Macke Laundry Service Co. of D.C.

National Labor Relations Board - Board Decisions

Apr 23, 1971

190 N.L.R.B. 1 (N.L.R.B. 1971)

MACKE LAUNDRY SERVICE COMPANY 1
Macke Laundry Service Company of D.C. and Wash-
O-Matic Service Co. and District Lodge No. 67,
International Association of Machinists and Aero-
space Workers, AFL-CIO . Cases 5-CA-4620 and
5-CA-4826
April 23, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 16, 1970, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled pro-
ceeding, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices in
violation of the National Labor Relations Act, as
amended, and recommending that the Respondents
cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent Wash-O-Matic Ser-
vice Co. filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and Respondent Macke
Laundry Service Company of D.C. filed a brief sup-
porting the exceptions. The General Counsel filed a
memorandum in support of the Trial Examiner's Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, briefs, and memo-
randum, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that the Re-
spondents, Macke Laundry Service Company of D.C.
and Wash-O-Matic Service Co., Beltsville, Maryland,
their respective officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
' We have affirmed the Trial Examiner's findings that Price and Gill were
not supervisors and that the Respondents' conduct toward them violated the
Act. Accordingly, we find it unnecessary to pass upon his additional com-
ments regarding the effect of Respondents' actions had the employees in fact
been supervisors.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a charge filed
on January 7, 1970, by District Lodge No. 67, International
Association of Machinists and Aerospace Workers, AFL-
CIO, and an amended charge filed thereafter on March 17,
1970, both against Macke Laundry Service Company of
D.C., a Respondent herein, the Acting Regional Director for
Region 5 of the National Labor Relations Board, herein re-
ferred to as the Board, issued a complaint on behalf of the
General Counsel of the Board alleging violations of Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended (29 U.S.C., Sec. 151, et seq. ), herein called the Act.'
Thereafter, following the submission by counsel for the Gen-
eral Counsel of certain data in explication of allegations of the
complaint on motion of Respondent's counsel and pursuant
to order of Trial Examiner Charles W. Schneider, Respond-
ent filed its answer wherein, while admitting certain allega-
tions of the complaint, it denied the commission of any unfair
labor practice. Subsequently during the course of the trial of
this matter, as will be described in fuller detail hereafter, a
charge was filed on June 26, 1970, by the Charging Union
herein against Wash-O-Matic Service Co., also a Respondent
herein, and during the trial before me, upon motion of coun-
sel for the General Counsel on July 21, 1970, over the objec-
tion of Attorney Thomas Canafax, appearing in behalf of
both Respondents, and after extended argument, the two
cases were consolidated and the complaint amended accord-
ingly.
Pursuant to notice the trial was held before me in Washing-
ton, D.C., on June 24 and 25, July 21 and 22, and August 5,
1970, where all parties were present and afforded full oppor-
tunity to be heard, present oral argument, and file briefs with
me.' Briefs were filed September 25, 1970, by Respondents
and counsel for the General Counsel.
Upon consideration of the entire record, including the
briefs filed with me, and specifically upon my observation of
each witness appearing before me,' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE NATURE OF THE RESPONDENTS' BUSINESSES
Respondent Macke Laundry Service Company of D.C.,
hereinafter referred to as Macke, is a District of Columbia
corporation with its office and plant presently located at 5006
Herzel Place, Beltsville, Maryland, where it receives and con-
ditions laundry machines and dryers, distributes them among
apartment houses and garden apartments throughout the
metropolitan area of Washington, D.C., and installs them for
operation and use at such locations. During the course and
conduct of its business operations during the year immedi-
ately preceding the issuance of the complaint herein Macke
received at its Maryland plant from points and places outside
the State of Maryland machinery and equipment valued in
excess of $50,000 and received revenues in excess of $50,000
from the distribution and installation of its products in the
District of Columbia and the Commonwealth of Virginia.'
During the course of the trial of this matter the General Counsel's
motion was granted for the withdrawal of those allegations in the complaint
relating to a refusal to bargain in violation of Sec. 8(a)(5).
The details of Respondent Wash-O-Matic Company's participation in
this matter, an issue before me, are set forth hereafter.
Cf. Bishop and Malco, Inc., 159 NLRB 1159, 1161.
The stipulation of the parties at the hearing.
190 NLRB No. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wash-O-Matic Service Co., hereinafter called Wash-O-
Matic, was stipulated to be a Maryland corporation, where,
at 3408 52nd Avenue, Bladensburg, Maryland, prior to on or
about December 5, 1969, it was engaged in the receipt, condi-
tioning, distribution, and operation of laundry machines and
dryers in a manner similar to the operations of Macke as
described above.
On September 1, 1969, Macke purchased all of the out-
standing stock of Wash-O-Matic. At this time Macke's opera-
tions were conducted at 2507-B 50th Avenue, Hyattsville,
Maryland. On or about December 5, 1969, the operations of
Macke and its now wholly-owned subsidiary, Wash-O-Matic,
were moved to the present location of 5006 Herzel Place,
Beltsville, Maryland, where during all times material herein
they are engaged in the operation and servicing of coin-
operated laundry machines and dryers which they install and
maintain, as previously described.
In the operation of this enterprise following the move to
Beltsville there is disclosed a significant integration of officer
and supervisory personnel. Thus, as of December 23, 1969,
the following were stipulated to be officers of Macke: presi-
dent-Marvin Laubgross; vice president-Isadore Abrams;
treasurer-C. Wesley LaBlanc; secretary-Balfour Gold-
man. As of the same date the following were stipulated to be
officers of Wash-O-Matic: president-Jacob Korth; vice
president-Marvin Laubgross; vice president-Jack Hiort-
dahl; treasurer-C. Wesley LaBlanc; secretary-Balfour
Goldman. On or about January 1, 1970, Korth, who appears
to have been physically incapacitated for a number of weeks
preceding that date,' resigned as president of Wash-O-Matic
I From the examination of President Laubgross at the hearing it was
impossible to elicit from him a meaningful answer as to when, during the
period of 5 weeks preceding January 1, 1970, Korth was present and when
he was absent due to illness. Accordingly, my finding is based on the only
reasonable inference to be drawn from Laubgross' evasive testimony.
At this point it should be noted that based on my observation of Laubgross
as a witness and on the instances of evasion manifest throughout his tes-
timony I cannot accept his testimony as credible evidence and will rely on
it only when it constitutes an admission against his own or either of Re-
spondents' interests or when it consists of uncontroverted fact peculiarly
within his knowledge.
In addition to the evasion recited above other instances illustrative of
evasion which have compelled my judgment in this matter are: Laubgross'
evasive testimony in response to inquiries by counsel for the General Coun-
sel relative to the shop duties and sick status of two employees, Sondheiver
and Hernandez; and his explanation to me why he could not provide the
answers to questions concerning Respondents' operations. Thus:
Q. He (Employee Rutland) worked primarily for Mr. Lewis. Is that
correct?
A. Primarily.
Q. Primarily. And he spent most of the time working for Mr. Lewis.
Right?
A. I don't know.
TRIAL EXAMINER: Counsel just a second. Mr. Laubgross, what is
your position?
THE WITNESS: I'm president of the company.
TRIAL EXAMINER: Have you been on leave recently?
THE WITNESS: Yes, last week.
TRIAL EXAMINER: I mean, for an extensive leave?
THE WITNESS: No.
TRIAL EXAMINER: Can you explain why you have difficulty to an-
swer questions of this sort concerning your operation, if you are presi-
dent of it?
THE WITNESS: I'm not familiar with it.
