Southern Industrial Laundry

National Labor Relations Board - Board Decisions

Mar 13, 1970

181 N.L.R.B. 680 (N.L.R.B. 1970)

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wm. H. D . Fones, Trustee , d/b/a Southern
Industrial Laundry and Local 218 , Laundry, Dry
Cleaning & Dye House Workers Union. Case
10-CA-8038
March 13, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On January 15, 1970, Trial Examiner A. Norman
Somers issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision,
together with a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 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
this case, and hereby adopts the findings,
conclusions, and recommendations 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
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Wm. H. D
Fones, Trustee, d/b/a Southern Industrial Laundry,
Tuscumbia, Alabama, his agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
The Trial Examiner, in in 3 of his Decision , inadvertently referred to
Section 102 67 (b) of the Board 's Rules and Regulations We hereby
correct this citation to read "Section 102 67 (f) " We also note and hereby
correct the preceding sentence in the body of the Trial Examiner ' s Decision
by substituting the phrase "previously unavailable evidence" for
"previously available evidence "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
A NORMAN SOMERS, Trial Examiner. Pursuant to a
Stipulation for Certification Upon Consent Election by
the Employer and the Union, and duly approved by the
Regional Director of Region 10 of the National Labor
Relations Board, an election under the supervision of the
Regional Director was held on October 18, 1968, among
employees of the Employer in an appropriate unit
hereinafter described. Of the 65 eligible voters, 61 cast
ballots, 32 voted for the Union, 26 voted against the
Union, and 3 ballots were challenged The challenged
ballots were not sufficient in number to affect the results
of the election.
On October 25, 1968, the Employer filed timely
Objections to the Conduct Affecting the Results of
Election The Respondent therefore requested that the
election be set aside An administrative investigation of
the objections was conducted by the regional office All
parties submitted evidence in support of their positions
No formal hearing was held on the objections
On December 5, 1968, the Regional Director issued his
Report on Objection. Of the seven objections set forth by
the Employer, the Regional Director found that no
evidence was adduced in respect to four objections. The
Regional Director found that the remaining three
objections are based on statements made solely by
rank-and-file employees, and they were "neither
attributable to the [Union] nor so aggravated in character
as to create a general atmosphere of fear precluding a free
expression of choice." The Regional Director accordingly
found that "the objections do not raise any material or
substantial issues affecting the results of the election." He
therefore recommended to the Board that the objections
be overruled, and since the tally of ballots showed the
Union had received a majority of the valid ballots cast, he
recommended that the Union be certified as the exclusive
bargaining representative of the employees in the unit
On December 14, 1968, the Employer filed with the
Board in Washington, D C. exceptions to the Regional
Director's Report and Recommendations, along with a
supporting brief. The Union filed a Motion to Dismiss
Employer's Exceptions to Report on Objections, to which
the Employer filed an opposition The Board denied the
Union's motion and duly considered the Employer's
Exceptions to Report on Objection.
Section 102.69(e) of the Board's Rules and Regulations
provides in pertinent part that "[i]f it appears to the
Board that such exceptions do not raise substantial and
material issues with respect to the conduct or results of
the election, the Board may decide the matter forthwith
upon the record or may make other disposition of the
case."
