Ideal Laundry and Dry Cleaning Co.

National Labor Relations Board - Board Decisions

Feb 25, 1963

140 N.L.R.B. 1412 (N.L.R.B. 1963)

1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Intermediate Report and Recommended Order, what steps it has
taken to comply herewith.1°
IB In the event that this Recommended Order be 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 Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with International Union of
Electrical Radio and Machine Workers, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit described below with respect to rates
of pay, wages, hours of employment, and other conditions of employment, and,
if an understanding is reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees at the Evansville plant,
excluding office clerical employees, professional employees, branch man-
ager, messenger, salesman, guards , and supervisors as defined in the Act.
WE WILL NOT interrogate our employees about their union activities in
violation of the law.
WE WILL NOT threaten our employees with reprisals or promise them benefits
in order to induce them to give up the Union.
WE WILL NOT instigate, sponsor, or secure employee resignations from the
Union.
WE WILL NOT in any other manner interfere with, restrain , or coerce em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
BAUSCH & LOMB, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis 4, Indiana, Telephone No. Jackson
7-5451, if they have questions concerning this notice or compliance with its pro-
visions.
Ideal Laundry and Dry Cleaning Co. and Dry Cleaning and
Laundry Workers, Local Union No. 304, Laundry, Dry Clean-
ing and Dye House Workers International Union. Case No.
27-CA-1269. February 25, 1963
DECISION AND ORDER
On December 12, 1962. Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
140 NLRB No. 145.
IDEAL LAUNDRY AND DRY CLEANING CO. 1413
action, as set forth in the attached Intermediate Report. Thereafter,
the Respondent filed exceptions to the Intermediate Report and a
brief in support thereof.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
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 Interme-
diate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
1 The Respondent ' s request for oral argument is hereby denied as, in our opinion, the
record , including the Respondent 's exceptions and brief , adequately presents the issues and
positions of the parties.
2 The Respondent has admittedly refused to bargain with the Union although the Union
was certified following an election in a representation proceeding . ( Ideal Laundry and
Dry Cleaning Co., 137 NLRB 1374. ) The Respondent contends that the Board erred in
its unit finding in the representation proceeding by excluding certain disputed employees,
and that the Trial Examiner erred in adopting those findings and in refusing to permit
the Respondent to adduce further evidence with respect to the appropriate unit The
Respondent does not materially challenge the facts relied upon in the representation pro-
ceeding, but does challenge the inferences and conclusions drawn therefrom . As these
issues were fully litigated in the representation proceeding , and in the absence of evidence
newly discovered or unavailable to the Respondent at the time of the representation hear-
ing, we affirm the Trial Examiner ' s finding that such issues are not properly the subject
of relitigation in the instant proceeding . Esquire, Inc . ( Coronet Industrial Films Divi-
sion ), 109 NLRB 530 , enfd. 222 F . 2d 253 ( CA. 7) ; Pittsburgh Plate Glass Company v.
NLRB., 313 U . S. 146; Burroughs Corporation, 118 NLRB 1177.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Pursuant to a charge filed on August 3, and an amended charge filed on Sep-
tember 10, 1962, a complaint was issued on September 24, 1962 , alleging that Ideal
Laundry and Dry Cleaning Co., herein called the Company or Respondent, had
violated Section 8(a)(5) and ( 1) of the National Labor Relations Act by refusing
to bargain on and after August 6, 1962 , with Dry Cleaning and Laundry Workers,
Local Union No. 304, Laundry, Dry Cleaning and Dye House Workers International
Union , herein called the Union , which had theretofore been certified by the Regional
Director of the National Labor Relations Board as the exclusive bargaining repre-
sentative of Respondent 's employees in a unit found to be appropriate . Respondent
filed an answer , admitting that it had refused to bargain with the Union , as alleged
in the complaint , but asserting as a defense that the unit found by the Regional
Director to be appropriate was in fact inappropriate and that the Union had not
been selected by a majority of the employees in an appropriate unit.
A hearing was held before Trial Examiner Fannie M. Boyls at Denver, Colorado,
on November 1, 1962. The parties set forth their contentions and the issues on the
record. No witnesses were called. The General Counsel rested his case after intro-
ducing in evidence the pleadings in this case and the proceedings in the underlying
representation proceeding ( Case No. 27-RC-2082 ) [ 137 NLRB 1374 ] and asking
me to take official notice of the transcript of hearing in that proceeding.
