Ideal Laundry and Dry Cleaning Co.

National Labor Relations Board - Board Decisions

Jun 3, 1965

152 N.L.R.B. 1130 (N.L.R.B. 1965)

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging 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 within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Ideal Laundry and Dry Cleaning Co. and Dry Cleaning and
Laundry Workers , Local Union No. 304 , Laundry, Dry Cleaning
and Dye House Workers International Union . Case No. 27-CA-
1269. June 3, 1965
SUPPLEMENTAL DECISION AND ORDER
On February 25, 1963, the National Labor Relations Board issued its
Decision and Order in the above-entitled proceeding,' finding that the
Respondent had unlawfully refused to bargain with the Union as the
certified bargaining representative of the Respondent's employees in
a unit which the Board had found appropriate. On April 23, 1964,
the United States Court of Appeals for the Tenth Circuit vacated the
Board's Order and remanded the case to the Board for reconsideration
of the unit determination?
Pursuant to the court's remand, a hearing was held before Trial
Examiner Fannie M. Boyls. On January 11, 1965, the Trial Examiner
issued her attached Supplemental Decision, concluding that the unit
set forth in the original representation proceeding was appropriate,
and recommending that the Board reaffirm its bargaining order.
Thereafter, the Respondent filed exceptions to the Supplemental Deci-
sion and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Brown and Jenkins].
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 .3 The Board has considered the entire
1140 NLRB 1412
2 N L R B v. Ideal Laundry and Dry Cleaning Company, 330 F 2d 712.
3 We find, without merit , the Respondent ' s contention that it was precluded by the
Trial Examiner from introducing certain testimony regarding the salaried drivers whose
unit placement is in dispute The Trial Examiner indicated , at the commencement of
the reopened hearing, that in her view the court's remand contemplated taking testimony
limited to the unit desires of certain employees ; immediately after the luncheon recess,
however, the Trial Examiner , apparently reversing this ruling, announced -a willingness
to take any evidence that could possibly be construed as coming within the court's
remand Although the Respondent chose to present some of its evidence as to the issue
of the unit placement of the disputed drivers by way of offers of proof , there is no show-
ing that the Trial Examiner prevented the Respondent from presenting relevant testi-
152 NLRB No. 117.
IDEAL LAUNDRY AND DRY CLEANING CO. 1131
record in this case, including the Trial Examiner's Supplemental Deci-
sion and the Respondent's exceptions and brief, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the following additions.
In the original representation proceeding,4 a production and main-
tenance unit was found appropriate. In its ruling on request for
review in that proceeding,5 the Board rejected the contention of the
Employer, the Respondent herein, that six salaried drivers should be
included in the unit, and refused to accept the evidence it proferred
concerning the desires of these employees to be included. In remand-
ing the case to the Board, the court of appeals stated that the desires
of employees, while not controlling, "is a factor which the Board should
take into consideration in reaching its ultimate decision" as to the unit
placement of these employees. At the reopened hearing, all four of the
six drivers who were still employed by the Respondent answered in
the affirmative when asked whether, at the time of the election in 1961,
they desired to be included in the production and maintenance unit and
vote in the election.
The Trial Examiner found, upon reconsideration of the entire rec-
ord, including the Respondent's proffered evidence and the desires of
the 4 drivers who testified, that, notwithstanding their present desire to
be included in the production and maintenance unit, these drivers more
appropriately belonged in a unit with the Respondent's 17 commission
drivers. We have also reexamined the record in the light of the evi-
dence adduced at the remand hearing and conclude, as did the Trial
Examiner, that the factors for inclusion of the salaried drivers in the
unit, including the desires of these employees,, are outweighed by the
factors for exclusion discussed at length in the Trial Examiner's Deci-
sion and in the Board's Ruling on Request for Review in the earlier
representation proceeding. Accordingly, we find, in agreement with
the Trial Examiner, that the production and maintenance unit
described in the original Decision and Order herein is appropriate,
and that the Respondent, by refusing to bargain with the Union as the
representative of the employees in that unit, has violated Section 8(a)
(5) and (1) of the Act.
