National Linen Service And National Dust Control

National Labor Relations Board - Board Decisions

May 9, 1989

293 N.L.R.B. 992 (N.L.R.B. 1989)

992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
National Linen Service and National Dust Control
and Drivers , Chauffeurs, Warehousemen and
Helpers Local Union No 61 , affiliated with
International Brotherhood of Teamsters, Chauf
feurs, Warehousemen and Helpers of America,
AFL-CIO Case 11-CA-12475
May 9, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On January 5, 1989, Administrative Law Judge
Lawrence W Cullen issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
beef
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
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, i and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, National
Linen Service and National Dust Control, Hickory,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
' We correct the judge s inadvertent references in part IV of his decl
Sion to events in 1987 as having occurred in 1988
George Carson Esq for the General Counsel
Brent L Wilson Esq (Elarbee Thompson & Trapnell) of
Atlanta Georgia, for the Respondent
Patrick B Shaw Esq (Behns Axelrod & Osborne) of
Washington, D C for the Charging Party
DECISION
STATEMENT OF THE CASE
LAWRENCE W CULLEN Administrative Law Judge
This case was heard before me on July 20, 1988, at Hick
ory North Carolina, pursuant to a complaint issued by
the Regional Director for Region 11 of the National
Labor Relations Board (the Board) on March 25 1988
and later amended on June 10, 1988, and is based on a
charge filed by Drivers Chauffeurs Warehousemen and
Helpers Local Union No 61, affiliated with International
Brotherhood of Teamsters Chauffeurs Warehousemen
and Helpers of America, AFL-CIO (the Union) on
August 26, 1987 The complaint alleges that National
Linen Service and National Dust Control (the
Respondent(s)) are a single employer and have violated
Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act) by refusing to bargain collectively with
the Union as the exclusive bargaining representative of
all the employees in the appropriate bargaining unit by
withdrawing recognition from the Union and by ceasing
to apply wages hours, and terms and conditions of em
ployment established by a collective bargaining agree
ment entered into between Respondent National Linen
and the Union effective October 1, 1984, to October 1,
1987, and by repudiating this agreement as to the em
ployees in the appropriate unit Respondent has by its
answer filed on April 4 1988 and amended on June 24,
1988, denied the commission of any violations of the
Act Respondent has also raised as affirmative defenses in
its answer that the matter is time barred by Section 10(b)
of the Act, that the matter has been submitted and re
solved by the grievance arbitration machinery of the col
lective bargaining agreement between Respondent Na
tional Linen Service and the Charging Party and has
been resolved and should have been deferred to by the
Board, and further that the complaint does not state a
claim on which relief can be granted
On the entire record in this proceeding including my
observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel, the
Charging Party, and the Respondent, I make the follow
ing I
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondents admit, and I find
that National Linen Service and National Dust Control
are and have been affiliated business enterprises with
common ownerships Respondent Linen Service is a di
vision of National Service Industries Inc a Delaware
corporation providing linen and dust control services to
customers throughout the United States including cus
tomers in and around Hickory North Carolina Re
spondent National Dust Control is also a division of Na
tional Service Industries Inc and was created on or
about January 19 1987, and provides dust control and
linen services During the 12 months preceding the filing
of the complaint, a representative period, Respondent
National Linen Service and Respondent National Dust
Control each received gross revenues in excess of
$50,000 for services performed outside the State of
North Carolina and each transported materials from the
State of North Carolina to points outside the State of
North Carolina valued in excess of $50 000
The complaint also alleges that Respondents National
Linen Service and National Dust Control constitute a
single integrated business enterprise and a single employ
er within the meaning of the Act This allegation is
denied by the Respondent I find however, based on the
record evidence that Respondents National Linen Serv
ice and National Dust Control, in addition to their affili
ation and common ownership share common directors
I The following includes a composite of the credited testimony of the
witnesses
293 NLRB No 122
NATIONAL LINEN SERVICE
management, and supervision, have utilized common
premises, interchanged work, utilized and transferred ma
chinery between themselves, used common signs on ve
hicles, each been subject to the same labor policies in the
form of plant rules and other matters formulated by the
parent corporation, and hence held themselves out as a
single integrated business enterprise and are a single em
