NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Mickey’s Linen & Towel Supply, Inc.[1] and Chicago Midwest Regional Joint Board, UNITE-HERE. Case 13–CA–43153
April 20, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Walsh
On October 2, 2006, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision.
The Charging Party (the
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions, only to the extent consistent with this Decision and Order.[3]
1. The judge found
that the Respondent did not violate Section 8(a)(1) of the Act by unlawfully
assisting employees in their attempts to decertify the
The Respondent operates a linen cleaning and rental
business in
In early February 2006,[4]
unit employee Judy Wickhorst began soliciting signatures from coworkers to decertify
the
The judge found that Cerda’s conduct amounted to mere ministerial assistance and, as such, did not violate the Act. In support, the judge observed: (1) Wickhorst initiated the decertification effort without management involvement, (2) Cerda’s translations did not specifically address the decertification petition, and (3) Cerda initially informed Wickhorst that he could not get involved in the decertification process. Contrary to the judge, for reasons set forth below, we find that the Respondent, through Cerda, provided unlawful assistance to the decertification effort.
It is well settled that an employer violates Section 8(a)(1) of the Act by “actively soliciting, encouraging, promoting, or providing assistance in the initiation, signing, or filing of an employee petition seeking to decertify the bargaining representative.” Wire Products Mfg. Co., 326 NLRB 625, 640 (1998), enfd. sub nom. NLRB v R.T. Blankenship & Associates, Inc., 210 F.3d 375 (7th Cir. 2000) (table). In determining whether an employer’s assistance is unlawful, the appropriate inquiry is “whether the Respondent’s conduct constitutes more than ministerial aid.” Times Herald, 253 NLRB 524 (1980). In making that inquiry, the Board considers the circumstances to determine whether “the preparation, circulation, and signing of the petition constituted the free and uncoerced act of the employees concerned.” Eastern States Optical Co., 275 NLRB 371, 372 (1985) (citing KONO-TV-Mission Telecasting, 163 NLRB 1005, 1006 (1967)); see also Hall Industries, 293 NLRB 785, 791 (1989), enfd. mem. 914 F.2d 244 (3d Cir. 1990) (employer violated Sec. 8(a)(1) by actively assisting a decertification effort “in the context of serious unfair labor practices”); Sociedad Espańola de Auxilio Mutuo y Beneficia, de P. R., Inc., 342 NLRB 458, 459 (2004), enfd. 414 F.3d 158 (1st Cir. 2005) (employer violated Sec. 8(a)(1) by advising employees how to collect signatures for a decertification petition, asking them to sign the petition, and telling them they would no longer receive previously promised raises because they had become unionized).
Applying those principles here, we find that the Respondent’s conduct constituted more than mere ministerial aid, and was therefore unlawful. Cerda translated for Wickhorst, who was soliciting signatures for a decertification petition, moments after he served as a translator for the Respondent at a mandatory employee meeting that concerned union matters, in particular, the ongoing collective-bargaining negotiations. In addition to simply translating, Cerda stood with Wickhorst while the employees made their decisions and signed the decertification petition. In these circumstances, the employees could reasonably feel coerced into signing the decertification petition.
Contrary to the judge, we find the fact that Wickhorst alone initiated the decertification effort immaterial. Further, we find that, although Cerda initially declined Wickhorst’s request to translate for her, this does not shield his later actions. Ultimately, Cerda agreed to translate for Wickhorst, and his translations expressed support of the decertification petition. Cerda then stood with Wickhorst and watched as the employees signed the decertification petition. We are satisfied that, on those facts, Cerda provided “assistance in the . . . signing . . . of [the] employee petition.” Wire Products Mfg. Co., supra. Indeed, without Cerda’s assistance, there would have been no solicitation of the two employees. In this circumstance, the employees could reasonably feel coerced when Cerda asked whether they wanted to pay dues to the Union and stated they could do better than the Union, and then stayed to watch whether they signed the petition. Accordingly, we reverse the judge and find that the Respondent’s assistance violated Section 8(a)(1) of the Act as alleged.
