American Leather & Suede Cleaners, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1971

189 N.L.R.B. 652 (N.L.R.B. 1971)

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Leather & Suede Cleaners, Inc. and Chicago
Fur Workers Union, Local 45F, Chicago Joint
Board, Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO
American Leather & Suede Cleaners, Inc. and Chicago
Fur Workers Union , Local 45F , Chicago Joint
Board, Amalgamated Meat Cutters & Butcher
Workmen of North America , AFL-CIO, Petitioner.
Cases 13-CA-9346 and 13-RC-1134
April 8, 1971
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 30, 1970, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceedings, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial
Examiner's Decision. He also found that the Respon-
dent had not engaged in other unfair labor practices
alleged in the complaint, and recommended that such
allegations be dismissed. In addition, the Trial
Examiner found that the Respondent's unlawful
conduct had interfered with the Board election held
on September 8, 1969, and recommended that the
election be set aside. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board 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 Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, American Leather & Suede Clean-
ers, Inc., Chicago, Illinois , its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.'
IT IS FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found
are hereby dismissed.
IT IS FURTHER ORDERED that the election held on
September 8, 1969, be, and it hereby is, set aside.
[Direction of Second Election2 omitted from
publication.]
1 In footnote 12 of the Trial Examiner's Decision, substitute "20" for
"10., days
2 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear inc., 156 NLRB 1236; N.LR.B v. Wyman-Gordon Co, 394 U S.
759. Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters , must be filed
by the Employer with the Regional Director for Region 13 within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director. The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Trial Examiner : Chicago Fur
Workers Union, Local 45F, Chicago Joint Board, Amalga-
mated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, referred to herein as the Union or the
Charging Party, filed a petition in Case 13-RC-11934 with
the Regional Director for Region 13 (Chicago , Illinois) on
August 6 , 1969.1 A Stipulation for Certification Upon
Consent Election in a unit of production employees of
American Leather & Suede Cleaners, Inc., referred to
herein as Respondent, was approved on September 3. The
election was held on September 8. Two votes were cast for
the Union , four against . There was one challenged ballot.
On September 11 the Union filed a charge against
Respondent in Case 13-CA-9346. On September 15 the
Union filed Objections to Conduct Affecting the Results of
the Election in Case 13-RC-11934. On September 19 the
Union filed a first amended charge in Case 13-CA-9346.
On November 26 the General Counsel of the National
Labor Relations Board , by the Regional Director , issued a
complaint in Case 13-CA-9346 in which he alleged that
Respondent had violated Section 8 (a)(1), (3),(4), and (5) of
the Act . The Section 8(a)(3) violation was predicated on the
alleged discharge of Alice McCray on or about September
9. The Section 8(a)(4) violation was predicated on the
alleged failure to reinstate Alice McCray thereafter. Also
on November 26 the Regional Director issued his Report
on Objections in Case 13-RC-11934 . He stated, "The
allegations in the objections are substantially similar to
those set forth in the complaint and Notice of Hearing in
Case No. 13-CA-9346 . . . [S]ubstantial and material
issues have been raised by the objections which can, of
i Dates are 1969 , unless otherwise specified.
189 NLRB No. 95
AMERICAN LEATHER & SUEDE CLEANERS, INC.
necessity best be resolved on the basis of record testimony
and/or evidence developed at a hearing." He ordered Case
13-RC-11934 consolidated with Case 13-CA-9346 for
hearing . He ordered Case 13-RC-11934 transferred to the
Board following issuance of a Trial Examiner's Decision.
The Union filed a second amended charge on December
11. On January 8, the Regional Director issued an
amendment to complaint, the effect of which was to link
Charlene Freeney with Alice McCray in the Section 8(aX3)
and (4) allegations of the complaint. At appropriate times
Respondent filed answers to the complaint and the
amendment to the complaint in which it admitted some
allegations , denied others, and denied the commission of
any unfair labor practices.
Pursuant to due notice, hearing was held before me in
Chicago, Illinois , on January 14, 15, and 16, 1970. At the
conclusion of the hearing I granted the General Counsel's
motion to amend the complaint to allege, in the alternative,
that Respondent had discharged or failed to rehire
Charlene Freeney on or about September 9. The issues
litigated before me were whether:
1. Alice McCray and Charlene Freeney refused to work
or were discharged on September 9.
2. Certain conduct of Charles and Pearl Grossman
prior to the election constituted independent violations of
Section 8(a)(1) and/or meritorious objections to the
election.
3. A refusal to bargain should be found and/or an order
to bargain entered under the Gissel doctrine?
All parties appeared at the hearing and were given full
opportunity to participate, to adduce relevant evidence, to
examine and cross-examine witnesses , to argue orally, and
to file briefs. Upon the entire record, including briefs filed
by Respondent and the General Counsel,3 and from my
observations of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation engaged in Chicago
in the drycleaning business . During the year just prior to
issuance of the complaint, it received more than $ 50,000 for
services it performed for enterprises which are themselves
either located outside the State of Illinois or , if located
within the State of Illinois , annually cause goods and
services valued in excess of $ 50 ,000 to pass from Illinois into
other States . I find that Respondent is engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Charging Party is a labor organization
within the meaning of Section 2(5) of the Act.
