Tri-City Linen Supply

National Labor Relations Board - Board Decisions

Nov 1, 1976

226 N.L.R.B. 669 (N.L.R.B. 1976)

TRI-CITY LINEN SUPPLY 669
Tri-City Linen Supply and Sales Drivers & Dairy Em-
ployees Local No. 166, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 21-CA-14569
November 1, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on April 8, 1976, by Sales
Drivers & Dairy Employees Local No. 166, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union, and duly served on Tri-City Linen Supply,
herein called Respondent, the General Counsel of
the'National Labor Relations Board, by the Regional
Director for Region 21, issued a complaint and no-
tice of hearing on May 11, 1976, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before an Administra-
tive Law Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on March 11, 1976,
following a Board election in Case 21-RC-14173 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; ' and that, commenc-
ing on or about April 7, 1976, and at all times there-
after, Respondent has refused, and continues to date
to refuse, to bargain collectively with the Union as
the exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
May 18, 1976, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On June 29, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, with appendixes. Subsequently, on July 9,
t Official notice is taken of the record in the representation proceeding,
Case 21-RC-14173, as the term "record" is defined in Secs 102 68 and
102.69(g) of the Board's Rules and Regulations , Series 8, as amended See
LTV Electrosystenas, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C.A. 4,
1968); Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26
(C.A. 5, 1969), Intertype Co. v Penello, 269 F Supp 573 (D.C Va., 1967),
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968; Sec
9(d) of the NLRA, as amended
1976, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to complaint, Respondent in sub-
stance denied the representative status of the Union
because the Board unlawfully overruled its objec-
tions to the election in the underlying representation
case. The General Counsel contends that Respon-
dent is attempting to relitigate issues decided in the
prior related representation case and that those issues
may not be relitigated here. We agree.
Respondent specifically alleges that the Union is
not lawfully certified as the bargaining representative
because a union agent made material misrepresenta-
tions of fact to the employees on election eve, be-
cause the Union attempted to intimidate Respondent
from lawful electioneering by filing an unfair labor
practice charge, and because the election was held
while such charge was pending. The record, includ-
ing the relevant documents in representation Case
21-RC-14173, establishes that on May 23, 1975, an
election was held pursuant to a Stipulation for Certi-
fication Upon Consent Election. The tally of ballots
showed four in favor of, and two against, the Peti-
tioner, with an insufficient number of challenged bal-
lots to affect the results of the election. Respondent
filed timely objections alleging in essence that a
union business representative made material misrep-
resentations to the employees the night before the
election, that the Union filed an unfair labor practice
charge against Respondent to intimidate him from
lawful electioneering, and that holding an election
while such charge was pending destroyed laboratory
conditions. After investigation, the' Acting Regional
Director issued his Report on Objections and Order
Directing Hearing and' Order Consolidating Cases
and Notice of Hearing on August 26, 1975, in which
he ordered Case 21-RC-14173 consolidated with
Case 21-CA-13661 for hearing. The consolidated
cases went to hearing before Administrative Law
Judge Rogosin who issued his decision"on November
18, 1975, in which he recommended overruling Re-
spondent's objections. Respondent thereafter filed
exceptions and a supporting brief with the Board. On
226 NLRB No. 98
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 11, 1976, the Board affirmed the Administra-
tive Law Judge's rulings, findings, and conclusions
and certified the Union .2
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence 3 or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled to
relitigate issues which were or could have been liti-
gated in a prior representation proceeding.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding,' and Respondent does not of-
fer to adduce at a hearing any newly discovered or
previously unavailable evidence, nor does it allege
that any special circumstances exist which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding.
We shall, -accordingly, grant the Motion for Sum-
mary Judgment. ,
On the basis of the entire record, the Board makes
the following:
2 223 NLRB 21
3 Respondent alleges it has newly discovered or previously unavailable
evidence relevant to issues raised in the representation proceeding This
evidence consists of expired Teamsters contracts with similar enterprises
around Riverside , California Respondent does not allege these contracts
were unobtainable despite the exercise of due diligence . To the contrary, it
appears that these (now expired) contracts were extant and available to
Respondent had it exercised due diligence Hence , this evidence is not actu-
ally "unavailable" nor is it "newly discovered." A-I Sheet Metal Works,
Inc, 218 NLRB 962 (1975)
4 See Pittsburgh Plate Glass Co v NLRB, 313 US 146, 162 (1941),
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c)
5 In its answer to complaint , Respondent denies that the Union is a labor
organization within the meaning of Sec 2 (5) of the Act, that the unit de-
