Ann'S Laundry & Dry Cleaners, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1985

276 N.L.R.B. 269 (N.L.R.B. 1985)

ANN'S LAUNDRY
Ann's Laundry & Dry Cleaners, Inc. and Textile
Processors , Service Trades , Health Care, Pro-
fessional and Technical Employees International
Union Local No. 2, affiliated with International
Brotherhood of Teamsters . Case 17-CA-11092
23 September 1985
-SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON -
On 16 May 1985 Administrative Law Judge Jay
R. Pollack issued the attached supplemental deci-
sion. The Respondent filed exceptions and a sup-
porting brief, to which the General Counsel filed
an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental- deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings,' and conclusions and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Ann's Laun-
dry & Dry Cleaners, Inc., Kansas City, Kansas, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
i The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In regard to the phone call on 13 July 1982 from the child of the dis-
criminatee Miller to Respondent Office Manager Debnck, the judge
stated , "Debnck couldn ' t remember whether it was a boy or girl " The
record relects that Debrick testified to the effect that she "couldn't rec-
ognize if it was a girl or a boy " This error was minor and nonprejudicial
and therefore offers no basis for reversing the judge's finding and conclu-
sions
Constance N. Traylor, Esq., of Kansas City, Kansas, for
the General Counsel.
Timothy J. Evans, Esq. (Evans, Mullinix & Jarczyk), of
Kansas City , Kansas , and James C. Baker, Esq. (Spen-
cer, Fane, Britt & Browne), of Kansas City, Missouri,
for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard
this case in trial at Kansas City, Kansas, on 8 and 9
269
March 1983. On 11 May 1983, I issued my original deci-
sion finding, inter alta , that Respondent, Ann's Laundry
& Dry Cleaners, Inc., violated Section 8(a)(3) and (1) of
the Act by unlawfully discharging Anner Faye Miller on
14 July 1982. On 21 February 1984, the Board issued its
Decision and Order' affirming my rulings, findings, and
conclusions and adopting my recommended Order.
Thereafter, before the completion of enforcement pro-
ceedings in the United States Court of Appeals for the
Tenth Circuit, the Board decided sua sponte to move to
recall its application for enforcement and to reconsider
its decision. On 20 March 1985 the Board issued an un-
published order remanding proceeding to the administra-
tive law judge in which it remanded the case to me for
the purpose of preparing and issuing a supplemental deci-
sion setting forth resolutions of the credibility of wit-
nesses, and containing new findings of fact, conclusions
of law, and a recommended Order in light of such find-
ings and conclusions.
On 18 April 1985, the General Counsel and Respond-
ent filed supplemental briefs which have been carefully
considered. Based on the entire record, and from my ob-
servation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT AND CONCLUSIONS
1. THE REMAND
The Board in its Order of 20 March 1985 gave the fol-
lowing explanation for the remand:
The Board, having duly considered the matter,
finds that further consideration by the judge of his
findings is-warranted. In particular, at footnote 4 of
his decision, the judge found the following:
Knoff told Bernadine Debrick, -her daughter and
office manager,' that Miller's child had called in
for Miller [on 13 July] and that Miller was dis-
charged as of that date. Debrick marked Re-
spondent's payroll records in accordance with
Knoff's instructions.
Further, based upon this finding, the judge conclud-
ed that Knoff "gave Debrick false information re-
garding Miller's telephone call" and that "Knoffs
falsification of this event supports an inference that
Respondent had an unlawful motive for the dis-
charge."
The Board finds no record support for the
judge's finding that Knoff told Debrick that Miller's
child had called in on 13 July. Debrick's testimony
is that she herself received a call from a child. Fur-
ther, Debrick's testimony appears to contradict sub-
stantially the testimony of Miller. In light of this,
the Board deems it advisable that the judge recon-
sider his findings.
