Crystal Linen & Uniform Service, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1985

274 N.L.R.B. 946 (N.L.R.B. 1985)

946 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Crystal Linen & Uniform Service , Inc. and Kathleen
L. Fry
Crystal Linen & Uniform Service , Inc. and Team-
sters, Chauffeurs. Warehousemen and Helpers
Union Local No. 524. Cases 19-CA-15746 and
19-RD-1990
14 March 1985
ballot and the ballots of Randal Boettcher, Robert
Hayward, Dennis Lantis, Pete Rodriguez, James
Selzer, Douglas Hatten, Roger McCarity, Mary-
Carlyn Smith, James Wilfert, and John B. Riddle,
and thereafter prepare and cause to be served on
the parties a revised tally of ballots, on which basis
he shall issue the appropriate certification.
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 October 1984 Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The Charging Party filed exceptions and a support-,
ing brief, to which the Respondent filed an answer-
ing brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings' and
conclusions2 and to adopt his recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
IT IS FURTHER ORDERED that the challenges to
ballots cast by Ken Wear, Jack Carey, Wyman An-
derson, Paul Wangler, Bob Bieren, and Mark Rog-
stad be sustained.
IT IS FURTHER ORDERED that the challenge to
the ballot cast by James Wilfert be overruled and
that his ballot be opened and counted.
DIRECTION
IT IS DIRECTED that the Regional Director for
Region 19 shall, within 10 days from the date of
this decision , open and count the one unchallenged
i In the portion of his decision entitled "Statement of the Case," the
judge inadvertently stated that there were 20 challenged ballots following
the 1 December 1983 election The record shows that there were 19 chal-
lenged ballots and I unchallenged ballot and that all 20 ballots were im-
pounded
2 The judge found that employees Wear, Carey, Anderson, Wangler,
Bieren , and Rogstad were ineligible to vote in the 1 December 1983 elec-
tion because, by accepting permanent employment with a competitor and
soliciting the Respondent's customers to cease doing business with the
Respondent and do business with its competitor, they evidenced an intent
to abandon their jobs with the Respondent Alternatively, the judge
found that the ballots cast by these employees should be disallowed as
the Respondent could have properly discharged them on the basis of
their soliciting activities prior to the election (although it did not) The
Charging Party has excepted, inter alta , to this alternative finding, con-
tending that such a finding is contrary to Board precedent, which holds
that an employee is eligible to vote in the absence of any action to termi-
nate the employment relationship See, e g, Miami Rivet Co, 147 NLRB
470, 483-484 (1964) We agree Thus, in adopting the judge's finding that
the above-named employees were ineligible to vote in the 1 December
1983 election in which the Respondent's employees participated. we rely
solely on his finding that these employees were ineligible to vote because
they evidenced an intent to abandon their jobs with the Respondent
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Yakima, Washington,
on June 12, 1984,' pursuant to a complaint issued by the
Regional Director for the National Labor Relations
Board for Region 19 on May 30, 1984. In addition, on
May 30, 1984, the Regional Director ordered consolidat-
ed certain issues arising fro,n an election in Case 19-RD-
1990.2 The complaint, based on a charge filed on May 27
by Teamsters, Chauffeurs, Warehousemen and Helpers
Union Local No. 524 (the Union) alleges that Crystal
Linen and Uniform Service, Inc. (Respondent or Crystal)
has engaged in certain violations of Section 8(a)(1) of the
National Labor Relations Act.
The petition was filed [by Kathleen Fry] on May 10
and sought an election among Respondent's driver-sales-
men. An election was held pursuant to a Stipulation for
Certification Upon Consent Election on December 1.
Objections to conduct affecting the outcome of the elec-
tion were filed by the Employer3 on December 7. In ad-
dition, it appears from the tally of ballots that 20 votes
were challenged and 8 remain in issue, and that they are
sufficient in number to affect the outcome of the elec-
tion.
