North American Linen, LLC

National Labor Relations Board - Administrative Judge Opinions

Oct 29, 2007

22-CA-027783 (N.L.R.B. Oct. 29, 2007)

JD(ATL)—33—07
Long Branch, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
NORTH AMERICAN LINEN, LLC
and CASE 22-CA-27783
LOCAL 621, UNITED WORKERS OF
AMERICA
Jeffrey P. Gardner, Esq., for the General
Counsel.
Stephen G. Sombrotto, for the Charging
Party.
Jeffrey Berezny, Esq., for Respondent.
Joseph Mercadante, for Respondent.
DECISION
Statement of the Case
LAWRENCE W. CULLEN, Administrative Law Judge: This case was heard
before me in Newark, New Jersey, on July 18, 2007. The complaint is based on an amended
charge filed by Local 621, United Workers of America (“the Charging Party” or “the Union”)
in Case 22-CA-27783. The complaint alleges that North American Linen, LLC
(“Respondent” or “the Company”) has violated Section 8(a)(1) and (5) of the National Labor
Relations Act (“the Act”). The complaint is joined by the Answer filed by the Respondent
wherein it denies the commission of any violations of the Act.
After due consideration of the testimony and evidence received at the hearing and the
briefs filed by the parties, I make the following:
Findings of Fact and Conclusions of Law
I. The Business of the Respondent
The complaint alleges, Respondent admits and I find, that at all times material herein
the Respondent has been a corporation, with an office and place of business in Long Branch,
New Jersey, where it has been engaged in commercial laundering and providing linens and
other services, that during the preceding twelve months, Respondent, in conducting its
aforementioned business operations, purchased and received at its Long Branch, New Jersey
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facility, goods valued in excess of $50,000 directly from points outside the State of New
Jersey, and Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
II. The Labor Organization
The complaint alleges, Respondent admits, and I find, that at all times material herein,
the Union has been a labor organization within the meaning of Section 2(5) of the Act.
III. The Appropriate Unit
The complaint alleges, Respondent admits and I find, that the following employees
constitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time laundry drivers excluding all other
employees covered by other Collective Bargaining Agreements,
supervisors, professionals and guards.
IV. The Alleged Unfair Labor Practices
In early 2006, the Union began to organize the above appropriate unit which consisted
of approximately 10 truck drivers. In the Spring of 2006, the Union presented the Respondent
with signed union authorization cards thus demonstrating that it had the support of a majority
of the drivers. Upon receiving this information the Respondent voluntarily recognized the
Union. Union President Stephen Sombrotto testified he telephoned Larry Cole, Respondent’s
Attorney and informed Cole that the Union had obtained a majority of the employees in the
unit who had signed union authorization cards. Cole did not dispute this assertion and he and
Sombrotto engaged in a series of three to four telephone discussions of items to be covered by
a collective bargaining agreement (CBA) including pension benefits, wage increases and
health care benefits. Sombrotto testified that the Union and Respondent met with Cole and
Michael D’Ambrosio, Respondent’s Chief Financial Officer, and Sombrotto present in Cole’s
office on May 11, 2007. At the meeting, the parties discussed medical insurance, holidays,
vacations and wages and reached agreement and Cole drafted a Memorandum Agreement
which was signed by Sombrotto and D’Ambrosio. Respondent agreed at the hearing that
D’Ambrosio had full authority to represent and commit the Company in negotiations. The
meeting concluded with Cole stating that he would forward to the Union a complete CBA.
On June 8, 2006, the Union processed the authorization cards signed by the employees and
commenced billing Respondent for dues and for welfare fund and 401(k) contributions. Cole
did not at any time tell Sombrotto that the Respondent was not recognizing the Union as the
representative of the drivers. Sombrotto testified that during the negotiation meeting held on
May 11, 2006, Chief Financial Officer D’Ambrosio was initially offering only a single plan,
medical plan and lower wages and the parties discussed the duration of the Agreement and
wages and holidays. The meeting lasted two and a half hours and during this meeting, the
parties were engaged in negotiations and ultimately came to an agreement and Cole drafted
the Memorandum Agreement which was signed by the parties. The Memorandum Agreement
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sets out and addresses the following areas of the terms of the Agreement: Recognition, Union
Security, Check off, Seniority, Shop Steward, Hours & Overtime, Holidays, Vacation,
Probationary Period, Union Visitation, Welfare Benefits, 401(k) Benefits, Strikes & Lockouts,
Grievance and Arbitration, Sick Leave, Successors & Assigns, Prior Benefits, Most Favored
Nation Clause, Term, Schedule “A” – Wages. It was agreed that Cole would draft a full-form
CBA and that the parties would discuss any problems with this at a later time. No further
negotiations were scheduled. Sombrotto testified he presented the names of the drivers to the
Union’s office secretary and instructed her to commence the process of billing the Respondent
for the dues and the health and pension contributions. The bills contained the items of dues
and contributions to the welfare fund and the employers’ and the employees’ contribution for
the 401(k) plan in accordance with the Memorandum Agreement. The Union never received
any of the amounts due under the agreement. When Sombrotto became aware of the
Respondent’s failure to forward the dues and contribution amounts, numerous calls were
made to the Respondent but they were not returned. Sombrotto then called Cole a number of
times. Cole basically put him off by saying he would call the Company and see what was
happening. In late October or the beginning of November, Sombrotto sent Union Business
Agent Ceasar Alarcon to speak to the drivers and Respondent’s Chief Operating Officer,
Joseph Mercadante. Alarcon did so and informed Sombrotto that Mercadante had told him
there was no contract but only a memorandum. Alarcon reported that he told Mercadante that
the memorandum was a contract. Mercadante disagreed and told Alarcon he was willing to
sit down with Sombrotto and discuss the memorandum. Sombrotto then called Cole and
advised him of the position that Mercadante was taking. Sombrotto testified that Cole
appeared confused and said he would call the Respondent and get back to Sombrotto. Cole
did so and a meeting was called for January 2007, with Sombrotto, D’Ambrosio and Cole in
attendance. D’Ambrosio opened the meeting and contended that the memorandum agreement
was too expensive and would put the Company out of business. Sombrotto told D’Ambrosio
that he had signed the agreement and that he (Sombrotto) did not want to negotiate against
himself. However, the parties did discuss various modifications that Sombrotto was willing
to consider but these were never drafted by Cole or entered into by the parties. Cole never did
send Sombrotto a complete labor agreement including the original terms of the memorandum
agreement. Cole had to leave the January 2007 meeting early. Within a few days of the
meeting, Cole called Sombrotto and told him that his client (the Respondent) had said that the