TRIAL EXAMINER: How much of your personal time do you spend
at your occupation as president of this organization?
THE WITNESS: One hundred per cent.
TRIAL EXAMINER: Well, where do you do your work?
THE WITNESS: Wherever I need to.
TRIAL EXAMINER: I assume most of it-
THE WITNESS: In Chicago, in San Diego, if needed.
and was succeeded by its then Vice President Marvin Laub-
gross the president of Macke. At about the same time Gold-
man resigned as secretary of Macke and of Wash-O-Matic.
Hiortdahl, who described himself as a one-time supervisor in
Wash-O-Matic's employ, continued as its vice president.
In addition to the integration manifest by dual offices of
president, secretary, and treasurer, the overlapping of func-
tions was particularly evident in the handling of personnel
actions which form the substance of this proceeding. Thus,
when the two employees involved, Woodrow Gill, Jr., and
Edwin B. Price, were interviewed for what was claimed to be
a promotion to foreman it was Gill's credited and undenied
testimony that it was Abrams, the vice president of Macke,
who did most of the talking to the two men, both of whom
originally worked for the Wash-O-Matic organization. And
it was Wash-O-Matic's vice president, Hiortdahl, who ulti-
mately effected their termination in the presence of Laub-
gross, the president of both organizations, after their confron-
tation with Attorney Joel Keiler who in this proceeding
originally entered an appearance as an attorney for Macke
and thereafter for Wash-O-Matic.
The supervisory level of the operation discloses no less
intermingling after the consolidated move of December 5.
Thus Foreman Hill, who prior to December 1969 worked for
Wash-O-Matic, and Foreman Violette, who worked for
Macke, presently exercise areas of supervision, one over in-
stallation and the other over servicing, recognizing no distinc-
tion as to employment origin of employees whom they su-
pervised. Additionally, it appears from the credited
observation of Employee Gill that Foreman Violette is given
orders by Laubgross, Abrams, and Hiortdahl without refer-
ence to which organization each is an official of. Finally, as
an individual instance, Gill credibly cites employee Sherer, an
employee originally hired by Macke, as being supervised by
Hill, a foreman originally with Wash-O-Matic. And, as an
indicia of the unification of personnel achieved by the time
Gill was terminated he credibly described the substitution of
the Macke uniforms for Wash-O-Matic uniforms among em-
ployees originally hired by Wash-O-Matic.b
As previously described, all operations are centered at the
Herzel Place plant and all dispatches emanate from there, as
do all deliveries of equipment, replacements, and supplies;
and in the operation of the servicing and repair functions
there is but one stockroom.
That the unification described above has not been com-
pletely effected is evident from the retention of certain iden-
tification of earlier organizations . Thus trucks still bear the
name Wash-O-Matic, an indicia of initial ownership; but they
are used for all deliveries and servicing. Some of the laundry
machinery in use at rental locations bears the name of Wash-
O-Matic and the early 1969 predecessor of Macke, Bendix;
these being the organizations which originally installed the
machines. And finally, the payrolls of the two organizations
continued to be separate; the original Macke employees being
paid by checks bearing Macke's name and the former Wash-
O-Matic employees with checks bearing that organization's
name. For reasons not evident in the record this separation
continues.'
TRIAL EXAMINER: And what percentage of your time do you spend
in Washington?
THE WITNESS: What percentage of my time? Ninety percent. I as-
sume you mean the metropolitan area?
Finally, his reply to me when asked the duties of C. Westley LaBlanc, the
treasurer of both organizations : "I don't know what his job is, frankly."
Gill testified that he personally was measured for the new uniform after
the merger. He did not remain to receive the finished product.
' Following the merger it is stipulated that the Wash-O-Matic payroll and
paychecks were prepared by an independent organization , Capital Electric
MACKE LAUNDRY SERVICE COMPANY
Upon consideration of the foregoing evidence of unified
operations, common and interlocking corporate relation-
ships, common supervision, unified application of personnel
administration, total stock-ownership of one corporation by
the other, common company policy including labor relations
policy as evidenced by Abrams' and Hiortdahl's joint partici-
pation in personnel action, and Attorney Keiler's functioning
in behalf of both organizations in the matter of the employee
terminations in this proceeding, I conclude and find that
Wash-O-Matic and Macke herein constitute a singular em-
ployer for asserting the Board's jurisdiction and for the reme-
dying of such unfair labor practices as may be found herein.'
As it has been established by stipulation of the parties that
the direct out-of-state purchases of the Respondents are in
annual amount in excess of $50,000 and as it has likewise been
established that the annual out-of-state rentals and services
are valued in excess of the same amount, I conclude and find
that Respondents Wash-O-Matic and Macke, as a single em-
ployer, are engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is stipulated and I accordingly conclude and find that
District Lodge No. 67, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, is a labor organiza-
tion as defined by Section 2(5) of the Act.
III. ADEQUACY OF NOTICE AND DUE PROCESS
It has been claimed in behalf of Respondent Macke that the
complaint issued against it and against Respondent Wash-O-
Matic should be dismissed because of a failure to properly
join Wash-O-Matic as an essential party to the proceeding.
Similarly, it has been claimed in behalf of Respondent Wash-
O-Matic that by being made a party to these proceedings in
an improper and untimely fashion it has been denied due
process by being deprived of the opportunity to be present
when evidence concerning it was adduced and that it has thus
been denied the right adequately to cross-examine witnesses.
Because the contentions of Respondents and the claim of
Attorney Keiler at the hearing that Wash-O-Matic was not
presented at the time the evidence was presented are so incon-
sistent with the record made in this proceeding a resume of
the relevant portions of the record must necessarily be set
forth before any resolution of the issue can be accomplished.
When the hearing opened on June 24, 1970, upon a com-
plaint issued against Macke, the Trial Examiner requested
appearances of counsel for the record, a response to which
included the following:
MR. CANAFAx: For Respondent, Thomas Canafax,
Jr., of the firm of Arent, Fox, Kintner, Plotkin and
Kahn, Federal Bar Building, 1815 H Street, N.W. Wash-
ington, D.C.
MR. KEILER: Also for Respondent, Joel I. Keiler,
same firm and same address.
Mr. Keiler, whose conduct has been alleged to be a violation
of the Act (infra), was present thereafter for 2 full days of
hearing and the purpose of his appearance and presence was
stated by his associate, thus:
Co., in which Wash-O-Matic's president, Jacob Korth, had a financial inter-
est. There is no explanation for the abandonment of Capital's service and
the continued separate preparation of checks after Korth's resignation as
president of Wash-O-Matic and Laubgross' assumption of that office in
addition to his presidency of Macke.
8 J. Howard Jenks d/b/a Glendora Plumbing, 165 NLRB 105; Overton
Markets, Inc., 142 NLRB 615; Aluminum Tubular Corp. and Flag Pole
Equipment Co., Inc., 130 NLRB 1306.
3
MR. CANAFAx: Mr. Keiler, of course, is an attorney
of record in this case, has entered an appearance. He's
also essential to assist me in the conduct of Respondent's
[Macke] case.
During the 2 days that Mr. Keiler was thus assisting in behalf
of Respondent Macke 12 witnesses were called by counsel for
the General Counsel in support of allegations in the com-
plaint, including those that alleged that Mr. Keiler had un-
lawfully interrogated two employees and had threatened
them with discharge. Among these witnesses were both em-
ployees involved and Marvin Laubgross, president of Wash-
O-Matic and Macke. The testimony of these 12 encompassed
all of General Counsel's case-in-chief, and the record dis-
closes that during the course of this testimony Keiler not only
participated but was also involved in the continuing prepara-
tion of the case.'
