Plains Linen Service of Lubbock, Inc.

National Labor Relations Board - Board Decisions

Apr 4, 1974

209 N.L.R.B. 1060 (N.L.R.B. 1974)

1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plains Linen Service of Lubbock , Inc. and Laundry,
Dry Cleaning and Dye House Workers Union,
Local 218. Case 16-CA-5334
April 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
Upon a charge filed on November 1, 1973, by
Laundry, Dry Cleaning and Dye House Workers
Union, Local 218, herein called the Union, and duly
served on Plains Linen Service of Lubbock, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Acting Regional Director for Region 16, issued a
complaint and amendment on November 7 and 13,
1973, respectively, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September 6,
1973, following a Board election in Case
16-RC-6313 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about October 23, 1973,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On or about November
15, 1973, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the
allegations in the complaint.
On December 3, 1973, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment. Subsequently, on December 10,
1973, the Board issued an order transferring the
proceeding to the Board and a notice to show cause
why the General Counsel's motion for summary
judgment should not be granted. On December 26,
1973, Respondent filed a response to notice to show
cause, entitled "Answer and Opposition to General
Counsel's Motion for Summary Judgment," and a
i Official notice is taken of the record in the representation proceeding,
Case 16-RC-6313. as the term "record" is defined in Secs. 102.68 and
102.69(i) of the Board 's Rules and Regulations, Series 8, as amended See
LTV Elecirosyslemv, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (C A 4, 1968);
supporting brief. Thereafter, the General Counsel
filed a response to Respondent's response.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
notice to show cause, Respondent attacks certain of
the determinations made by the Board in the
underlying representation proceeding, Case
16-RC-6313, and contends that the Board erred in
failing to grant Respondent a hearing with respect to
i'ts objections to the election.
Our review of the record indicates that on June 28,
1973, the Regional Director issued his Decision and
Direction of Election in which he found, contrary to
the Respondent, that the Union was a labor
organization within the meaning of the Act and that
a production and maintenance unit, exclusive of
drivers or route salesmen, was appropriate. Respon-
dent filed with the Board a timely request for review
with respect to these issues. However, by telegraphic
order dated July 18, 1973, the Board denied the
request for review on the ground that it raised no
substantial issues warranting review.
After the election, which was conducted on July 24,
1973, the parties were furnished with a tally of ballots
which indicated that of approximately 35 eligible
voters, 18 had cast valid ballots for, and 12 against,
the Union, and one ballot was challenged. Respon-
dent then timely filed 14 objections, alleging in
substance that a union adherent had made misrepre-
sentations, coerced employees, and promised bene-
fits if the Union won, and again raising the unit and
labor organization issues already decided adversely
to Respondent. After an investigation, on September
6, 1973, the Regional Director issued his Supplemen-
tal Decision and Certification of Representative in
which he overruled the objections in their entirety.
Thereafter, Respondent filed a request for review of
all the Regional Director's findings, in which it
alternatively requested that the election be set aside
on the basis of its objections or that a hearing be held
upon the issues raised by the conduct of the union
adherent. However, by order of October 1, 1973, the
Board denied the request for review on the grounds
that it raised no substantial issues warranting review.
It is thus clear that Respondent is now attempting
Golden Age Beverage Co, 167 NLRB 151, enfd. 415 F.2d 26 (C.A 5, 1969);
Interlype Co. v. Penello, 269 F.Supp. 573 (D.C. Va, 1967); Follett Corp, 164
NLRB 378, enfd. 397 F.2d 91 (CA. 7, 1968), Sec. 9(d) of the NLRA.
209 NLRB No. 150
PLAINS LINEN SERVICE
to raise issues already decided adversely to it in the
representation case. With respect in particular to
Respondent's contention concerning a hearing on its
objections, the Board, by its denial of review because
no substantial issues warranting review were raised,
had necessarily decided that a hearing was not
required.2
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the motion for summary judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Plains Linen Service of Lubbock,
Inc., is a corporation duly organized under, and
existing by virtue of, the laws of the State of Texas,
maintaining its principal office and place of business
in Lubbock, Texas, where it has been at all times
material herein engaged in the business of providing
commercial linen rental services. During the past 12
months, Respondent, in the course and conduct of its
business operations, purchased and received goods
and materials at its plant valued in excess of $50,000,
which were transported to said plant in interstate
commerce directly from States of the United States
other than the State of Texas, and sold and
performed services and sold and distributed goods,
merchandise, and services the gross value of which is
in excess of $500.000.
We find, on the basis of the foregoing, that
Respondent is, 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, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
2 See, for example, Chaves Virginia Corporation, A Wholly Owned
Subsidiary of BCC Industries, Inc, 206 NLRB No 122, and cases cited
therein
II. THE LABOR ORGANIZATION INVOLVED
1061
Laundry, Dry Cleaning and Dye House Workers
Union, Local 218, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of
the Employer at its Lubbock, Texas, plant,
including janitor and plant clerical employee
(Rita Nicols), exclusive of office clerical employ-
ees, drivers, watchmen, guards, and supervisors as
defined in the Act.
2. The certification
On July 24, 1973, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 16, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on September 6, 1973, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 18, 1973, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 23, 1973, and continu-
ing at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since October 23, 1973, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
3 See Pittsburgh Plate Glass Co v. N L R B, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102 67(f) and 102 69(c)
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section 1, 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 com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5,
1964), cert. denied 379 U.S. 817, (1964); Burnett
Construction Company, 149 NLRB 1419, 1421, enfd.
350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Plains Linen Service of Lubbock, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Laundry, Dry Cleaning and Dye House Work-
ers Union, Local 218, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
the Employer at its Lubbock, Texas, plant, including
janitor and plant clerical employee (Rita Nicols),
exclusive of office clerical employees, drivers, watch-
men, 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.
4. Since September 6, 1973, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about October 23, 1973, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Plains Linen Service of Lubbock, Inc., Lubbock,
Texas , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Laundry, Dry Clean-
ing and Dye House Workers Union, Local 218, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees of
the Employer at its Lubbock, Texas, plant,
including janitor and plant clerical employee
(Rita Nicols), exclusive of office clerical employ-
ees, drivers , watchmen , guards, and supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the, following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
PLAINS LINEN
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Lubbock, Texas, plant copies of the
attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director
for Region 16, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this 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 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 collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Laun-
dry, Dry Cleaning and Dye House Workers
Union, Local 218, as the exclusive representative
of the employees in the bargaining unit described
below.
SERVICE 1063
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below , with respect to rates of pay,
wages , hours , and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees of the Employer at its Lubbock, Texas,
plant , including janitor and plant clerical
employee (Rita Nicols), exclusive of office
clerical employees, drivers , watchmen,
guards, and supervisors as defined in the
Act.
PLAINS LINEN SERVICE
OF LUBBOCK, INC.
(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 compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room
8-A-24, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 817-334-2921.