National Linen Service And National Dust Control

992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD National Linen Service and National Dust Control and Drivers, Chauffeurs, Warehousemen and Helpers Local Union No 61 , affiliated with International Brotherhood of Teamsters, Chauf feurs, Warehousemen and Helpers of America, AFL-CIO Case 11-CA-12475 May 9, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On January 5, 1989, Administrative Law Judge Lawrence W Cullen issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering beef The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, National Linen Service and National Dust Control, Hickory, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Order ' We correct the judge s inadvertent references in part IV of his decl Sion to events in 1987 as having occurred in 1988 George Carson Esq for the General Counsel Brent L Wilson Esq (Elarbee Thompson & Trapnell) of Atlanta Georgia, for the Respondent Patrick B Shaw Esq (Behns Axelrod & Osborne) of Washington, D C for the Charging Party DECISION STATEMENT OF THE CASE LAWRENCE W CULLEN Administrative Law Judge This case was heard before me on July 20, 1988, at Hick ory North Carolina, pursuant to a complaint issued by the Regional Director for Region 11 of the National Labor Relations Board (the Board) on March 25 1988 and later amended on June 10, 1988, and is based on a charge filed by Drivers Chauffeurs Warehousemen and Helpers Local Union No 61, affiliated with International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America, AFL-CIO (the Union) on August 26, 1987 The complaint alleges that National Linen Service and National Dust Control (the Respondent(s)) are a single employer and have violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) by refusing to bargain collectively with the Union as the exclusive bargaining representative of all the employees in the appropriate bargaining unit by withdrawing recognition from the Union and by ceasing to apply wages hours, and terms and conditions of em ployment established by a collective bargaining agree ment entered into between Respondent National Linen and the Union effective October 1, 1984, to October 1, 1987, and by repudiating this agreement as to the em ployees in the appropriate unit Respondent has by its answer filed on April 4 1988 and amended on June 24, 1988, denied the commission of any violations of the Act Respondent has also raised as affirmative defenses in its answer that the matter is time barred by Section 10(b) of the Act, that the matter has been submitted and re solved by the grievance arbitration machinery of the col lective bargaining agreement between Respondent Na tional Linen Service and the Charging Party and has been resolved and should have been deferred to by the Board, and further that the complaint does not state a claim on which relief can be granted On the entire record in this proceeding including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respondent, I make the follow ing I FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE BUSINESS OF THE RESPONDENT The complaint alleges, Respondents admit, and I find that National Linen Service and National Dust Control are and have been affiliated business enterprises with common ownerships Respondent Linen Service is a di vision of National Service Industries Inc a Delaware corporation providing linen and dust control services to customers throughout the United States including cus tomers in and around Hickory North Carolina Re spondent National Dust Control is also a division of Na tional Service Industries Inc and was created on or about January 19 1987, and provides dust control and linen services During the 12 months preceding the filing of the complaint, a representative period, Respondent National Linen Service and Respondent National Dust Control each received gross revenues in excess of $50,000 for services performed outside the State of North Carolina and each transported materials from the State of North Carolina to points outside the State of North Carolina valued in excess of $50 000 The complaint also alleges that Respondents National Linen Service and National Dust Control constitute a single integrated business enterprise and a single employ er within the meaning of the Act This allegation is denied by the Respondent I find however, based on the record evidence that Respondents National Linen Serv ice and National Dust Control, in addition to their affili ation and common ownership share common directors I The following includes a composite of the credited testimony of the witnesses 293 NLRB No 122 NATIONAL LINEN SERVICE management, and supervision, have utilized common premises, interchanged work, utilized and transferred ma chinery between themselves, used common signs on ve hicles, each been subject to the same labor policies in the form of plant rules and other matters formulated by the parent corporation, and hence held themselves out as a single integrated business enterprise and are a single em ployer within the meaning of the Act I also find based on the above that Respondent National Linen Service is now and has been at all times an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Respondent National Dust Control is now and since January 19, 1987 has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION The complaint alleges and Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act III THE APPROPRIATE UNIT The amended complaint alleges, and Respondent denies, and I find on the basis of the facts and conclu sions that will hereinafter follow that the following em ployees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All route sales representatives (drivers), tractor trailer drivers, helpers on trucks, mechanics, me chanics helpers, porter car wash employees and extra route sales representatives IV THE ALLEGED UNFAIR LABOR PRACTICES2 As set out above, National Linen Service is a division of National Service Industries Inc Mike Whalen the general manager and vice president of Dust Control, tes tified that National Linen consists of 10 separate entities or operations including a linen supply division an indus trial uniform division a health care division a dust con trol division, a mixed facility division and five regions in which mixed facilities are operated The dust control di vision was established by a memorandum from the presi dent of National Linen on January 