mony on these matters Moreover , the Trial Examiner found , and we agree , that the
Respondent ' s offers of proof were concerned largely with new matters not previously
considered by the Board or the court , or with matters which occurred subsequent to the
election , and were therefore not within the scope of the court ' s remand
4 Case No 27-RC-2082.
5137 NLRB 1374
6 We have accepted the court ' s theory with respect to the employees ' unit desires as
the law of this case, and , as indicated above, have reexamined the record in accordance
with the court ' s remand. For the reasons set forth in the Trial Examiner ' s Decision,
however, we respectfully disagree with the court's opinion to the extent that it indicates
that subjective testimony by employees as to their desires for inclusion in or exclusion
from an appropriate unit is generally relevant in Boaid unit determinations
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Order recommended by the Trial
Examiner, and reaffirms its bargaining order of February 25, 1963.
SUPPLEMENTAL DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
Pursuant to an order of the National Labor Relations Board dated August 20,
1964, reopening the record and remanding this case to Trial Examiner Fannie M.
Boyls, for a further hearing in accordance with a decision handed down by the
Court of Appeals for the Tenth Circuit on April 23, 1964, in this proceeding, a hear-
ing was held before me at Denver, Colorado, on October 29, 1964. The issue before
the court was whether the Board had properly found that Ideal Laundry and Dry
Cleaning Co., herein called the Company, had unlawfully refused to bargain with
Dry Cleaning and Laundry Workers, Local Union No. 304, Laundry, Dry Cleaning
and Dye House Workers International Union, herein called the Union or the
Laundry Workers, as the representative of its employees in a production and mainte-
nance plant unit which the Board had found to be appropriate In the underlying
representation proceeding, the Board had permitted 6 salaried drivers to vote under
challenge and, in a postelection investigation, had determined that these 6 more
appropriately belonged in a unit with the Company's 17 other drivers who were paid
on a commission basis, than in the unit of production and maintenance employees,
and had sustained the challenges to these 6. The court was of the view that the Board
should have taken into consideration the desires of these six drivers in determining
the appropriate bargaining unit and remanded the case to the Board with directions
that it redetermine the appropriateness of the unit on the basis of certain proffered
evidence, "including testimony with respect to the desire of the excluded employees." 1
Only four of the six salaried drivers were still employed by the Company at the time
of the hearing on remand and their testimony was received.
At the conclusion of the hearing, the General Counsel argued orally upon the
record. Counsel for the Company waived oral argument but thereafter, on Decem-
ber 9, 1964, filed an excellent brief, which I have carefully considered. Upon the
entire record in the remand hearing, the entire record in the original complaint
hearing-including the proffered evidence referred to by the court in its opinion-
and the entire record in the representation proceeding, I make the following findings,
conclusions, and recommendations:
1. THE TESTIMONY, MEANING AND APPLICATION OF TERM
"DESIRES OF THE EMPLOYEES"
The Company has consistently taken the position before the Board and the court
that "the desires of the employees" which the Board, in certain cases, should consider
in determining the appropriateness of the bargaining unit are the desires of employees
to be included in or excluded from a particular bargaining unit, and not their desires
to be represented or not to be represented in that unit. The testimony which it
elicited at the remand hearing was in support of that position.
All four of the six salaried drivers who were still employed by the Company
answered in the affirmative when asked by Company counsel whether, at the time
of the election in 1961, they desired to be included in the production and mainte-
nance unit and vote in the election-though one of them, Medina, on cross-examina-
tion, reluctantly admitted that prior to the election, he had signed a card designating
'In view of the fact that the Company had contended in the representation proceed-
ing-and apparently still contends-that all of its 23 drivers, as well as its 13 office
employees , should appropriately be included in a unit with its production and main-
tenance employees , I announced a readiness to receive evidence as to the desires of all
these excluded employees , and did receive testimony offered by the Company as to the
desires of one of the office employees , Riedl, and one of the commission drivers, Carman,
in addition to the testimony of the salaried drivers. At the conclusion of the hearing,
however, counsel for the Company agreed with the General Counsel that the court, in
its opinion, was referring only to the desires of the six salaried drivers who voted under
challenge , and I concurred in this Interpretation Accordingly , I regard as outside, the
scope of the remand order and do not consider herein any testimony of Mary Riedl,
described in the representation proceeding as one of the 13 office employees , or of Bill
Carman , one of the 17 commission drivers.
