Champa Linen Service Co.

CHAMPA LINEN SERVICE CO. Champa Linen Service Company and Robert Lane Longman. Case 27-CA-3888 February 26, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On November 14, 1973, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Champa Linen Service Company, Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (CA. 3. 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STAIEMENT OF THE. CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case held on October 25, 1973, is based upon unfair labor practice charges filed by Robert Lane Longman on July 23, 1973, and a complaint issued on September 4, 1973, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 27, alleging that Champa Linen Service Company, herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. The Respon- 1 Champa Linen Service Company, 140 NLRB 1207 (1963), enfd 324 F.2d 28 (C.A 10, 1963) 253 dent filed an answer denying the commission of the alleged unfair labor practices. Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the posthearing brief submitted by the Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Champa Linen Service Company, a Colorado corporation, with its principal office and place of business in Denver, Colorado, is engaged in the business of linen rental, service, and supply. During the conduct and operation of its business, the Respondent annually receives goods and materials valued in excess of $50,000 which are shipped to its Denver, Colorado, place of business directly from points outside Colorado or are shipped there from various suppliers in Colorado who in turn receive said goods and materials directly from points outside Colorado. The Respondent admits that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Laundry, Linen and Dry Cleaning Drivers, Local No. 905, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND AND ISSUES The Respondent is engaged in the linen and linen rental business supplying linen to commercial enterprises located in the vicinity of Denver, Colorado . It employs about 120 employees of whom about 11 are route drivers, the employees involved in this proceeding . This is not the first time that a labor dispute has brought the Respondent before the Board. It has previously been determined by the Board, with the subsequent approval of the court, that during the years 1962 and 1968 the Respondent used unlawful means to combat its employees' efforts to get union representation. In 1962, in violation of Section 8(a)(1) of the Act, Respondent engaged in unlawful surveillance of, and interference with , the distribution of union literature to its employees.' In 1968 , in violation of Section 8(a)(l), (3), and (5), Respondent interrogated, threatened, and made abusive statements to employees about their union activities ; engaged in the surveillance of those union activities ; discriminatorily transferred two employees and discriminatonly discharged one employee because of their union activities; refused to bargain with a union; and made unilateral changes in working condi- tions? In the instant case, the General Counsel alleges that the Charging Party, Robert Longman, a route driver for Respondent, solicited his fellow workers to support a union, whereupon, in violation of Section 8(a)(1) of the 2 Champa Linen Service Company, 177 NLRB 798 (1969), enfd 437 F.2d 1259 (C.A. 10, 1971). 209 NLRB No. 57 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, the assistant plant manager and a route supervisor separately threatened him with discharge because of his union activity, and, in violation of Section 8(a)(3) and (1) of the Act, Longman was discharged on July 21, 1973, because of his activities on behalf of the Union. Respon- dent does not dispute the alleged threats but contends that Longman voluntarily terminated his employment. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Events Leading up to the Termination of Robert Longman 3 Robert Longman, from December 1972 until the last day of his employment, July 21, 1973,4 almost continuously openly solicited the other route drivers to support a union. Longman and employee Hohs were the two most vocal prounion route drivers In the words of route dnver Patt, "[Longman] had the reputation for being a union instiga- tor." Longman's prounion reputation soon reached the ears of the Respondent because on or about February 1 Route Supervisor Miller, a statutory supervisor and Longman's immediate supervisor, advised Longman to stop talking about the Union, warning "or you are going to get fired." Longman continued his prounion solicitation. On Friday, July 20, in the morning before work, five or six of the Company's route drivers, including Longman, met with a representative of the Union at the cafeteria across from the Company. The drivers were observed talking to the union representative by a fellow driver, Bob Crane, who was adamantly opposed to unionization and knew that Longman was a strong union adherent. Crane, when he arrived at work the morning of July 20, told Rhinie Jekel, the Company's assistant manager, that a group of the drivers had met earlier that morning with a representative of the Union at the cafeteria and named each one, including Longman. Jekel the same day told his boss, Myron Zimmerman, the plant manager, that a group of named employees, including Longman, had met at the cafeteria