Savoy Laundry, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1964

148 N.L.R.B. 38 (N.L.R.B. 1964)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other protected activity by nonemployee organizers . Hence it is not enough, even
under cases embracing this latter doctrine , to show that union officials were frus-
trated in their organizing attempts and abandoned further union solicitation because
such officials did not desire to subject employees to the risk of being discharged for
signing union membership cards; an additional element must be also established,
i.e., that employees will inevitably learn of the threat or coercive conduct.
Ultimately , the problem then is to ascertain whether Hilderbrand 's threats did
more than cause McLain and other union officials to stop organizing Ladd's em-
ployees. This narrows down the issue to whether the circumstances touching upon
Hilderbrand 's uttering of threats insure that Ladd 's employees will learn thereof.
It is reasonable to infer-and I draw such inference-that Ladd's employees were
insulated against feeling the coercive impact of such threats because there is no
evidence in the record that McLain ever returned to the jobsite or otherwise com-
municated with Ladd 's employees after December 3, 1963. Accordingly , I find that
the General Counsel 's case must fail because proof is missing that any employee
knew or was bound to be cognizant of Hilderbrand 's threats . It will therefore be
recommended that the complaint be dismissed.
Upon the basis of the foregoing findings of fact , and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Baltimore Building and Construction Trades Council, AFL-CIO, is a labor
organization within the meaning of Sections 2(5) and 8 (a) of the Act.
3. Respondent 's foreman, Hilderbrand , is a supervisor under Section 2(11) of
the Act.
4. Although Hilderbrand told McLain that Hilderbrand would discharge any em-
ployees who signed union membership application cards or who he heard had signed
the same, such statement standing alone does not transgress Section 8(a)(1) of the
Act; there must also exist a showing that the, circumstances insure that Ladd's em-
ployees would learn about it. Upon the credible evidence , the conclusion must be
drawn that such assurance is lacking.
5. On the facts found herein Respondent has not engaged in any unfair labor
practice solely because Hilderbrand 's threat alluded to in the preceding paragraph
was neither heard by nor communicated in any manner to Ladd's employees.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions of law, and the entire
record in this proceeding, it is recommended that the complaint be dismissed.
Savoy Laundry, Inc. and Food, Beverage and Express Drivers
Local Union No. 145 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America . Case No.
2-CA-808,0. July 28, 1961
SUPPLEMENTAL DECISION AND AMENDED ORDER
On May 24, 1962, the Board issued its Decision and Order in the
above-entitled proceeding. The Circuit Court of Appeals for the
Second Circuit issued its decree, on March 2, 1964, enforcing the
Board's Order in all respects except that: (a) The provisions of said
Board's Order calling for the reopening of Respondent's wholesale
shirt division are hereby deleted from said Order; and (b) the back-
pay awards in said Order are hereby remanded to said Board for fur-
ther consideration.
148 NLRB No. 5.
SAVOY LAUNDRY, INC. 39
We have reconsidered our Decision and Order of May 24, 1962, in
the light of the circuit court's opinion,' and we believe its backpay
provisions, despite the deletion of the restoration order, are neces-
sary to effectuate the policies of the Act. A number of the discrimina=
tees have worked for Respondent for many years and have skills
which may be utilized in jobs connected with the operations which
Respondent retained after discontinuing its wholesale accounts.
Moreover, Respondent may have expanded its operations since' the
hearing or may do so in the future, thus establishing the possibility
that jobs will be available for the discriminatees when compliance is
secured. Accordingly, the termination of backpay upon such rein-
statement offer may be expected for some, if not all the discriminatees.
And, as to those for whom jobs may not be available, backpay is
terminable when they secure, or have secured, substantially equivalent
jobs elsewhere. Thus, two alternate standards for terminating the
accrual of backpay are set forth in the Order. •
The court's concern that the latter standard, the date employees
secure substantially equivalent jobs elsewhere, may result in a
". . . backpay award . . . without time limitation" impels us to ex-
plain fully the basis for this novel backpay remedy as compared to
the usual backpay order (which is expressed in the first alternative
above).
When, early in its existence, the Board established its usual backpay
order, it set forth a broad formula for the computation of backpay,
i.e. ". . . a sum of money equal to that which each [discriminates]
would normally have earned as wages during the period from the
date of his discharge to the date of . . . offer of reinstatement .. .
less the amount which each earned subsequent to discharge... "a
It was claimed at the time that such remedy was unfair and punitive.
