Aircraft Services International, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aircraft Services International, Inc. and District 100, International Association of Machinists & Aerospace Workers, AFL-CIO. Case 12-CA- 10076 July 13, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on March 3, 1982, by Dis- trict 100, International Association of Machinists & Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Aircraft Services Inter- national, Inc., herein called Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint on March 29, 1982, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 and complaint and notice of hearing before an ad- ministrative 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 June 4, 1981, following a Board election in Case 12-RC-6066, the Union was duly certified as the exclusive col- lective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about September 8, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On April 12, 1982, Respond- ent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 29, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 5, 1982, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent I Official notice is taken of the record in the representation proceed- ing, Case 12-RC-6066, as the term "record" is defined in Secs. 102.68 and 102.6 9(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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Folleit rorp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 262 NLRB No. 110 thereafter filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 opposition to the Motion for Summary Judgment, Respondent admits that the Union has requested that it bargain and that it has refused to do so, but contends that the certification of the Union is invalid because the unit certified is inappropriate for the purposes of collective bargaining. Respondent also alleges that it has been denied fundamental due process in its efforts to challenge the appropriateness of the unit. Specifically, Respondent asserts that the Hearing Officer improperly refused to grant its request for a continuance. Review of the record herein, including that in the representation proceeding, Case 12-RC-6066, establishes that, upon a petition duly filed under Section 9(c) of the Act, a hearing was held before a hearing officer of the National Labor Relations Board. Thereafter, the Regional Director issued a Decision and Direction of Election on April 15, 1981, wherein he found that the petitioned-for unit of all tank farm and transport employees employed by Respondent at Tampa International Airport, Tampa, Florida, including all attendants, operators, mechanics and transport truck drivers, but exclud- ing all office clerical employees, building and auto maintenance employees, ramp agents, janitorial- maid employees, guards and supervisors as defined in the Act, constitutes an appropriate unit for the purposes of collective bargaining, and directed that an election by secret ballot be conducted among the employees in that unit. Respondent filed a request for review on April 24, 1981, alleging, inter alia, that the Regional Di- rector made erroneous factual conclusions that there was a sufficient community of interest be- tween the tank farm workers and the transport drivers, and that a unit limited to tank farm work- ers and transport drivers, and not including all of the unorganized employees employed by Respond- ent at the Tampa International Airport, was inap- propriate. Respondent also contended that the Hearing Officer erred in not granting its motion for a continuance. By telegraphic order of May 6, 1981, the Board denied Respondent's request for review. 864 AIRCRAFT SERVICES INTERNATIONAL, INC. In accordance with the Regional Director's De- cision and Direction of Election, a secret-ballot election was conducted on May 15, 1981. The tally of ballots shows that the Union won the election. Respondent filed timely objections to the election, alleging that the Regional Director's unit determi- nation was factually erroneous and that its request for a continuance had been improperly denied. On June 4, 1981, after an administrative investigation, the Regional Director for Region 12 issued a Sup- plemental Decision, Order, and Certification of Representation. Respondent filed a timely request for review of the Supplemental Decision, Order and Certification of Respresentation, reiterating the contentions made in its objections. By telegraphic order of July 9, 1981, the Board denied Respond- ent's request for review. As noted, in its answer to the complaint and op- position to the Motion for Summary Judgment, Re- spondent denies the appropriateness of the unit and alleges that the Regional Director erred in certify- ing the unit requested. Respondent contends that the only proper bargaining unit includes all 47 of the unrepresented employees at its Tampa, Florida, station and not just the 8 tank farm and transport employees. Respondent also contends that the Hearing Officer's refusal to grant a continuance constituted a denial of due process. Finally, in its answer to the complaint, Respondent contends that it is without knowledge to answer the allegation that the Union is a labor organization within the meaning of Section 2(5) of the Act. All of these issues, the appropriateness of the unit, the denial of a continuance, and the Union's status under Section 2(5) of the Act, were litigated and decided in the underlying representation pro- ceeding. Respondent has not alleged any newly dis- covered evidence in this proceeding which would controvert any of the findings and conclusions made as to such issues in the representation case. Nor do any of Respondent's contentions raise any substantial or material issues of fact or law which would warrant reconsideration of those issues or a hearing herein. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceedings All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- I See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees 102.67(f) and 102.69(c). ered 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. Accordingly, we 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 RESPONDENT Respondent Aircraft Services International, Inc., a Delaware corporation with an office and place of business in Tampa, Florida, is engaged in the busi- ness of providing fueling services and related serv- ices for airlines at Tampa International Airport. During the past 12 months, Respondent, in the course and conduct of its business operations, pro- vided services valued in excess of $50,000 to com- panies who, in turn, meet a jurisdictional standard other than solely indirect inflow or outflow. We find, on the basis of the foregoing, that Re- spondent 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 District 100, International Association of Ma- chinists & Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. IlI. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All tank farm and transport employees em- ployed by the Respondent at Tampa Interna- tional Airport, Tampa, Florida, including all attendants, operators, mechanics and transport truck drivers; excluding all office clerical em- ployees, building and auto maintenance em- ployees, ramp agents, janitorial-maid employ- ees, guards and supervisors as defined in the Act. 865 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The certification On May 15, 1981, 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 12; designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on June 4, 1981, 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 August 25, 1981, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 8, 1981, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since September 8, 1981, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 ensure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Aircraft Services International, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 100, International Association of Ma- chinists & Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All tank farm and transport employees em- ployed by Respondent at Tampa International Air- port, Tampa, Florida, including all attendants, op- erators, mechanics and transport truck drivers; ex- cluding all office clerical employees, building and auto maintenance employees, ramp agents, janitori- al-maid employees, guards and supervisors as de- fined 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 June 4, 1981, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 8, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 866 AIRCRAFT SERVICES INTERNATIONAL, INC. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning 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 Re- lations Board hereby orders that the Respondent, Aircraft Services International, Inc., 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 District 100, Inter- national Association of Machinists & Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All tank farm and transport employees em- ployed by the Respondent at Tampa Interna- tional Airport, Tampa, Florida, including all attendants, operators, mechanics and transport truck drivers; excluding all office clerical em- ployees, building and auto maintenance em- ployees, ramp agents, janitorial-maid employ- ees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Tampa International Airport, Tampa, Florida, location copies of the attached notice marked "Appendix. " s Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's s In the event that this Order ;s 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 District 100, International Association of Machinists & Aerospace Workers, AFL-CIO, as the exclusive representative of the employ- ees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All tank farm and transport employees em- ployed by the Employer at Tampa Interna- tional Airport, Tampa, Florida, including all attendants, operators, mechanics and trans- port truck drivers; excluding all office cleri- cal employees, building and auto mainte- nance employees, ramp agents, janitorial- maid employees, guards and supervisors as defined in the Act. AIRCRAFT SERVICES INTERNATIONAL, INC. 867