ployer within the meaning of the Act I also find based
on the above that Respondent National Linen Service is
now and has been at all times an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and that Respondent National Dust Control is
now and since January 19, 1987 has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II THE LABOR ORGANIZATION
The complaint alleges and Respondent admits, and I
find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act
III THE APPROPRIATE UNIT
The amended complaint alleges , and Respondent
denies, and I find on the basis of the facts and conclu
sions that will hereinafter follow that the following em
ployees constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act
All route sales representatives (drivers), tractor
trailer drivers, helpers on trucks, mechanics, me
chanics helpers, porter car wash employees and
extra route sales representatives
IV THE ALLEGED UNFAIR LABOR PRACTICES2
As set out above, National Linen Service is a division
of National Service Industries Inc Mike Whalen the
general manager and vice president of Dust Control, tes
tified that National Linen consists of 10 separate entities
or operations including a linen supply division an indus
trial uniform division a health care division a dust con
trol division, a mixed facility division and five regions in
which mixed facilities are operated The dust control di
vision was established by a memorandum from the presi
dent of National Linen on January 19, 1987, with a goal
of expanding the dust control business Basically, the di
visions clean and supply various types of products and
sell related cleaning products (air fresheners) and service
their customers by delivering the products along desig
nated routes within the divisions or regions Thus, linen
service refers to the pickup of soiled napkins, tablecloths,
towels, sheets, and pillowcases which are then cleaned at
the Respondents plants and returned to the customers
whereas dust control refers to the pickup, cleaning and
delivery of mops, mats, and shop towels, and industrial
service refers to the pickup, cleaning , and delivery of
uniforms Mixed facilities refer to operations which per
form these services for several categories of products
2 Pursuant to the joint motion for substitution on exhibit filed by all the
parties attachment I of the motion is substituted for R Exh 8
993
(i e , linen , dust control, and industrial) at the same facili
ty
Respondent Linen Service and the Teamsters Interna
tional Union were parties to a master collective bargain
ing agreement effective from October 1, 1984, to Octo
ber 1, 1987, which covered approximately 41 of Re
spondent s 78 branches across the United States, Re
spondent Linen Service also had separate contracts with
various Teamsters local unions at eight other branches
One facility covered by the master agreement was the
National Linen Service facility at Hickory, North Carole
na The Hickory facility was operated as a mixed facility
and employed approximately 64 production employees
who engaged in washing and processing of the various
products serviced there These employees were repre
sented by another union The Hickory facility also em
ployed 12 driver salesmen and 1 mechanic all of whom
were represented by Local 61 Under the terms of the
collective bargaining agreement, the driver salesmen
were compensated on an hourly basis and also earned
commission for opening new accounts and selling new
items for existing accounts
On February 4, 1987, Respondent National Linen
Services vice president of labor relations, R J Gra
bowski, wrote to officials of Local 61 and informed them
that National Linen will effectively terminate its Hick
ory operations on March 2, 1988 In that letter written
by Grabowski, Respondent offered to meet with Local
61 and bargain concerning the effects of this decision
on the bargaining unit " On February 12 1988, Local 61
Secretary Treasurer Ronald Keener wrote to Grabowski
asking to negotiate concerning the effects of the decision
to terminate the Hickory operation and also to discuss
with you your decision to terminate this operation" and
inquired who would be running the plant and what
would remain at the Hickory facility On February 24,
1988, Ronnie Candler, the president of Local 61, and
Keener met with Grabowski who explained that Nation
al Linen was going to establish a dust control operation
at Hickory which would be a different operation ac
cording to the testimony of Candler When asked by
Candler if the employees would be union Grabowski
replied, if you organize them In reply to an inquiry by
Candler whether the employees would be covered by
the contract Grabowski said, you know better than
that Grabowski did not specify what the remaining op
eration at Hickory would entail He also responded to an
inquiry by Candler that the new facility would be run by
some of the same people but that he did not know who
would be involved Grabowski told Candler and Keener
that the Respondent had been losing dust control busi
ness because of the wage rates required by the master
agreement Candler suggested that the wage rates be dis
cussed in upcoming negotiations in the fall of 1987, but
Grabowski replied this would be too late
