Mistletoe Express Service

National Labor Relations Board - Board Decisions

Dec 20, 1990

300 N.L.R.B. 942 (N.L.R.B. 1990)

942
300 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mistletoe Express Service and National Brother-
hood of Motor Expressmen’s Union. Cases 17–
CA–13834, 17–CA–13840, 17–CA–13840, 17–
CA–13851, and 17–CA–14020
December 20, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon charges filed by the Union on May 7 and 27,
June 26, September 23, and October 29, 1987, and
September 7, 1988, the General Counsel of the Na-
tional Labor Relations Board issued a consolidated
complaint against Mistletoe Express Service, the Re-
spondent, alleging that it has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. The Re-
spondent filed an answer admitting in part and denying
in part the allegations of the consolidated complaint,
and requesting that the consolidated complaint be dis-
missed.
The Respondent, which had filed a voluntary peti-
tion under Title 11 of the United States Code in the
United States Bankruptcy Court for the Western Dis-
trict of Oklahoma, was a debtor in possession until on
or about July 21, 1989, when a trustee was appointed
by order of the U.S. Bankruptcy Court.
On January 19, 1990, the General Counsel approved
a settlement agreement proposed to settle and resolve
all allegations of unfair labor practices set forth in the
consolidated complaint and to liquidate certain mone-
tary claims against the Respondent arising from the al-
leged unfair labor practices. On March 20, 1990, the
trustee for the Respondent filed a motion to approve
the settlement agreement with the U.S. Bankruptcy
Court. On June 20, 1990, subsequent to notice to the
other creditors of the pending motion, the U.S. Bank-
ruptcy Court approved the settlement agreement. Sub-
sequently, on September 14, 1990, the Respondent
filed an amended answer to the consolidated com-
plaint, admitting all the allegations set forth in the con-
solidated complaint.
On October 3, 1990, the General Counsel filed a
Motion for Summary Judgment. On October 4, 1990,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed no
response. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
The pleadings raise no litigable issue that would re-
quire a hearing. The amended answer filed September
14, 1990, pursuant to the settlement agreement and
with approval by the U.S. Bankruptcy Court, admits all
the substantive allegations in the consolidated com-
plaint. Further, pursuant to the settlement agreement,
the Respondent has consented to the issuance of a
Board order.
In the absence of good cause being shown why the
motion should not be granted and in light of the Re-
spondent’s admitting all the substantive allegations, we
grant the General Counsel’s Motion for Summary
Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Oklahoma corporation, has an
office and place of business in Oklahoma City, Okla-
homa, where it is engaged in the transportation of
freight and commodities in interstate commerce. Dur-
ing the 12 months preceding the issuance of the com-
plaint, the Respondent, in the course and conduct of its
trucking operations, derived gross revenues in excess
of $50,000 for the transportation of freight and com-
modities from the State of Oklahoma directly to points
outside the State of Oklahoma. During the same pe-
riod, the Respondent purchased and received goods,
material, equipment, and supplies valued in excess of
$50,000 at its Oklahoma City, Oklahoma location di-
rectly from points located outside the State of Okla-
homa. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Union is the collective-bargaining representative
of the employees in the following appropriate unit:
All regular full-time employees employed in the
classifications of Driver/Sales, Unassigned
Driver/Sales, Dock, Rate Clerk A, Rate Clerk B,
Bill/On-Hand Clerk, Head Mechanic, Body Shop
Mechanic, Shop Utility, Linehaul Driver, and Un-
assigned Linehaul Driver, at the following termi-
nals of the Employer: Memphis, Little Rock, Fort
Smith, Muskogee, Tulsa, Wichita, Enid, Lawton,
Oklahoma City, Dallas, Houston, Kansas City,
Waco, Temple, Austin, San Antonio, Laredo,
Tyler, Longview, and Corpus Christi, but EX-
CLUDING part-time employees, Company execu-
tives, department managers, all clerical employ-
ees, sales representatives, computer operators, por-
ters, all other supervisors or managers as defined
in the Act, and others whose principal duties fall
in any of these classifications.
943MISTLETOE EXPRESS SERVICE
The Respondent has recognized the Union as the ex-
clusive bargaining representative of the unit employees
for approximately 40 years, and the Respondent and
the Union have been parties to successive collective-
bargaining agreements, with an agreement effective by
its terms to March 1, 1988, and a subsequent agree-
ment effective by its terms to March 1, 1991.
On or about April 29, 1987, the Respondent, unilat-
erally and without prior notice to or bargaining with
the Union, implemented a random drug testing policy
and procedure with respect to unit employees. Between
April 30 and September 4, 1987, the Respondent dis-
charged approximately 38 employees in the unit pursu-
ant to the unilaterally implemented random drug test-
ing program.
