Mcdonnell Aircraft Co.

MCDONNELL AIRCRAFT CO 357 McDonnell Aircraft Company and Teamsters Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 14- CA-18252 21 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN Upon a charge filed by the Union 2 January 1986, and an amended charge filed by the Union 14 January 1986, the General Counsel of the National Labor Relations Board issued a complaint 16 Janu- ary 1986 against the Company, the Respondent, al- leging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 7 October 1985, following a Board election in Case 14-RC-9943, the Union was certified as the exclusive collective- bargaining representative of the Company's em- ployees in the unit found appropriate. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 31 December 1985 the Com- pany has refused to bargain with the Union. The Company timely filed an answer admitting in part and denying in part the allegations in the com- plaint. On 6 February 1986 the General Counsel filed a Motion for Summary Judgment. On 13 February 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer admits that it refused to recognize and bargain with the Union. The Com- pany attacks the validity of the certification based on its assertion that the fire prevention/suppression specialists in the unit are guards within the mean- ing of Section 9(b)(3) of the Act, and thus the Union cannot be certified as their representative because it admits nonguards to membership. The Company contends that recent Board cases have held that employees who do not perform guard duties as their primary function, but whose duties include an essential responsibility to enforce the employer's rules and regulations, are guards within the meaning of the Act, and that these cases consti- tute "special circumstances" which justify relitiga- tion of the employees' status and denial of the Motion for Summary Judgment. In addition, as it asserted in Case 14-RC-9943, the Company again argues that the fire prevention/suppression special- ists have special functions during work stoppages and strikes, and that these special duties require us to find that they are guards within the meaning of the Act. The record, including the record in Case 14- RC-9943, reveals that, following a hearing on the Union's petition, during which the Respondent was accorded full opportunity to be heard, to introduce evidence, and to file briefs, the Regional Director issued a Decision and Direction of Election on 15 March 1985. On 28 March 1985 the Respondent filed a timely request for review, which was grant- ed by the Board on 10 April 1985. On 12 April 1985 an election was conducted, which resulted in 40 votes for, and 13 votes against, the Union, with no challenged ballots. On 18 September 1985 a three-member panel of the Board, Member Johan- sen dissenting, issued a telegram decision affirming the Regional Director's Decision and Direction of Election. On 7 October 1985 the Regional Director certified the Union as the exclusive bargaining rep- resentative of the unit employees. In its answer, the Respondent admits that on 31 December 1985 the Union verbally requested the Respondent to recognize and bargain with the Union, and that since that date the Respondent has refused to comply with the Union's request. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. The Respondent asserts in its response to the Notice to Show Cause that the Board, in affirming the Decision and Direction of Election, erred in relying on McDonnell Aircraft Corp., 109 NLRB 967 (1954), which found that the firemen who were then employed by the Respond- ent were not guards because their enforcement of fire prevention rules was only incidental to their main duties of fighting fires, maintaining fire equip- ment, and standing by at hazardous operations. In affirming the Regional Director's Decision and Di- rection of Election, however, the Board rejected the Respondent's contention that cases decided since McDonnell Aircraft Corp., including Wright 279 NLRB No. 55 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Memorial Hospital, 255 NLRB 1319 (1981), and Chance nought Aircraft, 110 NLRB 1342 (1954), changed the standards for deciding whether fire- men are guards and require us to find that the Re- spondent's currently employed fire prevention/- suppression specialists are guards within the mean- ing of Section 9(b)(3). In its response to the Notice to Show Cause, nonetheless, the Respondent reas- serts its argument that since the first McDonnell Aircraft Corp. decision, the Board has re-evaluated its position on whether firemen are guards, and thus special circumstances exist which justify reliti- gation of the status of the fire prevention/- suppression specialists. In support of its position, the Respondent cites only MGM Grand Hotel, Las Vegas, 274 NLRB 139 (1985). MGM Grand Hotel, however, was decided before the Decision and Direction of Election in this case, and is thus not an intervening decision which constitutes a recent reevaluation of our posi- tion. Further, we found in MGM Grand Hotel that the employees in question, who operated an auto- mated life-safety system used for fire prevention and security and engineering functions, were guards because they were intimately involved in the security functions and life-safety procedures at the employer's facility. This finding is not contrary to our finding in Case 14-RC-9943 that the Re- spondent's fire prevention/suppression specialists are not guards, because any duties they perform re- lating to security are clearly incidental to their pri- mary functions of fire prevention and suppression.' Thus, contrary to the Respondent's contention, the enforcement of security and safety rules is not an essential part of these employees' responsibilities. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment.2 I The Respondent's other contention, that the duties performed by the fire prevention/suppression specialists during strikes require a finding that they are guards, was fully litigated in Case 14-RC-9943 The Respondent has introduced no newly discovered and previously unavailable evidence which would require us to disturb the Regional Director's finding that these duties are primarily related to fire prevention, with the exception of tentative plans to involve the fire prevention/suppression specialists in crowd control activities The Regional Director found that these plans have never been implemented and are not currently in force, and the Re- spondent has introduced no new evidence which would contradict this finding 2 Member Johansen notes that he dissented from the affirmation of the Regional Director's Decision and Direction of Election However, as the On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Delaware corporation, is en- gaged in the nonretail manufacture, sale, and distri- bution of aircraft and related aerospace products at its facility in St. Louis, Missouri. During calendar year 1985, the Company purchased and received at its St. Louis facility products, goods, and materials valued in excess of $50,000 directly from points lo- cated outside the State of Missouri. We find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 12 April 1985 the Union was certified 7 October 1985 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All fire prevention/suppression specialists em- ployed by the Employer who service the Em- ployer's facilities in St. Louis City, St. Louis County, and St. Charles County, Missouri, ex- cluding office clerical and professional em- ployees, dispatchers, guards, and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 31 December 1985 the Union has request- ed the Company to bargain, and since 31 Decem- ber 1985 the Company has refused . We find that this refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 31 December 1985 to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit, the Company has engaged in unfair labor practices affecting commerce within the Respondent is attempting to relitigate the same issues in this proceeding, Member Johansen accepts the prior decision as the law of the case and will loin his colleagues in granting the General Counsel's Motion for Summary Judgment MCDONNELL AIRCRAFT CO meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, McDonnell Aircraft Company, St. Louis, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local Union No. 682, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargain- ing representative of the employees in the bargain- ing unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All fire prevention/suppression specialists em- ployed by the Employer who service the Em- ployer's facilities in St. Louis City, St. Louis County, and St. Charles County, Missouri, ex- cluding office clerical and professional em- ployees, dispatchers, guards, and supervisors as defined in the Act, and all other employees. (b) Post at its facilities in St. Louis City, St. Louis County, and St. Charles County, Missouri, 359 copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Re- gional Director for Region 14, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. a If 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 Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Teamsters Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive rep- resentative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All fire prevention/suppression specialists em- ployed by the Employer who service the Em- ployer's facilities in St. Louis City, St. Louis County, and St. Charles County, Missouri, ex- cluding office clerical and professional em- ployees, dispatchers, guards, and supervisors as defined in the Act, and all other employees. MCDONNELL AIRCRAFT COMPANY