Continental Linen Services

National Labor Relations Board - Administrative Judge Opinions

Sep 15, 2010

07-CA-052296 (N.L.R.B. Sep. 15, 2010)

JD–53–10
Kalamazoo, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CONTINENTAL LINEN SERVICES, INC.
and Cases GR-7-CA-52296
GR-7-CA-52715
CHICAGO AND MIDWEST REGIONAL GR-7-CA-52798
JOINT BOARD – WORKERS UNITED/SEIU
A. Bradley Howell, Esq.
for the General Counsel.
David M. Buday, Esq. and
Jeffrey C. Melville, Esq.
(Miller Johnson) Kalamazoo, Michigan,
for the Respondent.
Ronald M. Willis, Esq.
(Dowd, Block & Bennett)
Chicago, Illinois,
for the Respondent.
DECISION
Statement of the Case
PAUL BOGAS, Administrative Law Judge. This case was tried in Kalamazoo, Michigan,
on April 13, 2010. The Chicago and Midwest Regional Joint Board – Workers United/SEIU (the
Charging Party) filed the charge in case GR-7-CA-52296 on August 5, 2009, the charge in case
GR-7- 52715 on February 8, 2010, and the charge in case GR-7-CA-52798 on March 17, 2010.
The Regional Director of Region 7 of the National Labor Relations Board (the NLRB) issued the
original complaint on November 10, 2009, the amended complaint on November 10, 2009, the
consolidated complaint on March 16, 2010, and the second consolidated amended complaint
(the complaint) on March 24, 2010.
The complaint alleges that Continental Linen Services, Inc. (the Respondent) refused to
bargain in good faith with the exclusive collective-bargaining representative of its employees in
violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act): beginning on
about April 20, 2009, by refusing to remit to the Charging Party union fees and dues that the
Respondent deducted from the pay of employees; beginning on about March 17, 2009, by
refusing to meet with representatives of the Charging Party to discuss and process grievances;
beginning on about March 17, 2009, by denying the Charging Party’s representatives access to
the Respondent’s facility; beginning on about February 3, 2010, by refusing to meet with the
Charging Party to negotiate a successor collective-bargaining agreement; and beginning on
about February 23, 2010, by failing and refusing to comply with the Charging Party’s request for
an updated seniority list. The Respondent contends that as a result of the Joint Board’s
contested disaffiliation from the international organization known as UNITE HERE, the company
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does not know which entity to recognize and forward dues to, and that, in any case, the entity
entitled to recognition is not the Charging Party independent of UNITE HERE.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties, I make the following findings of fact and
conclusions of law.
Findings of Fact
I. Jurisdiction
The Respondent, a corporation with an office and facility in Kalamazoo, Michigan,
operates a commercial laundry service. In conducting these activities the Respondent annually
derives gross revenues in excess of $500,000 and receives at its Kalamazoo facility goods and
materials valued in excess of $50,000 directly from points outside the State of Michigan. The
Respondent admits, and I find, that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. I find that the Charging Party is a labor organization
within the meaning of Section 2(5) of the Act.1
II. The History of the Bargaining Unit
Production workers at the Respondent’s commercial laundry facility in Kalamazoo,
Michigan, have been represented by a union since approximately 1960. 2 For over 20 years of
that period, the employees’ recognized Section 9(a) bargaining representative was Local 151 of
the Laundry and Dry Cleaning International Union (LDCIU). There is no evidence that this, or
any other entity, was ever certified by the NLRB as the bargaining representative. As of the
time of trial, Barbara Lipsey, a production worker at the Kalamazoo facility, had been the
president of Local 151 for 24 years. During some of Lipsey’s tenure as president, two other
bargaining unit employees – Viola Smith and Ollie Walker – also served as officials of the local
union. Lipsey, Smith and Walker were among the Union’s negotiators for the 2000-2005
collective-bargaining agreement with the Respondent. In addition, until at least 2005 Lipsey
helped employees to prepare and pursue grievances. For a period of 10 or more years ending
in 2004, Local 151 also paid an outside contractor – Bob Inman, a business agent with a
Teamsters local – to assist with contract negotiations and the processing of grievances. As part

1 As is discussed further below, until March 2009, UNITE HERE (Union of Needletrades,
Industrial and Textile Employees – Hotel Employees and Restaurant Employees Union) had an
intermediate entity known as the Chicago and Midwest Regional Joint Board, UNITE HERE. On
March 7, 2009, officials of the Chicago and Midwest Regional Joint Board voted to disaffiliate
from UNITE HERE and subsequently affiliated with Workers United and the SEIU to form the
current version of the Charging Party. The record indicates that UNITE HERE has taken legal
action challenging, and presumably seeking to reverse, the disaffiliation. My finding that the
Charging Party is a labor organization is based on the manner in which it is currently operating.
I do not make any finding regarding the legality of the disaffiliation from UNITE HERE or the
question of whether the Charging Party’s identity is substantially the same as that of the
Chicago and Midwest Regional Joint Board of UNITE HERE.
2 The bargaining unit is defined as follows:
All production employees, including plant clerical employees and janitors, employed
by Respondent at its 4200 Manchester Road, Kalamazoo, Michigan facility; but
excluding all office clerical employees, salespersons, truck drivers, skilled
maintenance employees, and guards and supervisors as defined in the Act.
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of this arrangement, Local 151 was permitted to use the union hall of the Teamsters local, and
sometimes received assistance from other Teamsters officials when Inman was not available.
However, Local 151 was never affiliated with the Teamsters local, but simply paid Inman to
assist with representational duties. The Respondent’s president is Ron VanderMeer, and its
human resources manager is Sarah Wrubel.
During the period from 2002 to 2004, Local 151 was affected by four significant
organizational changes made by the labor entities with which it was affiliated. First, on October
1, 2002, LDCIU merged with UNITE. Pursuant to the merger agreement, “LDCIU and all of its
affiliated Locals . . . bec[a]me permanently affiliated with UNITE.” The merger agreement
further provided that UNITE would consider affiliating the former LDCIU locals with the “UNITE
Joint . . . Boards in their respective geographic areas.” The parties stipulate that after this
merger “Local 151 (UNITE)” became the successor union to LDCIU, Local 151, and that the
collective-bargaining relationship and the collective-bargaining contract continued with Local
151 as the bargaining representative. At some point prior to February 20, 2003, UNITE
directed that Local 151 affiliate with UNITE’s Chicago and Central States Joint Board (the
Chicago Joint Board). In a letter dated February 20, 2003, an official of UNITE informed the
Respondent that Local 151 was the bargaining representative, and that Local 151 had become
affiliated with, and would be directly assisted by, the Chicago Joint Board in its dealings with the
Respondent. The parties stipulate that this was an accurate statement at the time it was made.
