Modern Cleaners Co.

National Labor Relations Board - Board Decisions

Jul 8, 1952

100 N.L.R.B. 37 (N.L.R.B. 1952)

MODERN-CLEANERS COMPANY 37
SENTATIVE GROUP, the GRIEVANCE COMMITTEE, the JOB EVALUA-
TION COMMITTEE, the CLOTHING COMMITTEE, the BENEFIT FUND
COMMITTEE, and the ELECTION COMMITTEE, or dominate or inter-
fere with the formation or administration of, or contribute finan-
cial or other support to, any other labor organization of our
employeesr
WE WILL NOT recognize or in any other manner deal with the
above-named Group or Committees, or any successor thereto, as
the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of em-
ployment.
WE WILL NOT otherwise interfere with the representation of our
employees through a labor organization of their own choosing.
WE HEREBY disestablish the EMPLOYEE REPRESENTATIVE GROUP,
the GRIEVANCE COMMITTEE, the JOB EVALUATION COMMITTEE, the
CLOTHING COMMITTEE, the BENEFIT FUND COMMITTEE, and the
ELECTION COMMITTEE, as the representatives of any of our em-
ployees for the purpose of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment.
SHARPLES CHEMICALS, INC.,
Employer.
Dated -------------------------- By --------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
LAURA GIALLANZA , AN INDIVIDUAL , D/B/A MODERN CLEANERS COMPANY,
QUALITY CLEANERS COMPANY, AND MAY CLEANERS COMPANY and
LOCAL No. 65 , INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. L . Case No.
3-CA-f98. July 8,1952
Decision and Order
On December 12, 1951, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. The Trial Examiner also found
100 NLRB No. 17.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent had not engaged in certain other unfair labor
practices and recommended that those allegations of the complaint
be dismissed. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report,2 the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and modi-
fications.
1. Like the Trial Examiner, we find on the record as a whole that
Donald Zirkelbach was discharged because of his union and concerted
activities in violation of Section 8 (a) (1) and (3) of the Act, and not
for the reasons assigned by the Respondent.
2. We find, as did the Trial Examiner, that the Respondent dis-
charged employees Kinne, Wyckoff, Gerould, Carey, Coogan, Lodato,
and Furlong because of their protected union and concerted activity
in refusing to work unless Zirkelbach and Stuart were reinstated, and
therefore violated Section 8 (a) (1) and (3) of the Act.' We find
it unnecessary, however, to adopt the Trial Examiner's speculative
findings with respect to the G. C. Conn case.
3. In concluding that the Respondent discriminated against Ivan
Colegrove, the Trial Examiner found that he was not a supervisor,
as urged by the Respondent. We do not agree.
The record shows that Colegrove was classified by the Respondent
as foreman of the wool and silk finishing department; that he re-
ceived the same rate of pay as Edward Brown, the foreman of the
drivers and whom the Trial Examiner found to be a supervisory em-
ployee; and that Colegrove's next job with a competitor of the Re-
spondent was that of shop superintendent; this, according to Cole-
grove's testimony, entailed the "same sort of work" he had performed
with the Respondent. In view of the foregoing and the absence of
any countervailing evidence, we find that Colegrove was a supervisor
within the meaning of the Act. We therefore further find that, under
"Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Murdock and Peterson],
2 The Intermediate Report contains certain typographical errors with respect to the
following citations , which are hereby corrected : p. 22, footnote 30, Capital City Candy Co.,
•71 NLRB 447; Twin City Milk Producers Assn., 61 NLRB 69; Schramm and Schmeig Com-
pany, 67 NLRB 980.
N. L. R B. v Kennametal, Inc., 182 F. 2d 817 (C A 3) ; N. L. R. B v. Tovrea Packing
Ca, 111 F. 2d 626 (C A 9) ; N. L. R. B. v. National New York Packing d Shipping Co , Inc ,
86 F 2d 98 (C A 2) : American Manufacturing Company of Texas, 98 NLRB 226.
MODERN CLEANERS COMPANY 39
the circumstances of this case, Colegrove's discharge was not violative
of the Act .4
4. We agree with the Trial Examiner that the Respondent violated
the Act in soliciting individual strikers to abandon the strike and re-
turn to work. In so agreeing, we are satisfied that such solicitation
constituted an integral part of a pattern of illegal opposition to the
purposes of the Act as evidenced by the Respondent's entire course of
conduct 5
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Laura Giallanza, an indi-
vidual, d/b/a Modern Cleaners Company, Quality Cleaners Company,
and May Cleaners Company, Hornell, New York, and her agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local No. 65, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, A. F. L., or any other labor organization of her employees,
by discriminating in regard to their hire or tenure of employment or
any term or condition of employment.
(b) Dominating and interfering with the formation and admini-
stration of Modern Cleaners Employees Association, or the formation
and administration of any other labor organization of her employees,
and from contributing support to it or to any other labor organization
of her employees.
(c) Interrogating her employees concerning their union or con-
certed activities; 'sponsoring petitions which provide for employees
to reject their collective bargaining agent; granting wage increases
to striking employees during a strike; and soliciting individual em-
ployees to discontinue or abandon strike activity.
(d) In any other manner interfering with, restraining, or coercing
her employees in the right to self-organization, to form labor organi-
zations, to join or assist the above-named labor organizations or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in collective bargaining or
other mutual aid or protection, or to refrain from any or all of such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
4N. L R. B v. Edward G Budd Manufacturing Co., 169 F 2d 571 (C. A. 6) cert. denied
335 U . S. 908 ; Palmer Manufacturing Corporation, 94 NLRB 1477; Accurate Threaded
Products Company, 90 NRLB 1364 ; Pacific Gamble -Robinson Company, 88 NLRB 482.
e See The Texas Company, 93 NLRB 1858; American Manufacturing Company of Texas,
98 NLRB 226.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of employment, as authorized in Section 8 (a) (3) of the Act,
as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Donald Kinne, Harry E. Wyckoff, Richard Gerould,
Henry L. Carey, Donald Zirkelbach, John L. Coogan, Salvatore E.
Lodato, and Robert Furlong, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make whole each of
said employees in the manner set forth in section V of the Intermediate
Report, entitled "The Remedy," for any loss of pay they may have
suffered by reason of the Respondent's discrimination against them.
(b) Disestablish and withdraw all recognition from Modern Clean-
ers Employees Association as a representative of any of her employees
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, and completely dis-
establish said organization as such representative.
(c) Post at her plant in Hornell, New York, copies of the notice
attached hereto and marked "Appendix A." s Copies of such notice,
to be furnished by the Regional Director for the Third Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS.FURTHER ORDERED that the complaint bet and it hereby is, dis-
missed, without prejudice, insofar as it alleges that the Respondent
discriminated in regard to the hire and tenure of employment of
Wayne Stuart.
IT IS ALSO FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the Respondent discriminated in
regard to the hire and tenure of employment of Ivan Colegrove,
Marian Albert, Lena Rosell, Esther Moran, Mildred Brown, Beatrice
ReCouper, and Duane Powers.
s In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
MODERN CLEANERS COMPANY
Appendix A
NOTICE TO ALL EMPLOYEES
41
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I WILL NOT interrogate employees concerning their union or
concerted activities; sponsor petitions which provide for em-
ployees to reject their collective bargaining agents; grant wage
increases to striking employees during a strike; and solicit in-
dividual employees to discontinue or abandon strike activity.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist LOCAL No. 65,
INTERNATIONAL B ROTHERHOOD OF TEAMSTERS, CHAUFFEURS; WARE-
HOUSEMEN AND HELPERS OF AMERICA, A. F. L., or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
I WILL offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Donald Kinne Donald Zirkelbach
Harry E. Wyckoff Salvatore E. Lodato
Richard Gerould Robert Furlong
Henry L. Carey John L. Coogan
I HEREBY disestablish MODERN CLEANERS EMPLOYEES ASSOCIA-
TION as the representative of any of my employees for the purposes
of dealing with me concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of em-
ployment, and I will not recognize it or any successors thereto
for any of the above purposes.
I WILL NOT dominate or interfere with the formation or ad-
ministration of any labor organization or contribute financial
or other support to it.
All my employees are free to become or remain members of LocAL
No. 65, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. L., or any other labor
organization . I will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any such
labor organization , except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
LAURA GIALLANZA, an individual, d/b/a
MODERN CLEANERS COMPANY , QUALITY CLEANERS
COMPANY, AND MAY CLEANERS COMPANY,
Employer.
Dated--------------------------- By---------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Local 65, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., herein called the
Teamsters, the General Counsel of the National Labor Relations Board, herein
called the General Counsel and the Board, by the Regional Director for the
Third Region (Buffalo, New York), issued a complaint dated January 29, 1951,
against Laura Giallanza, an individual, d/b/a Modern Cleaners Company,
Quality Cleaners Company, and May Cleaners Company, herein called the
Respondent, alleging that the Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that (a) The
Respondent on or about January 3, 1950, did discharge Donald Kinne, Harry E.
Wyckoff, Richard Gerould,' Henry L. Carey, Donald Zirkelbacb, Wayne Stuart,
John L. Coogan, Salvatore E. Lodato, and Robert Furlong, and on or about
January 16, 1950, did discharge Marion Albert, and at all times since these
dates refused and failed to reinstate said employees, for the reason that they
joined or assisted Modern Cleaners Employees' Protective Association, herein
called the Association where feasible, or Local 65 of the Teamsters, or engaged
in concerted activity for the purpose of collective bargaining or other mutual
aid or protection ; (b) the Respondent did on or about January 11, 1950, initiate,
form, sponsor, and promote Modern Cleaners Employees' Association, herein on
occasion called the "Independent," and from on or about January 11, 1950, to date
has assisted, dominated, contributed to the support of, and interfered with the
administration of, the "Independent"; (c) the Respondent by her agents and
' Named as Richard Gerald in the complaint. His real name is Richard Gerould. This
was corrected at the hearing herein by the General Counsel's general motion to have the
complaint conform to the proof as regards minor matters such as names, dates, etc., which
was granted by the undersigned without objection.
