Launder Leasing

National Labor Relations Board - Board Decisions

Dec 11, 1973

207 N.L.R.B. 790 (N.L.R.B. 1973)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
Manhattan Laundries, Inc. a/k/a Launder Leasing and
Local 1199, Drug and Hospital Union , a/w Retail,
Wholesale and Department Store ' Union, AFL-
CIO. Case 22-CA-4911
December 11, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 27, 1972, Administrative Law Judge
Melvin Pollack issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified below, and to adopt his recommended
Order.
We agree with the Administrative Law Judge that
the issuance of a bargaining order in the instant case
is called for. However, the Administrative Law Judge
in making his findings and recommendations bases
such findings and recommendations on his conclu-
sions that the Respondent was the successor employ-
er of the unit employees under consideration. In
arriving at our decision, pursuant to the facts set
forth below, we are of the opinion that the issue of
successorship need not be resolved in determining
whether Respondent violated Section 8(a)(5) and (1)
of the Act.
The Respondent, in October 1971,1 was awarded a
contract, to be effective November 22, to furnish,
distribute, and collect linens to and from the Jersey
City Medical Center (herein the Medical Center). In
being awarded this contract, and as a part thereof,
Respondent was to perform functions, the distribu-
tion of linens within the Medical Center, which were
previously performed by Temco Service Industries
(Temco). Temco, in performing its linen distribution
functions at the Medical Center, employed 11
employees in a unit separate from its other employ-
ees at the Medical Center. The aforesaid linen
distribution employees of Temco had been represent-
1 All dates herein are 1971 unless otherwise noted.
2 The facts as set forth herein are based upon credited testimony in the
hearing before the Administrative Law Judge.
3 See fn. 5 of the Decision of the Administrative Law Judge, wherein it is
stated that the parties stipulated that five other linen supply employees still
employed at the time of the hearing would , if called, testify substantially the
same as Jones.
ed by Local 1199, Drug and Hospital Union, a/w
Retail, Wholesale and Department Store Union,
AFL-CIO (herein Local 1199), pursuant to a
collective-bargaining agreement.
On November 17, 1971, Aberdeen David, vice
president of Local 1199, by telephone contacted
Louis Tekel, Respondent's vice president, and told
Tekel that Local 1199 represented the laundry
distribution employees and that he would like to
discuss a collective-bargaining agreement to cover
these workers.2 Tekel told David "to see his
attorneys." All subsequent attempts by the Union. to
confer with Respondent as to the representation of
these employees were unsuccessful, resulting in the
filing of the charges now before us.
On November 22, Respondent's general manager;
Kanter, visited the Medical Center and interviewed
individually the linen supply employees. According
to the credited testimony of employee Walker Jones,
Kanter stated, "We would like to have you work for
us." Kanter then told Jones he would receive the
same salary, but he would lose a week's vacation and
9 sick days. Jones said that was "fine" and Kanter
gave him a card, saying, "This is our union card."
Jones told Kanter, "We have our own union," but
Kanter responded, "There will be only one union."
Jones signed the card without reading it .3
From the facts as outlined above, it is clear that the
Respondent had been fully informed as to Local
1199's claim of representation of the unit of 11
employees involved herein.4 Further, it is clear that a
majority of the employees, when interviewed at the
time of the takeover, informed Respondent that they
were represented by a union. Nevertheless, Respon-
dent chose to ignore these facts and proceeded to
change the terms and conditions of employment of
these employees without consulting Local 1199. The
record discloses that the Respondent did not at the
time of the takeover nor at any time thereafter,
including the hearing, raise any question as to Local
1199's majority representation status.5 Nor did
Respondent at any time question the appropriateness
of the unit.6 The Administrative Law Judge found
the unit to be an appropriate one. We agree.
It is clear that Respondent through its own activity
in interviewing its prospective employees, which
activity included efforts to have the employees switch
their allegiance to a different union, became aware
that a majority of its employees were represented by
the Union. At that point, since the Union had
4 At the time of the takeover and subsequent thereto, the unit employees
continued their membership in Local 1199.
5 The Respondent attempts in its brief to belatedly put forth this defense
to its actions.
6 Local 1199 had continuously represented these employees under
successive union-security contracts and so represented them when they were
hired by Respondent on November 22.
207 NLRB No. 122
MANHATTAN LAUNDRIES, INC.
previously requested bargaining, Respondent had an
obligation to recognize and bargain with the Union.
Sullivan Electric Company, 199 NLRB No. 97,
enforced 479 F.2d 1270 (C.A. 6). Thus, Respondent's
action in thereafter making unilateral changes in the
terms and conditions of employment breached this
obligation, contrary to Section 8(a)(5) of the Act.