By the close of the second day of hearing it became evident
that although counsel for the General Counsel's substantive
case had been presented additional time would be necessary
to negotiate stipulations pertaining to the nature of the opera-
tions of the two organizations, a subject which developed in
significance as the examination of witnesses had progressed.
I adjourned the hearing sine die, directing counsel for the
parties to confer and return at an early future date with
adequate payroll data that had not been forthcoming to that
point and with such stipulations as they could arrive at con-
cerning the nature and relationship of the two corporations
involved. In directing an early resumption I made the follow-
ing observation:
... I am going to ask Mr. Canafax and Mr. Slaughter
to collaborate on selecting the most opportune and earli-
est meeting date for resumption, having in mind that any
commitments that counsel may have which relate to
Labor Board hearings are subordinant to this particular
case which is presently in hearing. So that if anybody's
excuse is that they have another case to try before the
Board, that case comes second, this is first.
Mr. Keiler did not return upon resumption of the hearing
on July 2110 being in attendance, according to Attorney Cana-
fax, at a Board proceeding in Louisiana, despite my earlier
caution concerning priority of such matters. It would appear
from the record, however, that he had actively participated
in the recess negotiations, Attorney Slaughter stating on the
record that he and Mr. Keiler had conferred on a number of
occasions, twice during the previous week.
At the July 21 resumption, counsel for the General Coun-
sel, over Respondent Macke's objection, introduced into the
record a charge dated June 26, 1970, in Case 5-CA-4826,
against Wash-O-Matic and moved for the consolidation of
both cases and the amendment of the complaint to include
Wash-O-Matic as a Respondent and as a responsible party to
the unlawful conduct alleged by amendment.
In ruling on the introduction of the charge I noted that
with relation to the 6-month limitation of Section 10(b) of the
Act conduct prior to December 26, 1969 (the date of the
alleged refusal to bargain, an allegation which has since then
been withdrawn from the complaint), would not be consid-
ered an unfair labor practice, that the new charge named
Marvin Laubgross who had already appeared as a witness
identifying himself as a representative of Macke, and that the
9 At the adjournment of the first day of hearing Keiler addressed the
following inquiry to the Examiner: "Your Honor, before we adjourn, may
we, between today and tomorrow morning, speak to this witness about
subjects that are not-?"
10 A telegraphic order of the undersigned dated July 2, 1970, setting the
resumption date for July 21, 1970, was directed to Attorney Keiler as well
as to his associate, Attorney Canafax.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two alleged discriminatees in the case as it involved Macke,
Messrs. Gill and Price, were also mentioned in the new
charge. I then rule as follows:
Since in these three respects there is a more than a
distinct similarity between items referred to, I will find,
necessarily, that there is some relevance between one
document and the other, without in any way implying
that, as to the merits that will be discussed hereafter, I
feel that there should or should not be amendments to
the Complaint. The fact of the matter is that this particu-
lar charge relates to the matter before me. Because it
does, I rule that General Counsel's Exhibit 1(y) and the
attached documents, 1(z) and 1(aa) be admitted into
evidence.
In ruling on counsel for the General Counsel's motion to
consolidate the two cases I stated as follows:
Addressing myself to the motion to amend the Com-
plaint by consolidating with Case No. 5-CA-4620 the
charge in Case No. 5-CA-4826, which was filed and
served on Wash-O-Matic on or about June 26th of this
year, it appears, as I noted previously in the admission
of the document designated as General Counsel's Ex-
hibit 1(y), that there was a relation between the subject
matter of the charge against Wash-O-Matic and the alle-
gations of the Complaint against Macke Laundry in the
case which we are presently hearing.
Now, we have come to the second step, and I think the
courts, in sustaining the Board's discretion to consoli-
date cases, have indicated that consolidation of cases is
actually a housekeeping procedure permitted generally
for the purpose of alleviating the administrative troubles
of the Board, saving the taxpayers money, and expedit-
ing proceedings generally. And the courts, as I under-
stand the rulings, have indicated that there must be a fair
relationship, fair and reasonable relationship between
the cases sought to be consolidated. And I have already
found that there is a relationship between the two when
I admitted that document into evidence, the charge.
My feelings have not subsided since that occurred and
I note on the record that, inasmuch as it is discretionary
with the Board to grant such a consolidation and that
the ends of justice and common sense would be served,
and that, in any event, the Respondent in this case will
have, or I will see that he has full opportunity to meet
any new allegations that may arise, and essentially all of
the same cards will be provided to the Respondent, and
since certain ends of justice will be served, I grant the
motion to consolidate.
Thereafter, counsel's proposed amendments to the complaint
were set forth in detail in the record and a written copy of his
proposals introduced as an exhibit for the guidance of the
Examiner, and the parties objections were raised by Attorney
Canafax. As the objection to the amended complaint based on
the time limitations of Section 10(b) have no application ex-
cept to the allegation of a refusal to bargain, and that allega-
tion has been withdrawn from the complaint, my denial of
that particular objection cannot now be in issue. My ruling
on the objection to the remainder of the amendments to the
complaint follows:
Now, as to the rest of the objection to the amendment
of the Complaint, I am not so naive as to understand that
there are before me and there always have been before
me in fact, if not in legal entity, the individuals who form
a part or did form at some time a part of either Macke
or Wash-O-Matic, or both, including those who are
before me as witnesses. Nor am I so naive as to feel that
these people who even at the time testified that they were
officers in common.of both organizations, the officer of
one did not know what the other organization was doing.
I do not think in a situation like this that I have to
accept the proposition as a rule that the right hand does
not know what the left hand is doing. I think the record
will amply substantiate that when it is studied in detail,
and I say this from my recollection of the record, that
is not to say that I have made up my mind that these two
organizations are joint employers or so integrated as to
constitute that by inference. I have the right, however,
to find out if what appears on the surface is true upon
complete study bears out the findings that it is a joint
operation, I have the right to have all the evidence before
me that I might make the determination and not be
required, as your motion would require me, to decide it
off-the-cuff.
In other words, I am ruling in this instance that I am
going to let this stuff in, and I will not use those nasty
words "for what it is worth" because it might be worth
the whole case, but I am going to let it in because it has
the color of relevance to the allegations made, and the
color of relevance is substantiated by the evidence that
I have already received here ... Mr. Laubgross, among
others, has testified to this, if I can use it again, ball of
wax, and he has failed in certain respects to provide
... us information concerning this ball of wax, which I
suspect may be elicited hereafter in the trial and which
I, as your Examiner, have the right to know about, be-
cause I am the one to decide whether they are or are not
integrated organizations.
So, for that reason, I would be remiss in my obliga-
tions to the other parties if I were to say that these are
irrelevant and that they belong in a separate case. Be-
cause, after all, it is within my discretion as set forth by
the rules and the cases to permit amendments of this
sort.
Now, we come to the last item, and that is the question
of due process. Due process, I think, here has certain
limitations. I recognize that technically Wash-O-Matic
was not a party to this proceeding during the first two
days of the hearing. But I do know that sitting before me
during all that time and testifying at that bench was the
gentleman whom it is stipulated was president of Wash-
0-Matic. So, I am not going to hide my head in a pile
of sand in that area.
Nor am I constrained to feel that due process is con-
strained by surprise. This charge was filed almost a
month ago, and the Counsel, if I may compliment him,
has a reputation of being astute and quite aware of the
vagaries of labor relations and procedure. And since this
is the case, I think that anyone knows that once a charge
is filed what follows is quite possible the complaint in the
same hearing. And I am not suggesting that they should
have by some clairvoyance figured out what the com-
plaint was going to be, but you at least should know that
something was in the wings.