2. The judge also found that the General Counsel failed to prove that the Respondent violated Section 8(a)(1) by interrogating its employees as to whether they had signed the decertification petition. For the reasons stated below, we reverse the judge and find that, on the credited facts, the Respondent engaged in a coercive interrogation. Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
In so finding, we rely, in particular, on the credited testimony
of employee Zoila Loredo.[6] Loredo’s testimony establishes that, a few
days after translating for the Respondent at the all-employee meeting, Supervisor
Cerda returned to the
Supervisor Cerda had not only recently served as the
Respondent’s translator at a mandatory meeting for employees, but, as shown
above, he had, on that same day, unlawfully rendered assistance to the
decertification effort. On the heels of
those actions, Cerda returned to the plant, approached Loredo, and asked
whether she agreed to “keep” the
ORDER
The National Labor Relations Board orders that Respondent,
Mickey’s Linen & Towel Supply, Inc.,
1. Cease and desist from
(a) Promising its employees better benefits by asking employees why they need a union and telling employees that they could give them good benefits for the purpose of discouraging membership in and support for the Union, Chicago and Midwest Regional Joint Board, UNITE-HERE.
(b) Unlawfully assisting employees in their attempts to
decertify the Union,
(c) Coercively interrogating employees about their union
support by asking employees whether they are happy with the Union and whether
they have agreed to keep the
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in
(b) 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.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
Robert J. Battista, Chairman
Wilma
B. Liebman, Member
Dennis
P. Walsh,
Member
(seal) National
Labor Relations Board
APPENDIX
Notice TO Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
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 promise employees better benefits by asking employees why they need a union and telling employees that we can give them good benefits for the purpose of discouraging membership in and support for the Union, Chicago and Midwest Regional Joint Board, UNITE-HERE.
We will not unlawfully
assist employees in their attempts to decertify the Union,
We will not coercively interrogate employees about their union support by asking employees about whether they are happy with the Union and whether they have agreed to keep the Union.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of by the Act.
Mickey’s Linen & Towel Supply, Inc.
Hyeyoung Bang-Thompson, Esq., for the General Counsel.
Scott V. Kamins, Esq., of
Rebecca Munoz, of
DECISION
Statement of the Case
Bruce D. Rosenstein,
Administrative Law Judge. This case was tried before me on July 12 and 13, 2006,1 in
Issues
The complaint alleges that the Respondent engaged in independent violations of Section 8(a)(1) of the Act including unlawfully assisting employees in their attempts to decertify the Union and unlawfully interrogating employees by asking them if they had already signed the decertification petition. Additionally, the complaint alleges that the Respondent engaged in a violation of Section 8(a)(1) and (5) of the Act by unilaterally changing the union access provision in the parties’ collective-bargaining agreement.
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following
Findings of Fact
i. jurisdiction
The Respondent is a corporation engaged in the business of
linen cleaning and rental in
ii. alleged unfair labor practices
A. Background
The
An employee of the Respondent filed a RD (decertification
petition) in March 2006 with the Board asserting that a majority of the
employees no longer wanted the
B. The 8(a)(1) Allegations.
The Board has held that interrogation is not a per se
violation of Section 8(a)(1) of the Act.
Rossmore House, 269 NLRB 1176 (1984),
affd. sub nom. Hotel and Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determining whether an interrogation is
unlawful, the Board examines whether, under all the circumstances the
questioning reasonably tends to interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights.
Rossmore House, 269 NLRB at
1177–1178. Emery Worldwide, 309 NLRB 185, 186 (1992). Under the totality of circumstances approach,
the Board examines factors such as whether the interrogated employee is an open
and active union supporter, the background of the interrogation, the nature of
the information sought, the identity of the questioner, and the place and
method of interrogation. Rossmore House, 269 NLRB at 1178 fn. 20;
Bourne v. NLRB, 332 F.2d 47, 48 (2d
Cir. 1964);
1. Allegations concerning David Cerda
The General Counsel alleges in paragraph 5 (a) of the complaint that Respondent, by David Cerda,2 unlawfully assisted employees in their attempts to decertify the Union by asking employee sentiment about the Union and telling employees they could do better than being represented by the Union.