Thus it was asserted that an employer who, for economic reasons,
ceased production some time after the illegal discharge, but before
compliance, would not be in. a position to offer reinstatement and thus
cut off backpay, and this circumstance would appear to require him
to pay backpay indefinitely; or, a discriminatee could, after discharge,-
take an extended vacation at respondent's ultimate expense; or a dis-
criminates, who was disabled after discharge, would apparently be
entitled to collect backpay despite the fact that he was not able to
work and thus mitigate respondent's backpay obligation. Antici-
pated evils of this kind could be multiplied virtually indefinitely.
But the continued development of a body of backpay law has estab-
lished reasonable rules for the fair administration of this remedy
which have dispelled the fears. Thus, where an economic shutdown
occurs, i.e., work is unavailable during a backpay period, backpay
1327 F 370 (C.A. 2), decided January 24, 1964.
2 Pennsylvania Greyhound Linea, Inc., 1 NLRB 1 , affd. 303 U . S. 261.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not normally accrue; 8 discriminatees who do not make a reason-
able search for work during a backpay period are denied backpay
for such periods of willful idleness; 4 and discriminatees who have
withdrawn from the labor market, whether by reason of disability
or for other reasons , do not receive backpay for such periods of
withdrawal.'
These, and many other rules pertaining to the administration of
the Board's backpay remedy, were developed as the cases arose. Nor
has this process ended, for new situations, arising continually, require
further clarification of the Board's remedy as applied to specific cir-
cumstances. New rules concerning the administration of the remedy
are announced as the cases are heard through the Board's compliance
procedures.
Compliance procedures are an indispensable element in assuring
that Board remedies are equitably applied.- For it is almost axio-
matic that the record before the Board concerning the unfair labor
practice is inadequate for the spelling out of a precise, detailed remedy.
Between the time of hearing and compliance, many new events may
occur which have a critical bearing on backpay recovery by dis-
criminatees such as changed pay rates, changed hours, changed em-
ployment availability in respondent's plant, withdrawal of discrimi-
natees from the labor market, their reemployment by respondent, etc.
For this reason, the backpay remedy is extremely broad, leaving for
the compliance stage the determination of relevant current circum-
stances and the application of the remedy to such circumstances.6 If,
at that time, the respondent objects to the way in which the Regional
Director intends to administer the Order, it can avail itself of a second
hearing at which the questions at issue are presented before a Trial
Examiner and the specific factual circumstances bearing on these ques-
tions are fully explored. A Supplemental Board Order would then
issue as to such questions.' Both the original Order and the Supple-
mental Order are subject to review by the circuit court of appeals.
It is our intent, in formulating this backpay remedy, that estab-
lished backpay rules governing the conduct of discriminatees will
apply to this remedy as well. Thus, discriminatees will be required
to make a reasonable search for work during periods of unemploy-
s J. R. Todd, d /b/a Central Minerals Company, 59 NLRB 757; Satchwell Electric Con-
struction Company, Inc., 128 NLRB 1265, 1279.
' Phelps Dodge Corp. v. N.L R B., 313 U .S. 177.
Columbia Pictures Corporation, et al., 82 NLRB 568; Kopmon -Woracek Shoe Mfg. Co.,
66 NLRB 789, enfd . 158 F. 2d 103 (C.A. 8).
6 The last paragraph of the Order below reserves to the Board ` . . the right
to modify the backpay and reinstatement provisions of this Order , if made necessary by
circumstances not now apparent."
' National Labor Relations Board, Rules and Regulations and Statements of Procedure,
Series 8, as amended, U . S. Government Printing Office, Washington , D.C., 1962, Sections
102 52 through 102.59 , inclusive.