memorandum agreement would still cost Respondent too much money. Cole told Sombrotto
to do what he had to do.
Respondent presented in its case the testimony of its Chief Operating Officer Joseph
Mercadante who admitted that Respondent has not implemented any of the terms of the
Memorandum Agreement, including the health and welfare benefits and the holiday and
vacation benefits under the plan set out in the memorandum. He testified that:
Nothing has ever changed. Our employees get the same holidays that they
got before 621. They get the same pay that they got before 621. Nothing
is ever changed. The same vacation, the same sick leave, they get the
overtime the way they’re supposed to. Everything they got before 621.
JD(ATL)—33—07
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It is undisputed that Mercadante was not present in any of the initial negotiations or at
the subsequent meeting in January 2007. Neither D’Ambrosio nor Cole testified at the
hearing. I credit Sombrotto’s testimony which was unrebutted.
Respondent for its part in this hearing contends that there was no contract between the
parties and that the Memorandum Agreement which was admittedly signed by D’Ambrosio
was not a contract. Respondent further contends that the Union has abandoned the unit
employees and thus has lost any rights it may have had, if any, under the Memorandum
Agreement. Respondent also contends that the Union has waived its rights to enforce the
Memorandum, and has abandoned the Memorandum and is barred by the doctrines of laches
and estoppel from asserting any claims.
Analysis
I find that the Respondent has unlawfully refused to reduce to writing the agreement
which had been negotiated between D’Ambrosio and the Union. I find that this refusal
violated Section 8(a)(1) and (5) of the Act. H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941),
NLRB v. Strong, 393 U.S. 89 (1969). Technical rules of contract law are not determinative as
to issues under Board law concerning the parties’ engagement in collective bargaining and the
entry into and establishment of collective bargaining agreements. Pepsi-Cola Bottling Co. v.
NLRB, 659 F.2d 87, 89 (8th Cir. 1981); Americana Healthcare Center, 273 NLRB 1728
(1985).
In support of its defense, the Respondent contends that “the conduct of the parties
demonstrated that there was no intention to carry out its terms or enter into a full collective
bargaining agreement.” I find this defense to be without merit as the unrebutted testimony of
Sombrotto establishes that he made efforts to contact Respondent to discuss the Respondent’s
failure to comply with the terms of the Memorandum Agreement and that the Union was
rebuffed by Mercadante who asserted that the Memorandum Agreement did not constitute a
contract. I also find no merit to the Respondent’s contentions that the Union waived its rights
or abandoned the contract and its defenses that this case should be dismissed on grounds of
estoppel or laches. The evidence simply does not support Respondent’s position that the
Union abandoned the agreement or waived its rights under the Memorandum Agreement. It is
clear that the Union did not abandon the agreement from its attempts to contact the
Respondent and that the agreement was a valid contract to which the Respondent had agreed.
It is well established that the doctrine of laches is inapplicable to governmental functions,
W.C. Nabors Co., 134 NLRB 1078 (1961), affd. 323 F.2d 686 (5th Cir. 1963). See Rutter –
Rex Mfg. Co., 396 U.S. 258 (1969). It is also well established that traditional motions
asserting estoppel as a defense are not applicable to proceedings before the Board. Gulf
States Manufactures, Inc., 598 F.2d 896 (5th Cir. 1979). In Alto Plastics Mfg. Corp., 136
NLRB 850 (1962) the Board held that attacks on a union’s eligibility to serve as a bargaining
representative, such as that the union is dormant, will not be heard. The Board held that to be
a labor organization, the union first, must be an organization in which employees participate
and second, it must exist for the purpose, in whole, or in part, of dealing with employers
JD(ATL)—33—07
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concerning wages, hours and other terms of employment. In the instant case before me it is
clear that the Union satisfies the above criteria to establish its status as a labor organization.
I find that the evidence clearly establishes that the Respondent and the Union
negotiated the Memorandum Agreement which was signed by D’Ambrosio on behalf of the
Respondent and by Sombrotto on behalf of the Union. I find no support in the record for the
Respondent’s contention that the Union waived any rights it had under the agreement or that
the Union abandoned the contract and the bargaining unit. Sombrotto’s unrebutted testimony
establishes that the Union attempted to contact the Respondent to check on why the
Respondent was not complying with the terms of the agreement but was unsuccessful.
Conclusions of Law
1. Respondent is an employer within the meaning of Section 2(2), (6) and (7) of
the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The following employees of Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time laundry drivers excluding all other
employees covered by other Collective Bargaining Agreements,
supervisors, professionals and guards.
4. Respondent violated Section (a)(1) and (5) of the Act by refusing to reduce to
writing the collective bargaining agreement it negotiated and entered into with the Union and
by failing and refusing to implement its terms.
5. Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing
recognition from the Union.
6. The above unfair labor practices in connection with the business engaged in by
Respondent as set out above have the effect of burdening commerce within the meaning of
Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent has violated Section 8(a)(1) and (5) of the Act, it
shall be ordered to cease and desist therefrom and to take certain affirmative actions designed
to effectuate the policies of the Act.
Having found that Respondent unlawfully refused to implement the terms of the labor
agreement, Respondent shall make whole the unit employees who may have sustained a loss
JD(ATL)—33—07
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as a result thereof with interest as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:1
ORDER
The Respondent, North American Linen, LLC, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Withdrawing recognition from, and failing and refusing to bargain with
Local 621, United Workers of America as the exclusive collective bargaining representative
of employees in the following unit:
All full-time and regular part-time laundry drivers excluding all other
employees covered by other Collective Bargaining Agreements,
supervisors, professionals and guards.
(b) Refusing to prepare and execute a full collective bargaining
agreement incorporating the parties’ agreed-upon terms and conditions of employment as
referenced in the parties’ Memorandum Agreement effective from May 15, 2006 to May
14, 2009.
(c) Refusing to give effect to and applying the terms of the
Memorandum Agreement referred to above.
(d) In any like or related manner interfering with, restraining, 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 Local 621, United Workers of America.
(b) Prepare and execute a collective bargaining agreement
incorporating the parties’ agreed-upon terms and conditions of employment as referenced
in the parties’ Memorandum Agreement effective from May 15, 2006 to May 14, 2009.