The third organizational change came in May 2004, when UNITE’s Chicago Joint Board,
merged with UNITE’s Midwest Regional Joint Board (the Midwest Joint Board) to form the
Chicago and Midwest Regional Joint Board (Joint Board), UNITE. As a result of that action,
Local 151 became affiliated with the merged entity. The Joint Board, UNITE, had an office in
Chicago, Illinois, and one in Detroit, Michigan. As of March 2009, the Joint Board was servicing
approximately 522 labor contracts with employers. The fourth organizational change came in
July 2004 when UNITE merged with the Hotel Employees and Restaurant Employees Union,
AFL-CIO, CLC (HERE) to form UNITE HERE. By virtue of this merger, each chartered body of
either UNITE or HERE became a chartered body of the merged entity, i.e., of UNITE HERE.
After the merger, Local 151 was affiliated with both UNITE HERE, and the Joint Board of UNITE
HERE.
On July 8, 2004, UNITE HERE adopted a constitution that contains a number of
provisions that are relevant to this proceeding and in particular to the question of whether the
Joint Board ever became the bargaining representative of the unit employees. The UNITE
HERE constitution states that “[a] local may not withdraw from UNITE HERE, go out of
existence, dissolve, or join or amalgamate with non-UNITE HERE unions without the prior
consent of the G[eneral] E[xecutive] B[oard of UNITE HERE].” UNITE HERE Constitution,
Article 5, Section 7. That document also provides some insight into the relationship of the
locals, the joint boards, and UNITE HERE. It states that the presidents of UNITE HERE have
the authority to direct a local union to affiliate with a joint board, that affiliated local unions “shall
remain affiliated with such joint board, unless exempted by the presidents” of UNITE HERE and
that the “[j]oint boards shall organize, coordinate and supervise the activities of their affiliated
local unions.” Id. at Article 6, Section 1 and 2. The UNITE HERE constitution authorizes the
joint boards to adopt constitutions, but states that such constitutions must be approved by the
presidents of UNITE HERE and are prohibited from conflicting with the constitution or policies of
UNITE HERE. The Joint Board has adopted its own constitution, which includes a provision
acknowledging that in the event of a conflict the UNITE HERE constitution will control.
Constitution of the Joint Board, Article 6. The Joint Board’s constitution defines a “local” as “a
local union of UNITE HERE.” Id. at Article I, Section 2. The document further provides that the
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Joint Board, not the affiliated local, has authority to call strikes or work stoppages and to
execute collective-bargaining agreements.
Officials of the international organization of UNITE HERE do not appear to have taken
an active part in the Joint Board’s activities in support of Local 151. The officers of the Joint
Board were not directly employed by the international organization of UNITE HERE, did not
submit proposed contracts to officials of the international organization of UNITE HERE for
review or approval, and did not consult with officials of the international organization of UNITE
HERE regarding which grievances to arbitrate.
III. Local 151 after UNITE HERE Merger
The General Counsel’s argument that the Respondent violated the Act relies largely on
the contention that after UNITE and HERE merged, Local 151’s status as bargaining
representative was transferred to the Joint Board of UNITE HERE. The record shows that
around the time that Local 151 became affiliated with UNITE and then UNITE HERE, Local 151
stopped using Inman to assist with its representational duties, and officials of the Joint Board
stepped into that role. Richard Monje, an employee of the Joint Board, served as lead
negotiator for the 2005-2010 collective-bargaining agreement, much as Inman had for past
agreements. Lipsey and two union stewards of Local 151 also participated in these negotiations
as part of the union negotiating team. Around the time of the merger, Margarita Klein and
Sergio Monterrubio, employees of the Joint Board, began assisting Local 151 with employee
grievances. Their assistance was more extensive than Inman’s had been, and eventually
eclipsed Lipsey’s role in the formal grievance process. Lipsey continues to help unit members
who wish to work out issues with the Respondent informally, but if the unit member decides to
file a formal grievance Lipsey will, at most, help prepare the grievance before referring the
matter to Klein or Monterrubio.
Lipsey continues to hold the title of president of Local 151, but testified that her duties
have become essentially those of a union steward. In the past, Lipsey had been paid for her
work on behalf of the Union, but by the time of the UNITE HERE merger, she was no longer
being paid. In addition, by the time of the UNITE HERE merger the other two officials of Local
151 left their union positions and neither has been replaced. Since the merger, officials of the
Joint Board have named three union stewards – Jose Cabrera, Linda Darner, and Martha
Rodriguez. Lipsey testified that the entity she understood was taking over the day to day
contract administration during this time was “UNITE HERE,” Transcript at Page(s) (Tr.) 156, not
the Joint Board. Indeed, Lipsey stated that she had “never really heard much of [the] name”
Joint Board until the instant case was initiated. Tr. 167.
Since 2004, Local 151’s activities have become more limited. For example – prior to
2005, Local 151 maintained a bank account into which union dues were deposited and out of
which the local made payments to the international organization, Inman, and others. However,
in 2005 the Joint Board of UNITE HERE began receiving the dues3 and Local 151 stopped
maintaining its own bank account. The Joint Board, UNITE HERE, remitted a portion of the
dues to UNITE HERE, but none to Local 151. Since approximately 2005, Local 151 has not
held any membership meetings or elections for union officials.

3 This change is provided for by the 2005-2010 collective-bargaining agreement, which
states that union dues deducted from employee wages will be “remit[ted] to the Chicago &
Midwest Regional Joint Board, UNITE HERE, . . . Chicago, Illinois.”
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Following the UNITE HERE merger in 2004, officers of the Joint Board of UNITE HERE
administered the collective-bargaining agreement with the Respondent on a day-to-day basis,
investigated, filed, and pursued grievances, met with employees at the plant, and met with the
Respondent to address employee concerns and discuss the possible resolution of grievances.
The Joint Board paid the costs of negotiations, arbitrations, and legal representation involving
the bargaining unit.

