Mistletoe Express Service

National Labor Relations Board - Board Decisions

Feb 28, 1984

268 N.L.R.B. 1245 (N.L.R.B. 1984)

MISTLETOE EXPRESS SERVICE
Mistletoe Express Service of Texas, Inc. ' and
Teamsters, Chauffeurs, Warehousemen, Helpers
and Food Processors, Local Union No. 657, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Petitioner. Case 23-RC-5024
28 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a petition duly filed on 7 August 1981
under Section 9(c) of the National Labor Relations
Act, a hearing was held before Hearing Officer
Ruben R. Armendariz. Following the hearing and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations and State-
ments of Procedure, this case was transferred to
the Board for decision on 2 June 1982. Thereafter,
briefs were duly filed by the Employer, the Peti-
tioner, and the Intervenor. 2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the hearing officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
On the entire record in this case, including the
Employer's, the Petitioner's, and the Intervenor's
briefs, the Board finds
1. The parties stipulated, and we find, that the
Employer is engaged in commerce within the
meaning of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to rep-
resent certain employees of the Employer.
3. In the spring or early summer of 1981, Mistle-
toe Express Service, Inc.,3 a package express deliv-
ery service operating 11 facilities in Oklahoma,
Texas, Kansas, Arkansas, and Tennessee, acquired
all of the stock of Texas Tex-Pack which was simi-
larly engaged in a package express delivery service
within the State of Texas, from 5 facilities located
south of Dallas and Fort Worth and renamed the
company Mistletoe Express Service of Texas, Inc.4
I The petition was amended at the hearing to reflect the correct name
of the Employer.
I International Brotherhood of Motor Expressmen's Unions, affiliated
with the National Federation of Independent Unions, was permitted to
intervene at the hearing on the basis of a contractual interest in the em-
ployees involved.
3 Hereinafter referred to as the Parent Company.
4 Hereinafter referred to as the Employer.
268 NLRB No. 196
The employees of the Parent Company were
represented by the Intervenor who, subsequent to
such acquisition, attempted to organize the unre-
presented employees of the Employer. Following
the presentation of cards by the Intervenor and a
card check by Sidney Upsher, the president of both
the Parent Company and the Employer, a contract
was executed on 4 August 1981, containing by ref-
erence the existing contract between the Intervenor
and the Parent Company. 5 A recognition agree-
ment was executed on 4 August. On 6 August the
parties met and negotiated provisions concerning
wages and hours. A contract between the parties
was signed on 7 August 1981.
The existing contract between the Parent Com-
pany and the Intervenor contained a "NEW FA-
CILITIES" clause:
NEW FACILITIES
Whenever a new branch terminal (one which
has regular salaried employees in company
owned trucks) is opened by the company
during the life of this agreement, the company
will extend to that new facility the terms and
conditions of work specified in this agreement.
Wages and hours will be negotiable. The com-
pany will recognize the union as the bargain-
ing agent for the employees at that terminal
subject to the exceptions set out in Section 2.
The employee complement of the Employer is
approximately 200 employees. The Parent Compa-
ny employs approximately 650 employees. For the
most part, the board of directors for the Parent
Company and for the Employer are the same.
Following the acquisition, the Parent Company
implemented all rates, tariffs, and procedures re-
garding fringe benefits, vacations, holidays, and
sick pay for both companies.
On 7 August 1981 the Petitioner filed a petition
seeking to represent all dock employees, drivers,
and garage employees of the San Antonio, Austin,
and Corpus Christi, Texas terminals of the Em-
ployer, thereafter amended to include Waco and
Laredo. The Employer informed the Board that a
contract already covered such employees. On 17
and 21 August 1981 the Petitioner filed unfair labor
practice charges against the Employer and the In-
6 Sidney Upsher, president of the Employer, signed a statement with
the Intervenor which contained the following:
The National Brotherhood of Motor Expressmen's Union have pre-
sented, Mistletoe Express of Texas. One hundred sixty-six (166) au-
thorization cards signed, of a possible one hundred and ninety-seven
(197).
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tervenor alleging violations of Section 8(a)(1) and
(2) and Section 8(b)(1)(A).6
On I April 1982 the Petitioner's counsel wrote a
letter to the Regional Director for Region 23
which read as follows:
In view of the General Counsel's having sus-
tained Petitioner Charging Party's appeal of
Cases No. 23-CA-8630 and 23-CB-2580,
Teamster Local 657 herewith requests to pro-
ceed to an election in the representation
matter.