i 268 NLRB 1013 (1984)
276 NLRB No. 26
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE ALLEGED UNFAIR LABOR PRACTICES other employees were subpoenaed for 13 July only
Miller made her subpoena known to Knoff The other
employees did not notify Respondent of their subpoena
until Shortly before the actual hearing date of 19 July
Employee Patricia Jackson testified that about 1 July
she heard Anna Knoff tell employee Mary Williams that
Knoff believed that employees Erie Lowery and Miller
started this mess about the Union and put the people
on it Knoff asked Williams whether she agreed and
Williams answered that she did not know According to
Jackson Knoff asked Williams to find out Williams
on the other hand testified that Knoff simply said that
Knoff wished she could find out who brought [the
Union] in
I credit Jackson s testimony over that of Williams
Jackson appeared to be a credible witness Further from
the fact that Jackson testified against her employer I
draw the inference that her testimony is not likely to be
false Williams on the other hand appeared most willing
to tailor her testimony to aid her employers case
Employee Robert Lee testified that he informed
Eugene Knoff Respondents manager and the son of
Anna Knoff on 19 July of the subpoena given him by
the Union for the representation hearing that same date
According to Lee Eugene Knoff asked him whether the
employee intended to participate in union activities if Re
spondent became unionized Eugene Knoff testified that
he only asked Lee whether the employee was going to
attend the representation hearing because Knoff needed
someone to run the pants press Knoff demed asking Lee
any question about participation in the Union Lee im
pressed me as a more credible witness than Knoff Knoff
appeared more intent on denying any wrongdoing than
in testifying to objective facts
Shortly after the representation election of 15 August
according to employee Erie Lowery Anna Knoff asked
Lowery whether Lowery knew anything about the
Union and if Lowery knew who was behind the Union
Knoff said that she was not going to let no union come
in and tell her how to run her place She would close
down
Also shortly after the election according to employee
Alice Williams Georgia Mullms an employee told
Knoff that she (Mullms) could not read and had mistak
enly voted for the Union when she had intended to vote
against it Knoff then asked Williams and another em
ployee how the employees had voted in the election
Soon after this conversation Respondent filed objections
to the conduct of the election based inter alia on the
ground that Mullins had incorrectly marked her ballot
As mentioned earlier on 12 July Miller showed Anna
Knoff the subpoena for the representation hearing When
Miller arrived home that evening she learned that her
small son was ill Miller called her physician and made
an appointment to have her son examined Miller testi
fled that she then called Knoff and explained that she
could not be at work in the morning because she would
be taking her son to the doctor Knoff told Miller that it
was 0 K The following day Miller called Knoff at
noon and told Knoff that she was still at the doctor s
office and would therefore not be in to work that day
On 25 June Textile Processors Service Trades
Health Care Professional and Technical Employees
International Union Local No 2 affiliated with Interna
tional Brotherhood of Teamsters (the Union) filed a peti
tion in Case 17-RC-9446 with the Board seeking to rep
resent Respondents employees A representation hearing
was scheduled for 13 July which hearing was postponed
to 19 July Thereafter the parties executed a Stipulation
for Certification Upon Consent Election which stipula
tion was approved by the Acting Regional Director for
the Board s Region 17 on 27 July An election by secret
ballot was conducted on 19 August under the direction
and supervision of the Regional Director The chal
lenged ballots were sufficient in number to affect the re
sults of the election and on 24 August the Employer
filed timely objections to conduct affecting the election
Thereafter on 16 September the Regional Director
issued and served on the parties a Report on Challenged
Ballots and Objections and Recommendations The Re
gional Director recommended to the Board that the
Union be certified the exclusive bargaining representative
of Respondents employees in the stipulated appropriate
unit No exceptions to the Regional Directors report
was filed by either party and on 6 October the Board
issued its Decision and Certification of Representative
adopting the Regional Directors recommendations and
certifying the Union as the exclusive bargaining repre
sentative of Respondents employees in an appropriate
unit The parties promptly commenced negotiations and
reached an agreement by 15 November 1982
Anner Faye Miller who had been employed as a shirt
presser by Respondent since July 1980 signed an author
ization card for the Union dated 20 May 2 The record
reveals that Respondent s managerial staff became aware
of the Union s organizational campaign sometime in
