Charles D. Bonanno Linen Service

National Labor Relations Board - Board Decisions

May 12, 1977

229 N.L.R.B. 629 (N.L.R.B. 1977)

CHARLES D. BONANNO LINEN SERVICE
Charles D. Bonanno Linen Service, Inc. and Team-
sters Local Union No. 25, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case I-CA-I 1628
May 12, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 20, 1976, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the Charging Party filed
cross-exceptions and a supporting brief and also a
brief in opposition to the Respondent's exceptions,
and the General Counsel filed a brief in support of
the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Charles D.
Bonanno Linen Service, Inc., Medford, Massachu-
setts, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: The
main question in this case is whether one employer, of a
group negotiating with a union, may, by leaving the group
during a bargaining impasse, avoid obligations under the
contract later agreed on between the Union and the
remainder of the group. As set out hereinafter, I find the
withdrawing employer is bound by the contract because
circumstances were not so unusual as to justify withdrawal
where the union has not consented.
The other nine are Bristol Coat & Apron Service Co.: I.oyal Crown
Linen Service, Inc.: Delaney Linen Sernice, Inc.; Federal National Linen
Service Co.: Independent Leasing Corporation: Gilman Towel Supply Co..
229 NLRB No. 108
The case arises from unfair labor practice charges filed
on April 9, 1976, by Teamsters Local Union No. 25,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein the
Union). A complaint based on the charges issued May 20,
1976, alleging that Charles D. Bonanno Linen Service, Inc.
(herein Bonanno), engaged in unfair labor practices within
the meaning of Section 8(aX5) and (1) of the Act by
refusing to execute a collective-bargaining agreement
negotiated between the Union and a group of employers
after Bonanno purported to withdraw from the group.
Bonanno answered, admitting jurisdictional allegations,
the authority of the group to bargain on behalf of member-
employers, including Bonanno, and the attempt of Bonan-
no to revoke that authority. Bonanno denied the balance of
the allegations, including legal conclusions that it engaged
in unfair labor practices. The case was heard before me at
Boston, Massachusetts, on August 30, 1976.
Based on the entire record, including my observation of
the witnesses, and consideration of excellent briefs from
the parties, I make the following:
FINDINGS OF FACT
I. THE EMPLOYERS INVOLVED
Bonanno is a Massachusetts corporation engaged at
Medford, Massachusetts, in the laundering, rental, and
distribution of linen, uniforms, and related products. In the
operation of its business it annually receives at its Medford
plant from points outside Massachusetts chemicals, linens,
and other fabrics valued over $50,000. Its annual gross
receipts exceed $500,000. The complaint alleges, the answer
admits, and I find that Bonanno is an employer engaged in
commerce within the meaning of the Act.
The New England Linen Supply Association (the Group)
is comprised of 10 employers, including Bonanno, engaged
in the linen service business.'
II. THE LABOR RELATIONS
A. Background
The Union is a labor organization within the meaning of
Section 2(5) of the Act. It represents the truckdrivers and
helpers employed by Group members. The parties stipulate
that the employees so represented constitute an appropri-
ate bargaining unit.
For some years past the 10 employers referred to above
have negotiated as a group with the Union respecting the
terms of employment of their drivers and helpers. On
September 21, 1972, they signed individual and identical
agreements with the Union which were to remain in effect
until April 18, 1975, and thereafter until amended by
mutual agreement or terminated in accordance with a
provision that "either party desiring to amend or terminate
the contract shall on or after February 15, 1975 notify the
other party in writing of said intention."
Inc.; Morgan Services, Inc.: Norfolk Count) Linen Service: and Standard
Linen Service.
629
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Negotiations for a Current Contract
On or about February 19, 1975, Bonanno authorized the
Group to bargain collectively on its behalf with the Union
and, subsequently, such bargaining took place. On March
14, 1975, apparently in anticipation of possible termination
of the existing agreements but without formal notification
thereof, the Union and the Group met for their first
negotiating session looking toward a new agreement.