At that meeting Grabowski assured the Local 61 rep
resentatives that the drivers in the bargaining unit would
not be affected as the drivers would continue to receive
their 40 hour guarantee under the contract although
drivers would be required to give up stops and that the
only change would be that the drivers would load and
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unload their trucks at other National Linen Service fa
cilities in Asheville, Charlotte, and Winston Salem,
North Carolina In response to a question by Candler
whether 80 percent dust routes were going to be at the
Hickory plant, Grabowski replied that this sounded rea
sonable Candler also told Grabowski that if he took 80
percent dust control and only if the Union agreed to it,
the Union was not going to give up the other 20 percent
without a fight because if he could take the dust business
(out of the unit) he could also take linen
Respondent National Linen announced in February to
the production employees of the Hickory facility that
they were being terminated and did so After March 2,
1988 Respondent Linen Service ceased to apply the con
tract to the Hickory facility and hired new dust control
drivers and paid them on a commission basis rather than
on the hourly basis plus commission required under the
master labor agreement Employee Ronald Barlow a
former National Linen production employee at the Hick
ory facility, testified that he was hired by Dust Control
and did not miss a day of work during the transition and
now is employed as a driver at Hickory under a different
set of wages and conditions of employment than required
under the master agreement Barlow did, however, retain
seniority Moreover, the new Dust Control operation
continued in the same facility although greatly reduced
in scope but still performs some linen work However
despite a significant change in the mix of linen and dust
control work, the dust control work had always been
performed at Hickory and was clearly unit work and
performed by salesmen drivers in the unit prior to March
1987 Basically, the Respondent has moved almost all the
linen work to its facilities in Asheville Charlotte, and
Winston Salem North Carolina, and transferred most but
not all its dust control work from these other facilities to
the Hickory facility Vice President Wheeler testified
that dust control accounts were generally small and
could not be profitably serviced on the hourly basis re
quired under the master labor agreement
Analysis
I find that Respondents National Linen and Dust Con
trol are a single employer with common ownership offi
cers management interchange of operations, facilities,
vehicles accounting and legal services, and common
labor relations policies Additionally, title to all physical
assets is in the name of the parent Company National
Service Industries I further find that the complaint was
not barred by Section 10(b) of the Act as the charge was
filed within 6 months of March 2 1987 when the Re
spondent ceased to apply the terms of the 1984-1987
master labor agreement to the Hickory facility and repu
diated the contract I find, that March 2, 1987, is the cnt
ical date in making this determination because it was the
initial date when the Respondent initiated this unilateral
action The Respondents notice through its agent, Gra
bowski was to the effect that a different operation
would be in place This was not a clear and unequivocal
notice which would commence the running of the 10(b)
6 month period See Abbey Medical/Abbey Rents 264
NLRB 969 975 (1982) Machinists Local 68 (Holmatic)
274 NLRB 757 759 (1985) 1 also find that the Union did
not waive its rights as contended by Respondent in its
brief because the Union was not fully apprised concern
ing the makeup of the work to remain at the Hickory fa
cility Rather the Union requested bargaining and the
Respondent refused and proceeded to take unilateral
action on its predetermined course as Grabowski an
nounced a fait accompli to Candler and Keener at the
February 24 meeting Grabowski was unable or unwill
ing to specify the exact makeup of the Dust Control op
eration and what work would be performed by it and by
whom Under these circumstances I find the Union did
not waive its rights to the bargaining unit work that was
removed from the unit and for which new employees
were hired at the Hickory facility and to which work
the contract was no longer applied See Abbey
Medical/Abbey Rents, supra
I further find that Respondent violated Section 8(a)(1)
and (5) of the Act by withdrawing recognition from the
Union and by repudiating the collective bargaining
agreement with respect to the Hickory facility and fail
ing to apply its terms and conditions of employment with
respect to newly hired employees who were peforming
the bargaining unit work I recognize fully that the mix
of linen verses dust control work was drastically revised
by the Respondent when it removed almost all the linen
service work from the Hickory facility and distributed it
to its three other North Carolina facilities and when it
transferred substantial amounts of dust control work
from these three facilities to the Hickory facility It is
undisputed however, that dust control work at the Hick
ory facility had always been that bargaining unit work
