The Archer Laundry Co.

National Labor Relations Board - Board Decisions

Oct 4, 1965

155 N.L.R.B. 24 (N.L.R.B. 1965)

. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person to cease doing business with Modern Housing Facilities , Inc., (2 ) Modern
Housing Facilities , Inc., to cease doing business with Midwest Homes, Inc., or
( 3) Roach and Roach to cease handling the products of Midwest Homes, Inc.
LOCAL 157, UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING ANDPIPEFITTING IN-
DUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) (Title)
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.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. Melrose
3-8921 , if they have any question concerning this notice or compliance with its
provisions.
The Archer Laundry Company and AFL-CIO Laundry & Dry
Cleaning International Union . Case No. 5-CA.-3040. Octo-
ber 4,1965
DECISION AND ORDER
On July 15, 1965, Trial Examiner David London issued his Deci-.
sion in the above-entitled proceeding, finding that Respondent had,
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, Respondent filed exceptions to the Decision 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 powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby.affirmed. The Board has considered the De-
cision, the exceptions, the brief, and the entire record in this case,
and hereby adopts the Trial Examiner's findings,' conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
i Respondent 's request for oral argument is hereby denied as the record and brief
adequately present the issues and positions of the parties.
8 The Board 's Decision and Certification of Representatives Issued January 8, 1965
(150 NLRB 1427 ) ; the Trial Examiner inadvertently fixes the date as January 28, 1965,
in his Decision.
155 NLRB No; 11.
THE ARCHER LAUNDRY COMPANY 25
that the Respondent, The Archer Laundry Company, Baltimore,
Maryand, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed January 26, 1965, by AFL-CIO Laundry & Dry Cleaning
International Union, hereafter referred to as the Union , the General Counsel of the
National Labor Relations Board, by its Regional Director for Region 5, issued a
complaint against The Archer Laundry Company, hereafter referred to as Respond-
ent, alleging that Respondent refused, in violation of Section 8 ( a)(5) and (1) of
the National Labor Relations Act, as amended, herein called the Act, to bargain col-
lectively with the Union , the duly selected collective -bargaining representative of the
employees in an appropriate bargaining unit. Respondent , by its answer , denied
the commission of any unfair labor practice and pleaded affirmatively that it re-
fused and refuses to recognize the Union "for the reasons that the Board erred
in overruling Respondent 's Objections to conduct affecting the results of the election
conducted . . . on April 9, 1964 [ and] that no valid election has been conducted
among Respondent 's employees."
Pursuant to due notice , a hearing was conducted before Trial Examiner David
London at Baltimore, Maryland , on March 15 , 1965, at which all parties were rep-
resented by counsel and afforded full opportunity to present relevant evidence and
oral argument . Following the close of the hearing, a brief was received from Re-
spondent which has been duly considered.
Upon the entire record in the case , ' I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been, a corporation duly
organized under and existing by virtue of the laws of the State of Maryland, having
its principal place of business in Baltimore , Maryland, where it is engaged in the
retail laundry and drycleaning business in and about the city of Baltimore. In the
course and conduct of its business , Respondent , during the year preceding the filing
of the complaint herein, received in excess of $500,000 from this retail business.
Respondent also made purchases of goods and materials from points directly out-
side the State of Maryland in excess of $25,000 during the same period . Respond-
ent admits and I find that it is, and has been at all times material herein, engaged
in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The representation proceeding
On February 3, 1964, the Union filed a petition with this Board seeking certifica-
tion as collective -bargaining representative of certain employees of Respondent. On
February 25, 1964,2 Respondent and the Union entered into a stipulation for certifi-
cation upon consent election to be held April 9 among the employees in the follow-
ing agreed-upon appropriate unit: "All production and maintenance employees,
including leadmen, leadladies , and plant clerical employees , excluding office clerical
1 (a) During the hearing , I sustained an objection to the receipt in evidence of Re-
spondent 's Exhibits Nos 1 and 2 ( a), (b), (c), and ( d) That ruling Is hereby reversed
and said exhibits are received in evidence . They have been fully considered in arriv-
ing at the findings and conclusions that follow
(b) The General Counsel's unopposed motion, dated March 26 , 1965 , to make 49 correc-
tions in the transcript of testimony herein , and a similar unopposed motion of Respondent,
dated April 21, 1965, to make 72 such corrections , are both hereby granted.
2 Unless otherwise indicated . all references to dates herein are to the year 1964.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and branch store employees, drivers, driver-salesmen, guards, and supervisors as
defined in the Act." At that election, 68 votes were cast for the Union, 59 were cast
against that organization, and 2 ballots were challenged.