Respondent 's asserted defense to its refusal to bargain with the certified Union
was that the Board's determination as to the appropriateness of the unit and its
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voiding of two of the ballots cast in the election was contrary to law and arbitrary
and capricious. It was the position of the General Counsel that since Respondent
had admittedly refused to bargain and had asserted no defenses which were not
raised and decided adversely to it by the Regional Director and Board in the repre-
sentation case, it could not have those same issues relitigated in this proceeding. Re-
spondent, on the other hand, contended that it had a legal right to relitigate those
issues and make a full and complete record in this proceeding irrespective of what
had transpired in the representation proceeding. It did not contend that any of the
evidence it sought to adduce was newly discovered or, for any other reason, was not
or could not have been adduced in the representation case. Following my ruling that
I would not permit a relitigation of the issues previously litigated, Respondent made
offers of proof with respect to these issues, which are contained in the transcript of
this proceeding and some of which appear as rejected exhibits. The proffered evi-
dence was rejected.
Upon the entire record in this case,' including the record in the underlying repre-
sentation proceeding, of which I take official notice, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and I find that Respondent, a Colo-
rado corporation, has offices and its principal place of business in Denver, Coloraai,,
where it is engaged in the laundry and drycleaning business. In the course and con-
duct of its business operations, it annually performs laundering and drycleaning
services valued in excess of $500,000 and receives goods and materials at its Denver
establishment, either directly or indirectly, from outside the State of Colorado valued
in excess of $50,000. I find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated at the hearing and I find that Dry Cleaning and Lundry Workers,
Local Union No. 304, Laundry, Dry Cleaning and Dye House Workers International
Union, is a labor organization within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The underlying representation proceeding (Case No. 27-RC-2082)
In proceedings initiated by the Union on May 18, 1961, seeking to represent the
Company's employees in a unit consisting of all laundry production workers, ex-
cluding engineers, drivers, drycleaners, office employees, and supervisors as defined
by the Act, or, in the alternative, in a unit which would include the drycleaning em-
ployees or which would also include the maintenance employees, a hearing was held
before a. hearing officer of the Board on June 2, 1961. On the basis of the record
thus made, the Regional Director, on June 21, 1961, issued his Decision and Direc-
tion of Election, finding appropriate and directing an election in the following unit:
All laundry and drycleaning production and maintenance employees at the
Employer's Denver, Colorado, plant, excluding all office clerical employees,
drivers, guards, and supervisors as defined in the Act.
Thereafter, on or about June 29, 1961, the Company filed with the Board a request
for review of the Regional Director's Decision and Direction of Election, contending,
inter alia, that all its employees except guards and supervisors should be included
in the appropriate bargaining unit. On July 17, 1961, 2 days before the scheduled
election, the Board, by telegraphic order, denied the request for review, stating:
. the only substantial issue raised therein involves unit placement of sal-
aried drivers, and such issue, in the Board's opinion, can best be resolved through
challenge procedure. Accordingly, it is further ordered that unit description
in said Decision and Direction of Election be, and it hereby is, amended to
provide that unit placement of salaried drivers be deferred and that ballots of such
employees be challenged. Their unit placement will be determined, if necessary,
by Regional Director's rulings on challenges or on motion for clarification.
1 The official report of proceedings In this case contains a confused and inaccurate tran-
script of the hearing in a number of instances. In order that the transcript may cor-
rectly reflect material statements made at the hearing, the record is hereby corrected in
the manner set forth in Appendix A, infra.
IDEAL LAUNDRY AND DRY CLEANING CO. 1415
An election was held on July 19, 1961. A tally of the ballots showed 59 votes
for the Union and 58 against it; 6 ballots (those of the salaried drivers) were chal-
lenged; and 2 were void. The Company thereafter filed timely objections to the
conduct of the election, contending that the ballot of one of the employees voting
"No," which had been voided because she signed it, should have been counted
because she was "almost completely blind" and "may have intended to identify the
ballot to show that it was cast,by someone who was blind," and further objecting to the
challenge of the ballots of the salaried drivers. On August 7, 1961, almost 2
weeks beyond the period provided by the Board's Rules and Regulations within which
objections may be filed, the Company, by letter, further objected to the Board agent's
action in voiding a ballot which had a "no" written in both the "yes" and "no" boxes?