scribed in par. 5 of the complaint is appropriate , and that the Union is the
representative of that unit. Additionally , Respondent contends in its re-
sponse and opposition of employer to Motion for Summary Judgment that
the unit as certified by the Board is vague and that a hearing is needed to
resolve the vagueness All of these issues were litigated and/or litigable in
the previous representation proceeding
Respondent in its answer to complaint denies a request to bargain was
ever made and argues in its response and opposition of employer to Motion
for Summary Judgment that a request to bargain cannot effectively be made
upon Respondent's counsel. A request to bargain was made to the attorney
who represented Respondent in the prior representation proceeding and
who now represents Respondent in the instant proceeding . Counsel re-
sponded to the request by letter dated May 17 , 1976, denying that a request
made to him was appropriate as he does not represent Respondent in collec-
tive bargaining but only before this Board Counsel also included in this
letter Respondent's answer to complaint in this case . It appears , therefore,
that counsel was Respondent 's agent at the time the request was made As a
practitioner of labor law , counsel was well aware of the legal implications of
the request . In this context, whether counsel was Respondent 's authorized
bargaining agent is irrelevant . Roadway Express, Inc, 170 NLRB 1446
(1968) Any, additional requests would have been a useless gesture. Old
Town Shoe Company, 91 NLRB 240, 242 (1950) Respondent also contends
the complaint violates due process in not specifying the relief sought This
defense is clearly frivolous because the remedy for an 8(a )(5) violation is
well known and because due process does not require a complaint to specify
the relief sought
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Frank Cifu, an individual, is, and at all times ma-
terial herein has been, the sole proprietor of Tri-City
Linen Supply, a business engaged in the rental of
linen supplies in Riverside, California. During the
past 12 months, a representative -period, Respondent
purchased and received goods and supplies valued in
excess of $50,000 from suppliers located within the
State of California, which suppliers, in turn, pur-
chased and received said goods and supplies directly
from suppliers located outside the State of Califor-
nia.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Sales Drivers & Dairy Employees Local No. 166,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All wholesale and retail route salesmen and
shuttle drivers, excluding all other employees,
office clerical employees, professional employ-
ees, guards, and supervisors as defined-in the
Act.
2. The certification
On May 23, 1975, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 21, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 11, 1976, and the Union con-
TRI-CITY LINEN SUPPLY 671
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about March 22, 1976, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about May 17, 1976; and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
May 17, 1976, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its -opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U. S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd . 350 F.2d 57 (C.A. 10, 1965).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Tri-City Linen Supply is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Sales Drivers & Dairy Employees Local No.
166, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All wholesale and retail route salesmen and
shuttle drivers, excluding all other employees, office
clerical employees, professional employees, guards,
and supervisors as defined in the Act constitute a
unit appropriate' for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since March 11, 1976, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about May 17, 1976, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the Respondent,
Tri-City Linen Supply, Riverside, California , its offi-
cers, agents, successors , and assigns , shall:
1. Cease and desist from:
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Sales Drivers & Dairy
Employees Local No. 166, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining rep-
resentative of its employees in the following appro-
priate unit:
All wholesale and retail route salesmen and
shuttle drivers, excluding all other, employees,
office clerical employees, professional employ-
es, guards, and supervisors as defined in the
Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions, of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its place of business in Riverside, Cali-
fornia, copies of the attached notice marked "Appen-
dix." 6 Copies of said notice, on forms provided by
the Regional Director for Region 21, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
6In the event that 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 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."
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps have been 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 bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Sales
Drivers & Dairy Employees Local No. 166, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousmen and Helpers of America, as
the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if, an understanding is
,reached, embody such understanding in a signed
agreement. The bargaining unit is:
All wholesale and retail route salesmen and
shuttle drivers, excluding all other employees,
office clerical employees, professional em-
ployees, guards, and supervisors as defined in
the Act.
TRI-CITY LINEN SUPPLY