19, 1987, with a goal of expanding the dust control business Basically, the di visions clean and supply various types of products and sell related cleaning products (air fresheners) and service their customers by delivering the products along desig nated routes within the divisions or regions Thus, linen service refers to the pickup of soiled napkins, tablecloths, towels, sheets, and pillowcases which are then cleaned at the Respondents plants and returned to the customers whereas dust control refers to the pickup, cleaning and delivery of mops, mats, and shop towels, and industrial service refers to the pickup, cleaning, and delivery of uniforms Mixed facilities refer to operations which per form these services for several categories of products 2 Pursuant to the joint motion for substitution on exhibit filed by all the parties attachment I of the motion is substituted for R Exh 8 993 (i e , linen, dust control, and industrial) at the same facili ty Respondent Linen Service and the Teamsters Interna tional Union were parties to a master collective bargain ing agreement effective from October 1, 1984, to Octo ber 1, 1987, which covered approximately 41 of Re spondent s 78 branches across the United States, Re spondent Linen Service also had separate contracts with various Teamsters local unions at eight other branches One facility covered by the master agreement was the National Linen Service facility at Hickory, North Carole na The Hickory facility was operated as a mixed facility and employed approximately 64 production employees who engaged in washing and processing of the various products serviced there These employees were repre sented by another union The Hickory facility also em ployed 12 driver salesmen and 1 mechanic all of whom were represented by Local 61 Under the terms of the collective bargaining agreement, the driver salesmen were compensated on an hourly basis and also earned commission for opening new accounts and selling new items for existing accounts On February 4, 1987, Respondent National Linen Services vice president of labor relations, R J Gra bowski, wrote to officials of Local 61 and informed them that National Linen will effectively terminate its Hick ory operations on March 2, 1988 In that letter written by Grabowski, Respondent offered to meet with Local 61 and bargain concerning the effects of this decision on the bargaining unit " On February 12 1988, Local 61 Secretary Treasurer Ronald Keener wrote to Grabowski asking to negotiate concerning the effects of the decision to terminate the Hickory operation and also to discuss with you your decision to terminate this operation" and inquired who would be running the plant and what would remain at the Hickory facility On February 24, 1988, Ronnie Candler, the president of Local 61, and Keener met with Grabowski who explained that Nation al Linen was going to establish a dust control operation at Hickory which would be a different operation ac cording to the testimony of Candler When asked by Candler if the employees would be union Grabowski replied, if you organize them In reply to an inquiry by Candler whether the employees would be covered by the contract Grabowski said, you know better than that Grabowski did not specify what the remaining op eration at Hickory would entail He also responded to an inquiry by Candler that the new facility would be run by some of the same people but that he did not know who would be involved Grabowski told Candler and Keener that the Respondent had been losing dust control busi ness because of the wage rates required by the master agreement Candler suggested that the wage rates be dis cussed in upcoming negotiations in the fall of 1987, but Grabowski replied this would be too late At that meeting Grabowski assured the Local 61 rep resentatives that the drivers in the bargaining unit would not be affected as the drivers would continue to receive their 40 hour guarantee under the contract although drivers would be required to give up stops and that the only change would be that the drivers would load and 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unload their trucks at other National Linen Service fa cilities in Asheville, Charlotte, and Winston Salem, North Carolina In response to a question by Candler whether 80 percent dust routes were going to be at the Hickory plant, Grabowski replied that this sounded rea sonable Candler also told Grabowski that if he took 80 percent dust control and only if the Union agreed to it, the Union was not going to give up the other 20 percent without a fight because if he could take the dust business (out of the unit) he could also take linen Respondent National Linen announced in February to the production employees of the Hickory facility that they were being terminated and did so After March 2, 1988 Respondent Linen Service ceased to apply the con tract to the Hickory facility and hired new dust control drivers and paid them on a commission basis rather than on the hourly basis plus commission required under the master labor agreement Employee Ronald Barlow a former National Linen production employee at the Hick ory facility, testified that he was hired by Dust Control and did not miss a day of work during the transition and now is employed as a driver at Hickory under a different set of wages and conditions of employment than required under the master agreement Barlow did, however, retain seniority Moreover, the new Dust Control operation continued in the same facility although greatly reduced in scope but still performs some linen work However despite a significant change in the mix of linen and dust control work, the dust control work had always been performed at Hickory and was clearly unit work and performed by salesmen drivers in the unit prior to March 1987 Basically, the Respondent has moved almost all the linen work to its facilities in Asheville Charlotte, and Winston Salem North Carolina, and transferred most but not all its dust control work from these other facilities to the Hickory facility Vice President Wheeler testified that dust control accounts were generally small and could not be profitably serviced on the hourly basis re quired under the master labor agreement Analysis I find that Respondents National Linen and Dust Con trol are a single employer with common ownership offi cers management interchange of operations, facilities, vehicles accounting and legal services, and common labor