regardless of the product mix It is clear that the Re
spondent transferred the linen work and the represented
employees to the other three facilities to avoid the con
tractually bargained rates of the master agreement with
respect to dust control work and that it then hired new
employees at the Hickory facility to perform this work
at noncontract rates This withdrawal of recognition
from the Union at the Hickory facility and repudiation of
the labor agreement in this regard without bargaining
violated Section 8(a)(1) and (5) of the Act Blumenfeld
Theaters Circuit, 240 NLRB 206 217 (1979) Phil Wall &
Sons Distributing 287 NLRB 116 (1988) In this regard as
noted above I find that Respondent announced a fait ac
compli to the Union and did not engage in meaningful
bargaining to reach an agreement or bargain to impasse
concerning its decision to reassign and transfer unit
work
The Respondent also contends that a grievance raised
by another local of the Winston Salem facility concern
ing the dovetailing of transferred employees seniority
from the Hickory facility should be deferred to as having
resolved the issues raised by the complaint On its face
however this is only a narrow issue not encompassed
within the complaint and was raised by another local
union of another bargaining unit represented by the
Teamsters As such it does not reach the issues in this
complaint and cannot be deferred to Olin Corp 268
NLRB 573 (1984) Moreover where as here the respond
ent has repudiated the collective bargaining agreement
deferral is inappropriate Victor Block Inc 276 NLRB
NATIONAL LINEN SERVICE
676 (1985), United Technologies Corp, 268 NLRB 557
(1984)
V THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices as found here in section IV,
above, in connection with the business of Respondent as
found in section I, above, have a close, intimate, and sub
stantial relationship to trade, traffic, and commerce over
the several States and tend to lead to labor disputes ob
strutting the free flow of commerce
CONCLUSIONS OF LAW
1 Respondents National Linen Service and National
Dust Control are a single employer and an employer en
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 Drivers Chauffeurs Warehousemen and Helpers
Local Union No 61, International Brotherhood of Team
sters Chauffeurs, Warehousemen and Helpers of Amer
ica, AFL-CIO is a labor organization within the mean
ing of Section 2(5) of the Act
3 The following employees of Respondent constitute a
unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act
All route sales representatives (drivers), tractor
trailer drivers, helpers on trucks, mechanics, me
chanics helpers, porter car wash employees and
extra route sales representatives
4 Respondent violated Section 8(a)(1) and (5) of the
Act by withdrawing recognition from the Union and
ceasing to apply the wages, hours, and terms and condi
tions of employment established by the collective bar
gaining agreement
REMEDY
Having found that Respondent has engaged in viola
tions of the Act, it will be recommended that Respond
ent cease and desist therefrom and take certain affirma
tive action designed to effectuate the policies of the Act
and post the appropriate notice
It is recommended that Respondent be ordered to rec
ognize the Union as the exclusive collective bargaining
representative of the employees in the above described
appropriate unit at Respondents Hickory North Caroli
na facility and to apply the wages hours and terms and
conditions of employment established by the collective
bargaining agreement until such time as it has given
notice to the Union of any proposed changes and on re
quest has bargained with the Union and either reached
agreement or a lawful impasse concerning any proposed
changes in the wages, hours and terms and conditions of
employment established by the collective bargaining
agreement It is further recommended that Respondent
make the employees at the Hickory, North Carolina fa
cility whole for any loss of pay or benefits3 they would
9 See Kraft Plumbing & Heating 252 NLRB 891 (1980) Merryweather
Optical Co 240 NLRB 1213 1216 fn 7 ( 1979) American Cleaning Co
291 NLRB 399 (1988)
995
have received under the terms of the collective bargain
ing agreement since March 2, 1987, with interest as com
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987) 4 I further recommend that each of the drivers
transferred from the Hickory facility to other locations
be given a one time opportunity in order of their seniori
ty at the Hickory facility to return to the facility as va
cancies occur without prejudice to their seniority or
other rights and privileges, and be notified in writing of
this A complete restoration to the status quo ante would
provide for the transferred employees to be permitted to
return to their former positions at the Hickory facility
The General Counsel has not requested such a remedy
but requests only that the labor agreement be applied to
the employees in the unit now working at the Hickory
facility along with a make whole remedy for those em
ployees The Charging Party has requested that the
transferred employees be permitted to transfer back to
the Hickory facility I find under the circumstances that
a proper remedy will be to permit the transferred em