Moreover and more directly to the point, there was
evident to me at the time the case was heard the last time
the need for a further exploration of the several aspects
of Wash-O-Matic and Macke. There were several efforts
made at that, over objection on several occasions by
Counsel and by an apparent lack of knowledge or under-
standing by some of the witnesses as to what the relation-
ship was between those two organizations, information
that would be of most essential character in determining
the jurisdiction of the'Board, the nature of the alleged
bargaining unit or the bargaining unit involved here,
things of that sort.
MACKE LAUNDRY SERVICE COMPANY
I know that Counsel is quite aware of the usual proce-
dure in this matter whereby in advance of a trial of this
sort Counsel gets together and provides the investigating
arm of the Board , although they are not required to, with
the details of organizational structure that would sim-
plify that particular part of the trial.
Now, I do not know whether and I am not going to
quarrel about whether that sort of operation occurred
prior to the trial in the filing of pleadings here, but I am
aware of the normal procedure by the Board to obviate
problems as to the nature of the employer 's business and
the extent of his operations , and that sort of thing.
All of this came out during the first two meetings, and
it became so involved and so useless of further explora-
tion at the time, apparently , General Counsel was not
aware at the time, as he expressed it on the record, that
there was a Wash -O-Matic ...
. organization in the wings or existed . That is his
problem, that is not mine.
But, having determined a fact that he was not able to
glean in the investigative stage of this proceeding, he was
certainly entitled to find out the nature of that fact before
he proceeded with the case. And I am not saying that his
case was improperly prepared , there is not the least bit
of evidence of that.
However, aware that there is more to this case than
met the eye , insofar as organizational structure was con-
cerned , I directed the parties to please go outside and
stipulate , as I do in many cases and I am successful in
most, suggesting that the parties, for heaven 's sakes, go
outside and stipulate as to what this organization is all
about. And, usually , it turns out that everybody knows
the nature of an organization and its internal structures,
how it works and who is dependent on whom and who
is related to whom, everybody knows this but the Trial
Examiner , since they 're all obvious facts that were put
together in the stipulation . I was hopeful that we could
get one. We got one ; we got a stipulation here but, appar-
ently, it brings out the facts which were not available at
the beginning of this hearing.
Since that is the case , and since it involves people who
have been mixed up in this case from the beginning,
there is no other alternative that I can see that an attor-
ney prosecuting the case can avail himself of except to
amend his complaint , as he has done here. I see no
element of surprise here, in general . There may be some
surprise as to some statements but, certainly , for the
most part , I would suggest that Counsel for Respondent
must know the structure of his organization and must
also know the general nature of the business that it took
over some time in the latter part of 1969.
Such being the case, such being the background, I fail
to be persuaded that there was anything about any of the
periphery of the matters alleged by way of amendment
that come as a complete surprise or are of such a nature
as to violate anybody's rights of due process.
However, after I have ruled , and if it appears now to
be the ruling in granting the motion , I will indicate now
that, should I grant the motion , Counsel has all the time
he feels necessary within reason to prepare his Answer
to the amendments made and to prepare such additional
portions of his defense as may be needed to meet the
allegations in the Complaint.
With that assurance to Counsel and on the basis of the
reasons which I have given ... I grant the motion to
amend the Complaint in the respects requested by Mr.
Slaughter on behalf of General Counsel.
5
At this time I reaffirm these rulings which I made at the
hearing for the reasons given and restated above.
Immediately thereafter at the hearing, by way of extension
of my remarks , I stated:
I do not mean to quibble or quarrel with you, Mr.
Canafax, but you do understand that, insofar as this
particular Trial Examiner is concerned in this particular
case, you will have all the reasonable time necessary to
prepare an Answer to the additional items introduced in
the Complaint . Insofar as I am concerned , you will have
a reasonable opportunity by way of time to prepare your-
self to meet not only the new allegations but to prepare
the defense which you allege you need.
Thereafter Attorney Canafax, by way of oral answer , denied
the allegations of the complaint as amended and offered to file
a written answer which I found it unnecessary to require of
him.
Following the amendments of the complaint on July 21,
the only additional testimony adduced by counsel for the
General Counsel pertained to the interrelationships between
Macke and Wash -O-Matic. The two witnesses recalled for
this purpose were Employee Gill and Macke 's president,
Laubgross , both of whom had previously testified while At-
torney Keiler was present . They remained throughout the
entire hearing thereafter.
Respondents ' defense consumed the afternoon of July 21
and all day July 22 . Because Attorney Keiler was absent on
a Board matter in Louisiana and was not then available to
testify respecting conduct attributed to him by witnesses who
had testified on the first 2 days of the hearing , an adjournment
to August 5 was requested and granted for the purpose of
taking his testimony.
At the resumed hearing on August 5, Attorney Keiler
appeared and represented both Respondents . On behalf of
Respondent Macke he rested his case. On behalf of Respond-
ent Wash -O-Matic he moved that counsel for the General
Counsel
put on his direct examination one more time so that I can
adequately cross-examine in regard to my new assign-
ment as counsel for Wash-O -Matic.
Conscious of the fact that Keiler had been present throughout
the entire examination of General Counsel 's witnesses as it
related to substance of the unfair labor practices alleged, that
Keiler by his own admission during the course of argument
on the motion had already read the stenographic transcript
of the hearing to that point, and that the two witnesses, Gill
and Laubgross , who had testified on July 21 in Keiler's ab-
sence were then present in the court room and available had
Keiler specifically requested their recall , I denied his motion
that the case-in-chief be, in effect, retried. Whereupon Re-
spondent Wash-O -Matic rested and the hearing was ad-
journed sine die, pending the receipt of briefs which I have
since considered.
Conclusions
As Respondents state in their briefs the failure to join an
indispensable party to an action could effectively foreclose
action against any of the parties and result in the dismissal
of a complaint . Based on the findings I have already made as
to the integrated nature of the two corporations here the
affairs of Wash-O-Matic are clearly "so inter -related and in-
ter woven ... as to make it an essential party to this proceed-
ing."" Therefore , it was not only appropriate but necessary
" Don Juan Co ., Inc., and Don Juan, Inc., 79 NLRB 154, 155 , enfd. 178
F.2d 625 (C.A. 2). See also N.L.R.B . v. Federal Engineering Co., 153 F.2d
233 (C.A. 6).
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that counsel for the General Counsel, upon being appraised
of the true facts, take the steps which would effect the neces-
sary joinder. This he did as the nature of the relationship
between the two first became apparent at the hearing and
after the Union sought to join Wash-O-Matic by the filing of
the charge agaist it.
Respondents do not dispute this joinder. They strenuously
urge it in their brief. Their complaint is that it is untimely.
But geared to the circumstances here, however, many of them
of Respondents' own creation, what Respondents are actually
saying is that because the need for joinder of parties did not
become evident soon enough it cannot be effected at all.
Quite apart from its inherent contradictions this argument,
it seems, places too high a premium on clairvoyance and
secrecy. For the record is clear that the details of the merger
of Wash-O-Matic with Macke were not available to the Gen-
eral Counsel during the investigatory stages of the proceed-
ing. Moreover, the examination of the witnesses and the pro-
curement of documentary evidence in an effort to develop
evidence of the nature of these organizations during the hear-
ing proceeded at a most discouraging pace and required an
extensive adjournment to eventually accomplish it. So, when
the joinder of a party is sought after such effort and that
joinder has been permitted it certainly cannot then be
branded as late or untimely. Indeed to accept such an argu-
ment would encourage a suppression of evidence. I therefore
reject it. On the contrary I would find that under the circum-
stances present at and before the hearing the joinder of Wash-
O-Matic as an essential party to this proceeding was timely,
having been vigorously sought as soon as its relationship to
Macke was made known to counsel and could be amply
explored.