On March 21, 1969, the Board issued a Decision and
Certification of Representative In its Decision the Board
stated in pertinent part, the following
The Board has considered the Regional Director's
Report and the Employer's exceptions and brief, and as
the exceptions in our opinion raise no material or
substantial issues of fact or law which would warrant
'Official notice is taken of the record in the representation proceeding,
Case 10-RC-7525, as the term "record" is defined in Section 102 68 and
102 69(f) of the Board 's rules (Rules and Regulations and Statements of
Procedure, National Labor Relations Board, Series 8, as amended) See
LTV Electrosystems. Inc, 166 NLRB No 81, enfd 388 F 2d 683 (C A 4),
Golden Age Beverage Co, 167 NLRB No 24, enfd 415 F 2d 26 (C A 5),,
Intertype Co v Penello, 269 F Supp 573 (D C Va 1967), Intertype Co
v N L R B, 401 F 2d 41 (C A 4), Follett Corporation, et al, 164 NLRB
378, enfd 397 F 2d 91 (C A 7), Section 9(d) of the National Labor
Relations Act
181 NLRB No. 100
SOUTHERN INDUSTRIAL LAUNDRY 681
reversal or require a hearing , we hereby adopt the
Regional Director's findings, conclusions and
recommendations
The Board in its Decision and Direction of Election of
March 21, 1969, accordingly certified the Union as the
collective-bargaining representative of the employees in
the said unit
The Unfair Labor Practice Case
On November 12, 1969, the Union filed the instant
charge alleging, inter alia, that since the certification, the
Respondent has refused to bargain with the Union. On
November 16, 1969, the General Counsel, by the Regional
Director for Region 10, issued a Complaint and Notice of
Hearing alleging that the Respondent had refused to
bargain with the Union on request, thereby engaging in
unfair labor practices in violation of Section 8(a)(5) and
(1), affecting commerce within the meaning of Section
2(6) and (7) of the Act.
The Respondent filed an Answer admitting all the
allegations of the Complaint, including the
appropriateness of the bargaining unit, the Union's
majority in the secret ballot election in the said unit, the
Board 's issuance of the certification on the basis thereof,
and the refusal, despite the Union's request therefor, to
bargain collectively with the Union. Respondent's answer
to the complaint disputed only the validity of the
certification on the ground that three of its Objections to
the conduct of the election should have been sustained,
and that it therefore committed no unfair labor practice in
refusing to bargain with the Union.
On December 17, 1969, Counsel for the General
Counsel filed a Motion for Summary Judgment. The
Motion set forth the Board's certification of the Union
and the Respondent's admitted refusal to bargain with the
Union, and asked for a decision finding Respondent to
have thereby violated Section 8(a)(5) and (1) as alleged
and directing that Respondent bargain with the Union.
On December 22, 1969, an Order to Show Cause was
issued to the parties, returnable January 5, 1970, stating
in pertinent part that.
All parties are hereby directed to Show Cause, if any
exists, why General Counsel's Motion should not be
granted; and that they are hereby notified that if from
responses, it appears that there are no material
unresolved issues litigable before and requiring hearing
by a trial examiner the motion for summary judgment
will be granted.'
Ruling on Motion for Summary Judgment
Respondent has filed an answer to the Order to Show
Cause, wherein it reasserts that the denial of a hearing
was a deprivation of constitutional due process. The
matter at the adjudicative level before me is controlled by
established doctrine that in the absence of newly
discovered or previously available evidence, a party is not
permitted in the complaint proceeding to litigate issues
which were or could have been litigated in a prior related
representation proceeding.' The above doctrine applies
also where no formal hearing on objections has been held,
'The Charging Party, on December 22, 1969, mailed a Motion for
Summary Judgment of its own, substantially the same as the one filed by
Counsel for the General Counsel, on which the above order to show cause
was issued
for such a hearing is not required unless substantial and
material issues are raised.'
As previously stated in the certification proceeding the
Board had determined that the Respondent's objection
presented no such issues here, and I, in the absence of
newly discovered evidence or extraordinary circumstances,
am bound by this determination made in the
representation proceeding.
Accordingly, all issues raised by the objections having
been litigated and resolved in the representation case, and
no issue having been raised which has not been litigated or
could not have been raised, litigated and resolved in the
representation case, the Motion for Summary Judgment is
hereby granted, and the undersigned hereby make the
following.
Findings and Conclusions
I THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein, a partnership with its principal office and place of
business located in Tuscumbia, Alabama, where it is
engaged in providing laundry service
During the past year, a representative period,
Respondent in the course and conduct of its business
operations, provided laundry services valued in excess of
$50,000 directly to customers located outside the State of
Alabama.