ployees a one time opportunity to transfer back to the
Hickory facility as vacancies occur Such a remedy will
be least disruptive to the employees and the employer s
operations As far as the record discloses, the transferred
employees did not suffer any loss in pay or benefits but
continued to be covered by the terms of the collective
bargaining agreement
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed5
ORDER
The Respondent, National Linen Service and National
Dust Control Hickory, North Carolina its officers,
agents, successors and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively with Drivers,
Chauffeurs Warehousemen and Helpers Local Union
No 61 affiliated with International Brotherhood of
Teamsters, Chauffeurs Warehousemen and Helpers of
America AFL-CIO as the exclusive bargaining repre
sentative of the employees in the bargaining unit below
by the withdrawal of recognition from the Union for the
unit employees at its Hickory facility and by ceasing to
apply the wages hours, and terms and conditions of the
collective bargaining agreement The appropriate unit is
All route sales representatives (drivers), tractor
trailer drivers, helpers on trucks, mechanics me
chanics helpers, porter car wash employees and
extra route sales representatives
4 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before January 1 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977) See Ogle Protection Service 183 NLRB 682 (1970)
5 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 put
poses
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with re
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Recognize and on request bargain with the Union
and if an agreement is reached embody it in a signed
agreement
(b) Restore the wages, hours, and terms and conditions
of employment under the collective bargaining agree
ment for the unit employees at its Hickory, North Caro
lina facility and make the unit employees whole for any
loss of earnings or benefits sustained by them as a result
of Respondents unlawful conduct as set out in the
remedy section of this decision
(c) Give notice to the Union of any proposed changes
in the wages, hours, and terms and conditions of its unit
employees and on request bargain with the Union con
cerning them and, if an agreement is reached embody it
in a signed agreement
(d) Give each of the salesmen drivers who were trans
ferred from the Hickory facility a one time opportunity
in order of their seniority at the Hickory, North Carolina
facility, to return to their former positions or in the event
their former positions no longer exist to a substantially
equivalent one at the Hickory, North Carolina facility as
vacancies occur without prejudice to their seniority or
other rights and privileges and notify each of the trans
ferred employees in writing
(e) Post at its Hickory North Carolina facility copies
of the attached notice marked Appendix 6 Copies of
the notice on forms provided by the Regional Director
for Region 11, after being signed by the Respondent s
authorized representative, shall be posted by the Re
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
6 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT refuse to recognize and bargain collec
tively with Drivers, Chauffeurs Warehousemen and
Helpers Local Union No 61, affiliated with International
Brotherhood of Teamsters, Chauffeurs Warehousemen
and Helpers of America AFL-CIO as the exclusive bar
gaining representative of the employees in the bargaining
unit below by withdrawing recognition from the Union
and by ceasing to apply the wages and hours and terms
and conditions of the collective bargaining agreement
The appropriate unit is
All route sales representatives (drivers), tractor
trailer drivers, helpers on trucks, mechanics, me
chanics helpers, porter car wash employees and
extra route sales representatives
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL notify the Drivers, Chauffeurs Warehouse
men and Helpers Local Union No 61 affiliated with
International Brotherhood of Teamsters Chauffeurs
Warehousemen and Helpers of America AFL-CIO of
any proposed changes in the wages, hours, and terms
and conditions of employment of the employees in the
above described unit and on request bargain concerning
the changes and if an agreement is reached embody it in
a written agreement for our employees represented by
the Union in the appropriate bargaining unit
WE WILL apply the wages, hours, and terms and con
ditions of employment of the foresaid employees as pro
vided for in the collective bargaining agreement and will
make them whole for any loss of earnings or benefits sus
tamed by them as a result of our unlawful acts with in
terest
WE WILL afford each of the salesmen drivers trans
ferred from our Hickory North Carolina facility a one
time opportunity to transfer back to their former position
or to a substantially equivalent position at the Hickory
facility in the event their former position no longer
exists, on the basis of their seniority or other rights and
privileges and will notify them in writing of this
NATIONAL LINEN SERVICE AND NATIONAL
DUST CONTROL
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section of the Act gives employees these rights