May However there is no evidence that Respondent
was aware of Miller s union sympathies until July About
12 July Miller notified Anna Knoff Respondents pnnci
pal stockholder 3 that she had been subpoenaed by the
Union to testify at the representation hearing then sched
uled for 13 July Miller showed Knoff the subpoena and
Knoff said 0 K No further discussion about the sub
poena or representation hearing took place Although
2 While Millers authorization card bears the date 20 May the card
was apparently first dated 20 June Miller testified that she signed the
card in June The card was submitted by the Union to the Board along
with the representation petition which was filed on 25 June
s Anna Knoff died poor to the instant trial Respondent objected to
any testimony regarding conversations Miller or any other employee had
with Anna Knoll presumably on the grounds of the dead man s statute
I ruled that the Board may consider as evidence statements of persons
who are deceased including testimony about such statements from parties
having a direct legal interest in the proceeding Hood Industries 248
NLRB 597 599 (1980) Calandra Photo Inc 151 NLRB 660 669 In 23
(1965) However the Board will subject such testimony to the closest
scrutiny before deciding what weight to give it Calandra Photo supra
The Calandra Photo guidelines have been followed herein To the extent
that Respondent argued that statements by Anna Knoff are hearsay I
find that objection also lacking in merit KnofFs statements are adnus
lions by a party opponent under Fed R Evid 801(d)(2Xi ) and by defm
tion not hearsay The Board affirmed these rulings and except to the
extent that Miller s testimony is subject to new credibility resolutions
these rulings do not appear to be affected by the remand
ANN'S LAUNDRY
When Miller reported for work the next day, 14 July,
she found that her timecard was not in the rack near the
timeclock. Miller went to Knoff's office where Knoff im-
mediately handed the employee a paycheck and said,
"Anner Faye, I don't need you anymore." Miller asked
why she was being terminated and Knoff answered that
Miller had been "laying off too many days." Miller asked
how many days Knoff was referring to and Knoff an-
swered that she did not have the figure but Knoff would
find out from the books kept by Respondent's bookkeep-
er Miller called Knoff the next day, 15 July, and Knoff
told Miller that the employee had missed 53 days. The
53 days of absence involved the time period from 18 July
1981 until the termination. A termination letter contain-
ing the dates of the absences was prepared sometime
after Miller's termination. Miller was never given a copy
of the termination letter.
A. Respondent's Defense
Respondent asserts that Miller was discharged due to
"excessive absenteeism and lateness for work."4 Berna-
dine Debrick, Respondent's office manager- and the
daughter of Anna Knoff, testified that while employees
were expected to work 8 hours per day, 5 days a week,
there was no specific rule pertaining to absences or tardi-
ness. Debrick testified that Miller was discharged by
Anna Knoff and that Debrick took no part in the dis-
charge. According to Debrick, she witnessed Knoff
twice warn Miller about Miller's work but not about hei
absences. Although Debrick began taking notice of Mil-
ler's attendance record in May, Debrick never spoke to
the employee about her attendance record.5 -
Debrick testified that she received a call on 13 July at
approximately 9 o'clock from a child; Debrick could not
remember whether it was a boy' or girl. The child said
that Miller would not be in to work that day and De-
brick asked why. The child gave no reason but simply
said that Miller would not be in to work. Debrick re-
ported this call to her mother at approximately noon-
time. Anna Knoff was angry and said she could not tol-
erate Miller's attitude any longer. Knoff immediately
called the payroll clerk and had Miller's termination
check prepared.
Eugene Knoff, Respondent's manager and the son of
Anna Knoff,' testified that he often spoke to his mother
concerning Miller's absences and tardiness. Eugene testi-
fied that his mother was "put out with it." However,
Eugene Knoff did not speak with Miller concerning her
absences or tardiness nor did he have any knowledge of
any action taken by his mother to correct Miller's attend-
ance record. Patricia Johnson, an employee, testified that
when Miller was tardy, which was quite often, Johnson
4 Although some of Respondent's witnesses made reference to Miller's
poor attitude towards Anna Knoff, there is no evidence that the alleged
poor attitude contributed • to the discharge Anna Knoff alone decided to
discharge Miller and made no mention of Miller's "poor attitude" in the
termination letter Moreover , "poor attitude" was not mentioned to
Miller at the time of discharge or at any time prior to the discharge.
5 Debnck never explained what prompted her, in May , to begin
making notations about Miller's absences in Respondent 's payroll records
Debnck was evasive when questioned about Respondent 's records and
did not appear to be a candid witness.
