Tri-State Towel Service of the Independent Towel Supply Co.

National Labor Relations Board - Board Decisions

Jun 29, 1938

7 N.L.R.B. 1276 (N.L.R.B. 1938)

In the Matter of JACOB A. HUNKELE, TRADING AS TRI-STATE TOWEL
SERVICE OF THE INDEPENDENT TOWEL SUPPLY COMPANY and LOCAL
No. 40 UNITED LAUNDRY WORKERS UNION
In the Matter of JACOB A. HUNKELE, TRADING AS TRI-STATE TOWEL
SERVICE OF THE INDEPENDENT TOWEL SUPPLY COMPANY and LOCAL
No. 40 UNITED LAUNDRY WORKERS UNION
Cases Nos. C-394 and C--395.-Decided June 29, 1933
Linen Supply Service-Interference, Restraint, and Coercion: coercion; per-
suading employees to resign from union ; change in method of operating business,
resulting in reduction of number of employees, considered as-Discrimination:
strikers: execution of closed-shop contract with other union considered as
discharge-Unit Appropriate for Collective Bargaining: all employees, excluding
supervisory employees; organization of business; history of collective bargain-
ing relations with employer-Representatives: proof of choice: union mem-
bership application cards-Collective Bargaining: employer's duty : contem-
plated sale of business, effect upon; threat of strike at other plant, effect upon;
negotiation in good faith : dilatory and evasive tactics ; meeting with repre-
sentatives but with no bona fide intent to reach an agreement ; special form
of remedial order : recognition as exclusive representative ; negotiation-Rein-
statement Ordered: discharged strikers, upon application, dismissing employees
hired since execution of closed-shop contract ; preferential list ordered : to be
followed in further reinstatement-Back Pay: awarded to discharged strikers,
from date of closed-shop contract to date of offer of reinstatement or place-
ment on preferential list ; not to include period between date of Intermediate
Report and date of Decision-Strike: result of employer's unfair labor prac-
tice-Contract: closed-shop, with union not representing any of employees, held
void and of no effect ; employer ordered to cease giving effect to.
Mr. Jacob Blum, for the Board.
Mr. Charles Z. Heskett, of Cumberland, Md., for the respondent.
Mr. Jack M. Grayson, of Cumberland, Md., for Local Union 543,
I. B. of T. C. S. & H. of America.
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Local No. 40, United Laundry Workers
Union, hereinafter called the Union, the National Labor Relations
1276
DECISIONS AND ORDERS ' '1277
Board, herein -called. the Board, by Bennet F. Schaufer, Regional
Director for the Fifth Region (Baltimore, Maryland), duly issued
and served its complaint dated November 9, 1937, against the Tri-
State Towel Service' of the Independent Towel Supply Company,
Cumberland, Maryland, ,herein',called,.the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7)' of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Thereafter, on November
23, 1937, an additional charge was filed by the Union alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (5)
of the Act. On November 23, 1937, the respondent filed its answer
to the complaint in which it denied that it had engaged in or was
engaging in the unfair labor practices alleged therein.
Pursuant to notice,•a hearing 'was held in Cumberland, Maryland,
on November 26, 1937, before Henry W. Schmidt, the Trial Exam-
iner' duly"designated by the Board. At the hearing, by stipulation,
service of notice of a copy of the additional charge was waived by
the respondent, and the complaint herein orally amended so as to
include allegations of a violation of Section 8 (5) of the Act; and
to allege the proper name of the respondent as Jacob A. Hunkele,
Trading as Tri-State Towel Service of the Independent Towel Sup-
ply- Company. It was also stipulated that the complaint, asr
amended, would be reduced to writing and incorporated in the record
at the conclusion of the hearing in the same manner and to the
same effect as if the amended complaint had been filed prior to
the beginning of the hearing.
At,the hearing the Board and the respondent were represented by
counsel, and Jack M. Grayson, recording secretary and business man-
ager, appeared for Local Union 543, International Brotherhood of
Teamsters, ' Chauffeurs, Stablemen and Helpers of America, herein
called Local Union 543, and was granted permission by the Trial
Examiner to intervene on behalf of this organization. At the open-
ing of the hearing a motion was'presented liy counsel for the respond-
ent to dismiss the complaint on the grounds (1) that the character
of the business in which the respondent was engaged was not com-
merce within the meaning of the- Act; (2) that the complaint, as
amended, was too indefinite to permit the respondent properly to
answer it; and (3) that the record showed on its face that there
was no labor controversy to be made the' subject of inquiry on
the part of the Board. This motion was'denied by the Trial Exam-
iner. His ruling is hereby affirmed. Full opportunity to be heard,
to examine and cross-examine witnesses, and to produce evidence
1278 NATIONAL LABOR RELATIONS BOARD
bearing upon the issues was afforded all the parties. At the close
of the hearing, counsel for the Board moved that the pleadings be
conformed to the proof and counsel for the respondent renewed the
motion to dismiss, presented at the beginning of the hearing. The
former was granted and the latter; denied'-by, -the , ,Trial Examiners
His rulings are hereby affirmed. During the course of the hearing,
the Trial Examiner made several rulings on other motions and ob-
jections to the admission of evidence. The Board has re'iewed
these rulings and finds that no prejudicial errors were committed.