IDEAL LAUNDRY AND DRY CLEANING CO. 1133
the Drivers Union 2 as his bargaining representative and further testified that at that
time he was not thinking in terms of whether he would rather be represented in one
unit or in another.
Testimony by employees as to their subjective thinking is by its very nature of
dubious weight and, in my view, where, as here, the employees purport to testify as
to their desires several years in the past, after the issues have been drawn, and in the
presence of their employer whose position that they should be in the unit is undoubt-
edly known to them, their testimony is entitled to even less weight. To determine
the unit placement of employees in this manner, it seems to me, is no different in
principle than ascertaining the employees' choice of a bargaining representative by
putting the employees on the witness stand and having them testify openly, in the
presence of their employer, whether or not they want the Union to represent them.
Surely it would not be argued that the question whether employees desire union
representation should be decided on the basis of this type of evidence, even if the
1947 amendments to the Act (Section 9(c) (1) ) did not preclude certifications except
pursuant to secret ballot elections.
Insofar as I have been able to ascertain from the authorities cited me by counsel
for the Company and from my independent research, the Board has never before
in its long history of administering the Act directed the taking of testimony of
employees to ascertain their desires for inclusion in of exclusion from any bargaining
unit.
In the past the Board, with court approval, has always ascertained the desires of
employees regarding their unit placement, in situations where the desires have been
deemed relevant, by relying upon such objective type of evidence as union author-
ization cards or petitions signed prior to the representation hearing, or by elections
in which the employees, by voting for or against a particular union, are deemed to
have expressed a desire for or against inclusion in the unit which that union was
seeking to represent.3 Indeed, in each of the cases cited by the court as supporting
its holding that the Board should have taken into consideration the desires of the
excluded employees, it was some objective evidence of the desires of employees for or
against representation to which the Board and the courts had referred. Thus, in
Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 156, the court referred
to the "workers' desire to be represented by the Union" [emphasis supplied] as "a fact
which has a bearing on the determination of the appropriate unit." It upheld the
action of the Board in considering and rejecting a contention that one of the
employer's seven plants should be excluded from the multiplant bargaining unit
because a large majority of the employees at that plant had designated a union
(previously found by the Board to have been company dominated) other than the
petitioning union to represent them and had signed a petition asking for separate
representation at their plant. (Pittsburgh Plate Glass Company, 10 NLRB 111, and
15 NLRB 515.)
2 The Drivers Union (Laundry, Linen and Dry Cleaning Drivers Union, Local No 905,
affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America) was seeking to organize and represent the drivers at the same
time that the Laundry Workers Union was seeking to organize and represent the produc-
tion and maintenance employees, but it was apparently unsuccessful in its organizational
campaign.
3 Signed union authorization or membership cards, or employee petitions designating
a particular union as bargaining representative, have sometimes been considered by the
Board, especially in early Wagner Act days, as evidence of a desire of those employees
to be included in the unit represented by the Union they have joined or designated as
their bargaining agent. See, e g Worthington Pump and Machinery Corp , 4 NLRB 448,
Armour 4 Company, 5 NLRB 535; and Waterbury Manufacturing Company, 5 NLRB
288 And, at least since 1937, the Board, in other situations where the desires of em-
ployees have been deemed an appropriate factor to consider in unit placement determina-
tions, has been conducting elections to permit employees in certain groups or classifications
to determine that issue. In those elections the Board has permitted the groups of em-
ployees to vote separately for or against representation by a particular union and has
determined their desire as to unit placement on the basis of whether or not a majority
of the group voted for representation by the Union. The earliest case in which this
type of election was held is The Globe Machine and Stamping Co, 3 NLRB 294, and
these self-determination elections are frequently referred to as Globe elections. For
an analysis of cases dealing with the subject of the wishes of employees in determining
unit placement issues, see annual reports of the National Labor Relations Board for
the years 1952 (pp. 65-68), 1954 (pp. 41-44), 1958 (pp 31-32), 1961 (pp. 64-65), and
1962 (pp. 77-78).
