Tri-City Linen Supply

TRI-CITY LINEN SUPPLY 669 Tri-City Linen Supply and Sales Drivers & Dairy Em- ployees Local No. 166, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 21-CA-14569 November 1, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on April 8, 1976, by Sales Drivers & Dairy Employees Local No. 166, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, and duly served on Tri-City Linen Supply, herein called Respondent, the General Counsel of the'National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and no- tice of hearing on May 11, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on March 11, 1976, following a Board election in Case 21-RC-14173 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; ' and that, commenc- ing on or about April 7, 1976, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On May 18, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 29, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with appendixes. Subsequently, on July 9, t Official notice is taken of the record in the representation proceeding, Case 21-RC-14173, as the term "record" is defined in Secs 102 68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystenas, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C.A. 4, 1968); Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26 (C.A. 5, 1969), Intertype Co. v Penello, 269 F Supp 573 (D.C Va., 1967), Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968; Sec 9(d) of the NLRA, as amended 1976, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to Notice To Show Cause. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to complaint, Respondent in sub- stance denied the representative status of the Union because the Board unlawfully overruled its objec- tions to the election in the underlying representation case. The General Counsel contends that Respon- dent is attempting to relitigate issues decided in the prior related representation case and that those issues may not be relitigated here. We agree. Respondent specifically alleges that the Union is not lawfully certified as the bargaining representative because a union agent made material misrepresenta- tions of fact to the employees on election eve, be- cause the Union attempted to intimidate Respondent from lawful electioneering by filing an unfair labor practice charge, and because the election was held while such charge was pending. The record, includ- ing the relevant documents in representation Case 21-RC-14173, establishes that on May 23, 1975, an election was held pursuant to a Stipulation for Certi- fication Upon Consent Election. The tally of ballots showed four in favor of, and two against, the Peti- tioner, with an insufficient number of challenged bal- lots to affect the results of the election. Respondent filed timely objections alleging in essence that a union business representative made material misrep- resentations to the employees the night before the election, that the Union filed an unfair labor practice charge against Respondent to intimidate him from lawful electioneering, and that holding an election while such charge was pending destroyed laboratory conditions. After investigation, the' Acting Regional Director issued his Report on Objections and Order Directing Hearing and' Order Consolidating Cases and Notice of Hearing on August 26, 1975, in which he ordered Case 21-RC-14173 consolidated with Case 21-CA-13661 for hearing. The consolidated cases went to hearing before Administrative Law Judge Rogosin who issued his decision"on November 18, 1975, in which he recommended overruling Re- spondent's objections. Respondent thereafter filed exceptions and a supporting brief with the Board. On 226 NLRB No. 98 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 11, 1976, the Board affirmed the Administra- tive Law Judge's rulings, findings, and conclusions and certified the Union .2 It is well settled that in the absence of newly dis- covered or previously unavailable evidence 3 or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been liti- gated in a prior representation proceeding.4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding,' and Respondent does not of- fer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is proper- ly litigable in this unfair labor practice proceeding. We shall, -accordingly, grant the Motion for Sum- mary Judgment. , On the basis of the entire record, the Board makes the following: 2 223 NLRB 21 3 Respondent alleges it has newly discovered or previously unavailable evidence relevant to issues raised in the representation proceeding This evidence consists of expired Teamsters contracts with similar enterprises around Riverside, California Respondent does not allege these contracts were unobtainable despite the exercise of due diligence . To the contrary, it appears that these (now expired) contracts were extant and available to Respondent had it exercised due diligence Hence , this evidence is not actu- ally "unavailable" nor is it "newly discovered." A-I Sheet Metal Works, Inc, 218 NLRB 962 (1975) 4 See Pittsburgh Plate Glass Co v NLRB, 313 US 146, 162 (1941), Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c) 5 In its answer to complaint , Respondent denies that the Union is a labor organization within the meaning of Sec 2(5) of the Act, that the unit de- scribed in par. 5 of the complaint is appropriate, and that the Union is the representative of that unit. Additionally, Respondent contends in its re- sponse and opposition of employer to Motion for Summary Judgment that the unit as certified by the Board is vague and that a hearing is needed to resolve the vagueness All of these issues were litigated and/or litigable in the previous representation proceeding Respondent in its answer to complaint denies a request to bargain was ever made and argues in its response and opposition of employer to Motion for Summary Judgment that a request to bargain cannot effectively be made upon Respondent's counsel. A request to bargain was made to the attorney who represented Respondent in the prior representation proceeding and who now represents Respondent in the instant proceeding . Counsel re- sponded to the request by letter dated May 17, 1976, denying that a request made to him was appropriate as he does not represent Respondent in collec- tive bargaining but only before this Board Counsel also included in this letter Respondent's answer to complaint in this case . It appears, therefore, that counsel was Respondent 's agent at the time the request was made As a practitioner of labor law, counsel was well aware of the legal implications of the request. In this context, whether counsel was Respondent 's authorized bargaining agent is irrelevant . Roadway Express, Inc, 170 NLRB 1446 (1968) Any, additional requests would have been a useless gesture. Old Town Shoe Company, 91 NLRB 240, 242 (1950) Respondent also contends the complaint violates due process in not specifying the relief sought This defense is clearly frivolous because the remedy for an 8(a)(5) violation is well known and because due process does not require a complaint to specify the relief sought FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Frank Cifu, an individual, is, and at all times ma- terial herein has been, the sole proprietor of Tri-City Linen Supply, a business engaged in the rental of linen supplies in Riverside, California. During the past 12 months, a representative -period, Respondent purchased and received goods and supplies valued in excess of $50,000 from suppliers located within the State of California, which suppliers, in turn, pur- chased and received said goods and supplies directly from suppliers located outside the State of Califor- nia. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Sales Drivers & Dairy Employees Local No. 166, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All wholesale and retail route salesmen and shuttle drivers, excluding all other employees, office clerical employees, professional employ- ees, guards, and supervisors as defined-in the Act. 2. The certification On May 23, 1975, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 21, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 11, 1976, and the Union con- TRI-CITY LINEN SUPPLY 671 tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 22, 1976, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about May 17, 1976; and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 17, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its -opera- tions described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Tri-City Linen Supply is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sales Drivers & Dairy Employees Local No. 166, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All wholesale and retail route salesmen and shuttle drivers, excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act constitute a unit appropriate' for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since March 11, 1976, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 17, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Tri-City Linen Supply, Riverside, California , its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Sales Drivers & Dairy Employees Local No. 166, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining rep- resentative of its employees in the following appro- priate unit: All wholesale and retail route salesmen and shuttle drivers, excluding all other, employees, office clerical employees, professional employ- es, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions, of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Riverside, Cali- fornia, copies of the attached notice marked "Appen- dix." 6 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be post- ed by Respondent 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 Respondent to 6In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 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 WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Sales Drivers & Dairy Employees Local No. 166, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousmen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if, an understanding is ,reached, embody such understanding in a signed agreement. The bargaining unit is: All wholesale and retail route salesmen and shuttle drivers, excluding all other employees, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. TRI-CITY LINEN SUPPLY