F.M. Transport

National Labor Relations Board - Board Decisions

Mar 28, 1991

302 N.L.R.B. 241 (N.L.R.B. 1991)

241
302 NLRB No. 60
F.M. TRANSPORT
F.M. Transport, Inc. and United Steelworkers of
America, AFL–CIO and F.M. Transport Em-
ployee Committee, Party in Interest
F.M. Transport, Inc. and Edward Conolly and
Teamsters Local Union No. 124, a/w Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 25–CA–17360, 25–CA–17620, and 25–CA–
19246
March 28, 1991
ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 12, 1989, Administrative Law Judge Thom-
as A. Ricci issued his decision in this proceeding in
which he dismissed all of the complaint allegations.
The General Counsel filed exceptions and a supporting
brief, and the Respondent filed limited cross-excep-
tions and a brief in support of the judge’s decision and
in support of limited cross-exceptions.
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 and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Order.
In an Order dated February 12, 1988, the judge
granted the Respondent’s motion to dismiss the com-
plaints against it based on a theory of laches. Subse-
quently, on March 11, 1988, the General Counsel filed
a Request for Review of the judge’s Order Dismissing
Complaints. On April 11, 1988, the Respondent filed
an opposition to the General Counsel’s Request for Re-
view. In an Order dated April 27, 1988, the Board
granted the General Counsel’s Request for Review, va-
cated the judge’s Order dismissing the complaints, and
remanded the proceeding to the judge for the resched-
uling of a hearing on both the merits of the complaint
allegations and the due process issue. The hearing re-
sumed in June 1988, was continued until November
29, 1988, and was closed November 30, 1988.
In his June 12, 1989 decision following that hearing,
the judge dismissed the complaints, citing what he
found to be unreasonable delay in prosecuting the case
which, he concluded, constituted a lack of due process.
In addition, the judge recommended processing an out-
standing election petition which has been blocked by
this proceeding. Further, although the judge made no
formal finding that the Respondent had violated the
Act, he recommended that if the Respondent should
commit an unfair labor practice to prevent a fair elec-
tion, ‘‘the General Counsel immediately move for an
interim injunction in the United States District Court to
put a stop to such conduct and to guarantee to the em-
ployees their statutory rights.’’
After careful review of the record, we reverse the
judge’s decision dismissing the complaints, and we re-
mand this proceeding to the judge for a determination
on the merits.
Although there have been numerous delays in this
case, the record shows that those delays were not en-
tirely attributable to the General Counsel. Several of
the postponements resulted from the filing of new
charges against the Respondent. One new charge re-
sulted in the issuance of a new complaint alleging ad-
ditional unfair labor practices by the Respondent, and
another charge resulted in the General Counsel’s re-
quest for a remedial order requiring the Respondent to
bargain with the Steelworkers Union. On yet another
occasion, there was a postponement attributable to the
illness of the judge’s wife. Thus, the delays were not
entirely due to actions or omissions of the General
Counsel.
In addition, while dismissing the complaints for lack
of due process, the judge made no finding that the Re-
spondent had been precluded in any way from present-
ing its defenses to the alleged unfair labor practices. In
view of this, we conclude that the judge, in finding a
lack of due process, again relied in the main on the
delays occasioned in this proceeding or, in effect, on
laches.
The Board has consistently held that the doctrine of
laches is generally inapplicable to Board proceedings.
See, e.g., Auto Workers Local 248, 149 NLRB 67, 76
fn. 12 (1964); Burns & Gillespie, 113 NLRB 434, 437
(1955), enf. denied on other grounds 238 F.2d 508 (8th
Cir. 1956). See also Silverman v. Commodity Futures
Trading Commission, 549 F.2d 28, 34 (7th Cir. 1977).