MODERN CLEANERS COMPANY 43
supervisory employees, including Charles J. Giallanza, Sr., Charles J. Giallanza,
Jr., Paul Nicholson, Edward Brown, and Ralph Locker, from on or about January
2, 1950, to date has engaged in the following acts and conduct: (1) Interrogated
her employees concerning their union membership and activity; (2) solicited her
employees to abandon a strike or other concerted protective activity and return
to work; (3) granted a pay increase to induce and encourage her employees
to abandon a strike and their other concerted activities and to refrain from
assisting, becoming members or remaining members of the Association ; and
(4) urged and persuaded her employees to join or become members of the "Inde-
pendent" and to refrain from becoming members of or from assisting the Asso-
ciation or the Teamsters; (d) on or about January 5, 1940, the employees
of the Respondent at her Hornell, New York, plant ceased work concertedly
and went on strike, and that the strike was caused and prolonged by the unfair
labor practices of Respondent as described above; (e) subsequent to the
strike described above, the following employees, Ivan Colegrove, Esther Moran,
Mildred Brown, Lena Rosell, Beatrice ReCouper, and Duane Powers applied
for reinstatement to their former or substantially equivalent positions, and that
the Respondent did refuse or failed to reinstate them to their former or sub-
stantially equivalent positions or employment, for the reason that they joined
or assisted the Association, or engaged in concerted activity for the purpose of
collective bargaining or other mutual aid or protection ; and (f) by the
conduct described above the Respondent did interfere with, restrain, and coerce,
and is interfering with, restraining, and coercing her employees in the exercise
of the rights guaranteed to them in Section 7 of the Act, and thereby did engage
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1), (2), and (3) and Section 2 (6) and (7) of the Act.
The Respondent filed an answer on or about February 19, 1951, in which it
admitted certain jurisdictional facts, denied that the charging union and the
Association were and are labor organizations, and denied the commission of
any unfair labor practices.
Pursuant to notice, a hearing was held at Hornell, New York, on March 27,
28, 29, and 30, 1951,2 before the undersigned Trial Examiner. The General
Counsel, the Respondent, the Association, and the Independent were represented
by counsel, and the Teamsters by a lay representative. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. At the conclusion of the case, the Respond-
ent moved to dismiss the complaint, ruling thereon was reserved by the Trial
Examiner. It is hereby denied in part and granted in part as will be indicated
hereinafter. At the same time the General Counsel moved to conform the plead-
ings to the proof as regards names, dates, and other minor variances. It was
granted without objection by the undersigned.
Though given an opportunity, none of the parties desired to present oral argu-
ment at the conclusion of the hearing. The General Counsel and the Respondent
filed briefs with the undersigned. In addition, counsel for the Respondent filed
proposed findings of facts and conclusions based thereon. They are disposed of
hereinbelow.
The undersigned rules as follows on the Respondent's proposed findings of fact :
He accepts Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 21, 23 (a), (c), (d), (e), (f),
2 The delay in the issuance of the Intermediate Report herein was occasioned by the
illness of the Trial Examiner during the months of May, June, July, August , September,
and October.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 27, 31, 33; he rejects 12, 13, 14, 15, 16, 17, 18, 19, 20,3 22, 23 (b), 25, 26, 28,4
30, 32, 34, 35, and all its subdivisions, 36, 37, 38, 40, 41, 43, 44, 45, 46, and- 47.
Proposed findings 24, 29, 39, and 42 are disposed of as follows : 24 is accepted
except as to the last sentence thereof which is rejected; 29 is accepted in part
but that portion thereof beginning with "The fact that she ceased working etc."
is rejected; 39 is accepted except as to Ivan Colegrove; 42 is rejected insofar
as it relates to Ivan Colegrove in proposed finding 39. The Respondent's proposed
"Conclusions of Law" are rejected in their entirety.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is engaged in the retail dry cleaning and laundry business, having
her plant in Hornell, New York. During the year 1949, she maintained 20 pickup
and delivery routes, 15 of which operated exclusively within the State of New
York, 4 of which operated partly in the State of New York and partly in the
State of Pennsylvania, and 1 of which operated exclusively within the State of
Pennsylvania. Hornell is located near the border of the State of Pennsylvania.
In 1949 the Respondent employed 9 drivers. Each of them operated 2 or 3 of
the above routes, making 2 trips weekly on each route. On these trips, they
picked up the work to be serviced by Respondent and brought it to Respondent's
plant in Hornell. The work is processed there and then delivered by the drivers
on their second trip of the week. In some locations, the Respondent maintained
what are known as "drops" or "agencies," that is various stores, etc., operating
on a commission basis, where laundry work was left by residents of such locations
and from which the drivers picked up the work, took it to Hornell for processing,
and when finished returned it to the proper location. These "drop" or "locations"
constitute but a small portion of the Respondent's business, the major portion
thereof resulting from pickups by the drivers from residences of their customers
on the various routes above described.
Respondent owns certain trucks which are operated in the name of Quality
Cleaners Company. The latter Company does the same type of work as does
Respondent Modern Cleaners and all its work is processed at the same plant.
Charles Giallanza, Jr., son of Respondent Laura Giallanza, owns and operates five
retail stores in New York under the name May Cleaners Company. The income
received from both of the above-named Companies is included in the income fig-
ures hereinafter set forth.
During the calendar year of 1950 the Respondent's gross income from the
sources described above was $164,887.43, or which $31,921.16, or 19.3 percent,
was derived from customers in the State of Pennsylvania. In 1950 the Respond-
ent's gross income from the same sources was approximately $131,000, of which
$25,283 was derived from customers in the State of Pennsylvania, or approxi-
mately 19.3 percent.
The above facts concerning the Respondent's business for the years 1949 and
1950 are premised on the pleadings, stipulation of the parties, and the "Findings
E As a whole, proposed finding 20 is not in accord with the testimony adduced at the
hearing herein and the undersigned's findings based thereon.
4 The fact that Furlong may or may not have been a member of either the Association
or the Teamsters is immaterial since the complaint also alleges "concerted activities."
Hence, this allegation is sufficient to cover Furlong's situation. (See J. B. Wood, an indi-
vidual, d/b/a Wood Manufacturing Company, et al., 95 NLRB 633.)
MODERN CLEANERS COMPANY 45
of Fact" as to the Respondent's business in the case of "Laura Giallanza, doing
business under the trade name and style of Modern Cleaners Company and Chauf-
feurs , Teamsters , Warehousemen & Helpers, Local Union No. 65, AFL and Mod-
ern Cleaners Employees ' Association ," before "The State Labor Relations Board,"
13 SLRB No. 72, Case No. W. U.-654. The New York State Labor Relations
Board dismissed the above case, on April 7, 1950, "without prejudice to refiling
with this Board in the event that the National Labor Relations Board declines
jurisdiction."
In view of the foregoing and upon the record as a whole, the undersigned is
convinced and finds that the Respondent herein is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
At times the flow of commerce across the State lines of New York and Pennsyl-
vania is small , but even so it constitutes almost 20 percent of the total gross of
the Respondent's business , and is in excess of $25,000 for the years 1949 and
1950 . This, however , is of no moment in view of the Board 's recent declaration
of policy wherein it set $25,000 per annum as the minimum figure before it will
assert jurisdiction . Since $25,283 is in excess of that amount , jurisdiction of
the Board is established . Again, the Board on several occasions has asserted
jurisdiction over businesses similar to that of the Respondent herein .'
At all times material herein the Respondent employed approximately 30
persons.
II. THE OEGANIZATIONS INVOLVED
Upon the entire record in the instant case the undersigned finds that the
organizations listed herein below were organized for the purpose of and in fact
functioned as vehicles for the Respondent 's employees to bargain collectively
with her on matters concerning their wages , hours, grievances , and other con-
ditions of employment , and hence are labor organizations within the meaning of
Section 2 (5) of the Act: (a) Local 65, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen , and Helpers of America , AFL; (b) Modern Cleaners
Employees Protective Association ; ( c) Modern Cleaners Employees Association.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Donald Zirkelbach' and Wayne Stuart
1. Respondent's organizational setup
As indicated above, the Respondent is a privately owned company with its
principal place of business in Hornell , New York. In addition it operates two
branch offices at Wellston and Cannister, New York. Hornell is near the Penn-
sylvania State line and in the course of its business the Respondent operates
several routes in Pennsylvania . At all times material herein the Respondent
employed eight driver-salesmen. It was their job to service the various routes
at regular intervals , solicit new business , call on established customers, pick up
clothing to be dry cleaned and laundered, and to deliver and collect for the serv-
ices rendered . The trucks are owned by the Respondent.
The Respondent's supervisory hierarchy during the period of time involved
herein was as follows : Laura Giallanza, the nominal owner of the Company ;
Charles Giallanza, Jr., her son, and business manager ; Charles Giallanza, Sr.,
° See N. L. R. B. v. White Swan Co, 118 F. 2d 1002, cert. den. 314 U. S. 648.