2 N L R B v Gissel Packing Co, Inc, 395 U.S. 575 (1969).
3 The General Counsel's brief states, inaccurately, "The Complaint, as
amended, alleged 8(a)(l), (3) and (5) violations" I take this to be an
abandonment by the General Counsel of the allegation that Respondent
violated Section 8(aX4) by failing to reinstate Charlene Freeney on
III. THE UNFAIR LABOR PRACTICES
653
A. Credibility
The facts which follow are largely undisputed. However,
there are a number of sharp credibility conflicts in the
record on crucial points. First of these is whether the events
prior to the election held on September 8, which are relied
on as objections to the election as well as independent
violations of Section 8(axl), occurred before or after the
petition was filed on August 6 and before or after Charles
Grossman, whose actions and decisions are the actions and
decisions of Respondent in this case, learned his employees
had signed up with the Union. Grossman was very evasive
about timing but only after a discussion, while he was on
the witness stand, between the General Counsel and me
about the state of the record with respect to when he
learned his employees had signed authorization cards. This
exchange apparently alerted him to the fact that timing
could be a vital issue on this point as well as other aspects of
the case. In any event, I have credited the General
Counsel's witnesses in placing after August 6, the Goodyear4
date, both the visit of organizers from Laundry, Dry
Cleaning, and Die House Workers International Union,
Local No. 46, referred to herein as Local 46, to
Respondent's plant and Grossman's offer of a bonus for
good attendance and discredited Respondent's, principally
Grossman.5 In so doing I have relied, of course, on
Grossman's demeanor. More importantly, however, I have
relied on his admission that two Spanish-speaking employ-
ees were in the plant at the time of the bonus offer.
Respondent stipulated that they did not start work until
August 10 and 11, respectively. I also rely, for both timing
and company knowledge, on the following part of
Grossman's testimony on cross-examination:
[J]ust like once [Mrs. Freeney] walked out with all of
them. I looked in the sky all over. Where are they? I
didn't see them. An hour later I looked out in the street,
they walk very slow. This is on my time ; not on their
time. It was 10:00 o'clock. They suppose to take 10-
minute rest.
I see them. They started to-when I saw them, they
walk but they saw me, too, but they didn't move.
Q. When was this? Was that the day the cards were
signed?
A. I don't know, either signed or delivered.
Q. Was that the meeting they had a meeting with
Mr. Herbin?
A. I think that time was it, yes.
Another important dispute is over what was said about
the Union when Grossman made the bonus offer. Mrs.
McCray testified that Grossman made the point that the
employees did not need the Union. Grossman said that
Mrs. McCray asked whether his offer had anything to do
with the Union and he denied it. In finding that Grossman
couched his offer in terms of the employees putting their
money into his bonus plan rather than into union dues, I
September 16 and Alice McCray on November 19. In any event , there is
nothing in the record which would support such an allegation.
4 Goodyear Tire and Rubber Company, 138 NLRB 453.
5 The testimony of Hazel Thompson, called by Respondent, was so
vague as to be worthless I have ignored it.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have relied on the undenied fact that Grossman persuaded
the employees a year before to drop the Union in a similar
manner. I have also relied on the testimony of Elvira
Fleites, an employee called as a witness by the General
Counsel. While Mrs. Fleites' statement, on direct, that
Grossman said "if we didn't sign the union, he'll give us a
bonus" was badly shaken on cross-examination, Respon-
dent adopted her affidavit and put it in evidence. It was
given to a Labor Board investigator on October 21. It reads,
in part, "[Grossman ] said that the $5 would be about what
we would pay the Union, only we would be saving it
instead ." I rely on it.
Finally, there is the question whether Grossman or his
wife, Pearl, invited Local 46's organizers into the plant.
There is no direct evidence on the point, and Grossman
made no such admission. However, it is undisputed that the
organizers went through and talked to employees with the
permission of the Grossmans. Grossman testified that he
did not object to their presence, in fact, "I think I shake
hands with them." I have inferred an invitation from the
record as a whole, especially Grossman's answer to a
reiterated question whether he had any objections, "In fact,
I got the booklets." I interpret this somewhat ambiguous
remark as meaning that Grossman arranged for the
organizers to bring with them the copies of Local 46's
contract which they used to show the employees that letting
Local 46 represent them would mean a 20-cent raise.
It does not follow from all this that I have discredited
Grossman generally. I was impressed by his efforts to
explain the situation from the point of view of a small
businessman beset with problems of absenteeism, his
theory of why Alice McCray and Charlene Freeney acted
as they did on September 9, and the candor of some, if not
all, of his answers to damaging questions. I credit his
testimony in such areas as his attitude toward unions, his
urgent need for Mrs. McCray's skilled services as a sprayer
on and after September 9, and his efforts, such as they were,
through Fanny Whitelaw to get her to return.
The testimony of Alice McCray presents a similar
problem. In the first place, she categorically denied
speaking to Grossman on September 8, after the election. I
find that incomprehensible in view of the allegation of the
complaint that "on or about September 8, 1969, the
Respondent, by Charles Grossman, its supervisor and
agent, and/or Pearl Grossman, its president and owner, at
the plant promised employees benefits in order to induce
them not to give their assistance and support to the Union"
and the absence of testimony about any other incidents that
day which might fit such a description. Be that as it may,
my findings that a conversation took place at that time
between Mrs. McCray and Grossman in which he gave her
a raise are based on Grossman 's testimony.
More importantly, I do not credit Mrs. McCray's denial
that she indicated to Fanny Whitelaw from time to time
after September 9 that she was coming back to work and
then failed to appear or her versions of conversations with
Mrs. Whitelaw and Lillian Swolinski on the subject. In
reaching conclusions that such denials and such testimony
cannot be believed, I rely on the whole thrust of Mrs.