271 '
operated Miller's machine until Miller arrived. Johnson,
on many occasions, heard Anna Knoff ask Miller "why
Miller had not come to work or had not called in. How-
ever, Johnson never heard Miller's responses. Most im-
portantly, Johnson never heard Knoff warn Miller about
her absences or tardiness.
Mary Williams testified that Knoff warned Miller sev-
eral times about Miller's absences and tardiness. Williams
testified that she heard such warnings in May On cross-
examination, Williams testified that such warnings were
given weekly during the entire period of Miller's em-
ployment with Respondent. Miller denied ever receiving
such warnings. As mentioned earlier, Williams was quite
willing to color her testimony in order to aid Respond-
ent's case. Further, if Knoff had warned Miller as often
as Williams testified there surely would have been other
witnesses. However, no other witness had any knowl-
edge of such warnings. Thus, I do not credit Williams'
testimony on this point
Scrutiny of Respondent's payroll records reveals that
during the period of May through July 1982, several em-
ployees had poor attendance records, including two em-
ployees who had more absences than Miller There is no
evidence that any adverse action was taken against these
employees because of their attendance records. Miller's
attendance record was also poor during the same period
in 1981. However, Miller's record was worse in 1982.
Similarly, with regard to tardiness, while Miller was con-
sistently tardy, many, other employees had the same
problem. There is no evidence that any action was taken
against these other employees because of tardiness. Re-
spondent sought to explain this disparity, by offering evi-
dence that because of Miller's job assignment her tardi-
ness caused more inconvenience than the tardiness of
other employees. While Miller's tardiness did cause an-
other employee (Patricia Johnson) to leave her own posi-
tion . to cover for Miller, Respondent took no action to
reassign Miller or otherwise minimize the problem
caused by her attendance record Miller's problems with
tardiness were not recent but apparently had occurred
throughout her employment with Respondent.
B. Credibility Resolutions
Miller impressed me as a credible witness although she
had some difficulty in recalling certain details. I attribute
those failures to a lack of recall rather than to an attempt
to aid her case. I credit Miller's testimony that she spoke
to- Knoff on the evening of 12 July and again on 13 July
concerning her absence due to her son's illness. In testi-
fying regarding Respondent's records, I found Debrick
to be an evasive witness. However, I am not inclined to
find that she fabricated the testimony regarding the call
from a child on 13 July. Accordingly, I credit Debrick's
testimony, that she received a call from a child on the
morning of 13 July stating that Miller would be absent.
The conflict revealed is in Anna Knoff's handling of the
information received from Miller and Debrick rather
than in the testimony of Miller and Debrick.
Thus on 13 July when Knoff learned from Debrick
that Miller would not report for work, Knoff had al-
ready. spoken to Miller the evening before. Further,
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Knoff again spoke to Miller shortly before or shortly
after speal'ing with Debrick Knoffs anger about Miller s
attitude therefore cannot be simply explained by Mil
ler s failure to report to work on 13 July
C Conclusions Regarding 8(a)(1) Issues
The Board affirmed and adopted the following conclu
sions regarding independent violations of Section 8(a)(1)
of the Act The remand does not appear to affect these
conclusions and they are hereby reaffirmed
As found earlier in early July Anna Knoff asked
Mary Williams whether Miller and Lowery had started
this mess about the Union and when Williams an
swered that she did not know Knoff asked Williams to
find out By questioning Williams concerning the identity
of the union organizers and instructing Williams to
obtain such information Respondent violated Section
8(a)(1) of the Act It is no defense to such conduct that
Williams did not give the requested information to
Knoff Knoff's conduct still created the impression that
Respondent would take some adverse action against the
employees responsible for the union activities at its facili
ty See NLRB v Los Angeles New Hospital 640 F 2d
1017 1020 (9th Cir 1981)
On 19 July Eugene Knoff asked Robert Lee whether
Lee intended to participate in union activities if the facil
ity became unionized The questioning of Lee went
beyond Knof 's legitimate need to know whether Lee
would be absent from work due to the representation
hearing Knoff's inquiry into Lee s intended participation
in union activities violates Section 8(a)(1) because it im
plies that Respondent was keeping track of its employ
ees union activities and/or that Respondent looked unfa
vorably upon such activities
During August shortly after the election Anna Knoff
