West Coast Schools

WEST COAST SCHOOLS 725 Automation Institute of Los Angeles, Inc., d/b/a West Coast Schools and Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 21-CA-11868 January 28, 1974 DECISION AND ORDER Summary Judgment should not be granted. Respon- dent thereafter failed to file a response to Notice To Show Cause. 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. Upon the entire record in this proceeding, the Board makes the following: BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on June 13, 1973, by Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Automation Institute of Los Angeles, Inc., d/b/a West Coast Schools, herein called the Respondent, the General Cou?isel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint on July 30, 1973, against Respondent, 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) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect lo the unfair labor practices, the complaint alleges in substance that on May 31, 1973, following a Board election in Case 21-RC-13164 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; i and that, commenc- ing on or about May 22, 1973, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, particular- ly with respect to the effects of the closing of any of its facilities on the unit employees, although the Union has requested and is requesting it to do so. On August 7, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 17, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 25, 1973, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for I Official notice is taken of the record in the representation proceeding, Case 21-RC-13164. as the term "record" is defined in Secs. 102 68 and 102.69(f) of the Board's F ules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C A. 4. 1968); Ruling on the Motion for Summary Judgment The thrust of the Respondent's answer to the complaint is that it would be futile to bargain with the certified Union on the effects of the closing of its vocational school facilities on the unit employees who were discharged and dismissed at the time of the closing. The General Counsel, on the other hand, contends that under Board and court precedent, the Respondent has the continuing obligation to do so. We agree with the General Counsel. Our review of the record herein reveals that on April 19, 1973. the Acting Regional Director in Case 21-RC-13164 approved a stipulation for consent election agreement, previously executed by the Union and Respondent, providing for an election in the stipulated appropriate unit of all employees at its vocational school facilities in southern California. In the election conducted on May 21, 1973, a majority of the employees voted for the Union. No timely objections to the election having been filed by the Respondent, the Regional Director, on May 31, 1973, certified the Union as the exclusive bargaining representative of the employees in the stipulated appropriate unit. Thereafter, as alleged in its answer to the complaint, and as, in effect, conceded by the General Counsel, the Respondent, in or about May 1973, discontinued its vocational school operations in southern California and terminated all unit employees working therein. Accordingly, the Res- pondent, while admitting the Union's majority status and certification established in the representation case, denies that the Union is now the exclusive representative of the unit employees. Although the Respondent's answer to the com- plaint appears to admit the validity of the Union's majority status and certification, we note that, in any event, it is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled Golden Age Beverage Co, 167 NLRB 151 , enfd 415 F.2d 26 (C.A 5, 1969): Intertype Co. v. Penello. 269 F Supp 573 (D.C. Va. 1967). Follett Corp. 164 NLRB 378, enfd. 397 F 2d 91 (C A 7, 1968), Sec. 9(d) of the NLRA 208 NLRB No. 92 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding,-and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue which is properly litigable in this unfair labor practice proceeding. However, as indicated above, the Respondent defends its admitted refusal to bargain with the certified Union3 on the ground that it had discontin- ued, and is no longer engaged in, vocational school operations, that it had discharged and dismissed- all the vocational school unit employees, and that it would be va vain and fruitless act to bargain with the Union with respect .to the unit employees. We find no merit in this defense. The Board has held that the effects of a termina- tion of operations is a mandatory subject pf bargaining because the elimination of unit jobs is within the statutory phrase "other terms and condi- tions of employment "4 Further, we have held, with court approval, that an employer must notify its employees' collective-bargaining representative of a decision to close its operations so the union can bargain about the effects of the closing upon the displaced employees.5 As.the Court of Appeals for the Ninth Circuit said in Transmarine, once a decision is made to close an operation, the union must be given the opportunity to bargain over the rights of employees whose employment status will be altered .6 We hold therefore that the Respondent herein was under a continuing duty to bargain about the effects of the discontinuance of its vocational school operations in southern California on the terminated employees and its refusal to do so violated Section 8(a)(5) of the Act. Accordingly, we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 2 See Pittsburgh Plate Glass Company v. N.LRB., 313 U.S. 146, 162 ( 1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 3 Although admitting a refusal to bargain, the Respondent's answer appears to deny the alleged request to bargain made on or about May 22, 1973. Attached to the General Counsel's Motion for Summary Judgment are exhs. F and G( l) and (2) which purport to be copies of letters dated May 22, 1973, and June 18, 1973, requesting the Respondent to supply bargaining information prior to a meeting for the purpose of negotiating an agreement. As the Respondent failed to file a response to the Notice To Show Cause, it has not controverted the letters and, therefore, they are deemed to be admitted as true and so found to be true. Accordingly, as these letters establish the CJnion's requests to bargain, the Respondent's FINDINGS OF FACT 1. THE BUSINESS OF, THE RESPONDENT At all times material herein, the Respondent has been, and is now, a corporation with its main office and place of business in Los Angeles, California, and has been engaged in the operation of vocational schools in southern California. In the course and conduct of its business operations, the Respondent annually derives gross revenues in excess of $500,000 and annually purchases materials and supplies valued in excess of $50,000 directly from suppliers outside the State of California. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 111. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All employees employed by the Employer at its facilities located at 1430 West Venice Boulevard, Los Angeles, California; 16611 Hawthorne Boule- vard, Lawndale, California; 11441 South Atlantic Avenue, Lynwood, California; 5059 East Whittier Boulevard, East Los Angeles, California; 5003 East Whittier Boulevard, East Los Angeles, California; 4985 East Whittier Boulevard, East Los Angeles, California; 426 West Duarte Road, denial is stricken and the allegations of the complaint with respect to the Union's bargaining request of May 22, 1973, stand admitted. See Delta- Macon Brick & Tile Company, inc., 196 NLRB 148, Family Heritage Hone--Beaver Dam Incorporated 195 NLRB 1100. 4 New York Mirror, Division of the Hearst Corporation, 151 NLRB 834, 838, fn, 4. 