In view of the foregoing, we conclude and find that
Local 1199 represented a majority of these employees
at all relevant times, that these employees constitute
an appropriate bargaining unit, and, accordingly,
that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to recognize Local 1199 as their
collective-bargaining representative. Further, the
Respondent by unilaterally changing their conditions
of employment on or about November 22, 1971,
without consulting with their collective-bargaining
representative violated Section 8(a)(5) and (1) of the
Act.
We conclude that the Respondent's unfair labor
practices, as found above, require the issuance of a
bargaining order as recommended by the Adminis-
trative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Manhattan Laun-
dries, Inc., a/k/a Launder Leasing, Newark, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
MEMBER KENNEDY, concurring:
I agree with my colleagues that Respondent
violated Section 8(a)(5) and (1) of the Act and that a
bargaining order is warranted. The record reflects
that the linen supply employees continued to be an
appropriate unit since they were not merged or
inter-grated with Respondent's other employees.
Respondent ascertained that a majority of the
employees in that unit supported Local 1199 when it
sought to have cards signed for another union.
Respondent's refusal to bargain with Local - 1 199
under the circumstances was unlawful.
DECISION
STATEMENT OF THE CASE
791
MELVIN POLLACK, Administrative Law Judge: This case
was tried at Newark, New Jersey, on October 2, 1972. The
charge was filed by the Union on May 1, 1972, and the
complaint was issued on September 8, 1972. The primary
issue is whether Respondent refused to bargain with the
Union and changed the conditions of employment of its
linen supply employees at the Jersey City Medical Center,
Jersey City, New Jersey, herein called the Medical Center,
in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New Jersey corporation, is engaged in
providing laundry and linen services. Its annual out-of-
state services are valued in excess of $50,000. I find, and
Respondent admits, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
H. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
From 1967 until November 22, 1971, Temco Service
Industries, Inc., provided housekeeping and linen collec-
tion and distribution services to the Medical Center.
During this period, Temco's employees at the Medical
Center-maids, porters, and employees engaged in the
collection and distribution of linen-were represented by
the Union under successive 2-year union-security con-
tracts. On October 25, 1971, Temco notified the Union that
the Medical Center had awarded Respondent a contract
for the collection and distribution of linen, effective
November 22, 1971.1
Louis Tekel, Respondent's vice president, is in charge of
its labor relations. On November 16, 1971, Aberdeen
David, a vice president of the Union, called Respondent's
office and asked for Tekel. He was told that Tekel was out
of town. He called the next day and was connected with
Tekel. He told Tekel that the Union represented the
Medical Center's laundry distribution employees and
"would like to discuss a collective-bargaining agreement to
cover these workers." Tekel told him "to see his attorneys."
1 Respondent's contract covered both the supplying and the collection
and distribution of linen. Respondent had previously had contracts for the
supplying of linen to the Medical Center.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tekel did not furnish, and David did not request, the name
and address of Respondent's attorneys.2
About November 22, 1971, the linen supply employees
were assembled and interviewed individually concerning
employment by General Manager Kanter. Supervisor
Herbert Fletcher was present at the interviews .3 Walter
Jones testified that Kanter told him, "We would like to
have you work for us." Kanter said Jones would receive the
same salary but that he would lose a week's vacation and 9
sick days.4 Jones said that was "fine" and Kanter gave him
a card, saying, "This is our union card." Jones remarked,
"We have our union" but Kanter responded, "There will
only be one union." Jones signed the card without reading
1t.5
On January 27, 1972, union organizers, Evelyn Pauley
and Victor Garcia, went to Respondent's office and were
referred to an unidentified man "seated to the left of the
rear of the room."6 Garcia told this man that he
understood that the workers at the Medical Center were
being intimidated, that another union was possibly trying
to take over, and that he wanted to talk to Mr. Tekel.
When the man said that Tekel was "out of the country,"
Garcia asked him to have Tekel upon his return can Garcia
or Vice President David. The man said, "Okay."
On March 30, 1972, organizer Pauley called General
Manager Kanter and asked him to set up a meeting with
David. Kanter replied that there was nothing to meet
about because so far as he was concerned the Union did
not represent the linen supply employees.
By letter dated April 6, 1972, the Union's attorney
advised Louis Tekel that the Union represented the linen
supply employees, that it had a contract covering these
employees which did not expire until March 31, 1973, that
it considered Respondent a successor bound by the terms
of the contract, and that the Union wanted an immediate
meeting to discuss Respondent's obligations under the
contract. Tekel did not answer the letter.