° The Respondent's records show a "Gerald" Zirkelbach first went to work on October 17,
1949. This name appears on the payrolls for the weeks ending October 22 and 29, 1949.
(See General Counsel's Exhibit No. 10 .) Thereafter the name of Donald Zirkelbach
appears. From the record as a whole the undersigned Is convinced and finds that the
name "Gerald" is erroneous and should have read "Donald "
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her husband, who while not one of the registered owners of the Company is never-
theless active in its management, which will be shown in more detail hereinafter;
Paul Nicholson, plant superintendent ; and Edward Brown, route manager in
charge of the driver-salesmen.
The Respondent's plant in Hornell, New York, is a 2-story building. On the
first floor it has a collecting and delivery station where local customers bring
their garments for dry cleaning and laundering. Upstairs is located the main
plant and the business office. At all times material herein Margaret Brown had
charge of the downstairs station, and Sabra C. Wing the upstairs business office.
In all the Respondent had in her employ at this time approximately 32 employees
including clericals but excluding those in a supervisory capacity.
2. The discharge of Donald Zirkelbach'
Zirkelbach was hired by the Respondent sometime around the middle of
October 1949 as a driver-salesman He was assigned to "Route No. 2" which
includes routes in both New York and Pennsylvania. During the first 2 weeks
of his employment he went with Edward B. Brown, who at the time was assigned
to Route No. 2. About November 1, 1949, the route was turned over to him, and
from that date until his discharge on January 2, 1950,8 he was on his own. Brown
was promoted to route supervisor after be turned the route over to Zirkelbach.
Thereafter, as was the custom, Brown made periodic trips with Zirkelbach to
check on his work and to assist him in any manner that he could. Brown on
several occasions while he was on the route with Zirkelbach, mentioned to him
the fact that it was the policy of the Respondent to secure signed contracts from
its driver-salesmen for their mutual aid and protection. At the same time Brown
and Giallanza, Jr., were discussing the contract with other driver-salesmen.
The contract in question is a standard one and used throughout the dry-cleaning
industry. Its pug pose is obvious. It is drafted in language that will protect an
employer in the event that a driver quits and then solicits business on his former
route for a competitor. The Respondent had had contracts with its driver-
salesmen in the past and at least one of her drivers, Salvatore Lodato, was then
under contract.
In the latter part of December 1949, several of the drivers became concerned
about the Respondent 's insistence on signed contracts and decided to seek the
advice of an attorney in this regard. Accordingly, on Saturday morning, De-
cember 31, 1949, drivers Wayne Stuart and Dick Gerould called on Sherman
Shults, a local attorney , and submitted to him a copy of the proposed contract
for his consideration. On the same afternoon drivers Donald Kinne, Jack
Coogan, and Henry Carey also visited Shults ' office for this purpose. The ques-
tion posed by the drivers to Shults was whether or not the signing of the contract
would be binding upon them and its legal effect, if any. Shults informed them
that he would look up the New York law in this regard and advise them later.
Shortly after the drivers left his office Shults called Stuart and advised that
since five of the drivers had sought his advice as regards the legality of the con-
tract in question , that it might be well to have all the drivers meet with him.
'r Except where such matters as conflicts in the evidence and credibility of witness are
discussed hereinbelow , the findings in this section of the Intermediate Report are made
upon evidence which is either undisputed or which is at variance only as to immaterial
details, or are made upon the preponderance of the reliable, probative , and substantial
evidence in the record considered as a whole.
s The Respondent contends Zirkelbach was discharged December 31, 1949. The under-
signed finds to the contrary for reasons which will 'be shown hereinafter.
MODERN CLEANERS COMPANY 47
As a result of this suggestion a meeting of all the drivers was held in his office
on Monday afternoon , January 2, 1950, and an agreement was signed authorizing
and designating him as their collective bargaining representative to negotiate
with the Respondent on wages and other conditions of employment. At the
same time, at Shults' suggestion , the drivers formed an independent labor or-
ganization . They decided to call the organization "Modern Cleaners Employees
Protective Association" and elected the following officers : Salvatore Lodato,
president , Donald Kinne, secretary and treasurer . In addition to the foregoing,
Shults discussed the Respondent 's proposed contract with the drivers and ad-
vised them that in its present form it was legal and binding upon each driver
who signed it. He also advised them not to sign it until he discussed the matter'
with the Respondent as regards certain modifications and demands which he
felt should be embodied therein.
Shortly after the meeting broke up Shults called Giallanza , Jr., and advised
him that he represented the Respondent 's drivers and wanted to discuss the
proposed contract with him. Giallanza agreed to meet with Shults that same
evening at 8: 30 p. in. Shults' testimony as to what transpired at this meeting,
which the undersigned credits, is set forth herein below.
Q. Did you meet Mr . Giallanza , Junior, at 8: 30?
A. Yes, Mr. Horey, my associate and I met with Mr. Giallanza in my office
at 8: 30.
Q. What transpired at this meeting?
A. Well, he told-I told Mr. Giallanza that I had- the same thing that I
told him on the telephone , that I represented all of the drivers , and that I
wanted to discuss the matters concerning their employment with him, and
he said , "Well, who do you represent ?" And I said, "Well, you know who
I represent. I represent all your drivers ." "Well, what are their names?"
And I said, "I don't think that is important ; if you-" I said, "If you want
to recognize me as their bargaining agent I will show you where they have
signed an authorization for me and we'll compare those signatures on my
authorization with your payroll. But it is only on the condition that you will
recognize me as the agent and enter into a contract with me as agent for
these employees ." (Emphasis supplied.]
Trial Examiner SHAW : Pardon me. Will you establish the date of this
conversation?
The WITNZas : This was Monday afternoon , January 2nd . Monday night,
January 2nd.
Trial Examiner SHAW: Let me see the exhibit.
Q. (Continued ) It was at 8:30 and he said , "Well, what do your men
want ?" And I said, "We had a meeting this afternoon and organized our-
selves into a group," and that we had some demands ; that in view of the
fact that he had submitted a written contract to the boys , they wanted some
other matters put into this contract , and I read off to him 15 demands, 13
or 15 demands , with reference to their employment.
As we continued to discuss the matter he-I asked him if he was willing
to talk over these demands and this contract, and he got mad-that is a
characterization of his temper at that time-he says, "I will be damned if
you are going to run my business . To hell with you. " And he got up and
walked out.
Q. (By Mr . Weld ) Were these demands that you were making concerning
working conditions at the plant?
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes, I have the demands in my file. They were read to Mr. Giallanza
at that time.
After leaving Shults' office, Giallanza, Jr., called several of the drivers and
queried them as regards their meeting with Shults. Among those he called were
Lodato, Kinne, and Zirkelbach.
Zirkelbach testified that Giallanza, Jr., called him three times on the night of
January 2, 1950, and asked him in the first two calls if he intended to sign the
proposed contract. Zirkelbach advised him that he could not because he had
authorized Attorney Shults to act as his attorney in this regard and could not
do so until he talked the matter over with him. In the third and last call
Giallanza, Jr., told him that it was his last chance to agree to sign the contract,
and that if he didn't he "was through." Zirkelbach again, for the same reason
set forth above, refused to do so.
The next morning, January 3, 1950, Zirkelbach reported for work as usual and
according to his uncontradicted and undenied testimony went to the Respond-
ent's office and deposited the money he had collected on his route on Saturday,
December 31, 1949. He further testified that it was the custom and practice for
the drivers to take their collections home with them when they returned to the
plant at night from their routes.
Zirkelbach also testified that after he turned in his receipts for December 31,
1949, as described above, he met Giallanza, Jr., in front of the plant ; that the
latter asked him in substance if he had changed his mind about signing the
contract; that he replied in the negative; and that Giallanza, Jr., again told
him that he was through. Present at the time were drivers Richard J. Gerould
and Wayne Stuart. Following the above conversation Zirkelbach went around
to the garage where the rest of the drivers were assembled. What transpired
there will be set forth in detail hereinafter.
The Respondent contends that Zirkelbach was discharged for cause and in
support of her contention offered the testimony of Giallanza, Jr., and Edward B_
Brown, route manager.
Charles Giallanza, Jr., testified that, Brown informed him that while driving
Zirkelbach's route during the latter's absence from work in November 1949, he
discovered that Zirkelbach had not been calling on certain regular customers;
that he had been informed by customers that Zirkelbach had been drinking while
servicing the route ; and that his customer charges on the books were excessive.'
He further testified that Zirkelbach kept cash out of his daily collections for his
own personal use; that he neglected his work by working as a part-time bar-
tender ; that he had been informed that on at least one occasion he had absented
himself from work on a pretense of illness when he was in fact on a "drunk";
and that in view of the above-described derelictions of duty and misconduct on
the routes serviced by Zirkelbach, he discharged him on the night of December
31, 1949.
Zirkelbach admitted that he had kept out of his daily collections various sums
of money for his personal use. However, the Respondent's records indicate that
it was common practice for the driver-salesmen to do so. For example, the daily
cash record of each driver for the period that Zirkelbach was employed shows
that the following drivers followed this practice :'o
9It was the Respondent's policy for the drivers to leave the garments at the homes of
her customers in the event that they were absent when they were delivered and to turn
the unpaid delivery slip in to the office as a cash item . They were then expected to call
back at the customer 's home, collect the item and turn the cash in to the office and receive
credit for it.