After the close of the hearing the attorney for the Board submitted
the amended complaint and it was incorporated in the record in
accordance with the above-mentioned stipulation. The two charges
herein having been filed separately the Board issued an order on
February 11, 1938, formally consolidating the two proceedings.
On January 31, 1938, the Trial Examiner filed an Intermediate
Report finding that the respondent had engaged in-unfair, -labor'R
practices affecting commerce within the meaning of Section 8 (1),
.(3), and (5) and Section 2 (6) and (7) of the Act. The respondent
and the Union filed exceptions to the Intermediate Report. The
respondent also filed a brief which has been carefully considered by
the Board.
Pursuant to notice, a hearing was held before the Board on March
15, 1938, in Washington, for the purpose of oral argument. The
respondent and the Union were represented by counsel and partic-
ipated in the oral argument. For the reasons hereinafter stated,
we depart in certain respects from the findings, conclusions, and
recommendations of the Trial Examiner, and to that extent, sustain
the exceptions to the Intermediate Report. Otherwise we find them
without merit.
. Upon the entire record in the case, the Board-makes the following:
FINDINGS OF FACT
1. THE 13USINESS OF TIIE RESPONDENT
Jacob A. Hunkele, Trading as Tri-State Towel Service of the
Independent Towel Supply Company of Cumberland, Maryland, is
one of several companies operated by Jacob A. Hunkele of Pitts-
burgh, Pennsylvania. Each of these companies is operated under
an individual trade name in a different community. The Cumber-
land, Maryland, plant is operated as a separate business and is
engaged in furnishing towels, soap, aprons, coats, and cabinets to
restaurants, barber shops and other business enterprises in the vicinity
of Cumberland, Maryland, and to some establishments located in
West Virginia and Pennsylvania. Ten per cent of this business is
b
DECISIONS AND ORDERS 1279
transacted in West Virginia and Pennsylvania and the balance in
Maryland. The executive office of Jacob Hunkele for the several
companies is located in Pittsburgh, Pennsylvania, where all the sup-
plies are purchased for the companies, principally through jobbers
located outside of Pennsylvania and Maryland and then delivered
by the respondent's trucks to the individual companies. Prior to
September 7, 1937, all the laundering for the Cumberland plant was
done under contract with a laundry at Cumberland. After that
date, the soiled linen was transported by the respondent's trucks to
its laundry in Pittsburgh, laundered, transported back to the Cum-
berland plant in the same manner, and then distributed from that
point. Prior to September 7, 1937, there were six employees en-
gaged at the Cumberland plant. After that date the force was
reduced to three due to a changed method of operating the business.
II. THE ORGANIZATIONS INVOLVED
Local No.r 40, United- Laundry Workers Union, affiliated with the
Committee for Industrial Organization, is a -labor organization ad-
mitting to membership all employees of the respondent engaged in
its Cumberland, Maryland, business.
. Local Union 543, International Brotherhood of Teamsters,
Chauffeurs; Stablemen and-Helpers, of America, affiliated with the
American -Federation of Labor, is a labor organization admitting to
membership all the employees of the respondent engaged in its Cum-
berland, Maryland, business. ' - -
III. THE UNFAIR LABOR PRACTICES
A. The chronology of events
Harold P. Athey, a so-called driver-salesman at, the Cumberland
plant of the respondent;'-joined the Union on May 10, 1937. At that
time there were six employees engaged in the respondent's business at
Cumberland. There were three driver-salesmen, one of them; Charles
R. Pickering, having the designation of route foreman,' 'one 'seam-
stress and sorter, one man who did general work around the plant,'
and a combined bookkeeper and stenographer. Charles R. Pickering,
while' not considered a supervisory -employee in a strict sense; since
he-had no authority to hire or, discharge,' -had general charge-of the
plant. It was his duty to check the other driver-salesmen' in and out,
to make the-bank deposits, and perform routine duties incident to the
general conduct of the Cumberland business. Actual- management
and supervision of the Cumberland business was at all times handled
by the respondent's Pittsburgh' office., ' - ' '
1280 NATIONAL LABOR- RELATIONS BOARD
After Athey joined the Union, Fred Pickering, general manager of
the respondent's several enterprises, who was not related to Charles
Pickering, wrote to Charles Pickering and inquired concerning
Athey's membership in the Union.
By July 27 all six of the employees in the Cumberland business
had joined the Union. On July 28 Ernest Pueschel, business agent
for the Union, wired the respondent 'at Pittsburgh advising him that
the Union represented all the employees, at the Cumberland plant,
and had been designated as their bargaining representative. He re-
quested a conference at an early date. Fred Pickering replied advising
Pueschel that he would be in Cumberland within the next few weeks
and would communicate with him.