McCray's testimony. As is discussed more fully under
Analysis and Conclusions below, it is clear to me that Mrs.
McCray did not return to work after September 9 because
she was waiting for an apology from Grossman. For
example , one revealing answer by her came when I asked
her whether she was denying Fanny Whitelaw's testimony
that Mrs. Whitelaw had told her Grossman wanted her to
come back. Mrs. McCray replied, "I deny she told me he
wanted me to come back to work because each time I
talked to her I told her that I needed to go to work and each
time she said,`You, knowlyou can come back when you get
ready."' The last part of that answer is so close to Mrs.
Whitelaw's testimony (viz., Grossman told her to tell Mrs.
McCray "to come back because he didn't fire her" and she
relayed the message) that it contradicts the denial of the
first part. Once again, I have not discredited Mrs. McCray
generally. The key to this case lies in the fact Mrs. McCray
and Grossman both revealed on the stand the tensions
between them which erupted in their fight on September 9.
In areas other than those I have alluded to, each was a
credible witness. Their testimony is incorporated into the
recital of the facts which follow.
B. Facts
Respondent started operations in July 1967. Pearl
Grossman is its president and owner. Her husband,
Charles, runs the business. He also works in the plant
alongside the employees. On two occasions prior to the
events involved in this case, Local 46 sought to organize
Respondent's production employees6 without success. In
the summer of 1968 the Charging Party suffered a similar
fate. On all three occasions the Grossman permitted
organizers free access to employees in the plant. In the
Charging Party's prior campaign , Charles Grossman wooed
the employees away from the Union by offering them
health insurance if they would drop the Union. They did.
He obtained a group health policy to which those
employees who wanted it subscribed.
In July 1969 the employees became dissatisfied again.
Grossman told them he could offer them the same benefits
as a union but to, go ahead and get themselves one if that
was what they wanted. Consequently, Alice McCray
arranged a meeting with Robert Herbin, manager of the
Chicago Joint Board of which the Charging Party is an
affiliate. The meeting took place at a restaurant near
Respondent's plant at lunchtime on July 31. Present, beside
Herbin and Mrs. McCray, were Charlene Freeney and
Fanny Whitelaw. After a brief discussion about the
situation and the possibility of the Charging Party
representing Respondent's employees, Herbin gave a
supply of authorization cards to Mrs. McCray and Mrs.
Freeney.
That afternoon Mrs. McCray and Mrs. Freeney obtained
the signatures of six employees , namely, Alice McCray,
Charlene Freeney, Fanny Whitelaw, Ruth Greenwood,
Elvira Fleites, and L. C. Akins. In addition, Fanny
Whitelaw signed Eula Spencer's name to a card, as Mrs.
Spencer had authorized her to do before going on vacation.
Mrs. McCray met Herbin at the same restaurant on her
break the next morning and gave him these seven cards.
6 Two truckdrivers are represented by a Teamsters local
AMERICAN LEATHER & SUEDE CLEANERS, INC. 655
Charles Grossman was aware at the time that his employees
were meeting with a union organizer, object organization,
and signing authorization cards. L. C. Akins quit on August 1.
Herbin called Grossman and demanded recognition on
August 5. Grossman refused. Herbin filed the petition in
Case 13-RC-11934 the next day. On August 5 Respon-
dent's total complement of production employees num-
bered 10, namely, Alice McCray, Charlene Freeney, Fanny
Whitelaw, Ruth Greenwood, Elvira Fleites, Eula Spencer,
Marcell Black , Gertrude Grace, Eva Mae Dennis, and
Hazel Thompson. Marcell Black signed an authorization
card on August 11 and returned it to Mrs. McCray. Mrs.
McCray mailed it to Herbin. Gertrude Grace signed an
authorization card on August 14 and returned it to Mrs.
McCray. Mrs. McCray mailed it to Herbm.
Sometime during the week of August 11 the Grossmans
invited Local 46 to organize Respondent's employees. Two
organizers came to the plant. Alice McCray was summoned
to the office. As the organizers began to explain to her the
advantages of belonging to Local 46, Mrs. Grossman said
that they did not have to do a lot of talking, dust let Mrs.
McCray sign. One of the organizers said he wanted to talk
to her first. Mrs. Grossman said, "No, let her sign the
papers. You don't need to talk." The organizer said, "You
can't do it that way." Mrs. McCray did not sign an
authorization card for Local 46. She did, at the organizer's
request, take a number of copies of Local 46's area contract
in booklet format into the plant to give to other employees.
The organizer's purpose was to have her point out to other
employees, as they had pointed out to her, that the contract
called for a 20-cent-an-hour raise on September 15. The
organizers also went into the plant and talked to other
employees. The organizers' pitch was that, if the employees
would join Local 46 rather than the Charging Party, they
would receive a 20-cent-an-hour raise on September 15.
On August 15 7 Mrs. McCray asked Grossman for a raise.
