Unifirst Corporation

National Labor Relations Board - Administrative Judge Opinions

Mar 23, 2005

01-CA-040955 (N.L.R.B. Mar. 23, 2005)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEW YORK BRANCH OFFICE
DIVISION OF JUDGES

UNIFIRST CORPORATION Case Nos. 1-CA-40955
1-CA-41570
And 1-CA-41596
1-CA-41606
UNITE, NEW ENGLAND JOINT BOARD, 1-CA-42051
AFL-CIO, CLC 1-CA-42120

Christina Poulter-Elzeneiny, Esq., Counsel for the General Counsel.
Peter Kraft, Esq., Law Offices of Peter Kraft, Counsel for the Respondent.

DECISION

Statement of the Case

Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on March 1,
2005 in Northampton, Massachusetts. The latest Consolidated Complaint herein (and further
amended at the hearing), was based upon unfair labor practice charges that were filed by
UNITE New England Joint Board, AFL-CIO, CLC, herein called the Union, on May 21, 2003
(and amended on May 29 and July 30, 2003) for 1-CA-40955, on February 19, 2004 (and
amended on May 27, 2004), for 1-CA-41570, on March 2, 2004 (and amended on May 27,
2004) for 1-CA-41596, and on March 8, September 7, and October 1, 2004 for 1-CA-41606, 1-
CA-42051, and 1-CA-42120. The Consolidated Complaint alleges that Unifirst Corporation,
herein called the Respondent, engaged in conduct in violation of Section 8(a)(1)(3) and (5) of
the Act. The Section 8(a)(1) conduct involves the alleged solicitation of grievances and the
promise to remedy them, the promulgation of a rule prohibiting the circulation of a Union petition
during nonworking time in nonworking areas, as well as interrogation and creating the
impression that employees’ Union activities were under surveillance by the Respondent. It is
further alleged that the Respondent violated Section 8(a)(1)(3) of the Act by discharging
employee Elliut Nunez. Finally, it is alleged that the Respondent violated Section 8(a)(1)(5) of
the Act in two areas: by engaging in unilateral actions affecting the employees’ terms and
conditions of employment even though the Union was the exclusive collective bargaining
representative of the employees, and by refusing to provide the Union with information that it
requested, which information was necessary for, and relevant to, the Union as the collective
bargaining representative of its employees. Respondent’s Answer to these Section 8(a)(5)
allegations defends that on September 4, 2001 it properly withdrew recognition from the Union
and that this withdrawal of recognition continues.

Prior to the commencement of the hearing the parties entered into an Informal
Settlement Agreement involving the Section 8(a)(1) allegations (Paragraph 7 of the Complaint),
together with Paragraph 14(h) of the Complaint, which alleges that the Respondent refused to
permit a Union representative access to employees on about March 1, 2004. Further, the
parties entered into a non Board settlement of the Section 8(a)(3) allegation (Paragraphs 8, 9
and 10) and these allegations were withdrawn. Therefore, the sole remaining allegations are the
Section 8(a)(5) allegations, Paragraphs 11 through 22, with the exception of Paragraph 14(h),
as stated above, and Paragraph 21, the conclusory paragraph of the withdrawn Section 8(a)(3)
allegation.

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Findings of Fact

I. Jurisdiction

Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.

II. Labor Organization Status

Respondent admits, and I find, that the Union has been a labor organization within the
meaning of Section 2(5) of the Act.

III. Background

Since about 1998, the Union has been the collective bargaining representative of the
Respondent’s employees in the following appropriate unit:

All production employees of the Respondent as described in a collective-bargaining
agreement between Respondent and the Union, effective by its terms for the period
October 5, 1998 through October 1, 2001.

For about forty years prior to 2001, these employees were members of Laundry Workers, Local
66, which merged with the Union in about 2001. Prior to 2001 the parties maintained a non-
confrontational relationship. However, as a result of the merger of the unions, it became clear
that the Union’s pension fund was over funded, while its health and welfare fund was not. As a
result, in about January 2001, the Union requested that the Respondent divert $37 of its $38
monthly contribution for each employee from the pension fund to its health and welfare fund.
Fearful of future liability if the pension fund subsequently became under funded, the
Respondent refused the Union’s request, with the result that the relationship between the
parties became less harmonious.

