Spud's Laundry

National Labor Relations Board - Board Decisions

Aug 21, 1951

95 N.L.R.B. 1231 (N.L.R.B. 1951)

SPUD'S LAUNDRY 1231
in and is engaging in unfair labor practices, within the meaning of Section
8 (a4. (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume
P. L. MURPHEY, DOING BUSINESS AS SPUD'S LAUNDRY and INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, LOCAL 946, AFL. Case No.
37-CA-09. August 21,1951
Decision and Order
On April 18, 1951, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) of the Act and had
engaged in certain unfair labor practices in violation of Section 8
(a) (5) of the Act, and recommending that it cease and desist from
specified conduct and take affirmative action as set forth in the copy
of the Intermediate Report attached hereto.' The Trial Examiner
also found that the Respondent had not engaged in certain unfair
labor practices in violation of Section 8 (a) (3) of the Act and conse-
quently recommended dismissal of those allegations of the complaint
alleging the discriminatory discharge of Thomas Baatz and Lillian
Higa. Thereafter the General Counsel filed exceptions to the findings
in the Intermediate Report with respect to Baatz and Higa, and a
supporting brief. The International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local 946, AFL,
filed exceptions and a supporting brief to the findings in the Inter-
mediate Report with respect to Baatz.
The Board 2 has reviewed the rulings of the Trial Examiner made
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 briefs and exceptions, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
' No exceptions were filed to these findings and recommendations with respect to the
8 (a) (1) and (5) violations. Accordingly we adopt them, without passing upon the issues
involved.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a threcanember panel
[Members-Houston, Reynolds, and Murdock].
95 NLRB No. 166.
1232 DECISIONS OF NATIONAL :LABOR RELATIONS BOARD
Orden
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, P. L. Murphey,
doing business as Spud's Laundry, Honolulu, T. H., his agents, suc-
cessors and assigns, shall :
1. Cease and desist from interrogating, threatening, or in any other
manner interfering with, restraining, or coercing his employees in the
exercise of the right to self-organization, to form labor organizations,
to join or assist International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, Local 946, AFL, or any other
labor organization, to bargain collectively through representatives of
their own. choosing and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
right may be affected by a valid agreement requiring membership in a
labor organization.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Designate a negotiator who will be available at all reasonable
times to act in behalf of the Respondent in dealing in matters of col-
lective bargaining with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local 946, AFL,
and if agreement is reached to enter into a written contract with that
organization;,.,
(b) Post .at his plant in Honolulu, T. H., copies of the notice at-
tached to the Intermediate Report and marked "Appendix A." 8
Copies of such notice, to be furnished by the officer in charge for
Subregion Thirty-seven, after being duly signed by Respondent, shall
be posted immediately upon receipt thereof and maintained by him
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding: all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondent to insure that
such notices are not altered, defaced, or covered by other material.
(c) Notify the officer in charge for Subregion Thirty-seven in
-writing, within ten (10) days from the receipt of this Order what
steps he has taken to comply therewith.
8 This notice , however, shall be and hereby is amended by striking from the first para-
graph thereof the words , "The Recommendations of a Trial Examiner," and substituting in
lieu thereof the words , "A Decision and Order." In the event this Order is enforced by
decree of a United States Court of Appeals , there shall be inserted before the words, "A
Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing."
SPUD'S LAUNDRY' 1233
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminatorily. discharged Thomas Baatz and Lil-
lian Higa in violation of Section 8 (a) (3) of, the Act, be, and it hereby
is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and amended charges, the last of which was filed December
12, 1950, by International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 946, AFL, herein called the Union, the Gen-
eral Counsel of the National Labor Relations Board,' by the Regional Director
for the Twenty-first Region, issued a complaint, dated December 26, 1950,
alleging that P. L. Murphey, doing business as Spud's Laundry, Honolulu,
T. H., herein called the Respondent, had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1), (3).
and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 61
Stat. 136, herein called the Act. Copies of the charges, the complaint, and a
notice of hearing were duly served upon the Respondent and the Union.