He said he would give her one when she returned from her
vacation. On the same day, Grossman called together Alice
McCray, Elvira Fleites, and Eva Dennis. Respondent had
been having difficulty with unexcused absenteeism. Conse-
quently, Grossman made the following offer to the three
ladies and had them relay it to the rest of the employees for
their consideration: Respondent would put up $10 per
month for each employee who would put up $ 5 per month. If
the employee would call in whenever she found that she
could not come to work and if she would not quit without
giving 2 weeks' notice, she would receive the entire sum in
her account when she did leave after giving 2 weeks' notice
or at the end of a year. If she worked an entire year without
violating the terms of the offer, the "bonus" she would
receive at the end of a year would be $180, $120 of
Respondent's money and $ 60 of her own.If she quit without
giving notice, all money in her account would be divided
among employees who did live up to the plan. Grossman
r I have dated these incidents on August 15 rather than August 22 as
alleged in the complaint . Mrs. McCray placed them on the Friday before
she began a 2-week vacation. She thought , but was not sure, that she had
been off the weeks of August 24 and 31. However , Lillian Zwohnski,
Respondent's bookkeeper and office girl of all work , testified from records
that she had been off the weeks of August 17 and 24. I rely on the latter as
more reliable
pointed out that the amount each employee would have to
put up was approximately the same as she would have to
pay in dues if the Union succeeded in organizing the plant.
He suggested that the employees might prefer his offer to
unionization . None of the employees accepted Grossman's
offer.
Charlene Freeney last worked for Respondent on August
8. She obtained a job with a currency exchange and worked
for it for a few days in late August. On September 7 she
called Grossman and asked to come back to work for
Respondent. He told her to come back. On September 8
Alice McCray acted as the Union's observer in the Labor
Board election. The election was over around 1 p.m. Mrs.
Freeney came to the plant that day, apparently to vote in
the election, but arrived too late to do so. She did not talk to
either of the Grossmans. After the election, Mrs. McCray
again asked Grossman for a raise. He gave her 25 cents an
hour.
Mrs. McCray and Mrs. Freeney arrived at the plant
together around 7:30 the next morning , September 9. Mrs.
McCray is a sprayer, the only employee, other than
Grossman himself, capable of doing that skilled work.
Spraying requires the use of dummies mounted on rollers.
The sprayer places a garment on a dummy of the proper
size , sprays it with one of the numerous dyes of varying
colors, then wheels it into the spray booth to be dried by
electric lights. The skill of the job lies in matching color of
dye to color of garment. Mrs. Freeney is a presser, as are
Eula Spencer and Fanny Whitelaw. Mrs. Spencer was
already present when Mrs. Freeney arrived on the morning
of September 9. Mrs. Whitelaw was not. There were five
presses in the plant that morning . One was a newly acquired
machine which operated from a finger bar and possessed
automatic features. The other four could also be operated
from a finger bar but required the operator to maintain
pressure to hold the top part of the press against the
garments All five were operable.
When Mrs. McCray and Mrs. Freeney arrived at the
plant on the morning of September 9, Mrs. McCray
punched in. Mrs. Freeny did not because there was no card
for her. Mrs. McCray changed her clothes and went to the
spray booth. Mrs. Freeney changed part of her clothes and
went to one of the presses formerly operated only by a foot
pedal. Eula Spencer was already working on the finger-
operated press which Mrs. Freeney had customarily used
prior to August 8. By shop usage, it had become Mrs.
Spencer's in Mrs. Freeney's long absence. The new
automatic press, customarily operated by Mrs. Whitelaw,
was not in use. Mrs. Freeney pointed out to Grossman that
the press she was supposed to use was not automatic and
leaked. He told her to go ahead and use it anyhow, he
would fix it tomorrow. She refused. He told her to use the
new automatic press. She refused on the ground that Mrs.
Whitelaw would be in soon and would want her press. He
told her to use the press Mrs. Spencer was already working
8 Mrs. Freeney did not work for Respondent after August 8 because of
a physical condition which made it painful for her to operate a press with a
foot pedal . When she asked Grossman on September 7 whether she could
return she asked him whether her press had been "fixed," referring to her
request that it be made automatic. I credit Grossman 's testimony that he
had made a simple modification on two old presses which operated from a
foot pedal only to permit them to be operated from a finger bar.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on if she preferred it. She told him to tell Mrs. Spencer to
move to another one. Grossman told her to work it out with
Mrs. Spencer herself. Mrs. Freeney refused. Grossman
walked away. Mrs. Freeney continued to stand by the leaky
press without working. Mrs. Grossman came by and asked
her why she was not working. She said she would not work
until Grossman fixed the press. Grossman came back. He
thought that she, as well as Mrs. McCray, had been sent
back to the plant by the Union to make trouble for him. He
lost his temper. He said, "You don't want to work any
more. You ain't nothing but a troublemaker. You don't
want to work anyway. Go home."
In the meantime, Mrs. McCray started to get out the
spray dummies, then stopped and sat down. When Mr. and
Mrs. Grossman left Mrs. Freeney, they went to where Mrs.
McCray was sitting. Mrs. McCray told Grossman she had
hurt her back trying to get the dummies out and taxed him
with not having fixed or replaced the rollers on them as he
had promised. Grossman, still angry, said, "You don't want
to work. All you want to do is start trouble. You're just a
troublemaker. Ever since you've been here you've been a
troublemaker. You called the Union on me. I had to pay
$4,000 on account of you [a reference, apparently exaggerat-
ed to legal fees incurred by Grossman in connection with
the representation case]. I got enough trouble. If you don't
want to work, go home." An argument ensued, in the
course of which Mr. and Mrs. Grossman threatened to call
the police if Mrs. McCray and Mrs. Freeney did not leave.
