Imperial Laundry and Cleaners, Inc.

IMPERIAL LAUNDRY AND CLEANERS Imperial Laundry and Cleaners , Inc. and Hospital-Hotel-Motel , Restaurant Em- ployees Union, Local 200, Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO. Case 26-CA-2553. June 12, 1967 DECISION AND ORDER BY MEMBERS JENKINS, BROWN, AND ZAGORIA On March 17, 1967, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations, to which the General Counsel filed exceptions with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Imperial Laundry and Cleaners, Inc., Little Rock, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations not found herein. MEMBER BROWN, dissenting in part: Respondent has not excepted to the Trial Examiner's finding that there was no basis for Respondent's asserted reason for discharging an admittedly "excellent" and long-time employee. Appraising these particular circumstances in the totality of the record, and regardless of Phifer's actual union activity, I would find that Respondent discharged Phifer because it suspected Phifer's 327 union involvement . Cf. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693,698-699 (C.A. 8). In my opinion , therefore , Respondent thereby violated Section 8(a)(3) and (1) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner : Upon a charge duly filed on September 21,1966, by Hospital-Hotel-Motel, Restaurant Employees Union, Local 200, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, hereinafter referred to as the Union or Charging Party, the General Counsel of the National Labor Relations Board, hereinafter referred to as the General Counsel' and the Board , respectively, by the Regional Director for Region 26, Memphis , Tennessee, issued its complaint dated November 2, 1966, against Imperial Laundry and Cleaners , Inc., hereinafter referred to as the Respondent. The complaint alleged that Respondent had engaged, and was engaging , in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, hereinafter referred to as the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held in Little Rock, Arkansas , on January 10, 1967, before me. All parties appeared at the hearing, were represented by counsel , and afforded full opportunity to be heard, to produce, examine , and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing, oral argument was waived. Briefs were received from Respondent and General Counsel on January 23, 1967. Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Imperial Laundry and Cleaners , Inc., is now and has been at all times material herein, an Arkansas corporation with its place of business and offices located at Little Rock , Arkansas , where it is engaged in the retail business of laundry, dry cleaning , and storage . During the past 12 months, Respondent , in the course and conduct of its business operations , derived gross revenues in excess of $500,000. During those same 12 months , Respondent, in the course and conduct of its business operations, purchased and received materials and products valued in excess of $10,000 directly from points outside the State of Arkansas. The complaint alleged , the answer admitted , and I find that at all times material herein Respondent was and is an employer engaged in commerce within the meaning of the Act. It. THE UNION INVOLVED Hospital-Hotel-Motel, Restaurant Employees Union, Local 200, Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO, is a labor organization admitting to membership employees of Respondent. ' This term specifically includes the attorney appearing for the General Counsel at the hearing 165 NLRB No. 37 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Facts Benny Lee Phifer had been employed by Respondent and its predecessor companies for over 20 years. In 1958 he had been discharged on one occasion for coming into the plant drunk. That discharge interrupted his service for only a short period of time as the then foreman and presently the Superintendent B. D. Bradley reinstated Phifer after a month or so. Since that time Phifer's service with Respondent has been continuous, the last 3 years of which had been in the employ of Respondent's present owner, Jack S. Bew. Phifer's job had always been to load the cleaning machines with soiled clothes and at the end of the cleaning cycle to unload the cleaned laundry and hang it on the line. He was admittedly an excellent workman. Sometime in June 1966, according to the witnesses for the General Counsel-or August or September, according to the witnesses for Respondent-employee Verlia Cavender arrived at the plant a little before the workday began and was sitting on a folding table watching Phifer prepare a new cleaning machine for the day's operation.2 Curious as to what Phifer was putting into the new machine, Cavender asked Phifer. Phifer explained that he was putting charcoal in the machine. While Phifer was explaining the operation to Cavender, Plant Superintendent Bradley came into the reom, walked up behine Cavender, and angrily said, "Verlia, if you've got any campaigning to do, do it on your own damn time."3 Cavender denied that she was "campaigning" and told Bradley of her inquiry about the machine of Phifer. Upon inquiry of Phifer as to the truth of Cavender's statement, Phifer corroborated her. Thereupon Bradley said, "I don't want you talking to Phifer any more, I don't want Phifer talking to you." Previously in June, Bradley and Foreman Billy York had observed Cavender and a union organizer passing out union leaflets at the plant gate. York, for reasons he had trouble explaining at the hearing, reported the handbilling incident to Owner Bew. Subsequently Cavender was discharged but, after a charge had been filed claiming her discharge to be discriminatory, Cavender was reinstated with backpay and the charge dismissed. At some indefinite date4 Phifer executed a union membership and authorization card on behalf of the Union . He also attended a union meeting. On September 7, 1966, the water fountain in the plant clogged up and started overflowing onto the floor. Phifer left his work and attempted to unclog the fountain with his hand. As he was doing so, Bew came up, leaned over Phifer's shoulder to see what was going on, and then instructed Phifer that he, Bew, would send the mechanic to fix it and thereupon walked off. Phifer then secured a plunger with which he fixed the fountain.