Airport Aviation Services Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1989

292 N.L.R.B. 823 (N.L.R.B. 1989)

AIRPORT AVIATION SERVICES
Airport Aviation Services Incorporated and Interna-
tional Association of Machinists and Aerospace
Workers , AFL-CIO, Local 2725 and Union In-
dependiente de Trabajadores de Aeropuertos,
Intervenor Cases 24-CA-4922, 24-CA-4966,
and 24-CA-5040
January 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On May 28, 1985, Administrative Law Judge
Joel M Harmatz issued the attached decision The
General Counsel and the Union filed exceptions
and supporting briefs, the Intervenor' filed cross-
exceptions and a brief, and the Respondent filed a
reply brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions as modified below and to adopt the
recommended Order 3
We agree with the judge's finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to furnish the 1982 payroll requested
by the Union in 1984 4 Contrary to the judge,
' Union Independiente de Trabajadores de Aeropuertos (VITA) is the
Petitioner in Case 24-RC-6852 in which ballots cast in an election con
ducted on March 29 1984 were impounded pending the resolution of
charges in the instant cases UITA was permitted to intervene to the
extent that it could be affected by the remedy
2 The General Counsel and the Union have excepted to some of the
judge s credibility findings The Board a established policy is not to over
rule an admini trative law judge s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in
correct Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d
362 (3d Ctr 1951) We have carefully examined the record and find no
basis for reversing the findings
The Union asserts that the judge s conduct at the hearing evidences
bias After careful examination of the record we are satisfied that the al
legation is without merit
3In addition to its reply brief the Respondent filed an informative
motion seeking to correct certain apoendices attached to the General
Counsels posthearing brief to the judge The corrections relate to the
number of employees hired and discharged or retained on completion of
the 45 -day probationary period in the years 1983 and 1984 As the motion
is unopposed it is granted However in view of our findings we deem it
unnecessary to rely on the corrections contained in the motion
" For the reasons stated by the judge we agree with his findings that
the Respondent did not unlawfully terminate newly hired employees
refuse to discuss grievances that were the subject of pending unfair labor
practice charges threaten an employee with discharge withdraw recog
ration from the Umon and thereafter change certain terms and conditions
of employment and refuse to respond to the Umon s June 6 1984 mfor
matron request The withdrawal of recognition is discussed further below
In the absence of exceptions we affirm the judge s finding that the Re
spondent violated Sec 8(a)(5) and ( 1) of the Act by refusing to answer
grievances that arose during the life of the expired collective bargaining
agreement
823
however, we find that the Respondent likewise
violated the Act by submitting inaccurate and in
complete responses to the Union's October 7 and
26, 19835 requests for information
In an October 7 letter referenced "new hired em-
ployees," the Union requested the Respondent to
furnish the names, hire dates, pay rates, and classifi-
cations of all newly hired employees within 5 days
of their employment, as required by article 18, sec-
tion 3, of the collective bargaining agreement In
this letter Union Representative Juan Maldonado
noted that the Union had received the names of
"some" new employees but that the information
supplied at no time included hire dates, pay rates,
and classifications In response to this request, on
October 13, the Respondent's vice president and
general manager , Federico Bauzo , submitted a
letter that included the names of four new employ-
ees and their "hire dates " Attached were four per-
sonnel action forms that indicate that the "effective
date," i e , ostensibly the hire date, for two of the
employees was August 31 and for the other two
September 21 The personnel action date for all
four employees was September 25 The forms indi-
cate that each was appointed as a part time em-
ployee earning $4 60 an hour and they include each
employee's classification or position description
On October 26, Maldonado submitted another
request for information that noted that on August 9
the Respondent had said it would supply an up-to-
date list of all employees in its employ This letter
specifically requested the names and addresses of
all employees as well as their dates of hire, pay
rates, and classifications On October 31, Bauzo
sent a computerized list of employees and the re-
quested data pertaining to each employee The
cover letter to which this list was attached states
that it is 'a list of all hired employees (Regu-
lar/Part-time) working at present "
The General Counsel alleged that the responses
were inadequate and intentionally incomplete,
thereby constituting unlawful failures and refusals
to supply relevant requested information Specifi-
cally, the General Counsel notes that the requests
in issue were preceded by three requests for the
same or similar information dating back to Febru-
ary 23, when the Union first accused the Respond-
ent of discnminatonly discharging new employees
before they could complete probation6 and that
5 Unless otherwise indicated all dates refer to 1983
a The General Counsel alleged that the Respondent methodically ter
minated these employees to circumvent the vesting of rights under the
union shop provision of the collective bargaining agreement On comple
tion of the 45 -day period probationary or temporary employees
became regular employees and their seniority dated back to their initial