questioned two employees regarding their secret ballots
in the recently conducted Board election Although ap
parently concerned that the employees might have mis
takenly marked their ballots as had Georgia Mullins
Knoff did not limit her inquiry as to whether the em
ployees correctly marked their ballots Rather without
any assurances that no reprisals would be taken against
the employees Knoff asked the employees to reveal
whether they voted for or against representation by the
Union Accordingly I find that Respondent interrogated
the employees in violation of Section 8(a)(1) and that
such conduct was not justified by Respondents concern
over the conduct of the election See Hedison Mfg Co
260 NLRB 1037 (1982) CNA Financial Corp 264
NLRB 619 (1982)
Shortly after the election Anna Knoff questioned Ene
Lowery about the Union and told Lowery that she was
not going to let the Union tell her how to run her busi
ness and that she would close down Even if Knoffs
threat to close was contingent on the Union attempting
to tell her how to run her place as argued by Re
spondent the threat would not be privileged The Board
and the courts have recognized the right of an employer
to make a prediction as to the precise effect she believes
unionization will have on her company however the
prediction must be carefully phrased on the basis of ob
Jective fact to convey an employers belief as to demon
strably probable consequences beyond her controls In
this case an attempt by the Union to tell Knoff how to
run her business was not demonstrably probable nor a
reasonable prediction as to the effects of unionization
Accordingly I find Knof 's remarks to constitute an un
lawful threat to close her business in order to discourage
union activities
Since the Boards decision in this case was issued on
21 February 1984 the Board has issued the lead case of
Rossmore House 269 NLRB 1176 (1984) In Rossmore
House the Board overruled PPG Industries' and an
nounced that it would henceforth evaluate interrogations
according to whether under all of the circumstances the
interrogation reasonably tends to restrain coerce or in
terefere with rights guaranteed by the Act
Applying the Rossmore House test here I find that
Anna Knoff and Eugene Knoff unlawfully questioned
employees about their union activities See Chairman
Dotson s remarks at footnote 2 of the Boards original
decision herein 268 NLRB at 1013
D Conclusions Regarding the Discharge of Miller
Section 8(a)(3) of the Act forbids an employer by dis
cnmination in regard to hire or tenure of employment or
any term or condition of employment to discourage
membership in any labor organization Thus it is axio
matic that an employer who discharges employees be
cause of their support for a union commits an unfair
labor practice NLRB v Transportation Management
Corp 462 U S 393 (1983) The critical question herein is
whether Respondents discharge of Miller was motivated
by antiunion considerations
In Wright Line 251 NLRB 1083 (1980) e'ifd 662 F 2d
899 (1st Cir 1981) cert denied 455 U S 989 (1982) the
Board announced the following causation test in all cases
alleging violations of Section 8(a)(3) or violations of
8(a)(1) turning on employer motivation First the Gener
al Counsel must make a puma facie showing sufficient to
support the inference that protected conduct was a mo-
tivating factor in the employers decision Upon such a
showing the burden shifts to the employer to demon
strate that the same action would have taken place even
in the absence of the protected conduct The United
States Supreme Court adopted the Wright Line test in
Transportation Management supra
It is well settled that if an employer discharges an em
ployee involved in unwelcome concerted activities for
behavior that would warrant a discharge in the absence
of union or concerted activities then the circumstance
that the employer welcomed the opportunity to dis
charge does not make it discriminatory and therefore un
lawful Klate Holt Co 161 NLRB 1606 1612 (1966)
However it is equally well established that the existence
of a justifiable ground for dismissal is no defense if it is a
pretext used to mask an unlawful motive General
Thermo Inc 250 NLRB 1260 (1980) enf denied on
other grounds 664 F 2d 195 (8th Cir 1981)
6 See e g NLRB v Cassel Packing Co 395 U S 575 618 (1969) Bac
thus Wine Cooperative Inc 251 NLRB 1552 1559 (1980)
251 NLRB 1146 (1980)
ANN'S LAUNDRY
For the following reasons I :find that the General
Counsel has made a prima facie showing that Respond-
ent was motivated by a desire to discourage membership
in the Union. The timing of the discharge raises a strong
inference of an illegal motive. Miller was discharged the
day after revealing to Anna Knoff that she was intending
to. appear on behalf of the Union at the representation
hearing. Further, just prior to hearing of Miller's subpoe-
na from the Union, Knoff had attempted -to find out
,whether Lowery and Miller had started this."mess about
the Union."