Issues
Case 19-CA-15746
Whether Respondent violated the Act by threatening
with discipline and discharge certain of its employees
who, while on strike, accepted employment with Crest
Linen Rental, a competitor of Respondent and, in the
course of their employment with Crest, did solicit Re-
spondent's customers to abandon Respondent and do
business with Crest.
Case 19-RD-1990
Whether certain employees abandoned their employ-
ment and forfeited their right to vote in an RD election
when, while engaged in an economic strike for less than
1 year, they accepted employment with a competing
business doing identical or nearly identical work, and
where, in the course of their employment, these employ-
ees did solicit their former customers to switch their
business to the competitor, and where at least some of
' All dates refer to 1983 unless otherwise indicated
2 These two matters are all that remain of several cases involving Re-
spondent The other cases were disposed of by settlement or by dismissal
order of the Regional Director prior to hearing
2 The Union's challenges are not now in issue
274 NLRB No. 137
CRYSTAL LINEN SERVICE
those customers solicited did make the change and
signed new standard contracts with the competing busi-
ness.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. A
brief, which has been carefully considered, was filed on
behalf of the General Counsel. For its brief, Respondent
adopted a portion of a letter dated October 11, sent to
the Union by the Acting Regional Director refusing to
issue a complaint in the present case.4 It, too, has been
carefully considered.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent admits that it is a Washington corporation
which operates a business, cleaning and supplying uni-
forms, with an office and place of business located in
Yakima, Washington. It further admits that during the
past year, in the course and conduct of its business, sales
of goods and services exceeded $500,000 and that annual-
ly it sells and ships goods and materials to customers out-
side the State of Washington, or sold and shipped goods
or provided services to customers within the State,
which customers were themselves engaged in interstate
commerce by other than indirect means, of a total value
of in excess of $50,000. It further admits that during the
past year, in the course and conduct of its business, it
purchased and caused to be transferred and delivered to
its facilities within the State of Washington goods and
materials valued at in excess of $50,000 directly from
sources outside the State, or from shippers within the
State which, in turn, obtained such goods and materials
directly from sources outside the State. Accordingly it
admits, and I find, that it is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Teamsters , Chauf-
feurs, Warehousemen and Helpers Union Local No. 524
is a labor organization within the meaning of Section
2(5) of the Act.
Iii. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts5
Teamsters Local 524 and Crystal Linen have had a
long collective-bargaining relationship. The last collec-
tive-bargaining agreement expired October 1, 1982 (G.C.
Exh. 2). Negotiations for a new collective-bargaining
agreement have been unsuccessful. On February 28, the
Employer made its last offer which was rejected by
Local 524 (G.C. Exh. 3).
4 Apparently, this decision was reversed on administrative appeal
5 The facts are taken directly from the parties' stipulation and are un-
disputed
947
On April 4, the Employer implemented its last and
final offer Meanwhile, an interim agreement was signed
by Local 524 and Crest Linen, a competitor of Crystal's,
which ultimately resulted in a new agreement effective
from October 1, 1982, to October 1, 1985
On April 25, certain Crystal Linen route driver sales-
men struck and were immediately permanently replaced
and were so informed. On the following dates certain
striking Crystal Linen route driver salesmen went to
work for Crest Linen, and solicited customers of Crystal
to switch to Crest, which switch some customers of
Crystal made. Paul Wangler, May 3, 1984; Wyman An-
derson, May 4, 1984; R. M. Bieren, May 9, 1984; Mark
Rogstad, May 11, 1984 In soliciting the above Crystal
customers, the above-named driver salesmen did not dis-
parage Crystal Linen or its product.