On 21 April 1982 the Petitioner's counsel again
wrote to the Regional Director with the following
request:
You will note that on behalf of Petitioner,
Teamsters Local 657, that I earlier submitted a
request to proceed to an election in this
matter. In furtherance of that request, please
accept this letter as a further request to pro-
ceed under the terms of Carlson Furniture In-
dustries, Inc., 157 NLRB 851 (1966). In par-
ticular, Teamsters Local 657 is willing to pro-
ceed to an election understanding that interve-
nor union may appear on the ballot in any
election directed by the Board; that if a major-
ity of the ballots in the election are cast for in-
tervenor that union may be certified unless
meritorious objections are filed; and if the in-
tervenor is certified, no further action on the
8(a)(2) charges presently pending will be
taken.
My client is anxious to proceed to an elec-
tion in this matter and would prefer to resolve
the contested issues through the Board's R.
case procedures rather than to await disposi-
tion through the protracted C. case.
On 4 May 1982 the Board, through its Executive
Secretary, notified the Regional Director for
Region 23 that he was authorized to process the
6 Cases 23-CA-8630 and 23-CB-2580. The Regional Director dis-
missed the unfair labor practice charges on I October 1981. Subsequent-
ly, the petition also was dismissed on 5 October 1981. On 26 March 1982
the General Counsel, through the Office of Appeals, sustained the Charg-
ing Party's (the Petitioner's) appeal on grounds that:
The contentions that the Employer unlawfully assisted the Charged
Union (Intervenor); granted recognition to the Charged Union when
it was not the designated representative of a majority of the employ-
ees; and granted recognition to the Charged Union at a time when
there was a real question concerning representation, and that the
Charged Union accepted recognition at a time when it was not the
designated representative of a majority of the employees raised issues
warranting Board determination based upon record testimony devel-
oped at a hearing before an Administrative Law Judge. Accordingly,
the case is remanded to the Regional Director with instructions to
issue appropriate Section 8(aXl) and (2) and Section 8(bXIXA) com-
plaints, absent settlement.
No complaints have issued.
representation petition to a conclusion and honor
the Carlson waiver.'
On 7 May 1982 the Regional Director for
Region 23 informed the Employer that a represen-
tation hearing would be held on the representation
petition. On 11 May 1982 the Employer protested
holding the representation hearing due to the
Board's "blocking charge" policy. A formal notice
of representation hearing issued on 11 May 1982.
Thereafter, the Employer filed its motion for with-
drawal of notice of hearing on 20 May 1982. The
Acting Regional Director for Region 23 denied the
motion on 21 May 1982.
At the opening of the representation hearing on
26 May 1982 the Employer objected to proceeding
on the representation matter in light of the pending
unfair labor practice charges. The Employer's ob-
jection to the hearing was overruled by the hearing
officer. The Employer requested permission to file
a special appeal from the hearing officer's ruling
pursuant to Section 102.65(c) of the Board's Rules
and Regulations. Also on 26 May 1982 the Peti-
tioner filed a handwritten opposition to the Em-
ployer's motion to appeal the hearing officer's
denial of its request to appeal to the Board the
hearing officer's denial of its "Motion to Withdraw
Notice of Hearing."8 The Employer's request for
permission to take a special appeal from the ruling
was denied by the Regional Director for Region
23.
The Petitioner contends that the Employer's po-
sition is in error inasmuch as the pendency of the
unfair labor practice proceeding does not bar the
processing of the petition; that the Casehandling
Manual is merely the General Counsel's suggested
procedure for handling cases and it is not Board
law; that the Petitioner has executed the Carlson
waiver, it does not seek disgorgement of the Inter-
venor, and its waiver applies to both the Employer
and the Intervenor; and that full processing of the
unfair labor practice charges will, as a practical
matter, require many years of litigation and in
effect obliterate the Section 7 rights of the employ-
ees.
Member Zimmerman approved the Carlson waiver at that time. He
has reconsidered his position on this issue and has determined that his
prior approval of this waiver was ill-advised.
In Carlson, the petitioner sought to proceed to an election notwith-
standing that the Board had found that the employer had violated Sec.
8(aX2). The Board concluded that, as the employer's violation of Sec.
8(aX2) was related at least in part to the unresolved question concerning
representation of the employer's employees, the desires of the employees
may best be determined in an election by secret ballot.
