Air Transit, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1981

256 N.L.R.B. 278 (N.L.R.B. 1981)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Air Transit, Inc. and Anthony Herndon and James
J. Edge. Case 5-CA-10368
June 1, 1981
DECISION AND ORDER
Upon a charge filed on December 19, 1979, by
the Charging Parties, individuals, and duly served
on Air Transit, Inc. (Respondent herein), the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 5,
issued a complaint and notice of hearing on June 6,
1980, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(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 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 in August and
November 1978, Respondent by and through the
acts of its agents, Jack Shinberg and Ritchie
Gaylen, violated Section 8(a)(1) of the Act by
threatening employees because they had engaged in
protected concerted activities. Respondent filed an
answer and an amended answer admitting in part,
and denying in part, the allegations of the com-
plaint.
Thereafter, on January 27, 1981, counsel for the
General Counsel filed directly with the Board a
Motion for Summary Judgment. On January 29,
1981, 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
thereafter filed a brief in opposition to the General
Counsel's Motion for Summary Judgment.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
The complaint alleges in pertinent part that, in
August and November 1978, Respondent by and
through the conduct of its agents Jack Shinberg
and Ritchie Gaylen violated Section 8(a)(1) of the
Act by (1) threatening employees because they
gave testimony at a Board representation hearing;
(2) threatening employees with unspecified actions
because of their activities on behalf of a union; (3)
threatening employees that they would need a
union if they continued their organizing efforts on
behalf of a union; and (4) threatening employees
with discharge because of their efforts and activi-
ties in forming an employee association and their
activities on behalf of a union. Respondent's
256 NLRB No. 44
answer and amended answer admit the essential
elements of the complaint; however, Respondent
denies that it is an employer within the meaning of
the Act, and it denies any violation of the Act. As
an affirmative defense, Respondent contends that
the individuals alleged to be employees of Re-
spondent, taxi drivers working at Respondent's
Dulles Airport facility, are independent contrac-
tors, not employees, and therefore are not subject
to the Act. In his motion for Summary Judgment,
the General Counsel contends that pursuant to a
petition filed by the Communication Workers of
America, AFL-CIO (the Union), the Board, on
April 21, 1980, issued a Decision on Review and
Direction of Election in a unit of all taxi drivers
working at Respondent's Dulles Airport taxi
stand. Notwithstanding Respondent's contentions,
the General Counsel submits that the Board prop-
erly found, in the representation case, that the taxi
drivers involved herein were employees within the
meaning of the Act and that Respondent has failed
to present any evidence establishing that the Board
erred in finding those individuals to be employees
within the meaning of the Act. Accordingly, the
General Counsel submits that the Board should
grant the Motion for Summary Judgment. In its
opposition to the General Counsel's Motion for
Summary Judgment, Respondent contends that the
evidence presented in the earlier representation
case demonstrates that the taxi drivers are inde-
pendent contractors and that Respondent is not an
employer within the meaning of the Act. Respond-
ent further contends that the General Counsel's
Motion for Summary Judgment should be denied
and that the allegations of the complaint should be
dismissed. We find no issues remain requiring a
hearing and, as discussed below, we grant the Gen-
eral Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Virginia corporation, with its
principal office in Arlington, Virginia, is engaged
in the taxicab business. During the preceding 12
months, a representative period, Respondent re-
ceived gross revenues in excess of $500,000 from
its operations. During the same period, Respondent
purchased and received, in interstate commerce,
materials and supplies valued in excess of $50,000
' 248 NLRB 1302. Subsequently, an election was held wherein a ma-
jority of the participating employees voted against representation by the
Union, and thereafter, the Regional Director issued a Certification of Re-
sults of Election.