B. Discussion and Analysis
Respondent retained all of Temco's former employees
upon taking over the linen collection and distribution
operation from Temco on November 22, 1971. Respondent
initiated changes in the handling of linen, such as the
making up of individual pat packs for patients and a locker
exchange system for uniforms, but the basic work of the
linen supply employees-to collect soiled linen and
distribute fresh linen-remained unchanged . I find from
these facts that Respondent was a successor to Temco as
the employer of the linen supply employees. Cf_ Quaker
Tool & Die, Inc., 162 NLRB 1307.
Although the linen supply employees had been repre-
sented as part of a larger bargaining unit,7 it is clear that
they may constitute a separate appropriate bargaining unit.
They are the only employees at the Medical Center
involved in the collection and distribution of linen, they
alone work out of the linen room at the Medical Center,
they are separately supervised, and no union seeks to
represent them in a larger unit . The Union presumptively
represented a majority of these employees when they were
hired by Respondent about November 22, 1971, for the
Union had continuously represented them under succes-
sive 2-year union-security contracts.8 Respondent has not
overcome this presumption of majority status .9
Although notified by the Union on November 17, 1971,
that it represented the linen supply employees, Respondent
unilaterally changed their conditions of employment on
November 22 and thereafter rejected the Union's efforts to
bargain in their behalf.
Respondent contends in effect that the changes in
conditions of employment effected on November 22, 1971,
constituted a permissible fixing of "initial terms of
employment" within the meaning of the Burns case.10 It
appears, however, as shown by General Manager Kanter's
offers of employment to the linen supply employees, that
Respondent, in taking over the linen collection and
distribution operation from Temco, planned to retain all
the linen supply employees. This retention of all the linen
supply employees without any hiatus in their employment
obligated Respondent as a successor employer to bargain
with the Union before it fixed initial wages and terms of
employment . Howard Johnson Company, 198 NLRB No.
98.11
2 Tekel denied having this conversation with David and asserted that he
first learned that the Union claimed to represent the linen supply employees
when he received a letter from the Union dated April 6, 1972. As shown
below, General Manager Kanter learned about November 22, 1971, that the
linen supply employees had a union ; two union organizers visited
Respondent's office in January 1972 and spoke to an unidentified
man-probably Kanter , on March 30, 1972, Kanter told organizer Evelyn
Pauley that so far as he was concerned the Union did not represent the linen
supply employees; Tekel did not reply to the Union's April 6 letter. In these
circumstances, and as Tekel is in charge of Respondent 's labor relations, I
consider incredible his testimony that he first learned about the Union when
he received the April 6 letter. Accordingly , and as David impressed me as a
careful and reliable witness, I credit his testimony concerning his
conversation with Tekel on November 17, 1971.
3 Respondent continued Fletcher as the supervisor of the linen supply
employees upon taking over the collection and distribution of linen from
Temco.
4 According to Jones, Kanter also said "something about the holidays."
5 The parties stipulated that five other linen supply employees still in
Respondent 's employ at the time of the hearing would, if called , testify
substantially the same as Jones. Neither Kanter nor Supervisor Fletcher
testified at the hearing
6 Vice President Tekel testified that General Manager Kanter sits at the
back of the office on the left.
7 The contract bargaining unit included approximately 65 maids and
porters and I 1 linen supply employees.
8 The contracts purported to cover only "maids and porters" but were in
fact applied to the linen supply employees who, for purposes of the contract,
were regarded as porters.
9 The linen supply employees have not paid dues to the Union since
Respondent became their employer . It appears , however, from Walter
Jones' testimony that the Union has waived the payment of dues until its
dispute with Respondent over recognition has been resolved . Jones further
testified that the employees attended a union meeting in May or June 1972
and elected him as their delegate to the Union.
10 N.LR.B. v. Burns International Service, Inc , 92 S.Ct. 1571 (1972).
ii I see no meaningful difference in the facts of Howard Johnson and the
facts of this case . In Howard Johnson, the successor employer held group
meetings with the employees, reassured them of their jobs, and advised them
of changed conditions of employment. Here, Respondent assembled the
linen supply employees and, in individual interviews, offered each employee
employment with certain changes in working conditions.
In NLRB. v. Wayne Convalescent Center, 465 F.2d 1039 (C.A. 6, 1972),
the successor employer retained the employees of the predecessor and about
a month later made unilateral changes in their conditions of employment.