IV. Joint Board Votes to Disaffiliate from UNITE HERE
At a meeting on March 7, 2009, delegates from the Joint Board passed a resolution to
disaffiliate from UNITE HERE. Then, on March 21, officials of the Joint Board acted to affiliate
with Workers United, which in turn merged with the SEIU to form the Charging Party. After the
vote to disaffiliate from UNITE HERE, the managers and officers of the Joint Board, UNITE
HERE, became managers and officers of the Charging Party. The Charging Party continued to
use the same Chicago and Detroit offices that the Joint Board, UNITE HERE, had used before
the disaffiliation vote.
Lipsey, the one remaining officer of Local 151, was invited to the March 7 meeting at
which the disaffiliation vote was conducted, but she was unable attend. Lipsey was approached
by Dan Hammersmith – an employee of the Chicago and Midwest Regional Joint Board – and
presented with a document entitled “Motion to Disaffiliate.” The document states, inter alia, that
“the Executive Board of Local #151” has “convened” and “resolves to disaffiliate from UNITE
HERE” and “furthermore, as an affiliate local union of the Chicago and Midwest Regional Joint
Board supports the disaffiliation of the Chicago and Midwest Regional Joint Board from UNITE
HERE.” Lipsey signed the document, but testified at trial, that she was “not sure” she “really
read it or understood it.”4
Within weeks after the Joint Board voted to disaffiliate from UNITE HERE, the Charging
Party and UNITE HERE each tried to establish itself as the continuing bargaining representative
of the Respondent’s unit employees. The Charging Party acted first, sending the Respondent a
proposed “Memorandum of Agreement” on March 11, which asked the Respondent to agree to
amend the collective-bargaining agreement “to strike any reference to UNITE HERE and to set
forth the Joint Board as the exclusive bargaining representative.” The proposed agreement
stated that “any reference to UNITE HERE is . . . merely a description of the International union
with which the Joint Board was affiliated at the time of the most recent collective bargaining
agreement.” The proposed memorandum of agreement never became effective because the
Respondent declined to sign it.
Then the Charging Party sent the Respondent a letter, dated March 16, 2009, which
stated that “on March 7, the Chicago and Midwest Regional Joint Board, to which Local 151 is
affiliated, disaffiliated from UNITE HERE and became an independent union.” The letter
asserted that despite this change, “[t]he Joint Board will continue all of its activities as
bargaining representative for the employees, including receiving dues . . . and representing
bargaining unit employees for grievances and negotiations.” The letter asked the Respondent
to advise the Charging Party “of any attempts by others to claim to represent your employees.”
The letter bore the signature of a manager of the Charging Party. It also bore what purported to

4 Lipsey’s testimony at trial supports an inference that she did not understand the nature of
the motion she signed. For example, the document states that the motion was adopted
pursuant to action by the “executive board” and “officers” of Local 151, but Lipsey testified that
she did not know who those terms referred to. Tr. 146-48.
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be Lipsey’s signature as “Local Union President,” but it was revealed at trial that the Charging
Party falsified Lipsey’s signature on the document without her knowledge. Indeed, Lipsey was
unaware of this document until over a year after the Charging Party sent it to the Respondent.
Soon thereafter, UNITE HERE asserted its own claim to be the entity with which the
Respondent had a continuing collective-bargaining relationship. John W. Wilhelm – a president
of UNITE HERE – stated in a March 26, 2009, letter to the Respondent that “Your collective
bargaining relationship is with UNITE HERE and that remains true.” The letter warned that
although “representatives of the affiliates trying to secede from UNITE HERE . . . may tell you
that you must recognize some other union . . . . it would be illegal to do so because you have a
continuing obligation to deal with the recognized UNITE HERE affiliate, which remains ready,
willing and able to perform all representative functions.” The letter explained that UNITE HERE
was challenging the disaffiliation in court and that, in any case, if the various joint boards were
no longer affiliates of UNITE HERE, the obligation of the local unions to be affiliated with the
joint boards had terminated, and the local unions had become “direct affiliates of UNITE HERE
International Union, the more common union structure.”
Wilhelm, in an April 20, 2009, letter to the Respondent, repeated some of the same
points, and told the Respondent to send the dues deducted from employees wages’ to “the local
union that services your bargaining unit (and not to a Joint Board), or place them in an escrow
account maintained by your company.” (Emphasis in Original). In two subsequent letters, dated
June 17 and July 14, 2009, Wilhelm discussed recent events in the dispute between UNITE
HERE and the Charging Party and asserted again that the unit employees were “represented by
a local union of UNITE HERE” and that it would be unlawful to remit the employees’ union dues
to the Charging Party. Wilhelm reiterated the suggestion that the Respondent place the union
dues deducted from employee paychecks into an escrow account pending the outcome of the
intra-union dispute and stated that if the Respondent did this UNITE HERE would not file a
claim in court for the dues. Wilhelm stated that the Joint Boards were only “intermediate” labor
organizations and that when there is no Joint Board in a local union’s area, the local union
chartered by UNITE HERE is directly affiliated with UNITE HERE.
The letters from Wilhelm notwithstanding, the record shows that subsequent to the
disaffiliation vote, no official from the international organization of UNITE HERE ever sought to
schedule bargaining with the Respondent, file a grievance on behalf of a unit employee, or
come to the facility to meet with the Respondent or employees.
V. Respondent Reacts to the Disaffiliation Vote
The Respondent’s human resources manager, Wrubel, in a letter dated March 17, 2009,
informed the Charging Party that the company was confused about the identity of the collective-
bargaining representative given the disaffiliation action by the Joint Board. The Respondent
asked the Charging Party to provide information and documents that the Respondent claimed
were necessary to help it determine the identity of the bargaining representative. The
Respondent stated that it was not refusing to recognize the Charging Party, but rather
attempting to ensure that it dealt only with the actual collective-bargaining representative of its
unit employees. Regarding a request by the Charging Party to meet about a grievance, the
Respondent asked that such a meeting be scheduled for a date after the issues regarding the
identity of the bargaining representative had been addressed. The Charging Party responded in
a March 30, 2009, letter from its attorney, Ronald Willis. Willis made an argument that the
Charging Party was the bargaining representative. He also included a response to the
Respondent’s requests for information and documents, although this response was largely
limited to statements that the information and documents sought were irrelevant or did not exist.