relations policies Additionally, title to all physical assets is in the name of the parent Company National Service Industries I further find that the complaint was not barred by Section 10(b) of the Act as the charge was filed within 6 months of March 2 1987 when the Re spondent ceased to apply the terms of the 1984-1987 master labor agreement to the Hickory facility and repu diated the contract I find, that March 2, 1987, is the cnt ical date in making this determination because it was the initial date when the Respondent initiated this unilateral action The Respondents notice through its agent, Gra bowski was to the effect that a different operation would be in place This was not a clear and unequivocal notice which would commence the running of the 10(b) 6 month period See Abbey Medical/Abbey Rents 264 NLRB 969 975 (1982) Machinists Local 68 (Holmatic) 274 NLRB 757 759 (1985) 1 also find that the Union did not waive its rights as contended by Respondent in its brief because the Union was not fully apprised concern ing the makeup of the work to remain at the Hickory fa cility Rather the Union requested bargaining and the Respondent refused and proceeded to take unilateral action on its predetermined course as Grabowski an nounced a fait accompli to Candler and Keener at the February 24 meeting Grabowski was unable or unwill ing to specify the exact makeup of the Dust Control op eration and what work would be performed by it and by whom Under these circumstances I find the Union did not waive its rights to the bargaining unit work that was removed from the unit and for which new employees were hired at the Hickory facility and to which work the contract was no longer applied See Abbey Medical/Abbey Rents, supra I further find that Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from the Union and by repudiating the collective bargaining agreement with respect to the Hickory facility and fail ing to apply its terms and conditions of employment with respect to newly hired employees who were peforming the bargaining unit work I recognize fully that the mix of linen verses dust control work was drastically revised by the Respondent when it removed almost all the linen service work from the Hickory facility and distributed it to its three other North Carolina facilities and when it transferred substantial amounts of dust control work from these three facilities to the Hickory facility It is undisputed however, that dust control work at the Hick ory facility had always been that bargaining unit work regardless of the product mix It is clear that the Re spondent transferred the linen work and the represented employees to the other three facilities to avoid the con tractually bargained rates of the master agreement with respect to dust control work and that it then hired new employees at the Hickory facility to perform this work at noncontract rates This withdrawal of recognition from the Union at the Hickory facility and repudiation of the labor agreement in this regard without bargaining violated Section 8(a)(1) and (5) of the Act Blumenfeld Theaters Circuit, 240 NLRB 206 217 (1979) Phil Wall & Sons Distributing 287 NLRB 116 (1988) In this regard as noted above I find that Respondent announced a fait ac compli to the Union and did not engage in meaningful bargaining to reach an agreement or bargain to impasse concerning its decision to reassign and transfer unit work The Respondent also contends that a grievance raised by another local of the Winston Salem facility concern ing the dovetailing of transferred employees seniority from the Hickory facility should be deferred to as having resolved the issues raised by the complaint On its face however this is only a narrow issue not encompassed within the complaint and was raised by another local union of another bargaining unit represented by the Teamsters As such it does not reach the issues in this complaint and cannot be deferred to Olin Corp 268 NLRB 573 (1984) Moreover where as here the respond ent has repudiated the collective bargaining agreement deferral is inappropriate Victor Block Inc 276 NLRB NATIONAL LINEN SERVICE 676 (1985), United Technologies Corp, 268 NLRB 557 (1984) V THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices as found here in section IV, above, in connection with the business of Respondent as found in section I, above, have a close, intimate, and sub stantial relationship to trade, traffic, and commerce over the several States and tend to lead to labor disputes ob strutting the free flow of commerce CONCLUSIONS OF LAW 1 Respondents National Linen Service and National Dust Control are a single employer and an employer en gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Drivers Chauffeurs Warehousemen and Helpers Local Union No 61, International Brotherhood of Team sters Chauffeurs, Warehousemen and Helpers of Amer ica, AFL-CIO is a labor organization within the mean ing of Section 2(5) of the Act 3 The following employees of Respondent constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act All route sales representatives (drivers), tractor trailer drivers, helpers on trucks, mechanics, me chanics helpers, porter car wash employees and extra route sales representatives 4 Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from the Union and ceasing to apply the wages, hours, and terms and condi tions of employment established by the collective bar gaining agreement REMEDY Having found that Respondent has engaged in viola tions of the Act, it will be recommended that Respond ent cease and desist therefrom and take certain affirma tive action designed to effectuate the policies of the Act and post the appropriate notice It is recommended that Respondent be ordered to rec ognize the Union as the exclusive collective bargaining representative of the employees in the above described appropriate unit at Respondents Hickory North Caroli na facility and to apply the wages hours and terms and conditions of employment established by the collective bargaining agreement until such time as it has given notice to the Union of any proposed changes and on re quest has bargained with the Union and either reached agreement or a lawful impasse concerning any proposed changes in the wages, hours and terms and conditions of employment established by the collective bargaining agreement It is further recommended that Respondent make the employees at the Hickory, North Carolina fa cility