Even in instances of unreasonable delay in the pros-
ecution of cases before the Board, the doctrine of lach-
es has not been applied where this would place the
consequences of agency delay on wronged employees
to the benefit of those who have wronged them. Ven-
tura Coastal Corp., 264 NLRB 291, 297 (1982). See
also NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258,
264–266 (1969) (delay in compliance phase of pro-
ceeding). Since, as noted above, the Respondent has
merely relied on passage of time and has made no
showing of prejudice such that it would not possibly
receive a fair trial on the unfair labor practice charges,
there is no basis for, in effect, penalizing victims of
the alleged unfair labor practices simply because of the
cited delay by the General Counsel.
We also do not agree with the judge that the issues
will all be resolved and the representational desires of
the employees satisfied by dismissal of the complaints.
The dismissal did not resolve numerous complaint alle-
gations, including allegations that the Respondent has
violated Section 8(a)(3) and (1) of the Act by discrimi-
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nating against employees because of their union activi-
ties. Rather, the resolution of those alleged unfair labor
practices requires a weighing of the conflicting evi-
dence presented by the General Counsel and the Re-
spondent.
Thus, as we find that the judge incorrectly dismissed
this case, we reverse the judge’s decision, reinstate the
complaints, and remand this case for a full determina-
tion on the merits.
ORDER
It is ordered that the Order dismissing the com-
plaints is vacated.
IT IS FURTHER ORDERED that the proceeding is re-
manded to Administrative Law Judge Thomas A. Ricci
who shall prepare and serve on the parties a decision
containing findings of fact, conclusions of law, and
recommendations based on the evidence received and
that, following service of the decision on the parties,
the provisions of Section 102.46 of the Board’s Rules
and Regulations shall be applicable.
Cornele A. Overstreet, Esq., for the General Counsel.
J. Charles Sheerin, Esq., of Michigan City, Indiana, for the
Respondent.
George Sullivan, of East Chicago, Indiana, for the United
Steelworkers of America.
Gary Proctor, of Dearborn Heights, Michigan, for Teamsters
Local Union No. 124.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative law Judge. This case
started 4 years ago, when, on July 22, 1985, the United
Steelworkers of America, AFL–CIO filed a charge against
F.M. Transport, Inc., a trucking company which is the Re-
spondent here. As will be explained below, there were four
hearing sessions—on April 15, and October 27, 28, and 29,
1986, and June 29 and 30, and November 29 and 30, 1988.
It has been the Respondent’s position, starting from January
1988, that this entire proceeding should be dismissed on the
grounds of latches. With its motion to dismiss being unop-
posed by the General Counsel at that time, 14 months after
he had insisted the case be suspended because he had other
work to do, I granted the motion and dismissed the General
Counsel’s then multiple complaints.
After that, the General Counsel, apparently again inter-
ested in this case, requested the Board, itself, to reinstate the
proceeding, and permit it to continue. By order dated April
27, 1988, the Board reinstated the two complaints and re-
manded the case for ‘‘a hearing both on the merits and on
the due process issue.’’
The hearing was resumed on June 29, 1988. The next day
the General Counsel again asked for a continuance, this time
on the grounds that he had to go to the United States district
court to enforce subpoenas he had served on certain employ-
ees. I granted the continuance and set August 22, 1988, as
the date for continuing the hearing. Ten days before August
22, the General Counsel asked that the hearing again be put
off to October 3, 1988, saying he needed more time to en-
force his subpoenas. It then came to light that one of the rea-
sons for the extreme delay between June and November 1988
was that the General Counsel had not properly served his
subpoenas. In fact, his suit in the district court for subpoena
enforcement was turned down. The hearing finally resumed
on November 29 and was closed November 30, 1988.
While this was going on the Respondent again asked for
dismissal of the entire case because of what it called ‘‘unrea-
sonable delay’’ by the General Counsel. The contention that
this proceeding should now be dismissed for lack of due
process is repeated in the Respondent’s posthearing brief.
All relevant factors considered, I find merit in the Re-
spondent’s contention that this proceeding should be dis-
missed for lack of ‘‘due process.’’ In its Order of April 27,
1988, directing that the hearing should go on, the Board ex-
pressed an interest in knowing more about the merits of Re-
spondent’s motion to dismiss. As it developed, the resumed
hearing did shed more light on the events that were litigated
back in 1986. I deem that added knowledge further ground
supporting my original dismissal decision of February 1988.