With respect to unfair labor practices, the complaint alleged, in substance,
that from on or about June 1, 1950, to the date of its issuance, Respondent
interfered with, restrained, and coerced its employees in the exercise of rights'
guaranteed in Section 7 of the Act by questioning employees concerning union
membership and activities, by warning and threatening employees in connection
with union membership or activity, by threatening to close the plant rather
than to deal with the Union, by discharging Thomas Paul Baatz on or about
September 26, 1950, and Lillian Higa 2 on or about November 28,. 1950, both,
allegedly, for a discriminatory purpose,' and finally, by unlawfully refusing
to bargain collectively in good faith with the Union, the majority representative
of Respondent's employees in an appropriate unit.
Respondent' s answer , dated January 19, 1951; denies the commission of unfair
labor practices, asserts that Baatz was not discharged but that he resigned
on or about the date alleged, denies the allegation concerning a refusal to
bargain, and asserts , affirmatively, that Respondent has been and is ready and
willing to bargain with the Union. At the hearing Respondent' s answer was
amended to deny any discriminatory motivation with respect to the " discharge
of Higa.
Pursuant to notice a hearing was held ,at Honolulu, T. H., from January 29
through February 5, 1951, and on February 27, in San Francisco, California;. be-
fore the undersigned duly designated Trial Examiner. The General Counsel
and Respondent were represented by counsel,- participated in the hearing, and
were afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues. None of the parties
availed itself of opportunity to argue on the record, but briefs have been re-
ceived from the General Counsel and from counsel for the Respondent.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
1 The General Counsel and the attorney representing him at the hearing are referred
to herein as the General Counsel; the National Labor Relations. Board, as the Board.
2 The-allegation as to the discharge of Higa was added to the complaint by amendment
during the hearing.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF-FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is engaged at Honolulu, T. H., in the operation of a laundry and
dry cleaning plant. During 1950 Respondent's gross receipts from his business
exceeded $200,000.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 946, affiliated with the American Federation of Labor,
is a labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
Pursuant to a consent agreement, agents of the Board conducted an election
among employees of Respondent on June 14, 1950; in which the Union secured
a majority of the votes cast. Thereafter, on June 21, the Regional Director
issued a certification designating the Union as the exclusive representative of,
Respondent's employees for purposes of bargaining. Respondent's answer admits
the status of the.Union to be that of statutory representative and agrees that
the unit in which the election was conducted (all employees, excluding clerical
employees, guards, professional employees, and supervisors as described in
Section 2 (11) of the Act), is appropriate. I find, therefore, that the stated
unit is now and at all times material ha's been a unit appropriate for purposes
of bargaining within the meaning of Section 9 (b) of the Act, and that since
June 14, lcc50, the Union has been and now is the exclusive representative of
Respondent's employees in the • appropriate unit for purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
Within a few days after certification, Basil Mayo, a representative of the
Union, called upon Earl Saxon, Respondent's manager, and requested a confer-
ence for purposes of negotiation. Saxon explained that the absence from the
Territory of P. L. Murphey, the owner of the business, made it impossible for
him, Saxon, to enter into any. binding agreement with the Union, and suggested
that any further meetings be held in abeyance pending the return of Murphey.
On July 12 Mayo wrote Saxon complaining of Respondent's failure to that point;
to bargain, and asserting that Saxon had threatened to close the plant rather
than to bargain. Saxon replied that he was willing to go as far as he possibly
could and that if Murphey would authorize him to sign a contract he would do so
After denying that he made any threat concerning closing the plant, Saxon con-
tinued that he had written Murphey asking authority to negotiate and to com-
plete any contract or agreement with the Union, and that he expected to hear
from him in a few days. Saxon further suggested that in the meantime some
progress-might be made toward coming to an agreement. Although the record
is somewhat indefinite in this respect, there is evidence that Mayo was in fre-
quent communication with Saxon during the months of July and August; but
that on no occasion did the parties have any negotiations with respect to a col-
lective agreement. On' July 27, Saxon again wrote Mayo, saying that Murphey
would return to Honolulu sometime after August 12 and requesting that negotia-
tions be postponed until Murphey's return. Mayo replied that, although the
Union was desirous of beginning negotiations as soon as possible, it would wait
for a week beyond August 12 for the return of Murphey.