Fred Pickering came to Cumberland on August 13 and met with
the employees and Pueschel. A draft of a contract containing the
demands of the Union was presented to Fred Pickering, who re-
quested a few days to consider it. He stated that he was en route to
Clarksburg, West Virginia, where the respondent conducted a simi-
lar enterprise to that in Cumberland, and that he would confer fur-
ther relative to the demands upon his return to Cumberland on
August 15.
On August 15 Fred Pickering again met with the employees and
Pueschel.. At this meeting he 'stated that lie thought all the pro-
visions 'of the proposed contract would be acceptable to the respon-
dent with the exception of the increase in wages provided therein, but
that the matter would have to be submitted to the respondent for his
decision. He assured the employees and their representative that
this would be done upon his return to Pittsburgh, and that they would
be advised of the result. Shortly after Fred Pickering's return to
Pittsburgh, a man by the name of Lindsey was placed in charge of
the Cumberland business Charles Pickering was retained, however,
in the capacity of a driver-salesman.
No word from the respondent or Fred Pickering having been re-
ceived by August 25, Pueschel wired the respondent that unless an
answer to the demands was received before August 27 the employees
would strike. On the night of August 27 no answer having been re-
ceived, the employees voted to strike. It was decided, however, to
hold the strike in abeyance pending the respondent's reaction to the
action which had been taken. On the morning of August 28 Fred
Pickering again came to Cumberland. He had received information
regarding the strike vote and came for the purpose of ascertaining
whether or not the plant was still in operation. Fred Pickering and
Lindsey took Charles-Pickering into a room apart from the other
employees and Fred Pickering suggested to him that the fact that the
employees had joined a union would not "prevent the company
DECISIONS AND ORDERS 1281
from getting rid of them ." After Charles Pickering replied that all
of the employees were going to "stand together ," they returned to the
other room and Fred Pickering then addressed all the employees. He
informed them that it would be impossible for the respondent to enter
into a 'contract ' with ' the Union but that if the employees would
abandon their membership in the organization they would obtain
a "substantial" wage increase.
.In'the afternoon of the same day, Fred Pickering suggested the
possibility of friction developing if the respondent entered into a
contract with the Union because of the existence of 'prior closed-shop
contracts with American Federation of Labor organizations covering
the employees*at his Pittsburgh plant. He then stated that it would
be necessary for him to confer further with the respondent relative to
the demands , and the meeting adjourned.
- The next meeting occurred on September 3, in the office of the
respondent 's attorney , Charles Z. Heskett . Heskett, Fred Pickering,
Pueschel , and Robert Gaitens, a representative of the Committee for
Industrial Organization , were present . Pickering informed the rep-
resentatives of the Union that negotiations for the sale of the respon-
dent's business at Cumberland were being conducted between the re-
spondent and George Young, proprietor - of a laundry at Cumberland,
who did the respondent 's laundry under contract . When the subject
of possible friction developing with the American Federation of
Labor if the respondent entered into a contract with the Union was
again broached by Pickering , Pueschel advised him that Scott F.
Marshall , secretary and treasurer of the Teamsters , Chauffeurs , Stable-
men and Helpers of America, Local Union 246 , at Pittsburgh, herein
called Local Union 246, was aware of the efforts of the, Union to
,negotiate a contract with the respondent and had indicated a coopera-
tive attitude in this respect. Pickering then stated that it would be
unnecessary to enter into a contract with the Union if the Cumberland
business was sold to Young, since Young already had contracted with
the Union as the representative of the employees at his own Cumber-
land plant. Pickering also stated that Young had agreed to give the
respondent a definite answer to the proposition by September 10.
The representatives of the Union then agreed that strike action on
the part of the employees would be deferred until Young acted on the
proposed , sale `on or before September 10.
Both Pueschel and Gaitens testified that on the same day that the
agreement with the respondent was made, they were advised that the
proposed sale, to George Young would not take place . - Gaitens testi-
fied that he received this information from George Young. Young
testified that some negotiations were conducted by him with the re-
spondent regarding a purchase of the respondent 's Cumberland busi-
1282 NATIONAL LABOR RELATIONS BOARD
ness and that the negotiations were finally terminated by his rejection
of the proposition in the latter part of August or early in September.
He was uncertain as to the date. Young testified further that he ad-
vised Gaitens that the purchase of the Cumberland business would
not be made, but was uncertain as to whether this information was
given to Gaitens on September 3 or thereafter.