But much more supportive of the Respondent’s motion now
are the completely inconsistent, and, I might add, almost in-
coherent positions taken by the General Counsel after the
Board’s resumption Order.
We start at the beginning. Early in 1985 a number of the
Respondent’s truckdrivers signed cards for representation by
the United Steelworkers of America. The first charge here
was filed in July of that year by that Union. It says the Re-
spondent had committed a number of violations of Section
8(a)(1) of the Act, and had discharged two employees—Ross
and Wiltse, in violation of Section 8(a)(3). On October 3,
1985, the General Counsel issued a complaint based on that
charge. It lists a number of violations of Section 8(a)(1)—
interrogations, threats of plant closure, unspecified reprisals,
solicitation of employee complaints, etc. The complaint also
says employee Wiltse, later shown to have been a 16-year
old car washer, was illegally discharged. Employee Ross is
not named in the complaint, meaning that the investigation
showed no improper treatment of that man by the Respond-
ent.
The hearing was opened on April 15, 1986. When the
General Counsel started by calling the president and owner
of the Respondent company as his first witness, there devel-
oped a dispute whether he had been properly served with a
subpoena. With the General Counsel unwilling to start prov-
ing his case by calling his own witnesses in support, the case
was adjourned immediately to give him an opportunity to ei-
ther go to the district court to enforce a subpoena or to prob-
ably serve one. The regular hearing did not start again until
October 1986.
The testimony taken at that hearing—3 days—reveals con-
flicting evidence as to the 8(a)(1) witnesses and the alleged
dismissal of Wiltse. It did appear clearly that Wiltse found
other work about 2 months after leaving the Respondent’s
employ.
After almost 3 days of testimony both the General Counsel
and the Charging Party then—the Steelworkers Union—fi-
nally rested their case. The Respondent then called its first
witness in defense, the owner of the Company. When coun-
sel for the Respondent passed his witness for cross-examina-
tion, the General Counsel asked for a continuance of the case
243F.M. TRANSPORT
to a later date because he had other commitments he could
not avoid. The Respondent wanted an early resumption to
finish the litigation, but the General Counsel could not say
when he would be prepared to continue. The hearing was
postponed indefinitely. (It later came to light that the General
Counsel, Mr. Cornele Overstreet, had been transferred from
the Board’s Regional Office in Indianapolis to its Regional
Office in Las Vegas, Nevada.)
It was not until more than a year later, on December 21,
1987, that the General Counsel moved to reopen the hearing
and to continue it.
Two realities must be seen clearly at this point. There was
no refusal to bargain question raised by anyone. The Steel-
workers’ charge did not say there had been a demand for
recognition and the resulting complaint said nothing about
any 8(a)(5) violation. There was testimony about some em-
ployees having signed Steelworkers’ union cards, but none
were offered into evidence. And there was no reference at
all either to what was the appropriate unit or the idea of ma-
jority representation. Nor was there any suggestion that a
Gissel order, affirmatively to bargain, was warranted by the
unfair labor practices alleged.
A second reality, as will appear clearly below, is that dur-
ing the 1986 hearing the Respondent claimed, via cross-ex-
amination of the General Counsel’s witnesses, that its em-
ployees were coerced into signing the Steelworkers’ cards,
with threats that if they did not, the employees of the steel
mills, all members of the Steelworkers, would refuse to load
their trucks when they went there on assignment. The Gen-
eral Counsel, at that time, scoffed at the idea.
We come to the resumed hearing a year later. At that time
two more charges had been filed. On February 7, 1987, the
Steelworkers filed a charge (Case 25–CA–18491), charging
the Respondent with having refused to bargain in violation
of Section 8(a)(5) of the Act. It was withdrawn on March 18,
1987. If there had been a demand and refusal surely George
Sullivan, the Steelworkers’ organizer who was a witness for
the General Counsel in 1986, would have said so earlier. He
was obviously making up a story and lying. That charge was
undoubtedly withdrawn at the suggestion of the General
Counsel himself.