Thereafter, they held further negotiating meetings on
March 19 and 26 and April 1, 3, 11, 13, 14, 16, 17, and 30.
In the meantime, on April 18 the Union by letter notified
each member of the Group that it was giving 60-day notice
of termination pursuant to the terms of the 1972 agree-
ments. On April 23, 1975, the attorney representing the
Group by letter offered to meet with the Union for the
purpose of negotiating a new agreement.
On April 30, 1975, the negotiators reached agreement,
subject to ratification by the employees, which provided for
compensation to employees on an hourly basis. On May 4,
1975, the employees voted to reject the contract.
The negotiators next met on May 12, at which time the
Union proposed that employees be compensated on a
commission basis rather than at an hourly rate. Group
negotiators rejected this proposal, adhering to the position
previously taken. The negotiators again met on May 15
and the Union again insisted on pay on a commission
basis. Management negotiators again rejected the proposal,
advising the Union that they would accept a strike rather
than concede on the issue. At a further session on May 20
the positions of the parties remained unchanged. It is
undisputed that an impasse on this issue had been reached
on May 15. A further meeting on June 18 was unsuccessful
in breaking the impasse.
C. The Strike and Lockout
On June 23, 1975, the impasse continuing, the Union
called a selective strike against Bonanno in which all of its
drivers participated. At the time of the hearing that strike
was still in effect. The fact that the Union struck only
Bonanno is not a circumstance which justified Bonanno's
later withdrawal from the Group. Selective strikes are a
legitimate tactic for exerting economic pressure. Their
occurrence does not relieve a struck employer of his
obligation to bargain with the Union. See Beck Engraving
Co., Inc., 213 NLRB 53, 54-55 (1974), enforcement denied
522 F.2d 475 (C.A. 3, 1975); State Electric Service, Inc., 198
NLRB 592, 593 (1972); Hi-Way Billboards, Inc., 206 NLRB
22, 23 (1973), supplementing 191 NLRB 244 (1971),
enforcement denied 500 F.2d 181 (C.A. 5, 1974).
After the strike began, most of the other employers in the
Group locked out their drivers, thus presenting a united
front to the Union. The parties continued to meet,
however, in an effort to reach an agreement. Negotiating
sessions were held on July 22, August 15, and September 2,
1975. But impasse continued on the issue of method of
payment to drivers.
The Union argues that because some employers during
strategy sessions urged that a sky-high wage offer be made
2 Nothing in the record suggests that it was the Union that made the
secret overtures. In any case, the Union did not make any agreement with
the wayward employers.
in an effort to break the impasse, a tactic which Bonanno
opposed, a potential break in the impasse was apparent
and therefore continuation of the impasse should not be
viewed as a legitimate reason for Bonanno withdrawing
from group bargaining. There is no merit to this conten-
tion. Remarks made during strategy sessions could have
only the most speculative impact on the actual bargaining
situation.
Of greater significance is the fact that, before Bonanno
withdrew, two other employers in the Group secretly had
been in direct touch with the Union, presumably in an
effort to make a separate settlement.2 Nothing came of
these secret contacts. Whether they reached the level of
negotiations does not appear. In the circumstances, I find
the Group was not thereby fractured in a manner
warranting withdrawal by others in the Group. See Ice
Cream, Frozen Custard Industry Employees, Drivers, Ven-
dors and Allied Workers Union Local 717, et al. (Ice Cream
Council, Inc.), 145 NLRB 865, 870 (1964).
D. The Respondent's Withdrawal from the Group
On November 21, 1975, the strike and lockout still being
in effect and the impasse continuing, Bonanno revoked its
prior authorization to the Group to bargain on its behalf,
stating, "The Company is withdrawing from the Associa-
tion with specific respect to negotiations at this time
because of an ongoing impasse with Teamsters Local 25."
