Pacific Southwest Airlines

PACIFIC SOUTHWEST AIRLINES Pacific Southwest Airlines, and Pacific Southwest Airmotive and Teamsters Local 2707, Airline, Aerospace and Allied Employees, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 21-CA- 15699 October 17, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on May 6, 1977, by Teamsters Local 2707, Airline, Aerospace and Allied Employ- ees, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Pacific Southwest Airlines, and Pacific Southwest Airmotive, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on June 10, 1977, 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 to the unfair labor practices, the complaint alleges in substance that on July 30, 1976, following a Board election in Case 21-RC-14624, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commenc- ing on or about April 29, 1977, 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 by unilat- erally and without prior notification to or consulta- tion with the Union bargaining directly with its employees in said unit. On June 23, 1977, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 11, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 15, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General I Official notice is taken of the record in the representation proceeding, Case 21-RC-14624, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penel/o, 269 F.Supp. 573 (D.C.Va.. 1967); 233 NLRB No. 10 Counsel's Motion for Summary Judgment should not be grar..ed. Respondent thereafter filed a response to Notice Fo Show Cause, entitled "Argument in Support of Opposition to Motion for Summary Judgmei ." Pursua t 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: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent basically admits the underlying representation proceeding, but denies the validity of the Union's certification based on its contention that the unit is inappropriate. Respondent also contends that material issues remain in dispute with regard to General Counsel's allegations that Respondent bargained directly with employees of the unit and therefore a hearing is required as to those issues. The General Counsel contends that the unit issues have been previously considered and decided in the underlying representation case and, as was found in the Decision and Order in Case 21-CA- 14967,2 may not be relitigated. We agree with the General Counsel. The Respondent's duty to bargain based on the same certification was determined by the Board on January 27, 1977, in the Decision and Order in Case 21-CA-14967 wherein Respondent raised essentially the same issues it now raises. As in that case, we now find that Respondent is attempting to raise and relitigate issues already litigated and determined; this it may not do. 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 to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by the Respondent in this proceeding concerning the prior representation case were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 227 NLRB 1578 (1977). 3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Respondent, in effect, admits in its answer and in its response to the Notice To Show Cause that its supervisor assembled bargaining unit personnel and informed them of planned organizational changes which would result in a loss of bargaining unit jobs without prior notification to or consultation with the Union. Thus, Respondent's request for a hearing is denied as there is no factual issue before the Board necessitating a hearing. Furthermore, contrary to Respondent, the supervisor's actions and conduct constituted direct bargaining with employees, since it is well established that "[r]espondent's obligation to bargain with the employees' exclusive agent demands that he accept and respect the exclusivity of that agency." 4 We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, with its main office and place of business in San Diego, California, is comprised of Pacific Southwest Airlines, a California corporation operating as an intrastate passenger air carrier, and Pacific Southwest Airmotive, its wholly owned subsidiary which is engaged in the overhaul of jet engines. In the normal course and conduct of its business operations described above, Respondent annually derives gross revenues in excess of $500,000 and annually purchases and receives goods valued in excess of $50,000 directly from suppliers located 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 Teamsters Local 2707, Airline, Aerospace and Allied Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE 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 junior clericals, intermediate clericals, senior clericals, leads 1, 2, and 3, and clerk-typists in Respondent's inventory control department, invoice control department, material control department, planning and recordkeeping depart- ment, shipping and receiving department, plating department, inspection/records department, and the production control recorder in the inventory surveillance department employed at Respon- dent's facilities located at 3225 North Harbor Drive, and 7007 Consolidated Way, San Diego, California; excluding all other employees, office clerical employees, buyers, planners, chemists, engineering analysts, engineers, professional em- ployees, guards, and supervisors as defined in the Act. 2. The certification On July 22, 1976, 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 July 30, 1976, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Respondent's Refusal To Bargain Since on or about April 29, 1977, 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 representa- tive for collective bargaining of all employees in said unit by unilaterally, and without prior notification to or consultation with the Union, bargaining directly with its employees in said unit. Accordingly, we find that the Respondent has, since April 29, 1977, 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- 4 Obie Pacific, Incorporated 196 NLRB 458.459 (1972). 