In the face of such facts, when the hearing resumed in
1988, the General Counsel for the first time, 3 years after the
events, asked for an affirmative bargaining order in favor of
the Steelworkers.
More revealing of the abuse of due process in this case
is the story about the Teamsters’ Union in the picture, which
came in 1988. But before getting to the final story, there is
one more aspect of the Steelworkers’ activity which, hard to
believe, must be considered. As stated above, in 1986, the
Respondent had contended that the signing of cards in favor
of the Steelworkers should be ignored because the employees
had been coerced and really did not want that Union as a
representative. On June 28, 1988, George Sullivan, the Steel-
workers’ organizer, was called as a witness to support the
General Counsel’s request for a bargaining order in favor of
his union. He said he solicited signatures from this compa-
ny’s truckdrivers by mail, sending them, among other things,
a card to carry with them when at work. From that man’s
testimony:
Q. . . . said you sent some kind of little blue card
with it?
A. Yeah. If it says there was a card with that there
probably was, yeah.
Q. And it says ‘‘Please keep this card with you, as
you may be asked for it in the mills in the near fu-
ture.’’ What do you have reference to there, Mr. Sulli-
van?
A. Just exactly what it says.
Q. What do you mean ‘‘You’ll be asked for this in
the mills in the near future?’’ What where you talking
about?
A. That’s what I meant, I was talking you may be
asked to show the card in the mill.
Q. To show the card. Who would ask them to show
the card?
A. The loaders.
Q. The loaders. Who are the loaders?
A. The people that load the trucks in the mills.
Q. Are they employees in the steel mills?
A. They’re Steelworker members.
Q. Steelworker Union members. Was there some
kind of communications steelwoker to union members
to say—to ask drivers for these blue cards?
A. No.
Q. Where you thinking about instructing—
A. Yes. Yes.
Q. —Steelworkers to ask for those blue cards?
A. Yes, we were.
Q. Is that correct?
A. Yes.
Q. And did you later start communicating with steel-
worker loaders to ask for those cards?
A. I don’t want to answer that question, but I
guess—because it involves something else other than
this case.
JUDGE RICCI: You know you have to speak up so
you can be heard.
MR. SHEERIN: I don’t even know what he said and
he’s—The Witness. I’m considering whether I should
have to answer that question or not.
JUDGE RICCI: What?
THE WITNESS: I don’t . . .
JUDGE RICCI: You’re considering whether you
should answer that question?
THE WITNESS: Yes, I don’t want to answer that
question.
This was the General Counsel’s own witness, whose credi-
bility is of necessity urged by the General Counsel, admitting
candidly that his method of obtaining signatures from this
company’s employee was pure intimidation. Could the Board
conceivably order this company to recognize that union as a
representative of its employees under this statute?
We come to the heart question which dictates dismissal of
all the complaints in this case. Between the summer of 1985
and beginning of 1988 there does not appear to have been
any activity by these employees towards representation by
any union. With this proceeding having been dismissed on
motion of the Respondent, unopposed by the General Coun-
sel, the truckdrivers started signing up with Teamsters Local
124. On February 25, 1988, Local 124 filed a petition with
the Board requesting an election, supported by authorization
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cards signed by a majority of the employees in the bargain-
ing unit, placed in the hands of the Board’s agents. And on
April 11, 1988, Local 124 filed a charge, Case 25–CA–
19246, alleging that the Company had, in March, illegally
discharged Carl Kelley, one of the Teamsters’ agents. On
April 27, 1988, the Board revitalized the complaints in this
proceeding, requesting further evidence on the question of
due process. With this, the Regional Office refused to hold
an election and instead issued another complaint on May 24,
1988, based exclusively on the charged filed by Teamsters
Local 124. This complaint, the last one involved in this pro-
ceeding, lists a series of violations of Section 8(a)(1), none
of them set out in the Local 124 charge—interrogations,
threats of discharge and plant closure, solicitation of griev-
ances, promises of added benefits, etc. When the hearing was
resumed, on June 28, 1988, the General Counsel opened with
a statement that I should, in my eventual decision, order the
Respondent to bargain now with the Steelworkers as the ex-
clusive representative of its truckdrivers. This, before calling
a single witness in support of his contention that Respondent
had unlawfully interfered with its employee’s right to be rep-
resented by the Teamsters. The best I can say is that I do
not understand this position by the prosecution. In fact, I
deem it incoherent. If an employer is under statutory obliga-
tion to bargain with union A as the exclusive representative
of its employees, do those same employees, at the same time,
have a statutory right, again protected by the Board’s agents,
to join and be represented by union B? To ask the question
is to answer it.