Since on or about April 29, 1987, the Respondent
has systematically, unnecessarily, and unduly delayed
the processing of grievances notwithstanding the fact
that the third step of the grievance procedure contained
in the collective-bargaining agreement effective to
March 1, 1988, requires that a hearing on a grievance
is to be held not more than 10 days after receipt of
the grievance by the president of the Respondent or his
designated representative. On or about August 13,
1987, the Respondent systematically and arbitrarily de-
nied third-step grievances without a full and fair hear-
ing. By these acts, the Respondent has failed and re-
fused to abide by the collective-bargaining agreement
effective to March 1, 1988, without agreement of the
Union, without prior notice to the Union, and without
having afforded the Union an opportunity to negotiate
and bargain as the exclusive bargaining representative
of the Respondent’s unit employees with respect to
such acts and the effects of such acts.
By letter dated May 4, 1987, the Union, through its
president, Ralph E. Hawkins, requested the Respondent
to furnish information related to the hourly rate paid
to each casual employee employed by the Respondent
for the pay periods between March 25 and April 29,
1987. By letters dated June 8 and 22, 1987, the Union
renewed its request. On or about May 12, 1987, at a
bargaining session with the Respondent at its Okla-
homa City, Oklahoma location, the Union orally re-
quested the Respondent to furnish the Union with in-
formation regarding the types of drug related tests that
the Respondent was conducting on its employees and
the procedures being utilized for the testing of employ-
ees. During that bargaining session, the Union also re-
quested that the Respondent furnish the Union with the
test results of each employee who had been terminated
by the Respondent as a result of the Respondent’s drug
testing of employees. By letter dated July 28, 1987, the
Union requested that the Respondent furnish the Union
with copies of all MVR Reports submitted by employ-
ees to the Respondent and copies of all MVR Reports
supplied to the Respondent by the State of Arkansas.
By letter dated September 18, 1987, the Union re-
peated its request for this information.
Since on or about May 4 and 12, July 28, and Au-
gust 13, 1987, the Respondent has failed and refused
to furnish the Union with the requested information
that is necessary for, and relevant to, the Union’s per-
formance of its function as the exclusive representative
of the unit. Since on or about May 12, 1987, the Re-
spondent has failed and refused to bargain in good
faith with the Union regarding the conditions under
which employee drug test results would be furnished.
Since on or about August 13, 1987, the Respondent
has failed and refused to bargain in good faith with the
Union regarding the conditions under which employee
polygraph tests would be furnished.
Since on or about July 1, 1988, the Respondent has,
unilaterally and without prior notice to or bargaining
with the Union, discontinued health insurance coverage
for certain unit employees by failing to pay premiums
for such coverage and by failing to remit amounts de-
ducted from the employees’ pay for such coverage.
By the acts and conduct described above, the Re-
spondent has failed and refused, and is failing and re-
fusing, to bargain collectively and in good faith with
the representative of its employees. Accordingly, we
find that the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By failing and refusing to bargain collectively with
the Union by unilaterally implementing a random drug
testing program and discharging employees pursuant to
the unilaterally implemented drug testing program, by
failing and refusing to abide by the collective-bar-
gaining agreement by delaying the processing of griev-
ances and denying third-step grievances without a
hearing, by failing to provide the Union with necessary
and relevant information, and by discontinuing health
insurance coverage by failing to pay premiums and to
remit amounts deducted from employees’ pay for such
coverage, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1), and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
We shall order the Respondent to cease and desist
from making unilateral changes in the unit employees’
terms and conditions of employment by refusing to
honor its collective-bargaining agreement with the
Union. We shall also order the Respondent to with-
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We note that the settlement agreement approved by the General Counsel
limits the Respondent’s net backpay liability to the discharged employees to
$190,000. We leave the resolution of the backpay amount to each
discriminatee to compliance proceedings.
2 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
draw, rescind, and cancel the random drug testing pro-
gram that it unlawfully implemented. We shall further
order the Respondent to provide the Union with the re-
quested information necessary for, and relevant to, the
Union’s performance of its function as the exclusive
collective-bargaining representative of unit employees.
To remedy the Respondent’s unlawful refusal to con-
tinue health insurance coverage for certain unit em-
ployees, we shall order the Respondent to pay all pre-
miums and remit amounts deducted from employees’
pay for such coverage, and to make whole all affected
unit employees for any losses incurred by virtue of its
failure to make such payments. Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661
F.2d 940 (9th Cir. 1981). This shall include reimburs-
ing employees for any contributions they themselves
may have made, with interest, for the maintenance of
health insurance coverage.