Bonanno indicated it would engage in bargaining directly
with the Union. A copy of its revocation letter was mailed
to the Union on November 21 and that same day read to a
union representative over the telephone.
Between commencement of the strike on June 23 and the
notice of withdrawal on November 21 Bonanno hired
permanent replacements for all of its striking drivers. Thus,
from its point of view there was less reason than earlier to
continue with group bargaining. But the difference in
personnel was not such a circumstance as would justify
withdrawal from the Group because the hiring of replace-
ments was a logical outgrowth of the strike and a normal
management effort to survive. N.L.R.B. v. MacKay Radio
& Telegraph Co., 304 U.S. 333 (1938). Use of such normal
measures are not "unusual circumstances" which justify
withdrawal from group bargaining.
Bonanno strongly urges that the ongoing impasse was an
unusual circumstance justifying its withdrawal from the
Group in accordance with the Board's decision in Retail
Associates, Inc., 120 NLRB 388, 393-395 (1958). It
especially relies on four court of appeals decisions so
holding. See N.LR.B. v. Beck Engraving Co., 522 F.2d 475
(C.A. 3, 1975); N.LR.B. v. Associated Shower Door Co.,
Inc., 512 F.2d 230 (C.A. 9, 1975); N.LR.B. v. Hi-Way
Billboards, Inc., 500 F.2d 181 (C.A. 5, 1974); and Fairmont
Foods Company v. N.L.R.B., 471 F.2d 1170 (C.A. 8, 1972).
See also the dictum of the First Circuit in N.LR.B. v. Field
and Sons, Inc., 462 F.2d 748 (1972).
The General Counsel and the Union point out that the
Board has not followed the line taken by the courts of
appeals. Under Board law a bargaining impasse does not
630
CHARLES D. BONANNO LINEN SERVICE
constitute such an unusual circumstance as to justify an
employer's unilateral withdrawal from group bargaining.
See Hi-Way Billboards, Inc., 206 NLRB 22 (1973), on
remand from N.L.R.B. v. Hi-Way Billboards, Inc., supra,;
and Goodsell & Vocke, Inc., 223 NLRB 60 (1976). The
position taken by the Board is, of course, binding on me.
Insurance Agents' International Union AFL-CIO (The
Prudential Insurance Company of America), 119 NLRB 768,
773 (1957). Accordingly, I find the circumstance of an
ongoing impasse to be an insufficient reason for Bonanno
to have withdrawn from the Group. Accordingly, unless
the Union went along with the withdrawal (a subject
discussed later herein), Bonanno had a continuing duty to
participate in group bargaining, a duty which it violated by
withdrawing.
E. The Continuing Negotiations
Shortly after the withdrawal, a Group representative
informed the Union by letter dated November 24, 1975,
that he understood the Union had been notified that
Bonanno had withdrawn. The letter stated that the
remainder of the Group would continue to negotiate with
the Union and announced that the lockout by the
remaining members was being terminated.
Thereafter, the Group, without Bonanno, met with the
Union and negotiated further on December I, 1975, and
February 4, April 5, and April 13, 1976.3
On April 13, 1976, the Union dropped its demand for
compensation by commission and accepted a management
offer of a revised hourly wage rate. With this development,
agreement was finally reached on a new contract.
F. The Union's Claim on Bonanno
Although the Union had not communicated with
Bonanno since its withdrawal, other than to file unfair
labor practice charges on April 9, after it reached
agreement with the Group on April 13 it claimed that
Bonanno also was bound by the terms of the contract
bargained. By letter of April 29, 1976, the Union informed
Bonanno that the Union at no time had consented to its
withdrawal, and that it considered Bonanno to be a
member of the Group and bound by the settlement
reached. On May 3, 1976, Bonanno's attorney replied to
the Union by letter denying it was bound by the agreement
reached.