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In N.L.R.B. v. Underwood Machinery Company, 179 F 2d 118 (C.A. 1), another
case cited by the court in support of the proposition that the preference of the
employees may be the single factor which would tip the scales in deciding whether to
include a group of employees in a particular bargaining unit, the Union had sought
to include the employees of the erection and maintenance department in a unit of
production and maintenance employees which it sought to represent and the employer
had sought to exclude them. The Board, in deciding the unit placement question,
permitted the erection and maintenance department employees (group 1) and the
other employees (group 2) to vote separately, and ruled that if a majority of the
group 1 employees voted for the petitioning union, they would be included in the
larger unit with group 2 employees. In this manner the Board equated the desire
of group 1 employees for representation by the petitioning union with their desire
to be included in the production and maintenance unit and after those employees
expressed their "practically unanimous preference" for representation by the union,
the Board let this desire tip the scales in favor of finding the larger unit appropriate.
The third case cited by the court was N.L.R B v. Botany Worsted Mills, 133 F. 2d
876 (CA 3). There the Board found a unit of sorting or trapping department
employees appropriate in view of evidence that those employees had been organized
by the petitioning union and no evidence that a majority of the other employees
belonged to any union (Botany Worsted Mills, 41 NLRB 218). The court, in reject-
ing the employer's attack on the Board's unit finding because of the absence of testi-
mony concerning the desires of the employees, pointed out that there was evidence
of the employees' desires before the Board, namely, an election in which a majority
of the sorters and trappers voted for the union
On the basis of the cases cited by the court, the authorities cited in footnote 3,
supra, and all other authorities which have come to my attention, I must conclude
that if the desire of the six salaned drivers whose unit placement is in issue is the
factor which should tip the scales in a determination of their unit placement, the
most reliable way of determining those desires would be by opening and tallying
their ballots. Since their ballots were challenged, they have remained separate from
the other ballots and may now be counted to ascertain whether a majority of that
group expressed a desire for representation by the Union and thereby evinced a
desire to be included in the production and maintenance unit which the Union seeks
to represent.
II. OTHER FACTORS RELEVANT TO QUESTION WHETHER SIX SALARIED DRIVERS MORE
APPROPRIATELY BELONG IN A UNIT WITH THE OTHER 17 DRIVERS OR IN THE PRO-
DUCTION AND MAINTENANCE PLANT UNIT
Prior to the election in 1961, the Company had a total of 23 drivers, 17 of whom
were family route men who were paid a commission in addition to a guaranteed
minimum salary. The latter are referred to as the commission drivers. The remain-
ing six drivers were paid only a salary. They consisted of four drivers who serviced
commercial establishments and two relief drivers who serviced both family routes
and commercial establishments.
A consideration of the entire record, including the proffered testimony to which
the court has referred and the testimony adduced at the remand hearing, leads me
to conclude that regardless of whether a majority of the six salaried drivers voted
for representation by the Union, those six more appropriately belong in a unit with
the Company's other 17 drivers than in the unit of production and maintenance
employees.
