Indianapolis Cleaners and Launderers Club

In the Matter Of INDIANAPOLIS CLEANERS AND LAUNDERERS CLUB, EMPLOYER and RETAIL, WHOLESALE & DEPARTMENT STORE UNION, CIO, PETITIONER Case No. 35-RC-247 SUPPLEMENTAL DECISION ORDER AND DIRECTION OF ELECTION December 8, 1949 On September 9, 1949, the Board issued a Decision and Order ^ dismissing the petition in this case. Thereafter, the Petitioner filed a Motion for Reconsideration, copies of which were duly served on all parties, requesting the Board to reverse its Decision and Order and relying on clarifying evidence introduced at the hearing in the then pending unfair labor practice cases.2 The Employer and all.Inter- venors, with the exception of the Teamsters, filed briefs in opposition to the Motion for Reconsideration. Upon the Petitioner's motion,' the Board has reconsidered the en- tire record in this case and finds as follows : 1. The Employer is an unincorporated voluntary association of 42 Indianapolis employers engaged in the dry cleaning and laundry industry. During 1948, the Employer's members together 4 did an an- nual business totaling $11,209,738.49, of which $813,719.44 (or 7.3 per- cent) represented services to interstate carriers and industrial cus- 1 85 NLRB 1198. 2 Cases Nos. 35-CB-14, 35-CB-16, 35-CB-18, and 35-CA-86. Under the circumstances, the request that the Board take judicial notice of the subsequent proceeding was proper. See Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U. S. 146, 157-158. 8 The Petitioner 's renewed request for oral argument is denied for the reasons stated in the original decision. * Consistent with our well-established policy, we continue to treat the association of 42 employers as a single enterprise and as the employer in passing upon this jurisdictional issue. Indianapolis Cleaners and Launderers Club, 85 NLRB 1198 ; Retail Merchants Ass'n of Terre Haute, 83 NLRB 112. It is immaterial that the impact upon commerce does not derive in equal measure from all of the members . See IVirts Distributing Com- pany, et al., 82 NLRB 669 ; Air Conditioning Company of Southern California, et al., 81 NLRB 946 ; Everett Automotive Jobbers Ass 'n, 81 NLRB 304 ; Baking Industry Council, 80 NLRB 1590. Thus the fact that 82 percent of the work performed for interstate con- cerns was done by 4 of the 42 members-a fact emphasized by our dissenting colleagues-is not relevant in this type of case. 87 NLRB No. 75. 472 INDIANAPOLIS CLEANERS AND, LAUNDERERS CLUB 473 tomers, several of whom are engaged in interstate commerce.' During 1948, the association members jointly made out-of-State purchases of equipment and supplies totaling $2,347;047.98, of which $1,661,877.65 were directly from points outside the State. Reappraising this operation, we are now of the opinion that the dollar-volume of out-of-State purchases s and the volume and nature of the Employer's services to customers engaged in interstate com- merce I or transportation do substantially affect commerce. Accord- ingly, the operations of the Employer may not be regarded as essen- tially local. We find, therefore, contrary to the contentions of the Employer and the Intervenors, that the Employer is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case .s 2. The labor organizations involved claim to represent employees of the employer.9 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act."' 5 At the time of our original decision in this matter, the record before us contained only a general stipulation that the establishments involved performed services to firms engaged in interstate commerce . At the hearing in the unfair labor practice cases , which we judicially notice, the parties identified some of the commercial customers . The Board has asserted jurisdiction over at least six of these. The services rendered to such companies include the supplying of clean towels , work clothing , wiping rags, etc. 6 See Bettendorf Select Foods, Inc., 85 NLRB 919 (in which jurisdiction was asserted over a supermarket on the basis of the dollar -volume of out-of-State purchases which totalled $1,873 ,000) ; King-Brooks, Inc., 84 NLRB 652 (in which jurisdiction was as- serted over a clothing store making out -of-State purchases totaling $378,000 ). Both cases were decided after Fehr Baking Co ., et at., 79 NLRB 440 . Moreover , it should be noted that neither Richter Transfer Company, 80 NLRB 1246 , nor Fehr Baking Co., supra, upon which the dissent relies, are apposite. These cases all involve only substantial volumes of out-of-State purchases and do not consider the effect of the additional factor of significant volume of business with commercial customers , such as we have here. We cannot subscribe to the observation of our dissenting colleagues that this decision stands for the proposition that "all an essentially local business need do to become imprinted with an interstate character is to have some interstate concerns among its customers . . . Our decision rests on the quantity as well as the character of the services to interstate customers and also on the more than 2 million dollars ' worth of out-of-State purchases . In any event, unlike our colleagues , we cannot assume that indus- trial customers annually pay $779,359.99 for unessential services. Work clothing and work cloths are hardly matters of mere convenience , such as "paper napkins for plant cafeterias." 