Central Parking System

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 390 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
Central Parking System, Inc. and Teamsters Automo-
tive & Allied Workers, Local 665, AFL–CIO.
Case 20–RM–2831
August 27, 2001
ORDER AFFIRMING DISMISSAL
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On October 6, 2000, the Regional Director for Region
20 administratively dismissed the instant petition.
Thereafter, in accordance with Section 102.67 of the Na-
tional Labor Relations Board Rules and Regulations, the
Employer-Petitioner filed a timely request for review.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
Having carefully considered the matter, the Board has
decided to affirm the Regional Director’s dismissal of the
petition.
Facts
The Employer operates various parking facilities in
California. The Employer and the Union are parties to
two separate collective-bargaining agreements, one of
which applies to the employees at the Employer’s park-
ing facilities in San Francisco and San Mateo counties.
The Union contends that this collective-bargaining
agreement contains an “after-acquired clause,” pursuant
to which the Employer allegedly agreed—upon proof of
majority status—to recognize the Union as the bargain-
ing representative of employees at parking facilities sub-
sequently acquired by the Employer in the San Francisco
area.1
In 1999, the Employer acquired the Allright Parking
Corporation (Allright), a company also engaged in the
operation of parking facilities in San Francisco. Follow-
ing this acquisition, the Union, relying on the alleged
after-acquired clause in its existing collective-bargaining
agreement with the Employer, sought recognition as the
collective-bargaining representative of the employees at
the Allright facilities in San Francisco. The Employer
refused to recognize the Union, asserting that Allright, a
subsidiary of the Employer, was the employer of the em-
ployees at the facilities in question, and that Allright was
not a party to any collective-bargaining agreement with
the Union. The Union subsequently filed a grievance and
requested that the matter be referred to arbitration. Con-
sistent with its previously stated position, the Employer
rejected the Union’s request to proceed to arbitration.
Thereafter, the Union filed a complaint in Federal district
court to compel arbitration of the dispute.

1 In support of its interpretation of the collective-bargaining agree-
ment provision, the Union also relies on a prior settlement agreement
between the parties and a letter from a labor relations consultant inter-
preting the parties’ contract.
On May 18, 2000, the Employer filed the instant peti-
tion for an election in a separate unit consisting of the
employees at Allright’s San Francisco facilities. The
Regional Director administratively dismissed the petition
on the basis that the Union had not made a demand for
recognition in the petitioned-for unit but, rather, had
sought to add the employees at issue to its existing unit.
For the reasons that follow, we conclude that the Re-
gional Director properly dismissed the petition.
Analysis
In seeking recognition on behalf of the Allright em-
ployees, the Union here was asserting that the Employer
had agreed to an “after-acquired” clause requiring recog-
nition of the Union at future Employer locations upon
proof of majority status. In essence, the assertion of an
after-acquired clause is a claim that the Employer has
waived its right to demand an election. As the Board
stated in Houston Division of the Kroger Co., 219 NLRB
388, 389 (1975):

Interpreting these clauses to mean that an employer can
. . . demand an election renders them totally meaning-
less and without effect, for unions need no contract au-
thorizations to establish their representation status in a
Board-conducted election. . . .
. . . .
To permit the Employer to claim the very right which it
has forgone, perhaps in return for concessions in other
areas, would violate the basic national labor policy re-
quiring the Board to respect the integrity of collective-
bargaining agreements.

See also Pall Biomedical Products Corp., 331 NLRB 1674,
1675 (2000).
Accordingly, the Union’s demand for recognition
based on an alleged contractual “after-acquired” clause
does not entitle the Employer to demand an election un-
der Section 9(c)(1)(B).
Further, as the Regional Director noted, the Union
does not seek to represent the employees in the peti-
tioned-for unit, i.e., a separate unit of the employees at
Allright’s San Francisco facilities.2 It is settled Board law
that where a union does not seek to represent the em-
2 Even if, as the Employer contends, the Union has not “maintained
a consistent position” with regard to the appropriateness of a separate
unit of employees at Allright facilities and its willingness to represent
those employees in a separate unit, it is clear, and the Employer con-
cedes, that the Union’s “current” position is that it does not seek to
represent the employees in the petitioned-for separate unit.
335 NLRB No. 34
CENTRAL PARKING SYSTEM 391
ployees in the unit in which the employer seeks an elec-
tion, no question concerning representation exists within
the meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act. Woolwich, Inc., 185 NLRB 783, 784 (1970);
Bowman Building Products Division, 170 NLRB 312,
313 (1968). See also Carr-Gottstein Foods Co., 307
NLRB 1318 (1992); United Hospitals, Inc., 249 NLRB
562 (1980).3 Since the Union does not seek to represent
the Allright employees in a separate unit, but rather only
as part of the existing unit, the Regional Director prop-
erly dismissed the petition. See Luper Transportation
Co., 92 NLRB 1178 (1951).
Our dissenting colleague, citing no case support,
would process the Employer’s petition simply because
the Union has made a demand to represent its employees,
regardless of the unit sought by the Union. Our col-
league obviously disagrees with the long-settled prece-
dent in this area.4 We perceive no basis to disturb this
precedent.
Finally, our colleague faults us for leaving representa-
tion issues to the arbitral forum. Although the Board
only infrequently defers to arbitration in representation
proceedings, the Board will find deferral appropriate

