Champa Linen Service Co.

National Labor Relations Board - Board Decisions

Feb 26, 1974

209 N.L.R.B. 253 (N.L.R.B. 1974)

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.