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The Respondent took a number of actions based on its uncertainty regarding
the identity of the bargaining representative. First, as stated above, it declined the Charging
Party’s request to meet regarding a grievance and has refused since March 17 to process
grievances filed by the Charging Party. Since about March 17, the Respondent has also
refused to allow representatives of the Charging Party to enter its premises to meet with
employees, investigate grievances, or otherwise represent the bargaining unit employees. After
April 20, 2009, the Respondent continued for a time to deduct union initiation fees and dues
from the wages of unit employees who had signed authorization cards, and offered employees
the opportunity to sign such cards. 5 However, the Respondent did not remit the dues to the
Charging Party, but rather, as suggested by UNITE HERE, placed those funds in an escrow
account where they remained at the time of trial. The Respondent also declined to provide the
Charging Party with lists of the unit employees from whom the dues had been deducted. On
April 20, the Respondent filed a petition with the NLRB to clarify the representational status of
the unit employees, and, on June 30, the Regional Director issued a letter dismissing the
petition. The Regional Director stated that “no question concerning representation exists,” but
noted that the dismissal did include a determination regarding the question of “whether the Joint
Board has actually seceded from UNITE HERE, or whether Local 151 remains affiliated with
UNITE HERE.”
Subsequently, by letter dated December 23, 2009, the Respondent notified UNITE
HERE and the Charging Party that, pursuant to the terms of the collective-bargaining
agreement, the company was terminating the collective-bargaining agreement effective upon its
expiration. The Charging Party, in a letter dated January 19, 2010, requested that the
Respondent commence negotiations for a new collective-bargaining agreement. In a separate
letter dated the same day, the Charging Party asked the Respondent to supply an updated
seniority list “in preparation for the upcoming contract negotiations.” The Respondent’s attorney
answered these requests in letters dated February 3 and 23, 2010. He stated that as long as
the dispute between the Charging Party and UNITE HERE regarding representational status
was not resolved, the Respondent would not schedule contract negotiations with either entity.
VI. Other Documentary Evidence Regarding the
Identity of the Bargaining Representative
The parties introduced other documentation that purportedly bears on the question of
which entity is the recognized bargaining representative. Unfortunately, that documentation is
largely self-contradictory or unclear. One welcome point of clarity is a letter dated February 20,
2003, in which an official of UNITE informed the Respondent that “Local 151 (UNITE)” was the
bargaining representative and would be “directly assisted by” the Chicago Joint Board. The
parties have stipulated that as of February 20, 2003, this letter was accurate, and that Local 151
was infact the bargaining representative at that time.
The General Counsel and the Charging Party both rely on the 2005-2010 collective-
bargaining agreement between the parties as evidence that, by the time that contract was
entered into, the Charging Party had taken over from Local 151 as the collective-bargaining
representative. However, that document provides what is at best a mixed message. The
preamble to the document states that the agreement is between “the Chicago and Midwest
Regional Joint Board, UNITE HERE” and the Respondent. However, the contract’s signature

5 The Respondent ceased deducting the dues after the March 1, 2010, expiration of the
collective-bargaining agreement.
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block makes no mention of the Joint Board, but rather has Monje signing exclusively for “UNITE
HERE” as “its bargaining representative.” Further clouding matters is the fact that both the
cover page of the agreement and a caption at the bottom of each of its 37 pages mention Local
151 as a party to the agreement. This language states that the agreement is between “Chicago
& Midwest Regional Joint Board UNITE HERE, Local 151 and Continental Line Services.” The
agreement also provides that two copies of the seniority list are to be provided “to the Union
(one (1) to Local No. 151 Bargaining Committee and one (1) to the International
Representative).” This suggests that Local 151 continued to be active as “the Union.” There is
no reference to the Joint Board in the agreement that is not also accompanied by a reference to
UNITE HERE.
Also relied upon by the General Counsel and the Charging Party is a document from
December 2007 that is entitled “Agreement to Reaffirm the Collective Bargaining Agreement.”
This document states that the parties have reviewed the Agreement “in light of current economic
conditions” and have found that its terms “inure to the benefit of the workers and the Employer”
and therefore “reaffirm that the terms” of the Agreement “remain in full force and effect and
incorporate the terms of that Agreement in this Reaffirmation Agreement.” The document is
signed by Brian Savoca, the Joint Board’s Michigan state director, on behalf of “Chicago &
Midwest Regional Joint Board, UNITE HERE!” The document makes no reference to Local 151,
and also makes no reference to the Charging Party that does not also refer to UNITE HERE.
The witnesses did not explain what circumstances led the parties to execute this agreement. I
find that neither the language of the agreement itself, nor any other evidence, suggests that this
agreement had anything to do with dissolving Local 151 or transferring Section 9(a)
representative status from Local 151 and/or UNITE HERE to the Joint Board.
The parties also submitted copies of 72 union cards that unit members signed in order to
accept union membership and authorize the Respondent to deduct union initiation fees and
dues from their wages. All of the cards signed after the UNITE HERE merger in July 2005,
including those signed after the Charging Party’s disaffiliation vote, state: “I . . . have voluntarily
accepted membership in the Union UNITE HERE, and designated said Union as my bargaining
agency in all matters pertaining to wages, hours and other conditions of employment.” The top
line of text on each of these cards reads “UNITE HERE!” in large letters, and under that, in
smaller letters, “Chicago & Midwest Regional Joint Board.” A majority of all the cards, including
about half of those signed since 2005, make reference to Local 151. Not one of the cards
makes reference to the Joint Board independent of a reference to UNITE or UNITE HERE.
None of the cards identify the Joint Board as the union in which the employee is accepting
membership.
The Respondent submitted copies of other documents to rebut the General Counsel’s
claim that the Charging Party replaced Local 151 as the recognized bargaining representative
after the UNITE HERE merger in July 2004. Among these are four extensions to the effective
period of the 2000 to 2005 collective-bargaining agreement. The last of these was executed on
February 22, 2005, and extends the agreement until March 19, 2005. All four identify the Union
as “Chicago and Midwest Regional Joint Board, UNITE HERE, Local 151 (‘UNITE’)” and are
signed by Monje on behalf of that entity. The Respondent also submitted copies of the business
cards that Klein, Monje, Monterrubio, and Savoca used during the relevant time period. All of
these have the words “UNITE HERE” in large print along the top of the card, and the words
“Chicago and Midwest Regional Joint Board” in smaller print along the left side.