hire date As noted above we have affirmed the judge s finding that this
practice did not violate Sec 8(a)(3) of the Act
292 NLRB No 87
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
neither response to the October requests lists pro-
bationary employees Regarding the response to
the October 7 request, Maldonado testified that the
inclusion of an `effective date" and an "action
date" made the information submitted ambiguous,
and the General Counsel adduced evidence from
the Respondent's personnel files to show that nei
ther date reflects the actual initial hire date Fur-
ther, the record discloses that 28 employees were
hired between August 9, when the Respondent last
responded to an information request from the
Union, and October 13, and that the Respondent
included just 4 of these employees in its October 13
response Another six employees whose names do
not appear in submissions to the Union were hired
by the time of the Respondent's October 31 re-
sponse
The judge discredited Maldonado's testimony
that he had apprised the Respondent of the insuffi
ciency of these responses, and found that the Re-
spondent "lacked any intention of gaining advan
tage" and that it "substantially complied with the
dictates of Section 8(d) of the Act " He therefore
dismissed these allegations of the complaint
We find it significant, however, that the Re-
spondent was fully aware of the basis for the re-
quests as early as February 23, when the Union
first complained about the discharge of probation-
ary employees, reminded the Respondent of its ob-
ligation to notify the Union of new hires within 5
days of their hire, and requested a list of all em-
ployees 7 The Union reminded the Respondent of
its obligation regarding new hires again in requests
dated April 27 and August 4 Equally significant is
the fact that the August information request ex-
pressed yet another concern, i e , that the ratio of
part-time to full-time employees exceeded the
number permitted by the agreement 8 The rel-
evance of the requested information is not disputed
The inadequacy of the October responses is
plainly established by evidence that the names of as
many as 33 new hires were omitted and that the
initial hire dates submitted for the 4 new employees
that the Respondent did acknowledge are incor-
rect In view of the Union's repeated requests for
this information, and particularly in light of the Re-
spondent 's awareness of the reasons underlying the
requests, it is readily apparent that the insufficiency
of the responses was not inadvertent Under these
circumstances, we find that the Respondent failed
substantially to comply with the Union's October 7
7 The Respondent submitted a list of employees to the Union on
March 9 but no information about new hires was included
8 By terms of the collective bargaining agreement when the number of
part time employees exceeded one third of the number of full time em
ployees part time employees in excess of the ratio were automatically to
become full time employees
and 26 requests for information, and that these fail-
ures constitute a refusal to bargain in good faith in
violation of Section 8(a)(5) and (1) of the Act
Our finding that the Respondent unlawfully
failed to respond to the Union's October informa-
tion requests makes it necessary to consider wheth-
er that conduct-combined with the Respondent's
unlawful failure to furnish the 1982 payroll and to
answer grievances, as found by the judge-renders
the Respondent's June 1984 withdrawal of recogni-
tion from the Union unlawful We find it does not
The judge found that the Respondent lawfully
withdrew recognition based on its receipt of a peti-
tion, signed by a majority of employees, stating
that they no longer desired to be represented by
the Union 9 In so finding, the judge concluded that
the Respondent's refusal to furnish the 1982 payroll
and respond to grievances in March 1984 did not
tai it the petition because the refusals "had no
direct adverse impact upon wages or benefits and
their long term effects were imperceptible at the
time of the deauthorization activity " He deemed
the refusal to furnish the payrolls too remote in
nature and the evidence surrounding the refusal to
respond to grievances to be too vague to infer that
employee allegiances were influenced thereby We
agree with the judge's conclusion that this conduct
did not taint the petition
Similarly we find that there is no nexus between
the October 1983 8(a)(5) and (1) violations and the
withdrawal of recognition There is no evidence
that the employees were aware of the Respondent's
failure to comply with the October 1983 informa-
tion requests or that they became disaffected be-
cause of it Further, we note that although the Oc-
tober information requests pertained to newly hired
employees, the Respondent's treatment of these
employees in terminating many of them prior to
their completion of the probationary period has not
been found to be unlawful Even if the record es-
tablished that the employees' dissatisfaction with
the Union resulted from the discharge of proba
tionary employees (who were not in the unit), this
practice was permitted by the collective-bargaining
agreement and justified by business considerations
and therefore lawful, as the judge found Thus, the
Respondent's unlawful conduct with regard to the
October 1983 requests either singly or in combina-
tion with the other unlawful conduct found cannot
be said to have tainted the petition on which the
withdrawal recognition was based Inasmuch as
our limited reversal of the judge's findings does not
8 A second petition given to the Respondent at the same time stated
that employees desired to deauthonze dues checkoff
AIRPORT AVIATION SERVICES
require modification of the recommended Order,
