Morgan Linen Service, Inc.

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bargain with Local 3 after the move from the Bronx to Mamaroneck? I find, in the particular circumstances of this case, that there was no real refusal to bargain. N.L.R.B. v. Albert Armato, et al., 199 F. 2d 800 (CA. 7), relied upon by the General Counsel in this case, seems to me to be the best authority available for the proposition that the purchaser of a manufacturing business who takes over opera- tion of the seller's plant, with knowledge of collective-bargaining agreement or agree- ments between the seller and the labor union certified by the Board as exclusive bargaining representative of seller's employees, acted improperly in refusing to bar- gain with the union after certification and after the contract was in effect for a period of time. Following the principles laid down in this case, affirming an Order of the Board, I find that neither Kipbea nor H & L, in the circumstances of this case, can be accused of a refusal to bargain, either with Local 3 or with any other union. In view of the advance notice given to Hart as a representative of Local 3 and the bakers that Seiferth, as the operating head of Kipbea, intended to remove him- self from the Bronx to another location, and further considering the fact that this is a comparatively small bakery operation, I find no reason to think that the financial arrangements and the change of operation as to location were not bona fide as between the Seiferths and their cousin, Lorraine Zah. Had the Union, meaning Local 3, been intent on its efforts to preserve its rights, it had adequate opportunity so to do before June 30. Having slept on its rights, it cannot now be heard to say what it believes should have been done by Kipbea when the opportunity first was presented to it before the change of operations was made. On the preponderance of the evidence herein, and on the whole case, I find the allegation of the complaint not sustained by the proof adduced at hearing. Upon the above findings of fact and upon the entire record of the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents, Kipbea Baking Company, Inc., H & L Baking Company, Inc., and Edwin Seiferth, Helen Seiferth, and Lorraine Zah are engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 3, Bakery and Confectionery Workers International Union of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondents named herein are not and have not engaged in unfair labor practices as alleged in the complaint. [Recommendations omitted from publication.] Morgan Linen Service, Inc. and Milk Drivers and Dairy Employees Union Local No. 338, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner Central Coat, Apron and Linen Service, Inc. and Milk Drivers and Dairy Employees Union Local No. 338, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner New York Globe Laundry, Inc. and Milk Drivers and Dairy Employees Union Local No. 338, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases Nos. 2-RC-10922, 9-RC-10957, and 3-RC-10969. May 3, 1961 DECISION AND ORDER Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before 131 NLRB No. 58. MORGAN LINEN SERVICE, INC. 421 I. L. Broadwin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board 1 finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer 2 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act for the following reasons: Petitioner seeks to represent the drivers and helpers I of the Em- ployers named herein in three separate units, or in the alternative, a multiemployer unit of drivers and helpers employed by members of the Linen Supply Institute, or more exactly, those members who formerly bargained through the Linen Supply Institute of Greater New York, Inc. The Employers and Amalgamated contend that the petitions should be dismissed on the ground that (1) the unit sought is inappropriate because it does not embrace an industrywide, multi- employer unit in the laundry industry in metropolitan New York City and (2) the employees sought by Petitioner cannot properly be sev- ered from the existing production and maintenance unit. The Linen Supply Institute, until its dissolution in 1958, was one of many employer associations which represented employers in the three segments of the laundry industry 4 in New York City and en- virons in collective bargaining with Amalgamated. The Employers, Central and Morgan, were members of the Institute since its inception in 1938; Globe, though not a member, participated in collective bar- gaining through the Institute representative. Amalgamated has represented all the employees of these three Employers as well as other employers in the laundry industry in metropolitan New York since 1938. Since that date, collective bargaining for the employers in the industry having contractural relations with Amalgamated has been conducted by a negotiating committee chosen by individual em- ployers, their attorneys and representatives of the various employer ' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 3 Amalgamated Laundry Workers Joint Board, Amalgamated Laundry Workers of America, AFL-CIO, and Amalgamated Clothing Workers of America, herein referred to collectively as Amalgamated , intervened on the basis of a contractual interest 3In its three petitions, Petitioner sought the chauffeurs employed by Morgan, the drivers, helpers , and mechanics employed by Central , and the drivers and helpers em- ployed by Globe At the hearing Petitioners indicated that it is interested only in drivers and helpers The record shows that these employees, classified as route or driver-salesmen , spend only 20 percent of their time driving and the rest of their time servicing the customers at their employers and soliciting new business. 