Sanitary Laundry, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1968

172 N.L.R.B. 2050 (N.L.R.B. 1968)

2050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sanitary Laundry , Inc. and Communications Work-
ers of America , AFL-CIO Case 28-CA- 1640
September 16, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On May 22, 1968, Trial Examiner Louis S. Pen-
field issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision and a supporting 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing 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 the case, and hereby
adopts the findings, conclusions, and recommenda-
tions 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 Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Sanitary Laundry, Inc., Al-
buquerque, New Mexico, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Trial Examiner: This
proceeding was initiated by a charge filed on Janua-
ry 10, 1968, by Communications Workers of Amer-
ica, AFL-CIO, herein called the Union, alleging
that Sanitary Laundry, Inc., herein called Respon-
dent, had engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (5) of the Act.
Thereafter the General Counsel of the National
Labor Relations Board, herein called the Board,
172 NLRB No. 233
acting through the Acting Regional Director of Re-
gion 28, issued a complaint and notice of hearing
dated February 15, 1968. Copies of the charge, the
complaint, and notice of hearing were duly served
upon the Respondent.
The complaint alleges in substance that on
December 11, 1967, the Union was duly certified
as the statutory representative of Respondent's em-
ployees, that thereafter on or about December 19,
1967, it requested that Respondent bargain with it
as such representative, and that at all times
thereafter Respondent refused to do so, and that
such conduct is violative of Section 8(a)( I) and (5)
of the Act. On February 15, 1968, Respondent filed
its answer to the complaint, in which it admitted in
part, and denied in part, the allegations contained
therein, and requested that the complaint be
dismissed.
On March 11, 1968, counsel for the General
Counsel filed a Motion for Summary Juagment and
Issuance of Trial Examiner's Decision. Pursuant to
the provisions of the Board's Rules and Regula-
tions, Series 8, as amended, Section 102.25, the
motion was referred for ruling to me. On March 13,
1968, 1, by telegraphic order, directed Respondent
to file a statement in writing setting forth reasons, if
any there were, why the motion of the General
Counsel should not be granted and the Trial Ex-
aminer 's Decision issued as requested. On March
22, 1968, Respondent filed its response to Motion
for Summary Judgment, and at the same time filed
an amended answer to the complaint and a copy of
a motion for reconsideration in Case 28-RC-1544
which it had lodged with the Board on the same
date. Inasmuch as the alleged refusal to bargain
rests on the validity of the certification in Case
28-RC-1544, the Trial Examiner by a telegraphic
order accorded all parties an opportunity to file
with him a further statement following the Board's
ruling on Respondent's motion for reconsideration
setting forth the significance of such ruling as it re-
lated to the General Counsel's motion for summary
judgment. Thereafter on April 22, 1968, the Board
issued its order denying Respondent's motion for
reconsideration in Case 28-RC-1544, and on May
3, 1968, both the General Counsel and Respondent
filed with the Trial Examiner statements relating to
the General Counsel's motion for summary
judgment.
The Trial Examiner having duly considered the
record in this proceeding as it presently exists, in-
cluding the complaint, the answer and amended
answer, the pertinent rulings of the Board in Case
28-RC-1544, and the responses of Respondent and
the General Counsel to the General Counsel's mo-
tion for summary judgment, hereby rules as follows
on such motion:
In its original answer Respondent admits the ju-
risdictional, the labor union, the unit, and the
refusal-to-bargain allegations of the complaint. In
its answer and amended answer Respondent
acknowledges that an election was conducted
SANITARY LAUNDRY, INC. 2051
under Board auspices , and thereafter that the
Board certified the Union as the statutory represen-
tative of its employees . However , Respondent at-
tacks the validity of the election which resulted in
the certification , and asserts as a defense for its
refusal to bargain that the Union was not thereby
lawfully chosen as the statutory representative of its
employees , and thus that there arose no duty to
bargain on Respondent 's part . More particularly,
Respondent asserts that the Board acting pursuant
to the terms of a stipulation for certification upon
consent election ruled "contrary to existing law,
contrary to legal precedent in Board and court
cases, and contrary to ... the facts " when it set
aside the results of an election initially conducted
on January 12, 1967, wherein a majority of those
voting voted against representation by the Union.
