Unifirst Corp.

UNIFIRST CORP. ' Unifirst Corporation and Bakery, Laundry, Beverage Drivers and Vending Machine Servicemen and Allied Workers of Albany and Vicinity Local No. 669, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America . Case 3-CA- 13044 30 May 1986 DECISION AND ORDER BY MEMBERS DENNIS, BABSON, AND STEPHENS Upon a charge filed by the Union 9 January 1986, the General Counsel of the National Labor Relations Board issued a complaint 11 February 1986 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 15 November 1985, following a Board election in Case 3-RC- 8701, the Union was certified as the exclusive col- lective-bargaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 22 November 1985 the Com- pany has refused to bargain with the Union. On 21 February 1986 the Company filed its answer admit- ting in part and denying in part the allegations in the complaint. On 7 March 1986 the General Counsel filed a Motion for Summary Judgment. On 11 March 1986 the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company admits that it has refused to rec- ognize and bargain with the Union as the exclusive representative of the unit employees since 7 Febru- ary 1986, but the Company asserts that the Board's 15 November 1985 certification of the Union in Case 3-RC-8701 was improper because of the Union's alleged preelection waiver of initiation fees. A review of the record reveals that a rerun elec- tion was held 24 May 1985 pursuant to a Stipulated Election Agreement. The tally of ballots shows 75 that of approximately 33 eligible voters, 17 cast votes for and 11 against the Union. There were no challenged ballots. The Company filed timely ob- jections to the election. Following a hearing, the hearing officer on 27 August 1985 issued a report recommending that the Company's objections be overruled and that a certification of representative issue. The Company filed exceptions with the Board. On 15 November 1985 the Board, in an un- published decision, adopted the hearing officer's findings and recommendations and issued a Certifi- cation of Representative. The Company filed a motion for reconsideration of the Board's decision. On 9 January 1986 the Board denied the motion. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Massachusetts corporation, is engaged in the business of cleaning and renting work uniforms at its facility in Watervliet, New York, where it annually derives gross revenues in excess of $50,000 from other employers directly en- gaged in interstate commerce , and purchases and receives goods valued in excess of $50 ,000 which are shipped to the Watervliet facility directly from points located outside the State of New York. We find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. 280 NLRB No. 8 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 24 May 1985, the Union was certified 15 November 1985 as the col- lective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its Watervliet facility including but not limited to menders, folders, shakers, dock workers, pressers, main- tenance employees, shippers and cage workers, excluding all office clerical employees, confi- dential employees, guards and supervisors as defined in the Act and all other employees. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 22 November 1985, the Union has request- ed the Company to bargain, and since 22 Novem- ber 1985 the Company has refused.' We find that this refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 22 November 1985 to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit, the Company has engaged 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. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith 1 Although Respondent's answer admits the Company refused to bar- gain only from the date the Board denied the Company 's motion for re- consideration of the Board's certification of the Union, the Company's re- sponse does not mention this point In any event, an employer's bargain- ing obligation attaches upon a labor organization 's certification even when, as here, the employer is testing the union's certification Sec 102.65(e)(3) of the Board's Rules and Regulations provides that the filing of a motion for reconsideration does not operate to stay the effectiveness of any Board action Therefore, inasmuch as the Respondent admits that since 22 November 1985 the Union has requested the Respondent to bar- gain, we find that the refusal to bargain commenced on that date with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Unifirst Corporation, Watervliet, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Bakery, Laundry, Beverage Drivers and Vending Machine Service- men and Allied Workers of Albany and Vicinity Local No. 669, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America as the exclusive bar- gaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees employed by the Employer at its Watervliet facility including but not limited to menders, folders, shakers, dock workers, pressers, main- tenance employees, shippers and cage workers, excluding all office clerical employees, confi- dential employees, guards and supervisors as defined in the Act and all other employees. (b) Post at its facility in Watervliet, New York, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Re- gional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to 2 If 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 Nation- al 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 " UNIFIRST CORP. ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Bakery, Laundry, Beverage Drivers and Vending Machine Servicemen and Allied Workers of Albany and Vi- cinity Local No. 669, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, 77 Warehousemen and Helpers of America, as the ex- clusive representative of the employees in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All production and maintenance employees employed by the Employer at its Watervliet facility including but not limited to menders, folders, shakers, dock workers, pressers, main- tenance employees, shippers and cage workers, excluding all office clerical employees, confi- dential employees, guards and supervisors as defined in the Act and all other employees. UNIFIRST CORPORATION