Among the factors which, in my view, outweigh in importance the desires of the
six drivers is the circumstance that during the preelection period when the Laundry
Workers Union was seeking to sign up the production and maintenance laundry and
drycleaning employees, the Drivers Union was seeking to sign up the drivers and did,
in fact, sign up at least one of the salaried drivers, Medina.4 The fact that a union
At the hearing In the representation proceeding, Union Representative Hogan (who
served in the dual role of secretary-treasurer of both the Laundry Workers Union and
the Drivers Union) sought to show that the Drivers Union had been attenipthng to
organize the drivers and stated that the Laundry Workers Union was taking the position
that the drivers were entitled to their own unit. The Company's then counsel objected
to the introduction of evidence regarding the organizational attempts of the Drivers
Union and the Hearing Officer sustained the objection. Evidence adduced at the remand
hearing or proffered at the first hearing in the complaint case, however, shows that in
addition to Medina, drivers Fisher and Ericksen were approached by Hogan or Au11
IDEAL LAUNDRY AND DRY CLEANING CO. 1135
other than the petitioning union was claiming jurisdiction over the drivers and seeking
to organize and represent them at the same time that the petitioning union, which
renounced jurisdiction over the drivers, was seeking to organize and represent the
production and maintenance plant employees is a circumstance which should not be
overlooked. Congress has recognized the existence of industrial unrest caused by
labor disputes arising out of conflicting claims of different unions for jurisdiction
over the same group or class of employees and has sought to encourage the settle-
ment of such conflicting claims by peaceful means It has proscribed certain types
of jurisdictional strikes (Section 8(b) (4) (D)) and set up a procedure by which the
Board may determine jurisdictional disputes after the unions have been given an
opportunity voluntarily to settle their disputes and have failed (Section 10(k) ).
Here the Laundry Workers Union and the Drivers Union had avoided conflict by
delineating the respective areas which each was seeking to organize and represent. In
the circumstances of this case, I believe that the policies of the Act would best be
effectuated by giving greater weight to this jurisdictional delineation than to the
desires of the six salaried drivers.
Counsel for the Company, pointing to the fact that contracts which the Laundry
Workers Union and the Drivers Union have jointly negotiated with Dry Cleaners of
Denver, Inc., an association of employers, covered production and maintenance
employees as well as all drivers of those employers, and to the fact that the two
unions have common officers, apparently contends that in this case the two unions
should be treated as the joint representative in a single unit of all those classes of
employees. The Board, however, has ruled in this case against the appropriateness
of a broad unit which embraces both the production and maintenance employees
and all the 23 drivers, and I interpret the court's opinion as approving this part of
the Board's decision. In any event, the Company's argument ignores the fact,
explained by Secretary-Treasurer Hogan, that each union is affiliated with separate
international unions-one with the Laundry Workers International and the other
with the Teamsters International-each of which is independent of the other.
Hogan testified that the two international unions have an agreement to support each
other and that the locals of each international have been cooperating with each
other, not only in their organizational drives, but also in attempting to negotiate
joint contracts with the association of laundry and drycleaning companies in the
Denver area. In that situation both unions sign the contract but the drivers are
members of and pay dues to the Drivers Union, while the production and mainte-
nance plant employees are members of and pay dues to the Laundry Workers Union.
These support agreements and acts of cooperation between the unions should
not be treated as destroying the identity of the two unions and their traditional pre-
sumed competence to represent the particular classes of employees over which they
claim jurisdiction. Such cooperation, it seems to me, should be encouraged in the
interest of avoiding jurisdictional disputes and enabling the employees' chosen rep-
resentatives better to deal with the employers in the interest of all concerned To
deny representation to a homogeneous group of employees such as the production
and maintenance unit of laundry and drycleaning workers who have selected as their
representative a union which does not claim jurisdiction over or seek to represent
drivers, or any part of them, merely because the drivers have not chosen to designate
as their representative the union which is claiming jurisdiction over them, and seek-
ing to represent them, would, in my view, tend to discourage cooperation by the
unions, encourage jurisdictional disputes, and defeat the policies of the Act as ex-
pressed in Section 1 thereof.
This is not to say that unions, by mutually setting the boundaries of their
respective jurisdictions should ipso facto be considered as having thereby estab-
lished appropriate bargaining units. The Board has expressly refused to permit
unions arbitrarily to restrict its union determination authority in this manners
Nevertheless, the voluntary action of unions in agreeing upon their respective juris-
dictional limits is a factor which the Board should consider, especially where, as
here, each organization is currently seeking to organize and represent employees
within their jurisdictional classifications.