Respondent further asserts that even if it be as-
sumed that the Board might validly have directed a
second election , it again acted improperly when it
failed to sustain Respondent 's exceptions to the Re-
gional Director 's Report and Recommendations
that the Union be certified as a result of such
second election. Respondent asserts that the Board
erred in not finding that such exceptions raised sub-
stantial issues of law and fact, and further erred in
not directing a hearing on the issues but by
thereafter certifying the Union as the statutory
representative of the employees . The Board's al-
leged error in these respects was the subject of a
motion for reconsideration filed by Respondent on
January 22, 1967, wherein it asked the Board to
reconsider its views of the facts and its conclusions
as to the applicable law. On February 8, 1968,
Respondent 's motion to reconsider was denied by
the Board stating that " it contained nothing not
previously considered by the Board , and does not
raise any substantial issues of law or fact that war-
rants reversal of the Board 's Supplemental Decision
and Certification of Representative."
Respondent 's amended answer adopts all matters
in its original answer and alleges that "it has
discovered new evidence to support its objections
filed with the Regional Director pertaining to the
second election held on June 15 , 1967." Such al-
leged newly discovered evidence purports to
establish " several additional employees being
threatened with loss of their jobs if they did not
vote for the Union " with such evidence purporting
to come from previously unknown witnesses. Con-
currently with filing its amended answer , Respon-
dent filed with the Trial Examiner its initial
response to the General Counsel 's motion for sum-
mary judgment and filed with the Board its second
motion for reconsideration in Case 28 -RC-1544.
The amended answer , the response , and the second
motion for reconsideration each set forth the same
alleged newly discovered evidence, and each raises
the issue that there never had been, but that there
should be, a hearing on this and all other issues of
law or fact which Respondent had asserted during
the course of the representation proceeding. The
Board in denying Respondent's second motion for
reconsideration on April 22, 1968, noted that in
denying the first such motion it had set forth that
"it contains nothing not previously considered by
the Board and does not raise any substantial issues
of law or fact that warrant reversal of the Board's
Supplemental Decision and Certification of
Representative" nor "does the motion raise issues
of fact or credibility warranting a hearing in this
matter." The Board goes on to note that Respon-
dent in this second motion for reconsideration
adopted by reference and realleged all the matters
in its earlier motion, only asserting additionally that
"Respondent has come into possession of new
evidence which was previously unknown and
unavailable." The Board states that in its opinion
"the matters set forth in the motion are in the na-
ture of a more specific offer to prove the very mat-
ters raised originally by the employer's objections
in its first Motion for Reconsideration." The Board
thereupon denied the motion "as it contains
nothing not previously considered by the Board."
Following the Board's denial of Respondent's
second motion for reconsideration, Respondent
filed with the Trial Examiner its additional response
to General Counsel's motion for summary
judgment. In this Respondent asks that I consider
matters in its answer and amended answer, and its
first response, pointing out that it had never had a
hearing on any of the issues thereby raised. Respon-
dent reiterates the errors of the Board in all of its
rulings in the representation case, urging that it
now be granted a hearing on what it describes as
newly discovered evidence. Rspondent, however,
does not present anything which differs from those
matters it had theretofore pressed before the Board
in exceptions and motions for reconsideration in
the representation case. Thus, I have before me
nothing which was not encompassed in material
heretofore submitted to the Board and found by the
Board insufficient to warrant a reversal of its prior
rulings, or even to warrant the conduct of a hear-
ing.
It is well established that in the absence of newly
discovered or previously unavailable evidence
parties will not be permitted to litigate issues in a
complaint case which were, or could have been,
litigated in a prior related representation proceed-
ing.' It is equally well established that where all
material issues have either been previously decided
by the Board, or are admitted in the pleadings, a
hearing is not required as a matter of due process.'