SPUD'S LAUNDRY 1235
Murphey arrived in Honolulu about September 11, and met with Arthur Rut-
ledge, the Union's business agent, on September 23. On this occasion, Rutledge
asked Murphey to sign an agreement which would require that all employees in
the appropriate unit become members of the Union, in exchange for which the
Union would not make any wage demands upon Murphey before January 1, 1951.
Upon advice of counsel, Murphey refused to sign the agreement. During the
meeting, Rutledge also asked that an employee, Nancy Shimabukuro, be given
a month's leave of absence in order that she might do some work for the Union.
Saxon, who was present at the meeting, answered, according to the credited and
undenied testimony of Rutledge, that he would agree if Rutledge would in
turn agree that another employee, meaning Thomas Baatz, be discharged.
Rutledge refused to consent. On September 29, Rutledge and Murphey again
met. After telling Rutledge that he would sign the union-shop agreement pro-
vided that an authorizing election under the terms of the Act be held, Murphey
asked that negotiations be again delayed for 2 weeks as he was contemplating
selling his business. Rutledge consented to the delay. Sometime in October the
Union filed a petition with the Board's subregional office in Honolulu, seeking an
election to authorize the incorporation of a union-shop clause in an agreement.
Murphey signed the consent election agreement on October 26 and the election was
held November 2. The Union failed of authorization. On November 3 the Union
requested and Saxon supplied information concerning job classifications and
wage rates then in effect in the Respondent's plant. On November 17 S Rutledge
called at Murphey's office with a request that Shimabukuro be given a leave of
absence for the month of December on account of union business. Ile spoke
bi iefly to Murphey on this occasion and learned that Murphey was about
to leave the Territory. Since that date no request has been made by the Union
that Respondent bargain.
The theory of the complaint is that Respondent Murphey refused to bargain
by failing to give Saxon authority to conclude an agreement with the Union.
Rutledge testified that on all occasions when he approached Saxon with respect
to bargaining he got the same answer-that Saxon could make no agreement
with the Union in the absence of Murphey. Murphey testified that since the
certification of the Union in June he has been in the Territory for a period of
less than 2 months.
Respondent argues that Saxon was sufficiently empowered to enter negotia-
tions and that the reason for the failure of the Union to secure a contract is
explained by the fact that the Union has never seriously sought to negotiate
one ; that the lack of negotiations up to the return of Murphey in September
was by agreement with the Union ; that during the period when Murphey was
in the Territory the Union made no effort to bargain except as set forth above
in connection with the union-shop agreement ; and, finally, that on November
17 Saxon was told in the presence of Rutledge that he had authority to enter
into any sort of agreement with the Union that he thought advisable.
Murphey testified that he did reserve the right to give or withhold final ap-
proval to any agreement that Saxon might negotiate, but that, to use Murphey's
expression, Saxon had "authority to talk with them." I am in considerable
doubt that Saxon possessed sufficient authority to represent Murphey in bar-
,aining negotiations so that the requirements of the Act as interpreted by the
Rutledge and Saxon placed the happenings about to be related as occurring on November
27 However, Murphey testified convincingly that he left Honolulu on NoN ember 17, and
it found that the conversations between Rutledge, Saxon, and Murphey occurred on the
ea ler date.