On April 16 Respondent filed with the Board's Regional Director for Region 5
its timely objections to conduct affecting the results of the aforementioned election,
alleging that the Union "by, through, and in conjunction with various agents, repre-
sentatives, individuals and groups engaged in (1) a deliberate and sustained cam-
paign of inflammatory and intemperate appeals to the racial emotions and prejudices
of employees of [Respondent] thereby creating an atmosphere surrounding the elec-
tion which prevented a free and fair expression of employee choice, . . . and (2) a
systematic campaign of misrepresentation of both facts and issues intended to mis-
lead and confuse employees eligible to vote in the election "
In support of those objections, Respondent listed and submitted numerous news-
paper clippings and leaflets circulated by the Union, the Maryland Civic Interest
Group, and the Interdenominational Ministerial Alliance, all of them having over-
tones emphasizing racial discrimination against Negroes. These items, it was alleged,
were made and "intended to confuse and mislead the voters." The Regional Director
conducted an investigation of the foregoing objections and, on July 20, heard Re-
spondent's oral argument in support thereof.
On September 9, the Regional Director issued his report overruling all of said
objections, setting forth in detail his reasons therefor, and recommending that the
Union be certified as the bargaining representative of the employees in the afore-
mentioned unit. On October 23, Respondent filed with the Board its exceptions to
said report together with an able and exhaustive brief in support of said exceptions.
On January 28, 1965, the Board issued its Decision and Certification of Representa-
tives (150 NLRB 1427), finding that the foregoing exceptions "raise no issue which
would warrant reversal of the Regional Director's findings and recommendations,"
and certifying the Union to be the exclusive representative of all the employees in
the unit above described.
The Unfair Labor Practice Proceeding
The testimony in the instant proceeding is undisputed that following the fore-
going certification of the Union , Clem Regner, International representative of the
Union , called on G. H Dawson , president of Respondent, on January 22, 1965, and
asked him to negotiate a contract with the Union . Dawson replied that he "felt
that the decision rendered by the Board had been biased , . . . that he was not pre-
pared to negotiate until this matter had been settled by the court . [ and that he]
had authorized an appeal" to the Court of Appeals for the Fourth Circuit. Re-
spondent has adhered to that position ever since.
In its brief in the instant proceeding , Respondent has correctly and succinctly
summarized the only undisputed issue for consideration in this unfair labor practice
proceeding , "the validity of the Certification of Representative issued by the Board"
noted above . In attacking that certification before me , Respondent offered no newly
discovered evidence but merely "reiterates the facts , authorities and arguments pre-
sented in its Exceptions and Brief in Support of Exceptions" filed with the Board
in the representation proceeding , matters however, which the Board concluded, by
its Decision and Certification , raised "no issue which would warrant reversal of the
Regional Director 's findings and recommendation."
In that state of the record , I am required to find and conclude that by refusing
the Union 's demand for recognition and negotiation on January 22, 1965, Respond-
ent violated Section 8 ( a)(5) and ( 1) of the Act , for "it is the policy of the Board
not to allow a party to relitigate in a complaint proceeding , such as this one, the
legal effect of matters which the party has already litigated and the Board has de-
cided in a prior representation proceeding " Producers , Inc., 133 NLRB 701;
Ken-Lee , Inc., 137 NLRB 1642 (citing P,ttsbuigh Plate Glass Company v . N.L.R.B.,
313 U S 146, 161-162 ), enfd. 325 F . 2d 435 (C.A. 5).3
Before considering other issues sought to be raised before me , and because the
Board, by its Decision of January 8 , 1965 (150 NLRB 1427), contented itself with
the mere finding and conclusion that Respondent 's exceptions to the Regional Di-
rector's report and recommendation raised "no issue which would warrant reversal,"
a brief summary of the analytical and exhaustive consideration given by the Re-
gional Director to Respondent 's objections is appropriate.
8It was for that reason, and because it was not contended that it was newly discovered,
I rejected Respondent's offer of 25 items of proof concerning matters previously con-
sidered in the representation proceeding.
THE ARCHER LAUNDRY COMPANY 27
As previously indicated , Respondent , in support of its objections , submitted for
consideration to and by the Regional Director numerous clippings , bulletins, and
newspaper items circulated by the Union or its agents or representatives which,
Respondent contended , constituted "a deliberate and sustained campaign of in-
flammatory and intemperate appeals to racial emotions and prejudices" of Respond-
ent's employees . Relying on the caveat announced in Sewell Manufacturing Com-
pany, 138 NLRB 66, that the "Board does not intend to tolerate as `electoral
propaganda ' appeals and arguments which can have no purpose except to inflame
the racial feelings of voters in the election ," it was the contention of Respondent
that the clippings , newspaper items, and bulletins referred to above had that pro-
scribed intent and effect.