with a union representative. Jekel, a statutory supervisor, that same morning approached Longman and, without explanation, stated "you have had it."5 Based on the foregoing, I find that on July 20 the Respondent knew of Longman's union sympathies and activities and believed he was the instigator of the employees' interest in the Union.6 I further find that, as alleged in the complaint, the Respondent violated Section 8(a)(1) of the Act on or about February 1, when Route Supervisor Miller threatened to discharge Longman be- cause of his union activities, and on July 20, when Assistant Manager Jekel threatened Longman with repris- als because of his union activities. B. The Termination of Robert Longman It is undisputed that on the morning of July 20 Longman 9 The facts set out in this section are based on undenied and uncontroverted testimony 4 Unless otherwise specified, all dates herein refer to the year 1973 3 Clearly, in the circumstances, and absent any contrary explanation, Jekel's statement was a thinly veiled threat of economic reprisal against Longman because of his union activities 6 That Respondent believed Longman was responsible for the employ- complained to Plant Manager Myron Zimmerman that he was unhappy or dissatisfied about the Company's opera- tion and believed he was not being given his customers' orders for delivery in a timely fashion. Zimmerman replied he was busy and would talk with Longman later about his complaints. The next morning, Saturday, July 21, Myron Zimmerman called Longman into the office of the Company's president, Ben Elderman, at which time Longman, according to Zimmerman, voluntarily quit his employment. Longman testified, in effect, he was dis- charged. Myron Zimmerman testified, in substance, that on July 21 he called Longman into Elderman's office for the purpose of discussing Longman's dissatisfaction voiced the previous day. Zimmerman testified that Longman ex- pressed his unhappiness about working conditions and volunteered the fact that he intended to quit in a couple of weeks and that the only reason he did not quit immediately was that his wife was expecting a child momentarily and he wanted her hospitalization to be covered by the Company's health insurance. Zimmerman told Longman that, even if he quit immediately, his company health insurance policy was paid up through August 15 which meant, Zimmerman told Longman, there was no reason to remain. Longman agreed and said he might as well leave immediately. They shook hands and parted friends. In short, Longman voluntarily quit. Longman testified that, in effect, he was discharged. Upon entering the office, Longman testified, in substance, that Zimmerman stated he had heard Longman was not happy and he planned on leaving the Company. Longman admitted he was looking for other employment and that he would probably leave after he had taken his vacation which was scheduled for late September. Zimmerman repeatedly pressed Longman to quit immediately. Long- man refused, stating it was not his desire to leave. Finally, Zimmerman declared that the matter was taking up too much of his time, that he wanted to get the "thing" over with, and handed Longman a white card, which is described below, and told him to write down the reasons he wanted to leave. Longman again insisted he did not want to leave. Zimmerman, however, insisted that Longman write down his reasons for leaving on the card. Longman adamantly refused, stating he did not want to leave. Finally, Zimmerman told Longman to simply sign his name on the card. Longman signed his name, at which point Zimmerman shook his hand and asked that they part as friends and he would get Longman's paycheck. In short, if Longman is believed, he was discharged. Of the two, I have no hesitency in crediting Longman, who impressed me as making a sincere effort to tell the truth, whereas Zimmerman, in manner and demeanor was not a credible witness.? In addition, Myron Zimmerman's explanation for Longman's absence from work given to Assistant Manager Jekel on Monday, July 23, tends to ees' meeting with the union representative is further indicated by the testimony of route driver Patt that shortly after Longman's termination the Company's vice president, Harry Zimmerman, in the presence of Myron Zimmerman, asked Patt why Longman was "instigating" the Union. When Patt stated he was not sure that Longman was the instigator , Harry and Myron Zimmerman appeared surprised. 7 Regarding Ben Elderman , the Company's president, the testimony of CHAMPA LINEN SERVICE CO. support Longman's version of the exit interview . Jekel. in connection with the Board's investigation of Longman's charge, submitted a signed affidavit to the Board in which he stated, among other things, that on Monday, July 23, he had a conversation with Myron Zimmerman about Longman's termination, described as follows: I don't know exactly why Longman was fired. I didn't ask [Myron Zimmerman ] why he fired him. Myron dust told me he fired Longman, and he is the boss, so I didn't ask questions .8 Also, on August 3 Myron Zimmerman, in a statement of position submitted to the State Division of Employment regarding Longman's claim for unemployment compensa- tion, did not indicate that Longman had voluntarily terminated his employment but in effect indicated that he had been discharged for cause. Finally, the