G. Union Consent, Acquiescence, and Estoppel
Bonanno contends that, even if its withdrawal was
untimely and unjustified by unusual circumstances, the
Union has gone along with the withdrawal by consenting
or acquiescing to it, and in any case should not now be
heard to object to it.
1. Consent or acquiescence
As to consent, it is clear the Union did not specifically
consent at the time of withdrawal. When Charles Bonanno
" On Apnl 9, the Union filed the instant unfair labor practice charges
against Bonanno.
4 It is not clear how the Union could wash out its antitrust suit against all
read the withdrawal letter the Union Field Representative
Herbert Salter over the telephone on November 21, 1975,
Salter made no comment other than to indicate he would
wait to see a copy of the letter before confirming the
telephone call and he would probably consult the Union's
attorney. This could not reasonably be understood as
consent to what Bonanno was doing but only as acknowl-
edgment of notice that he was doing it.
Up to that point, Charles Bonanno had been a member
of the employer bargaining committee. At the first
negotiating meeting following withdrawal, Union President
William McCarthy inquired as to who had replaced
Charles Bonanno on the employer bargaining committee.
He thus recognized that Bonanno was in fact not actively
participating in the continuing negotiations. But it was not
more than that. It did not amount to an agreement with
Bonanno's legal position that it could withdraw anymore
than continuing negotiations with the balance of the Group
amounted to consent to Bonanno's absence. To hold
otherwise would give every dissident in group bargaining
the power to ruin collective bargaining for all others
involved. By negotiating with the balance of the Group and
recognizing that Charles Bonanno was no longer on the
bargaining committee, the Union only acknowledged the
defacto situation.
No further reference to Bonanno's absence occurred
until the final session on April 13. At the meeting, after
agreement was reached on contract terms, an attorney for
the Group asked, "What about pending litigation?" He was
referring to collateral litigation including an antitrust suit
by the Union against the Group, an injunction suit by the
Group against the Union, and unemployment compensa-
tion cases. He apparently did not intend to include the
instant unfair labor practice charges which the Union had
filed on April 9 because the Group attorneys were unaware
of them. Herbert Salter, speaking for the Union, responded
that "we would probably wash all the pending litigation-
this does not include Bonanno, they are separate now and
not in the group." At that time Bonanno was not
represented in the pending litigation by the attorneys for
the Group, but was separately represented by the attorneys
who later appeared for it in the Board proceeding.
Salter's response acknowledged the long-established de
facto separation of Bonanno from the Group. But he could
not have meant to release Bonanno from its duty to
bargain with the group. Unfair labor practice charges
based on Bonanno's refusal to bargain with the Group had
been filed only 4 days earlier and are still pending in this
proceeding. They stand as a constant union assertion that
Bonanno is bound to Group bargaining. Respecting the
other pending litigation, Salter's response is ambiguous
when applied to Bonanno. 4 Such ambiguity should be
construed in a manner consistent with the Union's position
on the pending unfair labor practice charges. On April 29
the Union sent Bonanno a letter denying it had ever
consented to its withdrawal and asserting it was bound to
the negotiated contract.
except Bonanno, nor why it would want to leave Bonanno as the only
surviving plaintiff in an injunction suit against the Union.
631
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering the above circumstances, I find that the
Union did not, directly or by implication, consent to, nor
acquiesce in, Bonanno's withdrawal from Group bargain-
ing. See Fairmont Foods Company, 196 NLRB 849 (1972);
The John J. Corbett Press, Inc., 163 NLRB 154, 158, fn.
14(1967); The Carvel Company, and C and D Plumbing and
Heating Company, 226 NLRB I Il 1, fn. 8 (1976).
2. Estoppel
Bonanno also contends that the Union (and the General
Counsel) should not now be heard to object to the
withdrawal because (a) for months following the withdraw-
al the Union remained silent and did not affirmatively
object; (b) the Union continued bargaining with the
balance of the Group; and (c) following the withdrawal the
Union accepted the beneficial consequences of the with-
drawal; namely, termination of the lockout by other
employers in the Group. The Board has already rejected
these contentions in Fairmont Foods Company, supra.
