a representation
proceeding. The pendency of a petition for certification neither relieves an employer
of its duty to bargain nor constitutes an irrevocable commitment by the union to
establish its representative status only in an election. General Medical Supply Corp ,
140 NLRB 712; Rea Construction Company, 137 NLRB 1769; N.L R B. v. White-
light Products Division of White Rolling & Stamping Corporation, 298 F. 2d 12, 14
(C.A. 1).
Concluding Findings as to the Discharge of Thomas Smith
As found above, Smith signed a union authorization card on September 29, 1962.
On the following day, he joined Childs, Chesney, Kierstead, and others in soliciting
other employees to sign similar cards. Hence, I find that he was active in the union
movement at the plant. I also find, as disclosed by the record, that Hertz was aware
that Smith was active in that movement; and this conclusion also is strengthened by
the conduct of Hertz in propounding questions aimed at ascertaining whether Smith
was the ringleader and whether Smith was "bucking for" a steward's job. I am un-
able to accede to Respondent's argument that Hertz lacked knowledge of Smith's
10 See Dan River Mills, Incorporated, Alabama Division, 121 NLRB 645, 648
n As narrated elsewhere, I have found that such good-faith doubt did not exist. In so
finding I have not overlooked this evidence, but find that it did not enter into Hertz' mind
because he never mentioned it, at any time American Rubber Products Corporation v
N L'R B , 214 F 2d 47, 52-54 (C A. 7), cited by Respondent, does not compel a contrary
result.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activity, especially since Hertz himself testified that he asked Smith and Felton
"what a union could do about alleviating this loading and unloading situation . .
This utterance by Hertz, together with other pertinent credible evidence, warrants the
inference-and I draw it-that Hertz had information connecting Smith with the
Union's organizing drive.
Finally, I find that the predominating or motivating reasons for Smith's discharge
were his union membership and activity, rather than that he chronically complained
or because he "bitched" continually, or because his production was unsatisfactory.12
This finding is based upon the entire record, including the following factors:
1. Although Respondent contends it decided before the advent of the Union, i.e.,
about June 1962, to discharge Smith, nothing was done about it until after the Union
appeared on the scene in late September. While Respondent maintains that, as a
result of a shortage of employees during vacation time, the discharge was postponed
until all vacation schedules had been completed (which occurred in September), the
record is clear that Smith was not informed of this. Manifestly a decision of such
gravity to Smith would have been communicated to him contemporaneously with or
shortly after its adoption. Moreover, if such a decision had been made in June, it
is difficult to understand why Hertz, on his own admission, had no intention of firing
Smith for cause when he called Smith to his office on October 4, 1962.
2. Even assuming that a decision was made in June to discharge Smith for cause
as soon as vacations ended in September, it is significant that Smith was discharged
in October, after the Union started its drive and after Hertz suspected that Smith
was a ringleader in that drive.
3. Assuming cause existed for discharge in June, it was thereafter overlooked or
in effect condoned. This is because Hertz testified that when he called in Felton and
Smith on October 4, it was because it had been brought to Hertz' attention "that they
had been complaining about the loading and unloading situation and I wanted to see
if I could get it straightened out with them." Hertz then, on his own sworn testimony,
explained to the two that "We were doing everything within our power to alleviate
that situation, and asked them to bear with us . Manifestly no desire to dis-
charge for cause is discernible in this testimony of Hertz. Rather, the past derelic-
tions of Smith appear to be cast aside. Finally, after directing Felton to leave, Hertz
asked Smith to quit if Smith did not like conditions at Mid-West. Cf. Roberto Alvaro
Manufacturing, Inc., et al., 141 NLRB 669, where an employer's remarks that an
employee was unhappy with working conditions "stamped [the employee] in the
employer's mind" as sympathetic to the Union's objective. When Smith refused,
Hertz then discharged him.
4. Although Respondent stresses that Smith was dismissed for "blowing his top,"
it is significant that Hertz did not so testify. Hertz testified only that he first asked
Smith to leave because of dissatisfaction with the job and then discharged Smith when
he refused to resign. Although testimony from other witnesses for Respondent indi-
cates that Smith was discharged for "blowing his top," I am unable to accept it.
Concluding Findings as to the Unilateral Increase in Wages
As narrated above, Respondent increased the guaranteed minimum weekly wage
of Murphy from $85 to $100, and also raised the starting guaranteed minimum wage
of new employees to $100 a week. I credit Respondent's explanations for taking
such action, i.e., (1) as to Murphy, it was warranted because he was bringing in
sufficient business to earn, on a commission basis, over $100 a week; and (2) as
to new employees, it became necessary to offer a guaranteed remuneration which
would attract applicants for work and thus assure Respondent of an adequate source
of labor supply. Hence I find that these increases were not induced or motivated by
antiunion considerations.