About May 20 or 21 the following persons received a
letter from Crystal Linen: Wangler (G.C. Exh. 5), An-
derson (G.C. Exh 6), Bieren (G.C. Exh. 7), Rogstad
(G.C. Exh. 8). The letters, identical except for the ad-
dressee, read as follows:
Crystal Linen & Uniform Service
930 North 5th Avenue-PO Box 2789
Yakima, Washington 98907
Paul Wangler
504 N. 9th Street
Selah, WA 98942
Dear Mr. Wangler:
When the strike began on Monday, April 25, and
during the weeks following the inception of the
strike, we became aware that you were apporoach-
ing the customers on your route. You urged them
to support the striking drivers and to refuse to do
business with Crystal until the dispute was settled.
We believe the information you related to those
customers contained many untruths about the issues
leading to the strike. We did not like this conduct
and believed it ill advised and against the long term
interest of both you and the company.
We were advised and it is our understanding that
employees are given considerable latitude in stating
their positions to the public and customers in at-
tempting to convince them that your employer is
unfair to you. We respected your rights and ignored
your actions.
Now your conduct has gone beyond that which
is tolerable even in a labor dispute You have ac-
cepted employment with Crest, our only competitor
in the Yakima area. While in the employment of
Crest you have contacted the customers on your
route at Crystal and urged them to cease doing
business with Crystal and begin business with Crest
with you servicing them. You have in fact persuad-
ed our customers to discontinue business with us
and use Crest. We feel that this conduct is aimed at
the destruction of our business. That conduct is
equally as destructive to your interests as ours. It
manifests a disloyalty which cannot be tolerated By
your own conduct you seek to terminate the em-
948 DECISIONS OF NATIONAL "L"ABOR RELATIONS BOARD
ployment relationship with Crystal. You fail to re-
spect our rights while seeking to exercise yours.
Under the terms of the old contract and the
present terms, you cannot work as a route driver
for another laundry in the same area and customers
We believe that under the expired collective bar-
gaining agreement and the terms of the offer we
have implemented, we have the absolute right to
discharge you for "other misconduct so serious as
to not require a warning letter " However, you
have been a good employee for several years and
we wish to give you the benefit of this letter and
reflection on, it.
This will serve as a formal written warning that
your conduct as described above is not tolerable
and must cease. We must have written assurances
from you that you have ceased such conduct, re-
turned all customers to Crystal, your employer, and
will not engage in such conduct again. Those assur-
ances must be received, by the close of business at
1:00 p.m 'Monday, May 23, 1983. If you decline to
,do so we will consider further discipline up to and
including discharge.
This letter should not be construed as precluding
a determination that you are ineligible for reinstate-
ment Any such decision must be made at the time
an unconditional offer to return to work is made
and be based on the totality of the situation.
We have no objection to your taking interim em-
ployment even with a competitior [sic]. Our objec-
tion lies solely with, the. fact that your conduct in
enticing business from your route at Crystal to
Crest is aimed at the destruction of our business and
manifests an ultimate disloyality [sic].
Sincerely yours,
/s/ Walt Hanthorn
[G C. Exh. 5 ]
B. Analysis and Conclusions
1 Case 19-CA-15746
The gist of this case is whether the above letter sent to
the four driver-salesmen named above violated Section
8(a)(1) of the Act. Contrary to the General Counsel, I
find no violation of the Act and will recommend that
this portion of the case be dismissed.
At page 2 of his brief, the General Counsel refers to
"interim" employment of the four individuals I note that
paragraph 6 of the complaint also refers to "interim" em-
ployment (G.C Exh. fff), but that this portion of the al-
legation is denied by Respondent in its answer. (G C.
Exh. mmm.) There is no proof in the record that the em-
ployment was "interim." Rather, I find that the employ-
ment at issue was permanent. (See stipulation of parties,
R Br 64-66 which takes precedence over the General
Counsel's characterization of the employment relation-
ship at Crest, as "interim.") Thus, to frame the issue I
would state it as follows. Absent disparagement, is the
mere solicitation of customers to switch their business to
a competitor protected concerted activity under the facts
and circumstances of this case?
