U.S. Eagle, Inc.

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U.S. Eagle, Inc. and Service Employees Internation- al Union, Local 250, AFL-CIO. Case 20-CA-7460 March 20, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed April 27, 1972, by Service Employees International Union, Local 250, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint on July 31, 1972, against U.S. Eagle, Inc., Respondent herein, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on October 20, 1971, following a Board election, the Union was duly certified as the exclusive collective-bargaining repre- sentative of Respondent's employees in the unit found appropriate; and that, since on or about March 17, 1972, Respondent had refused and continues to refuse to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On August 8, 1972, Respondent filed its answer to the complaint denying the commission of the alleged unfair labor practices. On September 28, 1972, Respondent, the Union, and the General Counsel entered into a stipulation in which they agreed that the formal papers filed in this proceeding and the facts as contained in the stipulation together with the exhibits attached there- to constitute the entire record in this case. The parties agreed that no oral testimony was therefore necessary or desired. They waived their right to a hearing before an Administrative Law Judge, the making of findings of facts and conclusions of law by an Administrative Law Judge, and the issuance of an Administrative Law Judge's Decision and recom- mended Order; and asked that the case be trans- ferred directly to the Board for decision. The stipulation also provided for the filing of briefs with the Board. On October 4, 1972, the Board issued its Order approving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Counsel filed a brief. Respondent filed a motion to dismiss the proceeding on grounds of mootness and the Union thereafter timely filed a response thereto in which it opposed the motion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case including the General Counsel's brief, the Respondent's motion, and the response thereto. For the reasons hereafter indicated, the Board finds that Respondent has violated Section 8(a)(5) and (1) of the Act as alleged by the complaint. FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent, a Washington corporation with its principal office in Vacaville, California, is, and at all times material herein has been, engaged in providing maintenance services for the United States Defense Department, including the McClellan Air Force Base located in Sacramento, California. During the past year, in the course and conduct of its business operations, Respondent provided services outside the State of California in excess of $50,000 and received gross revenues exceeding $500,000. In the same period, Respondent also provided services valued in excess of $50,000 for the United States Air Force. Respondent's operations have, and at all times material herein have had, a substantial impact on the national defense. We find that Respondent is, and at all times material herein has been, an employer engaged in commerce and an operation affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction. II. THE LABOR ORGANIZATIONS INVOLVED The parties agree and we find that the Union is and at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. III. UNLAWFUL REFUSAL TO BARGAIN A. The Relevant Stipulated Facts On October 12, 1971, the Board conducted an election in a unit all parties concede to be appropri- ate. That unit was composed of all building, service, and maintenance employees employed by Respon- dent at McClellan Air Force Base excluding all office clericals, guards, watchmen and supervisors as defined in the Act. 202 NLRB No. 74 U.S. EAGLE, INC. 531 At the time the election was conducted, Respon- dent was engaged in performing building and maintenance service work at the McClellan Air Force Base under a contract awarded it by the United States for a period effective by its terms until October 17, 1971. It had a complement of approxi- mately 118 unit employees at that time and a majority of those employees voted for the union. Accordingly, the Board issued a certification to the Union dated October 20, 1971, duly certifying its election by a majority of the employees in the appropriate unit as the exclusive bargaining repre- sentative of the unit employees within the meaning of Section 9(a) of the Act. Respondent's contract with the United States Air Force expired under its terms on October 17, 1971. A new contract to perform the work involved was awarded to Murcole, Inc., who then commenced performing the same work at the same location with the same equipment and supervisory personnel and without any hiatus or change in the mode of operation. Murcole retained 68 of the Respondent's employees for its 130-man work force. On February 24, 1972, Murcole defaulted on its maintenance contract and was immediately replaced by Respondent for the contract period ending on October 17, 1972. Upon taking over the operation, Respondent employed approximately 130 employees, 54 of whom had formerly been employed by Murcole,l and an additional 21 of whom had been employed by Respondent under the preceding maintenance contract but had not been employed by Murcole. In performing the work, it also utilized the same equipment and supervisory personnel and made no changes of substance in the mode of operation. On or about March 17, 1972, and at various times thereafter, the Union requested that Respondent recognize and bargain with it as the certified bargaining representative of the unit employees. Respondent admittedly refused to honor the Union's recognition and bargaining request. B. The Parties' Contentions The complaint described Respondent' s refusal to recognize and bargain with the Union as violative of Section 8(a)(5) and (1) of the Act because that refusal occurred within the initial year of the Union's I Of the 54, 37 had also been employed by Respondent when it held the preceding contract. 2 Ray Brooks v. N.L.R.B., 348 U.S. 96, 98, affg. 204 F.2d 899(C.A. 9), enfg. 98 NLRB 976. 3 Kentucky News, Incorporated, 165 NLRB 777. 4 N. L. R. B. v. Burns International Security Services, 404 U.S. 999. 5 N. L. R.B. v. Holly-General Company, Division of Seigler Corp., 305 F.2d 670 (C.A. 9), enfg. 129 NLRB 1098. 6 Murcole's obligation to bargain was not placed in issue by the certification as the bargaining representative of the employees in the certified appropriate unit. Respon- dent's answer denies the existence of any legal obligation to bargain with the Union at times here relevant on two grounds. The first ground seeks to place in issue the validity of the certification because of Murcole's replacement of Respondent as the employer of the unit employees for the approximate- ly 4-month period between October 17, 1971, and February 25, 1972. The second challenges the Union's continuing majority status, in any event, in light of the events occurring after the Board election was held. We find both grounds on which Respon- dent disclaims any legal duty to bargain with the Union to be without merit. It is now well established that, absent unusual circumstances, an employer violates Section 8(a)(5) and (1) of the Act if he refuses to honor a certification based on a valid Board election during the initial certification year.2 It is equally established that the rule's provision for suspension of the bargaining obligation in the presence of "unusual circumstances" does not include situations where, during the certification year, there has either been a turnover in the unit' s complement3 or a change in ownership of the employing entity; 4 or even an actual defection from the certified union by a majority of the unit employees.5 Application