The record also includes copies of checks that the Respondent, prior to the Joint Board’s
disaffiliation from UNITE HERE, used to transmit the initiation and membership dues deducted
from unit employees’ pay to the Union. These checks were made payable to “UNITE HERE –
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Martha Rucker, 333 South Ashland, Chicago IL 60607.” The checks did not mention the Joint
Board, but Rucker was an employee of UNITE HERE’s Joint Board, and the address given was
that of the Chicago office of that entity.
Discussion
There is no dispute in this case that the Respondent: refused to remit union fees and
dues to the Charging Party, refused to meet with the Charging Party over grievances, barred
representatives of the Charging Party from the facility where the unit employees worked,
refused to meet with the Charging Party to negotiate a successor collective-bargaining
agreement, and declined the Charging Party’s request for an updated seniority list. What is in
dispute is whether the Charging Party was the Section 9(a) representative of the unit employees
at the time the Respondent engaged in this conduct and whether the conduct therefore violated
the Respondent’s duty to recognize and bargain with the collective-bargaining representative of
its unit employees. The General Counsel contends that, following the July 2004 UNITE HERE
merger, Local 151 ceased to exist in any meaningful way and the Charging Party replaced it as
the Section 9(a) bargaining representative. In addition, the General Counsel contends that on
March 7, 2009, when the Joint Board voted to disaffiliate from UNITE HERE, the Charging
Party’s identity did not substantially change and that it, therefore, continued to be the Section
9(a) representative.6 The Respondent counters that the General Counsel and the Charging
party have failed to show that the Joint Board of UNITE HERE ever became the bargaining
representative of unit employees. Therefore, the Respondent argues, it does not matter
whether the Joint Board’s identity stayed substantially the same after the disaffiliation from
UNITE HERE.
The General Counsel as the party “asserting that [a Section 9(a)] relationship exists” has
“[t]he burden of proving the existence of [that] relationship.” Builders, Woodworkers &
Millwrights Local 1 (Glenn Falls Contractors Assn.), 341 NLRB 448, 453 (2004). Moreover,
since the parties have stipulated that Local 151 (UNITE) was the bargaining representative as of
February 20, 2003, the General Counsel also bears the burden of demonstrating that a change
in bargaining representative occurred. Yates Industries, 264 NLRB 1237, 1248 (1982); see also
Mountain Valley Care & Rehabilitation Center, 346 NLRB 281, 282 (2006) (party seeking to
avoid an otherwise binding bargaining obligation by asserting a change in the bargaining
representative bears the burden of demonstrating that change). For the reasons discussed
below, I conclude that although the Joint Board of UNITE HERE performed bargaining and other
representational activities, the record does not establish that it ever did this as the Section 9(a)
bargaining representative itself, as opposed to as an agent of the Section 9(a) bargaining
representative. Given the evidence presented at trial, it is just as likely that Local 151 and/or
UNITE HERE was the bargaining representative, and that the Joint Board of UNITE HERE
acted as the designated agent of the bargaining representative without displacing it.7

6 See Raymond F. Kravis Center for the Performing Arts, 351 NLRB 143, 147 (2007)
(“when there is a union merger or affiliation, an employer’s obligation to recognize and bargain
with an incumbent union continues unless the changes resulting from the merger or affiliation
are so significant as to alter the identity of the bargaining representative”), enfd. 550 F.3d 1183
(D.C. Cir. 2008); see also Laurel Baye Healthcare of Lake Lanier, 346 NLRB 159, 160 (2005)
(“’[D]isaffiliation, unaccompanied by evidence or offer of evidence of change in organic
structure, composition, or leadership of a labor organization does not tend to affect the identity
of the organization.’”), enfd. 209 Fed Appx. 345 (4th Cir. 2006).
7 I find only that the General Counsel has failed to meet its burden of showing, by a
preponderance of the evidence, that the Charging Party was the Section 9(a) bargaining
Continued
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The record evidence shows that Local 151 increasingly depended on employees of the
Joint Board of UNITE HERE to organize, coordinate and supervise its activities, but does not
show that Local 151 went out of existence following the July 2004 merger. The Board has
placed a high burden on those attempting to establish that a union is defunct. In Kent Corp.,
272 NLRB 735 (1984), for example, the Board considered a situation where a labor organization
had “no . . . members; no membership applications; no initiation fees; no dues; no treasury; no
bank account; no books or records, meetings, or recent (if any) election of officers; and no
information available to employees regarding . . . contract negotiations or attempts to enforce
the collective-bargaining agreement.” Id. at 735-36. Even under those extreme circumstances,
the Board refused to find that the labor organization was defunct because an official had
testified that the organization was willing to continue to represent the unit employees, and
because there was no evidence that the organization “was called on and failed to act on unit
employees' behalf.” The decision about a labor organization's willingness and ability to
represent employees is made “regardless of the relative inactivity of a labor organization.” Kent,
272 NLRB at 736.
In the instant case, the evidence does not show that Local 151 took any overt action to
dissolve itself or transfer its status as bargaining representative to another entity. To the
contrary, the record shows that, UNITE HERE’s president, in a letter dated March 26, 2009,
stated that its recognized affiliate remained “ready, willing and able to perform all representative
functions” at the Respondent’s facility. The record shows that, after the July 2004 UNITE HERE
merger, Local 151 continued to be an active participant in negotiations for a new collective-
bargaining agreement. In particular, Lipsey, the president of Local 151, and two Local 151
union stewards were on the union bargaining team that negotiated the most recent collective-
bargaining agreement. That agreement was not executed until October 27, 2005 – 15 months
after the merger that the General Counsel contends sounded the death knell for Local 151. In
the interim, the parties executed extension agreements that identified the bargaining
representative as “Chicago and Midwest Regional Joint Board, UNITE HERE, Local 151.”
When a successor agreement for the 2005 to 2010 period was reached, every page of the
agreement identified Local 151 as a party. In addition, after the 2004 merger, Lipsey continued
to meet with the Respondent on behalf of unit employees in order to resolve disputes with the
company. Following the July 2004 merger, Lipsey also helped when a unit employee wanted to
prepare a formal grievance, although personnel of the Joint Board of UNITE HERE assumed all
responsibility for pursuing formal grievances.