In obedience to the caveat imposed by Sewell, the Regional Director in his report
gave thoughtful consideration to the impact of that decision ald, after a discriminat-
ing evaluation of all the evidence submitted to him, concluded that the propaganda
under attack did not fall within the ban imposed by Sewell. He concluded, as did
the Board , that what was proscribed in that case were "appeals to racial prejudice
on matters unrelated to the election issues or to the Union 's activities . [ such
as] the distribution of photographs showing a Negro man dancing with a white
woman, and a white man , identified in the photograph as James B. Carey, president
of the IUE (which [was ] not the petitioner in [that] case ), dancing with a Negro
woman, to the latter of which was appended a news story headed: `Race Mixing
Is An Issue As Vickers Workers Ballot.' These photographs and the news articles
were not germane to any legitimate issue involved in the election and reinforce
[the Board 's] conclusion that their purpose was to exacerbate racial prejudice and to
create an emotional atmosphere of hostility to the petitioner."
Here, however , the Regional Director, though conceding that the Union's cam-
paign "was undeniably based upon racial issues," found that the "literature dis-
tributed did not deliberately seek to invoke the hatred of the Negro employees for
white people ." Instead, he found its central theme to be "that colored workers
who belong to unions are far better off than those who don 't" and that , through
organization , Negroes are more apt to achieve economic equality with white em-
ployees, a theme which the Board said , in Sewell, "is [not] to be condemned
[merely] because it may have racial overtones."
Nor is there any merit to Respondent 's contention , raised for the first time before
me, that both "the Regional Director and the Board erred in not directing a hearing
on Respondent 's objections to the election , as requested by Respondent." The first
and short answer to that contention is that the record fails to disclose that such a
request was ever made , either of the Regional Director or the Board 4 Not even
on July 20, when counsel for Respondent was afforded what he believed to be the
first opportunity in the history of that Regional Office to present oral argument in
support of objection to conduct affecting an election , was there any suggestion that
Respondent required or be given an opportunity to examine and cross -examine
witnesses , or to present permissible additional testimony.
Furthermore , and contrary to Respondent 's argument, due process does not re-
quire, under the circumstances existing here , that a formal hearing be held. N.L.R.B.
v Air Control Products of St Petersburg , Inc., 335 F 2d 245 (C.A. 5 ); N.L.R.B. v.
Clearfield Cheese Co ., Inc., 322 F. 2d 89 (C A 3 ). The only statutory requirement
under Section 9 (c) (1) of the Act is for a hearing piior to the election to determine
whether or not a question concerning representation exists. "Nowhere in the Act
is there a specific requirement that the Board conduct post -election hearings on
objection" (N.L.R.B. v . O.K. Van Storage, Inc., 297 F 2d 74, 75 ( C.A. 5)), "or
as herein advanced , to exceptions to a Regional Director's Report on Objections"
(J. R. Simplot Company , 138 NLRB 172). Section 5(6) of the Administrative
Procedure Act expressly exempts the certification of employee representatives from
its formal procedural requirements for a hearing , 60 Stat. 239 , 241, 5 U.S.C.
1001, 1004.
Nevertheless , Section 102 69(e) of the Board 's Rules and Regulations, Series 8,
as amended , does provide that the Board "may direct" even a postelection hearing
where "it appears to the Board" that the exceptions filed to the Regional Director's
report on objections or challenged ballots "raise substantial and material factual
issues " The Board, finding that a hearing may prove fruitful in resolving substan-
tial and material factual questions in a given case will , in such case , direct a hearing.
4 Respondent , in its brief filed with the Board in support of its exceptions , asked for
such a hearing only if the Board "were to disagree with the Regional Director 's findings
with respect to the agency question " The Board , however , affirmed the Director's find-
ing that the Union was "responsible for all literature disseminated in its behalf."
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Where, however, the Board finds otherwise, it is clear that the Board's determination
to withhold a hearing is vulnerable only if it is shown that the Board's action was
arbitrary or capricious. Here, no such claim was made and was certainly not
established.
