Air Lacarte, Florida, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1974

212 N.L.R.B. 764 (N.L.R.B. 1974)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Air Lacarte, Florida, Inc., and District Lodge No. 145,
International Association of Machinists and Aero-
space Workers, AFL-CIO, Petitioner . Case 12-
RC-4159
August 6, 1974
DECISION AND DIRECTION OF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon a petition duly filed on June 28, 1972, a hear-
ing was held on July 25, 1972, before Hearing Officer
Jack D. Livingston. On August 14, 1972, the Regional
Director for Region 12 issued a Decision and Order
in this case dismissing the petition.
Thereafter, on December 5, 1973, Petitioner filed
with the Regional Director a "Petition for Revocation
of Prior Decision and Order, Reinstatement of Peti-
tion and Other Relief." United Textile Workers of
America, AFL-CIO (hereinafter called Intervenor),
and the Employer filed no written opposition with the
Regional Director. On January 25, 1974, The Region-
al Director issued an "Order Rescinding Previously
Issued Decision and Order, Reinstating Petition, Re-
opening the Record and Scheduling Further Hear-
ing"' for the reasons noted below.
Pursuant to the Regional Director's order, a supple-
mental hearing was held on February 5, February 20,
March 13, and April 9, 1974, before Hearing Officer
Leonard Bass. Thereafter, following the hearing and
pursuant to Section 102.67 of the National Labor Re-
lations Board Rules and Regulations and Statements
of Procedure, Series 8, as amended, this case was
transferred to the Board for decision by the Regional
Director for Region 12. Petitioner and Intervenor
have filed briefs with the Board subsequent to this
transfer.
Purusant 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.
The Board has reviewed the Hearing Officers' rul-
ings made at the hearings and finds they are free from
prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
'Although Intervenor did not file a written opposition to Petitioner's
December 5, 1973, petition , it did file charges with the AFL-CIO alleging
Petitioner had violated art. XX of the AFL-CIO constitution by seeking to
organize employees who are covered by a contract . The Regional Director,
in his January 25, 1974 , order, noted the use of this internal dispute proce-
dure, but ruled that the facts pertaining to the charges did not meet the
factual prerequisites necessary for a deferral of action by the Board pending
disposition of the art . XX charges . We agree that deferral is inappropriate
here. In this connection we note that this action originated before the Board
long before Intervenor invoked the AFL-CIO internal dispute procedure
Furthermore, issues have been raised regarding abuse of the Board's pro-
cesses in which the Board has a direct interest
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The Petitioner and Intervenor 2 are both labor
organizations 3 claiming to represent certain employ-
ees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
The Employer is a Florida corporation primarily
engaged in in-flight catering for scheduled airlines
with its principal base of operations at Miami, Flori-
da.
At the July 25, 1972, representation hearing, the
Employer and Intervenor urged that Petitioner's June
28, 1972, petition be dismissed on the ground of con-
tract bar, and in support of their position introduced
into evidence a collective-bargaining agreement dated
June 28, 1972, and purportedly signed on that date by
Joseph Krause, International vice president of In-
tervenor; Richard Gasbarro, general manager of the
Employer; and four employee-members of the negoti-
ating committee. At the hearing, the Hearing Officer
asked Krause, who was sitting at the counsel table and
was not under oath at the time, if the contract had
been signed on the day of June 28, to which Krause
replied, "Yes, sir." Petitioner took a position at the
hearing that no contract bar existed because the Em-
ployer knew prior to June 28 that a question of repre-
sentation concerning Petitioner existed; it did not, at
that time, argue that the contract was not signed on
June 28, because it did not then have any basis for-
such a suspicion. In his Decision and Order following
the hearing, the Regional Director found that the con-
tract between the Employer and Intervenor was exe-
cuted the same day that the petition was filed, and
that, although Petitioner did attempt to contact offi-
cials of the Employer on or before June 28, it did not
inform the Employer that it had filed a petition prior
to the time the contract with Intervenor was signed.
Consequently, the Regional Director dismissed the
petition pursuant to the rule of Deluxe Metal Furni-
ture Company 4 that a petition is barred if filed on the
same day that an immediately or retroactively effec-
tive contract is signed, and if the employer does not
know that a petition has been filed.
On July 24, 1973, a Federal grand jury in and for
the Southern District of Florida returned an indict-
2 Textile Workers of America, AFL-CIO, intervened based on a
contract and a recognition agreement allegedly in effect between Intervenor
and the Employer
3 We find no merit in Intervenor 's contention that Petitioner exists for the
purpose of illegally obtaining money from an employer under the pretense
of representing employees and therefore is not a labor organization within
the meaning of the Act
4 121 NLRB 955 (1958).