On September 8, 1961, the Regional Director issued a Supplemental Decision and
Certification of Representatives in which he sustained the challenges to the ballots
of the six salaried drivers, including two "relief drivers," who had voted, upheld
the voiding of the signed ballot as being in accordance with "well established Board
policy, and refused to consider the Company's belated objection to the other voided
ballot because such objection "was not timely filed." 3 He accordingly certified the
Union as the exclusive bargaining representative.
On September 25, 1961, the Company filed with the Board an appeal from the
Regional Director's (original and) Supplemental Decision and Certification of
Representatives. Without abandoning any objections stated in its July 1, 1961,
request for review, the Company set forth in detail its reasons for objecting to the
Regional Director's action in sustaining the challenges to ballots of the salaried
drivers and also argued that the Regional Director had erred in voiding the signed
ballot and in refusing to consider the objection which had been filed belatedly.
On July 17, 1962, the Board, with all five members participating, issued its
ruling on request for review, unanimously upholding the Regional Director's rulings
with respect to the challenged and void ballots and stating its reasons for doing so.
B. The refusal to bargain
Following the Board's ruling on July 17, 1962, upholding the Regional Director's
certification of the Union as the bargaining representative of Respondent's employees
in a unit consisting of all laundry and drycleaning production and maintenance
employees, excluding all office clerical employees, drivers, guards, and supervisors,
the Union, on or about August 3, 1962, requested, and has continued to request,
Respondent to bargain with it as the representative of those employees. Respondent,
on or about August 6, 1962, refused the Union's request for bargaining and has
continuously thereafter refused to bargain with the Union. As stated by its counsel
at the hearing, its refusal is grounded upon the same contentions made in the repre-
sentation proceeding-that the Union does not represent a majority of its employees
in the appropriate bargaining unit, the Regional Director and Board having erred
in determining the appropriateness of the unit and in having failed to count the two
void ballots.
Since there is no contention that Respondent's operations have changed since the
hearing in the representation case and the evidence sought to be adduced by
Respondent in this case was substantially of a cumulative nature, I am bound by
the Board's decision in the representation case. As stated by the Supreme Court in
Pittsburgh Plate Glass Company v. N.L.R.B, 313 U.S. 146, 162, where the same
issues previously litigated in the underlying representation case were similarly sought
to be relitigated in the complaint case, "a single trial of the issues was enough."
Respondent suggested at the hearing in this case that the Administrative Procedure
Act (enacted subsequent to the Supreme Court's decision in the Pittsburgh Plate
Glass case) guarantees it the right to a full and complete hearing on all issues in the
complaint case irrespective of whether they were litigated in the representation case.
Section 5 of the Administrative Procedure Act, however, expressly excepts cases
2 The Board's Rules and Regulations , Series 8 , as amended , provides that, "Within
5 days after the tally of ballots has been furnished , any party may file with the regional
director four copies of objections to the conduct of the election or conduct affecting the
results of the election , which shall contain a short statement of the reasons therefor
Such filing must be timely . . . . Copies of such objections shall immediately be served
upon each of the other parties by the party filing them , and a statement of service shall
be made "
' The Union also filed objections to the election . The Regional Director overruled one
of them and , in view of his disposition of the challenged ballots, resulting in a certification
of the Union , found it unnecessary to rule on the other objection.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involving the certification of employee representatives from the procedures prescribed
for most other agency hearings and decisions and subsequent to the enactment of that
legislation, the Board and courts have continued to follow the salutory principle
enunciated in the Pittsburgh Plate Glass case that a single trial of an issue is enough.
See, e.g., N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F. 2d 235, 241
(CA. 4), cert. denied 359 U.S. 911; and N.L.R.B. v. American Steel Buck Corp.,
227 F. 2d 927, 929 (C.A. 2).
I accordingly find that Respondent's admitted refusal to bargain with the Union
following the Board's final ruling on its request for review and the Union's request
for bargaining, was in violation of Section 8(a)(5) and (1) of the Act.