Nevertheless I am constrained to find that, regardless of intent, an employer may
not change wage rates without first bargaining thereon with the exclusive collective-
bargaining agent of such employees. It is not disputed that Respondent unilaterally
(i.e., without bargaining with or notifying the Union) raised the minimum wages
involved. I find that this occurred at a time when the Union represented a majority
of employees in the unit where such raises took effect. It follows that such conduct
UNevertheless I find that Smith "habitually bitched" and that his sales record had
deteriorated and that these are grounds justifying discharge for cause . The existence of
lawful grounds for discharge does not destroy the above conclusion, for the discrimina-
tory motive need not be the only reason. It is sufficient that union activity be a sub-
stantial or motivating reason. N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883 (IC.A.
1) ; N.L.R.B. v. C. & J. Camp, Inc., et al., d/b/a Kibler-Camp Phosphate Enterprise, 216
F. 2d 113 ( C.A. 5).
MID-WEST TOWEL & LINEN SERVICE, INC. 755
constitutes a refusal to bargain. See N.L.R.B. v. Crompton-Highland Mills, Inc.,
337 U.S. 217, 224-226; Medo Photo Supply Corporation v. N L R.B., 321 U.S. 678,
683-685. And assuming that Murphy's raise was not included in the general increase
extended to new drivers, it nevertheless partook of the nature of a merit increase.
Individual merit increases likewise are bargainable subject matters and may not be
unilaterally changed. N.L.R.B. v. I. H. Allison & Company, 165 F. 2d 766 (C.A. 6),
cert. denied 335 U.S. 905.
Accordingly, I find that the particular raises involved, while not inspired by union
animus, are condemned by Section 8(a) (5) because Respondent did not consult with
the Union with respect thereto. Robert Price and Glen Price Co-Partners d/bla
Price's IGA Foodliner, 141 NLRB 599, is distinguishable, because there, unlike here,
the changes in economic benefits had been promised to employees prior to the com-
mencement of union activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of Respondent which have been found to contravene the Act as set
forth in section III, above, occurring in connection with its operations set forth in
section I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act. The Recommended Order
will require Respondent to offer Thomas E. Smith full and immediate reinstatement
to his former or substantially equivalent position, without prejudice to seniority or
other rights and privileges previously enjoyed, and to make him whole for any loss
of earnings suffered. Such loss, if any, shall be compensated for by payment of a
sum of money equal to that which Smith normally would have earned from the date
of the discrimination against him to the date of Respondent's offer of reinstatement
or actual reinstatement, as the case may be, less net earnings during the intervening
period. The backpay provided herein shall be computed in accordance with the
formula described in F. W. Woolworth Company, 90 NLRB 289, with interest
thereon ascertained in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716. It will also be recommended that Respondent retain and make available
to the Board or its agents, upon reasonable request, all pertinent records and data
necessary to determine the amount of backpay due.
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Local 135 is a labor organization within the meaning of Section 2(5) of the
Act.
2. Respondent is an employer engaged in commerce as defined in Section 2(6)
and (7) of the Act.
3. All route salesmen employed by the Company at its Muncie, Indiana, estab-
lishment, but excluding all office clerical employees, professional employees, and
supervisors as defined in the Act, and all other employees, constitute a unit appro-
priate for purposes of collective bargaining within the meaning of Sections 9(b) and
8(a)(5) of the Act.
4. On October 6, 1962, and at all material times thereafter, Local 135 represented
a majority, and was the exclusive bargaining representative, of all the employees in
the aforesaid appropriate unit for purposes of collective bargaining within the mean-
ing of Section 8(a)(5) and (9) of the Act; and Respondent was on that date, and
has been since, legally obliged to recognize and bargain with Local 135 as such.
5. By coercively interrogating its employees concerning their and other employees'
union membership, activities, and desires; by sanctioning a poll of its employees; and
by requesting employees to withdraw from or to refrain from joining Local 135;
Respondent has engaged in and is engaging in conduct proscribed by Section 8(a) (1)
of the Act.
6. By discriminating in regard to the tenure of employment of Thomas E. Smith,
thereby discouraging membership in a labor organization, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (1)
and (3) of the Act.
717-672-64-vol. 143-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. By refusing to recognize or bargain with the Union in an appropriate unit on
and since May 6, 1962, and by unilaterally raising wages , Respondent has engaged
in and is engaging in unfair labor practices comprehended by Section 8(a) (5)
and (1 ) of the Act.