2 PACIFIC SOUTHWEST AIRLINES dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, 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 Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, to remedy Respondent's unilateral action with respect to the direct bargaining with its employees, we shall order Respondent, upon request, to bargain collec- tively with the Union in good faith as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Pacific Southwest Airlines, and Pacific South- west Airmotive is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 2707, Airlines, Aerospace and Allied Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All junior clericals, intermediate clericals, senior clericals, leads 1, 2, and 3, and clerk-typists in Respondent's inventory control department, invoice control department, material control department, planning and recordkeeping department, shipping and receiving department, plating department, in- spection/records department, and the production control recorder in the inventory surveillance depart- ment employed at Respondent's facilities located at 3225 North Harbor Drive, and 7007 Consolidated Way, San Diego, California; excluding all other employees, office clerical employees, buyers, plan- ners, chemists, engineering analysts, engineers, pro- fessional employees, 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 July 30, 1976, 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 April 29, 1977, 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(a)(5) 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 the Respondent, Pacific Southwest Airlines, and Pacific Southwest Airmotive, San Diego, California, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Bargaining directly with employees who are represented by Teamsters Local 2707, Airline, Aerospace and Allied Employees, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization. (b) Changing any terms or conditions of employ- ment of employees represented by said Union, or any 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other labor organization which represents them, without prior consultation with said representatives of said employees. (c) 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 Teamsters Local 2707, Airline, Aerospace and Allied Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all employees in the appropriate unit, with respect to any planned organizational changes which would result in a reduction of bargaining unit personnel and a loss of bargaining unit jobs and, if an understanding is reached, embody it in a signed agreement. The appropriate unit is: All junior clericals, intermediate clericals, senior clericals, leads 1, 2, and 3, and clerk-typists in the Respondent's inventory control depart- ment, invoice control department, material con- trol department, planning and recordkeeping department, shipping and receiving department, plating department, inspection/records depart- ment, and the production control recorder in the inventory surveillance department employed at Respondent's facilities located at 3225 North Harbor Drive and 7007 Consolidated Way, San Diego, California; excluding all other employees, office clerical employees, buyers, planners, chem- ists, engineering analysts, engineers, professional employees, guards, and supervisors as defined in the Act. (b) Post at its 3225 North Harbor Drive and 7007 Consolidated Way facilities copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) 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. MEMBER MURPHY, concurring: I cannot agree that Respondent's verbal announce- ment concerning a unilateral change in working conditions constitutes unlawful direct dealings. Quite literally there were no dealings with the employees and the change could quite obviously have been announced just as effectively in a plant bulletin or newspaper without any direct contacts with the employees at all for they in a real sense were only an audience, not participants. However, the Respon- dent's conduct clearly involved unlawful unilateral changes and bypassing of the Union and in the circumstances here a finding of an 8(a)(5) and (1) violation is warranted on that basis. See, e.g., REA Trucking Company, Inc. v. N.LR.B., 439 F.2d 1065 (C.A. 9, 1971). It is on that basis that I join in my colleagues' result here. 5 In the event that 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 Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT bargain directly with employees who are represented by Teamsters Local 2707, Airline, Aerospace and Allied Employees, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT change any terms or conditions of employment of employees represented by said Union, or any other labor organization which representes them, without prior consultation with said representatives of said employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL, upon request, bargain with Team- sters Local 2707, Airline, Aerospace and Allied Employees, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of all employees in the appropriate unit, with respect to any planned organizational changes 4 PACIFIC SOUTHWEST AIRLINES which would result in a reduction of bargaining unit personnel and a loss of bargaining unit jobs, and, if an understanding is reached, embody it in a signed agreement. The appropriate unit is: All junior clericals, intermediate clericals, senior clericals, leads 1, 2, and 3, and clerk- typists in the Respondent's inventory control department, invoice control department, material control department, planning and recordkeeping department, shipping and receiving department, plating department, inspection/records department, and the pro- duction control recorder in the inventory surveillance department employed at Re- spondent's facilities located at 3225 North Harbor Drive and 7007 Consolidated Way, San Diego, California; excluding all other employees, office clerical employees, buyers, planners, chemists, engineering analysts, engineers, professional employees, guards, and supervisors as defined in the Act. PACIFIC SOUTHWEST AIRLINES, AND PACIFIC SOUTHWEST AIRMOTIVE 5