When Pueschel received the information that the sale to Young
would not be made he went to Heskett's office and questioned him
regarding certain statements that Heskett had made at the conference
between the parties earlier in the day to the effect that the respondent
would reduce the force of employees at Cumberland in the event that
the sale to George Young was not consummated. Heskett advised
Pueschel that the force at Cumberland would be reduced unless
Young purchased the business. Upon leaving Heskett, Pueschel went
immediately to the plant and imparted to the employees the informa-
tion he had received regarding the sale and the contemplating force
reduction. A strike vote was taken by the, employees and Hunkele
was advised by wire of the strike. The employees quit work on the
'morning of September 7 but did not begin picketing the plant be-
cause of an ordinance of the city of Cumberland requiring the issuance
of a permit for such a purpose. This permit was obtained several
days later but the employees did not actually picket, contenting
themselves with driving around in the vicinity of the plant for a few
days.
On September 8 Marshall, secretary and treasurer of Local 246,
called Jack Grayson, Cumberland representative of Local Union 543
of the Teamsters, and advised him that he was sending down two
experienced drivers from the respondent's Pittsburgh plant, members
of Local Union 246, to operate the respondent's Cumberland plant.
On September 11, 4 days after the strike began, the respondent
entered into a separate closed-shop contract with Local Union 543
covering the employees engaged in the Cumberland business. None
of the respondent's six striking employees were members of this
organization, but all were still members of the Union. On the fol-
lowing Monday two members of Local- Union 246, 'sent by Marshall
from Pittsburgh, arrived in Cumberland and the respondent resumed
operations at Cumberland. Grayson then furnished three men to be
trained by the Pittsburgh members of Local Union 246 in the duties of
driver-salesmen. These three men were all members of Local Union
543. The record does not disclose how long the two Pittsburgh em-
ployees remained in Cumberland but within a short time their duties
were assumed by the three new employees. When the plant resumed
operation the practice of having the laundry work done by George
Young's laundry in Cumberland' was discontinued. Thereafter, the
DECISIONS AND ORDERS 1283
soiled linen was taken by the respondent's truck to his Pittsburgh
plant for laundering and then returned to Cumberland, from where it
was distributed. This was still the practice at the time of the hearing.
The strike was still going on at the time of the hearing, although
as we have stated, no actual picketing ever took place. With the ex-
ception of the week that the strike began, the Cumberland business
has continued in operation. The six striking employees have never
made application for reinstatement. Under the new method of hav-
ing the laundry work done at Pittsburgh only the three employees
furnished by Grayson are now engaged in the respondent's Cumberland
business.
B. The refusal to bargain
1. The appropriate unit
The complaint alleges that the chauffeurs, helpers, seamstresses,
and office employees engaged in the Cumberland, Maryland, plant
of the respondent constitute an appropriate unit. This includes all
the employees engaged in the respondent's Cumberland business prior
to the strike, with the exception of Lindsey, who was admittedly a
supervisory employee. The respondent's principal contention regard-
ing the appropriate unit is that; since the respondent had changed the
method of operating the Cumberland business so that an integral part
of the operations are performed in its Pittsburgh plant, the employees
at Cumberland do not constitute an appropriate unit for collective
bargaining. Since the change was made after the strike began, this
contention virtually operates as an admission that the employees
at Cumberland constituted an appropriate unit at the time of the
commission of the alleged unfair labor practices.
The record discloses that the respondent operates a service and
laundry in Pittsburgh and a service enterprise in both Cumberland,
Maryland, and Clarksburg, West Virginia. The business at Cumber-
land has always been conducted as a separate and distinct enterprise.
Apart from the fact that the executive office of all the enterprises is
located in Pittsburgh, the Cumberland business had nothing in com-
mon with the others. Necessary supplies for their proper operation
come from Pittsburgh. In the respondent's relations with its em-
ployees, the employees of each business have been treated as separate
bargaining groups. Hunkele testified that he had entered into closed-
shop contracts with Local Union 246 and with two other American
Federation of Labor local unions covering his employees at Pittsburgh
several months prior to the Union's organization of the respondent's
Cumberland employees. Neither the respondent nor the labor or-
ganizations treated the Cumberland employees as being in any man-
ner related to the Pittsburgh employees, and no effort was made by the
1284 NATIONAL LABOR RELATIONS BOARD
American Federation of Labor unions to include them in the em-
ployee organizations at Pittsburgh, or to make them subject to the
provisions of the Pittsburgh closed-shop contracts. There is no doubt
from the record that Marshall, of Local Union 246, had full knowledge
of the organizational efforts of the Union practically from the incep-
tion of the movement, and his conduct clearly indicates that he con-
sidered the Cumberland employees entirely independent of the em-
ployees at Pittsburgh. The respondent's attorney admitted during the
course of oral argument that the employees at Clarksburg, West Vir-
ginia, were also treated by the respondent and the unions as separate
groups for bargaining purposes.
The three present employees are all driver. salesmen engaged in the
same work as the strikers whom they displaced and the essential part
of the respondent's Cumberland business is still being conducted sep-
arate and apart from any of the respondent's other enterprises.