212 NLRB No. 118
AIR LACARTE, FLORIDA, INC. 765
ment which charged, inter alga, that Joseph Krause
knowingly made a false, fictitious, and fraudulent
statement and representation as to a material fact
within the jurisdiction of the National Labor Rela-
tions Board by telling a Hearing Officer he had signed
the contract on the 28th day of June when in fact he
was not in the State of Florida on that day and did
not arrive in Florida until June 29, 1972; and that this
misstatement influenced the outcome of the hearing.
A jury found Krause guilty of the above charge on
October 20, 1973.
On December 5, 1973, Petitioner filed its "Petition
for Revocation of Prior Decision and Order, Rein-
statement of Petition and Other Relief," asserting
that, based upon the above verdict, it had newly dis-
covered evidence not previously available indicating
that the contract was in fact signed subsequent to
June 28, 1972, and therefore could not have constitut-
ed a contract bar to the 1972 petition. Upon consider-
ation of this motion and upon taking administrative
notice of the United States District Court proceeding,
the Regional Director concluded that the motion had
merit and therefore rescinded the August 14, 1972,
Decision and Order, reinstated the dismissed petition,
reopened the record, and scheduled further hearing.5
At the subsequent hearing, Petitioner introduced
into evidence the transcript of the criminal proceed-
ing as well as related exhibits.' The testimony of
5 We find no merit in Intervenor's contention that the Regional Director's
order reinstating the petition and reopening the record was improperly is-
sued Also, we find no merit in Intervenor's contention that the petition for
revocation should have been dismissed as to its argument that the motion,
based upon newly discovered evidence , was not filed promptly on discovery
of such evidence as required by Sec 102 65(e)(2 ) of the Board ' s Rules and
Regulations Although Krause was found guilty by a jury on October 20,
1973, and Petitioner did not file its petition for revocation until December
5, 1973, the actual written verdict and sentence was not issued until Decem-
ber 27, 1973 As to its argument that the Regional Director 's order has no
support in the rules , the Regional Director has full authority to reconsider
his decisions in representation cases based on an evaluation of new evidence,
e g, Delta Company, Lid d/b/a Cabrillo Lanes, 202 NLRB 921, In 2 (1973),
Pentagon Plaza, inc and its wholly owned subsidiaries Riverhouse West, Inc.
and Riverhouse South , Inc, 143 NLRB 1280, 1281 , fn 3 (1963), and, under
the circumstances of this case, he has not abused his authority
6 Although the Board is not bound by either of the holding or findings of
fact of the trial in the United States District Court for the District of South
Florida, the Hearing Officer is authorized to admit into evidence the record
of such proceedings if it contains relevant and competent evidence which is
considered to be of probative value CF Nashville Corporation and Avco
Manufacturing Corporation, 94 NLRB 1567, 1568 (1951) Such a procedure
has the support of Sec 101 20(c) of the Board's Statements of Procedure
which sets forth in pertinent part, "The hearing [ in a representation case],
which is nonadversary in character , is part of the investigation in which the
primary interest of the Board's agents is to insure that the record contains
as full a statement of the pertinent facts as may be necessary for determina-
tion of the case ." Also see Sec 102 64(a) of the Board 's Rules and Regula-
tions which provides , "It shall be the duty of the hearing officer to inquire
fully into all matters in issue and necessary to obtain a full and complete
record upon which the Board or regional director may discharge their duties
under section 9(c) of the act " Furthermore , the rules of evidence prevailing
in courts of law and equity are not controlling in such hearings See Sec
10266 of the Rules and Regulations We find that the court record is of
probative value to the proceeding herein
Krause therein, along with his weekly work report for
the week ending July 1, 1972, submitted to his Union
and his airline ticket to Florida, all indicate that he
was in New York on June 28, and did not arrive in
Miami for the purpose of negotiating with the Em-
ployer and signing a collective-bargaining agreement
until June 29. Intervenor argues that the evidence
offered to show that Krause signed the contract on
June 29 does not justify the failure to apply the con-
tract-bar rule, since Krause's testimony before the
Board was not sworn and the contract, whose date
was not disputed at the original hearing, speaks for
itself by bearing the date June 28, 1972. Intervenor
stresses the testimony at the criminal trial that Angel
Colon, another signatory to the contract, had claimed
the contract was signed on June 28. Petitioner, in turn,
offers the court testimony of Sara Ledo, a former
employee of the Employer who, with her husband,
was a signatory to the contract as a member of the
union negotiating committee.' She had testified that,
although she could not recall the date she signed the
contract, she did remember that it was the first time
she ever received overtime pay while working for the
Employer. Her timecard and that of her husband indi-
cate that they were credited with overtime hours on
June 29 but not on June 28.