Not only does the record show that Local 151 continued to engage in representational
activities after the July 2004 merger, but it is also clear that it continued to exist as an entity
under the UNITE HERE constitution. The UNITE HERE constitution provides that Local 15 “may
not . . . go out of existence” or “dissolve” without the “prior consent” of UNITE HERE’s General
Executive Board. The General Counsel has not shown that UNITE HERE ever authorized Local
151 to go out of existence and, based on the record here, it is fair to infer that UNITE HERE did
not do so. Thus, pursuant to the UNITE HERE constitution, Local 151 continues to exist as a
local union chartered by UNITE HERE. The UNITE HERE constitution is significant evidence
since the question of which entity is the Section 9(a) representative largely hinges on how one
construes the relationships between Local 151, the Joint Board and UNITE HERE, and the
UNITE HERE constitution defines those relationships.8
_________________________
representative at the relevant time. This should not be interpreted as encompassing a finding
that any particular entity was, or was not, the Section 9(a) representative.
8 The constitutions of both UNITE HERE and the Joint Board provide that the UNITE HERE
Continued
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The evidence also shows that others viewed Local 151 as an active entity after the July
2004 merger. Most notably, the Joint Board itself took actions in which it treated Local 151 as a
continuing player in the representation of unit employees. For example, the Joint Board invited
Lipsey to attend the disaffiliation meeting in March 2009, and an employee of the Joint Board
sought out Lipsey and urged her to sign a disaffiliation motion on behalf of Local 151’s
Executive Board.9 Similarly, when, by letter of March 16, 2009, the Charging Party informed the
Respondent that it had disaffiliated from UNITE HERE but planned to “continue all of its
activities as bargaining representative,” it made a point of claiming that Local 151 was affiliated
with the Charging Party, and included a signature line for the president of Local 151. Indeed,
the Charging Party considered it so important to give the impression that this letter represented
the position of Local 151 that, as discussed earlier, it went so far as to falsify Lipsey’s signature
on the document. Similarly, record evidence supports the view that employees were under the
impression that Local 151 continued to exist as an entity that had a role in their representation.
The majority of the union cards that the unit employees signed to authorize the Union to act as
their representative made reference to Local 151, and this includes handwritten reference on
about half of the cards signed from the time of the UNITE HERE merger on July 9, 2004, until
the time of disaffiliation vote on March 7, 2009.
In reaching the conclusion that the General Counsel has failed to show either that Local
151 is defunct or that it has been replaced as the bargaining representative, I considered the
evidence that, by 2005, employees of UNITE HERE’s Joint Board were performing most of the
representational duties of Local 151. However, that does not mean that the Joint Board had
supplanted Local 151 as bargaining representative. A collective-bargaining representative has
the right to choose whomever it wants to represent it, Nevada Security Innovations, Ltd., 341
NLRB 953, 955 (2004); Goad Co., 333 NLRB 677, 679-80 (2001), and this includes the right to
confer authority to act in its behalf upon the officers and members of another labor organization.
National Upholstering Co., 311 NLRB 1204, 1208 n.7 (1993). A bargaining representative’s
delegation of duties to an agent does not, however, transfer Section 9(a) status to the agent that
acts pursuant to the delegation. See, e.g., Mountain Valley Care & Rehabilitation, 346 NLRB at
281-82, Nevada Security, 341 NLRB at 956, and Sherwood Ford, 188 NLRB 131, 133-34
(1971). To the contrary, if Local 151 and/or UNITE HERE had delegated functions to such an
extent as to constitute a transfer of Section 9(a) representational status to the Joint Board, that
transfer would be void and the Respondent would not violate the Act by refusing to bargain with
the Charging Party. See, e.g., Nevada Security, supra, Goad Co., 333 NLRB at 677 n.1 and
679-80, and Sherwood Ford, supra; see also Reading Anthracite Co., 326 NLRB 1370, 1371
(1998) (a bargaining representative may delegate its representational duties, but not its
representational responsibilities). As the General Counsel acknowledges in its brief, such a
transfer would be void because only employees have the statutory power to confer Section 9(a)
status on a chosen representative. Brief of General Counsel at Page 16.
Even if the evidence showed that Local 151 was defunct, the General Counsel would still
not have proven a violation since the record does not show that the Joint Board was the entity
that would have replaced Local 151 as the bargaining representative. Based on the record
evidence it is at least as likely that, if Local 151 ceased to function as the bargaining
representative, UNITE HERE was the successor collective-bargaining representative and the
Joint Board merely an intermediate union to which UNITE HERE had delegated
_________________________
constitution is the superior, controlling, document.
9 As discussed earlier, Lipsey signed this document but her testimony indicated that she did
not understand, and may not have even read, it.
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representational duties. It is true that the individuals who performed those representational
duties were employed at the Joint Board level, and were not members of UNITE HERE’s
international staff, but under the precedent discussed above that does not mean that those
individuals were performing the work as officials of the Joint Board as bargaining representative,
rather than as agents of UNITE HERE. See, e.g., Mountain Valley Care & Rehabilitation, supra,
Nevada Security, supra, and Goad, supra. Indeed, the record indicates that Monje, Klein,
Monterrubio and the other individuals employed at the Joint Board level were seen by Local 151
and the unit members as agents of UNITE HERE, rather than as officials of the Joint Board
acting as bargaining representative. Lipsey testified that her understanding was that the entity
that had taken over the day-to-day contract administration was “UNITE HERE,” not the Joint
Board. Indeed, Lipsey testified that she had “never really heard much” about the Joint Board
until the instant dispute arose. This is consistent with the business cards used by Monje and
other employees of the Joint Board of UNITE HERE, which reference UNITE HERE more
prominently than they do the Joint Board. Similarly, the union authorization cards that
bargaining unit employees signed during this period specifically state that the bargaining
representative the employees were authorizing was “UNITE HERE,” not the Joint Board. There
is no evidence that prior to the disaffiliation any unit member was operating under the
understanding that the Joint Board had become his or her bargaining representative, or that any
unit member had authorized the Joint Board to do so. Indeed, even the Joint Board’s own
constitution defines a “local” as “a local union of UNITE HERE,” not of the Joint Board.