The General Counsel called a number of witnesses to tes-
tify about having signed Teamsters’ union cards, and about
coercive statements made by the owner of the Company to
put a stop to such activity. There was a conflict as to the
latter part of that testimony. But, in my considered judge-
ment, the critical testimony came from Gary Proctor, the
Teamsters’ business representative.
Testifying as a witness for the General Counsel, Proctor
said he was asked by these employees to hold a meeting be-
cause they wished to join his union. The meeting was held
in January 1988, where there were, according to Proctor, be-
tween 15 and 20 truckdrivers present. Insofar as this entire
record shows, the number keeps changing, there were at most
22 to 24 employees in the bargaining unit however viewed.
Proctor continued to say that when Local 124 filed its peti-
tion for an election, it gave the Regional Office 16 signed
authorization cards in support of the petition. Again, this was
the General Counsel’s witness, and of course the General
Counsel is bound by his direct testimony. And when, hoping
to question the reliability of those cards on cross-examination
of the witness, counsel for the Respondent asked the General
Counsel to produce the signed cards, the General Counsel re-
fused to produce them. There is no question about that. More
than once he made that statement. ‘‘My position is I don’t
believe that the cards are properly showable to Mr. Sheerin
[counsel for the Respondent].’’
I find it a fact, on this record, as I must, that when the
Teamsters Local 124 filed its election petition in March
1988, that Union represented a majority of the employees in
the appropriate bargaining unit. At the hearing Proctor said
he opposed the idea of ordering this Respondent to bargain
now with the Steelworkers. Asked was it his position that the
Respondent should be ordered to bargain with Local 124, his
answer was that he preferred to have a regular Board-con-
ducted election to establish his Union as the proper bargain-
ing agent. His answer pointed to the proper solution of this
unreasonably protracted and useless litigation.
The most important factor to be considered is the fun-
damental purpose of this entire statute, to protect the right
of employees to select the collective-bargaining agent of their
choice. That right has at this point been denied the employ-
ees of this Company. It is time, as alleged in the successive
complaints, that the Respondent, primarily through the con-
duct of Fred Milletich, the owner of the Company, stop its
continuing efforts to prevent a fair election by intimidation,
by coercive, and by illegal conduct. Were I to write the usual
decision based on the long transcript of testimony I would
completely discredit Milletich where he attempted to deny
having committed the various violations of Section 8(a)(1) of
the Act. His testimony was very unconvincing. I also believe
it true, as some of the General Counsel’s witnesses testified
that he said he likes to have Board charges brought against
him because they serve to keep putting off any election by
the employees. But the truth is that the truckdrivers here
never really sought representation by the Steelworkers. In-
stead it shows clearly a majority of them want to be rep-
resented by Teamsters Local 124. It is time to put a stop to
this pointless litigation and get on with the election formally
requested by the Teamsters, both when it filed its petition
and as repeated by its representative at the final hearing.
I recommend that the outstanding complaints be dismissed,
that the General Counsel proceed to process the Local 124
election petition, and that, in the event Milletich, or any
other agent of the Respondent, hereafter in anyway commits
an unfair labor practice to prevent a fair election, the General
Counsel immediately move for an interim injunction in the
United States district court to put a stop to such conduct and
to guarantee to the employees there statutory rights.
[Recommended Order for dismissal omitted from publica-
tion.]