Moreover, the respondent recognized the propriety of the unit when
it entered into a closed-shop contract on September 11 with Local
Union 543. At that time, if the parties had considered the em-
ployees at Cumberland an' integral part of 'a unit including the
respondent's employees at Pittsburgh, the contract would have been
unnecessary because of the fact that the employees at Pittsburgh
were already covered by a contract with Local Union 246 of the same
organization.
We find that all the employees engaged in the Cumberland, Mary-
land, business of the respondent,' excluding supervisory employees,
constitute a unit appropriate for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and that such a unit insures to the em-
ployees the full benefit of their right to self-organization and collective
bargaining, and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
As we have already indicated, all six of the respondent's employees
engaged in its Cumberland business were members of the Union when
the union representative, Pueschel, wired Hunkele on July 28 request-
ing a conference for the purpose of bargaining on behalf of these em-
I.,loyees. No question was raised by the respondent or Fred Pickering
at any time during the subsequent meetings between the parties re-
garding the fact that all six of the employees were bona fide members
.of the Union. The membership application cards of all six em-
ployees are in evidence and their authenticity was- never questioned by
the respondent.
We find that on July 28, 1937, and at all times thereafter, the Union
was the duly designated representative of the majority of the em-
DECISIONS AND ORDERS 1285
ployees in an appropriate unit, and pursuant to Section 9 (a) of the
Act, was the exclusive representative of all the employees in such unit
for purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain
The respondent contends that he acted in absolute good faith in
his dealing with the Union, but that the Union acted in bad faith
and breached an agreement with him. The record, however, does not
support this contention.
At the; first, two meetings between Fred Pickering and the employees
and their representative on August 13 and 15, no bargaining took
place. According to Fred Pickering he had no authority actually to
negotiate concerning the terms of the agreement presented to him,
but could only submit the matter to the respondent. These two meet-
ings occurred over 2 weeks after Pueschel had wired the respondent
advising that the Union represented the employees and requesting
bargaining negotiations. Sufficient time had elapsed between the
notice and the conferences to give the respondent ample opportunity
to consider the matter, but instead of being prepared to conduct gen-
uine negotiations, the respondent sent Fred Pickering, who had no
authority to make any agreement with-the-Union, or at least who
claimed that he had no such authority. Pickering ended the confer-
ence on August 15 by stating that he would have to confer with the
respondent regarding the demands and assured the employees that
this would be done upon his return to Pittsburgh.
Even then, bad faith would not have been so apparent, if it had not
been for the respondent's subsequent actions. As soon as Fred Pick-
ering returned to Pittsburgh; Lindsey was sent down to relieve
Charles Pickering of his position of responsibility in the Cumber-
land business. No explanation was given to Charles Pickering as to
why this was done; and no answer to the employees' pending demands
was given. The employees then concluded that the respondent did not
intend to bargain with the Union and voted to strike on August 27.
The next morning Fred Pickering arrived in Cumberland and met
with the employees. His conduct on that,occasion leaves no doubt
as to the respondent's antipathy to the Union and his intention not
to carry on negotiations with that organization. Fred Pickering's
conversation with Charles Pickering, apart from the other employees,
and his subsequent conversation wherein lie offered all the employees
F. "substantial" wage increase if they would abandon the Union, were
obviously coercive in their nature. At the meetings on this date, the
respondent advanced for the first time the possibility of friction with
the American Federation of Labor local nnionsIas a reason for not
1286 NATIONAL LABOR RELATIONS BOARD
negotiating a contract with the Union. Even at this meeting, when the
employees were again defeated in their efforts to bargain, they were
persuaded to withhold any strike action so that Fred Pickering could
confer further with the respondent because of Pickering's lack of
authority to negotiate an agreement.
The respondent is not in a position to assert bad faith on the part
of the Union in connection with the agreement made on September 3
to defer strike action. During the period from July 28 until Sep-
tember 3, the Union had been attempting to negotiate with the re-
spondent, but had been unsuccessful because of the latter's dilatory
and evasive tactics. Hunkele admitted on the stand that -until the
hearing he had never seen the written demands submitted by the
Union on behalf of the employees. In view of Fred Pickering's previ-
ous conduct it is understandable that the employees were skeptical of
his motive in requesting them to withhold strike action until Sep-
tember 10, and since Hunkele had never even been apprised of their
demands their skepticism was justified. Therefore, when the em-
ployees received information on the same date that the agreement to
defer strike action was made that the sale to George Young would not
take place, and that. respondent 'intended to reduce the force of em-
ployees at Cumberland, they decided to strike. The Union had agreed
to hold strike action in abeyance only until such a time as George
Young either accepted or rejected the proposition. Since the re-
spondent offered no evidence to refute the testimony of Gaitens and
Pueschel to the effect that on the same date that the agreement was
made, George Young informed them that the sale would not be con-
summated, which testimony was partially corroborated by Young, it
is apparent that the employees' action in calling the strike did not
constitute a breach of the agreement. As a matter of fact, when we
consider the agreement in the light of the respondent's prior actions
serious doubt is cast upon the respondent's good faith in having the
Union make such an agreement. The employees were induced. by
Fred Pickering to refrain from striking, after they had voted to strike
on August 27, because of his promise to confer further with the re-
spondent regarding their demands. In view of the respondent's previ-
ous conduct and his admission that he had neither seen the written
demands of the Union, nor given them any consideration, it is con-
clusively shown that the respondent did not intend to bargain with
the Union.