Prior to these events, Anna Knoff had been tolerant of
Miller 's absences and tardiness ., On 12. July , Knoff told
Millet it was "O.K." for her to report for work late on
13 July. The following day when Miller called and told
Knoff that she would not be in for work, Knoff gave no
indication that Miller was to be discharged : or otherwise
in disfavor for not reporting to work. Whether Knoff
spoke to Debrick or Miller first on 13 July appears to be
of no importance . Knoff indicated anger to Debrick over
Miller 's attitude but gave no indication to the employee
that she had done anything wrong. Knoff's handling of
this matter supports an inference that Respondent had an
unlawful motive for the discharge. Finally, shortly after.
Miller 's discharge , Knoff, after unlawfully interrogating
Lowery concerning union activities , unlawfully threat-
ened to close the facility . Such union animus `and con-
temporaneous unfair labor practices further support an
inference of unlawful motivation for the discharge of
Miller.
The burden shifts to Respondent to 'establish that.
Miller would have been- discharged even in the absence
of her protected conduct. As shown above, Miller had
an attendance record which would normally justify dis-
charge . However, the issue is whether Respondent in
fact relied on that ground or merely, advanced it as a
pretext for an action it was undertaking essentially for
discriminatory reasons , such as the employee's status as a
union supporter. Limestone Apparel Corp., 255 NLRB 722
(1981). In this case Respondent historically tolerated ab-
sences and tardiness from its employees , including Miller.
Respondent made no distinctions in- its records between
excused and unexcused absences or tardiness. No warn-
ings were given or adverse actions taken against employ-
ees for either absences or tardiness . Neither Eugene
Knoff nor Bernadine Debrick ever , warned Miller nor
did they have any knowledge of any warning given by
Anna Knoff. Although Miller 's tardiness inconvenienced
Eugene and Anna Knoff, neither took any steps to reas-
sign or discipline Miller . Thus, based on the record as a
whole , including the evidence offered by Respondent in
its defense , I am_ convinced that Miller's absences and
tardiness were not in fact the reason for the discharge.
Rather, I'find that the record of absences and tardiness
were seized upon to justify the discharge because of Mil-
ler's unwelcomed support of the Union. While I •do not
condone Miller 's-attendance record , I find that Respond-
ent condoned that record until it obtained knowledge of
Miller 's support of the Union. Similarly, absences and
tardiness of undischarged employees were condoned by
Respondent :. Finally, I am . not impressed - by Respond-
ent's argument that no action was taken against Lowery,
273
•a more active union supporter. A discriminatory motive
otherwise established is not disproved by an employer's
proof that it did not weed out all union adherents. Amer-
ican Petrofina Co., 247 NLRB 183, 193 (1980); Nachman
Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir 1964).
While Knoff discharged Miller immediately on learn-
ing that Debrick received a call from a child that Miller
would not be in on 13 July, I do not find that sufficient
proof to meet Respondent's burden. Knoff had already
talked to Miller on 12 July and knew of the doctor's ap-
pointment. If Knoff spoke to Debrick on 13 July prior to
Miller 's call, Knoff would have reason to believe the-ab-
sence was connected to the doctor 's appointment. Fur-
ther , Knoff would have questioned Miller about these
events when Miller called on 13 July . If Knoff spoke to
Miller prior to her conversation with Debrick, there
would have been no reason to be angry with Miller over
the absence because Miller had kept Knoff well in-
formed. In any,event, Knoff never told Miller that she
was angry over this absence either on 12 or 13- July so
that'Miller could correct this fault. Rather, Knoff waited
until 14 July to discharge Miller for "laying off too
many days ." Based on all the evidence , I am inclined to
believe that Knoff's reference to Miller 's attitude was
more directed at union activities than at absenteeism.