10 The undersigned sets forth herein only those cash items which are in excess of Rt-
MODERN CLEANERS COMPANY 49
Harold Carey $20.00
Donald Kinne 20.43
Sal Lodato 5.91
B. D. Brown 4.77
Robert Furlong 34. 92
Harry Wyckoff 18.09
Richard Gerould 42.26
Wayne Stuart 10.40
Richard Reynolds 1.40
Jack Coogan 1.25
Howard Zimmerman 4. 79
Donald Zirkelbach 88.46 [includes cost of a uniform]
As to the excessive charges that Zirkelbach is alleged to have carried on his
account, the Respondent's own records show that they totaled $10.20 for the
entire period of his employment u
The Respondent offered no substantial evidence to corroborate Brown's testi-
mony as regards Zirkelbach's alleged misconduct and negligence while servic-
ing his route. For example, the Respondent failed to produce at the hearing a
single customer, as a witness, who allegedly paid Zirkelbach for cleaning and
the like and which he failed to account for at the office. The record clearly
shows that Brown's testimony in this regard was based upon information ad-
mittedly secured after Zirkelbach's discharge. Nor is there any substantial
evidence in the record to corroborate Brown's testimony that Zirkelbach's ab-
sence from work during November 1949 was due to his imbibing to excess. Hence
Zirkelbach's testimony that his absence was due to being kicked by a horse, stands
undenied in the record and is credited by the undersigned.
The record shows that shortly after Zirkelbach was discharged he applied for
a position with The National Biscuit Company and gave the Respondent as a
reference in his application. Giallanza, Jr., admitted at the hearing herein that
he received an inquiry from this company as regards Zirkelbach and that he did
not inform them that Zirkelbach had misappropriated funds while he was em-
ployed by the Respondent.
Concluding Findings
In view of the foregoing and upon the record as a whole the undersigned is
convinced and he so finds that Zirkelbach was discharged by the Respondent on
the night of January 2, 1950, and that the Respondent reaffirmed her action in
this regard on the morning of January 3, 1950; that his discharge was because
of his concerted activities with other employees in seeking a modification of the
terms of the contract proposed by the Respondent, and not for the reasons ad-
vanced by the Respondent at the hearing herein which the undersigned finds to
be mere pretext.
As indicated above it was the terms of the proposed contract that motivated
the drivers to seek the advice of Attorney Shults. In the course of their meeting
with him questions concerning wages, hours, and other conditions of employment
were discussed. As a result of these discussions Modern Cleaners Employees
Protective Association was formed. It is well settled that such concerted ac-
tivities on the part of employees is protected by the Act.
u The undersigned is not unmindful of the fact that certain of the Respondent 's exhibits
from which the above figures were taken were rejected at the hearing because of their
questionable authenticity ; however, since he makes no specific finding in this regard, he is
of the opinion that they too may be used for the purpose of presenting the over-all picture.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In reaching his conclusion as regards the discharge of Zirkelbach, the under-
signed took into consideration the following factors. In the first place the
answer of the Respondent is in effect a general denial of each and every
allegation in the complaint except as regards to certain formal matters. An
examination of the record clearly shows that its defense to Zirkelbach's dis-
charge is predicated in its entirety on the premise that he had been derelict
in his duties, and had conducted himself in an improper manner while servicing
his route. It is significant that the Respondent did not advance at the hearing
herein as a cause of Zirkelbach's discharge his refusal to sign the proposed
contract, but chose to stand on his alleged derelictions and misconduct on the
route as the sole reasons for her action in this regard i$
The reasons advanced by the Respondent in justification of her discharge of
Zirkelbach and the evidence offered in support thereof are hereby rejected
by the undersigned for the following reasons: (1) Her contention that he
had misappropriated funds and was a dishonest employee is, in the considered
opinion of the undersigned, not convincing. According to Giallanza, Jr., he
discharged Zirkelbach on Saturday night, December 31, 1949, upon his return
to the plant from his route. Yet, in the face of her contention that Zirkelbach
was dishonest, Giallanza, Jr., permitted him to take home and carry on his
person his collections for the day, $38.59. According to Zirkelbach he turned
the money into the office on the morning of January 3, 1950. His testimony
in this regard stands undenied and uncontradicted in the record and hence is
credited by the undersigned. That the Respondent would permit an employee
who, to say the least, was under the suspicion of dishonesty to withhold her
funds after he had been discharged doesn't ring true, and consequently its
contention and evidence offered in support thereof is rejected by the under-
signed. Again, the Respondent admittedly failed to report Zirkelbach's alleged
dishonest practices to prospective employers shortly after his discharge. Such
conduct is hardly to be expected from an employer who only recently has
discharged the same individual for misappropriation of funds. (2) In support
of the Respondent's contention that Zirkelbach's misconduct while serving his
route was a motivating factor in its decision to discharge him she offered the
testimony of Brown, the route supervisor, and Giallanza, Jr. An examination
of their testimony in this regard clearly shows that it was predicated on alleged
conversations between Brown and various customers on the route after Zirkel-
bach's discharge. The record also shows that not a single customer who allegedly
filed complaints with Brown was called as a witness to corroborate his testimony
in this record. Nor was any showing made at the hearing herein that they
were unavailable as such. Hence her contention in this regard is predicated
on second and third degree hearsay and is rejected by the undersigned. It
is well settled that Respondent must allege and prove by a preponderance of
reliable, probative, and substantial evidence that an alleged discriminatory
discharged employee was discharged for cause 13 Here the Respondent has
failed to do so.
In view of the foregoing and upon the record as a whole the undersigned
is convinced and he so finds that the Respondent by engaging in the conduct
described above violated Section 8 (a) (3) and (1) of the Act.
2. The alleged discriminatory discharge of Wayne Stuart
At the time of the hearing Wayne Stuart was in the Armed Forces and
was unable to appear and testify therein . While it is true that the General
12 See discussion infra on this point.
18 See Ohio Associated Telephone Company, 91 NLRB 162, and cases cited therein.
MODERN CLEANERS COMPANY 51
Counsel offered some evidence in support of the allegation in the complaint
that Stuart was discriminatorily discharged by the Respondent it was, in
the considered opinion of the undersigned, not substantial enough to justify
a finding to that effect. Consequently, the undersigned recommends that this
allegation in the complaint be dismissed without prejudice.
3. The alleged discharge of the drivers, the strike of the inside workers, and the
events that flowed therefrom
a. The discharge of the drivers
Shortly after discharging Zirkelbach and Stuart, Giallanza, Jr., went to the
garage where the drivers were assembled preparatory to servicing their routes.
He found them assembled in a group ; included therein were Zirkelbach and
Stuart. Giallanza, Jr., told the drivers that he had discharged Zirkelbach and
Stuart for just cause. In the discussion that followed his announcement in this
regard, Sal Lodato, acting as spokesman for the drivers, protested the discharge
of Zirkelbach and Stuart and requested their immediate reinstatement. Gial-
lanza, Jr., refused to do so and asked the drivers to go out on their routes and
promised to discuss the discharges with them later. The drivers, however, re-
jected his proposal and insisted that the two dischargees be reinstated forthwith.
He then turned to the drivers, who at this time were standing in a semicircle
facing him, and asked each individually if he intended to take his truck out on
the route. Each in words or substance in answer to this query refused to do so
until the two dischargees were reinstated. Giallanza, Jr., again refused to do so
and told each driver individually that he "was through," which the undersigned
finds to mean "discharged." The drivers then left the garage in a body and went
to the office of Attorney Shults.
The above account as to what transpired at the meeting between Giallanza, Jr.,
and the drivers is taken from the testimony of drivers Lodato, Kinne, Zirkelbach,
and Carey, which the undersigned credits and finds to be a true account thereof,
for reasons which will be set forth hereinafter.
Giallanza, Jr.'s testimony as regards the meeting described above is in sub-
stantial agreement with that of the witnesses called by the General Counsel,
except as to the actual discharge of the drivers.
According to Giallanza, Jr., the drivers walked off the job after they had re-
fused his request to take their trucks out on the routes and to forego their insist-
ence that Zirkelbach and Stuart be restored to their jobs forthwith as a condi-
tion precedent. He denied that he told each of the drivers that he was "through."
In support of his testimony in this regard the Respondent offered that of Brown,
her route manager, and garage employees Houghtailing and Rawady. They
testified to the effect that they did not hear Giallanza, Jr., make the statement
attributed to him by Zirkelbach, Lodato, Kinne, and Carey. Rawady and Brown
admitted that they heard only excerpts from the conversation. Houghtailing
testified in substance that he was about 12 feet from Giallanza, Jr., while he was
talking to the drivers, and that he did not hear him tell the drivers that they
"were through."
The undersigned has carefully considered Giallanza, Jr.'s testimony as regards
the circumstances surrounding the discharge of the drivers and he is convinced
and finds that he told each of them individually that they "were through," (in
other words discharged) when they refused to take their trucks out for reasons
which have been set forth hereinabove. His finding is predicated upon Giallanza,
Jr.'s entire testimony during the course of the hearing, particularly as regards
227260-53-vol. 100--5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the circumstances surrounding the discharge of Zirkelbach. Consequently, he
discredits his testimony in this regard."
The testimony of Brown, Rawady, and Houghtailing regarding what was said
by Giallanza, Jr., in his conversation with the drivers at the time of their dis-
charge has been carefully considered by the undersigned, and he is convinced
and finds it to be of no probative value in view of all the surrounding circum-
stances and the record as a whole.
Concluding Findings
The undersigned has found above that the Respondent by Giallanza, Jr, dis-
charged drivers Donald Kinne, Harry E. Wyckoff, Richard T. Gerould, Henry L.
Carey, John L. Coogan, Salvatore E. Lodato, and Robert Furlong on the morning
of January 3, 1950, because they refused to take the trucks assigned them out
on their respective routes because the Respondent discharged and refused to
reinstate drivers Donald Zirkelbach and Wayne Stuart."