The respondent also contends that it was impossible for him to
enter into an agreement with the Union because Local Union 246
would have called a strike of his Pittsburgh employees. In the
beginning of the' efforts on the part of the Union to bargain this
proposition evidently did not occur to the respondent because the first
DECISIONS AND ORDERS 1287
time it was advanced was at the meeting between Fred Pickering
and the employees on August 28. Even then there was no actual
basis for this apprehension 'as the officials of Local Union 246 had
not indicated to him what course they would pursue in the event such
a contract was executed. The respondent admitted on the stand that
Marshall had neither threatened to call a strike, nor indicated that
he would take any sort of action in the matter, until he was informed
by the respondent on September 8, the day after the Cumberland
strike began, that the Cumberland employees were striking because
of the respondent's refusal to enter into a contract with the Union.
According to the respondent's testimony, after receiving this informa-
tion which was unsolicited by Marshall, the latter then informed the
respondent that he would call a strike at the Pittsburgh plant if
such a contract was executed. In view of these undisputed facts
it is plain that the respondent was the author of the idea that a
contract with the Union would be objectionable to Local Union 246,
and it is reasonable to conclude that Marshall raised such an ob-
jection only upon the respondent's solicitation after the strike began.
It is apparent from the record that the respondent had no inten-
tion to make .an honest effort to arrive at an agreement with the
Union. Neither the contemplated sale of the Cumberland business to
George Young nor the threat of Local Union 246 to call a strike at the
respondent's Pittsburgh plant, if such a threat actually existed,
relieved the respondent of his obligation to bargain collectively with
the Union. As a matter of fact, it is clearly indicated that the
respondent's actions throughout were principally motivated by his
hostility to the Union and by his desire to avoid bargaining with it.
We find that the respondent on July 28, 1937, and at all times
thereafter, refused to bargain collectively with the Union as the
representative of his employees engaged in his Cumberland business
in respect to rates of pay, wages, hours of employment, and other
conditions of employment. We further find that by offering the
employees a substantial wage increase in return for their abandon-
ment of the Union and threatening discrimination because of union
membership the respondent has interfered with, restrained, and
coerced his employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
C. The closed-shop contract with Local Union 543
In view of the above findings the contract of September 11 with
Local, Union 543 is clearly invalid. The respondent admitted that
none of the employees engaged in his Cumberland, Maryland, busi-
ness were members of this organization at the time the contract was
executed. Since at the time of the execution of the contract of Sep-
106791-38-vol vn--82
1288 NATIONAL LABOR RELATIONS BOARD
tember 11, 1937, Local Union 543 represented none of the respond-
ent's employees engaged in his Cumberland, Maryland, business, it
is void and of no effect.'
D. The discharges
The Trial Examiner concluded that the respondent had violated
Section 8 (3) of the Act upon the basis of the facts found in his
Intermediate Report. The respondent excepted to this conclusion.
The Unfon in its exceptions to the Trial Examiner's Intermediate
Report contended that the action of the respondent in entering into
the closed-shop contract of September 11, 1937, with Local Union
543 precluded the possibility of the reemployment of the striking
employees and thus obviated the necessity for actual application by
the strikers, and prayed for reinstatement and back pay for the
strikers from the date of the closed-shop contract.
The strike commencing on September 7 and in progress on Septem-
ber 11 when the respondent entered into the closed-shop contract
with Local Union 543 was a labor dispute caused by the respondent's
unfair labor practice in refusing to bargain with the Union. Under
the Act the striking employees retained their status as employees of
the respondent and were still afforded the protection of the Act
against the unfair labor practices denounced by it.2 Moreover, since
the strike was caused by the respondent's unfair labor practices the
striking employees were, as we have frequently held, entitled to
reinstatement to their former positions with the respondent.' Con-
sequently, imposition by the respondent of the illegal closed-shop
contract as a discriminatory condition which would have the effect
of denying the striking employees reinstatement if and when they
ceased striking constitutes a violation of Section 8 (3) of the Act.
Unquestionably, the respondent's execution of the closed-shop contract
with Local Union 543 was such a condition because it conclusively
and effectively precluded any possibility of the striking employees
obtaining reinstatement to their former positions with the respondent
unless they became members of Local Union 543. The record dis-
closes that the striking employees received information as to the
execution of the closed-shop contract within a short time after its
execution. Since this action on the part of respondent was of itself
I Matter of Lenox Shoe Company, Inc and United Shoe Workers of America, 4 N. L. R. B.