961974-52-vol 95-79
1236 DECISIONS O1 NATIONAL LABOR RELATIONS BOARD
Board be satisfied. A union of course is not required to expend its energy and
to consume its time in dealing with persons who are without power to accept
or reject its proposals or to suggest terms upon which an employer would be ;
willing to enter into an agreement. On the contrary, it is entitled upon ap•
propriate request to meet with and deal with those on behalf of an employer
who can speak responsibly and whose commitments will be honored. Clearly,
Saxon did not fall within the latter category until the return of Murphey on,
September 11. In his letter of July 22, he had written Murphey asking for
authority to proceed in negotiations and it is of course highly unlikely that he.
would have sought that which he already possessed. From the date of Mur.
phey's return, however, until the 17th of November, there was a period of 2
months when the owner of the business was near at hand and, for all that the
record reveals, available for conference with representatives of the Union at
any reasonable time. There is nothing in the record concerning any occasion
falling within those dates when the Union sought an opportunity to bargain
and was refused. The only instances bearing upon bargaining are those cone
cerning the union-shop agreement and the request for wage information and
it is not suggested that Respondent's conduct in that connection in any way
premises a finding of refusal to bargain. There is no convincing evidence that
after November 17, any request was made by the Union that Respondent enter
into negotiations with it. Thus, if Saxon was in fact after that date still without
real authority to negotiate, the question was never put to test.
I find ' that by failing to empower a representative to deal with the Union
during the period from the date of the Union's first demand for bargaining
(June 22) to September 11 when Murphey returned, Respondent failed and re-
fused to bargain with the Union for that period and thereby violated Section
8 (a) (5) of the Act. I do not find any violation of that section after September
11, 1950.
B. Interference, restraint, and coercion
During the approximately 2 months that Murphey was in Honolulu in the fall
of 1950, he spoke to his assembled employees on two occasions. The first of
these talks was given in late September. One witness, Nancy Shimabukuro,
placed it on September 22, but Baatz, who surely would have adverted to it in
his testimony had it happened before his employment was terminated on Sep-
tember 26, was not questioned concerning it. Other witnesses testified in some
confusion with respect to meetings. As might be expected some of these wit-
nesses confused one meeting with another, and others testified to events which
lead me to the conclusion that the happenings at both meetings have telescoped
in their minds. In any event, all the evidence concerning the first meeting con-
vinces me that it took place in late September, but after the discharge of Baatz,
At the September meeting which was attended by a representative of the Union,
Murphey spoke of the unprofitable situation of the business, suggested the possi<
bility of incorporating and selling shares of stock to his employees, and announced
that if the Union was going to tell him what to do he would close the plant'
On October 26, the Union having in the meantime filed a petition for a UA elec.
tion, Murphey again assembled the employees and told them of the proposed
election. Murphey again said that he would leave the question of agreement to the
* Rutledge testified, and Saxon denied, that on January 29, 1951 , he remarked to Sam
that if Murphey had permitted Saxon to handle matters an agreement would have bear{
reached and that Saxon replied, "Nobody can tell him what to do." If such an exchangs
occurred , it does not in my opinion establish either a request to bargain or a refusal to do $
5 Murphey's denial that he so spoke is not credited.
SPUD'.S LAUNDRY 1237
conduct of such an election to the employees and asked -for a ,show of hands of
those who favored such a test. Oue ` of the employees suggested that it was
unfair for Murphey to require the employees publiclyAto admit.,their preference.
Whereupon Murphey said that a secret ballot would heconducted.and that he
would abide by its result. So -ballot slips were distributed and the employees
marked them either in favor of . the conduct . of such-an election or in opposition,
and when the result was announced as, favoring the election Murphey said that he
would sign the consent agreement , and did so. On November 1, all of Respond-
ent's supervisors, including the office manager, and in addition two clerical
employees , were called to Murphe y's apartment above the laundry . Murphey
told them that the election would be held the following day and according to
the credited though disputed testimony . of Richard Takaki, one of those present„
told the supervisors that he would not , stand fora union to run his place; that:
if the Union won the election ,he would sell out ; and that the supervisors should
tell the employees of the risk they would be running by voting in favor of the-
union shop . Murphey denied flatly , that he made any such statement or thati
he said anything in connection with the impending election which reasonably
could be construed as threatening to sell or close the plant in the event of d
union victory . Other supervisors , including Edith Kam, Jiroku Imada, Laura
Kanda, Mary Paka, and a clerk, Sadaye Nishimoto , supported Murphey's denial
and for the most part 'testified that Murphey confined himself to saying that
the employees could vote as they chose that it made no difference to him what
the result , and spent the rest of the meeting time in exhorting the supervisors
to eliminate delays in the processing of cleaning and laundry in order to stop,
the decline in profits.