The cases upon which Respondent relies, N.L.R.B. v. The Lord Baltimore Press,
Inc., 300 F. 2d 671 (C.A. 4), and N.L.R.B. v. Poinsett Lumber and Manufacturing
Company, 221 F. 2d 121 (C.A. 4), upon which Lord Baltimore is predicated, are in-
apposite. Thus, in Poinsett, the employer's objections filed with the Regional
Director raised substantial questions of fact as to threats and intimidation by the
Union and was accompanied by a demand for a hearing with regard thereto, a de-
mand which was repeated before the Board upon the filing of the employer's excep-
tions to the Regional Director's report. Here, however, there was no such demand,
and the only substantial issue of fact raised by Respondent's objections and excep-
tions-whether the Union was responsible for the distribution of all the material
of which Respondent complains-was decided by the Regional Director and the
Board in favor of Respondent. The only legal issue-whether that material ran
afoul of the rule announced in Sewell-was ably presented by counsel to the
Regional Director both by brief and oral argument, and repeated more exhaustively
by Respondent's brief to the Board.
It is now more than 15 months after the Union was, in the opinion of the Board,
validly elected as the collective-bargaining representative of Respondent's employees.
To now further delay its recognition by Respondent, thereby denying Respondent's
employees their guaranteed right to bargain collectively, in order to grant Respond-
ent a hearing wherein it is not claimed to have any newly discovered or previously
unavailable evidence, would, indeed, make a mockery of the Board's processes.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practises I recom-
mend that it cease and desist therefrom and that it take the affirmative action pro-
vided in the Recommended Order below which I find to be necessary to remedy and
to remove the effects of the unfair labor practices and to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following
CONCLUSIONS OF LAW
1. Respondent The Archer Laundry Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. AFL-CIO Laundry & Dry Cleaning International Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following unit of the Respondent's employees is appropriate for the pur-
poses of collective bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed by Respondent, including
leadmen, leadladies, and plant clerical employees, excluding all office clerical and
branch store employees, drivers, driver-salesmen, guards, and supervisors as defined
in the Act.
4. At all times since April 9, 1964, AFL-CIO Laundry & Dry Cleaning Inter-
national Union has been, and continues to be, the exclusive bargaining representative
of all the employees in the aforementioned unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing, on and after January 22, 1965, to bargain collectively with the
AFL-CIO Laundry & Dry Cleaning International Union as the exclusive representa-
tive of its employees in the aforesaid unit, Respondent has engaged in and is engag-
ing 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.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record,
and pursuant to Section 10(c) of the National Labor Relations Act, as amended,
I hereby recommend that the Respondent, The Archer Laundry Company, its
officers, agents, successors, and assigns, shall:
THE ARCHER LAUNDRY COMPANY 29
1. Cease and desist from refusing to bargain collectively with AFL-CIO Laundry
& Dry Cleaning International Union as the duly certified exclusive representative of-
its employees in the following appropriate unit:
All production and maintenance employees employed by Respondent , including
leadmen , leadladies , and plant clerical employees , excluding office clerical and branch
store employees , drivers, driver -salesmen, guards , and supervisors as defined in,
the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request , bargain collectively with AFL-CIO Laundry & Dry Cleaning
International Union as the representative of its employees in the above -described
appropriate unit and, if an understanding is reached , embody such understanding
in a signed agreement.
(b) Post at its offices and plant in Baltimore, Maryland, the attached notice
marked "Appendix " 5 Copies of said notice to be furnished by the Regional Director
for Region 5, shall, after being signed by Respondent 's representative , be posted by
Respondent immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered , defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 5, in writing, within 20 days from
the date of receipt of this Decision , what steps Respondent has taken to comply
herewith.6
6 If this Recommended Order is adopted by the Board , the words "a Decision and Order"
shall be substituted for the words " the Recommended Order of a Trial Examiner" in
the notice . If the Board ' s Order is enforced by a decree of a United States of Appeals,
the notice will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals , Enforcing an Order" for the words "a Decision and
Order "
6If this Recommended Order Is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 5, in writing , within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL bargain collectively, upon request, with AFL-CIO Laundry & Dry
Cleaning International Union, as the exclusive bargaining representative of all
our employees in the appropriate unit described below with respect to rates of
pay, wages , hours of employment , and other terms and conditions of employ-
ment, and, if an agreement is reached , embody such agreement in a signed
contract . The appropriate unit is.
All production and maintenance employees employed by us, including
leadmen, leadladies, and plant clerical employees , excluding office clerical
and branch store employees , drivers, driver-salesmen, guards, and super-
visors as defined in the Act.
THE ARCHER LAUNDRY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance with its pro-
visions , they may communicate directly with the Board 's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100.