372.
a National Labor Relations Board vs. Mackay Radio Telegraph Company, U. S. Supreme
Court, May 16, 1938, 58 S Ct. 904.
3Black Diamond Steamship Corp. vs. National Labor Relations Board, 94 Fed. (2nd);
875, certiorari denied May 23, 1938, 58 S. Ct. 1044; Jeffery-DeWtitt Insulator Co, Inc., vs-
National Labor Relations Board, 91 Fed (2nd), 134, certiorari denied October 18, 1937,
302 U S 731, Remington Rand, Inc vs. National Labor Relations Board, 94 Fed (2nd),
862, certiorari denied May 23, 1938, 58 S. Ct. 1046.
DECISIONS AND ORDERS 1289
an act of discrimination which is condemned under the plain pro-
visions of the Act, it was tantamount to a discharge of the striking
employees on September 11, 1937, the date when the discriminatory
condition-of reinstatement was imposed by the respondent. There-
after, any application for reinstatement by the striking employees
was obviously futile unless the men complied with the discriminatory
condition. The erection of this illegal barrier against reemployment
of these employees relieved them of the necessity of making formal
application for work. To hold otherwise would be to place a penalty
upon the striking employees for not doing what they knew would
have been useless.4
We find that the respondent by the acts set forth above discrim-
inated in regard to the tenure of employment of Mary Dowl, Pauline
Wagner, Harold Athey, Claude Largent, Charles Pickering, and
Bernard Dowl, thereby discouraging membership in the Union and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
E. The reduction in the force of employees engaged in the respond-
ent's Cumberland, Maryland, business
The respondent contends that the change in the method of operating
the Cumberland business which resulted in the, reduction in the
number of employees from six to three was due entirely to economic
conditions which made it no longer profitable to operate the business
in the old manner. The evidence does not support this contention
since sufficient facts are not disclosed in the record for the Board
to determine what economies, if any, were effected by the change.
The first indication which was given that the respondent was con-
sidering changing the method of operating the business was in the
conversation that Pueschel had with Heskett on September 3, 1937,
after the Union had been endeavoring unsuccessfully for a period
of over a month to carry on negotiations with the respondent. If
there had been any indication prior to that time that the respondent
considered it desirable or necessary to change the method of operating
the business or that the respondent was acting in good faith in his
dealings with the Union, it might lend credence to the respondent's
contention. But the respondent's decision to make the change, com-
ing as it did as the last of an inseparable series of events occurring
after the Union had persistently endeavored to bargain collectively
with the respondent, convinces us that the Cumberland business would
still be operating with the original force of six employees if those em-
'Matter of Carlisle Lumber Company and Lumber & Sawmill Workers Union , Local 2511,
Onalaska , Washington, and Associated Employees of Onalaska, Inc., Intervener, 2 N. L.
R. B. 248, enforcement ordered 94 Fed (2nd), 138, certiorari denied May 23, 1938, 58
S. Ct. 1045.
1290 NATIONAL LIBOR RELATIONS BOARD
ployees had not become members of the Union and had not sought
to negotiate a contract with the respondent in their behalf.
Accordingly, we find that the respondent's change in the method
of operating his Cumberland, Maryland, business was for the pur-
pose of avoiding his duty under the Act to bargain collectively with
the Union. We also find that by his action in reducing the em-
ployees engaged in the Cumberland business from six to three the
respondent interfered with, restrained, and coerced his employees
in the exercise of their right of self-organization and collective
bargaining through representatives of their own choosing as guar-
anteed in Section 7 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 de-
scribed in Section I, above, have a close, intimate, and substantial,
relation to trade, traffic, and commerce among the several States,
and have led and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
THE REMEDY
We have found that the strike of September 7, 1937, was caused
by the respondent's unfair labor practices in refusing to bargain with
the Union, and further that the respondent's subsequent action in
entering into the closed-shop contract with Local Union 543 consti-
tuted a discriminatory discharge of the six striking employees. We
have also found that the respondent's action in reducing the force of
employees from six to three was an unfair labor practice. While
we will not require the respondent to resume operations with a full
force of six, we will order immediate reinstatement of all six, such
reinstatement to be effected in the following manner : All employees
hired after the commencement of the strike shall, if necessary to
provide employment for those to be offered reinstatement, be dis-
missed. If thereupon by reason of the reduction in force there is not
sufficient employment immediately available for all the employees to
be offered reinstatement, those employees for whom employment is
not available shall be placed upon a preferential list and shall there-
after, in accordance with such list, be offered employment in their
former or in substantially equivalent positions, as such employment
becomes available and before other persons are hired for such work.
Furthermore, we will order that all six of these employees be made
whole for any losses of pay they have suffered by reason of the
respondent's unlawful conduct in discharging them, by payment of
DECISIONS AND ORDERS 1291
back wages up to the date of reinstatement or placement on the pref-
erential list. However, since this is contrary to the conclusion and
recommendation of the Trial Examiner in his Intermediate Report
we will exclude from the computation of their back pay the period
from January 31, 1938, the date of the Intermediate Report to the
date of the order herein . This follows our rule that - the respondent
could not have been expected to reinstate the discharged employees
after it received the Intermediate Report which did not contain such
a conclusion and recommendation.