8. The above -described unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and ( 7) of the Act.
9. Respondent has not committed any other unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law , and upon the
entire record in the case , it is recommended that the Respondent , Mid-West Towel &
Linen Service, Inc., its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any other labor organization, by
discharging employees or otherwise discriminating in any manner in respect to their
tenure of employment , or any term or condition of employment.
(b) Sanctioning or participating in polls of employees to ascertain their union
sympathies or desires.
(c) Coercively interrogating employees concerning their or other employees' union
sympathies , activities , or desires.
(d) Soliciting employees to withdraw from or to refuse to join Local 135 or any
other labor organization.
(e) Refusing to recognize or bargain collectively with Local 135 as the exclusive
representative of all the employees in the above -mentioned appropriate unit, and
from unilaterally changing their wages without prior consultation with said Union
or any labor organization which they may select as their exclusive bargaining agent
(f) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist the Union or any other labor organization , to bargain collec-
tively through representatives of their own choosing , and to engage in other con-
certed activities for the purposes of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
2. Take the following affirmative action designed to effectuate the policies of
the Act-
(a) Upon request, bargain collectively with the Union as the exclusive repre-
sentative of all employees in the aforesaid appropriate unit and, if an understanding
is reached , embody such understanding in a signed agreement.
(b) Offer Thomas E. Smith immediate and full reinstatement to his former or a
substantially equivalent position , without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him whole for any loss of pay he may
have suffered, with interest at the rate of 6 percent, by reason of Respondent's
discrimination against him.
(c) Preserve and , upon reasonable request, make available to the Board or its
agents, for examination and copying , all payroll records, social security payment
records, timecards , personnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant in Muncie, Indiana, copies of the attached notice marked
"Appendix." 13 Copies of said notice, to be furnished by the Regional Director for
the Twenty-fifth Region , shall, after being signed by a duly authorized representative
of Respondent, be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Twenty-fifth Region , in writing , within
20 days from the date of receipt of this Intermediate Report and Recommended
Order, what steps Respondent has taken to comply herewith.14
" If this Recommended Order is adopted by the Board , the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice In the further event that the Board 's Order is enforced by a decree of a
United States 'Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order "
14 If this Recommended Order is adopted by the Board , this provision shall be modified
to read "Notify said Regional Director, in writing , within 10 days from the date of this
Order, of the steps that Respondent has taken to comply herewith "
MID-WEST TOWEL & LINEN SERVICE , INC. 757
It is further recommended that the complaint be dismissed in all other respects.
It is finally recommended that unless Respondent shall, within the prescribed
period, notify the said Regional Director that it will comply, the Board issue an
Order requiring Respondent to take the aforesaid action.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 discourage membership in Local 135, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen , and Helpers of America , or in any
other labor organization , by discharging any of our employees because of their
concerted or union activities , or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of employment.
WE WILL NOT sanction or participate in polls of employees to ascertain their
union sympathies or desires.
WE WILL NOT coercively interrogate employees concerning their or other
employees ' union sympathies , activities , or desires.
WE WILL NOT solicit employees to withdraw from or refuse to join said Local
135 or any other labor organization.
WE WILL NOT refuse to recognize or bargain collectively with said Local 135
as the exclusive representative of all our employees in the appropriate unit
mentioned below.
WE WILL NOT raise wages of employees in said appropriate unit before nego-
tiating thereon with said Local 135 as long as it represents a majority of said
employees.
WE WILL NOT in any like or related 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 Local 135, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen , and Helpers of America , or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, 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 of such
activities.
WE WILL offer Thomas E. Smith immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges , and will make him whole for any loss of pay
incurred as a result of his discharge , with interest thereon at 6 percent per annum.
WE WILL, upon request, bargain collectively with said Local 135, as the
exclusive representative of all employees in the bargaining unit described below
with respect to rates of pay, hours of employment , and other terms and condi-
tions of employment , and, if an understanding is reached, we will embody such
understanding in a signed contract . The bargaining unit is:
All our route salesmen employed at our Muncie , Indiana, establishment,
but excluding all office clerical employees , professional employees, guards,
and supervisors as defined in the Act, and all other employees.
All our employees in said unit are free to become, remain, or refrain from
becoming or remaining members of said Local 135 or any other labor organization.
MID-WEST TOWEL & LINEN SERVICE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center , 150 West Market Street , Indianapolis , Indiana, 46204 , Telephone No.
Melrose 3-8921 , if they have any questions concerning this notice or compliance with
its provisions.