There is ample evidence in the record to support the above finding. An
examination of the credited testimony of witnesses called by the General Counsel
and the Respondent clearly shows that the controversy between the Respondent
and the drivers arose over the contract of employment submitted to the drivers
by Giallanza, Jr. Unquestionably this was a prerogative of management and
clearly involved the terms and conditions of employment of the drivers. Under-
standably the drivers were concerned over the terms and conditions of the con-
tract and concertedly sought the advice of Attorney Shults in this regard. The
upshot of their meeting with Shults was the organization of the Modern Cleaners
Employees Protective Association. Shortly thereafter Shults called Giallanza,
Jr., and informed him of the drivers' action and requested a meeting with him
to discuss the issues involved. Shults and Giallanza, Jr., met that evening in
Shults' office. What transpired at their meeting has been set forth hereinabove
and will not be reiterated here. Suffice it to say, however, that the record is
clear that Giallanza, Jr., was fully advised at the meeting of the concerted ac-
tivities of the drivers. This is further evidenced by the fact that Giallanza, Jr.,
called certain drivers after he had left Shults' office. Consequently, the under-
signed finds that the Respondent was fully aware of the concerted activities of
the drivers at the time she discharged them on the morning of January 3, 1950.
It is significant that Giallanza, Jr., did not mention the proposed contract to
the drivers at the time he discharged them. Nor is there any substantial evi-
dence in the record that the Respondent relied on the refusal of the drivers (in-
cluding Zirkelbach) to sign a contract of employment as a reason for their
discharge. Had Giallanza, Jr,, predicated the dischargees solely on their re-
fusal to sign the proposed contract, the undersigned might well have found
otherwise herein under the authority of the G. C. Conn Ltd. case, 108 F. 2d
390-98, and other cases set forth in the Respondent's brief. (Absent of course
a refusal by the Respondent to bargain with the drivers on the terms and condi-
tions of the contract.) This Giallanza, Jr., failed to do .Under such circum-
stances the undersigned finds that the cases involving management prerogatives
are not applicable to the facts found hereinabove.
Clearly the action of the drivers prior to and at the time of their discharge was
protected concerted activity, and their refusal to take their trucks out until
Zirkelbach and Stuart were restored to their jobs was for their mutual aid and
protection. Consequently the undersigned concludes and finds that the Respond-
14 See supra
15 See supra as regards the discharge of Wayne Stuart.
MODERN CLEANERS COMPANY 53
ent discriminatorily discharged drivers Donald Kinne, Harry E. Wyckoff,
Richard T. Gerould, Henry L. Carey, John L. Coogan, Salvatore E. Lodato, and
Robert Furlong, because of their union and concerted activities which is clearly
violative of Section 8 (a) (3) and (1) of the Act, and in contravention of the
rights guaranteed employees by Section 7 of the Act.16
b. The strike and the alleged discharge of certain inside employees
Following their discharge the drivers went to Attorney Shults' office, and
discussed the situation with him. During the course of the discussion Shults
suggested that it might be well, under the circumstances, to have the inside em-
ployees join the Modern Cleaners Employees Protective Association. The drivers
agreed with Shults, and instructed him to have petitions prepared for that
purpose. Then they left his office and contacted the inside employees during
the day. By this means they secured approximately 20 signatures to the
petitions.
That same evening, Tuesday, January 3, 1050, all the employees, who had
signified their desire to join the Modern Cleaners Employees Protective Asso-
ciation by signing the above petitions, and the drivers met with Shults at the
Hornell city hall. At this meeting the inside employees insisted that the Asso-
ciation be reorganized in order to give them adequate representation in its
activities. All agreed that this should be done and as a result of this action on
the part of the membership of the Association new officers were selected. Sal
-Lodato resigned as president and was succeeded by Ivan Colegrove, an inside
employee. The discharge of the drivers was the main topic of discussion at the
meeting, and it was the consensus of opinion that the inside employees would
strike the plant the next morning, January 4, 1950. Shults cautioned those
present against such action, and suggested that it would be best for him to first
talk to Giallanza, Jr., concerning the Association's position, reinstatement of
the drivers to their jobs, and recognition of the Association as the sole repre-
sentative for the purposes of collective bargaining. This was agreeable to the
membership.
Shortly thereafter Shults called Giallanza, Jr., and advised him that he repre-
sented the Association, which in turn represented a majority of all the Respond-
ent's employees, and requested recognition as the sole representative for the
purposes of collective bargaining. Giallanza, Jr., refused his request. Shults'
version of his conversation with Giallanzo, Jr., which the undersigned credits,
is set forth herein below.
Well, as soon as I got home that night I called Charles Giallanza on the
telephone. I reached him at about 11: 00 or 11: 30. It might have been
12:00 o'clock; it was sometime after 10: 30, after this meeting broke up,
and I stated-to Charles Giallanza, Junior, then, I said, "Chuck, I want to
inform you now that I represent a majority of all your workers. Not just
the truck drivers, but the majority of all your workers," and he said, "Well,
who are they?" And I said, "Well, the same thing goes as I told you yes-
terday, that if you would like to recognize me and the Modern Cleaners Em-
ployees Protective Association as a collective bargaining agent and will
enter into an agreement to that effect, I will then take my petitions that I
have and compare the signatures with your payroll cards so that you will
know that I represent a majority of the workers. If I do not represent a
19 See Gullet Gin Company/, 83 NLRB 1, and cases cited therein ; Cudahy Packing Com-
pany, 29 NLRB 836, 866, Niles Firebrick Company, 30 NLRB 426; N. L. R. B. v. Kenna-
metal, Inc., 182 F. 2d 817 (C. A. 3) ; Modern Motors, Inc., 96 NLRB 964.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority of your workers, then you don't have to talk to me at all." And
I said, "It is a serious proposition because I am making a demand on you
now for recognition." And he said on the telephone that he would run his
own business his own way.
The next meeting of the Association was held at noon January 5, 1950, in
Terry's Restaurant. At this meeting, the employees voted to strike the plant
in protest of the action of the Respondent in discharging the drivers. Shortly
thereafter the inside employees of the Respondent walked out of the plant.
As indicated above, Attorney Shults cautioned the membership of the Associ-
ation at the meeting on January 3, 1950, against hasty strike action because the
Association was a small labor organization and not affiliated with one of the
large international unions. After the strike started Shults " got in touch with
the Teamsters and the Laundry Workers Union, both affiliated with the American
Federation of Labor, and requested that they send representatives to Hornell to
talk to the membership of the Association. In the meantime some of the em-
ployees went back to work, and many of those who continued on strike were
anxious to go back to their jobs. The record clearly indicates that the strike
was an abortive affair, and its purpose and the consequences thereof not fully
understood by the inside employees, except to the extent that it was in protest
to the discriminatory discharge of the drivers'' As a result, the membership
of the Association now realized the advantages of being affiliated with one of
the international unions, and a meeting for this purpose was called on Saturday
morning, January 7, 1950, at "Union Hall" in Hornell. Approximately 20 strik-
ing employees attended the meeting. Also present were George Hart, repre-
sentative of the Teamsters Union, and Michael Ervolino, representative of the
Laundry Workers Union. During the course of the meeting the drivers selected
Hart, and the inside workers Ervolino, as their respective representatives, and
requested them to see the Respondent and endeavor to reach a settlement of the
strike. The selection of Hart and Ervolino to act as their representatives was
by voice vote.
Hart and Ervolino met with Giallanza, Sr., and Giallanza, Jr., at the plant
at 11 p. in. that evening. They told them that the striking employees were
anxious to end the strike and return to work unconditionally. The Respondent
agreed to restore all of the striking employees to their jobs except Ivan Cole-
grove and the drivers. The Respondent refused to restore Colegrove to his job
for the reason that she considered him a supervisory employee (foreman of her
wool cleaning department), and hence she was not required to restore him to
his position.
On the following Monday, January 9, 1950, all of the striking inside employees
who reported for work at the plant were restored to their jobs except Ivan
Colegrove who, as pointed out above, the Respondent refused to reinstate. The
following inside employees did not report to work on the morning of January
9, 1950, Esther Moran, Mildred Brown, Lena Rosell, Beatrice ReCouper, and
Duane Powers. Nor is there any evidence in the record that they notified the
Respondent in any manner that they were either unable to come to work at that
time, or that they intended to report at a later date.
The complaint alleges in substance that Esther Moran, Mildred Brown, Lena
Rosell, Beatrice ReCouper, and Duane Powers applied for reinstatement to their
former or substantially equivalent positions, and that the Respondent refused
17 There is substantial, probative, and credible testimony in the record to substantiate
this conclusion.
is See Kallaher and Mee, 87 NLRB 410 , as cited in Fifteenth Annual Report of the Board,
p. 108.
MODERN CLEANERS COMPANY 55
or failed to do so, "and continues to refuse to reinstate said employees to their
former or substantially equivalent positions or employment."
