Trans Continental Airlines, Inc.

TRANS CONTINENTAL AIRLINES, INC. Trans Continental Airlines, Inc. and Local 247, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 7-CA- 13956 August 22, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on April 8, 1977, by Local 247, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Trans Conti- nental Airlines, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on April 29, 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 November 11, 1976, following a Board election in Case 7-RC- 13632 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about February 8, 1977, and at all times thereafter, Respondent has refused, and con- tinues to date 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 May 9, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 27, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On June 9, 1977, Respondent filed a response thereto entitled "Response to Motion to Transfer Case to and Continue Proceedings Before the Board and Motion for Summary Judgment." On the same date, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- I Official notice is taken of the record in the representation proceeding, Case 7-RC 13632, 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 26 231 NLRB No. 83 dent thereafter filed a response to Notice To Show Cause entitled "Response to Order Transferring Proceeding to the Board and 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: Ruling on the Motion for Summary Judgment In its answer to the complaint and in its responses to the Motion for Summary Judgment and to the Notice To Show Cause, Respondent contests the validity of the Board's certification of the Union on the basis of its objections to the election in the underlying representation proceeding and the resolu- tion of those objections. Counsel for the General Counsel contends that Respondent here is attempt- ing to relitigate issues which were raised and disposed of in the underlying representation proceed- ing and this it may not do. We agree with the General Counsel. Review of the entire record, including that in Case 7-RC-13632, disclosed that pursuant to a Stipulation for Certification Upon Consent Election an election was conducted on June 27, 1976, which the Union won by a vote of nine to three, with three ballots challenged. Respondent filed timely objections to conduct affecting the results of the election, alleging in substance the following union conduct: (1) promises concerning results of prospective negotia- tions with Respondent if the Union won the election; (2) misrepresentations of material fact; (3) threats; and (4) electioneering in the vicinity of the polling area. After investigation, the Regional Director issued, on August 17, 1976, a Report and Recom- mendations on Objections to Conduct Affecting the Results of the Election in which he recommended that all the objections be overruled and that the Union be certified. Respondent filed exceptions essentially reiterating its misrepresentations objec- tion and requesting that the Regional Director's decision be reversed and that the election be set aside. After reviewing the record in light of the exceptions and brief, the Board, on November 11, 1976, issued its Decision and Certification of Repre- sentative 2 in which it adopted the findings and recommendations of the Regional Director and certified the Union. It thus appears that Respondent (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 Not reported in bound volumes of Board Decisions. 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is attempting to raise here matters which were considered and disposed of in the underlying representation case. 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 Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. 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, a corporation duly organized under the laws of the State of Michigan, at all times material herein, has maintained its principal office and place of business at Willow Run Airport, Ypsilanti, Michigan, where it is engaged, inter alia, as an interstate contract and freight carrier transporting automotive cargo and related products. During the past fiscal year ending June 30, 1976, a representative period, Respondent, in the course and conduct of its business operations, performed services valued in excess of $500,000, of which services valued in excess of $50,000 were performed in, and for various enterprises located in, States other than the State of Michigan. 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. II1. THE LABOR ORGANIZATION INVOLVED Local 247, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(0) and 102.69(c). III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding i. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time captains, first officers, and flight engineers employed by the Employer who are based in the United States; but excluding all office-clerical employees, guards and supervisors as defined in the Act, and all other employees. 2. The certification On June 27, 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 7, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on November 11, 1976, 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 February 8, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about February 8, 1977, and continuing at all times thereafter to date, 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. Accordingly, we find that Respondent has, since February 8, 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- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 522 TRANS CONTINENTAL AIRLINES, INC. 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, upon request, bargain collectively with the Union 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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. Trans Continental Airlines, Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 247, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time captains, first officers, and flight engineers employed by the Employer who are based in the United States; but excluding all office-clerical employees, guards and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 11, 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 February 8, 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(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 the Respondent, Trans Continental Airlines, Inc., Ypsilanti, Michi- gan, 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 Local 247, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time captains, first officers, and flight engineers employed by the Employer who are based in the United States; but excluding all office-clerical employees, guards and supervisors as defined in the Act, and all other employees. (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 above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. 523 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its Ypsilanti, Michigan, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 7, 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 n 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 refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 247, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. 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 with the above-named Union as the exclusive representa- tive of all employees in the bargaining unit described 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. The bargaining unit is: All full-time and regular part-time cap- tains, first officers, and flight engineers employed by the Employer who are based in the United States; but excluding all office- clerical employees, guards and supervisors as defined in the Act, and all other employ- ees. TRANS CONTINENTAL AIRLINES, INC. 524