As can be readily seen , the only witness who could
support Respondent 's defense , Anna Knoff, was unable
to testify. Without Knoff's testimony, Respondent cannot
explain why the poor attendance record it had condoned
during the entire period of Miller 's employment suddenly
caused her discharge ., Further, there was no one to ex-
plain why the poor attendance records of other employ-
ees were condoned. Respondent simply was unable to
rebut the prima facie case and could not establish- that
Miller would have been discharged even in the absence
of her union activities.
Accordingly, I find that Respondent discharged Miller
because of her support for the Union and that a violation
of Section 8(a)(3) of the Act has been proven by a pre-
ponderance of the evidence. Accordingly, I reaffirm the
following'
CONCLUSIONS OF LAW
L. The Respondent, Ann's Laundry & Dry Cleaners,
Inc., is an employer engaged . in commerce and in a busi-
ness affecting , commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Textile Processors , Service Trades,
Health ' Care, - Professional and Technical Employees
International Union Local No. 2, affiliated with Interna-
tional Brotherhood of Teamsters- ,is a labor organization
within the meaning of Section 2 (5) of the Act.
3. Respondent . has .engaged: in unfair labor- practices in ,
violation of Section 8(a)(1) of the Act by unlawfully in-
terrogating employees about union activities and by un-
lawfully threatening to 'close its facility due to union ac-
tivities.
4. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act by unlaw-
fully discharging Anner Faye Miller on 14 July 1982.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5 The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent engaged in unfair labor
practices I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act
Respondent shall be required to offer Anner Faye
Miller reinstatement to her former job or if that position
no longer exists to a substantially equivalent position
without prejudice to her seniority or other nghts and
privileges and to make her whole for any losses she may
have suffered as a result of the discnmination against her
in the manner set forth in F W Woolworth Co 90
NLRB 289 (1950) with interest computed in the manner
set forth in Florida Steel Corp 231 NLRB 651 (1977)
See generally Isis Plumbing Co 138 NLRB 716 (1962)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed8
ORDER
The Respondent Ann s Laundry & Dry Cleaners
Inc Kansas City Kansas its officers agents successors
and assigns shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against
employees for supporting or engaging in activities on
behalf of Textile Processors Service Trades Health
Care Professional and Technical Employees Internation
al Union No 2 affiliated with International Brotherhood
of Teamsters or any other labor organization
(b) Interrogating employees about their union activities
or the union activities of other employees
(c) Threatening to close its facility because of its em
ployees union activities
(d) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Anner Faye Miller immediate and full rein
statement to her former job or if that job no longer
exists to a substantially equivalent position without prej
udice to her seniority or any other rights or privileges
previously enjoyed and make her whole for any loss of
earnings and other benefits suffered as a result of the dis
cnmination against her in the manner set forth in the
remedy section of the decision
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against her in any way
8 All outstanding motions inconsistent with this recommended Order
are denied If no exceptions are filed as provided by Sec 102 46 of the
Board s Rules and Regulations the findings conclusions and recom
mended Order shall as provided in Sec 102 48 of the Rules be adopted
by the Board and all objections to them shall be deemed waived for all
purposes
(c) Post at its Kansas City Kansas facilities copies of
the attached notice marked Appendix 9 Copies of the
notice on forms provided by the Regional Director for
Region 17 after being signed by the Respondents au
thonzed representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(d) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
9 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT discharge or otherwise discriminate
against employees for supporting or engaging in activi
ties on behalf of Textile Processors Service Trades
Health Care Professional and Technical Employees
International Union No 2 affiliated with International
Brotherhood of Teamsters or any other labor organiza
tion
WE WILL NOT interrogate employees about their union
activities or the union activities of other employees
WE WILL NOT threaten to close our facility because of
our employees union activities
WE WILL NOT in any like or related manner interfere
with restrain, or coerce our employees in the exercise of
their rights under Section 7 of the Act
ANN S LAUNDRY
WE WILL offer Anner Faye Miller full and immediate
reinstatement to her former position or if that position
no longer exists to a substantially equivalent position
with full seniority privileges and benefits and WE WILL
make her whole for any losses she may have suffered be
cause of our discrimination against her plus interest
275
WE WILL expunge from our files any reference to the
discharge of Miller in July 1982 and WE WILL notify her
m writing that this has been done and that evidence of
this unlawful discharge will not be used as a basis for
future personnel action against her
ANN S LAUNDRY & DRY CLEANERS INC