According to the credible testimony of Lena Rosell , one of the five female
employees named above who did not report to work on the morning of January
9, 1951 , she did not ask for reinstatement to her former position until April
28, 1951 . At that time she, accompanied by Esther Moran, Mildred Brown, and
Beatrice ReCouper, went to the plant for the purpose of applying for reinstate-
ment to their former positions . Upon arrival at the plant they were unable to
see either of the Giallanzas, who at the time were absent. They then went to
Mrs. Wing, the head bookkeeper , and informed her that they desired reinstate-
ment to their jobs, and requested that she deliver their message to the Re-
spondent . The next morning Wing told the Giallanzas of their request for
reinstatement . There is no testimony in the record that the Respondent there-
after contacted any of the four employees named above and offered to rein-
state them to their former jobs. Rosell further testified that this was the only
time she requested the Respondent to reinstate her to her former position. The
record is silent as regards the activities of Esther Moran, Beatrice ReCouper,
and Mildred Brown after they made their request for reinstatement on April
28,19 - 50. Inasmuch as they did not choose to appear at the hearing and testify
in their behalf, and the General Counsel,made no showing that they were
unavailable as witnesses , the undersigned finds that they likewise made no
further effort to secure reinstatement after April 28, 1950.
Duane Powers, who is also named in the complaint as one of the striking
employees who was refused reinstatement by the Respondent to her former
position, did not testify at the hearing herein and the General Counsel made
no showing that she was unavailable as a witness.
Ivan Colegrove was refused reinstatement to his former position on two
occasions by the Respondent. As indicated above, Giallanza, Jr., told Hart and
Ervolino, the A. P. L. representatives, on the night of January 7, 1950, that the
Respondent would unconditionally reinstate all of the striking inside employees
to their former positions except Ivan Colegrove . The Respondent speaking
through Giallanza , Jr., told Hart and Ervolino that she would not reinstate
Colegrove to his former job because he was a supervisory employee, and was
the instigator of the strike. Sometime in May 1950, Colegrove, on the advice of
Shults, called at the Respondent 's office for the purpose of asking for reinstate-
ment. None of the Giallanzas was present, so he stated his offer to Mrs. Wing,
the head bookkeeper. The Respondent made no effort thereafter to offer
Colegrove reinstatement.
The Respondent contends that Colegrove was a supervisory employee, and
consequently she was justified in refusing him reinstatement to his former
position . However , at the hearing herein she offered no substantial evidence
as regards his duties . The only testimony offered by the Respondent as regards
Colegrove was the bare statement by both Giallanza, Sr., and Giallanza, Jr.,
that he was a supervisor . As a matter of fact, the Respondent offered no sub-
stantial evidence showing Colegrove's duties and the authority vested in him as
regards his relationship with other employees.
In such a state of the record the undersigned is convinced and finds that Ivan
Colegrove was not a supervisory employee. In order for the Respondent to
sustain her contention in this regard, she must do so by a preponderance of
reliable, probative , and substantial evidence . This she failed to do at the
hearing herein . To merely dub an employee as a supervisor is not enough,
the Respondent must show that he is vested with the duties and responsibilities
of a supervisor as defined by Section 2 (11) of the Act.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings as Regards the Nature of the Strike, and the Alleged
Refusal to Reinstate Certain Striking Employees to Their Former or Sub-
stantially Equivalent Positions or Employment
The record is clear that an overwhelming majority 11 of the inside employees
joined the Modern Cleaners Employees Protective Association on Tuesday,
January 3, 1951, and attended a meeting thereof. At that meeting there was
considerable discussion as regards striking the plant in protest of the Re-
spondent's discharge of the drivers. The undersigned has found above that the
discharge of the drivers was because of their concerted activities, and hence
violative of Section 8 (a) (3) and (1) of the Act. It thus follows and the
undersigned so finds that the strike of the inside employees in protest of the
Respondent's action in this regard was an unfair labor practice strike.
It is well settled that unfair labor practice strikers who have abandoned the
strike and have unconditionally offered to return to work are entitled to rein-
statement to their former or substantially equivalent employment. It is equally
well settled that a refusal by a Respondent to do so is violative of the Act,
absent of course reprehensible conduct during the course of the strike, with
which we are not concerned herein.
The record is clear that on January 7, 1950, the striking employees met and
selected George Hart of the Teamsters Union, A. F. L., and Michael Ervolino of
the Laundry Workers Union, A. F. L., as their representatives. The record is
also clear that at this same meeting the striking employees voted to abandon
the strike and return to work. Hart and Ervolino were authorized to see the
Respondent and advise it of their intention in this regard. As indicated above,
Hart and Ervolino met with Giallanza, Sr., and Giallanza, Jr., that evening and
advised them of the strikers' decision to abandon the strike and return to work on
Monday, January 9, 1950. The Respondent agreed to take all of the strikers
back but the drivers and Ivan Colegrove, for reasons set forth above. By this
action, Ivan Colegrove, Esther Moran, Mildred Brown, Lena Rosell, Beatrice
ReCouper, and Duane Powers offered to return to work unconditionally, and
made a valid request for reinstatement through their authorized agents, Hart
and Ervolino, which the Respondent accepted, except as to Colegrove. Under
such circumstances, an Employer normally would expect the employees involved
to report to work. In the instant case, at least Moran, Brown, Rosell, and
ReCouper chose to do otherwise,20 and did not report for work along with the
other striking employees on January 9, 1950 Nor did they make a request for
reinstatement until the latter part of April. 1950, almost 4 months after the
strike was abandoned. There is nothing in the record to indicate that the
Respondent at any time between January 9 and April 28, 1950, refused to
reinstate the above employees. A valid offer on their behalf to return to work
unconditionally was accepted by the Respondent on the night of January 7.
True, it was made through an agent, but this mode of procedure is commonplace,
and has been accepted by the Board and the courts as a valid offer 21 Moreover,
the record clearly shows that none of the above employees made a further
application for reinstatement after April 28, 1950.
In such a state of the record the undersigned is convinced and finds that the
Respondent did not refuse to reinstate Esther Moran, Mildred Brown, Lena
Rosell, and Beatrice ReCouper, to their former or substantially equivalent
'- The record shows that 19 inside employees attended the Tuesday night meeting. At
that time the Respondent had approximately 30 employees including the discriminatorily
discharged drivers.
40 The record is silent as regards Duane Powers . She will be dealt with hereinafter.
21 See Lightner Publishing Company, 128 F 2.d 237.
MODERN CLEANERS COMPANY 57
employment. As far as the record is concerned, the Respondent agreed to re-
-instate them on the night of January 7 and had every reason to expect that they
-would report to work on the morning of January 9, 1950, along with the rest of
the striking employees. Clearly an Employer is not required to shut down his
plant to wait out the dilatory tactics of approximately 25 percent of his employ-
ees, after having made a valid offer to reinstate them to their jobs. Where,
as here, the site of the Employer's business is located in a small city within
walking distance from the homes of the employees, and with telephone facilities
Available, the failure of the above employees to at least notify the Respondent
that they were unavailable for work, for one reason or another, is inexcusable.
The Respondent having once made a valid offer of reinstatement was not
required to make a second offer approximately 4 months after the strike was
abandoned." In the considered opinion of the undersigned, the above employees
by their conduct described above forfeited any rights they may have had under
the Act. Consequently the undersigned recommends that that portion of the
complaint which alleges that the Respondent refused to reinstate Esther Moran,
Mildred Brown, Lena Rosell, and Beatrice ReCouper be dismissed.
Duane Powers, who is named in the complaint as one of the striking employees
who was refused reinstatement to her former or substantially equivalent position,
did not appear at the hearing herein and no showing was made that she was un-
available as a witness. Hence the record is silent as to her activities after the
strike was abandoned. Suffice it to say, however, that the same reasoning is
applicable to her situation as that set forth immediately above regarding Moran,
Brown, Rosell, and ReCouper. That is, a valid offer on her behalf to abandon
the strike and return to work unconditionally was made to and accepted by the
Respondent through her authorized agents, Hart and Ervolino, on the night of
January 7, 1950. In such a state of the record the undersigned is convinced and
be so finds that the Respondent herein did not refuse to reinstate her to her
former or substantially equivalent employment. Hence, the undersigned recom-
mends that this allegation in the complaint be likewise dismissed.
As indicated above, Ivan Colegrove was president of the Modern Cleaners Em-
ployees Protective Association at the time of the strike. In the course of the
conversation between Hart and Ervolino and the Giallanzas relative to abandon-
ment of the strike, which has been set forth above, it will be recalled that
Giallanza, Jr., told them in words or substance that under no circumstances
would the Respondent reinstate Colegrove to his job because he was a super-
visory employee," and for the further reason that he was the instigator of the
strike. The Respondent reiterated its position towards Colegrove on or
about Friday, January 13, 1950 At that time he went to the plant to collect
some wages due him and saw Giallanza, Sr., who told him to get out and that
the Respondent would never reinstate him to his job A few months later
Colegrove, on the advice of Attorney Shults, went to the plant and in the absence
of the Giallanzas left Nyord with Sirs. Wing, the bookkeeper, that he desired rein-
statement to his former position. His request was ignored by the Respondent.
In view of the above findings and upon the record as a whole the undersigned
is convinced and finds that Ivan Colegrove was refused reinstatement to his
former or substantially equivalent position by the Respondent on January 7,
1950, because of his union and/or concerted activities. On at least two occasions
he was informed in no uncertain language that he was persona non grata to the
-Respondent. Once to his agents, Hart and Ervolino; 4 when they called on the
52 See Barr Packing Co., 82 NLRB 1 (1949) ; E. A. Laboratories , Inc., 80 NLRB 625 and
86 NLRB 711; Joy Togs, Inc., 83 NLRB 1024.
11 The undersigned has found above that Colegrove was not a supervisory employee.
21 See supra, for the effect of an offer of reinstatement through an agent.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent for the purpose of effectuating a settlement of the strike, and a second
time by Giallanza, Sr., at the plant on January 13, 1950.1 Under the circum-
stances described above, it is clear that Colegrove was not only refused rein-
statement by the Respondent but, to all intents and purposes, actually
discriminatorily discharged, particularly on January 13, 1950, when he was
ordered out of the plant by Giallanza, Sr.