8 The Petitioner, in its written opposition to the Employer's "Motion
to Withdraw Notice of Hearing," made the following statement: "Fur-
ther, by way of clarification, Petitioner seeks no disgorgement remedy
and its Carlson waiver relates to both the pending CA and CB cases."
1246
MISTLETOE EXPRESS SERVICE
The Employer contends that the pending 8(a)(2)
charges block the processing of the representation
proceeding; that none of the sections of the Board's
Casehandling Manual, i.e., Sections 11730, 11730.4,
11730.4(c), 11730.5, 11730.7, and 11730.9, provides
for the unblocking of the representation case; that
the Petitioner's waiver does not provide that it will
waive objections based on conduct which occurred
prior to the filing of its petitions; that the Carlson
waiver is simply not effective unless there is an
outstanding order requiring the employer to with-
draw recognition of the allegedly illegally assisted
union; and that the issuance of the notice of hear-
ing is contrary to the precedent established in the
Board's decision in Town & Country.9 For the rea-
sons set forth below we shall deny the Petitioner's
request for a Carlson waiver in this proceeding.
In the Town & Country case,' 0 the petitioner no-
tified the Acting Regional Director that it would
waive objections based on conduct occurring prior
to the filing of the petition, and that, if the interve-
nor were certified, no further action should be
taken to enforce those portions of the Board's
Order relating to 8(a)(2) findings in the unfair labor
practice proceeding. The petitioner also stated that
it sought a disgorgement remedy. The Board found
that the petitioner, in effect, still demanded litiga-
tion of the charges, findings of violations, and a
remedy pursuant thereto; that the issues raised by
the petitioner's charges and its petition rested on
the resolution of the unfair labor practice charges;
and that the contract between the employer and
the intervenor constituted a bar to the proceeding
unless the employer's recognition of the intervenor
was itself violative of Section 8(a)(2) and Section
8(b)(l)(A) and (2) of the Act.
The Board concluded that making such a deter-
mination in a representation case would be con-
trary to established Board policy that unfair labor
practice allegations are not properly litigable in a
representation proceeding; that a party asserting
such allegations may litigate them only in an unfair
labor practice proceeding designed to adjudicate
such matters; and that the petitioner's request to
proceed should be denied.
The Petitioner here argues that the holding of
Town & Country does not apply because it does not
seek a disgorgement and, therefore, unlike the peti-
9 194 NLRB 1135 (1972).
10 See above.
tioner in Town & Country, it does not demand vio-
lation findings and an appropriate remedy.
We reject the Petitioner's argument and find, as
we did in the Town & Country case, that the peti-
tion should be held in abeyance. The charges allege
that the Employer unlawfully assisted the Interve-
nor; that the Employer granted recognition to the
Intervenor when it was not the designated repre-
sentative of a majority of the employees, at a time
when there was a real question concerning repre-
sentation; and that such conduct violated Section
8(a)(1) and (2). The charges against the Intervenor
allege that it accepted recognition at a time when it
was not the designated representative of a majority
of the employees, and that such conduct by the In-
tervenor violated Section 8(b)(1)(A). Here, as in
the Town & Country case, no hearing has yet been
held on these charges and no violation findings are
outstanding.
The issues raised by the Petitioner's aforestated
unfair labor practice charges and the current repre-
sentation petition required a resolution of the unfair
labor practice charges. The existing contract be-
tween the Employer and the Intervenor may con-
stitute a bar to the representation case proceeding
unless the Employer and the Intervenor have en-
gaged in conduct violative of Section 8(a)(1) and
(2) and Section 8(b)(1)(A) of the Act. The Board
has often held that it will not litigate unfair labor
practice allegations in a representation proceeding.
As we stated in the Town & Country case, a party
asserting such allegations may litigate them only in
an unfair labor practice proceeding designed to ad-
judicate such matters. Carlson waiver is appropriate
only when the unfair labor practices have been liti-
gated or when unusual circumstances not present
here warrant such a waiver." Accordingly, we
hereby deny the petitioner's request to proceed
herein.
ORDER
It is hereby ordered that the instant proceeding
shall be remanded to the Regional Director to be
held in abeyance and for further action by the Re-
gional Director at an appropriate time following
resolution by the General Counsel or the Board of
the aforementioned unfair labor practices charged
by the Petitioner.
I I See, e.g., New York Shipping Asn., 107 NLRB 364 (1953).
1247