First of all, there is no evidence that, in soliciting their
former customers, the employees in question were en-
gaged in concerted activities Rather, it appears from the
record that each went individually to his former custom-
ers and attempted to induce the customer to switch alle-
giance to a competitor. It could not reasonably be
argued that solicitation of former customers contributed
to the advancement of strike goals or to union solidarity.
The purpose of activity was to advance individual goals
and objectives, rather than any group benefit. This, of
course, is a fatal defect at the outsets
Respondent has written in its letter to the driver-sales-
men as reflected above that "We have no objection to
your taking interim employment even with a competi-
tor." Accordingly, there is no issue presented as to
whether the mere employment by a competing company
is a protected activity.7 I also need not consider the
General Counsel's contention (Br. 2.), "it is not disloyal
conduct for the permanently replaced strikers to seek
employment consistent with their skills and abilities and
under conditions to which they have been accustomed
before the strike." I note, however, there is authority to
suggest that working for a competitor may not be a pro-
tected activity 8 In any event, none of this need be de-
cided. The present case presents an additional fact which
turns the case in favor of Respondent.
Here, the four employees affirmatively solicited their
former customers to switch their business from Crystal
to Crest The mere fact the employees were on strike or
did not disparage the service of Crystal cannot be said to
be a defense to this unprotected activity In Associated
Advertising Specialists, 232 NLRB 50 (1977), an employee
was on a layoff status . He then went into business for
himself competing with the employer. Then, he bid
against the employer for the business of its principal cus-
tomer. While the employee was unsuccessful in the bid-
ding process, it was found that he had caused the em-
ployer to lose the customer to a third party The Board
affirmed the dismissal of the case. (Id. at 54.)9 In Kenai
Helicopters, 235 NLRB 931, 936 (1978), the Board af-
firmed a finding that two employees were properly dis-
charged because the employer reasonably believed that
they were going to use a strike to divert respondent's
business to a competitor whom they were going to join.
This precedent also supports dismissal of the present
case
6 See Myers Industries, 268 NLRB 493 (1984), compare Midstate Tele-
phone Corp, 262 NLRB 1291 (1982), enfd in part 706 F 2d 401 (2d Cir
1983)
' Further, I have not considered whether Respondent was correct in
stating in the letter, "Under the terms of the old contract and the present
terms, you cannot work as a route driver for another laundry in the same
area and customers " Assuming, arguendo, Respondent was correct, and
assuming further that such a provision survives the expiration of the
labor agreement, I find that Respondent clearly waived any issue as to
those matters by stating in the letter that it does not object to employ-
ment with a competitor
8 Valley Forge Flag Co, 158 NLRB 1227 (1966), Mike O'Connor Chev-
rolet-Buick-GMC Co, 209 NLRB 701, 708-709 (1974), enf denied on
other grounds 512 F 2d 684 (8th Cir 1975) Unlike the employees in the
instant case , the employees in the cases above were not engaging in an
economic strike at the time of the employment with a competitor
8 See also Merle Lindsey Chevrolet, 231 NLRB 478 485 (1977)
CRYSTAL LINEN SERVICE
I conclude by noting two aspects of the case that are
not relevant. First, as stated above, some of the Crystal
customers solicited to change to Crest did so. Even
where unsuccessful. however, solicitation of an employ-
er's customers may be properly disciplined. Second, also
as noted above, in making their solicitations, the employ-
ees did not disparage Crystal. To be sure, there are cases
which discuss in the context of concerted activities dis-
paragement of a company's service or product. This may
or may not be protected activity.10 However, this case is
something quite different, not only because I have found
no concerted activities, but also because I have found
that employees who compete with their employer and
who solicit the employer's customers to switch to the
competitor are disloyal and may properly be disciplined
or threatened with discipline. I i
2. Case 19-RD-199012
After the C case concluded, the parties first divided
the RD case into two parts. One aspect of it related to
whether the ballots of strike replacement should be
counted. As I understand the record, that aspect of the
case was settled by stipulation of the parties and there is
nothing before me to decide. The stipulation is reflected
as follows-
MR. WACKER- As far as the strike replacements
who voted and were challenged by the Union, and
I'm going to use names in listing all of this, I think
we have a stipulation to resolve all of those out-
standing challenges.