3 Our dissenting colleague’s citation of United Hospitals as support
for his position is misguided. There, a union sought to accrete some
unrepresented employees to the unit of employees it currently repre-
sented pursuant to a collective-bargaining agreement with a multi-
employer association (to which the employer belonged). The em-
ployer, however, filed an RM petition, seeking a self-determination
election among the unrepresented employees. The Board determined
that the employer’s petition should be dismissed, because the union was
not seeking to represent the employees in a separate unit. In this re-
gard, United Hospitals directly supports our decision to dismiss the
Employer’s petition here.
It is true, as our dissenting colleague indicates, that the Board addi-
tionally resolved the accretion issue in that case. It concluded that an
accretion was inappropriate given the employees’ (and other similarly
situated employees’) historical exclusion from the unit. The Board
therefore vacated the Acting Regional Director’s order adding the un-
represented employees to the existing multiemployer unit.
However, it is well-established that accretion is a matter involving
the application of statutory policy and standards—a matter within the
particular province of the Board. See Marion Power Shovel Co., 230
NLRB 576, 577–578 (1977). By contrast, an issue of contractual inter-
pretation arising from the assertion of an after-acquired clause—the
issue presented in this case—is, as noted below, a matter that is prop-
erly resolved through the grievance-arbitration procedure.
4 Although it is true, as our dissenting colleague observes, that Sec. 9
of the Act permits an employer to file an RM petition upon receipt of
an individual’s or union’s “claim to be recognized” as the bargaining
representative of its employees, the language of that section cannot be
read in isolation, without regard to the well-established precedent under
which the Board consistently has interpreted this section to require that
an employer’s petition be coextensive with the unit of employees for
which the union has demanded recognition. Indeed, it would be illogi-
cal for the Board to compel an unwilling union to represent a group of
employees that it does not desire to represent.

when the resolution of the issues “turns solely on the
proper interpretation of the parties’ contract.” St. Mary’s
Medical Center, 322 NLRB 954 (1997).
Such is the case here. If the arbitrator finds, as the Un-
ion contends, that the parties’ collective-bargaining
agreement contains an “after-acquired” clause, then the
employees at the Allright facilities will be added to the
existing unit upon demonstration of the Union’s majority
status.5 If, however, the arbitrator finds, as the Employer
contends, that there is no “after-acquired” clause in the
agreement, then there will be no existing question con-
cerning representation of those employees by the Union.
In either situation, the arbitrator’s resolution of the con-
tractual issue resolves all other issues in this case.
For the foregoing reasons, we conclude that the Re-
gional Director properly dismissed the instant petition.
Accordingly, the dismissal is affirmed.