I am convinced that Takaki testified truthfully concerning what Murphey
said, in part by the fact that, although the business had suffered a slight loss
during the month of September , October 's balance sheet was well on the black
side of the ledger ; that a period of declining, profits beginning with June and
extending through September. was very sharply reversed. following the latter
month . There is also an 'aura :of.inherent improbability in Murphey calling
all his supervisors in meeting on the day before this election for the rather
incomprehensible purpose of telling them that he didn 't care how the employees
voted, that they were free to - do what they liked, and that he was unconcerned,
about the result. Indifference and lack of concern in. these matters would more
naturally result, it would seem to me, in silence on the part of Murphey.
Employee Sarah Apo testified credibly that Supervisor Edith Kam a day or
two before. the election advised her not to vote for the union shop as "They might
close up the place." Employees Mary Ogata and Itoyo Saito testified credibly
that .on-the day of the UA election Supervisor Mary Paka said that Murphey had-
threatened to close the plant if the Union won. Both Kam and Paka denied
speaking as Apo, Ogata, and Saito testified . Their denials are not credited.
Driver Joe Rogers testified credibly and without contradiction that on October,
11 he posted a notice of union meeting near Respondent 's-time clock. Saxon saw
the notice and told Rogers that if he discovered who posted it that person would
be.fired . There is no evidence that the posting of , notices in the plant had ever
been restricted and I find that Saxon's ,anger was engendered by the fact that
the notice was a union notice.
I find that by questioning the employees on October 26 as to their preference
concerning : an election for a union shop, by threatening in September to close or-,
sell the plant rather than suffer any interference by-the Union, by threatening
discharge to those who. posted union, notices, by telling the supervisors in
the presence of clerk employees on November 1 that he might sell the plant in
1238 DECISIONS OF NATIONAL. LABOR. RELATIONS BOARD
the event the Union won the election , and by the threats uttered by Kam and
Paka to employees to the same effect, Respondent interfered with, restrained, and
coerced his employees in the exercise of rights guaranteed under Section 7 of the
Act and thereby violated Section 8 ( a) (1) of the Act.
C. The discharges
Thomas Paul Baatz was hired by Respondent in 1947 as a driver-salesman.
Sometime in the summer of 1948 Baatz asked to be transferred to work inside
the plant and the manager , Harry Bertain, granted his request . There is evidence
that Baatz ' request for transfer was motivated in part at least by the fact that
he was indebted to Respondent due to his failure to collect from customers on his
route and because of his failing eyesight . Baatz, a man of 70 , was placed by
Bertain at a point in the dry cleaning department where he received clothing
from the dry cleaners , sorted it , and delivered it to the finishing department. He
continued in this work until September 26, 1950. In addition to the routine de-
scribed, Baatz , having long experience in the dry cleaning business , advised
other employees in connection with problems arising from day to day, some-
times took care of the power installation in the plant , and was regarded by
Manager Bertain as a general utility man . Saxon became manager of the plant
on February 1, 1950, and almost immediately told Baatz that he would look to
him to assume responsibility for the smooth operation of the movement of-
garments from the dry cleaners to the finishers. .
Baatz assumed and apparently was permitted certain privileges about the plant
which were not enjoyed by the rest of the employees . For example , a pot of
coffee was generally kept warm in one of the rooms for the refreshment of super-
visors, drivers , and Baatz . Without protest from Saxon , Baatz arrived at work
a little late and left a little early as a matter of course . He also , according to
the record , was a somewhat garrulous fellow who took pleasure in talking to
various employees and on many occasions , according to Saxon , in this fashion
interfered to some extent with routine operations . In April or May of 1950,
Baatz became interested in the Union and with the assistance of Nancy.