The Union is at this time withdrawing its chal-
lenge to the following named employees. I'm going
to read these in the order in which they appear in
the May 30th reissued report on challenged ballots
and objections and direction of hearing. The Union
hereby withdraws its challenge to Randall
Boettcher . . . The Union hereby withdraws its
challenge to Robert Hayward. The Union hereby
withdraws its challenge to Dennis Lantis . . . . The
Union hereby withdraws its challenge to Pete Ro-
driguez. The Union hereby withdraws its challenge
to James Selzer . . . . The Union hereby withdraws
its challenge to Douglas Hatten . . . The Union
hereby withdraws its challenge to Roger McCarity
. . . . And the Union hereby withdraws its chal-
lenge to Mary-Carlyn Smith
If I correctly listed these, that leaves outstanding
Union challenges to Jack Hyatt, John Kay . . and
Douglas Miracle . . . and Mr Lofland on behalf of
10 See discussion of Board cases in NLRB v Mount Desert Island Hos-
pital, 695 F 2d 634, 638 (Ist Cir 1983)
11 Compare Professional Porter & Window Cleaning Co, 263 NLRB
136, 139 (1982)
12 An RD petition is filed by employees with the Board alleging that
the union previously certified or currently recognized by the employer as
their collective-bargaining representative no longer represents a majority
of the employees in the appropriate unit and seeking an election to deter-
mine this No party has briefed the legal or factual issues in the RD por-
tion of the case Counsel for the Charging Party represented that if he
decided not to file a brief, he would send a written notice to that effect
(R Br 76) So far as I know, he did not do so Accordingly, I am left on
my own to discuss the issues and to decide the case So be it
949
the Employer will address Your Honor with respect
to those three challenged votes.
JUDGE STEVENSON: All right. First, as to the
names, Mr. Boettcher to Mary-Carlyn Smith, do
you have any comment to make about the with-
drawal of challenges to these names? I count eight
names-is that right-that you withdraw your chal-
lenges to?
MR. WACKER: Yes.
JUDGE STEVENSON- Do you have any comment?
MR LOFLAND: No.
JUDGE STEVENSON: He's withdrawn them. If I
need to approve or accept those withdrawals I do
so. So far as I'm concerned, they are no longer part
of this case. Now we have three other names.
Hyatt, Kay, and Miracle.
MR. LOFLAND: Three of the challenges that
remain which were named by Mr. Wacker-Jack
Hyatt, John Kay, and Douglas Miracle-we agree
however you want to put it, that the challenges be
upheld or that the named be removed from the eli-
gibility list, and the ultimate being that the ballots
not be counted, the reason being that they were, at
the time of the election, part of a separate bargain-
ing unit represented by a different local of the
Teamsters and had been a part of separate bargain-
ing from that which was the subject of the election.
JUDGE STEVENSON: I can see why you didn't
want to lose that part of the case. Before I lose it or
we go on to a different area, I merely ask Mr.
Wacker, do you now seek from me anything about
these three people where there is agreement that
the challenges are upheld? Do you wish anything
from me in this case in that regard?
MR. WACKER: No. I think the Employer-I sup-
pose, from my experience in R cases on this subject
matter, the hearing officer would generally seek a
stipulation by both sides that the people were em-
ployed outside the bargaining unit, and I am at this
point in time willing to stipulate to Mr. Lofland's
representation regarding employment status of those
people and the proper disposition of their ballots.
JUDGE STEVENSON: And the proper disposition,
just to spell it out for all of us-
MR. WACKERS: Would be that the ballots of
Hyatt, Kay, and Miracle would not be counted.