What remains to be considered is whether this timely,
essential joinder of Wash-O-Matic was, as Respondent
claims, lacking in adequate notice and due process. My re-
marks in this area must of necessity be directed to Attorney
Keiler, who characterizes himself as the belatedly assigned
counsel for Wash-O-Matic, because it is his associations with
the case and the arguments raised by him both at the hearing
and in the Wash-O-Matic brief filed under his signature with
me which gives rise to the issue.
I have expressed myself in this area as I ruled on the several
motions directed to the joinder of Wash-O-Matic and the
amendment of the complaint (supra). At the expense of repe-
tition the intensity of the arguments raised requires a further
elaboration. But I must make it clear at the outset that I am
not disposed to engage in legal charades.
Attorney Keiler sat before me at counsel table for the 2 full
days during which the General Counsel's case-in-chief, ex-
cepting only the details of corporate merger, was put into
evidence. And during this period he actively assisted his asso-
ciate in the trial of the matter. In the period of adjournment
which followed it was Attorney Keiler, who, according to
record statements, negotiated with Attorney Slaughter in be-
half of the General Counsel the stipulations relative to the
corporate structure on which much of my finding are based
(supra). And well in advance of the final resumption of the
hearing the complete transcript of the hearings to date was
available to all parties and their representatives, including
Attorney Keiler.
Wash-O-Matic's president, Marvin Laubgross, and its vice
president, John Hiortdahl, were both present at counsel's
table throughout the entire hearing and both testified at
length not only with respect to the unfair labor practices
alleged but also with respect to the nature of the two corpora-
tions and the details of their merger. Early in the hearing both
had been identified as officers in Wash-O-Matic and indeed
it was Laubgross' testimony, on the first day of the hearing,
which for the first time disclosed the close relationship that
existed between Wash-O-Matic and Macke. Thus Laubgross
was called as a witness by counsel for the General Counsel
for the purpose of obtaining the company payroll requested
by supoena duces tecum. In the course of questioning to verify
the status of individuals believed to be employees of Macke
and the proper subject of representation by the Union, Laub-
.gross was asked to identify two individuals actually known to
be employees, Turkette and Vanderhoof. Laubgross, in a se-
ries of answers, denied that either was an employee of Macke,
only to admit as to one employee, after a specific question by
me, "Well, who is he an employee of?" that the employee
worked for Wash-O-Matic, an entity not previously alluded
to or known to the record. This is the genesis of Wash-O-
Matic's belated entry into the case.
There remains one further consideration of representation
of Wash-O-Matic at the hearing. Attorney Canafax was
present throughout the hearing and ably and effectively repre-
sented all parties' interests adverse to either the original or to
the amended complaint, including the interposition of an oral
answer denying the allegations of the amendments. I there-
fore reject any suggestion that Wash-O-Matic suffered in any
manner due to Attorney Keiler's absence. Therefore, I will
not accept as accurate such statements made to me by Attor-
ney Keiler as, "On August 5 counsel for Wash-O-Matic made
his initial appearance in the proceedings," or "Wash-O-Matic
was not represented by counsel, and therefore was unable to
object to General Counsel's motion," or that "Wash-O-Matic
was never afforded an opportunity to cross-examine or even
to be represented at the time that the evidence was pre-
sented."
Under all of the circumstances I have detailed above I am
persuaded that any handicap under which Wash-O-Matic or
its counsel may have labored may fairly be said to have been
self-created. It is inconceivable that a serious argument will
be made that those who represented both parties and were
privy to all that transpired with respect to each could claim
their notice of what transpired to be deficient or their rights
to due process to be impaired by a failure to be confronted
with evidence or a lack of opportunity to cross-examine wit-
nesses. Because I deem the further consideration of the facts
and the circumstances surrounding the transactions com-
plained of to be but a belaboring of the obvious I am satisfied
to conclude and find upon the record as it was made that
Wash-O-Matic, a necessary party to this proceeding, received
the most timely notice possible and that the notice was com-
pletely adequate to appraise Wash-O-Matic and its represen-
tatives of unlawful conduct attributed to it. With respect to
the due process afforded it, I am persuaded that Attorney
Canafax provided more than adequate representation to all
parties, that Attorney Keiler was aware or at least should
have been aware of all evidence presented against all respond-
ents, having been present when the bulk of it was introduced
and having admitted to the possession of the transcript of the
hearing, and that adequate opportunity for cross-examination
of witnesses was available not only to Attorney Canafax but
also to Attorney Keiler who was present when all of the
witnesses called by General Counsel testified, among other
items, concerning Keiler's alleged misconduct. And as to the
two witnesses recalled to testify during Keiler's absence they,
Laubgross and Gill, were available in the hearing room on the
final day of the hearing when Keiler was protesting the lack
of opportunity to cross-examine. Certainly as to their particu-
lar testimony, the only testimony which Keiler had not heard,
cross-examination would most certainly have been permitted
had Keiler but requested.
MACKE LAUNDRY SERVICE COMPANY
I do not consider the citation of authority necessary to
support the conclusions I have reached here. I am, however,
constrained to comment on authority cited by Respondents
in opposition to rulings I have already made and have
reaffirmed here.
The United States Supreme Court in Morgan v. U.S., 304
U.S. 1, 26, stated that a hearing fails for adequacy if findings
have been made "after an ex parte discussion with [the
prosecutors] and without according any reasonable oppor-
tunity to the respondents in the proceedings to know the
claims thus presented and to contest them." The circum-
stances of Keiler's assumed knowledge here of what was
transpiring and President Laubgross' continued presence at
the hearing clearly eliminates any analogy between the in-
stant case and the cited one based on the knowledge of the
claims presented and an opportunity to contest them.
In Lane Cotton Mills, 9 NLRB 952, the action found by
the Board to be fatal was a denial of a motion to postpone the
beginning of a hearing requested for the purpose of providing
opportunity to prepare to meet the allegations of an amended
complaint. Unlike this situation the instant case presents a
hearing well under way with all parties present and a full
disclosure made of everything but the detailed of corporate
organization which would go to establish a joinder of the
parties. Nor can it be said here, as there, that full opportunity
was not provided for preparation. As quoted above (supra)
this is precisely what the undersigned did here to provide to
Respondents the protection that was lacking in the cited case.
I therefore consider this case as cited to be inapposite.
In N.L.R.B. v. Jordan Bus Company, 380 F.2d 219, 222-
223 (C.A. 10), notice of joinder of parties found to be inade-
quate was dated 2 days before an adjourned hearing resumed
and was not received until the morning of the hearing. I fail
to see how such a situation can be equated here with a notice
of a resumed hearing given at least 2 weeks in advance, fol-
lowed by a series of negotiations relating to the newly discov-
ered subject matter between the parties and their representa-
tives, including Attorney Keiler who claims that despite the
hearing which followed he and Wash-O-Matic were prejud-
iced by lack of adequate notice.
Equally inapposite but for other reasons, is N.L.R.B. v.
Hopwood Reinning Co., 98 F.2d 97 (C.A. 2). In that case the
joinder of parties was accomplished by the issuing of an
amended charge against a hitherto uncharged employer and
the amendment of the complaint to include the new party
followed forthwith. The case thus brings into issue the scope
of a charge and the validity of amendments to a complaint
against the party not properly charged. There is no such
problem here. The charge filed in June 1970 by the Union
against Wash-O-Matic has never been challenged nor has it
been claimed that amendments based thereon would be im-
proper. As this instant case is an issue of adequacy of notice
and not of pleadings the Hopwood case is of no relevance here.