Respondent is now, 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
Ii. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III THE UNFAIR LABOR PRACTICES
All production and maintenance employees at the
Employer's Tuscumbia, Alabama, plant, but excluding
routemen, route salesmen, office clerical employees,
professional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
The Union, since March 21, 1969, has been the
exclusive collective bargaining representative of all the
employees in said unit pursuant to a certification duly
issued by the Board on said date, on the basis of the
results of a secret ballot election held on October 18,
1968, in which a majority of the eligible employees in said
'Westinghouse Learning Corp (Indiana), 180 NLRB No 54, Howard
Johnson Company, 164 NLRB No 121, Metropolitan Life Insurance
Company, 163 NLRB 579, Krieger-Ragsdale & Company, Inc, 159
NLRB 490, enfd 379 F 2d 517 (CA 7), cert denied 389 U S 1041
See also Pittsburgh Plate Glass Co v N L R B , 313 US 146, 162,
NLRB Rules and Regulations , Section 102 67(b) and 102 69(c)
40 K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C A
5) See N L R B v Air Control Products of St Petersburg, Inc , 335 F 2d
245, 249 (C A 5) "If there is nothing to hear, then a hearing is a senseless
and useless formality " See also N L R B v Bata Shoe Company, 377
F 2d 821, 826 (C A 4), "and there is no requirement , constitutional or
otherwise , that there be a hearing in the absence of substantial and
material issues crucial to determination of whether NLRB election results
are to be accepted for purposes of certification "
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit designated and selected the Union as their
representative for purposes of collective bargaining
Since on or about November 3, 1969, Respondent has
refused and continues to refuse, on the request of the
Union, to bargain collectively with the Union as the
exclusive collective-bargaining representative of all the
employees in the said unit
By such action, Respondent has engaged and continues
to engage in unfair labor practices in violation of Section
8(a)(5) of the Act and has interfered with, restrained and
coerced its employees in violation of Section 8(a)(1) of the
Act. The said unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings and conclusions and the
entire record in the case, I hereby recommend that the
Board issue the following
ORDER
A. For the purpose of determining the effective period
of the certification, the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit 3
B. Wm. H. D Fones, Trustee, d/b/a Southern
Industrial Laundry, its officers, agents, successors, and
assigns, shall-
I Cease and desist from.
(a) Refusing to bargain collectively with Local 218,
Laundry, Dry Cleaning & Dye House Workers Union as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit*
All production and maintenance employees at the
Employer's Tuscumbia, plant, but excluding routemen,
route salesmen, office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
(b) Interfering with the efforts of said union to
negotiate for or represent the employees in said
appropriate unit as the exclusive collective-bargaining
representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act-
(a) Upon request, bargain collectively with Local 218,
Laundry, Dry Cleaning & Dye House Workers Union as
the exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages, hours
of work, and other terms and conditions of employment,
and embody in a signed agreement any understanding
reached
(b) Post at its place of business in Tuscumbia,
Alabama, copies of the attached notice marked
"Appendix."6 Copies of said notice on forms provided by
the Regional Director for Region 10, shall, after being
duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately
upon receipt thereof and maintained by the Respondent
for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
'The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law See Mar-Jac Poultry Co , Inc , 136
NLRB 785, Commerce Co d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd 328 F 2d 600 (C A 5), Burnett Construction Co . 149 NLRB 1419,
1421, enfd 350 F 2d 57 (C A 10)
not altered, defaced or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from receipt of this Recommended
Order, what steps the Respondent has taken to comply
herewith '
'in the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the Board, the findings, conclusions,
recommendations , 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
Relations Board "
'In the event that these recommendations are adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 10, in writing, within 10 days from the receipt of this Order, what
steps the Respondent has 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 with
Local 218, Laundry, Dry Cleaning & Dye House
Workers Union as the exclusive collective-bargaining
representative of all the following employees:
All production and maintenance employees at the
Employer's Tuscumbia, Alabama, plant but
excluding routemen, route salesmen, office clef ical
employees, professional employees, guards and
supervisors as defined in the Act
WE WILL NOT interfere with the efforts of the Union
to negotiate fof or represent employees as exclusive
collective-bargaining representative
WE WILL bargain collectively with the Union as the
exclusive collective-bargaining representative of the
employees in the appropriate unit , and if an
understanding is reached we will sign a contract with
the Union
WM. H D. FONES,
TRUSTEE, D/B/A
SOUTHERN INDUSTRIAL
LAUNDRY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
730 Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.