In April and May 2002, Administrative Law Judge Wallace Nations heard a case
involving the Respondent and the Union concerning numerous Section 8(a)(1) allegations,
resulting withdrawal of recognition by the Respondent and a refusal to furnish the Union with
requested information, allegedly in violation of Section 8(a)(5) of the Act. On March 18, 2003,
Judge Nations issued a Decision, wherein he dismissed some of the Section 8(a)(1) allegations.
However, most relevant to the instant matter, Judge Nations found that the Respondent violated
Section 8(a)(1) of the Act by statements that its agent made at a meeting of employees where
he “…made it clear that the only way the employees would have profit sharing and a 401(k) plan
was to decertify the Union” and by polling the employees regarding their sentiments toward the
Union. He found that this poll was unlawful because it was “tainted” by the Section 8(a)(1)
statements set forth above, and by the fact that it was taken while a Board decertification was
pending. Because the poll, the tally of which showed that 37 employees favored the
Respondent and 21 favored the Union, was tainted, so was the Respondent’s withdrawal of
recognition, which therefore violated Section 8(a)(5) of the Act, as did the Respondent’s failure
to provide the Union with requested information. An appeal was taken from this Decision, but it
has not yet been ruled upon by the Board.1
Continued
1 At the hearing, I informed the parties that I would wait for the Board’s decision in Judge
Nations’ case prior to issuing my decision in the instant matter. Upon reconsideration, I have
decided not to wait for the Board’s decision for a number of reasons. I have learned that the

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_________________________

IV. The Allegations Herein

The remaining portions of the Complaint herein, all admitted by the Respondent at the
hearing2, fall into two categories: unilateral changes and the refusal to provide the Union with
requested information. As regards the former, it is alleged that the Respondent:

(a) In about May 2003, by General Manager Steve Harr, and Director of Human
Resources William Coe, admitted supervisors and agents of the Respondent, at a
meeting of the production employees at the Indian Orchard facility, offered unit
employees two new benefit plans, including a long term disability plan.

(b) In about November 2003 it implemented a policy of requiring unit employees to meet
written production standards.

(c) In about November 2003, it enforced more vigorously for unit employees pre-existing
written production standards.

(d) In about December 2003, it continued to compensate employees based upon a new
merit pay system that was unilaterally instituted in the Fall of 2001.

(e) In about December 2003, it enforced more vigorously pre-existing corporate and
local company quality standards.

(f) In about January 2004, it implemented a new incentive plan to reward unit employees
for good attendance.

(g) On about February 19, 2004, by Production Manager Mark Breault, it changed the
work assignment and hours of unit employee Ken Bledsoe.

(i) On about September 3, 2004, it refused to permit a Union representative access to
the employees.3

It is further alleged, and admitted, that these subjects relate to wages, hours and other terms
and conditions of employment of the unit employees, and are mandatory subjects of bargaining,
and that the Respondent engaged in these activities without prior notice to the Union and
without affording the Union an opportunity to bargain with respect to the conduct and the effects
of the conduct.

As regards the alleged refusal to provide information, it is alleged, and admitted, that on
Board’s decision is not imminent, and I believe that the employees, the Union, and the
Respondent are entitled to know where they stand in this matter. Further, by issuing this
decision at this time rather than waiting for the Board decision in the prior matter, the Board can
rule on this decision at the same time that it rules on Judge Nations’ Decision, thereby
expediting the ultimate determination in this matter.
2 While admitting the facts underlying the Section 8(a)(5) allegations, counsel for the
Respondent stated that he was not waiving his right to assert a Section 10(b) defense.
3 It is not clear from the record why the parties included Paragraph 14(h) of the Complaint in
their Informal Settlement Agreement, and did not include this paragraph, where the only
difference is the date of the alleged conduct.

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about March 1, 2004, the Union, by letter, requested the Respondent furnish it with certain
information, which information was necessary for, and relevant to, the Union’s performance of
its duties as the exclusive collective bargaining representative of the unit, but since that date,
the Respondent has failed and refused to furnish the Union with this information, in violation of
Section 8(a)(5) of the Act. The requested information is:

(1) A list of current employees, including their names, dates of birth, rates of pay, job
classifications, department, last known address, phone number and social security
number.