In summary, therefore, based on the circumstances set
forth herein and as they appear in the record, I conclude and
find that Wash-O-Matic is a necessary party to these proceed-
ings, that it was timely joined, that notice of such joinder was
as timely as the circumstances would permit and completely
adequate, and that its attorneys had full knowledge of the
evidence adduced to support the allegations against it and
ample opportunity to request, prepare for, and conduct such
cross-examination as was deemed necessary.
IV THE UNFAIR LABOR PRACTICES
7
The first expression of interest in self-organization among
Respondents' employees occurred on November 27, 1969,
when employee Woodrow Gill called Walter Waddy, a field
representative of the AFL-CIO, and informed him that a
number of the employees wished to join a union. Thereafter,
on December 4, Waddy met with 12 employees at Gill's home
and discussed fully with them the details of organizing the
men and the benefits and obligations of union membership.
The meeting closed on the understanding that Waddy would
consult with his superiors and then arrange for the represen-
tatives of the appropriate labor organization to meet with
them and proceed with the organizing details. Such a meeting
was held on December 15 in the office of Robert H. Pruett,
representative of Machinist District Lodge No. 67, the Union
herein, at which time authorization cards were signed by all
present and plans were perfected for final organization and a
request for recognition by the employer."
On the day following the first meeting of the employees at
Gill's home employee Price had occasion to be riding on
company business with Jack Hiortdahl, Wash-O-Matic's vice
president and its responsible executive during December. In
the course of a conversation as they rode along Hiortdahl
asked Price what he considered to be a decent wage for a
mechanic. When Price suggested $5.50 per hour Hiortdahl
replied that he thought the amount was high and they dis-
cussed alternative figures. Price then told Hiortdahl that
some of the men had gotten together and had a meeting about
wages and conditions. To which Hiortdahl replied, "Yes, I
know. It's about the Union." He then told Price that a union
would do them no good and that he did not think that they
would get a union into the Company. He concluded the con-
versation saying that the men would be better off if they got
all of their grievances together as a group and came to him
and talked to him, leaving the Union alone."
Thereafter, on December 12, Foreman Hill sought Em-
ployees Gill and Price and directed them to report to Presi-
dent Laubgross' office. As each man reported as directed he
was interviewed by Hiortdahl, vice president of Wash-O-
Matic, and Isadore Abrams, vice president of Macke. When
Gill appeared Abrams stated that he wanted to place him in
a new job designated as Foreman of Planning and Installation
for which he would be paid a weekly salary $175. Gill stated
that he was not interested in becoming a foreman, to which
Abrams replied that this was the only job they had open for
him. Gill then asked for time to think about it but was told
he could not have any time because Abrams had to attend a
meeting. Abrams then gave him a paper to sign, telling him
to take it or leave it." The paper addressed to Gill and signed
by him and Hiortdahl for Respondents stated as follows:
" The foregoing is the credited and mutually corroborative testimony of
Union Representatives Waddy and Pruett and Employees Gill and Price.
" The credited testimony of employee Price corroborated in substance
by Hiortdahl-except only that Hiortdahl described the meeting as a
"party" and denied that in the course of the conversation he used the word
"Union." I do not credit this denial.
Nor do I rely on Hiortdahl's testimony generally. I have observed him as
a witness and have considered his extensive testimony. It was replete with
hesitation, evasive answers, and contradictions and lacking in a knowledge
concerning events and operations with which a working vice president
should be expected to be familiar. For these reasons I am not disposed to
credit Hiortdahl except where his testimony constitutes an admission
against his own or the Respondents' interests, is corroborated by credible
witnesses , as here , or relates to an uncontroverted area within his special
competence.
" The credited testimony of employee Gill.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is to confirm our understanding that you have ac-
cepted the position of Foreman, Planning and Installa-
tion of New Existing Laundry Areas, effective Saturday,
December 13, 1969.
Employee Price was next summoned into the office as Gill left
and Price 's experience paralleled Gill 's as he too was offered
a new position-Foreman Parts and Inventory Control. It
was Hiortdahl who acted as spokesman this time, offering
Price the opportunity to be taken off the timeclock and re-
ceive a weekly salary of $165. He would be required to work
on some Saturdays and evenings , however , until the reorgani-
zation of the two companies had been completed . When Price
demonstrated to Hiortdahl that he could make more money
on his present hourly based job the latter , after some compu-
tation , offered Price an additional $5 per week. When Price
asked for time to think it over and to discuss it with his wife
Hiortdahl told him that he had to have an answer right away
and that if he did not accept the job there would be no other
job available for him in the organization . Accordingly, Price
and Hiortdahl signed a statement similar to Gill's and read-
ing as follows:"
This is to confirm our understanding that you have ac-
cepted the position of Foreman , Parts and Inventory
Control, effective Saturday, December 13, 1969.
During the next half hour Gill and Price discussed the
situation together and decided to request that the papers each
of them had signed be returned to them . To this end when
next they met Vice President Hiortdahl a few minutes later
Price, speaking for both of them, told him that they had
changed their minds about accepting the new job and asked
for the papers they had signed . Hiortdahl told them that he
did not think he could get the signed papers back , that both
of them had a lot of potential with the Company , but that if
the Union got in he would have to treat everyone alike.
Suggesting that they forget about the Union he assured them
that working conditions would improve if he were given "a
little bit more time." Price and Gill grudgingly accepted Hi-
ortdahl 's decision in the matter and walked off.16
By December 22, the Union had succeeded in enlisting a
substantial number of the employees and on that date wrote
to Respondent Macke requesting it to bargain with it as the
representative of the employees . It received no reply."
A week later, on December 30, Vice President Abrams
communicated with both Gill and Price and told each of
them that they were expected to report back to the office for
an interview on the following morning and if they failed to
do so it would be their "death certificate ." Accordingly, on
December 31, each man reported in turn to the office and was
interviewed by Attorney Keiler in the presence of President
Laubgross . It appears from the credited and undenied tes-
timony of both Gill and Price that Keiler 's interrogation of
and statements to each of them were identical.
Keiler opened his interview in each case by accusing the
employee of "going around and trying to get people to sign
union cards ," an accusation which they each denied to Keiler
" The credited testimony of employee Price.
The mutually corroborative testimony of Gill and Price. Hiortdahl's
version of this encounter agrees except that he denies any reference to the
Union, for reasons previously stated I reject this denial.
" There is no allegation of a refusal to bargain presently before me.
Subsequent to its request to bargain the Union filed with the Board its
petition in Case 5-RC-7117 for a representation election among the em-
ployees . Upon the filing of the charges in the instant case alleging a refusal
to bargain in violation of Sec. 8(a)(5) the petition for an election was with-
drawn without prejudice to the Union's right to refile it at some future date.
During the course of the hearing the allegations in the complaint which
related to a violation of Sec. 8(a)(5) were withdrawn at the request of
counsel for the General Counsel.
at the time, while frankly admitting at the hearing that they
had actually solicited cards. Keiler then asked each of them
if they did not know that foremen and supervisors were not
permitted to participate in union activities and were not pro-
tected by the Union . Price, in his interview , replied by argu-
ing with Keiler that he was not a supervisor because he did
not have requisite authority . Gill did not answer to this in-
quiry. Next Keiler asked each man to give him the names of
the employees who had signed union organization cards and
both refused to do so. When Gill refused Keiler likened his
refusal to a situation where a named football player refused
to give his coach information concerning a team on which he
had previously played . In repeating his refusal to give the
names Gill told Keiler that he was not the named player, and
that they were not playing football . Whereupon Keiler re-
plied that if Gill did not comply with his request for the
names "they would probably dismiss" him.