we shall adopt it
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Airport
Aviation Services Incorporated, Isla Verde, Puerto
Rico, its officers, agents, successors, and assigns,
shall take the action set forth in the Order
Efrain Rivera Vega Esq, for the General Counsel
Rafael Cuevas Kuinlam Esq Rafael Medina Zerpa Esq,
and Angel Morales Esq, of Hato Rey, Puerto Rico, for
the Respondent
Juan L Maldonado International Representative, of Rio
Piedras Puerto Rico, for the Charging Party
Paul Schachter Esq (Reinhardt & Schachter), of Newark,
New Jersey, for the Intervenor
DECISION
STATEMENT OF THE CASE
JOEL A HARMATZ, Administrative Law Judge This
proceeding was heard by me on 21, 22, 23, and 25 Janu
ary 1985 in Hato Rey, Puerto Rico, on an original unfair
labor practice charge filed on 2 March 1984, and an
amended consolidated complaint issued on 7 December
1984, alleging that Respondent violated Section 8(a)(3)
and (1) of the Act by terminating employees prior to
completion of their probationary period in order to dis
courage membership in the Charging Party, and violated
Section 8(a)(5) and (1) of the Act by refusing to provide
information to the Charging Party relevant and neces
sary to performance of its function as exclusive bargain
ing representative by refusing to bargain about gnev
ances covered by pending unfair labor practice charges,
and by abrogating unilaterally the grievance arbitration
provisions established by a recently expired collective
bargaining agreement The complaint further alleged that
following expiration of that agreement, Respondent vio
lated Section 8(a)(5) and (1) by withdrawing recognition
from the Charging Party on 14 August 1984, and subse
quently by unilaterally abrogating or altering preexisting
terms and conditions of work In its duly filed answer
Respondent denied that any unfair labor practices were
committed Following close of the hearing, briefs were
filed on behalf of the General Counsel Respondent and
the Intervenor i
On the entire record in this proceeding together with
my opportunity directly to observe the witnesses while
testifying and their demeanor, and on full consideration
of the postheanng briefs it is found as follows
' By order of the Regional Director dated 19 June 1984 Union Inde
pendiente de Trabajadores de Aeropuertos the Petitioner in Case 24-
RC-6852 was granted intervention in this proceeding for only the limit
ed issue with respect to the remedy that may be ordered herein See
G C Exh 1(r) On 6 August 1984 the Board denied Intervenor s appeal
from said Order allowing renewal before the administrative law judge
At the hearing the scope of intervention was broadened by me to include
all issues affecting the propriety of an 8(a)(5) remedy here
I THE BUSINESS OF THE EMPLOYER
825
Respondent is a Puerto Rico corporation which pro
vides ground support services to airlines operating into
and out of the San Juan International Airport, including
the loading and unloading of baggage and cargo, the ex
terror and interior cleaning of aircraft, and related serv
ices In the course of the operations, Respondent derives
annual revenue valued in excess of $50,000 from persons
engaged directly in the channels of commerce through
the transport of passengers and cargo between Puerto
Rico and the U S mainland and foreign countries
The complaint alleges, the answer admits, and it is
found that Respondent is an employer engaged in corn
merce within the meaning of Section 2(6) and (7) of the
Act
II THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and it is
found that International Association of Machinist, and
Aerospace Workers, AFL-CIO, Local 2725 (IAM) is a
labor organization within the meaning of Section 2(5) of
the Act A like finding is made with respect to Union In
dependiente de Trabajadores de Aeropuertos (Interve
nor) 2
III THE ALLEGED UNFAIR LABOR PRACTICES
A Preliminary Statement
Underlying this multifaceted and factually complex
proceeding is a fundamental issue about whether statuto
ry remedies ought be invoked to preserve the representa
tive status of an incumbent labor organization, under
conditions where Board intervention might well prevent
employee choice on an otherwise valid representation
petition filed by a rival labor organization
Thus, IAM had been the collective bargaining repre
sentative of Respondent's blue collar work force at the
Isla Verde International Airport since at least 1970 Over
the years, the parties have negotiated a series of collec
tive bargaining agreements the most recent of which ex
pired on 11 April 1984 3 Prior to the expiration the in
tervening Union filed a timely representation petition on
16 January in Case 24-RC-6852 seeking representation
in the historic IAM unit Pursuant to a Decision and Di
rection of Election issued by the Regional Director on
15 February an election was scheduled for 29 March
with both IAM and Intervenor on the ballot In the
meantime on 2 March IAM filed the first of a series of
unfair labor practice charges alleging that Respondent
had engaged in a variety of unfair labor practices de
signed to undermine IAM s status as exclusive bargaining
representative Nonetheless, the election was conducted
on 29 March as scheduled However, no tally was ever
issued, as the ballots were not opened and counted, but
2 Notice is taken of the fact that the Intervenor was found to be a
labor organization in Case 24-RC-6852 and for purposes of this proceed
mg retains that status at least insofar as the issues turn on whether a
question concerning representation was effectively raised on its election
petition in that case See G C Exh 31
2 Unless otherwise indicated all dates refer to 1984
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
impounded pending resolution of the pending unfair
labor practice charges.
