Imperial Laundry, Inc.

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Imperial Laundry, Inc. and The AFL-CIO Combina- tion Dry Cleaners, Launderers and Service Stores Employees Union, Local 168. Case 3-CA-4458 March 6, 1972 DECISION AND ORDER BY CHAIRMAN ,MILLER AND MEMBERS FANNING, AND JENKINS On December 17, 1971, Trial Examiner Lloyd Bu- chanan issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a' support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner s rulings, findings,` and conclusions2 and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Imperial Laundry, Inc., its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's recommended Order. ' Respondent's operations, standing alone, do not satisfy either the Board's retail of nonretail jurisdictional standards. However, Respondent was a member of a multiemployer bargaining group and we are satisfied that the operations of other members of that bargaining group did meet the Board's requisite jurisdictional standards We therefore find, as did the Trial Examiner, that the Board has jurisdiction over Respondent, and that it will effectuate the policies of the Act to assert jurisdiction in this case Cf Edward Peterein and Robert Greenlee, a Partnership, d/b/a Peterein and Greenlee Construction Co., 172 NLRB No. 238. 2 Respondent excepts to the Trial Examiner's conclusion that it violated Section 8(a)(5) of the Act when it refused to sign the contract resulting from the multiemployer negotiations which were conducted between August 1970 and January 1971 It claims that it was not obligated to accept the results of the group bargaining and that it did not in fact refuse to bargain with the Union as it was, and is, willing to bargain with the Union individu- ally. We find no meet in Respondent's position. As found by the Trial Examiner, Respondent was at all times, up to January 1971, a member of the multiemployer group and it in fact participated in some of the negotiat- ing meetings . Under well-established precedents, its attempted withdrawal from the group after the negotiations had produced agreement was plainly untimely, and its refusal to sign the multiemployer agreement was clearly in violation of Section 8(a)(5) of the Act. See Anderson Lithograph Com- pany, Inc., 124 NLRB 920, enfd. sub nom N.L.R.B. v. Jeffries Banknote Co, 281 F 2d 893 (CA 9), Service Roofing Company, 173 NLRB 321, 322-323. TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner:- The complaint herein (issued July 28, 1971 ; charge filed May 7, 1971), as amended, alleges that Imperial Act, _as- violated. Section 8(a)(5) and (1) of the National Labor Relations Act as amended, 73 Stat. 519, by refusing to sign a collective-bar- gaining 'agreement which had been negotiated and agreed upon by a multiemployer group which included Imperial. The answer, asamended; denies the ,allegations of engage- ment in commerce within the meaning of the Act, and of violation . Two of the four affirmative defenses refer to issues raised by the complaint and the denials in the answer; the other two defenses are not germane to the problem before us and the law with respect thereto. The case was tried before me at Buffalo, New York, on September, 22, 1971. Counsel were heard in brief oral argu- ment at the close of the trial. Upon the entire record in the cases and from my observa- tion of the witnesses , I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I. IMPERIAL'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED Imperial, a New York corporation with principal place of business in Buffalo, New York, is engaged in the business of providing laundry and linen rental and related services. Al- though it does no business outside New York State, it has annually rendered services valued at more than $250,000 for other enterprises, including services valued at more than $39,000 for, among others, American Airlines, Holiday Inn Restaurant, Armour Packing, Trimble Pontiac, and Hearth- stone Manor. Frontier Linen Supply Co., Inc., Consolidated Laundries Corp., and American Linen Supply Co., Inc., severally and annually provide goods and services valued at more than $500,000, and purchase outside the State of New York for use within the State goods valued at more than $50,000. With these findings and those below concerning a multiem- ployer bargaining group, I find and conclude that Imperial, as part of such group, is engaged in commerce within the meaning of the Act and comes within the Board's jurisdic- tional standards. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II THE ALLEGED VIOLATION OF SECTION 8(A)(5) AND (1) The latest in a series of collective-bargaining agreements prior to the one here in issue was entered into in 1967 between the Union and the 15 companies listed in the current agree- ment, including Imperial, Frontier, Consolidated, and American Linen. That 1967 agreement was negotiated with the employers as a multiemployer group and by its terms expired on October 4, 1970. Imperial signed a copy of that contract identical to copies signed by each of the other com- panies named therein. On July 8, 1970, the Union sent to each of the employers covered by the expiring contract a notice of proposed changes in the contract to be negotiated, refernce being made to negotiations scheduled to commence on August 4. The Union and an employer negotiating committee nego- tiated between August and October and, after further revi- sions, a new collective-bargaining agreement was "ulti- mately" signed by all of the employers