When Price was asked by Keiler for the names of the
employees he had signed up Price told him that before he
made any statement he would like to consult a lawyer . Keiler,
stating that they did not have time for this, told him that his
job was in jeopardy and that if he did not cooperate with him
by providing the requested information he might very well
lose his job. Price continued in his refusal and left.
Within 5 minutes after their interviews with Attorney
Keiler, Vice President Hiortdahl sent for Gill and Price in
turn . Gill credibly and briefly described his meeting by stating
that Hiortdahl called him into Laubgross ' office and told him
that he would have to terminate him. Price 's credible account
of his termination was more extended . Hiortdahl first asked
him if he did not know it was against the law for foremen to
participate in union activities. And Price 's reply was that he
had been promoted only to keep him from participating in the
Union. The discussion ensued as to Price's failure to cooper-
ate with Keiler and a repetition by Hiortdahl of Keiler's
original statement that this failure to cooperate would cost his
job. At about this time Hiortdahl consulted with President
Laubgross who was standing in the hallway, about 15 feet
away. Upon his return he informed Price that he was fired.
B. The Nature of Gill's and Price's "Promotion"
Determinative of the supervisory status claimed to be
vested in Employees Gill and Price by Respondent 's person-
nel action of December 12 is the actual duties performed or
to be performed and not merely a recited catalogue."
Hiortdahl claims to have informed Gill that he would have
the installation crew under his direct control , that they would
report directly to him, and that he would have the authority
to recommend their hiring , firing, and wage increases. Addi-
tionally Hiortdahl stated that Gill would be responsible for
the layout of new and renovated laundry rooms in apartment
houses served by the Respondents. Hiortdahl also claims to
have informed several installer -employees , including em-
ployees Conte and Voss, that they would work under Gill's
supervision . Quite apart from Gill's denial that this authority
was stated to him by Hiortdahl , a denial which I credit, and
also apart from the fact that I do not credit Hiortdahl gener-
ally (supra) and that neither Voss nor Conte were called to
verify that they were claimed to have been told, it is still Gill's
duties, assignments, and activities following the so-called pro-
motion that are determinative and not what he was told. Thus
'" It is well established that a rank - and-file employee is not transformed
into a supervisor merely by investing him with a " title and theoretical power
to perform one or more enumerated supervisory functions ." N.L.R.B. v.
Southern Bleachery and Print Works, 257 F.2d 235,239 (C.A. 4), cert.
denied 359 U.S. 911. See also Ohio Power Company v. N.L.R.B., 176 F.2d
385 (C.A. 6).
MACKE LAUNDRY SERVICE COMPANY
he credibly testified that the installion and service work which
he had done prior to December 12 was identical to that
performed thereafter . In this respect I am not persuaded by
the three instances of supervision referred to me by Respond-
ents. These three occasions , the only ones relied on, involved
a "breaking-in" assignment where Hiortdahl accompanied
Gill to an Arlington apartment house to consider the reorgan-
izing of the laundry room . Gill's credited description of the
incident finds Hiortdahl carrying on all of the conversation
with the resident manager of the apartment and then discuss-
ing with Gill the problems involved in the adding and hook-
ing up one washing machine to be added to those already
installed there ." The second supervisory assignment was to
a location on 39th Street, N.W., Washington. Gill made no
reference to this in his testimony and Hiortdahl, when
pressed to tell what had been done , stated that he did not
know if anything had been done until the installation work
was actually performed 2 weeks after Gill's termination. The
third supervisory assignment cited by Hiortdahl did not
materia ize, the building contractor at the site not being avail-
able to let Gill into the building when he was supposed to
have visited it.
One final factor requires some consideration-Gill's new
salary. When Gill was "promoted" his right to overtime
ceased according to Hiortdahl. A quick computation based
on figures in the record reveal that , considering the average
amount of overtime he would have earned , Gill's raise in pay
under the new arrangement would come to less than $10 a
week.20
Upon the foregoing findings I would conclude that it has
not been established on credible evidence that Employee Gill
was given the supervisory status with which Respondents
claimed he was vested upon his so -called promotion on
December 12.
Employee Price's claimed supervisory status is in no more
favorable posture. At the outset it is to be noted that because
of the recent consolidations of the operations of Wash-O-
Matic and Macke it was essential that there be a certain
amount of reorganization and consolidation of supplies in the
stock rooms of the respective companies. Hiortdahl claims
that after December 12, as a consequence of the integration
of the two toolrooms, the assignment of Price to be in charge
of the new one was really an augmented job, particularly as
it required the assistance of another employee. This man,
Farrell , was identified as being subordinate to Price and the
basis, together with the enlargement of the room , of the newly
created supervisory status. The fact of the matter is, however,
that Hiortdahl admitted that Farrell had worked with Price
prior to December 12, moving the old toolroom to the new
location and setting up the new one, and that he "believed"
Farrell was working with Price between December 12 and 31,
1969, the period when Price was claimed to be a supervisor
on the basis of his supervision of one employee.
The criteria relied on to establish Price's supervisory status
is certainly nebulous. He was in charge of the same kind of
an operation he had always been in charge of, assisted by the
same person , whenever he could be spared , to quote Hiort-
dahl, who had previously helped him. While it is true that
Price was converted from an hourly wage to a weekly salary
it was determined by calculations indulged in as Price and
Hiortdahl testified that Price 's previous wage pay had on
" 1 do not credit Hiortdahl's contrary description of a more complicated
job and of more participation by Gill.
" Gill's new salary was $170 . As a rank-and -file employee his wage rate
was $3 . 50 per hour for a 40-hour week, with an average of 4 hours overtime
weekly at the time and a half rate of $ 5.25 per hour . Thus his average weekly
pay as a rank -and-file employee would have totaled $161.
9
occasion exceeded his newly established salary and, more-
over , he had been told that for a while at least he might have
to work extra hours with no added compensation.21
Upon consideration of all of the foregoi, factors I con-
clude and find that it has not been established on credible
evidence that Employee Price was given the supervisory
status with which Respondent claimed he was vested upon
his so-called promotion on December 12.
C. Conclusion
It is well established that a personnel action , be it a transfer
or promotion to supervisory or nonsupervisory status, that is
effected for reasons related to an employee 's union member-
ship or participation constitutes unlawful discrimination .21
Here the circumstances of the so-called promotions of Gill
and Price are suggestive of something more than improved
operations . Thus, hard upon Gill's contact with the Union
the employees met with representatives of the Union and
discussed organization and thereafter signed authorization
cards at Gill 's and Price 's request . And among these em-
ployees signing cards was Hiortdahl 's brother-in-law, em-
ployee James Turkette.
It was Hiortdahl who actually testified to knowledge of a
"party" being held at which the men discussed wages and
working conditions , information he had gleaned from his
truck ride with Price (supra). Whether on this December 5
trip Hiortdahl identified the gathering of employees as a
"party," or as Price credibly quotes him, "yes, I know. It's
about the Union ," it is clear that he then knew that the men
were engaged in a concerted activity. This evidence , added to
the smallness of the working force which in itself in these
circumstances permit an inference to be drawn of knowledge
of such activity," employee Turkett's close relationship to
Vice President Hiortdahl , and the precipitate personnel ac-
tion which Respondent took with respect to the two organiz-
ing leaders , all make it abundantly obvious that the Respond-
ents were well aware of the union activity around them and
that they took immediate steps to counter it.