-5 At the end of the working day, about 4 p.m., as Phifer was putting on his outdoor clothes, Superintendent York 2 During this part of his employment Phifer was reporting to work an hour before the workday began in order to prepare the machines for the day's work. 9 To Respondent 's knowledge Cavender was the most active employee in the plant on behalf of the Union At the hearing the question was raised as to whether Phifer had signed this union authorization card before or after his discharge. General Counsel failed to corroborate Phifer's testimony that he had executed the same before the discharge. 5 Phifer testified that this episode at the fountain occurred early in the morning Bew testified that it occurred about came by and ordered Phifer to get his belongings, that Bew had smelled beer on Phifer, gave Phifer his final paycheck, and discharged him. Phifer asked to see Bew, but he was "unavailable." Phifer returned the next morning and asked to talk to Bew. Bew answered, "I ain't got no talk for you." Phifer said "thank you" and walked out. He has not been reinstated since. B. Conclusions Bew testified that he himself was a "teetotaler," that he did not permit the use of alcoholic beverages in the plant, and that this was known to all his supervisors. There was no written rule in the plant that alcoholic beverages were forbidden. In fact there were no written rules at all in the plant and never had been. Bew testified that when he leaned over Phifer at the water fountain, "I thought I detected alcohol on him." A few minutes later, according to Bew, Bew sought out Supervisor York, reported to York that "I thought that I could detect alcohol on the man's breath," and asked York if he had noticed it. According to Bew, York acknowledged he had noticed it. Bew and York then went to Bradley with the same question, discussed "the situation and Bew was told by both York and Bradley that they had previously warned Phifer about drinking. `6 Bew then ordered that Phifer be released. At the end of the working day York performed this chore.7 Both York and Bradley, in fact, knew that Phifer liked beer and had liked it for his whole period of employment with Respondent. York had had beers with Phifer on occasions in the past. And Bradley bragged that he had occasionally given Phifer 30 cents during his employment, the price of a bottle of beer. There is no question but that Phifer did like beer and had liked and used it throughout his entire employment history. Phifer candidly admitted that, as he put it, he would have a beer "when he could afford it"-or when a supervisor would give him 30 cents. Respondent knew all this, but, except on the occasion of his discharge for being drunk in the plant in 1958, had not objected thereto, had in fact condoned and/or participated therein with Phifer. As can be seen from Bew's own description of the instructions he gave to the supervisors regarding liquor, Respondent's alleged "rule" is indefinite in the extreme: A. I had asked them [the supervisors], at any time that anyone is under the influence of alcohol; they smell it on them; or that they feel that they are under the influence of alcohol, to warn them immediately. If they are dangerous with the situation of course, we talk of staggering and so forth, we wouldn't look the second time. But we don't tolerate alcohol or the use of it, or the suspected use of it on the job in any way. Q. Now you again use the phrase, under the 1 30 p.m This is of importance only because Phifer admitted to drinking a beer at lunch Because of the view I have had to take of this case, this time variance is immaterial although, if it were material, I would tend to credit Phifer 6 According to Bradley and York's testimony , these "warnings" had been in large part that Phifer should be careful not to get close to Bew with the smell of beer on him r It as noteworthy that neither Bradley nor York sought to confirm Bew's "thought " that he had detected alcohol on Phifer's breath prior to the discharge hours later IMPERIAL LAUNDRY AND CLEANERS influence in conjunction with the phrase smell of alcohol. Q. Are those two things synonymous in your mind? A. Well, in a certain instance they are, sir. I know the smell of alcohol doesn't necessarily mean they are under the influence, but we feel in this instance that the proper warning is the test, not necessarily the one isolated act. If a man might have a sniff of it on his breath, or something, and we properly warned him and told him on one or two occasions that we would not tolerate it,8 then we would not look back on a personnel decision. But, on September 7, 1966, Respondent claims that it discharged Phifer because Bew "thought" he smelled liquor on Phifer's breath. For the above and for innumerable other reasons which would only serve