Imperial Laundry and Cleaners, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1967

165 N.L.R.B. 327 (N.L.R.B. 1967)

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.