Restaurant Depot

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 468 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 468
Restaurant Depot and Local 418, International
Brotherhood of Teamsters, AFL–CIO, Peti-
tioner. Case 22–RC–11507
August 27, 1998
ORDER AFFIRMING DISMISSAL
BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
HURTGEN, AND BRAME
The National Labor Relations Board has considered
the Petitioner’s request for review of the Regional Direc-
tor’s administrative dismissal of the instant petition.
(Relevant portions of the Regional Director’s dismissal
letter are attached as an appendix.) The request for re-
view raises no substantial issues warranting reversal of
the Regional Director’s action. Accordingly, the dis-
missal is affirmed. In affirming the Regional Director,
we note that on May 12, 1998, the Regional Director
approved an informal settlement agreement in Case 22–
CA–22588 between the Employer and Local 348-S,
United Food and Commercial Workers Union, the in-
cumbent Union, pursuant to which the Employer has
agreed to bargain and apply the existing collective-
bargaining agreement to the Employer’s drivers. In these
circumstances, the petition is properly dismissed. See
Douglas-Randall, Inc., 320 NLRB 431 (1995).

MEMBERS HURTGEN AND BRAME, dissenting.
We would process the petition for the reasons set forth
in the dissent in Douglas-Randall, 320 NLRB 431 at 435
(1995). We recognize that the informal settlement
agreement requires the Employer to cover the disputed
employees under the contract with Local 348-S. How-
ever, the settlement agreement is not an adjudication or
an admission that these employees are in fact under that
contract. Further, the Petitioner was not a party to that
settlement. And, the petition was filed before the settle-
ment. In these circumstances, there is no basis for dis-
missal of the petition.1

1 The contract is ambiguous with respect to whether the parties in-
tended to cover the disputed employees. The majority has not resolved
that issue, and neither have we.
APPENDIX
This case, petitioning for an investigation and determination
of representative pursuant to Section 9(c) of the National Labor
Relations Act, has been carefully investigated and considered.
By its petition, Teamsters Local Union No. 418, Production,
Maintenance and Allied Workers seeks certification as the ex-
clusive majority representative of all drivers employed by.the
Employer at its South Hackensack New Jersey facility.
In a separate administrative investigation of alleged unfair
labor practice charges filed against the Employer by the incum-
bent union, Local 348-S, UFCW, in Case 22–CA–22588. I
concluded that the drivers sought by your petition were part of
the unit covered by the existing contract between the Employer
and Local 348-S and that the Employer had refused to recog-
nize and bargain with Local 348-S in violation of Section
8(a)(1) and (5) of the Act, by failing to apply the contract to the
drivers. The investigation of that matter revealed that the Em-
ployer and Local 348-S, are parties to a Memorandum of
Agreement effective by its terms from September 12, 1996, to
September 11, 2000 which covers a unit of “all of its employ-
ees—excluding office and clerical employees, outside sales-
men, executives, supervisors and guards,” at the South Hacken-
sack facility. As drivers fall within the recognition language of
that agreement and where the investigation further revealed that
the Employer hired three drivers between June and October
1997 without notifying the Union as to their hire nor applying
the terms of the collective-bargaining agreement to those em-
ployees, I have concluded that the investigation revealed suffi-
cient evidence to establish the alleged violations and, absent
settlement, a complaint will issue.
Having concluded that the drivers are part of the unit cov-
ered by the existing contract between Local 348-S and the Em-
ployer, I find that the petition is untimely filed and the contract
acts as a bar to the processing of the petition. It is well settled
that a valid collective-bargaining agreement bars processing of
a representation petition for as much of its terms as does not
exceed 3 years. General Cable Corp., 139 NLRB 1123 (1962).
A representation petition may only be processed if filed more
than 60 days, but less than 90 days, prior to the expiration date
of a collective bargaining agreement or if filed after an agree-
ment’s expiration, but prior to the execution of a renewal
agreement. Leonard Wholesale Meats, Inc., 136 NLRB 1000
(1962). The petition here was filed on January 15, 1998, and is,
therefore, untimely filed. In these circumstances neither defer-
ral to AFL–CIO Article XXI proceedings, nor further proceed-
ings in this matter appear warranted, and I am, therefore, dis-
missing the petition.

326 NLRB No. 47