to prolong this Decision, it is my considered opinion that this alleged cause for the discharge of Phifer belongs in the same category as the well-known $3 gold certificate United States banknote. Bluntly I cannot and do not believe that this was the cause for Phifer's discharge nor do I believe the witnesses, including Bew, who testified to it. As was so well stated in Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466,470 (C.A. 9): Actual motive , a state of mind being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact-here the Trial Examiner-required to be anymore naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that , he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. [Footnotes omitted.] So not believing Respondent's theory or story, I am at liberty to explore for the real cause of the discharge. The case presented by General Counsel does not help much. Phifer had been seen talking to the known leading exponent of the Union in the plant. Respondent had objected to that vehemently. Phifer had signed a union card but , when Respondent questioned whether that card had been signed before or after the discharge, General Counsel did not tie the matter down. There is no showing that Respondent knew that Phifer had signed such a card. Sometime in July, Bradley had inquired of Phifer "How's you and the union getting along" to which Phifer answered , "Well, you been riding me about the union. I don't know nothing about no union." And on one occasion in June, Bradley had told Phifer that, if Phifer wanted to know something about the Union , he should ask a named employee about it. This Phifer did. At the very best these statements are enigmatic. It is clear from York's angry statements to Cavender that he did not want her, as the Union's leader in the plant, to be talking to other employees and attempting to organize them into the Union . This is a clear violation of 329 Section 8(a)(1) of the Act, particularly in view of the fact that Respondent had no "no solicitation" rule. But, in the absence of any knowledge on the part of the Respondent that Phifer had executed a card on behalf of the Union, had attended a union meeting , or was even sympathetic with that movement, I cannot infer, despite not believing Respondent 's story, that Respondent fired Phifer for his union activities or sympathies. For the above reasons I must find that the General Counsel failed in his burden of proving that Phifer was discharged because of his known union membership, activities , or sympathy despite my strong feeling that this finding amounts to a grave miscarriage of justice as far as Phifer is concerned. Reluctantly, therefore, I will recommend that the allegations of the complaint in regard to the discharge of Phifer be dismissed. 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 described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices , it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Imperial Laundry and Cleaners, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital-Hotel-Motel, Restaurant Employees Union, Local 200, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating its employee Verlia Cavender regarding her suspected solicitation of a fellow employee on behalf of the Union and by imposing stricter rules upon said Verlia Cavender because of said suspected activities on behalf of the Union, Respondent interfered with , restrained, and coerced its employees in their right to engage in union membership and activities in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. General Counsel failed to prove that Respondent committed an unfair labor practice by discharging Benny Lee Phifer on September 7, 1966. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, " The "warnings" given Phifer by York and Bradley do not fit this description 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I recommend that Imperial Laundry and Cleaners, Inc., Little Rock, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating any of its employees in regard to their union membership, activities, or sympathies. (b) Imposing stricter rules on any employee because he or she is suspected of having engaged in union activities. (c) Interfering with, restraining, or coercing its employees in any manner in order to discourage union membership or activities among its employees. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant in Little Rock, Arkansas, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 10 I FURTHER RECOMMEND that the allegations of the complaint as related to Benny Lee Phifer be dismissed. I FURTHER RECOMMEND that, unless within 20 days from the date of receipt of this Decision, the Respondent has notified the said Regional Director that it will comply with the foregoing Recommended Order, the Board issue an order requiring Respondent to take the aforesaid action. " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " i" In the event that this Recommended Order is ad,•pted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " Dated By NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate any of our employees regarding their union membership or activities on behalf of any union. WE WILL NOT impose stricter rules on any of our employees whom we suspect of having engaged in union activities. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Hospital-Hotel-Motel, Restaurant Employees Union, Local 200, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. IMPERIAL LAUNDRY AND CLEANERS, INC. (Employer) APPENDIX (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161.