By the acts described above the undersigned finds that the Respondent by re-
fusing to reinstate Ivan Colegrove to his former or substantially equivalent
employment on January 7, 1950, violated Sections 8 (a) (3) and (1) of the Act.
c. The alleged inititation, sponsorship, promotion, and support of the Modern
Cleaners Employees Association in violation of Section 8 (a) (2) of the Act
The Modern Cleaners Employees Association was formed a few days after
the striking inside employees returned to work. While the record does not dis-
close the exact date there is substantial evidence to show that it was around
January 11, 1950, and the undersigned so finds. It was initiated by Paul
Nicholson, plant superintendent, and Edward Brown, the route supervisor. Its
avowed purpose was to deal with the Respondent on matters affecting the em-
ployees' working conditions, such as disputes, grievances, and the like that arise
from time to time between employees and management. Nicholson requested
Ralph Locker, one of the inside employees, to prepare a petition and circulate it
among the employees. According to Locker's creditable testimony the purpose of
the petition was two-fold, first as a means for the employees to withdraw from
membership in the Modern Cleaners Employees Protective Association, and
secondly to form the Modern Cleaners Employees Association. Locker complied
with Nicholson's request and circulated the petition among the employees dur-
ing working hours. After the petition was circulated and a large number of
employees had signed it, a formal meeting of the "Independent" was held. At
this meeting Paul Nicholson, plant superintendent, was elected president; Ed-
ward Brown, route manager, vice president ; Ralph Locker, secretary ; and
Margaret Brown, treasurer." The first two meetings of the "Independent"
were held at the plant. Since then meetings have been held at the homes of
various members.
The record is vague as regards the activities of the "Independent." Whether
or not it actually handled any grievances for the membership or made any de-
mands on management for improved working conditions is not disclosed by the
record. Suffice it to say, however, that the "Independent" was available as a
vehicle to handle such matters. Nor is there any substantial evidence in the
record showing that dues or assessments were either authorized or collected
from the membership. Again, the record is silent as regards whether or not
the "Independent" had a constitution or bylaws to govern its affairs.
Conclusion
Regardless of whether or not the "Independent" actually functioned as a labor
organization in the manner and mode ordinarily pursued by such organizations,
nevertheless it was organized for that purpose, and at the time of the hearing
herein was still in existence. It is clear from the record that it was initiated,
formed, sponsored, and promoted by the Respondent through its top supervisory
hierachy, Nicholson, plant superintendent, and Brown, route manager. More-
over its organization was promulgated on company time and property by an
25 Margaret Brown was in charge of the downstairs office, where articles were left for
cleaning, etc. There is no substantial evidence in the record showing that she was a super-
visory employee.
MODERN CLEANERS COMPANY 59
employee, Locker, especially designated by Superintendent Nicholson for that
purpose. The record is also clear that following its organization the "Inde-
pendent" was the recipient of support from the Respondent who permitted it
to hold meetings on its premises. That the Respondent dominated the "Inde-
pendent" at least in its early days is evidenced by the fact that its entire roster
of officers were persons close to management either in their capacity as super-
visory or office employees.
In view of the foregoing findings and upon the record as a whole the under-
signed finds that the Respondent by the conduct described above did on or about
January 11, 1950, initiate, form, sponsor, and promote through Paul Nicholson,
its plant superintendent, and``"Edward Brown, its route manager, the Modern
Cleaners Employees Association, and since on or about January 11, 1950, to
date has assisted, dominated, contributed to the support of, and interfered
with the administration of Modern Cleaners Employees Association, and by such
conduct has violated Section 8 (a) (2) and (1) of the Act.
d. The alleged discriminatory discharge of Marion Alberts because of her refusal
to join Modern Cleaners Employees Association
Marion Alberts was employed as a clerk in the Respondent's office. Sometime
in the latter part of December 1949, probably on or about December 21, she
notified the Respondent that she was leaving its services as of January 21, 1950.
Her reason for this action was because she was pregnant. In the interim she
'joined the Modern Cleaners Employees Protective Association. The record is
not clear as to whether or not she participated in the strike which has been
described above. After the strike was over and most of the employees had
returned to work, she was given a raise of .021/2 cents per hour by Giallanza, Sr.
On Monday morning, January 16, 1950, she was approached by Ralph Locker,
who requested her to sign a petition which provided inter alia her resignation
or withdrawal from the Modern Cleaners Employees Protective Association
and to become a member of the Modern Cleaners Employees Association. She
refused to do so, and told Locker in substance that since she was leaving the
Respondent's services on January 21, she saw no point in signing the petition.
Shortly thereafter Locker left the office. In about 5 minutes Giallanza, Sr.,
came to her and told her to go home and to "hurry up" about it. Alberts left
the plant and to date has neither returned to work nor asked for reinstatement.
Giallanza, Sr., admitted that he laid off Alberts on January 16, and gave as
his reason for his abrupt action in this regard that since she had resigned 'and
would leave within a few days that it was necessary to employ a satisfactory
replacement, who had reported for work that morning.
The General Counsel contends that Alberts was laid off on the morning of
January 16, because she refused to withdraw from the Modern Cleaners Em-
ployees Protective Association, and join the Modern Cleaners Employees Asso-
ciation. Locker, though called by the General Counsel as a witness, was not
queried as regards the Alberts incident. Hence as far as the record is con-
cerned it is silent as to whether or not he talked to Giallanza, Sr., after his
conversation with Alberts.
Conclusion
In order to find that Alberts was discriminatorily laid off by the Respondent
on January 16, 1950, the undersigned would be required to first find that Locker
21 The record is silent as to the activities of the "Independent" after its organization had
been effectuated , except to the extent that it had held some meetings at the plant and at
the homes of members.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed Giallanza, Sr., that she had refused to withdraw from the Modern
Cleaners Employees Protective Association' and join the Modern Cleaners
Employees Association, and secondly, to infer from that, Giallanza, Sr., then
discharged or laid her off because of her refusal in this regard. In other words
such a finding must be predicated by building inference upon inference. In
order to do so one must overlook the fact that only a few days before she
was laid off she was granted a raise by the Respondent. Likewise it would
necessitate ignoring the fact that she had resigned effective January 21, and
the further fact that in the normal course of business she would be replaced
by the Respondent. On the other hand one cannot ignore the fact that she
was laid off at a time when the Respondent's antiunion conduct was at its peak.
Taking all factors into consideration and upon the record as a whole the under-
signed is convinced and finds that the record does not substantiate the General
Counsel's contention that Marion Alberts was discriminatorily laid off or dis-
charged on January 16, 1950, because she refused to withdraw from the Modern
Cleaners Employees Protective Association and join the Modern Cleaners Em-
ployees Association. True, there is strong suspicion that she was discrimina-
torily dicharged, but suspicion, speculation, and conjecture are not evidence.
Clearly one may infer from a fact that a certain incident occurred, but not by
building inference upon inference. Accordingly, the undersigned will recommend
that the allegation in the complaint that Marion Alberts was discharged by the
Respondent on January 16, 1950, and has refused or failed to reinstate her for
the reason that she joined or assisted Modern Cleaners Employees Protective
Association or Local 65, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. L., or engaged in concerted
activity for the purpose of collective bargaining or other mutual aid or protec-
tion, be dismissed.
C. Other acts of interference 'unth, restraint, and coercion, of Respondent's
employees in violation of Section 8 (a) (1) of the Act
The complaint alleges that the Respondent engaged in numerous other acts
of interference with, restraint, and coercion of its employees from on or about
January 2, 1950, by certain of its agents and supervisory employees, including
Charles Giallanza, Sr., Charles Giallanza, Jr., Paul Nicholson, plant super-
intendent, Edward Brown, route manager, and Ralph Locker. The status of
the Giallanzas, Nicholson, and Brown has been discussed above, and the under-
signed has found that each of them were supervisory employees. As to Locker,
his status will be discussed in detail hereinafter.
The undersigned has found above that in the latter part of December 1949
Charles Giallanza, Jr, discussed with several of the drivers the necessity of a
contractual relationship between the drivers and the Respondent As a result
several of the drivers consulted with Attorney Shults as regards their rights
and liabilities under the proposed contract. At one of the meetings between
Shults and the drivers, he suggested to them that he be designated as their
bargaining agent to meet with the Respondent as regards wages, hours, and
other conditions of employment. The drivers accepted Shults' suggestion and so
designated him. Shortly thereafter Modern Cleaners Employees Protective
Association was formed and organized. Shults notified Giallanza, Jr., of the
drivers' action on the night of January 2, 1950.=z Later that evening Giallanza,
Jr., called at least two of the drivers, Lodato and Kinne, and queried them about
the concerted activities and the purpose of organizing the Modern Cleaners
27 See supra for a detailed account of the conversation between Shults and Giallanza, Jr.
MODERN CLEANERS COMPANY 61
Employees Protective Association. Giallanza, Jr., admitted that he had called
at least Lodato and Kinne and possibly other drivers on the night of January
2 and asked them about their meetings with Shults.
The record clearly shows that Giallanza, Jr., called the drivers after he had
been advised by Shults of their concerted activities and the formation of Modern
Cleaners Employees Protective Association. He knew then or at least should
have known that interrogation of employees as regards their union or concerted
activities is violative of the Act. The Board and the courts have so found in
a long line of cases, too numerous to enumerate or elaborate on herein. Moreover
his interrogation must be considered in the light of the Respondent's entire
course of conduct thereafter, and the whole gamut of its relationship with its
employees as regards their efforts to enjoy the rights guaranteed them under
Section 7 of the Act.