SAVOY LAUNDRY, INC 41
ment, backpay will not accrue during periods when a disciimi natee
is unable to work or othernise out of the labor market, etc And it is
not unreasonable to assume that since the issuance of our oiiginal
order herein, a matter of some years, most if not all of the discrimi-
natees have succeeded in finding substantially equivalent employment,
so that the question of unlimited backpay liability is in reality only
a matter of academic importance In any event, we are not over-
looking the possibility that theie are consideiations existing which
would favor placing a limitation on the Respondent's backpay lia-
bility despite a discrimmatee's unsuccessful seaich for equivalent em-
ployment Thus, depending on evidence of the Respondent's business
experience, it is conceivable notwithstanding its discrimmatoiy actions
that at some point of time the Respondent, had it resumed operations
pursuant to oui Order, would have been economically justified in
terminating its wholesale shirt division and thus have limited its
backpay liability However, until these problems are explored in a
compliance pioceeding, we believe it is piematuie to assume that this
remedy piovides unlimited backpay acciual
We also believe this iemedy is less onerous than our standard re-
instatement and backpay order Insofar as the disci iminatees for
whom jobs are not available in Respondent's plant aie concerned, it
falls somewhat short of restoimg the status quo ante They have
been deprived of jobs, some of long standing, which this iemedy may
not iestore If they secure substantially equivalent employment else-
where, such employment must be as new employees without the pi o-
tection of seniority and other rights and privileges And as for those
discriminatees who have secured such employment and are later
offered reinstatement pursuant to this Order, they will have had their
backpay terminated as of the time of the earlier outside employment
The Circuit Couit of Appeals for the Third Ciicuit has approved
a Board backpay order which is substantially in this foim 8 More-
over, the Circuit Court of Appeals for the Seventh Circuit, although
disapproving the restoration-of-operations poition of the Board's
Order in Hugh Mayor, d/b/a Hugh Mayor Truck Service 9 stated that
it would have enforced an order "substantially in the foim proposed
by the Trial Examinei," including a backpay piovision like that used
herem 10
It is our view that, for the reasons stated above, ievision of our back-
pay order is not required by the deletion of the restoration provision
8 N L R B v Philadelphia Dress Joint Board, etc (Sldele Fashions , Inc, et al ), 305
F 2d 825 (CA 3), enfg 133 NLRB 547 See also NLRB v St Cloud Foundry and
Machine Co, Inc, 285 F 2d 429 (C A 8), enfg 130 NLRB 911, on petition for summary
entry of decree
0129 NLRB 322
10 N L R B v Hugh Major, d/b/a Hugh Major Truck Service, 296 F 2d 466 (C A 7)
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED ORDER11
Upon the entire record in this case, and pursuant to Section 10(c)
of the Natinoal Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Savoy Laundry,
Inc., Stratford, Connecticut, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from :
(a) Discouraging membership in Food, Beverage and Express
Drivers Local Union No. 145, International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of America, or in any
other labor organization of its employees, by discharging or in any
other manner discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b) Granting wage increases to its employees in order to under-
mine the Union's authority and the rights of the employees to bar-
gain through an exclusive bargaining agent.
(c) Refusing to bargain collectively with the above-mentioned
Union as the exclusive representative of all the employees in the
following appropriate unit :
All production and maintenance employees at Respondent's Strat-
ford, Connecticut, plant, excluding office clerical employees, profes-
sional employees, watchmen, guards, drivers, and supervisors as de-
fined in the Act.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right of self-organization, to form
labor organizations , to bargain collectively through representatives
of their own choosing, and to engage in any other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to, refrain from any and all such activities, except as
authorized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer reinstatement to their former or substantially equivalent
jobs, as available , to the following employees:
Lucille Wright Eliza Wright Hattie Moore
Hattie Dawson Betty Lou Thigpen Nazie Ree Bobo
Elaine Anderson Sarah Fernandes Lola Rodriguez
Jessie Banks Margaret Simpson Anna Barnes
Agnes Fields Easter Mae Byrd Sherry Tutt
Lola Sanders Alice Robinson
11 So that all of the Respondent 's obligations hereunder may be contained in one Instru-
ment, we have decided to issue an amended order containing not only our reaffirmation of
those provisions of our previous Order which we have reconsidered, but also the provisions
which have already been enforced by the court. ,
SAVOY LAUNDRY, INC. 43
Create a preferential hiring list containing the names of any em-
ployees above-named for whom there, are not sufficient job openings
and, as job openings occur thereafter, offer reinstatement to said em-
ployees to their former or substantially 'equivalent jobs. The Re-
spondent shall notify the Union and the listed employees of the estab-
lishment of such list.
(b) Make them whole for any loss of pay suffered by reason of the
discrimination against them, from the date of their discharge on Feb-
ruary 23 or 24, 1961, to the date of the offer of reinstatement or until
such earlier time as each secures, or did secure, substantially equiv-
alent employment with another employer, less any intermediate
earnings.
(c) Make whole Bertha Jones, Rosetta Madison, Elsie Rucker,
Dorothy Teasley, and Ethel Whitley for any loss of pay suffered by
reason of the discrimination against them, from the date of their dis-
charge on February 23 or 24, 1961, to the date of their reinstatement,
less any intermediate earnings.
(d) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment 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.
(e) Bargain collectively, upon request, with Food, Beverage and
Express Drivers Local Union No. 145, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
exclusive bargaining representative of its employees, and, if under-
standing be reached, embody such understanding in a signed
agreement.
1(f) 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 determine the amounts of backpay
due under the terms of this Order.