Grossman's parting remark to Mrs. McCray, as to Mrs.
Freeney, was, "If you don't want to work, go home." They
left the plant together. The police were not called.
On September 10, Mrs. Freeney called the plant and
talked to Mrs. Zwolinski, the office clerical employee. She
asked for a reference and told Mrs. Zwolinski to tell
Grossman that she had really come to the plant to work,
not to make trouble.9 There was no contact between
Respondent and Mrs. Freeney after September 16.
Mrs. McCray's absence posed a special problem for
Grossman since he was forced to do all the spraying
himself. This caused Grossman to work longer hours than
usual after September 9. Consequently, he wanted Mrs.
McCray back. Within a week Mrs. McCray called Mrs.
Whitelaw and said she wanted to come back to work. Mrs.
Whitelaw told Grossman of Mrs. McCray's call. Grossman
told Mrs. Whitelaw to find out when Mrs. McCray was
coming back. Mrs. Whitelaw told Mrs. McCray that
Grossman wanted her back. Mrs. McCray sent word back
by Mrs. Whitelaw that she would be in the following
Monday. She did not show up. This happened twice in the
period between September 9 and November 18.
On a date after September 9 and before September 24
Mrs. Zwolinski called Mrs. McCray at Grossman's request
to find out when she was coming back to work. Mrs.
McCray told Mrs. Zwolinski that she was not coming back.
On September 24 a Labor Board agent visited the plant in
connection with his investigation of Case 13-CA-9346.
Grossman had Mrs. Zwolinski call Mrs. McCray while the
investigator was present to ask her again. The investigator
took the phone while Mrs. McCray was apparently on the
line but was unable to hear anything.
On November 18 Robert Herbin told Mrs. McCray to
call Grossman about getting her job back. She did so. She
told Grossman she would like to come back. Grossman told
her to come in the next day and talk to him. On November
19 Mrs. McCray went to the plant. Grossman was busy.
Mrs. Grossman told Mrs. McCray not to go back into the
plant area but to wait for him in the office. Mrs. McCray
waited a short time. She made some calls from a telephone
in the plant area. She saw Grossman but did not attempt to
speak to him. She left without talking to him about coming
back to work.
C. Analysis and Conclusions
1. The visit of Local 46's organizers to
Respondent's plant
The Grossmann participated in Local 46's effort to
organize Respondent 's employees by inviting them into the
plant and acquiescing in their efforts to persuade the
employees to choose Local 46 instead of the Charging
Party. Their purpose was to substitute Local 46 for the
labor organization of their employees' choice if they had to
deal with a union at all. In so doing they adopted Local 46's
sales talk that joining Local 46 instead of the Charging
Party would result in a 20-cent raise for the employees on
September 15 as well as other benefits of Local 46's area
contract and thus tacitly made the employees a promise of
benefits if they would withdraw their support from the
Charging Party. I find that Respondent thereby interfered
with, restrained, and coerced its employees in the exercise
of their Section 7 right freely to choose a bargaining
representative in violation of Section 8(a)(1) of the Act.
Rupp Equipment Company, 112 NLRB 1315,1317.
2. The bonus offer
Grossman's purpose on August 15 in offering the
employees a bonus for good attendance was the same. He
had managed to avoid organization of his plant the year
before by this tactic. Then he had persuaded the employees
they could do better by dealing with him directly rather
than through the Charging Party by offefmg them group
health insurance in exchange for giving up the Union.
Presumably, the cost to the employees of their insurance
premiums was also roughly equal to the Union's dues. By
pointing out that their contribution to his bonus plan would
be about the same as the cost to them of being represented
by the Union , he was offering them $ 10 extra per month, his
contribution to the plan, if they would drop the Union
again . Even though his very real problem with absenteeism
caused his bonus offer to take the form it did, when
Grossman used it as a device to promise employees benefit
if they gave up their right to self-organization, Respondent
9 Mrs. Freeney's version of this conversation is that she talked to Grossman. While I do not discredit Mrs. Freeney generally either, I was
Grossman himself, told him she was not a troublemaker, and asked for a not impressed by her sudden recollection, as a rebuttal witness for the
reference which he refused on the ground she was . I credit Mrs. Zwolmski 's General Counsel, of her currency exchange job in August after consistently
version , especially her testimony that Mrs. Freeney did not ask to speak to denying it under a searching cross-examination by Respondent.
AMERICAN LEATHER & SUEDE CLEANERS, INC. 657
once again violated Section 8(a)(1). Hardwick Clothes, Inc.,
180 NLRB No. 110.
3. Alice McCray's raise
As pointed out above, the complaint alleges that
Respondent violated the Act on September 8 by promising
a benefit to induce employees not to support the Union.
The only significant thing that happened on September 8,
other than the Labor Board election, was the 25-cent raise
Grossman gave to Alice McCray. In discussing Mrs.
McCray's raise as a Section 8(a)(l) violation in his brief, the
General Counsel brings it under the allegation of the
complaint that benefits were promised around August 22
and discusses only the promise of a raise which I have
found took place on August 15. The relevant section of his
brief reads:
The 25 cent an hour offer was made to the leading
union adherent and was greater than the 20 cent which
Mrs. Grossman had adopted generally. Therefore, in
promising her an increase, with no other apparent
motivation, during the pendency of the election
proceeding the Respondent violated Section 8(a)(1) of
the Act. Moreover, a violation was made out, whether
the occurence was August 22 or September 8.