language and the circumstances surrounding Longman's termination card filled out by Zimmerman tend to cast further doubt on Zimmerman's testimony that Longman voluntarily quit. It is company policy whenever a route driver quits or is discharged for Myron Zimmerman to mark this fact down on a white card with an explanation for the termination as well as a statement by the employee, giving his version of the termination. Longman's card, in the handwriting of Zimmerman, states he was terminated for the following reason: "Longman was not satisfied with his job or working conditions at Champa Linen, see personnel folder in file for further details." This notation in Zimmerman's handwriting was dated by Zimmerman as having been made on July 21. Significantly, there is no mention that Longman had voluntarily quit. It would seem if this was the case, it would have been a simple matter for Zimmerman to have stated this fact on the card. Moreover, according to Zimmerman, the notation explaining the termination was not written on July 21, as indicated, but at least I month later and backdated.9 Also, according to Zimmerman, the "personnel folder" referred to never existed, and the notation, in this regard, did not mean what it said but was referring to a decision of the Colorado Division of Employment dealing with Longman's claim against Respondent for unemployment compensation, which decision issued August 22, finding that Respondent had discharged Longman. I am convinced that the unusual circumstances surrounding Longman's termination card-the backdating, the reference to a nonexistent personnel file and the ambiguous nature of the reason given-all point toward something illegitimate and not to a situation in which an employee has simply voluntarily quit. Based on the foregoing, I find that Myron Zimmerman manufactured his story out of whole cloth and that Longman did not voluntarily quit but was discharged by Zimmerman on July 21. In arriving at this conclusion, I have carefully considered the testimony of route drivers Longman is that he was present during the conversation. On the other hand, Zimmerman testified "Elderman came in and out of the room." Elderman for some unexplained reason was not called by Respondent to corroborate Zimmerman. Under the circumstances, I presume that his testimony would have been unfavorable to the Respondent 8 Jekel at first testific d he did not remember whether in this conversation Zimmerman told him that Longman was "fired" or if the word "termina- 255 McKinkie and Patt that officials of the Respondent, in substance, told them that Longman was not discharged but had voluntarily terminated his employment. But, I cannot shut my eyes to the fact that these self-serving statements were made to the employees shortly after the Respondent had been informed that Longman had filed charges against the Respondent with the Board, claiming he was discrimi- natorily discharged. In these circumstances, management's statements concerning the nature of Longman's termina- tion are likely to be self-serving. Indeed, the whole record demonstrates the self-serving nature of these statements. C. Ultimate Findings I conclude that in discharging Robert Longman the Respondent was motivated by its animus toward the unionization of its business. I have been influenced by the following considerations. Thus, Respondent knew Long- man was deeply involved in union activities and was engaged in open union solicitation among his fellow route drivers; Longman was abruptly discharged, without prior warning, within hours after the Respondent learned that with other employees he had met with a union business representative in what was apparently the start of a new campaign to unionize the Company; and the Respondent possessed a strong union animus, as demonstrated by its willingness to engage in violations of the Act in order to defeat union organizing drives on two previous occasions. Also significant is the warning by Route Supervisor Miller that Longman would be discharged if he continued to engage in union activities and equally as significant is the fact that Assistant Manager Jekel, immediately after learning that Longman had met with the Union's business representative, predicted to Longman "you have had it." Finally, in evaluating the Respondent's motivation, I have considered the possibility that Zimmerman legiti- mately discharged Longman when Longman indicated he intended to voluntarily terminate his employment in a couple of months. This was not, however, the reason advanced to justify Longman's termination. Rather, Zimmerman falsely testified that Longman voluntarily terminated his employment. I am convinced it is a fair inference that the reason Zimmerman fabricated this story is that he knew that his discharge of Longman was not based on legitimate business considerations . Why else would Zimmerman concoct a false story. In the light of all the reasons set out above, I am of the view that the evidence overwhelmingly establishes that in discharging Robert Longman the Respondent was motivat- ed by its union animus. Accordingly, I find the Respon- dent has violated Section 8(a)(3) and (1) of the Act, as alleged in the complaint, by discharging Longman. Upon the basis of the foregoing findings of fact and the entire record, I make the following: tion" was used Jekel in manner and demeanor was not convincing on this point and later admitted that the above-described conversation, in fact, was the one which took place between himself and Zimmerman. 