JUDGE STEVENSON: You agree with that, I
assume Mr Lofland
MR. LOFLAND: Yes.
JUDGE STEVENSON: All right, so that covers that
MR WACKER: Correct
[R.Br. 24-27.]
The second aspect of the RD case presents the issue
whether certain economic strikers abandoned their em-
ployment by accepting identical driver-salesman posi-
tions with the competitor, Crest In this respect it was
stipulated by the Union and the Employer that the fol-
lowing named persons were hired by Crest Linen Rental
on the dates indicated on a permanent basis that these
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persons did not transfer seniority from Crystal to Crest;
that these persons were paid union scale plus union au-
thorized commission; that these persons solicited some or
all of their customers at Crystal, that some or all of the
solicited customers did switch their business from Crystal
to Crest, and that those customers making the switch did
sign the usual contracts between themselves and Crest;
and that the standard service contract signed by the cus-
tomers, referred to above, ordinarily provides for a mini-
mum term of agreement of 18 months, although subject
to individual negotiations, and is normally subject to can-
cellation by the customer on 30 days' notice for insuffi-
cient service (R. Br. at 64-97).
Ken Wear 5/16
Jack Carey 5/16
Wyman Anderson 5/3
Paul Wangler 5/3
Bob Bieren 5/10
Mark Rogstad 5/11-6/1
Mr. Wilfert 5/10 (part-time relay driver,
25-30 hours/week, no sales
work)
Respondent withdrew the
B. Riddle (R Br. p. 70)
challenge to the ballot of John
Subsequently , the parties agreed that certain exhibits
should be received into evidence - Joint Exhibit 1 (tran-
script of RD hearing on January 16, 1984 ), Joint Exhibit
2 (the exhibits from the RD hearing), Joint Exhibit 3
(formal documents from the RD hearing). 13
The parties also stipulated with respect to Mark Rog-
stad , named above, that as of June 1 he was employed by
the Union as an organizer on a full -time basis and contin-
ues to hold that position up to the present time. (R Br.
73-74)
The Board has held that economic strikers who have
been permanently replaced are eligible to vote under
Board regulations in any election held within 12 months
of the commencement of the strike . 14 In this case the
strike began on April 25 and the election was held on
December 1. Since fewer than 12 months had elapsed,
the employees in question were eligible to vote unless
the evidence shows that the strikers had obtained em-
ployment elsewhere under circumstances which tend af-
firmatively to demonstrate that the employees have per-
manently abandoned their struck jobs 15
In deciding this question , the Board instructs me to
accord the Union a presumption that an economic striker
has not abandoned interest in his fob. 16 Application of
this presumption on a case-by -case basis has developed
into a Board policy which favors the right of striking
workers to vote in elections which follow the hiring of
replacement workers. i 7 The purpose of the policy is to
' No copy of these three joint exhibits was ever sent to me It is un-
clear whether the court reporter ever prepared official exhibits of these
three exhibits because the General Counsel stated that only a single copy
was necessitry in an R case (R Br pp 72-73 )
14 Bio-Science Labs Y NLRB, 542 F 2d 505 (9th Cir 1976)
15 Gorman, Labor Law, Sec 3 at 44 (1976)
16 Pacific Tile & Porcelain Co, 137 NLRB 1358 (1962)
17 NLRB p Neuro Affiliates Co, 702 F 2d 183, 188 (9th Cir 1983)
preclude an employer from precipitating a strike, hiring
replacements, waiting until the strikers were forced by
necessity to seek work elsewhere, and then petitioning
for a decertification election 18 Thus, under these stand-
ards, acceptance of positions with other employers, even
for higher salaries, does not necessarily rebut the pre-
sumption that economic strikers retain an interest in their
jobs19
With these principles of law as a guide, I turn back to
the record of the present case. The employees in ques-
tion secured permanent employment within the relevant
12-month period That their new position was character-
ized as permanent does not prove anything relevant in
this case.20 However, the fact that the employees took
permanent positions with Crest and solicited their former
customers to switch to Crest is important for two rea-
sons. First, bringing their old customers with them to
Crest indicates to me an intent to abandon their former
positions at Crystal. It could not reasonably be argued
that the strikers intended merely to solicit their custom-
ers again when the strike was over to return them to
Crystal In the absence of evidence to show a custom
and practice between customer and driver-salesman of
such unswerving loyalty that the customer will follow
back and forth, I am unwilling to infer such a practice
Rather, I find that the presumption under Pacific Tile &
Porcelain, supra, has been rebutted and the evidence
shows the employees in question intended to abandon
their jobs at Crystal and were, therefore, not eligible to
vote in the election.
