Sanitary Laundry & Dry Cleaning Co., Inc.

SANITARY LAUNDRY & DRY CLEANING 53 Sanitary Laundry &,Dry Cleaning Co., Inc. and Sales Drivers, Food Processors, Warehousemen & Help- ers, Local 952, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 21-CA-9057 documents, I issued an order to show cause, on or before June 5, why the motion should not be granted. On Respondent's request, the return date was extended to June 12. For reasons hereinafter shown, the motion is granted. The Representation Case2 October 22, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 25, 1970, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 Trial Examiner, and hereby orders that the Respondent, Sanitary Laundry & Dry Cleaning Co., Inc., Santa Ana, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Trial Examiner: On May 18, 1970,1 the General Counsel of the Board filed a Motionfor Summary Judgment based upon a complaint alleging violation of Section 8(a) (5) and (1), and Respondent's answer thereto. On May 19, upon consideration of all pertinent formal I All dates hereafter are sequentially in 1969 and 1970, unless otherwise specified. 2 Official notice is taken of the record in the representation proceeding, Case 21-RC-9843. E.g., Section 9(d) of the Act; Golden Age Beverage Co., On November 9, 1965, the Union filed its election petition, and on March 11, 1966, an election was conducted in two appropriate units consisting of production and maintenance employees, and route drivers. On June 4, 1968, the Board issued its Decision, Order and Direction of Second Election,3 finding that Respondent committed certain unfair labor practices which interfered with the election in the unit of route drivers, and ordered the holding of a second election at an appropriate time. On July 16, 1969, a second election was conducted, in which, of 10 eligible voters, 8 voted for, and 2 voted against, the Union. On July 23 and August 24, Respondent filed objections to the conduct of the election. It alleged, in substance, that the Union held a meeting with employees less than 24 hours prior to the election, preventing Respondent from holding a meeting to present counterarguments; and that the Union distributed a leaflet among the employees which contained improper promises of benefit, contained confusing infor- mation concerning benefits under existing union contracts, and used confusing job classification titles. On August 13, the Regional Director, following investigation, issued a Supplemental Decision and Certification of Representa- tive, in which he overruled Respondent's objections as lacking in merit, and certified the Union as exclusive representative in the appropriate unit. On August 26, the Board granted Respondent an extension of time to file a Request for Review, and on September 8, such a request, in substantial detail, was filed with the Board. On September 24, the Board denied Respondent's request for review, and affirmed the Regional Director's Supplemental Decision and Certification of Representative. On October 22, the Board denied Respondent's motion, of October 10, to reconsider. The Unfair Labor Practice Case On March 10, the Union filed and served upon Respondent an unfair labor practice charge. On April 3, the complaint thereon was issued by General Counsel alleging that Respondent refused to bargain upon request with the certified Union. Dated April 29, an answer to the complaint was filed by Respondent's president .4 Respondent admits filing and service of the charge; the Board's jurisdiction; the appropriate unit; that the Union is a labor organization under the Act; that the Union on February 4 and February 13 made repeated requests to bargain; and that it rejected the Union's request on the ground that "when the appeal rights of the Respondent had been exhausted it would then be the proper time to bargain collectively if all appeals are rejected." It generally denies the alleged violations, and specifically that the Union was certified as exclusive 167 NLRB No. 24, enfd. 415 F.2d 26 (C.A. 5). 3 171 NLRB No. 23. 4 It is not indicated that Respondent retained legal counsel in this proceeding. 186 NLRB No. 15 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative in the appropriate unit (of which I have taken official notice), contending that the Regional Director did not consider the issues (on Respondent's objections to the election) which could be resolved only after a hearing. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III THE UNFAIR LABOR PRACTICES Summary Judgment As shown, the Board denied Respondent's request for review, affirmed the Regional Director's Supplemental Decision and Certification of Representative, and denied Respondent's motion for reconsideration. Thus, over an extended period of time, Respondent has fully utilized and exhausted all the procedures in the representation proceed- ing provided under the Act and in the Board's Rules and Regulations (Sections 102.67 and 102.69).5 In response to the show cause order, Respondent does not present, or claim to present, any newly discovered or previously unavailable evidence. The entire thrust of its position is that it is entitled to a hearing on its objections to the election. However, such a hearing is not a matter of right unless substantial and material issues are raised by the objections,6 and the contrary here has already been concluded by the Board. In these circumstances, the law has long been settled that issues which were fully litigated in a prior related representation proceeding may not be relitigated in a complaint proceeding,7 Here, the representation findings are the law of the case and binding upon the Trial Examiner. Respondent is free to file with the Board exceptions to the instant decision and thereafter to seek full review of the representation and complaint cases before the Court of Appeals. Accordingly, as it appears that all necessary elements are established and that there are no unresolved issues which necessitate a hearing, the General Counsel's Motion for Summary Judgment is found meritorious. On the basis of the foregoing findings, and the entire record in the case, I make the following further: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is engaged primarily in the business of operating a retail and wholesale laundry and dry cleaning plant in Santa Ana, California. During the calendar year 1969, it furnished services valued in excess of $50,000 to customers who, in turn, are directly engaged in commerce. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. All route drivers employed by Respondent, excluding all guards, professionals, production and maintenance em- ployees, 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. At all times since August 13, 1969, and continuing to date, the Union has been the certified representative of the employees in the appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours, and other terms and conditions of employment. Respondent admits in effect, and I find, that it refused to bargain collectively with the Union. Thus, Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1), and Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions, and the entire record in the case, I recommend that Respondent, Sanitary Laundry & Dry Cleaning Co., Santa Ana, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Sales Drivers, Food Processors, Warehousemen & Helpers, Local 952, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the following appropri- ate unit: All route drivers employed by Respondent, excluding all guards, professionals, production and maintenance employees, and supervisors as defined in the Act. (b) For the purpose of determining the duration of the certification, the initial year of the certification shall be deemed to begin on the date that Respondent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit.8 (c) Interfering with the efforts of the above-named Union to negotiate for or represent employees as exclusive bargaining representative. 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of all the employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. 5 Eg, American Federation of Labor, et al v N L R B, 308 U S 401, N L R B, 313 U S 146, 162, Rules and Regulations, Sections 102 67(f) and 405, et seq 102 69(c). 6 E g, N L R B v Bata Shoe Co, 377 F 2d 821, 826 (C A 4). 8 E g, Burnett Construction Co, 149 NLRB 1419, 1421, enfd 350 F 2d 7 Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F 2d 517 (C A 570 (C.A 10) 7), cert denied 389 US 1041 And see Pittsburgh Plate Glass Co v SANITARY LAUNDRY & DRY CLEANING 55 (b) Post at its place of business in Santa Ana, California, copies of the notice attached hereto marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 21, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof and be maintained by Respondent for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Trial Examiner's Decision and Recommended Order, what steps Respondent has taken to comply herewith.10 9 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 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 . 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." 10 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Sales Drivers, Food Processors, Warehousemen & Helpers, Local 952, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of the employees in the following appropriate unit: All route drivers, excluding all guards, profession- als, production and maintenance employees, and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the above- named Union to negotiate for or represent employees as exclusive bargaining representative. WE WILL bargain collectively with the above-named Union as the exclusive bargaining representative of the employees in the appropriate unit, and if an under- standing is reached, we will sign a contract with the Union. SANITARY LAUNDRY & DRY CLEANING CO., INC. (Employer) Dated By (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, Eastern Columbia Building, 849 South Broadway, Los Angeles, California, 90014, Telephone 688-5229.