' Pittsburgh Plate Glass Co v N L R B, 313 U S 146 , 162, Collins and 161 NLRB 1380, 1383-84 , and Carl Simpson Burch , Inc , 161 NLRB 1389,
Ailniai Corporation , 160 NLRB 1750, The Puritan Sportswear Corp., 162 both enforced by the United States Court of Appeals for the Ninth Circuit
NLRB 13, E scelstor Laundry , 167 NLRB 455 in a Decision issued April 26, 1968, for which a citation is not presently
' Buj7or-Pelzner Division , Inc, 169 NLRB 998, L-Z Davies Chevrolet, available
2052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The instant case reaches me in a posture in which
all issues raised by the proceeding either stand un-
controverted or have previously been resolved by
the Board in the related representation proceeding.
While Respondent objects to the rulings of the
Board in the representation case, and insists the
Board to have been in error, it offers no new
specific issues which must be litigated. In E-Z Da-
vies Chevrolet, supra, the Board in granting the
General Counsel's motion for a summary judgment
states the following:
An evidentiary hearing is not a matter of
right where there is nothing that a trier of fact
may determine. Neither we nor courts are
bound to "hear" what is legally insignificant.
We have held, also with court approval, that
the party objecting to an election must furnish
specific evidence which prima facie warrants
setting aside the election. [Orleans Manufac-
turing Company, 120 NLRB 630, and cases
cited therein at fn. 5.] Having failed in the
representation proceedings to provide such
evidence, the Respondent now argues before
us that our failure to order a hearing will
preclude it from offering "additional"
evidence. However, it nowhere specifically sets
forth what this "additional" evidence is to be.
The rule of Orleans Manufacturing Company,
supra, would go for naught were we to allow a
party objecting to an election, who has once
failed to satisfy the specific evidence require-
ment , to gain a hearing in an unfair labor prac-
tice proceeding by an offer of evidence which
has not even satisfied the initial criteria.
regularity is not an end in itself, but only a
means of defending subsequent interests; and,
the court held, "where, as here, the evidence
on one side is unanswerable, and the other side
offers nothing to match or qualify it, the denial
of a trial invades no constitutional privilege."
For all these reasons we conclude that our
refusal to allow the introduction of what is
called "additional evidence" by Respondent of-
fends no statutory or constitutional right. Ad-
mittedly, the issues which Respondent seeks to
raise in the instant proceeding relate to the
correctness of the Board's disposition of
Respondent's Objections to the Election.
There is no allegation that special circum-
stances exist herein which would require the
Board to reexamine the determination which it
made in the representation proceeding. In-
asmuch as the Respondent has already litigated
these issues, it has not raised any issue which is
properly triable in the instant unfair labor
practice proceeding.
I deem the foregoing rationale, which was af-
firmed by the court of appeals, to be controlling on
the issues as they come before me in the instant
case. Since it appears that the Respondent here
seeks no more than to litigate issues either admitted
by the pleadings, or resolved by the Board in the
representation hearing, there is presented to me no
matter which requires a hearing before a Trial Ex-
aminer . Accordingly, the General Counsel's motion
for a summary judgment is appropriate and is
hereby granted.
Upon the basis of the record heretofore
described, I hereby make the following:
*
Apart from its failure specifically to
designate what evidence it wishes to adduce at
a hearing , Respondent does not, as it must at
this particular state of these proceedings , assert
or contend that it is prepared to present newly
discovered or previously unavailable evidence,
the availability of which might conceivable
require a hearing to be held.
Turning to Respondent 's due process argu-
ment , it is well settled that where only im-
material evidence is sought to be adduced or
where there is no genuine or material issue of
fact, the right to a "full hearing " is satisfied if
the court or agency provides the party an op-
portunity to present their respective viewpoints
prior to a disposition on matters of law. In Fay
Charles v. Douds [ 172 F.2d 720, 725 (C.A.
2) ], the Second Circuit held that neither our
Act nor the Constitution mandates a hearing
where there is no issue to decide . Procedural
FINDINGS OF FACT
1. Respondent is a New Mexico corporation with
its principal place of business located in Al-
buquerque, New Mexico, where it is engaged in the
business of providing laundry and drycleaning ser-
vices. During the 12-month period preceding is-
suance of the complaint, Respondent did a gross
business in excess of $500,000. During the same
period Respondent purchased goods and materials
for use in its business valued in excess of $50,000
from suppliers within the State of New Mexico.