9 Zimmerman's explanation for the long delay in making the entry-"be- cause 1 just did not get around to it"-is incredible. Nor did he explain his reason for backdating the entry. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Champa Linen Service Company, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Laundry, Linen and Dry Cleaning Drivers, Local No. 905, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening an employee with economic reprisals, including discharge because he engaged in union activities, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Robert Lane Longman on July 21, 1973, because of his union activities, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent discnmmatonly dis- charged employee Robert Lane Longman, I shall recom- mend that the Respondent offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges and make him whole for any loss of earmngs he may have suffered by reason of such discrimination, by payment of a sum of money equal to that which he normally would have earned as wages from the date of discharge to the date of said offer of reinstatement, less his net earnings during such period with backpay computed on a quarterly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Regarding the reinstatement of Longman, I have considered the fact that Longman indicated to Plant Manager Zimmerman he was planning on voluntarily terminating his employment in the future. At the time, however, Longman had not been offered nor accepted another job. Longman credibly testified his future employ- ment with an employer other than the Respondent was speculative and, if he was not discharged, might still be working for the Respondent. The whole record does not controvert Longman. The question of whether Longman would have quit, in short, is highly conjectural. In this circumstance, I am of the opinion that the Respondent, rather than Longman, must assume the risk of the iU In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes uncertainty For it is the Respondent by its unlawful conduct that created the uncertainty. As the unfair labor practices committed by the Respon- dent were of a character which go to the very heart of the Act, i shall recommend that an order requiring the Respondent to cease and desist therefrom and to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER io Respondent, Champa Linen Service Company, Denver, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Laundry, Linen and Dry Cleaning Drivers, Local No. 905, or any other labor organization of its employees, by discharging employees or by otherwise discriminating in regard to the hire or tenure of employment of employees or any term or condition of employment. (b) Threatening employees with economic reprisals, including discharge if they join or support the above- named Union, or any other union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make Robert Lane Longman whole for any loss of earnings suffered by reason of his discharge, in the manner set forth in the section herein entitled "The Remedy." (b) Offer Robert Lane Longman immediate and full reinstatement to his former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to seniority or other rights and privileges. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (d) Post at its place of business in Denver, Colorado, copies of the attached notice marked "Appendix." i i Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by Respon- dent 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 27, in ii in the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CHAMPA LINEN SERVICE CO. writing, within 20 days from the date of this Order what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Champa Linen Service Company, violated the Nation- al Labor Relations Act, and ordered us to post this notice and to keep our word about what we say in this notice. The Act gives you the following rights: To form, jom, or help unions To choose a union to represent you in bargaining with us To act together for your common interest or protection To refuse to participate in any or all of these things. The Board has ordered us to promise you that: WE WILL NOT discharge you or otherwise discrimi- nate against you because you are a member of or have helped Laundry, Linen and Dry Cleaning Drivers, Local 905. or any other union. WE WILL NOT threaten you with economic reprisals, including discharge, for joining or supporting the above-named Union or any other union. 257 WE WILL NOT in any way interfere with, restrain or coerce you in exercising the rights guaranteed to you by the National Labor Relations Act. The National Labor Relations Board found that we violated the Law by discharging Robert Lane Long- man. WE WILL offer to reinstate Robert Lane Longman to his former job or, if that job is not available, to a substantially equal one without any loss of seniority or other rights and WE WILL reimburse him for any loss of earnings he may have suffered because we discharged him, together with 6 percent interest. Dated By CHAMPA LINEN SERVICE COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 260 U.S. Custom House, 721-19th Street, Denver, Colora- do 80202, Telephone 303-837-3551.