The Respondent argues that the Charging Party’s actions in March 2009 – including the
request that the Respondent agree to strike all references to UNITE HERE from the collective-
bargaining agreement, the presentation to Lipsey of a disaffiliation motion for Local 151, and the
falsification of Lipsey’s signature on the Charging Party’s March 16 letter to the Respondent –
“demonstrate an attempt to contrive exclusive 9(a) status at or near the time of the disaffiliation.”
Brief of Respondent at Page 19. The Respondent further argues that “if exclusive 9(a) status
was clearly established as early as 2005, there would be no need” for such actions and that
those actions therefore “act as admission that the conduct and documents that the General
Counsel and the [Charging Party] now rely on to establish 9(a) status are insufficient.” I agree
to the extent that I view these actions by the Charging Party as part of last minute effort to
generate evidence in support of its claim to be the exclusive bargaining representative at the
time of the disaffiliation. This effort suggests that the Charging Party had doubts that what had
happened prior to March 2009 was sufficient to transfer exclusive bargaining representative
status to the Joint Board.
The General Counsel’s argument that the Joint Board had become the bargaining
representative well before March 2009 relies heavily on language in the 2005-2010 collective-
bargaining agreement and the December 2007 reaffirmation of that agreement. Examination of
the collective-bargaining agreement shows that it provides, at best, a mixed message regarding
the identity of the bargaining representative. The General Counsel makes its argument by
focusing narrowly on the opening paragraph of the collective-bargaining agreement. That
paragraph states that the agreement is between “the CHICAGO and MIDWEST REGIONAL
JOINT BOARD, UNITE HERE . . . and CONTINENTAL LINEN SERVICES.” The General
Counsel contends that this language means that the Joint Board was the bargaining
representative, and that UNITE HERE was merely an entity with which the Joint Board was
affiliated at the time. However, even if this were the only relevant language in the contract, it
would not be persuasive support for the General Counsel’s position because the language can
also reasonably be read as referring to UNITE HERE as the bargaining representative and to
the Joint Board merely as an agent affiliated with UNITE HERE. Cf. Vermont Marble Co., 301
NLRB 103, 103 n.1 (1991) (language referencing both the locals and the international union
does not establish that the locals were the bargaining representatives because that language is
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equally consistent with finding that the international union was the bargaining representative and
that the locals were the internationals’ agents, not the representatives in their own right).
Looking beyond the portion of the collective-bargaining agreement relied upon by the
General Counsel, I find that the contract not only fails to establish that the Joint Board became
the collective-bargaining representative, but that the contract is more reasonably read as
indicating that UNITE HERE became the bargaining representative. Specifically, the signature
block of the contract makes no reference at all to the Joint Board. Rather the contract is
executed by Monje on behalf of “UNITE HERE.” This supports the view that if any entity had
replaced Local 151 as the bargaining representative that entity was UNITE HERE, not the Joint
Board. See National Upholstering Co., 311 NLRB at 1204-05 (local union was not a party to
collective-bargaining agreement even though contract made reference to the local union and an
official of local union signed the agreement, where the signature block provides that the official
was acting as an agent of the bargaining representative when he signed).
The General Counsel’s argument based on the contract language is further undercut by
the way that the parties to the agreement are identified on the cover page and at the bottom of
each page of the contract. These portions state that the agreement is between the employer
and “Chicago and Midwest Regional Joint Board Unite Here, Local 151.” This indicates that the
parties saw Local 151 as an ongoing entity and weighs against acceptance of the General
Counsel’s contention that Local 151 was defunct. The same understanding is communicated,
perhaps even more clearly, by the language in the contract stating that two copies of the
seniority list are to be provided “to the Union (one (1) to Local No. 151 Bargaining Committee
and one (1) to the International Representative).”
To sum up, the 2005-2010 collective-bargaining agreement, far from establishing by a
preponderance of the evidence that the Joint Board had become the exclusive bargaining
representative, can most reasonably be read as indicating that Local 151 might still be the
bargaining representative and that, if any entity had replaced it, the new entity was UNITE
HERE. Certainly, the collective-bargaining agreement does not outweigh the other evidence,
discussed above, which favors finding that the General Counsel has failed to show that the Joint
Board ever became the exclusive bargaining representative.
The General Counsel and the Charging Party also argue that the “Agreement to
Reaffirm the Collective Bargaining Agreement” that was executed in December 2007 shows that
the Joint Board had become the bargaining representative. No evidence besides the
reaffirmation document itself was presented to explain the affirmation agreement or its intent.
The reaffirmation agreement identifies the parties as the employer and “Chicago & Midwest
Regional Joint Board, UNITE HERE!” This is essentially the same way that the parties were
identified in the opening paragraph of the collective-bargaining agreement itself. As discussed
above, that language can be read as indicating either that the Joint Board had become the
bargaining representative (and that reference to UNITE HERE merely acknowledges the
affiliation), or that UNITE HERE had become the bargaining representative (and that reference
to the Joint Board merely acknowledges the agent affiliated with UNITE HERE). Thus this
language, especially when considered with the evidence of how the same language was used in
the collective-bargaining agreement, fails to provide support for the General Counsel’s
contention that the Joint Board’s role had been elevated from that of the bargaining
representative’s agent, to that of the collective-bargaining representative itself.
The General Counsel also argues that any challenge to the Charging Party’s claim to be
the bargaining representative is untimely because that challenge comes outside the 6-month
limitations period under Section 10(b) of the Act. It contends that if an exclusive bargaining
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representative transfers its Section 9(a) status to another labor organization, the employer must
make any challenge to that transfer within the 6-month limitations period under Section 10(b).
Brief of General Counsel at Page 17.10 This argument is not persuasive for at least two reasons.
First, as discussed above, the General Counsel has failed to show that Local 151, UNITE
HERE, or any other entity, transferred Section 9(a) bargaining status to the Joint Board, or that
the Joint Board was otherwise elevated to the position of bargaining representative. As the
General Counsel concedes, there was no agreement between Local 151 and the Joint Board to
transfer status as bargaining representative. Brief of the General Counsel at Page 18. There
was, in other words, no action that the Respondent had an opportunity to challenge within the
Section 10(b) period. All the record evidence shows is that the bargaining representative
delegated representational duties to its chosen agent – something that the bargaining
representative was entitled to do and to which the Respondent did not have a valid objection.