Secondly and alternatively, I find, based on my analy-
sis in the first section of this decision, that the employees'
act of disloyalty in working for a competitor and solicit-
ing their former customers would make them subject to
discipline, including termination. Although these employ-
ees were not actually terminated, but only warned that
they could be subject to discharge, an issue is raised
whether the employer could properly terminate the strik-
ing employees and preclude their voting on that basis.
Since there is no evidence that the written assurances,
return of former customers to Respondent, and other re-
medial measures called for in the disciplinary letter re-
ferred to above, have ever occurred, I find the Respond-
ent could properly discharge the strikers without violat-
ing the Act. This would preclude the strikers from
having their ballots counted.
(Case 19-CA-15746)
CONCLUSIONS OF LAW
1. Crystal Linen & Uniform Service, Inc is an em-
ployer within the meaning of Section 2(2) of the Act, en-
gaged in commerce and in an industry-affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act
i s Id at 188
19 Id at 185 In this case, the evidence as to salaries is only that em-
ployees were making union scale and union-approved commissions Thus,
I make no finding on whether employees' income was equal to or greater
or lesser than that earned at Crystal
20 See Q-T Tool Co, 199 NLRB 500, 501-502 (1972)
CRYSTAL LINEN SERVICE
2. The Union, Teamsters, Chauffeurs, Warehousemen
and Helpers Union Local No. 524, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER
It is hereby ordered that the complaint is dismissed in
its entirety.
(Case 19-RD-1990)
ORDER
The Union having withdrawn its challenge to the fol-
lowing named employees, it is recommended that the
Regional Director for Region 20 shall, pursuant to the
Board's Rules and Regulations, within 10 days from the
date of this Order, open and count the ballots of Randall
Boettcher, Robert Hayward, Dennis Lantis, Pete Rodri-
21 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
951
guez, James Selzer, Douglas Hatten, Roger McCarity,
and Mary-Carlyn Smith.
The employer agrees and stipulates that the challenges
to the ballots of Jack Hyatt, John Kay, and Douglas
Miracle be sustained, their names removed from the eli-
gibility list, and their votes not be counted
IT IS FURTHER RECOMMENDED that the challenges to
the ballots of the following persons be sustained and
their votes not be counted- Ken Wear, Jack Carey,
Wyman Anderson, Paul Wangler, Bob Bieren, Mark
Rogstad.
IT IS ALSO RECOMMENDED that the ballot of John B
Riddle be counted, in that the Employer withdrew its
challenge, and that the ballot of James Wilfert be count-
ed in that the record shows that he was hired as a part-
time relay driver on May 10, working 25-30
hours/week.22
Finally, it is recommended that the Regional Director
prepare and cause to be served on the parties a revised
tally of ballots, including therein a count of the ballots If
the Union should win the election after a tally of ballots
is issued, then a Certification of Representative should
issue. If, however, the Union should lose the election,
then the Regional Director should take appropriate
action based thereon.
22 It was stipulated that Wilfert did no sales work From this uncon-
tested fact, I infer that he did not solicit any customers of Crystal, since
there would be no benefit to him The parties were less than precise in
making all this clear for the record