a. Facts
Judy Wickhorst, an employee at Respondent and a member of
the collective-bargaining unit, testified that she independently commenced
soliciting signatures from co-workers to decertify the
Wickhorst further testified that no manager of Respondent requested or directed her to solicit signatures for the decertification petition. Likewise, Wickhorst stated that Cerda informed her that he could not get involved in the decertification petition process.
b. Analysis
I am not convinced that the Respondent violated the Act
for the following reasons. First, the
General Counsel did not establish that Cerda unlawfully assisted employees in
there attempts to decertify the
Accordingly, I find that the General Counsel did not sustain the allegations in paragraph 5 (a) of the complaint and recommend that they be dismissed.4
2. Allegations concerning David Cerda
The General Counsel alleges in paragraph 5 (b) of the complaint that Cerda (i) made unlawful promises of benefits to employees by asking them why they needed a union and informing them that the Respondent could give them good benefits, (ii) encouraged employees to sign the decertification petition, and (iii) unlawfully interrogated employees if they had signed the petition.
a. Facts
The General Counsel presented the testimony of employee
Zoila Loredo to sustain the allegation in paragraph 5 (b)(i) of the
complaint. Loredo testified that
sometime during early February 2006, Wickhorst approached her on three
occasions in the same day and asked whether she wanted to sign a petition to
remove the
Loredo further testified that several days after the
all-employee meeting, Cerda returned to the facility and just before her break
requested to speak with her. According
to Loredo, Cerda asked her if “she agreed to keep the Union at the facility and
was she happy with the
Cerda testified that he returned to the facility on February
10, at Ashby’s request to further explain to the Spanish speaking employees the
Respondent’s position on the status of there final proposal in contract
negotiations. He admits that he spoke
with the majority of the Spanish speaking employees on February 10, but asserts
that the conversations were limited to the Respondent’s offer for health
insurance and wages within the context of collective-bargaining
negotiations. He assured the employees
that contrary to rumors in the plant and information that the
With respect to paragraph 5(b)(ii) and (iii) of the complaint, the General Counsel presented the testimony of employee Martha Robles to sustain these allegations.
Robles testified that Cerda came to her work station
around 1:30 p.m. and asked her “If she was aware of what was going on.” In her pre-trial affidavit (R. Exh. 2),
Robles testified that Cerda asked her, “Did you already sign to get rid of the
b. Analysis
Cerda testified that while he spoke to a number of Spanish speaking employees on February 10, he did not urge employees to sign the decertification petition nor did he ask employees whether they had already signed the petition.
I found Loredo to be an impressive witness who stuck to her story on direct and cross examination in addition to responding to questions that I asked her about the conversation that she had with Cerda on February 10. Loredo’s testimony had a ring of truth to it and seems plausible under the circumstances. Cerda had unfettered access to the Spanish speaking employees and was the only manager that was bilingual. He was fully aware that a decertification petition was being circulated in the facility and I find that his discussions with the Spanish speaking employees was a method to glean information on the strength of the sentiment in the bargaining unit to remove the Union as the collective bargaining representative. While I did not credit Robles testimony that Cerda interrogated her about signing the decertification petition for reasons discussed below, nevertheless, I believe a pattern developed with Cerda asking a number of the Spanish speaking employee’s similar questions to those that he asked Loredo and Robles.
For all of the above reasons, I find that Cerda made unlawful promises of benefits to employees by asking them why they needed a union and informed employees that the Respondent could give them good benefits. Therefore, I find that the Respondent violated Section 8(a)(1) of the Act based on the allegations set forth in paragraph 5(b)(i) of the complaint.
With respect to paragraphs 5(b)(ii) and (iii) of the complaint, I cannot find that the General Counsel has established a violation of the Act for the following reasons. First, while the General Counsel represented that Loredo would support these allegations, my review of her testimony does not establish that she testified about these allegations. As it concerns Robles, I find it impossible to credit her testimony that Cerda encouraged her to sign the decertification petition or interrogated her about signing it. In this regard, Robles’s testimony was inconsistent and conflicted with her own prior testimony on this point. Indeed, she was not certain of what Cerda said to her about the decertification petition during there February 10 conversation. Such conflicts in her pre-trial affidavit and her testimony on direct and cross examination undermines her credibility.