CHAIRMAN HURTGEN, dissenting.
I would not dismiss the RM petition. I would remand
the case to the Regional Director for him to hear and
decide the issues involved herein.
Central Parking and the Union are parties to a contract
covering all of Central’s parking facilities in San Fran-
cisco. The contract and other documents allegedly re-
quire recognition at all “after-acquired” locations in San
Francisco.
In 1999, Central purchased Allright Parking Corp., a
company with parking facilities in San Francisco. The
Union, citing the alleged “after acquired” agreements,
sought recognition as the representative of the Allright
employees. Central refused. The Union seeks arbitration
of the dispute. The instant RM petition seeks an election
among the Allright employees.
In dismissing the RM petition, my colleagues assert
that a demand for recognition, if based on an alleged
“after acquired” clause, would not support an RM peti-
tion. I disagree. Under Section 9(c)(1)(b), a demand for
recognition will support an RM petition. There is abso-
lutely nothing in Section 9(c)(1)(b) to suggest that the
validity of the RM petition would depend upon the basis
on which the demand for recognition was made. To be
sure, if the Board finds that an “after acquired” clause is
a clear and unmistakable waiver of the Employer’s right
to an election, that would lead to a dismissal of the RM
5 Our dissenting colleague suggests that the arbitrator’s resolution of
this issue will not ensure that “the ‘majority’ requirement of Kroger is
read into the clause.” But the Union makes no claim that it is entitled
to represent the employees at issue without regard to majority support.
Indeed, it repeatedly asserted that it had garnered majority support.
Nevertheless, in the unlikely event that an arbitrator would fail to read a
“majority requirement” into the after-acquired clause here, the Em-
ployer could seek appropriate recourse through the Board’s procedures.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392
petition.6 However, there is no finding of such a waiver
here. My colleagues have dismissed the RM petition
here based solely on a claim concerning an alleged “after
acquired” clause. The issues of whether there is such an
agreement and whether such an agreement is a waiver of
the Employer’s right to an election, are the subject of a
demand for arbitration. In sum, there has been no find-
ing of waiver, and hence there is no basis for dismissal of
the RM petition.
The Regional Director dismissed the petition on a dif-
ferent basis. He relied on the fact that the Union never
sought recognition in a unit confined to the Allright em-
ployees. Rather, the Regional Director said the Union
sought to accrete the Allright employees into the extant
unit. My colleagues agree with the Regional Director. I
disagree.
Unquestionably, the Union is demanding recognition
as the representative of the Allright employees. If the
Union had confined its demand to those employees, the
RM petition could be processed, and an election would
be held (absent a waiver). However, by seeking to ac-
crete these employees into the extant unit, i.e., add them
without an election, the RM petition is dismissed.
Surely, this is an anomalous result, wholly at odds with
Sections 7 and 9.
My colleagues suggest that processing of the RM peti-
tion would compel an unwilling union to represent a
group of employees that it does not desire to represent.
Of course, the fact is that, in the instant case, the Union
does seek to represent the employees.
My colleagues say that my position (to continue proc-
essing of this RM case) is without case support. It is true
that I rely primarily on the language of the Act itself.
Section 9 states than an employer can file an RM petition
if a union makes a “claim to be recognized.” Clearly,
that has occurred herein. Section 7 of the Act gives em-
ployees the right to choose, or refrain from choosing,
representation by the Union. As discussed below, the
Board, by resolving this case, can assure that these rights
are protected. Finally, I rely on United Hospitals, Inc.,
249 NLRB 562 (1980), where the Board, in an RM case,
resolved an accretion issue.
With further respect to United Hospitals, my col-
leagues note that the Board dismissed the RM petition
there. Although that is technically correct, the more sig-
nificant point is that the Board resolved the accretion
issue. That is precisely what the Employer and I seek
here, i.e., resolution of the accretion issue (along with the
other representation issues). For, as stated by my col-

6Houston Division 219 NLRB 388 (1975).
leagues: “Accretion is a matter involving the application
of statutory policy and standards—a matter within the
particular province of the Board.”
In my view, the Board should determine whether the
agreement meets Kroger standards. That is, the Board
should determine, inter alia, whether the Employer has
agreed to recognize the Union as the representative of the
Allright employees, based on a showing of majority sup-
port. If the Employer has so agreed, and majority status
is shown, the RM petition would be dismissed.
My colleagues suggest that majority status is not at is-
sue, i.e., that the Union claims majority support. How-
ever, a claim is not a fact. My colleagues leave to the
arbitrator the issues of (1) whether he will require a ma-
jority showing, in circumstances where the contract does
not require it; and (2) if he does, whether the union has
an uncoerced majority. Contrary to my colleagues, these
are not contractual issues.
It is appropriate for the Board, rather than an arbitrator,
to decide these issues. The Board, for example, can as-
sure that the “majority” requirement of Kroger is read
into the clause, and that this requirement has been satis-
fied. In short, the Board can assure that Section 7 rights
are protected.
By dismissing the RM petition, the Board leaves repre-
sentation issues to a non-Board forum. These issues in-
clude: (1) whether there has been a waiver of the Em-
ployer’s right to an election; (2) whether Central and
Allright are a single employer; (3) whether the unit is
appropriate; (4) whether the “majority” requirement of
Kroger has been satisfied; (5) whether there is an accre-
tion. These issues are representation case issues and thus
should not be left to arbitration.7 Rather, these represen-
tation issues should be addressed by the Board in the
instant case.
My colleagues suggest that the issue here is solely one
of contract interpretation and not one of accretion. I dis-
agree. Surely, by the Union’s seeking to add employees
to a unit without an election, accretion issues are present.
Further, the many other aspects of this representation
case, as set forth above, extend beyond that of contract
interpretation and thus are best resolved by the Board.
In sum, in the interest of protecting employee rights to
choose representation or non-representation in an elec-
tion, and in the interest of protecting a vital area of the
Board’s jurisdiction, this RM case should not be dis-
missed.

7Hershey Foods, 208 NLRB 452 (1974); Commonwealth Gas, 218
NLRB 857 (1975).