In sum, I find that Bonanno was obliged to bargain with
the Group, that its attempt to withdraw while negotiations
were in progress was not timely nor justified by the
circumstances, including the ongoing impasse and the
selective strike, and since the withdrawal the Union has
neither consented to nor acquiesced in the withdrawal nor
should it be estopped now from claiming that Bonanno is
bound to the agreement reached with the Group. Bonan-
no's refusal to honor that agreement is, and has been, a
breach of its duty to bargain in good faith and is an unfair
labor practice within the meaning of Section 8(a)(5) and (1)
of the Act.
IIl. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Bonanno set forth in section II, above,
occurring in connection with its operations described in
section I, above, have a close, intimate, 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.
CONCLUSIONS OF LAW
1. Bonanno is an employer within the meaning of
Section 2(2) and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union is, and has been at all material times, the
exclusive bargaining representative of the employees of
Bonanno in the following appropriate unit:
All linen supply truck drivers and helpers employed by
members of the New England Linen Supply Associa-
tion, exclusive of all other employees, office clerical
employees, guards and all supervisors as defined in
Section 2(1 1) of the Act.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
4. By its refusal to adopt the agreement reached
between the Union and the Group bargaining on behalf of
members of the New England Linen Supply Association,
and by its refusal to give effect to the terms and conditions
contained therein, Bonnano engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Bonanno has engaged in certain
unfair labor practices, I recommend it cease and desist
therefrom and take certain affirmative action that I find
necessary to effectuate the policies of the Act. In this
connection Bonnano should immediately sign and imple-
ment the agreement reached between the Union and the
Group, and, as urged by the General Counsel in his brief,
apply it retroactively to April 13, 1976, making its
employees whole for any loss of earnings suffered since
then as a result of its failure to apply the agreement. See
The Carvel Company, supra. Backpay is to be computed in
the manner set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at 6 percent,
calculated according to the formula set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). Nothing
herein is to be construed as requiring Bonnano to recoup
wages or benefits already received by its employees.
Bonnano should also preserve and make available to Board
agents, upon request, all pertinent records and data
necessary in analyzing and determining whatever backpay
may be due. It should also post appropriate notices at its
Medford, Massachusetts, facilities.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 5
The Respondent Charles D. Bonanno Linen Service,
Inc., Medford, Massachusetts, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Teamsters Local
Union No. 25, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees in the
appropriate unit described herein.
(b) Refusing to sign and to implement the 1976-79 linen
supply agreement reached between the above Union and
the Group representing employer-members of the New
England Linen Supply Association with respect to its
employees in the appropriate unit described herein.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under the National Labor Relations Act, as amend-
ed.
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.
632
CHARLES D. BONANNO LINEN SERVICE
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Forthwith sign and implement the above-described
agreement and give retroactive effect thereto from April 13,
1976.
(b) Make whole its employees in the above-described
bargaining unit for any loss of pay or other employment
benefits they may have suffered by reason of its refusal to
sign and implement the aforesaid agreement, in the manner
set forth in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its place of business in Medford, Massachu-
setts, copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date hereof, what steps it has taken
to comply herewith.
6 In the event the Board's Order is enforced by a Judgment of the 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."
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 with Teamsters Local
Union No. 25, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
by refusing to sign and implement the 1976-79 contract
between the Union and the employer-members of the
New England Linen Supply Association.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights under the National Labor Relations Act,
as amended.
WE WILL forthwith sign and implement the above-
mentioned contract and give retroactive effect thereto
from April 13, 1976.
WE WILL make whole our employees in the bargain-
ing unit for any loss of pay or other employment
benefits they may have suffered by reason of our
refusal to sign and to implement the aforesaid collec-
tive-bargaining agreement, plus interest.
CHARLES D. BONANNO
LINEN SERVICE, INC.
633