8 New York Steam Laundry, Inc., 80 NLRB 1597 ; see Lebanon Laundry and Drys Cleaners, 81 NLRB 405; J. Arthur Anderson Laundry; 83 NLRB 1120. P The following unions intervened on the basis of their interest in the current contract : Laundry Workers International Union, AFL, and its Local No. 350; International Asso- ciation of Cleaning and Dye House Workers, AFL,, and its Local No . 165; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and its affiliate Bakery, Laundry, Dairy Employees and Sales Drivers' Local No. 188. m The Employer and the Intervenors assert that the current 7-year contract, executed on March 31, 1949, prior to the filing of the instant petition, operates as a bar to this proceeding. We note, however, that under the terms of this contract, employment is conditioned on membership in the contracting unions for the duration of the contract. No election was held authorizing the execution of such an agreement: therefore, the contract cannot operate as a bar. Unique Art Manufacturing Co., 83 NLRB 1250. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. As all employers involved are members of the association, par- ticipated in group negotiations, and are signatories to a 7-year contract which provides for representational administration, we agree with the parties that an association-wide unit is appropriate 11 As to the in- ternal composition of the unit, the Petitioner requested a unit consist- ing of all production and maintenance employees of all member plants, excluding drivers, driver-salesmen, and office clerical employees (in- cluding the store employees). The Petitioner is, however, willing to accept the contract unit which the Employer and the Intervenors assert to be appropriate. This unit includes drivers, driver-salesmen, and store employees. As*no persuasive reason for excluding the drivers, driver-salesmen, and store employees has been given, and.as the Peti- tioner is willing to include these employees, we shall include them in the unit.12 Accordingly, we find that all production and maintenance employees of all member plants, including drivers, driver-salesmen, and those store employees who engage in production and processing, but exclud- ing all office and clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. On June 1, 1949, the Employer put into effect the union-shop provisions in the current contract. Certain employees thereupon struck in protest against the provision and others were discharged pursuant to the provision. The Petitioner contends that the strikers and the employees who were discharged are entitled to vote if the Board should direct an election, because of the alleged illegality of the provisions involved. These provisions and discharges are the subjects of complaint proceedings. The Employer and the Inter- venors contend that these individuals must be regarded' as having been validly discharged in some cases; in others as having voluntarily quit their jobs, terminated their employment by reason of their strike in vviolation of the no-strike provision contained in the contract, or, if regarded as strikers, no longer employees because replaced. We have held that the issue of eligibility of strikers and replacements of alleged discriminatory discharges to vote in an election can best. be resolved by proceeding with an immediate election, using a current pay roll, but permitting the individuals affected to cast ballots under 11Air Conditioning Company of Southern California , at al., 81 NLRB 946 ; see Olives, Incorporated, 78 NLRB 1259, footnote 1. 11 National Linen Service Corp ., 54 NLRB 257 ( all drivers included ) ; Star Dyers & Cleaners, Inc., 53 NLRB 514 (drivers included ). See New York Steam Laundry, Inc., 80 NLRB 1597 ( truck drivers excluded on the basis of the agreement among the parties) ; Arrow Linen Service, Inc., 73 NLRB 868 (store employees included ) ; National Laundry, Inc., 36 NLRB 1204 ( store employees included), INDIANAPOLIS CLEANERS AND LAUNDERERS CLUB 475 challenge.1S In the event that the counting of challenged ballots could affect the outcome of the election, a• further investigation will be conducted to determine the employment status of these challenged voters. Accordingly, we shall direct an immediate election, permitting all employees to participate who were employed during the pay-roll period immediately preceding