5 Interstate Tool Co., Inc.. 177 NLRB 686; Transmarine Navigation Corporation, 170 NLRB 389. 380 F.2d 933 (C.A. 9, 1967), remanding 152 NLRB 998; Royal Plating and Polishing Co., Inc., 160 NLRB 990; New York Mirror, supra. 6 N. L. N.L.R.B. v. Transmarine Navigation Corporation, supra at 939. WEST COAST SCHOOLS Monrovia, California; 448 South Hill Street, Los Angeles, California; 451 South Hill Street, Los Angeles, California; 454 South Hill Street, Los Angeles, California; I Wilshire Boulevard, Los Angeles, California; excluding all corporate directors and officers, confidential employees, administrative assistants, guards, and supervisors as defined in the Act. . The certification On May 21, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 21 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on May 31, 1973, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's . Refusal Commencing on or about May 22, 1973, and at all times thereafter, the Union has requested the Respondent to bargain, collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit, with respect to the effects of the Respondent's closing of any of its vocational school facilities on said employees. Commencing on or about May 22,1973, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit with respect to, but not limited to, refusing to meet and bargain with the Union over the terms of an initial collective-bargain- ing agreement or over the effects of the closing of any of its vocational school facilities on said employees. Accordingly, we find that the Respondent has, since May 22, 1973, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(ax5) and (1) of the Act. 7 We have indicated that backpay orders are appropriate means of remedying 8(a)(5) violations of the type involved herein, even where such violations are unaccompanied , by a discriminatory discontinuance of IV. THE EFFECT OF *THE UNFAIR LABOR PRACTICES UPON COMMERCE 727 The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, intimate, and substantial relationship to. trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that the Respondent cease and desist therefrom , and take certain affirmative action designed to effectuate the policies of the Act. As a result of the Respondent's unlawful failure to bargain about the effects of its discontinuance, the terminated employees have been denied an opportu- nity to bargain through their collective-bargaining representative at a time when the Respondent might have been still in need of their services, and a measure of balanced bargaining power existed. Meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed. Accordingly, we deem it necessary, in order to effectuate the purposes of the Act, to require the Respondent to bargain with* the Union concerning the effects of the discontinuance of its vocational school operations on its employees, and shall include in our . Order a limited backpay requirement 7 designed both to make whole the employees for losses suffered as a result of the violation and to recreate in some practicable manner a situation in which the parties' bargaining position is not entirely devoid of economic consequences for the Respon- dent. We shall do so in this case by requiring the Respondent to pay backpay to its employees in a manner similar to that required in Transmarine, supra. Thus the Respondent shall pay employees backpay at the rate of their normal wages when last. in Respondent's employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the vocational school discontinuance on its employees; operations. Cf. Royal Plating and Polishing Co., Inc., 148 NLRB 545, 548, and cases cited therein. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of this Decision and Order, or to commence negotia- tions within 5 days of the Respondent's notice of its desire to bargain' with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no "event shall the sum paid to any of these employees exceed the amount he would have earned as wages from in or about May 1973, when the Respondent terminated its operations, to the time he secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain, whichever occurs sooner; provided, howev- er, that in no event shall this sum be less than these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ.8 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Automation Institute of Los Angeles, Inc., d/b/a West Coast Schools, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by the Employer at its facilities located at 1430 West Venice Boulevard, Los Angeles, California; 16611 Hawthorne Boulevard, Lawndale, California; 11441 South Atlantic Avenue, Lynwood, California; 5059 East Whittier Boulevard, East Los Angeles, California; 5003 East Whittier Boulevard, East Los Angeles, California; 4985 East Whittier Boulevard, East Los Angeles, California; 426 West Duarte Road, Monrovia, California; 448 South Hill Street, Los Angeles, California; 451 South Hill Street, Los Angeles, California; 454 South Hill Street, Los Angeles, California; 1 Wilshire Boule- vard, Los Angeles, California; excluding all corpo- rate directors and officers, confidential employees, administrative assistants, guards, 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. Since May 31, 1973, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or -about May 22, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of. Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c), of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Automation Institute of Los Angeles, Inc., d/b/a West Coast Schools, Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain with Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, concerning the effects on its employees of the discontinuance of its vocational school facilities in southern California. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Pay the discontinued employees their normal wages for the period set forth in the remedy section of this Decision and Order. (b) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to the effects on its employees of its discontinuance of vocational school operations in southern California and reduce to writing any agreement reached as a result of such bargaining. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in checking compliance with this Order. (d) Mail a copy of the attached notice marked "Appendix" to Miscellaneous Warehousemen, Driv- ers & Helpers Local 986, International Brotherhood 8 Transmarine Navigation Corporation. supra. WEST COAST SCHOOLS 729 of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and to all the employees who were employed at its former vocational school facilities in or about May 1973-when the facilities were discon- tinued. Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondents authorized representative, shall be mailed immediately upon receipt thereof, as hereinabove directed. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX were employed there, and reduce to writing any agreement reached as a result of such bargaining. WE WILL pay the employees who were em- ployed at the southern California vocational school their normal wages for a period required by a Decision and Order of the National Labor Relations Board,, AUTOMATION INSTITUTE OF Los ANGELES,. INC., D/B/A WEST COAST SCHOOLS (Employer) NOTICE To ALL EMPLOYEES MAILED BY - ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL, upon, request, bargain collectively with Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, with respect to the effects of discontinuance of our southern California voca- tional school operations upon the employees who Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered; defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's .Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254.