of those precedents here necessarily precludes Respondent's reliance upon the 4-month replacement by Murcole as the employer of the unit employees at the outset of the certification year and its attempt to question the Union's majority status. Our view is supported by the undisputed facts that the election underlying the Board's certification was a valid election; that the same was conducted at a time when Respondent was the employer of the unit employees; that the certified Union's bargaining demand was made at a time when the Respondent was the employer of the unit employees and succeeded the conduct of the election by only a few months; that the employing industry of which the unit employees were a part remained unchanged despite the transfer of the maintenance contract for 4 months from Respondent to Mur- cole; 6 and that there was no break in the continuity of that industry's operations. Accordingly, we find that by refusing to recognize and bargain with the Union, on March 17, 1972, and complaint inasmuch as the Respondent's obligation to bargain involved a certification naming it as the employer of the employees involved when they designated the Union as their representative in the election . The inclusion in the parties' stipulation of facts describing Murcole's retention of Respon- dent's employees in a number sufficient to constitute a majority of its total complement upon takeover of the operations would establish a basis on which we could dispose of the case if we found it necessary to ground Respondent's obligation to bargain with the Union upon a theory of successorship, the primary issue of Burns, supra. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at all times thereafter, Respondent violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. U.S. Eagle, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 250, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All building service and maintenance employ- ees employed by the Respondent at McClellan Air Force Base, excluding all office clerical employees, guards, watchmen and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times here material, the above-named labor organization has held a valid certification issued by the Board on October 20, 1971, as the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent's refusal, on or about March 17, 1972, and at all times thereafter, to honor the requests of the above-named labor organization that Respondent bargain collectively with it as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, is an unfair labor practice within the meaning of Section 8(a)(5) of the Act. 6. The aforesaid refusal to bargain is also an unfair labor practice within the meaning of Section 8(a)(1) of the Act because Respondent thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act. 7. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It has been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by failing and refusing to bargain with the Union as the certified bargaining represent- ative of the employees composing the appropriate unit. Following submission of the case to the Board, Respondent filed a motion to dismiss the complaint asserting, as a basis therefor, that its contract at the Air Force base had expired and that the new contractor will be performing future services, so that the issues of this case are moot. The General Counsel filed no response to the motion, but the Charging Party opposes our granting it, without directly controverting the brief statement of the fact set forth in the motion. Without an examination of all relevant facts, there is no way in which we can render an informed judgment on whether or not the new contractor is a successor to Respondent. In view of the history of this matter, it is entirely possible that there may be successorship here, in which event the case is by no means mooted. Furthermore, that history also indicates that there is at least a possibility that Respondent may, at some future date, again be at this location, which again would suggest that a remedy vis-a-vis Respondent would not be an empty gesture. Nor do we have any facts from the motion or any other document as to Respondent's relation- ship, or lack thereof, with the current contractor; yet an examination of any such relationship would also be relevant to the appropriateness of enforcing our Order. Most of these matters, we have concluded, may best be explored at the compliance stage of this proceeding or in subsequent proceedings, if necessary. But since we do not clearly have an adequate factual basis for granting any motion to dismiss for mootness at this stage, that motion is dismissed. Accordingly, we shall enter our customary bargain- ing order. Furthermore, in order to provide for the employees in the appropriate unit an opportunity for them to be accorded the services of their chosen collective-bargaining agent for the period contem- plated by the law, we shall construe the period of certification as extending for a 7-month period beyond the date on which Respondent or its successor commences to bargain in good faith with the Union in the appropriate unit of all building service and maintenance employees employed by Respondent or its successor at the McClellan Air Force Base, excluding all office clerical employees, guards, watchmen and supervisors as defined in the Act.7 Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10); Village Rambler Sales, Inc., 174 NLRB 247. See also Minute Maid Corporation, 124 NLRB 355, 361. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor I This means that the presumption of majority status which attaches to the Union upon certification will continue for the 7-month period following the commencement of good-faith bargaining. U.S. EAGLE, INC 533 Relations Board hereby orders that Respondent, U.S. Eagle, Inc., Vacaville, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Service Employees International Union, Local 250, AFL-CIO, as the statutory bargaining representative of the employees in the following appropriate unit: All building service and maintenance employees employed by Respondent or its successor at McClellan Air Force Base, excluding all office clerical employees, guards, watchmen and super- visors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, reduce it to writing and sign it. Regard the Union upon resumption of bargaining, and for 7 months thereafter, as if the initial year following certification had not expired. (b) Mail a copy of the attached notice marked "Appendix" 8 to each of its employees who were employed at the McClellan Air Force Base between March 17, 1972, and October 17, 1972. Copies of said notice, on forms provided by the Regional Director for Region 20, shall, after being duly signed by Respondent, be mailed immediately upon receipt thereof. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 In the event this order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Mailed by Order of the National Labor Relations Board" shall read "Mailed Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES MAILED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay wages, hours, and other terms and conditions of employment with union employees in the appropriate bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain collectively and in good faith with the Union which repre- sents a majority of our present employees in the unit set forth below with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. All building service and maintenance em- ployees employed by Respondent or its successor at McClellan Air Force Base, excluding all office clerical employees, guards, watchmen and supervisors as de- fined in the Act. U.S. EAGLE, INC. (Employer) Dated By (Representative) (Title) Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197.