The flaw in the General Counsel' s reasoning is found in
the phrase "with no other apparent motivation." The
burden is not on Respondent to prove a lawful motive. The
burden is on the General Counsel to prove an unlawful one.
This he did in proving the visit of Local 46's organizers to
Respondent's plant and the bonus offer. This he has failed
to do in the case of Mrs. McCray' s raise , whether he is
relying on the promise of August 15 or the fulfillment of
that promise on September 8. I credit Grossman's
explanation that Mrs. McCray was a valuable employee
because of her skill as a sprayer and deserved a raise. I also
credit his testimony that, before the employees began their
organizing efforts, Mrs. McCray asked him for a raise and
he promised her one when business picked up at the end of
summer. Even Mrs. McCray's testimony of her conversa-
tion with Grossman on August 15 about a raise contains no
indication that Grossman linked his promise to a request,
either explicit or implicit, that Mrs. McCray drop her union
activities. I find no basis for inferring such a purpose in the
rest of the record, the Local 46 incident and the bonus offer
notwithstanding. Therefore, I find that Respondent did not
violate Section 8(axl) when Grossman either promised or
gave Mrs. McCray a raise.
4. The discrimination against Alice McCray and
Charlene Freeney
In the usual Section 8(a)(3) and (1) case, the act which is
alleged as a discrimination is clear. The discrimmatee was
obviously, or even admittedly, discharged or transferred or
reprimanded or whatever. The issue which is litigated is
10 Mrs. Freeney ceased to be an employee of Respondent in August
when she took the currency exchange job, thus, in effect, quitting
Respondent's employ. As already indicated , doubt as to whether she was a
full-fledged employee or merely an applicant for employment on the
morning of September 9 caused the General Counsel to amend the
complaint at the close of the hearing . She comes within the protection of
the Act, of course, in either status . I find that she was a regular employee
motive. Was he discharged or transferred or reprimanded
or whatever because of his union activities or, put another
way, in order to encourage or discourage membership in a
labor organization or did the Employer act for cause? Here,
the reverse is true . There can be no question that Grossman
was angry with Mrs. McCray and Mrs. Freeney on the
morning of September 9, nor can there be any question that
his anger was caused, in substantial part, by their activities
in causing him trouble by bringing in the Union. But before
there can be a violation there must be discrimination as well
as motive, and discrimination is the disputed issue here.
The employer-employee relationship 10 between Respon-
dent on the one hand and Mrs . McCray and Mrs. Freeney
on the other changed on the morning of September 9. The
question is, did Grossman change it or did the ladies? I find
that the ladies did, for the following reasons:
In the first place, Charles Grossman is not proved to be
antiunion in the usual sense of that overworked and inexact
expression. He is only anti-this Union. I credit his
explanation that absenteeism was a headache that might be
alleviated by union conditions in his plant, thus:
I figured out I'll be better off with the union; that the
people said that this is a union they respect a little bit
more at the plant.
Q. Who said that?
A. I got advice this. The union plant the employees
has to work.
and thus:
Q.
A.
Q.
A.
A.
Q.
A.
Q.
Do you still want [Alice McCray ] back to work?
That's right.
Even though she brought in the union?
I don't care. I think it may be better.
With the union.
You think it would be better with the union?
That's right.
Are you willing to negotiate with Mr. Herbin's
union now?
A. That's right. On this account, if they will pay so
much as my competitors or some other regular wages
which shall be appraised by people is how much a
person like Alice McCray supposed to make.
I interpret that last answer to indicate that, of the rival
unions in the Chicago area which claimed jurisdiction over
his type of business, Grossman preferred Local 46 to the
Charging Party because he thought it posed less of a threat
to his competitive position.
Along this same line, I also credit Grossman's explana-
tion that he became angry because he thought the Charging
Party had deliberately sent Mrs. McCray and Mrs. Freeney
into the plant to make trouble for him, thus:
Q. So Alice McCray brought Charlene Freeney in
the day after the election; is that what you are saying?
A. This was put up special to trap [me ].
Q. That was put up special to trap you?
A. I should throw them out, they should collect
rather than an applicant on the morning of September 9. Counsel for
Respondent puts his finger on the point in Respondent's brief when he
states, "Respondent's employment practices were elastic in the sense that
following an unexplained absence the appearance of an employee ready
and willing to work was tacitly accepted as a reinstatement of
employment."
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unemployment. That was the whole business. I want to
prove my point now-why shouldn't when she walked
out from the plant, why she didn't go to the
unemployment to apply for unemployment compensa-
tion.
Why she didn't go there. She wait two and a half
months. Let her answer me this question.
TRIAL EXAMINER: Why do you think she didn't
do it?
THE WITNESS: Because if she would send in a
paper, the job is open, I'm looking for her, but it was so
much work there over my head, and this was put it up
by the union man and her to prove it that they hold up
the work in a nice way because they couldn't do another
way.
In other words, it was not the fact Grossman resented their
efforts to organize his plant that caused him to blow up at
Mrs. McCray and Mrs. Freeney, it was the idea that this
Union was trying to trap him.
Second, all witnesses are agreed on a crucial negative fact
and an equally crucial affirmative fact about what
happened that morning. The testimony of Elvira Fleites, an
eyewitness, is a succinct summary of what all said, albeit in
varying terms, thus:
Q. And was it your understanding at that time from
the overall conversation that Charles was asking [Alice
McCray] to go to work?