(g) Post at its Stratford, Connecticut, plant, copies of the attached
notice marked "Appendix." Copies of said notice, to be furnished by
the Regional Director for the Second Region, shall, after being duly
signed by Respondent's representative, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material. Mail copies of said notices, signed by Respondent's
representative, immediately upon receipt thereof to the Union and to
each of the listed employees.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(h) Notify'the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FIIRTIIER ORDERED that the Board reserves to itself the right to
modify the backpay and reinstatement provisions of this Order, if
made necessary by circumstances not now apparent.
MEMBER JEN$INS took no part in the consideration of the above
Supplemental Decision and Amended Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Food, Beverage and
Express Drivers Local Union No. 145, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization of our employees, by
discharging or discriminating against them in regard to their
hire and tenure of employment.
WE WILL NOT grant unilateral changes in wages of our em-
ployees without consulting and bargaining in advance with the
foregoing labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right of self-
organization, to form labor organizations, to join or assist the
above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any and all such
activities, except as authorized in Section 8(a) (3) of the Act, as
amended.
WE WILL offer reinstatement to their former or equivalent jobs,
as available, to the following employees:
Lucille Wright -
Agnes Field
Hattie Dawson
Elaine Anderson
Jessie Banks
Alice Robinson
Lola Sanders
Eliza Wright
Betty Lou Thigpen
Sarah Fernandes
Margaret Simpson
Sherry Tutt
Easter Mae Byrd
Hattie Moore
Nazie Ree Bobo
Lola Rodriguez
Anna Barnes
SAVOY LAUNDRY, INC. 45
WE WILL create a preferential hiring list containing the names
of any employees aforenamed for whom there are not sufficient
job openings and as job openings occur we will -offer reinstate-
ment to these employees to their former or substantially equiva-
lent jobs.
WE WILL make whole the above-named employees for any loss
of pay from the date of their discharge on February 23 or 24,
1961, to the date of the offer of reinstatement, or until such earlier
time as each secures, or did secure, substantially equivalent em-
ployment with another employer, less any intermediate earnings.
WE WILL make whole the following named employees for any
loss of pay from the date of their discharge on February 23 or 24,
1961, to the date of their reinstatement, less any intermediate
earnings.
Bertha Jones Ethel Whitley
Rosetta Madison Elsie Rucker
Dorothy Teasley
WE WILL make whole for any loss of pay any employee named
in the fourth indented preceding paragraph, above, for whom no
job openings are available that are the same or substantially
equivalent to their former jobs and who have not been offered re-
instatement, by paying her a sum of money equal to the amount
she would normally have earned as wages from the date of her
discharge on February 23 or 24, 1961, until such time as she se-
cures, or did secure, substantially equivalent employment with
another employer, less any intermediate earnings.
WE WILL bargain, upon request, with Food, Beverage and Ex-
press Drivers Local Union No. 145, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, with respect to the unit consisting of all production and
maintenance employees at our Stratford, Connecticut, plant, ex-
cluding office clerical employees, professional employees, watch-
men, guards, supervisors, and drivers.
SAVOY LAUNDRY, INC.,
Employer.
Dated---------------- By--------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their 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.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York, New York, Telephone No.
Plaza 1-5500, if they have any question concerning this notice or
compliance with its provisions.
Mary Carter Paint Co., Victor Paint Co. Division , Petitioner and
Retail Store Employees , Local Union No . 876, Retail Clerks
International Association , AFL-CIO, Petitioner and Amalga-
mated Clothing Workers of America , Retail and Department
Store Employees, AFL-CIO, Petitioner. Cases Nos. 7-RM-475,
7-RC-6129, 7-RC-6133, and 7-RO-6134. July 28, 1964
DECISION AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held in De-
troit, Michigan, before Hearing Office Ruth Greenberg. The Hear-
ing Officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. Retail Store Employees, Local Union No. 876, Retail Clerks
International Association, AFL-CIO (Retail Clerks), seeks a unit of
Mary Carter Paint Co., Victor Paint Co. Division (Employer) em-
ployees at the 14 Detroit and Pontiac, Michigan, stores. The unit
sought would include the warehouse manager, store managers, assist-
ant store managers, and sales employees and would exclude the wall-
paper sales manager, the divisional sales manager, and the area sales
manager, Sidney Fields. The Amalgamated Clothing Workers of
America, Retail and Department Store Employees, AFL-CIO
(Amalgamated), seeks two multistore units, one consisting of the
above specified employees at the Employer's Detroit and Pontiac
148 NLRB No. 6.