Shimabukuro succeeded in organizing the employees to such an extent that the
election of June 14 was won . Baatz' leadership in this respect was well known
to Saxon. Saxon testified that he had known Baatz for several years and had
at one time worked in the same laundry where Baatz was employed prior to their
later association in the plant of Respondent . According to Saxon , he resented
Baatz ' loquaciousness and felt that Baatz' production was not commensurate
with his pay. In consequence , according to Saxon , he suggested to Murphey in
the late spring or early summer of 1950 that as the laundry was showing very lit-
tle profit , it would be well to get rid of all unnecessary employees ; that Murphey
agreed that Saxon might do so, but suggested that Baatz be permitted to stay
on for a while. This , according to Saxon, constituted the only reason that he
did not discharge Baatz as early as June. During the summer and while Murphey
was absent from the Territory, Saxon testified that he found many occasions
on which to criticize Baatz ; that the latter frequently was tardy in delivering
clothes from the cleaning department to the finishers ; that he was increasingly
lax in failing to separate garments which required further cleaning before
.finishing ; and that his habits of visiting with other employees to the detriment
of the work became more pronounced . According to. Saxon he reprimanded
Baatz on many occasions in connection with these deficiencies and Baatz always
answered that Saxon was annoyed because of the Union 's victory in the election.
I have already related that about September 23 Saxon requested permission from
the Union to discharge Baatz. When, on that occasion, Rutledge refused to
SPUD°S' LAUNDRY 1239
agree, Murphey said, "Never mind, about that. I have talked to my lawyers and
I know what to do about firing-him ." e Three days later on September 26,
in connection with a discussions between Murphey and Saxon concerning Baatz,
the former two went to the department where Baatz; was at work. There
Murphey asked who was in 'charge of the flow of the =work and Baatz replied
that he felt that he was too old 'to `undertake such. responsibility any longer
and suggested that another be designated in his-place. Murphey and Saxon then
left, but Baatz was almost immediately called to Saxon's office. There Murphey
asked him again to handle the;job assignment. Baatz explained that he felt
he might lose his status in the iUnion if he did- so. The discussion became
heated and, according to Baatz' version, when -he refused either to accept the
responsibility or to resign, Murphey gave him his pay to date and 2 weeks
additional in lieu of notice. Baatz then left. Murphey and Saxon testified that
after refusing to do the- job given him, Baatz put on his street clothes and
appeared to be leaving. At that point he was given his wages and the additional
pay. Their testimony in sum is that Baatz elected to resign.
The General Counsel contends that Baatz was a satisfactory. employee until
he became a leader in the union movement ; that thereafter Respondent , particu-
larly Saxon, became increasingly critical of his work and work habits; and that
finally a pretext was contrived so as to give color of legitimacy to his discharge.
Respondent, denying that any unlawful consideration motivated it in discharging
Baatz, asserts that it was necessary to have someone in charge : of the work
between the dry cleaning and finishing departments ; that Baatz by virtue of
his long experience was best suited to.handle the.job; and that due to his age
and failing eyesight his principal value to the Respondent as an employee could
be exploited only by entrusting such responsibility to him. Hence, Respondent
asserts, when Baatz refused to do, as.he was directed his value as an employee
vanished and his discharge followed.