AIR TRANSIT, INC. 279
directly from points located outside the Common-
wealth of Virginia. Accordingly, we find 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
Communication Workers of America, AFL-
CIO, herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As noted above, the General Counsel contends
that Respondent has violated Section 8(a)(l) of the
Act by threatening its employees because of their
involvement in protected concerted activities. Con-
trary to the General Counsel's position, Respond-
ent claims that it did not violate the Act because
the individuals threatened by Respondent's agents
are independent contractors and are not protected
by the Act. Respondent contends that in directing
an election among taxi drivers working at its
Dulles Airport taxi stand the Board erred in find-
ing that those taxi drivers were employees within
the meaning of the Act and that therefore the com-
plaint allegations should be dismissed.
In a case such as the instant case, which involves
independent violations of the Act that are unrelat-
ed to a prior representation case, the findings in
that prior representation case are subject to chal-
lenge and may be litigated. 2 Subject of course, to
reconsideration and to any additional evidence ad-
duced in the unfair labor practice case, the Board
may accord a certain "persuasive relevance, a kind
of 'administrative comity"' to the prior representa-
tion case findings. 3 In the instant case, however,
Respondent does not offer any additional evidence
to support its contention, it merely contends that
the Board erred in the earlier representation case.4
Accordingly, we have carefully considered our
prior decision and, based on the entire record in
this case, we reaffirm our previous findings in 248
2 In contrast, representation case findings in a "related" subsequent
unfair labor practice proceeding (i.e., Sec. 8(a)(XS) case based on certifica-
tion in a representation proceeding) are not subject to relitigation. Serv-U-
Stores, Inc., 234 NLRB 1143, 1144 (1978), Chairman Fanning and
Member Jenkins dissenting on other grounds.
Ibid.
Member Zimmerman relies on the Board's prior determination that
the Employer's drivers were employees within the meaning of the Act
and upon Respondent's failure to introduce any additional evidence war-
ranting an alternative finding. Although the Board could, without violat-
ing its rules, reverse that determination. Member Zimmerman considers
the policies and principles of stare decisis as militating strongly against
such a course, particularly in the absence of new evidence or changed
circumstances. Cf. Bravos Oldsmobile, 254 NLRB No. 135 (1981) (concur-
rence of Member Zimmerman)
NLRB 1302 that Respondent's taxi drivers are em-
ployees within the meaning of the Act and are enti-
tled to the full protection of the Act. We find,
therefore, that Respondent violated Section 8(a)(1)
of the Act by threatening its employees because of
their involvement in protected concerted activities.
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)(1) of the Act, we shall
order that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Air Transit, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Communication Workers of America, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening employees because they gave
testimony in a Board representation case, by threat-
ening employees with unspecified action because of
their activities on behalf of the Union, by threaten-
ing employees that they would need the Union if
they continued their organizing efforts on behalf of
the Union, and by threatening employees with dis-
charge because of their efforts and activities in
forming an employee association and their activities
on behalf of the Union, Respondent violated Sec-
tion 8(a)(1) of the Act.
4. 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,
AIR TRANSIT, NC.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Air Transit, Inc., Arlington, Virginia, its officers,
agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Threatening employees because they gave
testimony at a Board representation hearing, threat-
ening employees with unspecified actions because
of their activities on behalf of the Union, threaten-
ing employees that they would need the Union if
they continued their organizing efforts on behalf of
the Union, and threatening employees with dis-
charge because of their efforts and activities in
forming an employee association and their activities
on behalf of the Union.
(b) In any like or related manner interfering
with, restraining, or coercing its 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) Post at its Dulles Airport facility copies of
the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable 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 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Pursu-
ant 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 Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT threaten employees because
they have given testimony at a National Labor
Relations Board hearing.
WE WILL NOT threaten employees with un-
specified action because of their activities on
behalf of the Communication Workers of
America, AFL-CIO, or any other union.
WE WILL NOT threaten employees that they
would need a union if they continue their or-
ganizing efforts on behalf of the Communica-
tion Workers of America, AFL-CIO, or any
other union.
WE WILL NOT threaten employees with dis-
charge because of their efforts and activities in
forming an employee association and their ac-
tivities on behalf of the Communication Work-
ers of America, AFL-CIO, or any other
union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed to
them in Section 7 of the National Labor Rela-
tions Act.
AIR TRANSIT, INC.