whole for any loss of pay or benefits3 they would 9 See Kraft Plumbing & Heating 252 NLRB 891 (1980) Merryweather Optical Co 240 NLRB 1213 1216 fn 7 ( 1979) American Cleaning Co 291 NLRB 399 (1988) 995 have received under the terms of the collective bargain ing agreement since March 2, 1987, with interest as com puted in New Horizons for the Retarded, 283 NLRB 1173 (1987) 4 I further recommend that each of the drivers transferred from the Hickory facility to other locations be given a one time opportunity in order of their seniori ty at the Hickory facility to return to the facility as va cancies occur without prejudice to their seniority or other rights and privileges, and be notified in writing of this A complete restoration to the status quo ante would provide for the transferred employees to be permitted to return to their former positions at the Hickory facility The General Counsel has not requested such a remedy but requests only that the labor agreement be applied to the employees in the unit now working at the Hickory facility along with a make whole remedy for those em ployees The Charging Party has requested that the transferred employees be permitted to transfer back to the Hickory facility I find under the circumstances that a proper remedy will be to permit the transferred em ployees a one time opportunity to transfer back to the Hickory facility as vacancies occur Such a remedy will be least disruptive to the employees and the employer s operations As far as the record discloses, the transferred employees did not suffer any loss in pay or benefits but continued to be covered by the terms of the collective bargaining agreement On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed5 ORDER The Respondent, National Linen Service and National Dust Control Hickory, North Carolina its officers, agents, successors and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively with Drivers, Chauffeurs Warehousemen and Helpers Local Union No 61 affiliated with International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America AFL-CIO as the exclusive bargaining repre sentative of the employees in the bargaining unit below by the withdrawal of recognition from the Union for the unit employees at its Hickory facility and by ceasing to apply the wages hours, and terms and conditions of the collective bargaining agreement The appropriate unit is All route sales representatives (drivers), tractor trailer drivers, helpers on trucks, mechanics me chanics helpers, porter car wash employees and extra route sales representatives 4 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before January 1 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977) See Ogle Protection Service 183 NLRB 682 (1970) 5 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Recognize and on request bargain with the Union and if an agreement is reached embody it in a signed agreement (b) Restore the wages, hours, and terms and conditions of employment under the collective bargaining agree ment for the unit employees at its Hickory, North Caro lina facility and make the unit employees whole for any loss of earnings or benefits sustained by them as a result of Respondents unlawful conduct as set out in the remedy section of this decision (c) Give notice to the Union of any proposed changes in the wages, hours, and terms and conditions of its unit employees and on request bargain with the Union con cerning them and, if an agreement is reached embody it in a signed agreement (d) Give each of the salesmen drivers who were trans ferred from the Hickory facility a one time opportunity in order of their seniority at the Hickory, North Carolina facility, to return to their former positions or in the event their former positions no longer exist to a substantially equivalent one at the Hickory, North Carolina facility as vacancies occur without prejudice to their seniority or other rights and privileges and notify each of the trans ferred employees in writing (e) Post at its Hickory North Carolina facility copies of the attached notice marked Appendix 6 Copies of the notice on forms provided by the Regional Director for Region 11, after being signed by the Respondent s authorized representative, shall be posted by the Re spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 6 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To organize To form join or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT refuse to recognize and bargain collec tively with Drivers, Chauffeurs Warehousemen and Helpers Local Union No 61, affiliated with International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America AFL-CIO as the exclusive bar gaining representative of the employees in the bargaining unit below by withdrawing recognition from the Union and by ceasing to apply the wages and hours and terms and conditions of the collective bargaining agreement The appropriate unit is All route sales representatives (drivers), tractor trailer drivers, helpers on trucks, mechanics, me chanics helpers, porter car wash employees and extra route sales representatives WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL notify the Drivers, Chauffeurs Warehouse men and Helpers Local Union No 61 affiliated with International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO of any proposed changes in the wages, hours, and terms and conditions of employment of the employees in the above described unit and on request bargain concerning the changes and if an agreement is reached embody it in a written agreement for our employees represented by the Union in the appropriate bargaining unit WE WILL apply the wages, hours, and terms and con ditions of employment of the foresaid employees as pro vided for in the collective bargaining agreement and will make them whole for any loss of earnings or benefits sus tamed by them as a result of our unlawful acts with in terest WE WILL afford each of the salesmen drivers trans ferred from our Hickory North Carolina facility a one time opportunity to transfer back to their former position or to a substantially equivalent position at the Hickory facility in the event their former position no longer exists, on the basis of their seniority or other rights and privileges and will notify them in writing of this NATIONAL LINEN SERVICE AND NATIONAL DUST CONTROL The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section of the Act gives employees these rights