1 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 purposes.
JD(ATL)—33—07
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(c) Honor the Memorandum Agreement referred to above for
employees in the unit.
(d) Make all contractually required payments to the health benefit
funds and pension funds, and make the unit employees whole in the manner set forth in
the remedy section of this decision, including interest on any backpay due.
(e) Preserve and, within 14 days of a request, or such additional time
as the Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary to analyze the amount of
backpay due under the terms of this Order
(f) Within 14 days after service by the Region, post at its Long Branch,
New Jersey facility, copies of the attached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region 22, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent 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
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employers employed by the Respondent at any time since May 15, 2006.
(g) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated at Washington, D.C., October 29, 2007.
_______________________
Lawrence W. Cullen
Administrative Law Judge

2 If this Order is enforced by a Judgment of the 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.”
JD(ATL)—33—07
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT continue to withhold recognition from, or fail and refuse to bargain with Local 621, United
Workers of America as the exclusive collective bargaining representative of employees in the following unit:
All full-time and regular part-time laundry drivers excluding all other employees covered
by other Collective Bargaining Agreements, supervisors, professionals and guards.
WE WILL NOT refuse to prepare and execute and implement a collective bargaining agreement incorporating
the parties’ agreed-upon terms and conditions of employment as referenced in the parties’ Memorandum
Agreement effective from May 15, 2006 to May 14, 2009.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL recognize Local 621, United Workers of America and prepare and execute a collective bargaining
agreement incorporating the parties’ agreed-upon terms and conditions of employment as referenced in the
parties’ Memorandum Agreement effective from May 15, 2006 to May 14, 2009.
WE WILL honor the Memorandum Agreement referred to above for employees of the unit and will make the
unit employees whole for any loss they may have sustained as a result of the unlawful refusal to implement the
agreement, with interest.
NORTH AMERICAN LINEN, LLC
(Employer)
Dated: By:_______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act
and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set
forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor, Newark, NJ 07102-3110
(973) 645-2100, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S
COMPLIANCE OFFICER, (973) 645-3784