the date of this Direction. Moreover, strikers, all persons hired since the date the strike began,14 and all employees discharged pursuant to the union-security provision of the contract, shall be deemed presumptively eligible to vote, subject to challenge 18 ORDER IT IS IIEREBY ORDERED that the Decision and Order in the above- entitled proceeding, issued by the Board on September 9, 1949, be and it hereby is, vacated and set aside insofar as it is inconsistent with this Supplemental Decision and Direction of Election. DIRECTION OF ELECTION 16 As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 45 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who 1s See Stokely Foods, Inc., 78 NLRB 842; Crowley's Milk Company, Inc., 79 NLRB 602; Pipe Machinery Company, 76 NLRB 247. 14 The record in this proceeding does not establish the date the strike began. 15 Nothing in this Direction should be construed as indicating that the Board has pre- judged in any respect any of the questions which may be drawn into issue by a challenge to the eligibility of certain voters, including such questions as whether ( 1) a new employee Is a permanent replacement , ( 2) an economic striker has been validly replaced, (3) an unfair labor practice striker's position no longer exists by reason of its permanent discontinuance for economic reasons. Crowley's Milk Company, Inc., supra. It is clear that many such questions could be resolved only by awaiting the outcome of the pending unfair labor practice cases. 16 The six Intervenors are jointly designated in the current contract as "the Union" and request that they be collectively placed on the ballot and designated as "AFL." The American Federation of Labor is not a party to this proceeding . In order to avoid any misunderstanding as to the choice of representatives, we shall deny the Intervenors ' request and require that they be individually designated on the ballot . We leave to the Regional Director and the parties the determination of the method whereby those intervenors entitled to appear upon the ballot may be collectively symbolized while specifically identified. International Association of Cleaning and Dye House Workers, AFL , and Laundry Workers International Union, AFL, are omitted from the ballot because their locals No. 165 and No. 350 have not complied with Section 9 (f), (g), and (h) of the Act. The Prudential Insurance Company of America, 81 NLRB 295. They are to be accorded a place on the ballot along with their locals if the locals effect compliance within 30 days from the date of this Direction. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were employed during the pay-roll period immediately preceding the date of. this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by Retail, Wholesale & Department Store Union, CIO, or by Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and its affiliate Bakery, Laundry, Dairy Employees and Sales Drivers' Local 188 or by neither. MEMBERS MURDOCK and GRAY, dissenting We find nothing submitted in support of Petitioner's Motion for Re- consideration which warrants reversal of the Board's original de- cision not to assert jurisdiction in this case on the ground that laundry and dry cleaning are essentially local businesses. In that decision (in which we were joined by one of the members of the present majority), we specifically noted the existence of a substantial volume of out-of- State purchases, but reaffirmed the doctrine established by numerous precedents that out-of-State purchases of items necessary to carry on an essentially local business do not operate to transform such an enter- prise into one engaged in interstate commerce 17 That doctrine does not become inapplicable mer ely because, as here, the petition involves a group of essentially local enterprises rather than a single one, and the cumulative total of out-of-State purchases of all employers is nec- essarily increased. Thus in the Fehr Baking Co. case,18 in accordance with its recognition of baking as an essentially local business, the Board dismissed a petition involving nine baking companies in Hous- ton despite out-of-State purchases totaling $1,470,000, a figure which approximates the total out-of-State purchases in the instant case. Ac- cordingly, the present majority's reliance for the assertion of jurisdic- tion here upon the "dollar volume of out-of-State purchases," is inapposite. A second basis now relied upon for the assertion of jurisdiction is "the volume and nature of the Employer's services to customers en- gaged in interstate commerce," which services the majority conclude " See e. g., Richter Transfer Company, 80 NLRB 1240; in which the Board said : "We do not believe that the essentially local character of work such as excavation assumes a sufficiently interstate aspect merely because capital equipment purchased to engage in such work may have come from outside the State." is 79 NLRB 440. INDIANAPOLIS CLEANERS AND LAUNDERERS CLUB . 