except Imperial on January 13, 1971. By the terms of the agreement and with respect to each employer covered by it, the Union is the 195 NLRB No. 135 IMPERIAL LAUNDRY, INC. exclusive collective-bargaining representative of the em- ployees in the following unit: All employees of the given employer, male and female, part-time and full-time, excluding supervisors, foremen, salesmen, engineers, and office help. The issue now is whether Imperial is covered by the agree- ment and was obliged to execute it. It is admitted that on May 7 the Union asked Imperial to sign and that the latter then and has since refused- I find and conclude that at least since 1967 all of the employers, including Imperial, listed on the contracts ex- ecuted that year and on those executed as of October 5, 1970, compose a multiemployer collective-bargaining group; that all, through their negotiating committee, engaged in collec- tive bargaining with the Union as a multiemployer group; and that each agreed to be bound by and to adhere to any agree- ment reached in such bargaining. Whatever Imperial's complaint that, when the agreement was presented to the parties for signature on January 13, it was denied an opportunity to detail its objections, it had in the past and during the negotiations recognized as operative the employers' negotiating committee (Puglesi, Imperial's president, testified that he was not a member of the commit- tee; the union representative testified that Puglesi was a mem- ber and attended three negotiation meetings); and under the cases it was obliged to partake of the fruits of the committee's efforts, however unappetizing. With earlier knowledge of a proposed contract, the meeting called to sign it was hardly the time to voice "objections to [all of the] demands."' Withdrawal from joint bargaining must be timely. It is not timely when attempted during or after negotiations. Im- perial's obligation to consummate the negotiations and to execute the agreement was neither increased by its actual performance in accordance with various provisions, as the General Counsel pointed out, nor lessened because it al- legedly so performed voluntarily or because, as Puglesi told us, he wanted to keep his employees happy and to avoid trouble. (There is no claim that Imperial has denied its em- ployees any benefits provided by the agreement.) Whatever motivated Imperial's acts or failure to act, it had on July 9 received the Union's notice of proposed changes in the contract to be negotiated, and reference to the negotia- tions commencing on August 4. Neither then nor at any other time prior to the commencement of the negotiations, nor even belatedly during the negotiations which took place in August, September, and October, and of which it was kept informed; nor evidently even in, January, when it wanted to protest the terms agreed upon, did Imperial indicate that it was not in fact involved in the bargaining. If timeliness of an attempted withdrawal from a multiem- ployer2 unit is the determinative factor even when it is claimed that employees have indicated a change in their desires for affiliation.' a fortiori must timeliness be determina- tive where there is no evidence of employee change. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: Cf Imperial Outdoor Advertising, 192 NLRB No. 183 The bargaining history indicates that this is a single unit for bargaining purposes but not, as alleged, a single employer unit ' Sheridan Creations, Inc., 148 NLRB 1503. Cf Victorville Glass Com- pany, 193 NLRB No 42 709 ORDER4 Respondent, Imperial Laundry, Inc., Buffalo, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to sign the agreement dated October 5, 1970, negotiated with The AFL-CIO Combination Dry Cleaners, Launderers and Service Stores Employees Union, Local 168. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, by The AFL-CIO Combination Dry Cleaners, Launderers and Service Stores Employees Union, Local 168, forthwith execute the agreement of October 5, 1970. (b) Post at its place of business in Buffalo, New York, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 3, shall be posted by the Company, after being duly signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3,6 in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. 4 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Baord, the findings, conclusions, 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 Realtions Board." b In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has take 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 forthwith sign the agreement of October 5, 1970, negotiated with The AFL-CIO Combination Dry Cleaners, Launderers and Service Stores Employees Union, Local 168. WE WILL NOT refuse to sign such agreement or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist the AFL-CIO Combination Dry Cleaners, Launderers and Service Stores Employees Union, Local 168, or any other labor organization, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a labor organization as a condition of employment , as This is an official notice and must not be defaced by any- authorized in Section 8(a)(3) of the Act. one. This notice must remain posted for 60 consecutive days IMPERIAL LAUNDRY, from the date of posting and must not be altered, defaced, or INC. covered by any other material. - (Employer) Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Ninth Dated By Floor, Federal Building, 111 West Huron Street, Buffalo, (Representative) (Title) New York 14202, Telephone 716-842-3100.