4 These main segments , based on the type of service rendered to the customer, are (1) linen supply, flat work, office towel, and diaper; ( 2) family and wholesale; and (3) hand laundry. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD associations. Prior to 1957 this committee negotiated an identical contract for each of the three segments of the New York laundry in- dustry binding upon all these participating industry employers. Since 1957 negotiations have resulted in one combined contract appli- cable to all these employers in the three segments of the industry. Identical individual contracts were executed by each employer which conformed to the master agreement resulting from the joint negoti- ations. Until 1958 the Employers Central, Globe, and Morgan were represented by the industrywide bargaining committee by virtue of their membership in and association with the Institute. With the dissolution of the Institute in 1958 the member employers thereof, including the instant three Employers, continued their participation in the appointment of the joint bargaining committee by their direct individual action. And they continued to be bound by the results of the joint industrywide bargaining and signed the resulting uniform master agreements.5 At no time have the three Employers dealt with Amalgamated in regard to separate employer contracts. Nor had the Linen Supply Institute engaged in bargaining on behalf of its mem- bers as a separate multiemployer unit apart from the broader, in- dustrywide group. In brief, the same pattern of industry multi- employer bargaining continued without material change since 1938. The Board has held that an essential element for establishing a multiemployer unit is participation by a group of employers whether members or nonmembers of an association, either personally or through an authorized representative, in joint bargaining negotiations unequivocally manifesting the intent to be bound by group rather than by individual action." The three Employers have bargained contin- uously with Amalgamated for 23 years. They were represented by a joint bargaining committee chosen by their representative, the Insti- tute, and after the Institute was dissolved, continued to bargain through the same joint representative. They have regularly executed the standard and uniform contracts resulting from the joint industry- wide bargaining negotiations. The Employers indicate that they will continue to engage in such joint bargaining. The record in our opinion clearly establishes that the Employers herein have effectively partici- pated in the joint bargaining as part of an industrywide multi- employer group, which we accordingly find to have been manifested as the appropriate unit for purposes of collective bargaining. The Board has further held that requests for severance elections must be coextensive with the existing bargaining unit from which the union seeks to detach specified categories of employees.7 6 The dissolution of the Institute caused no break in the continuity of the industry- wide multiemplover contracts 9 American Publishing Corporation, et at , 121 NLRB 115; Bunker Hill and Sullivan Mining and Concentrating Company, at at, 89 NLRB 243, 251. 7 The Los Angeles Statler Hilton Hotel, 129 NLRB 1349 ; United Can and Glass Co , at at 1 105 NLRB 69 MID-CONTINENT CARTON CORPORATION 423 Accordingly, as the units requested by Petitioner are limited either to individual employers or a segment of the employers in the appro- priate multiemployer unit, we find that unit or the units sought are too narrow in scope and therefore inappropriate for purposes of col- lective bargaining." [The Board dismissed the petition.] 8 It is unnecessary to resolve any question whether Petitioner indicated a sufficient showing of interest with respect to the alternative unit it requested consisting of all former employer members of the Institute . Moreover , we note that, apart from the instant Employers, the other 'former members of the Institute were not made parties herein and did not participate in the case. Mid-Continent Carton Corporation and General Drivers, Ware- housemen & Helpers Local Union #89, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America , Petitioner. Case No. 9-RC-4338. May 3, 1961 DECISION AND ORDER Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No 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, for the following reasons: The Petitioner seeks to represent a unit of all employees at the Em- ployer's box plant. The Employer contends that it has adopted the terms of a contract between its predecessor company and Paper Work- ers Union of Kentucky' covering the employees sought, and that such contract is a bar to this proceeding. The Employer purchased the box plant involved herein from the Louisville Paper and Manufacturing Company, on April 1, 1960. 1 Although served with notice of hearing , the Paper Workers Union of Kentucky did not enter an appearance at the hearing. 131 NLRB No. 60.