A. That is what he was saying.
Q. But she was refusing?
A. She said her back was hurting and that, you
know, that you need to put [new] rollers on the
dummies.
Grossman did not say that Mrs. McCray and Mrs.
Freeney were discharged. He did say, "If you don't want to
work, go home."
Finally there is the evidence of what the ladies did and
did not do after September 9. In Mrs. Freeney's case, the
story is a simple one. She was in contact with Respondent
only once, the next day. Even her version of that telephone
call makes it clear that she considered the employer-
employee relationship at an end, for she admits her purpose
was to ask for a reference, thus:
I called Pat [Mrs. Zwolinski], and I told Pat that Mr.
Grossman had accused me of not wanting to work and I
said I did come in to work but I cannot work on the
press that he won't fix . . . I called Charles and asked
him for a reference.
Mrs. McCray's story is more complicated. Grossman
needed Mrs. McCray. Her skill as a sprayer made her
irreplacable over the short run. Her absence threw all the
spraying work in the plant on Grossman himself. Therefore,
even though he was angry on the morning of September 9
and that anger, I have no doubt, still smoldered as time
went by, he was anxious to have her at work. Like Alfred
Doolittle, he was willing to tell her, he was wanting to tell
her, he was waiting to tell her to come back. That he
communicated this to Mrs. McCray is clear. Fanny
Whitelaw testified:
After I finished talking to Alice [on the telephone], I
told Charles-Charles asked her to come back to work.
He said tell her to come back because he didn't fire her.
I told him she wanted to come back to work.
s s s s
She said, "I think I'm coming back to work." I said,
"Okay. I'll tell him."
Lillian Zwolinski testified:
The two times I spoke to Alice Alice told me she did not
want to come back to work or she was not coming back
to work, but I kept hearing from the girls that she was
coming back. I couldn't understand this. Why would
she tell me she was not coming back and Mr . Grossman
was anxiously waiting for her . He was a nervous wreck
because it was nearing our busiest season where he
needed her desperately and she knows she's needed.
i i 4 t
I recall asking her if and when she was returning to
work and she said she wasn't.
The explanation for this inconsistency is not that there is
a conflict between the testimony of Mrs. Whitelaw and
Mrs. Zwolinski. The explanation is that Mrs. McCray's
feelings were hurt and she was waiting for an apology from
Grossman himself rather than an indirect message through
Mrs. Whitelaw before returning.
Mrs. McCray called Robert Herbin to tell him what
had happened shortly after September 9. When he returned
her call, a misunderstanding began as she testified, thus:
[a]nd he respond my call back and told me-well, I
misunderstood it, that he was supposed to go see Mr.
Grossman and Mr. Grossman supposed to get in touch
with me and I come back to work but meanwhile Mr.
Grossman didn't get in touch with me.
Q. You made no effort to get in touch with him?
A. No. He was supposed to get in touch with me.
Q. So then I am correct in saying that between
September 9th and November 19th you yourself made
no effort to get in touch with Mr. Grossman?
A. No, I didn't.
This theme of waiting for a call from Grossman himself
which never came runs all through Mrs. McCray's
testimony, thus:
I told [Mrs. Whitelaw]-I said, "I would like to come
back to work." She said, "Well, why don't you come
back to work?" I said, "How can I come back to work?"
She said, "All you have to do is walk in on the job." I
said, "Mr. Grossman sent me home. Remember." "You
know you don't have to pay no attention to that. You
can come back to work."
Q. Who said, "You know you don't have to pay any
attention?"
A. Fanny said that.
Q. Go ahead with the conversation.
A. She said, "You can come back to work." I said,
"Just come back to work without Mr. Grossman calling
me?" "Well, he doesn't care." I said, "I don't do things
like that." I said, "He sent me home . If he wants me to
come to work, he should call me."
AMERICAN LEATHER & SUEDE CLEANERS , INC. 659
I told Fanny , I said, "I would like to come back to work
at some period of time ." I told her, I said, "If the Union
said I should go back , I'll go back ." I said, "But I can't
go back until somebody let me know something."
s s s s s
I says , "Pat, this is Alice." She said, "Yes, how are you?"
I told her, I said, "I received your message that your
called." She said, "Yes. I wanted to know when you was
coming back to work." I said, "Coming back to work?"
She said, "Yes." I said, "I was sent home, Pat. How am I
coming to work?" She said , "Oh, I didn't know that.
Just a minute."
When Mrs. McCray denied so vehemently that Mrs.
Whitelaw told her specifically that Grossman wanted her to
come back to work, what she was really denying was that
she had ever received the personal apology to which she felt
she was entitled. In this she was correct . Grossman never
did tell her he was sorry for what had happened on
September 9. But that fact is irrelevant to the issue before
me. When Mrs. McCray finally did take the initiative and
call Grossman about coming back to work on November
18, she did so because Herbin told her to . While, Mr. and
Mrs. Grossman might have given her a little more attention
when she appeared in the office on November 19, I find no
basis in the record for inferring that if she had been a little
more patient, Grossman would not, in fact , have welcomed
her back. If the Grossmans had dealt with Mrs. McCray
with more courtesy this case might never have reached the
hearing stage . The fact that they did not, however, cannot
substitute for proof by the General Counsel that she was
discriminated against within the meaning of the Act. For
the reasons stated I find that Mrs. McCray and Mrs.