477 "do substantially affect commerce." 19 The original record contained a stipulation that members of the association performed services amounting to $779,359.93 for concerns engaged in interstate com= merce, and $34,359.51 for interstate carriers, such services constitut- ing about 7 percent of the total business done. However, 82 per- cent of the work performed for interstate concerns and carriers was done by only 4 of the 42 member laundries, while 24 did no work of this kind. Our attention is now called to a further stipula- tion in a complaint case involving the parties which identifies 13 of the industrial customers for whom some member laundries per- form service (of the 13 the Board has asserted jurisdiction over 6). The stipulation further specifies the services as including "the supply- ing of clean towels, work clothing, wiping rags, etc." The present majority's ultimate conclusion that these services "substantially affect commerce," must necessarily be predicated upon a subsidiary conclu- sion that the work of laundering towels, work clothing, and wiping rags is essential to the production of goods for interstate commerce by the Employer's industrial customers. Yet we do not have an iota of testimony in the record that the production of any of these indus- trial concerns would be affected in the slightest by a stoppage of the Employer's laundry services to support the finding of the majority that these services "do substantially affect commerce." Nor is the nati 'e of these services such as to compel or require such a conclusion. This case is thus clearly distinguishable from those involving utilities which furnished power to interstate concerns, or transit lines which transported employees of such concerns to and from. work, where it was clear from the nature of the services or shown by testimony in the record that the services furnished had a substantial and direct effect upon interstate commerce because of- the adverse effect upon produc- tion of a cessation of those services.20 Insofar as the majority's decision relies upon the services furnished industrial concerns as shown by the record in this case, it necessarily stands for the proposition that all an essentially local business need do to become imprinted with an interstate character is to have some interstate concerns among its customers, and no evidence will be re- quired that such services are essential to the production of goods for interstate commerce. If the activities of the Employer here can be said to affect interstate commerce, then so would those of local busi- nesses supplying bottled spring water, or paper napkins for plant cafe- terias, or similar items which may be matters of convenience but which 10 Unless the nature of these services is such that they substantially affect interstate commerce , the volume , of course , has no significance. 20 See e. g., Amarillo Bus Company, 78 NLRB 11.03 ; El Paso -Ysleta Bits Company, 79 NLRB 1088; Texas Public Service Company, 80 NLRB 372. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certainly do not spontaneously satisfy the concept of what is an es- sential element in the production of goods for commerce by interstate concerns. It is difficult to think of any occupation which does more spon- taneously satisfy the concept of an essentially local business than that of washing the community's dirty linen. The majority's decision to assert jurisdiction here thus goes far to obliterate any line which the Board has previously drawn between businesses essentially local in character and those which substantially affect interstate commerce.2' Moreover, in view of the fact that most of the services for industrial concerns are performed by only 4 member laundries out of 42 members of the Employer association, and 93 percent of all business is admit- tedly wholly local in character, it seems to us that our majority col- leagues are using a very small and tenuous tail to wag a very large and essentially local dog. 21 The instant ease is clearly distinguishable from New York Steam Laundry, 81 NLRB 591, where the Board took jurisdiction of a laundry a substantial part of whose services, exceeding $100,000 annually , were performed for interstate carriers , including laundering Pullman sheets and towels . The employer there was performing service on sheets and towels which continually moved across State lines in Pullman service and under those circumstances it would be clearly inaccurate to say that the laundry's business was essen- tially local and did not have a direct and substantial effect upon interstate commerce. In the instant case services of an unspecified character to unidentified interstate carriers divided among various member laundries totaled only $34,359.51.