IV. CONCLUSIONS OF LAW
1. The following unit of Respondent's employees is appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act:
All laundry and drycleaning production and maintenance employees at Re-
spondent's Denver, Colorado, plant, excluding all office clerical employees,
drivers, guards, and supervisors as defined in the Act.
2. On September 8, 1961, and at all times thereafter, the Union was and now is the
representative of Respondent's employees in the appropriate unit described above for
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
3. By refusing on or about August 6, 1962, and thereafter, to bargain collectively
with the Union as the exclusive representative of all its employees in the above-
described appropriate unit, Respondent has engaged in and is engaging in an unfair
labor practice within the meaning of Section 8(a) (5) and (1) of the Act.
4. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent has refused and still refuses to bargain collectively
with the Union in the appropriate unit described herein, in violation of Section
8(a)(5) and (1) of the Act, my Recommended Order, among other things, will
direct Respondent to cease and desist therefrom and, upon request, to bargain
collectively with the Union as the exclusive representative of the employees in the
unit herein found to be appropriate.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, including the
record in the underlying representation case, and pursuant to Section 10(c) of the
Act, T hereby recommend that the Respondent, Ideal Laundry and Dry Cleaning Co.,
its officers, agents , successors, and assigns , shall:
1. Cease and desist from-
(a) Refusing to bargain collectively with Drv Cleaning and Laundry Workers,
Local Union No. 304, Laundry, Dry Cleaning and Dye House Workers International
Union, as the exclusive bargaining representative of all its laundry and drvcleanmg
production and maintenance employees employed at its Denver, Colorado, plant,
excluding all office clerical employees, drivers, guards, and supervisors as defined in
the Act.
(b) In any manner interfering with the efforts of the above- named Union to bar-
gain collectively with the above-named Company on behalf of the employees in
the above-described unit.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all employees in the appropriate unit , and embody in a
signed agreement any understanding reached.
(b) Post at its plant at Denver, Colorado, copies of the attached notice marked
"Appendix A." 4 Copies of such notice , to be furnished by the Regional Director for
the Twenty-seventh Region, shall, after being signed by an authorized representative
of Respondent, be posted immediately upon the receipt thereof, and be maintained
+ In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the wordy "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order he enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
PLAYSKOOL MANUFACTURING COMPANY 1417
by it 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 Respondent to insure that such notices are not altered , defaced, or
covered by any other material.
(c) Notify the said Regional Director , in writing, within 20 days from the date
of the receipt of this Intermediate Report and Recommended Order, what steps
Respondent has taken to comply herewith .5
In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations , Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with Dry Cleaning and Laundry
Workers, Local Union No. 304, Laundry, Dry Cleaning and Dye House Work-
ers International Union, as the exclusive bargaining representative of all our
employees in the appropriate unit described below with respect to rates of pay,
wages, hours of employment , and other terms and conditions of employment,
and, if an agreement is reached , embody such agreement in a signed contract.
The appropriate unit is:
All laundry and drycleaning production and maintenance employees em-
ployed at our Denver, Colorado, plant, excluding all office clerical em-
ployees, drivers , guards, and supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of Dry Cleaning and
Laundry Workers, Local Union No. 304, Laundry, Dry Cleaning and Dye
House Workers International Union, to bargain collectively as the exclusive
representative of the employees in the bargaining unit described above.
IDEAL LAUNDRY AND DRY CLEANING CO.,
Employer.
Darted---------------------- By-----------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Twenty-seventh Regional
Office, 609 Railway Exchange Building, 17th and Champa Streets, Denver 2,
Colorado, Telephone No. Keystone 4-4151, Extension 513, if they have any ques-
tions concerning this notice or compliance with its provisions.
Playskool Manufacturing Company and Furniture and Bedding
Workers Union , Local 18-B, United Furniture Workers of
America, AFL-CIO, Petitioner
Playskool Manufacturing Company and Furniture and Bedding
Workers Union, Local 18-B, United Furniture Workers of
America, AFL-CIO. Cases Nos. 13-RC-8430 and 13-CA-4864.
February 25, 1963
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On October 9, 1962, Trial Examiner Edwin Youngblood issued his
Intermediate Report in the above-entitled proceeding, finding that
140 NLRB No. 143.