Against a backdrop of Respondents ' awareness that Gill
and Price were organizing employees the circumstances
which follow assume a most significant connotation and give
substance to the suspicion that Gill 's "supervisory" status
was a mere illusion punctuated with one assignment where he
remained completely in Hiortdahl 's shadow and two other
assignments that never even materialized (supra). It explains
why the responsibility which Price exercised in the stock
room suddenly mushroomed to "supervisory" porportions as
he continued to do the same job in merely a new and aug-
mented stock room with the same part-time assistance there-
after as he had before. Upon all of the foregoing I conclude
and find that the personnel action which Respondents took
with respect to Gill and Price on December 12 and the fiction
which it maintained thereafter were accomplished for consid-
erations connected with their membership in and their activi-
ties on behalf of the Union and were intended for the ultimate
action which it took thereafter on December 31.24
" The facts herein , unless attributed otherwise, are based on the credited
testimony of Price . For reasons previously stated I do cot rely on Hiort-
dahl's testimony unless specifically noted.
" Benson Wholesale Co., 164 NLRB 536, 543, 548-549 ; Filtors, Inc.,
163 NLRB 1046, enfd. 401 F.2d 434 (C.A. 2); Bernhard Conrad Embroi-
dery Company, 156 NLRB 1056.
" WiesePlow Welding Co., Inc., 123 NLRB 616; L. E. Johnson Products,
Inc., 179 NLRB No. 10.
" L. E. Johnson Products, Inc., 179 NLRB No. 10.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this posture in which I find Employees Gill and Price
on December 31 the interviews which Attorney Keiler con-
ducted in Respondents' behalf and the actions which Re-
spondents took thereafter are discriminatory. What has oc-
curred here, reduced to its simplest terms, is that two
rank-and-file employees who are first invested with fictitious
titles and duties, which I have found to have been for a
discriminatory purpose, are then questioned concerning the
union activity in which they have engaged and are threatened
with discharge if they failed or refused to comply.
Were Gill or Price truly supervisors Keiler's interrogation
and threats may well have been beyond the scope of this
proceeding; but we do not reach that issue here. Price and
Gill were not supervisors, but employees. Because the interro-
gation and accompanying threats to employees as I have
described them have so consistently been found to be unlaw-
ful interference, restraint, and coercion of employees and
their fellows I find that citation of authority in support of
such a proposition is quite unnecessary at this junction.
Moreover, assuming, contrary to the findings that I have
made, that each promotion was actually to a supervisory
status the interrogation and threats would be equally unlaw-
ful. Because no amount of supervisory authority could possi-
bly justify the discriminatory motive which prompted it the
interrogation and threats which follow are not exempt from
the Act's proscription." I accordingly conclude and find that
under all of the circumstances herein the interrogation of
employees Gill and Price and the threats to discharge them
constitute violations of Section 8(a)(1) of the Act.
Needless to say if Keiler's threats to Price and Gill that
they would be discharged if they failed to reveal the names
of employees who joined the Union constituted unlawful in-
terference, restraint, and coercion, certainly the implementa-
tion of such threats could be no less. Nor does it require any
extensive reconsideration of the background here to conclude
that Hiortdahl's effective implementation of Keiler's threats
by terminating Gill and Price did discriminate against each
of them. Indeed the testimony of all witnesses uniformly
described the discharge of each man as being for his refusal
to divulge the names of the union members. Being employees,
and not supervisors exempt from the process of the Act, this
is an obvious discrimination for reasons of union membership
and activity. I accordingly conclude and find that Respond-
ents have thereby violated Section 8(a)(3) of the Act, as well
as additionally interfering with them and the other employees
and restraining and coercing them in violation of Section
8(a)(1).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondents set forth in section IV,
above, occurring in connection with the Respondents' opera-
tions described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
VI. THE REMEDY
I have found that the Respondents, by interrogating and
threatening their employees, have interfered with, restrained,
and coerced them in violation of Section 8(a)(1) of the Act
and by terminating these employees for their failure to di-
vulge the answers to the questions propounded to them with
respect to the membership of other employees have thereby
15 Benson Wholesale Co., supra; Filtors Inc., supra; Bernhard Conrad
Embroidery Company, supra.
discriminated against them in violation of Section 8(a)(3). I
shall accordingly recommend that Respondents cease and
desist therefrom and because of the gravity of their conduct
shall also recommend that they cease and desist from infring-
ing in any other manner on the rights of the employees guar-
anteed by the Act.26
Affirmatively I shall recommend the reinstatement of
Woodrow Gill, Jr., and Edwin B. Price with backpay to be
computed in the customary manner," with interest at the rate
of 6 percent per annum.28
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, I
recommend" that Macke Laundry Service Company of D.C.
and Wash-O-Matic Service Company, Respondents herein,
their respective officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating their employees concerning
their fellow employees' membership in or activities on behalf
of District Lodge No. 67, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, or any other
labor organization.
(b) Threatening employees with discharge as a conse-
quence of their failure or refusal to divulge the names of
employees who have joined the aforesaid Union.
(c) Discouraging membership in the above-named Union
by discharging or otherwise discriminating against employees
for their activities in behalf of such Union.
(d) In any other manner interfering with, restraining, or
coercing its employees or unlawfully discriminating against
them in the exercise of rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies:
(a) Offer reinstatement to Woodrow Gill, Jr., and Edwin
B. Price to their former or substantially equivalent employ-
ment and make them whole for any loss of compensation
suffered as a result of Respondents ' discrimination against
them.
(b) Post at their Beltsville, Maryland, plant copies of the
attached notice marked "Appendix."10 Copies of said notice,
on forms provided by the Regional Director for Region 5,
after being duly signed by the Respondents, shall be posted
immediately upon receipt thereof in conspicuous places, and
be maintained for a period of 60 consecutive days. Reasonable
steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in writing,
within 20 days from the receipt of the Trial Examiner's Deci-
sion, what steps they have taken to comply therewith."
6 N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 437.
" F. W. Woolworth Co., 90 NLRB 289.
Isis Plumbing & Heating Co., 138 NLRB 716.
° In the event no exceptions are filed as provided by Sec. 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 Sec. 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."
31 In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 5, in writing, within' 20 days from the date of this Order, what steps
the Respondents have taken to comply herewith."
MACKE LAUNDRY SERVICE COMPANY
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate you about your
fellow employees ' membership in or activities on behalf
of District Lodge No. 67, International Association of
Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization.
WE WILL NOT threaten you with discharge if you
refuse or fail to divulge the names of employees who
have joined the above-named Union or any other labor
organization.
WE WILL NOT discourage membership in or activities
on behalf of the above-named Union or any other labor
organization by discharging any of our employees or
otherwise discriminating against them.
WE WILL offer reinstatement to Woodrow Gill, Jr.,
and Edwin B. Price to their former or substantially
equivalent employment , dismissing if necessary any re-
placement hired since their discharge , and WE WILL
make each of them whole for any loss of pay incurred as
a result of our discrimination against them.
WE WILL NOT in any other manner interfere with our
employees or restrain or coerce them in the exercise of
rights guaranteed them by the National Labor Relations
Act, as amended.
11
All our our employees are free to become or refrain from
becoming members of the above Union or any other labor
organization.
Dated By
Dated By
MACKE SERVICE
COMPANY OF D.C.
(Employer)
(Representative) (Title)
WASH-O-MATIC
SERVICE COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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, Federal
Building Room 1019, Charles Center, Baltimore , Maryland
21201, Telephone 301-962-2822.