Under these circumstances, I find that the General Counsel’s witnesses did not support the allegations in paragraphs 5(b)(ii) and (iii) of the complaint and recommend that they be dismissed.
3. Allegations concerning Al Polewski
The General Counsel alleges in paragraph 5(c)(i) and (ii) of the complaint that Respondent, by Al Polewski, unlawfully assisted employees to decertify the Union by acknowledging the solicitation was occurring but refused to cease the activity and discriminatorily applied its no solicitation and distribution rule by allowing employees to solicit signatures for the decertification petition on work time in work areas.
a. Facts
Employee Erika Vela, who was employed at the Respondent during the operative period and served as the union steward, testified that she observed Wickhorst talking to co-workers in work areas on work time with a yellow pad in her hand that contained a number of signatures thereon. Vela was under the impression that employees were prohibited from visiting and talking to co-workers in there work areas during work time.
Vela informed Polewski that Wickhorst was talking to employees outside of her regular work area during work time. Polewski responded that it was not his position to act on it.
Vela acknowledged on cross examination, however, that the Respondent routinely permitted employees to sell cookies, solicit for parties and Avon products in work areas other then there own during work time as long as it did not unduly impact productivity. When Vela was confronted with a section of the Employee 2005 Handbook (GC Exh. 3, p. 29), that covered solicitation, she admitted that not only was she not aware of its provisions but the policy was not enforced by the Respondent.
Both Polewski and Ashby testified that the Respondent does not enforce its solicitation policy on the shop floor and would only curtail the solicitation if it dramatically impacted productivity. Indeed, Polewski noted that he was not aware of the Handbook provision prohibiting solicitation in work areas on worktime.
Polewski further testified that he heard a rumor about a decertification petition being distributed in the facility but he never observed Wickhorst soliciting signatures from employees on work or non-work time. He also noted that it was not unusual for Wickhorst to have a yellow pad in her possession, as part of her job was to take orders which she often placed on a yellow pad.
b. Analysis
The General Counsel’s witness proffered to support these allegations did not conclusively establish that Polewski knew that the signatures on the yellow pad represented a decertification petition. Indeed, the General Counsel did not rebut Polewski’s testimony that he never observed Wickhorst soliciting signatures from employees nor that he observed the decertification petition. Likewise, Vela was unable to contradict Polewski and Ashby’s testimony that the Respondent’s no solicitation and distribution rules were not routinely enforced. To the contrary, Vela acknowledged that employees were permitted to solicit and sell products to other co-workers in work areas other than there own on worktime as long as it did not impact on productivity.
Under these circumstances, and particularly noting that Vela did not know what was on the yellow pad with the exception of signatures, it cannot be established that the Respondent violated the Act as alleged and I recommend that paragraph 5 (c)(i)and (ii) of the complaint be dismissed.
4. Allegations concerning David Cerda
The General Counsel alleges in paragraph 5 (d) of the complaint
that Cerda unlawfully assisted employees in their attempts to decertify the
a. Facts
The General Counsel presented the testimony of Wickhorst to sustain this allegation. Wickhorst testified that she asked Cerda on February 35 to translate several questions for two co-workers who did not speak English. One of the questions that Cerda translated was whether the two employees wanted to continue paying union dues. Additionally, the General Counsel argues that because the Respondent did not respond to this specific allegation in its answer to the complaint, the allegation must be found to have been admitted and a violation of the Act found.
b. Analysis
As I previously found above, the question proffered to the two Spanish speaking employees was initiated by Wickhorst, a bargaining unit employee. Cerda merely asked the question in Spanish so Wickhorst could obtain a response.
Under these circumstances, I do not find that Cerda independently asked the two employees whether they wanted to continue paying union dues.