In view of the foregoing and upon the record as a whole, the undersigned
finds that the Respondent by Giallanza, Jr.'s interrogation of Lodato and Kinne
concerning their union and concerted activities violated Section 8 (a) (1) of the
Act.
The complaint also alleges that the Respondent solicited its employees to
abandon the strike described above and return to work. The undersigned has
found, above, that the strike referred to was an unfair labor practice strike.
During the course of the strike the Respondent admittedly, by both the Gial-
lanzas, solicited Helen Poklinkowski to abandon the strike and return to work.
Another striker, Mary Norton, was likewise solicited by Giallanza, Sr., during
the course of the strike. Marjorie Hadley was not only solicited by Giallanza,
Sr., to abandon the strike but was offered a wage increase of 10 cents per hour
to return to work. Giallanza, Jr., testified without contradiction that several
of the striking employees were requested to return to work by him and his
father, Giallanza, Sr., among whom was Esther Moran, who worked with Helen
Poklinkowski.
It is well settled that the solicitation of striking employees to abandon a
strike and return to work is violative of the Act. Such conduct on the part of an
Employer or his representatives necessarily has the effect of undermining the
authority of their chosen bargaining agent and thereby unlawfully intereferes
with the rights of the employees guaranteed them by Section 7 of the Act and is
violative of Section 8 (a) (1) of the Act.'
The complaint further alleges that the Respondent as a further inducement to
its employees to abandon the strike granted several of them wage incerases.
The Respondent admits that it granted wage increases during the priod of the
strike. Among those granted increases were Marjorie Hadley, 10 cents per hour,
and Marion Alberts, .021/2 cents 2a The Respondent contends that she was justi-
fied in granting the wage increases for the reason that she had promised the indi-
vidual employees involved a pay raise before the strike. The record, however,
does not sustain this contention. Take the case of Marjorie Hadley, she not only
was granted a wage increase but a promotion as well. There is no substantial
evidence in the record to show that the Respondent had contemplated this action
prior to the strike or discussed it with Hadley, except the testimony of Giallanza,
Sr., which the undersigned does not credit in this regard. In all, 11 striking
employees were granted wage increases during the course of the strike.
Assuming that the Respondent had discussed a wage increase with her em-
ployees prior to the strike, the gravamen of its position is that it granted the
28 See Sam'l Bingham's Son Mfg. Co, 80 NLRB 1612; Cat hey Lumber Company, 86 NLRB
157 ; Cincinnati Steel Castings Company, 86 NLRB 592.
20 See infra.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increases during the period of the strike. The only plausable inference that can
be drawn from the Respondent's action in this regard is that it was done for
the purpose of causing her employees to abandon the strike and to discourage
their union or concerted activities. It is well settled that such conduct by an em-
ployer under the circumstances described herein is violative of Section 8 (a) (1)
of the Act, and the undersigned so finds 85
The complaint also alleges that the Respondent by her agents and supervisory
employeees including Charles Giallanza, Sr., and Charles Giallanza, Jr., Paul
Nicholson, Edward Brown, and Ralph Locker urged and persuaded her employees
to join or become members of Modern Cleaners Employees Association and to
withdraw from and cease assisting Modern Cleaners Employees Protective As-
sociation or Local 65, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. L.
The uncontradicted and undenied testimony in the record clearly shows that
the Respondent by its plant superintendent, Paul Nicholson, requested Ralph
Locker, a presser," to prepare a petition which provided in its, caption that the
signatories thereto desired to withdraw from the Modern Cleaners Employees
Protective Association and become members of the Modern Cleaners Employees
Association. The undersigned has found above that the latter organization was
initiated, sponsored, formed, and supported by the Respondent in violation of
Section 8 (a) (2) and (1) of the Act.
Clearly the action of the Respondent described above was violative of the
Act. Particularly, where as here, the 8 (a) (2) dominated labor organization
was initiated, sponsored, and formed by the Respondent's top supervisory em-
ployees, Nicholson and Brown. Moreover, since the plant is small their sponsor-
ship becomes all the more coercive because of their close association with the
rank-and-file employees during working hours. Such conduct is clearly violative
of the Act and requires no lengthy discussion herein. Suffice it to say, however,
that the Board in a recent case, Phillips and Buttoroff, 96 NLRB 1091, 29 LRRM
1009, where a similar situation was before it, held that :
.. . It is well established that an employer violates Section 8 (a) (1) of
the Act, where, as here, it obtains resignations from a union by suggesting
and directly assisting, whether or not it enforces such conduct with explicit
threats of reprisal. See Lindley Box & Paper Company, 73 NLRB 553
[20 LRRM 1008] ; Southern Block and Pine Corporation, 90 NLRB 590
[26 LRRM 1253].
In view of the foregoing and upon the record as a whole, the undersigned finds
that the Respondent by the conduct described herein immediately above violated
Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
80 See Capital City Candy Co., 72 NLRB 411; Twin City Milk Producers Assn., 62 NLRB
282; Scharr and Shunery, 67 NLRB 980.
31 The General Counsel contends in his brief that Locker was a supervisory employee of
the Respondent at the time this incident occurred. The proof is to the contrary. There
is no showing in the record that he exercised or was vested with any of the attributes of a
supervisor as set forth in Section 11 of the Act. This is not to say, however, that the
Respondent was not responsible for his actions. To the contrary, the undersigned finds
that she is on the principle of agency. There is no question about it, Locker was desig-
nated by Nicholson, the plant superintendent, to not only prepare the withdrawal petition,
but to circulate it among the employees. A more clear-cut case of agency would. be
difficult to find. Consequently the undersigned finds that the Respondent, as the principal
is responsible for the acts of her agent, Locker, in engaging in the conduct described above.
- -MODERN CLEANERS COMPANY 63
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices,
the Trial Examiner will recommend that she cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent initiated, sponsored, dominated, and
interfered with the formation and administration of and contributed support
to the "Independent." It will therefore be recommended that the Respondent
withdraw all recognition from the "Independent" as representative of her em-
ployees for the purpose of dealing with the Respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other conditions of
employment, and completely disestablish it as such representatives.
It has been found that the Respondent discriminatorily discharged Donald
Kinne, Harry E. Wyckoff, Richard Gerould, Henry L. Carey, Donald Zirkelbach,
-John L. Coogan, Salvatore E. Lodato, Robert Furlong on January 3, 1950, and
Ivan Colegrove, who was refused reinstatement to his former job following his
unconditional offer to abandon the strike and return to work, on January 7,
1950. It will be recommended the Respondent offer to each of the employees
named above immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights or
privileges. It further will be recommended that the Respondent make whole
each of said employees for any loss of pay they may have suffered by reason
of the Respondent 's discrimination by payment of a sum of money equal to that
which each would have earned as wages from the date of the discrimination to
the date of an offer of reinstatement, less their net earnings during said period.
Loss of pay shall be computed on the basis of each separate calendar quarter
or portion thereof during the period from the Respondent's discriminatory action
to the date of a proper offer of reinstatement. The quarterly periods, herein
called quarters , shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by deducting from a sum equal to
which they would normally have earned for each quarter or portion thereof,
their net earnings , if any, in other employment during that period . Earnings in
one particular quarter shall have no effect upon the back-pay liability for any
other quarter . In accordance with the Woolworth decision " it will be recom-
mended that Respondent , upon reasonable request, make available to the Board
and its agents all records pertinent to an analysis of the amount due as back
pay.
As to Wayne Stuart , who is named in the complaint as having been dis-
criminatorily discharged by the Respondent on January 3, 1950 , the undersigned
will recommend that the complaint be dismissed as to him without prejudice for
reasons set forth hereinabove. .
The unfair labor practices found reveal on the part of the Respondent such a
fundamental antipathy to the objectives of the Act as to justify an inference that
the commission of other unfair labor practices may be anticipated. The previous
purposes of the Act may be frustrated unless Respondent is required to take
some affirmative action to dispel the threat. It will be recommended, therefore,
that Respondent cease and desist from in any manner interfering with, restrain-
ing, or coercing her employees in the exercise of rights guaranteed by the Act.
a2 F. W. Woolworth Co., 90 NLRB 289.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS or LAW
1. Local No. 65, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, A. F. L.; Modern Cleaners Employees Pro-
tective Association ; and Modern Cleaners Employees Association are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
the employees named above, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By dominating and interfering with the formation and administration
of and by contributing support to Modern Cleaners Employees Association,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (2) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the, meaning of Section 8 (a)
(1) of the Act.
5. The reliable, substantial, and probative evidence adduced at the hearing
herein does not conclusively show that the Respondent discriminatorily dis-
charged Wayne Stuart.
6. By discharging Marion Alberts the Respondent did not engage in any unfair
labor practices.
7. By failing to get in touch with and to offer reinstatement to Lena Rosell,
Esther Moran, Mildred Brown, and Beatrice ReCouper on April 28, 1950, when
they made application at Respondent's office for reinstatement, the Respondent
did not engage in any unfair labor practice.
8. By failing to reinstate Duane Powers to his or her former position or
substantially equivalent position the Respondent did not engage in any unfair
labor practices.'
9. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
33 The record does not divulge the sex of Duane Powers.
PLUSS POULTRY, INC. PETITIONER and AMALGAMATED MEAT CUTTERS
AND BUTCHER WORKMEN OF NORTH AMERICA, AFL. Case No.
32-RM 23. July 8, 1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Anthony J. Sabella, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
100 NLRB No. 7.