Even assuming that the General Counsel had succeeded in showing that Local 151
and/or UNITE HERE transferred Section 9(a) status to the Charging Party, the 6-month
limitations period would not have started to run until the Respondent received “clear and
unequivocal” notice of the transfer. RPC, Inc. 311 NLRB 232, 234-35 (1993) (Section “10(b)
period commences only when a party has clear and unequivocal notice of the action giving rise
to an alleged violation of the Act.”); see also Mine Workers Local 17, 315 NLRB 1052 (1994)
(Section 10(b) period is tolled until there is either actual or constructive notice of the alleged
unfair labor practice.). The record does not show that, prior to receiving the Charging Party’s
letter of March 16, 2009, the Respondent had been notified of the supposed transfer of Section
9(a) representative status from Local 151 and/or UNITE HERE to the Charging Party. Even
then the Respondent only had notice that the Charging Party was claiming that Section 9(a)
status had been transferred to it – not notice that Local 151 and/or UNITE HERE was claiming
to have made such a transfer. To the contrary, UNITE HERE denied that Section 9(a) status
had been transferred to the Charging Party and warned the Respondent that treating the
Charging Party as the bargaining representative would be unlawful. In addition, Lipsey, the only
officer of Local 151, stated that she had hardly even heard of the Joint Board prior to the instant
dispute, and thus it is fair to infer that Local 151 did not notify the Respondent that it was
transferring Section 9(a) status to the Joint Board. Given that no bargaining representative
notified the Respondent that it was transferring Section 9(a) status to the Joint Board, I believe
that at the time of trial the Respondent still had not received notice of an attempted transfer of
such status, and certainly had not received notice prior to the 6-month limitations period.
At any rate, the Respondent did not wait 6 months to challenge the Charging Party’s
March 2009 assertion that it had become the collective-bargaining agreement. To the contrary,
in a March 17 letter, the Respondent expressed doubts about the Charging Party’s claim to be
the exclusive bargaining representative and asked the Charging Party to supply information that
would help the Respondent resolve those doubts.
The General Counsel claims that by early 2005 the Respondent had notice that Section
9(a) representational status had been transferred to the Charging Party because by that time
the Joint Board was performing all representational duties. This argument fails as a matter of

10 In support of this proposition, the General Counsel cites Machinists Local Lodge 1424 v.
NLRB (Bryan Mfg. Co.), 362 U.S. 411, 416-17, 419 (1960); Raymond F. Kravis Center, 351
NLRB at 144 and fns. 8 and 9; Alpha Associates, 344 NLRB 782, 783 (2005). However, at least
one decision rejects the notion that Section 10(b) precludes the use of pre-limitations period
bargaining history to determine which entity is the bargaining representative. Mountain Valley
Care & Rehabilitation, 346 NLB at 282-83 and 289-91.
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both fact and law. As discussed above, the record indicates that after early 2005, Local 151 was
an active participant in contract negotiations. It also continued helping employees to work out
disputes with the employer, although it generally did this through informal meetings between
Lipsey and the Respondent rather than through formal grievances. Under the contract, Local
151 continued to be entitled as “the Union” to receive seniority lists from the Respondent.
Moreover, after 2005, the Charging Party took actions that presented Local 151 to the
Respondent as an entity with continuing representational responsibilities. For example, the
Charging Party’s March 16, 2009, letter to the Respondent regarding the disaffiliation from
UNITE HERE was presented as coming from both the Charging Party and Local 151. Similarly,
the Respondent prepared a disaffiliation motion by which Local 151 ostensibly expressed its
support for the disaffiliation. Thus the record does not show that, outside the 6-month charging
filing period, the Joint Board had taken over all representational duties from Local 151, and
certainly does not show that the Respondent would reasonably have understood that such a
takeover of duties had occurred. The General Counsel’s argument also fails as a matter of law
since even if Local 151 is seen as having delegated its representational duties to the Joint
Board that delegation would not legally constitute a transfer of Section 9(a) representational
status to the Joint Board. See, e.g., Mountain Valley Care, supra, Nevada Security, supra,
Goad Co., supra., Sherwood Ford, supra.
The General Counsel argues that the 2005-2010 collective-bargaining agreement and
the Agreement to Reaffirm the Collective Bargaining Agreement show that, outside the
limitations period, the Respondent had recognized, or acquiesced in, the transfer of Section 9(a)
representational status to the Joint Board. This argument is not persuasive. As discussed
above, the collective-bargaining agreement does not give notice of such a transfer since it fails
to establish that Local 151 ceased to be the Section 9(a) bargaining representative and also
indicates that if that status had been transferred the most likely recipient was UNITE HERE, not
the Joint Board. Similarly, the language of the reaffirmation agreement does not rebut UNITE
HERE’s claim that the Respondent’s bargaining relationship was with UNITE HERE, not the
Charging Party. Thus, neither of these documents gave the “clear and unequivocal” notice
necessary to start the limitations period running.
For the reasons stated above, I find that the General Counsel has failed to establish by a
preponderance of the evidence that the Charging Party ever became the collective-bargaining
representative of unit employees. The Respondent therefore, was not shown to have violated
the Act when, confronted with the competing claims to representative status by the Charging
Party and UNITE HERE, it refused the Charging Party’s attempt to bully it into taking sides
against UNITE HERE. Since the General Counsel has not shown that the Respondent was
required to recognize and bargain with the Charging Party, it has not shown that the
Respondent’s failure to do so in the respects alleged in the complaint was a violation of Section
8(a)(5) and (1) of the Act. Moreover, given that during the relevant time period the Charging
Party was operating independently of UNITE HERE, the General Counsel has failed to show
that the Charging Party was an agent of the collective-bargaining representative for purposes of
compliance with any terms or conditions of the collective-bargaining agreement. Therefore, the
complaint in this case should be dismissed in its entirety.
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Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Charging Party is a labor organization within the meaning of Section 2(5) of the
Act.
3. The evidence does not establish that the Charging Party was the Section 9(a)
bargaining representative of the unit employees.
4. The record does not show that the Respondent violated Section 8(a)(5) and (1) when
it: refused to pay union fees and dues to the Charging Party; refused to meet with
representatives of the Charging Party to negotiate a collective-bargaining agreement or process
grievances; denied the Charging Party’s representatives access to the Respondent’s facility;
and refused to comply with the Charging Party’s request for an undated seniority list.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 15, 2010
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PAUL BOGAS
Administrative Law Judge