Such supplies and materials originated outside the
State of New Mexico.' Respondent admits, and
I find, that Respondent is, and has been at all times
material, an employer whose business affects com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Communications Workers of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
' Respondent in its answer denied the General Counsel 's allegation of
direct inflow , but conceded the volume and indirect inflow so as to meet
Board jurisdictional criteria
SANITARY LAUNDRY, INC.
3. As found in the representation proceeding,
and as Respondent admits, I find the following unit
to be appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
routemen, and janitors employed by Sanitary
Laundry, Inc., and its subsidiary Rutledge
Linen Supply, Inc., at its Albuquerque, New
Mexico, plants; excluding retail outlet em-
ployees, office clerical employees, guards, and
supervisors as defined by the Act.
4. 1 find that in a Board-conducted election held
on or about June 15, 1967, a majority of the em-
ployees of Respondent in the unit described in
paragraph 3, above, selected the Union as their ex-
clusive collective-bargaining representative as
defined by Section 9(a) of the Act. I further find
that on or about December 11, 1967, the Board
certified the Union as such bargaining representa-
tive.
5. Respondent admits, and I find, that on or
about December 19, 1967, the Union requested,
and is now requesting, that Respondent bargain
with it as the statutory representative of its em-
ployees.
6. Respondent admits, and I find, that since
December 19, 1967, Respondent has, refused, and
CONCLUSIONS OF LAW
2053
Upon the basis of the foregoing findings of fact
and upon the entire record in this proceeding, as it
came before me, I make the following conclusions
of law:
1. Sanitary Laundry, Inc., is, and has been at all
material times , an employer engaged in a business
affecting commerce within the meaning of Section
2(2) and 2 (7) of the Act.
2. Communications Workers of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to bargain with the Union as the
statutory representative of its employees , as found
above , Respondent has engaged in unfair labor
practices within the meaning of Section 8 ( a)(5) of
the Act.
4. By the same conduct Respondent has inter-
fered with , restrained , and coerced employees in
the exercise of the rights guaranteed by Section 7
of the Act , and thereby has engaged in unfair labor
practices within the meaning of Section 8 ( a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and ( 7) of the Act.
continues to refuse , to bargain collectively with the RECOMMENDED ORDER
Union as such statutory representative.
Accordingly, I find that inasmuch as the Union at
all times since December 11, 1967, has been the
duly certified collective-bargaining representative
of Respondent's employees in an appropriate unit,
and inasmuch as Respondent at all times since
December 19, 1967, refused to bargain collectively
with it as such representative, Respondent has
thereby engaged in and is now engaging in unfair
labor practices within the meaning of Section
8(a)(5) of the Act. I further find such conduct to
have interfered with the rights guaranteed by Sec-
tion 7 of the Act and thereby to be violative of Sec-
tion 8(a)(1) of the Act.
The acts of Respondent set forth above, occur-
ring in connection with its operations as described
above, have a close, intimate, and substantial rela-
tion 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.
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, I shall recommend that
it cease and desist therefrom and, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit described above, and, if an understanding is
reached, embody such understanding in a signed
agreement.
4 In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Upon the basis of the foregoing findings of fact,
and conclusions of law, and upon the entire record
in this proceeding, I recommend that Respondent,
Sanitary Laundry, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with the Union as the exclusive bar-
gaining representative of its employees in the unit
described above.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Upon request, bargain with the Union as the
exclusive representative of all employees in the
above-described unit with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its Albuquerque, New Mexico, place
of business copies of the attached notice marked
"Appendix. "4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 28, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
2054 DECISIONS OF NATIONAL
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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 28,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
3In 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 ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that.
WE WILL NOT refuse to bargain collectively
with Communications Workers of America,
AFL-CIO, 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 em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act.
LABOR RELATIONS BOARD
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit
described below with respect to wages, 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 production and maintenance em-
ployees, routemen, and janitors employed
by Sanitary Laundry, Inc., and its subsidi-
ary Rutledge Linen Supply, Inc., at its Al-
buquerque, New Mexico, plants; excluding
retail outlet employees, office clerical em-
ployees, guards, and supervisors as defined
by the Act.
SANITARY LAUNDRY, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 5500 Gold Avenue, Room 7011, P. O. Box
2146, Albuquerque, New Mexico 87101,
Telephone 247-0311, Ext. 2556.