Freeney were not discharged by Respondent on September
9 and were not denied reinstatement thereafter. The
dummies were as useable , the presses as operable as they
had ever been on the morning of September 9. Despite
Grossman's urgings , Mrs. McCray and Mrs. Freeney did
not choose to work on them . Therefore, they quit. It follows
that Respondent has not violated Section 8 (aX3) and (1) of
the Act by its treatment of them.
5. The refusal to bargain
In the General Counsel's view, as stated in his brief, "The
principal issue is whether there have been sufficient unfair
labor practices to justify the issuance of a bargaining order
under Section 8 (aX5) and (1)." All of the usual prerequisites
to bargaining are present here without question. The
appropriateness of a unit of Respondent 's production
employees , with the customary stateatory exclusions, is
stipulated . On August 5, when Herbin informed Grossman
that the Charging Party represented a majority, he had in
his possession valid authorization cards from 6 of the 10
employees in that unit . Respondent argues that the General
Counsel has failed to prove Grossman refused to recognize
the Union at that time because the General Counsel failed
to elicit from either Herbin or Grossman testimony that
Grossman specifically so stated . Such a position is without
merit. The record clearly reflects that Herbin demanded
recognition . No matter what words Grossman used in
replying, a refusal at law resulted when the conversation
ended with recognition not granted and the possibility of
voluntary recognition not kept open . As the General
Counsel says , the only issue is whether the two independent
Section 8(a)(1) violations of the Act I have found are
sufficient to justify an imposed bargaining order . The test,
as laid down by the Supreme Court in Gissel, supra, is:
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair election
(or a fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order, then such an
order should issue.
That test is not met here. The effects of the violations I have
found are not so great or so pervasive that they cannot be
erased by a cease-and-desist order , a notice, and the
passage of time. Employee sentiment would not, on
balance, be better protected by a bargaining order than by
a new election . Therefore, I find that Respondent has not
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Charging Party on and after
August 5. I will not recommend a bargaining order as part
of the remedy for the unfair labor practices I have found. J.
A. Conley Company, 181 NLRB No. 20; Central Soya of
Canton, Inc., 180 NLRB No. 86.
IV. THE OBJECTIONS TO THE ELECTION
In addition to constituting violations of Section 8(axl),
the visit of Local 46's organizer's to Respondent 's plant and
the bonus offer , both coming after the filing of the petition
in Case 13-RC-11934, are sufficient interference with the
Board's election process to justify a rerun election. I
recommend that the Board set aside the election held on
September 8, 1969, and remand Case 13-RC-1 1934 to the
Regional Director for Region 13 to hold a second election
at such time as he determines that the unfair labor practices
herein have been remedied.
Upon the foregoing findings of fact, and on the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. American Leather & Suede Cleaners , Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Chicago Fur Workers Union, Local 45F, Chicago
Joint Board, Amalgamated Meat Cutters & Butcher
Workmen of North America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By promising its employees that it would give them
the raise in pay and other benefits called for by the area
contract of another labor organization and by offering
them a bonus for good attendance if, in both instances, they
would withdraw their support from the Charging Party,
Respondent has interfered with, restrained , and coerced
employees in the exercise, of'rights guaranteed in Section 7
of the Act, thereby engaging in unfair labor practices within
the meaning of Section 8(axl) of the Act.
4. The aforesaid unfair labor practices are unfair labor
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. All production employees of Respondent employed
at its plant located at 3053 North Western Avenue,
Chicago, Illinois, excluding office clerical employees,
truckdrivers, guards, professional employees, and supervi-
sors as defined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
6. The allegation of the complaint that Respondent
violated Section 8(a)(1) of the Act on or about September 8,
1969, by promising employees benefits in order to induce
them not to give their assistance or support to the Union
has not been sustained.
7. The allegations of the complaint that Respondent has
violated Section 8(a)(3) and (1) of the Act by discharging
Alice McCray and Charlene Freeney and/or refusing to
rehire Charlene Freeney on or about September 9, 1969,
and by refusing thereafter, especially on September 16,
1969, in the case of Charlene Freeney and November 19,
1969, in the case of Alice McCray, to reinstate them have
not been sustained.
8. The allegation of the complaint that Respondent has
violated Section 8(a)(4) and (1) of the Act by refusing to
reinstate Alice McCray and Charlene Freeney has not been
sustained.
9. The allegation of the complaint that Respondent has
violated Section 8(a)(5) and (1) of the Act by failing and
refusing to bargain collectively with the Charging Party on
and after August 5, 1969, has not been sustained.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following:
RECOMMENDED ORDER
American Leather & Suede Cleaners, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promising employees benefits in order to induce them
not to give their assistance or support to a labor
organization of their choice.
(b) In any like or related manner interfering with,
restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its plant in Chicago, Illinois, copies of the
attached notice marked "Appendix." 11 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous 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.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith-12
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges that Respondent violated Section
8(axl) of the Act on or about September 8, 1969, by
promising employees benefits in order to induce them not
to give their assistance or support to the Union and insofar
as it alleges that Respondent has violated Section 8(aX3),
(4), and (5) of the Act.
11 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
12 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 13 , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things
WE WILL NOT promise you raises or bonuses or any
other kind of benefits in order to get you not to assist or
support Chicago Fur Workers Union, Local 45F,
Chicago Joint Board, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO, or
any other labor organization.
WE WILL NOT do anything else to interfere with your
rights under the Act.
AMERICAN LEATHER &
SUEDE CLEANERS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 881 US
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone 312-
353-7572.