Intervenor alternatively contends that the instant
petition is barred by the Employer's recognition of
Intervenor as bargaining representative on June 26,
1972, 2 days before the petition was filed. Intervenor
raised this point for the first time at the 1974 hearing,
having offered no evidence of a recognition bar at the
July 25, 1972, hearing. Several documents were intro-
duced into evidence, one of which purportedly was a
stipulation between the Employer and Intervenor ap-
pointing one Grace A. Mason as a neutral party to
conduct a card check in order to determine if Interve-
nor had been designated as bargaining representative
by the majority of the Employer's employees. This
document, bearing the date June 26, 1972, and identi-
fying the location of the signing as Dade County,
Florida, contains, with others, the signature of Joseph
Krause, yet the same work report for the week ending
July 1, 1972, in evidence at the criminal trial and
discussed above, indicates that on June 26, 1972,
Krause was again not in Florida but instead had "met
with the management of Fenkel and Local 402 com-
mittee on several grievances." Another document of-
fered by Intervenor is signed by Grace A. Mason and
states that, on June 26, 1972, a card check, indicating
majority support for Intervenor, was held at the
Employer's offices at which both sides were repre-
sented. The document lists as representatives of In-
7 Although Petitioner attempted to locate Mrs Ledo for the recent Board
hearing, she was unavailable
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tervenor several employees and Joseph Krause. Mrs.
Mason testified at the criminal trial that when she
signed the above document she did not know what it
meant but had signed it quickly without reading it or
having it explained to her. Petitioner, to further sup-
port its position that the documents regarding recog-
nition lack credibility, notes that the letter signed by
the Employer's general manager, Richard Gasbarro,
which formally recognized Intervenor as the (collec-
tive-bargaining agent, is dated June 26, 1972, but was
sent to Krause in New York. Petitioner argues that if
Krause were in Miami on June 26 as the other docu-
ments indicate, then this letter need not have been
sent to New York.
Assuming, arguendo, that the Employer did in fact
recognize Intervenor on June 26, an important ques-
tion arises as to whether the Employer knew of
Petitioner's organizational efforts on that date, be-
cause if the Employer had such knowledge no recog-
niziton bar would exist.' In support of its position that
the Employer knew of its organizational campaign,
Petitioner alleges that its grand lodge representative,
George Brown, twice attempted to reach a representa-
tive of the Employer by telephone to demand recogni-
tion and left his name and number so that the
Employer might return the calls, and that Petitioner's
authorization cards indicate the existence of an active
campaign during this time period. Also, the Employer
was aware that shortly before the filing of the instant
petition Petitioner had filed another petition with the
Board for the same unit; it was dismissed because of
infirmities in the authorization cards presented?
We are asked in this case to determine whether
there is a contract or recognition bar to the instant
petition. In the circumstances of this case and upon
consideration of all the evidence presented, we cannot
8 Pineville Kraft Corporation, 173 NLRB 863 (1968); cf. Keller Plastics
Eastern, Inc., 157 NLRB 583 (1966).
9 We find no merit in Intervenor 's assertion that Petitioner's showing of
interest is inadequate because the instant petition was filed only a few weeks
after the Regional Director had dismissed an earlier petition due to evidence
of supervisory taint in the authorization card solicitation process. The Re-
gional Director , in entertaining the instant petition , apparently was satisfied
that the tamt had been dissipated , and we have no reason to believe other-
wise.
determine whether a contract was in fact signed on
June 28, 1972; nor can we determine whether on June
26, 1972, the Employer made a good-faith recognition
of Intervenor at a time when it had no knowledge of
Petitioner's organizational efforts. We recognize that
a bargaining relationship between the Employer and
Intervenor has existed since the summer of 1972,
which an election at this time might upset. However,
the Board must decide what interest is paramount in
each case. It must weigh and resolve the conflicting
interests of maintaining stability in an existing bar-
gaining relationship, and of protecting the freedom of
employees to choose their representatives.10 We do
not believe that the serious doubts arising out, of the
events of June 1972, which hindered our efforts to
determine the issues, create a situation which stabi-
lizes labor relations, and thus we conclude that no bar
to the instant petition can be found." We shall there-
fore direct an election among the employees in the
appropriate unit.
4. The Employer, Petitioner, and Intervenor stipu-
lated, and we find, that the following employees con-
stitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b),of the Act:
All production and maintenance employees of
Employer employed at its plant located at 2411
Northwest 39th Avenue, Miami, Florida; includ-
ing drivers, driver helpers, food handlers, food
handler helpers, cooks, salad makers, porters,
checkers, bakers, dishwashers, potwashers, setup,
dishout, butcher helpers, warehousemen and
warehouse helpers, sanitation and maintenance
employees, including all regular part-time em-
ployees employed in the aforementioned catego-
ries; excluding all office clerical employees,
guards, and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
'° Delto Company, Ltd d/b/a Cabrillo Lanes, supra
1 Id