Finally, we shall order the Respondent to offer each
employee discharged under the unilaterally imple-
mented drug testing program immediate and full rein-
statement to his former job or, if his job no longer ex-
ists, to a substantially similar position, without preju-
dice to any rights and privileges that he may have, and
that the Respondent make him whole for any loss of
earnings and other benefits that he may have suffered
by reason of the discharge by payment to him of the
sum equal to that which he would have normally
earned in pay and benefits from his date of discharge,
until the Respondent offers reinstatement, less any net
interim earnings as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).1
ORDER
The National Labor Relations Board orders that the
Respondent, Mistletoe Express Service, Oklahoma
City, Oklahoma, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the Na-
tional Brotherhood of Motor Expressmen’s Union by
unilaterally implementing a random drug testing pro-
gram and discharging employees pursuant to such pro-
gram, by failing to abide by the terms of the collec-
tive-bargaining agreement by delaying the processing
of grievances and denying third-step grievances with-
out a hearing, by failing to furnish the Union with in-
formation that is relevant and necessary to its role as
the exclusive bargaining representative of the unit em-
ployees, and by discontinuing health insurance cov-
erage of certain unit employees by failing to pay pre-
miums and to remit amounts deducted from the em-
ployees’ pay for such coverage.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Cancel, withdraw, and rescind the random drug
testing program unlawfully put into effect.
(b) On request, furnish the Union with the requested
information that is relevant and necessary to its role as
the exclusive bargaining representative of the unit em-
ployees.
(c) Make all payments of health insurance premiums
and remit amounts deducted from employees’ pay for
such health insurance coverage required as a result of
the obligations of the Respondent for health insurance
coverage of unit employees.
(d) Make unit employees whole by reimbursing
them for expenses ensuing from the failure to pay
health insurance premiums and to remit amounts de-
ducted from employees’ pay for health insurance cov-
erage.
(e) Offer each employee discharged under the unilat-
erally implemented drug testing program immediate
and full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole for
any loss of earnings and other benefits suffered as a
result of his discharge in the manner set forth in the
remedy section of this decision.
(f) Remove from its files any references to the un-
lawful discharges of those employes and notify each
employee in writing that this has been done and that
the discharge will not be used against him in any way.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Post at its facility in Oklahoma City, Oklahoma,
copies of the attached notice marked ‘‘Appendix.’’2
Copies of the notice, on forms provided by the Re-
gional Director for Region 17, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
945MISTLETOE EXPRESS SERVICE
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYESS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith with
the National Brotherhood of Motor Expressmen’s
Union by unilaterally implementing a random drug
testing program and discharging employees pursuant to
such program, by failing to abide by the terms of the
collective-bargaining agreement, by delaying the proc-
essing of grievances and denying third-step grievances
without a hearing, by failing to furnish the Union with
information that is relevant and necessary, and by dis-
continuing health insurance coverage of certain unit
employees by failing to pay premiums and remit
amounts deducted from employees’ pay for such cov-
erage, for our employees in the following appropriate
unit:
All regular full-time employees employed in the
classifications of Driver/Sales, Unassigned Driv-
er/Sales, Dock, Rate Clerk A, Rate Clerk B, Bill/-
On-Hand Clerk, Head Mechanic, Body Shop Me-
chanic, Shop Utility, Linehaul Driver, and Unas-
signed Linehaul Driver, at the following terminals
of the Employer: Memphis, Little Rock, Fort
Smith, Muskogee, Tulsa, Wichita, Enid, Lawton,
Oklahoma City, Dallas, Houston, Kansas City,
Waco, Temple, Austin, San Antonio, Laredo,
Tyler, Longview, and Corpus Christi, but EX-
CLUDING part-time employees, Company execu-
tives, department managers, all clerical employ-
ees, sales representatives, computer operators, por-
ters, all other supervisors or managers as defined
in the Act and others whose principal duties fall
in any of these classifications.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL cancel, withdraw, and rescind the random
drug testing program we unlawfully put into effect.
WE WILL, on request, furnish the Union with the re-
quested information that is relevant and necessary to
its role as the exclusive bargaining representative of
the unit employees.
WE WILL make all payments of health insurance pre-
miums and remit amounts deducted from employees’
pay for such health insurance coverage required as a
result of our obligations for health insurance coverage
of unit employees.
WE WILL make unit employees whole by reimburs-
ing them for expenses ensuing from our failure to pay
premiums and remit amounts deducted from their pay
for health insurance coverage.
WE WILL offer each employee discharged under the
unilaterally implemented drug testing program imme-
diate and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges.
WE WILL make whole, with interest, each employee
discharged under the unilaterally implemented drug
testing program for any loss of earnings or other bene-
fits he may have suffered as a result of his discharge.
WE WILL notify each employee discharged under the
unilaterally implemented drug testing program that we
have removed from our files any reference to his un-
lawful discharge and that his discharge will not be
used against him in any way.
MISTLETOE EXPRESS SERVICE