(another union representative serving in the dual role of officer and representative of
both the Laundry Workers Union and the Drivers Union) and solicited to join a union
Although the record does not specifically show what union these drivers were being asked
to join, it is a fair inference, and I find, that it was the Drivers Union, since the Laun-
dry Workers Union, represented by the same union official, has consistently taken the
position that all the drivers constitute a separate homogeneous bargaining unit and the
card signed by Medina was for the Drivers Union.
e Florence Manufacturing Company, Inc, 92 NLRB 185, 186, Mutual Rough Hat Com-
pany, 86 NLRB 440, 443.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board, while not speaking in terms of a union's jurisdictional claims, has
frequently given consideration to such related matters as the history of bargaining
in a given unit, whether any union seeks to include a particular group or class of
employees in the basic unit it purports to represent, and whether any other union
seeks to represent that group in a separate unite The fact that the Laundry
Workers Union was not seeking to include the six salaried drivers, or any of the
other drivers, in the production and maintenance unit it purported to represent
and that the Drivers Union was seeking to represent all the drivers, including the
six salaried drivers, in a separate unit should, in my view, have a significant bearing
upon the unit placement determination. I do not believe that the interest of the
Drivers Union in representing all the drivers should be ignored merely because it
was apparently unable to enlist the support of a majority of them, for it was cur-
rently available for them if they desired representation.
My conclusion that the 6 salaried drivers here in issue more appropriately belong
in a unit with the 17 commission drivers than in the unit with the production and
maintenance laundry and drycleaning employees is, moreover, fortified by the cir-
cumstance that none of the parties had themselves treated the salaried drivers as
different from the commission drivers for unit placement purposes prior to the
Board's telegraphic order of July 17, 1961, directing that the salaried drivers be
permitted to vote under challenge and that their unit placement be later determined
if necessary. In this connection, I note that it was a commission driver, Bill Car-
man, not a salaried driver, whom the Company had present at the representation
bearing for the purpose of having him testify concerning his desires as to unit
placement.
III. CONCLUSIONS AND RECOMMENDATION
For all of the foregoing reasons in addition to those heretofore stated by the
Regional Director and the Board, I find, as the Board has heretofore found, that
the following employees constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act: All laundry and dry-
cleaning, production and maintenance employees at the Employer's Denver, Colo-
rado, plant, excluding all office clerical employees, drivers, guards, and supervisors
as defined in the Act. The employees in that unit having selected the Union as their
bargaining representative in the July 19, 1961, election, and the Company having
concededly refused to bargain with the Union as such representative, it is recom-
mended that the Board reaffirm its bargaining order of February 25, 1963.
9 See, e .g., The Sheffield Corporation, 134 NLRB 1101, 1103-1105; Dewey Portland
Cement Company, division of Martin-Marietta Corporation, 137 NLRB 944, 946, 949; and
142 NLRB 951, enfd. 336 F. 2d 117 (C.A. 10) ; D. H. Koester Bakery Co., Inc., 136 NLRB
1006, 1011 ; Ballentine Packing Company, Inc., 132 NLRB 923, 924-925; The Family
Laundry, Inc., et al., 121 NLRB 1619; Gunzenhauser Bakery, Inc., 137 NLRB 1613, 1616;
D. V. Display Corp., et al., 134 NLRB 568; The Valley of Virginia Cooperative Milk
Producers Association, 127 NLRB 785.
Orange Belt District Council of Painters No. 48, AFL-CIO (Tri-
County Chapter , Painting & Decorating Contractors of Amer-
ica, Inc. ) and Ivan Kaufman
Orange Belt District Council of Painters No. 48, AFL-CIO and
Ivan Kaufman. Cases Nos. 21-CB-2212 and 21-CC-679. June 4,
1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
152 NLRB No. 116.