Superficially the question of Baatz' termination is easily answered. He was
directed to take an assignment, he refused to do so, and was then either forced
to resign or be discharged. But theye is more, to be considered. Both Murphey
and Saxon, the record amply. demonstrates, were strongly opposed to the, or-
ganization of the employees., Murphey had failed : in his statutory duty to-
provide a negotiator for the Union. to deal with, was. soon to threaten his em-
ployees with loss of employment if the Union...C.0tinued to flourish among them,
and Saxon was soon to warn that any,employee posting a union notice in the
plant would risk discharge. Possessed of such -an antiunion animus it is
highly probable that Respondent, would focus its dislike of the Union on the
one individual principally responsible for its acceptance among the employees-
Baatz. I have no doubt that Rutledge correctly assumed on September 23
that Saxon and Murphey then wanted -to be: rid of. Baatz because to them he
was the Union's representative in the plant. Nor have I any doubt that Re-
spondent was eager and alert in seeking an occasion which would provide an
opportunity to let Baatz go. However, Baatz was not cloaked with any im-
munity from discharge just because he was an active and militant exponent of
,self-organization. In his relation with his employer he was no less subject
to. direction and discipline than any other employee. So we came to the happen-
ings of September 26. I find nothing in the instruction given Baatz on that
:day by Murphey which reasonably leads to, a conclusion that Baatz was thereby
.being placed in a situation which must result in his termination. Saxon had
given the same instruction long before the.Union was a factor. The duties
a Uncontradicted and credited testimony of Rutledge.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required of Baatz apparently would not have constituted him as a supervisor
within the meaning of the Act and were not seemingly contrived as a part of
a devious plan to render him ineligible longer to remain a union member. Nor
was the work required of him, so far as the evidence shows, any more onerous
or undesirable than that which he had been doing. I conclude that Baatz
!believed, correctly, that Murphey and Saxon were eager for him to leave, that
if he accepted 'Murphey's direction he would be in some fashion stultified as a
:union member, and that it was all part of a dark, mysterious plan to deprive
him of his rights under the Act. He was mistaken in all but the first belief. I
find that there was no unlawful discrimination in connection with the instruc-
tion given Baatz by Murphey on September 26 and that Baatz was discharged or
forced to resign on that date because he refused to follow the instruction. The
discharge did not constitute a violation of Section 8 (a) (3) of the Act.
Lillian Higa was employed.by Respondent in. 1949 and discharged November
28, 1950. Higa was hired as a checker in the laundry, assembling finished
laundry for package and delivery. She was taken off the checking job on
two occasions for 2 months for another assignment, but at the time of her dis-
charge was working as a checker. On Friday, ^1Tovember 24, the day following
the Thanksgiving holiday, Higa telephoned her forelady, Edith Kam, that she
was ill and would not be able to come in to work. Kam told her to take care
of herself and to come in when she could. Due to the holiday the laundry
operated on Saturday of that week, but Higa did not report, nor did she come
in on Monday. On Monday afternoon Saxon telephoned Higa and asked her
what the trouble was. Higa said that she had been ill, but that she would be in
the next morning. When she arrived at the plant on Tuesday morning, Kam
told her that she was discharged. Higa then went to Saxon and asked him if
it were so. Saxon agreed that it was and told her that the reason for her dis-
charge was the number of mistakes she had been making in her work and her
apparent lack of sense of responsibility in that she so frequently took time
off, particularly after holidays. Kam testified that Higa and another checker
who was discharged on the same day were both exceedingly prone to make
errors in assembling laundry, with the result that some customers were shorted
and others given articles which were not their property. Still, according to
Kam, frequent criticisms and reprimands had no appreciable effect on the quality
of Higa's work, and that she, Kam and Saxon had for several months contem-
plated letting Higa go. Kam testified that she was inconvenienced by Higa's
failure to come to work and that on Monday she decided to discharge her. Kam
admitted that she knew Higa to be a member of the Union, but denied that this
knowledge in any way influenced her decision. Saxon testified that he had no
knowledge concerning Higa's union membership, but that he had been aware for
some time of Kam's dissatisfaction with Higa due to the latter' s errors in as-
sembling and due to Higa's practice of taking additional time off following the
occurrence of holidays. Saxon corroborated Kam's testimony that Higa's dis-
charge had been contemplated for some time and that Higa's extended absence
following Thanksgiving brought him -to the point of agreeing to it.