With respect to the Respondent’s failure to specifically respond to this complaint allegation, I find that its answer states that the Respondent denies each and every factual allegation contained in the complaint that is not expressly admitted herein.
Therefore, based on the foregoing and particularly noting that the General Counsel did not sustain this allegation, I recommend that it be dismissed.
C. The 8(a)(1) and (5) Allegation
The General Counsel alleges in paragraph 6 (h) of the complaint that since February 3, Respondent unilaterally changed the union access provision contained in Article 12 of the parties’ collective-bargaining agreement.6
1. Facts
Munoz is the business agent for the
On February 2, Munoz instructed her secretary to contact Ashby and let him know that Munoz wanted to visit the facility on February 3, around noon. Since the secretary was unable to personally talk with Ashby, she left a message for him and also notified another manager that Munoz intended to visit the facility the next day.
Ashby noted that the parties’ collective bargaining agreement expired on February 1, and since that time there has been no agreement that alters the union access provisions. Ashby admits that on February 2, he received a telephone message from his secretary in which Munoz requested to come to the facility the next day around noon (GC Exh. 4).
Ashby testified that he returned Munoz’s telephone call around 2:30 p.m. on February 2, and left a message that February 3, was not a good date for her to visit and that she should call back to reschedule. Ashby did not receive a return telephone call from Munoz, and when she arrived at the facility on February 3, around 11:50 a.m., Ashby informed Munoz that he had left a telephone message for her that he could not meet with her that day since it was not a mutually agreeable time. Ashby credibly testified that the Respondent had scheduled two meetings that day with separate groups of employees to give a status update on the course of collective-bargaining negotiations from the Employers standpoint.
Ashby asserts that when he informed Munoz on February 3, that she could not have access to the premises, she called him an “asshole” and gave him the “middle finger.” Ashby responded that since the contract had expired, he did not want to see her on the premises again. Ashby testified, however, that he made the statement in the heat of passion and on February 6, he permitted Munoz access to the premises to conduct union related business. Indeed, after the misunderstanding on February 3, the parties agree that the provisions of article 12.3 have been followed without incident.
2. Analysis
It is hornbook law that once a collective-bargaining agreement expires, the terms and conditions of employment remain in full force and effect until a new agreement is reached or the parties reach a good-faith bargaining impasse. Indeed, the Respondent apprised the employees during the all-employee meeting on February 3, that they have been operating with the expired agreement and will continue to do so (R. Exh. 7).
The evidence establishes that Munoz fully complied with
the provisions for advance notice under Article 12.3 of the parties’
agreement. Ashby credibly testified that
once Munoz complies with the advance notice provisions contained in the
agreement he would routinely call her back to confirm that the visit was
mutually agreeable. Typically, if Munoz
wanted to meet with Ashby, and it was not an agreeable time, Ashby would
request that the visit be rescheduled.
Ashby could not recall an instance when the
It is noted that article 12. 3 states that a representative
of the
Under these circumstances, I find that the Respondent adhered
to the provisions of article 12. 3 of the parties’ agreement and did not
unilaterally change its provisions without notice or bargaining with the
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. Respondent violated Section 8(a)(1) of the Act when it asked an employee why she needed a union and informed the employee that they could give the employees good benefits.
4. Respondent did not violate Section 8(a)(1) of the Act when it asked employees about there sentiment for the Union and told them they could do better than being represented by the Union, by encouraging employees to decertify the Union and asking them if they had already signed the decertification petition, by permitting employees to solicit signatures for the decertification petition on work time and in work areas and by asking employees whether they wanted to pay union dues.
5. Respondent did not violate Section 8(a)(1) and (5) of the Act since it did not unilaterally change the union access provision in the parties’ collective-bargaining agreement.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended8
ORDER
The Respondent, Mickey’s Linen & Towel Supply, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Asking employees why they need a union and telling employees that they could give them good benefits
(b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in
(b) 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.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
APPENDIX
Notice to Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
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 ask employees why they need a union or tell employees that we can give them good benefits.
We will not in any other manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights protected by the Act.
Mickey’s Linen & Towel Supply, Inc.