(2) A copy of all current company personnel policies or procedures which relate to or
have an effect on bargaining unit employees, including but not limited to leaves of
absence, shifts, starting times, hiring, safety rules and regulations, disciplinary rules,
attendance rules, plant rules, vacations, holidays and overtime;

(3) A copy of all company fringe benefit plans including pension, 401K, profit sharing,
severance, stock incentive, health insurance, apprenticeship, training, legal services,
child care or any other plans which relate to the employees and where applicable, copies
of the summary descriptions for such plans, cost of such benefits, and costs paid by the
employees where applicable;

(4) Copies of all current job descriptions for bargaining unit employees;

(5) Copies of any company wage or salary plans, including schedules for employees on
incentive jobs;

(6) Copies of the OSHA 200 logs for the last three years.

V. Analysis

Relevant to the allegations herein is Judge Nations’ finding that the Respondent
unlawfully withdrew recognition from the Union on August 26 and September 4, 2001. The basis
of this finding is that the withdrawal was based upon the “tainted” poll. A few weeks prior to the
polling of the employees, Respondent conducted meetings of the employees telling them that
they would only receive profit sharing and 401(k) benefits without the Union, in violation of
Section 8(a)(1) of the Act. This would clearly affect the polled employees a few weeks later. In
addition, as further found by Judge Nations, a poll taken while a petition for a Board election is
pending does not serve any legitimate purpose since the employees’ feelings would be better
served by a Board conducted election. For these reasons, I agree with Judge Nations’ finding
that the Respondent’s withdrawal of recognition of the Union in August and September violated
Section 8(a)(5) of the Act. The Union was therefore the collective bargaining representative of
the unit employees during the relevant period herein, from March 2003 through September
2004. As the collective bargaining representative of these employees, the Union was entitled to
notice of, and an opportunity to bargain about, any change in the terms and conditions of
employment of these unit employees. As the Respondent did not afford the Union an
opportunity to bargain about the mandatory subjects of bargaining specified in Paragraphs 14
(a), (b), (c), (d), (e), (f), (g) and (i), Respondent violated Section 8(a)(1)(5) of the Act. Similarly,
as the Respondent has failed and refused to furnish the Union with the information requested in
its letter dated March 1, 2004, which information was necessary for, and relevant to, the Union
as the collective bargaining representative of these employees, the Respondent violated
Section 8(a)(1)(5) in this respect as well.

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Conclusions of Law

1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.

2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.

3. The Respondent violated Section 8(a)(1)(5) of the Act by engaging in the following
conduct without prior notice to the Union and without affording the Union an opportunity to
bargain with the Respondent with respect to this conduct and the effects of this conduct:

(a) In about March 2003, it offered unit employees two new benefit plans, including a
long term disability plan.

(b) In about November 2003, it implemented a policy of requiring unit employees to meet
written production standards.

(c) In about November 2003, it enforced more vigorously pre-existing written production
standards.

(d) In about December 2003, it continued to compensate employees based upon a new
merit pay system that was unilaterally instituted in the Fall of 2001.

(e) In about December 2003, it enforced more vigorously pre-existing corporate and
local company quality standards.

(f) In about January 2004, it implemented a new incentive plan to reward unit employees
for good attendance.

(g) On about February 19, 2004, it changed the work assignment and hours of employee
Ken Bledsoe.

(h) On about September 3, 2004, it refused to permit a Union representative access to
the plant.

(4) The Respondent further violated Section 8(a)(1)(5) of the Act by failing and refusing
to provide the Union with information that it requested by letter to the Respondent dated March
1, 2004, which information was necessary for, and relevant to, the Union as the collective
bargaining representative of certain of the Respondent’s employees.

The Remedy

Having found that the Respondent has engaged in unfair labor practices in violation of
Section 8(a)(1)(5) of the Act, I shall recommend that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the policies of the Act. Judge Nations’
decision recommended that the Respondent be ordered to recognize and, upon request,
bargain with the Union as the exclusive collective bargaining representative of the unit
employees and, if an understanding is reached, to embody that understanding in a signed
agreement. I recommend that the Respondent be ordered to rescind the unilateral changes that
it instituted between March 2003 and September 2004 and that it make whole any employee
who suffered a loss as a result of these unilateral changes, in accordance with Ogle Protection

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Service, 183 NLRB 682 (1970), with interest computed pursuant to New Horizons for the
Retarded, 283 NLRB 1173 (1978). I shall further recommend that Respondent be ordered to
furnish the Union with the information it requested by letter dated March 1, 2004.