We have also found that the closed-shop contract of September 11,
1937, was with an organization which did not represent any of the
respondent 's employees engaged in his Cumberland business. For
this reason the contract is void and of no effect and the respondent 'will
be ordered not to give it effect.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLusioNS OF LAw
1. Local' No. 40, United Laundry Workers Union, affiliated with
the Committee for Industrial Organization, and' Local Union 543,
-International Brotherhood of Teamsters , Chauffeurs , Stablemen and
Helpers of America, affiliated with the American Federation of
Labor, are labor organizations, within the meaning of Section 2 (5)
of the Act.
2. The strike of the respondent 's employees engaged in his Cumber-
land, Maryland , business is a current labor dispute within the mean-
ing of Section 3 (9) of the Act.
3. All of the employees engaged in the Cumberland, Maryland,
business of the respondent , excluding supervisory - employees , consti-
tute a unit appropriate for the purposes of collective' bargaining
within the meaning of Section 9 (b) of the Act.
4. By virtue of Section 9 (a) of the Act, Local No. 40, United
-Laundry Workers Union, affiliated with the Committee for Industrial
Organization was on July 28, 1937, and at all times thereafter, has
been, the exclusive representative of all the employees in such unit
'for the purposes of collective bargaining.
5. The respondent, by ' refusing to bargain collectively with the
exclusive representative of '-the employees in such unit on July 28,
"1937., and thereafter ,'has' engaged in and is engaging 'in unfair labor
practices; within the meaning of Section 8 ( 5) of the Act. "
i ' 6. The respondent;' by discriminating in• regard to 'the hire and
tenure of employment of Mary Dowl, Pauline Wagner, Harold Athey,
Claude Largent, Charles Pickering , and Bernard Dowl , has engaged
1292 NATIONAL LABOR' 1tELATION S--BOARD
in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
7. The respondent, by interfering with, restraining, and coercing
his employees, in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section, 2 (6) and '(7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
Jacob A. Hunkele, Trading as Tri-State Towel Service of the Inde-
pendent Towel Supply Company, and his officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Local No. 40, United
Laundry Workers Union, affiliated with the Committee for Industrial
Organization, as the exclusive representative of all of the employees
engaged in the respondent's Cumberland, Maryland, business, exclud-
ing supervisory employees;
(b) Giving effect to the contract of September 11, 1937, with Local
Union 543, International Brotherhood of Teamsters, Chauffeurs,
Stablemen and Helpers of America, affiliated with the American
Federation of Labor ;
(c) Discouraging membership in Local No. 40, United Laundry
Workers Union, or any other labor organization of his employees
by discharging or refusing to reinstate any of his employees or by
discriminating in any other manner in regard to their hire and tenure
of employment or any term or condition of employment of his em-
ployees by reason of their membership in Local No. 40, United
Laundry Workers Union or any other labor organization of his
employees ; , ,
(d) In any other manner interfering with, restraining, or coercing
his employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to, bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the' purpose of collective bargaining, or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative' action which the Board finds will
effectuate the policies of the Act:
DECISIONS AND ORDERS 1293
(a) Upon application , offer to those employees who went out on
strike on September 7, 1937, and thereafter , immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges, in the
manner set, forth in the section entitled "Remedy," above ; and placing
those employees for whom employment is not immediately available
upon a preferential list in the manner set forth in said section;
(b) Make whole the employees ordered to be offered reinstatement
for any loss of pay they have suffered by reason of their discharges,
by payment to each of them respectively of a sum of money equal to
that which they would normally have earned as wages from September
11, 1937 , the date of their discharges , to January 31, 1938, the date
of the Intermediate Report of the Trial Examiner, and from the date
of this order to the date of such offer of reinstatement or placement
upon the preferential list required by paragraph ( a) above, less the
amount, if any, which each will have earned during that period;
(c) Upon request , bargain collectively with Local No. 40 , United
Laundry Workers Union, affiliated with the Committee for Industrial
Organization , as the exclusive representative of all the employees
engaged in the respondent 's Cumberland , Maryland , business , exclud-
ing supervisory employees , for the purposes of collective bargaining
in respect to rates of pay, wages , hours of employment and other
conditions of employment ;
(d) Immediately post notice to the employees in his plant at
Cumberland , Maryland, and maintain such notice for a period of at
least thirty (30) consecutive days, stating (1) that the respondent
will cease and desist in the manner aforesaid ; and (2 ) that the
respondent will not give effect to the contract of September 11, 1937,
with Local Union 543, International Brotherhood of Teamsters,
Chauffeurs , Stablemen and Helpers of America , affiliated with the
American Federation of Labor;
(e) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.