The Sixth Circuit Court of Appeals ruled that the changes constituted a
(Continued)
MANHATTAN LAUNDRIES, INC. 793
In view of the foregoing, I find that Respondent was a
successor of Temco with respect to the linen supply
employees, that the Union represented a majority of these
employees at all relevant times, that these employees
constitute an appropriate bargaining unit, and, according-
ly, that Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to recognize the Union as their collective-
bargaining representative and by unilaterally changing
their conditions of employment about November 22, 1971.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union
is a labor organization within the meaning of the Act.
2. The linen supply employees employed by Respon-
dent at the Jersey City Medical Center, excluding office
clerical employees, professional employees, guards, and
supervisors as defined in the Act, constitute an appropriate
unit for the purposes of collective bargaining under the
Act.
3. The Union has been and is the exclusive representa-
tive of all employees in the aforesaid appropriate unit.
4. By refusing on or about November 22, 1971, and at
all times thereafter, to bargain collectively with the Union
as the exclusive representative of the aforesaid appropriate
unit, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
5. On November 22, 1971, and at all times since, by
unilaterally changing the terms and conditions of employ-
ment of the employees in the aforesaid bargaining unit,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent changed existing condi-
tions of employment without bargaining with the Union, I
shall recommend that Respondent make the employees
whole for any loss of pay or other benefits they may have
suffered as a result of Respondent's unlawful conduct, with
interest at 6 percent per annum, and to continue such
payments until such time as Respondent negotiates with
the Union to agreement or impasse.
Upon the foregoing findings of fact, conclusions of law,
permissible fixing of "initial terms of employment" within the meaning of
the Burns case. In N.L.R.B. v. Badhrodt Chevrolet Co, 468 F.2d 963 (1972),
the Seventh Circuit Court of Appeals held 2-1 that a successor employer
who hired the predecessor's employees on a Friday and unilaterally changed
their conditions of employment when they reported for work the following
Monday, violated Section 8(aX5) and (1) of the Act. The majority opinion
indicated a contrary result if the successor had announced the changes
when it hued the employees.
While the foregoing cases appear to conflict with Howard Johnson, I am,
of course, bound to follow the Board.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 12
Respondent, Manhattan Laundries, Inc., a/k/a Launder
Leasing, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of
employment with Local 1199, Drug and Hospital Union
a/w Retail, Wholesale and Department Store Union,
AFL-CIO, as the exclusive bargaining representative of its
employees in the appropriate unit found above, by failing
to recognize the Union as the majority representative of
such employees, and by implementing rates of pay, wages,
hours, and other terms and conditions of employment
without consulting with the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive bargaining representative of
all employees in the aforesaid appropriate bargaining unit
with respect to rates of pay, wages, hours, and other terms
and conditions of employment.
(b) Make whole the employees in the appropriate unit for
any loss of pay or other benefits they may have suffered as
a result of Respondent's unilateral implementation of rates
of pay, wages, hours, and other terms and conditions of
employment on November 22, 1971, with interest at 6
percent per annum, and continue such payments until such
time as Respondent negotiates in good faith with the
Union to agreement or to impasse.
(c) Post at the Jersey City Medical Center, Jersey City,
New Jersey, the Medical Center being willing, copies of the
attached notice marked "Appendix." 13 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing the linen room and all other places where notices to the
linen supply employees are customarily posted. Reasona-
ble steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material. Should the Medical Center be unwilling to permit
the posting of said notices, Respondent shall furnish each
linen employee with a copy of the notice.
(d) Notify the Regional Director for Region 22, in
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing, within 20 days from the date of this Decision, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with Local 1199 , Drug and Hospital Union,
a/w Retail, Wholesale and Department Store Union,
AFL-CIO, as the exclusive bargaining representative of
the employees in the following appropriate unit:
All linen supply employees employed by Manhattan
Laundries, Inc., a/k/a Launder Leasing, at the Jersey
City Medical Center, excluding office clerical employ-
ees, professional employees, guards, and supervisors as
defined in the Act.
WE WILL make whole all persons employed in the
appropriate unit described above for any loss of pay or
other benefits they may have suffered as a result of our
implementation of rates of pay , wages, hours, and other
terms and conditions of employment on November 22,
1971.
WE WILL bargain with Local 1199 as the exclusive
bargaining representative of the employees in the
appropriate unit described above.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce the employees in the exercise of
their rights to self-organization, to form, join , or assist
unions, to bargain collectively through representatives
of their own choosing, to engage in concerted activities
for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from such
activities, except to the extent that such right may be
affected by an agreement requiring union membership
as a condition of employment , as authorized in Section
8(a)(3) of the Act.
MANHATTAN LAUNDRIES,
INC., A/K/A LAUNDER
LEASING
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Building-16th
Floor, 970 Broad Street, Newark, New Jersey 07102,
Telephone 201-645-2100.