Higa admitted that Kam had expressed dissatisfaction with her work on
several occasions and conceded that she had made a number of mistakes in
assembling laundry.
I do not believe that any view of the evidence supports the allegation of the
complaint that Higa's termination was discriminatorily motivated. There is
not the slightest evidence that she was in any way active on the part of the
Union so as to suggest that her discharge was related to such activity. Mem-
bership in a labor organization does not carry with it any immunity from disci-
SPUD'S LAUNDRY- 1241
pline. There is evidence that Higa's work was to some 'extent at least unsatis-
factory. Evidence that Respondent' s purpose, in discharging her was to dis-
courage membership in the Union 4s;:no more than 'a:scintilla . I find no violation
of the Act in the discharge of Higa.
IV. THE EFFECT OF;THE.UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent,` asset forth InSec'tion III, above, occurring
in connection with his operations set forth in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce within the
Territory of Hawaii and between the Territory of Hawaii and several States,
and such of them as have been found to. constitute unfair labor practices tend
to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
:V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it
will be recommended that he cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has failed to provide a negotiator for
purposes of bargaining with the Union and to that extent has not complied with
the command of the Act 'in respect 'to bargaining, it will be recommended that
the Respondent be required to 'designate someone who' will be sufficiently
empowered to meet with andtreat'with the Union upon request at all reasonable
times and if agreement is reached' to enter into a contract with the Union.
Having found that Respondent has threatened to close his plant if his em-
ployees continued to give allegiance to` the Union, has interrogated them con-
cerning their disposition toward the Union, that certain of his supervisors have
predicted the closing of the plant in the event the Union was empowered by
the employees to enter into a union' shop contract, and'-that his manager has
said that 'any employee posting a union notice in the plant would do,so at the
risk of his job, it will be recommended that Respondent be required to cease and
desist from such conduct and tb'post appropriate notices.
. Having found that the Respondent did. not violate the Act by discharging
Thomas Baatz and Lillian Higa, it will be recommended that the complaint in
that. connection be dismissed.
Upon the basis of the foregoing findings. of fact and upon the entire record
in the case,' I make the following :
CONCLUSIONS OF LAW
1. P. L.. Murphey, doing business as Spud's Laundry, is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 946, AFL, at all times material herein since June
22, 1950, has been and now is the duly designated collective bargaining repre-
sentative of Respondent's employees within the meaning of Section 9 (a) of the
Act.
3. All Respondent's employees, excluding clerical employees, guards, profes-
sional employees, and supervisors, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
4. By failing to appoint a negotiator empowered to act in his behalf in deal-
' ing with the Union for the period from June 22 to September 11, 1950, Respond-
ent has engaged in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By such conduct and by other interference with, restraint, and coercion
of his employees in the exercise of rights guaranteed in Section 7' of the Act,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. Respondent has not violated Section 8 (a) (3) of the Act by discharging
Lillian Higa and Thomas Baatz. f
[Recommended Order from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National
Labor Relations Board and in order to effectuate the policies of the National
Labor Relations Act, as amended, I hereby notify my employees that :
I WILL NOT by means of interrogation or threats or in any other manner
interfere with, restrain, or coerce my employees in the exercise of their
right to self-organization, to join or assist INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL
946, AFL, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to- engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in. a
labor organization.
I WILL designate a negotiator who will be available at all reasonable times
to act in my behalf in respect to matters of collective bargaining in dealing
with the above-named union concerning employees in the appropriate unit.
The appropriate unit consists of all employees excluding clerical employees,
guards, professional employees, and supervisors.
All my employees are free to become or remain, or refrain from becoming
or remaining, members of the above-named union or any other labor organiza-
tion, except to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the Act.
SPUD 'S LAUNDRY,
By P. L. Murphy, Owner
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
HIBRITEN CHAIR CO., INC. and INTERNATIONAL WOODWORKERS OF
AMERICA, CIO. Case No. 34-CA-161. August 2 , 1951
Decision and Order
On May 3, 1951, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
95 NLRB No. 168.