On these findings of fact and conclusions of law and based upon the entire record
herein, I hereby issue the following recommended4

ORDER

The Respondent, Unifirst Corporation, its officers, agents, successors and assigns, shall:

1. Cease and desist from

(a) Unilaterally engaging in any activity affecting its unit employees’ terms and conditions
of employment and constituting mandatory subjects of bargaining, without prior notice to
the Union and without affording the Union an opportunity to bargain about these
subjects.

(b) Failing and refusing to provide the Union with requested information, which
information is necessary for, and relevant to, the Union as the collective bargaining
representative of certain of the Respondent’s employees.

(c) In any like or related manner interfering with, restraining or coercing employees in the
exercise of rights guaranteed by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the purposes of the Act:

(a) Notify its unit employees that it is rescinding its offer of two new benefits plans,
including a long-term disability plan.

(b) Rescind its policy implemented in about November 2003 of requiring employees to
meet written production standards.

(c) Rescind the enforcement of the more vigorous pre-existing written production
standards and pre-existing corporate and local company quality standards.

(d) Rescind the compensation of employees based upon a merit pay system that was
unilaterally instituted in the Fall of 2001.

(e) Rescind the implementation of the new incentive plan introduced in about January
2004, to reward unit employees for good attendance.

(f) Rescind the change in work assignment and hours of employee Ken Bledsoe.

(g) Allow Union representatives access to the plant at reasonable times.
4 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.

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(h) In a timely manner provide the Union with the following information as requested by
the Union in its letter dated March 1, 2004:

(i) A list of current employees, including their names, dates of hire, rates of pay,
job classifications, department, last known address and social security number;

(ii) A copy of all current company personnel policies or procedures which relate
to, or have an effect on, bargaining unit employees, including, but not limited to,
leaves of absence, shifts, starting times, hiring, safety rules and regulations,
disciplinary rules, attendance rules, plant rules, vacations, holidays and overtime;

(iii) A copy of all company fringe benefit plans, including pension, 401K, profit
sharing, severance, stock incentive, health insurance, apprenticeship, training,
legal services, child care or any other plans which relate to the employees and,
where applicable, copies of the summary plan descriptions for such plans, cost of
such benefits, and costs paid by the employees where applicable;

(iv) Copies of all current job descriptions for bargaining unit employees;

(v) Copies of any company wage or salary plans, including schedules for
employees on incentive jobs; and

(vi) Copies of the OSHA 200 logs for the last three years.

(i) Make whole employees in the unit, with interest, for any loss of earnings and other
benefits that they may have suffered due to the Respondent’s unilateral changes
discussed above.

(j) 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, if
any, due under the terms of this Order.

(k) Within 14 days after service by the Region, post at its facility in Indian Orchard,
Massachusetts, copies of the attached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region 1, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent 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
5 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 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.”

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current employees and former employees employed by the Respondent at any time
since March 2003.

(l) 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, Washington, D.C.

_________________________________
Joel P. Biblowitz
Administrative Law Judge
JD(NY)–16-05
Indian Orchard, MA
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 make any change in your terms or conditions of employment without giving prior notice to UNITE New
England Joint Board, AFL-CIO, CLC (“the Union”) and without affording the Union an opportunity to bargain with
respect to the conduct and the effects of the conduct.

WE WILL NOT refuse to provide the relevant and necessary information the Union requested by letter dated March
1, 2004.

WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise of your rights
guaranteed by Section 7 of the Act.

WE WILL rescind the unilateral changes in your conditions of employment we made between March 2003 and
September 2004, WE WILL reimburse any employee for any loss they suffered due to these changes, and WE WILL
notify the Union in writing that this will be done.

WE WILL, in a prompt and timely manner, provide the Union with the information that it requested by letter dated
March 1, 2004.

UNIFIRST CORPORATION
(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.
10 Causeway Street, Boston Federal Building, 6th Floor, Room 601
Boston, Massachusetts 02222–1072
Hours of Operation: 8:30 a.m. to 5 p.m.
617-565-6700.
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, 617-565-6701.

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