After the election and the expiration of the most
recent collective -bargaining agreement , on 14 August,
Respondent officially withdrew recognition from IAM as
the exclusive representative of employees in the historic
unit. At that time, the IAM was informed by mail that
based on evidence submitted to the Employer by a group
of unit employees, the Employer possessed "reasonable
doubts that IAM represents the majority of the employ-
ees in the bargaining unit ." The letter went on to state as
follows:
We are confident that once the cases pending before
the honorable National Labor Relations Board are
heard and the votes cast in the recent elections are
counted, said Board will announce which union will
have the legitimate representation of the employ-
ees.4
With the exception of 8(a)(3) allegations concerning
Respondent's treatment of probationary employees, the
allegations of unfair labor practices in this proceeding
occurred during three distinct timeframes, namely, (1)
those placed prior to the election; (2) those allegedly oc-
curring between the election and the withdrawal of rec-
ognition; and finally (3) those following the Respondent's
termination of the historic bargaining relationship with
IAM. Although Case 24-RC-6852 is not consolidated
here, any unlawful conduct occurring prior to the elec-
tion quite possibly could influence the validity of the
election conducted,5 and any unfair labor practice find-
ings involving conduct prior to 14 August will reflect,
perhaps decisively, on the lawfulness of the withdrawal
of recognition on that date.6 All allegations occurring
after 14 August involve challenges to the Respondent's
refusal, on various grounds, to bargain with IAM in
good faith, matters that will warrant dismissal if the bar-
gaining relationship previously had been terminated on
legitimate grounds.'
4 See G .C. Exh . 23(a).
5 The issuance of an affirmative bargaining order as sought by the
General Counsel would becloud Case 24-RC -6852 . There is a strong
suggestion in Board policy that no question concerning representation
can exist until compliance with such an 8(a)(5) order is completed. See,
e.g., Mercy Memorial Hospital Corp., 221 NLRB 1 , 2 (1975).
See, e .g., Anvil Products , 205 NLRB 709 (1973).
7 There is no merit in the Intervenor 's contention that the complaint
should be deferred to contractual dispute settlement procedures in ac-
cordance with United Technologies Corp., 268 NLRB 557 ( 1984). Here,
there is no viable request for arbitration by any party to the contract.
The Intervenor is in no position to provide assurance that affirmative
means of adjustment are available . To even suggest that the Intervenor
has standing to raise this issue is to risk forfeiture of IAM access to any
forum, a result not contemplated by either Collyer Insulated Wire, 192
NLRB 837 (1971), or its progeny . See United Aircraft Corp., 204 NLRB
879 (1973); National Radio Co., 198 NLRB 527 (1972), to the effect that
the deferral policy rests on "the reasonableness of the assumption that the
arbitration procedure will resolve the dispute in a manner consistent with
the standards of Spielberg." See also Teamsters Local 287 (Reed &
Graham), 272 NLRB 348, JD fn. 1 (1984). In any event in this case,
issues arising during the term of the contract are linked inextricably with
matters, which according to Respondent 's own position, occurred after
expiration of the contract and hence would not be appropriate for defer-
ral. S.O.L. Roofing, 271 NLRB I fn. 3 (1983).
B. Concluding Findings
1. The alleged discrimination
The most far -reaching of the allegations of illegality in
this proceeding arises from the General Counsel 's claim
that since 2 September 1983 , the 10(b) cutoff date, Re-
spondent violated Section 8(a)(3) and (1) of the Act by
its practice of terminating newly hired employees on a
wholesale basis . In this connection , it is noted that suc-
cessive collective -bargaining agreements between the Re-
spondent and IAM included probationary provisions
controlling the conditions of work of new hires . That in
the most recent contract , provided in article XVIII, sec.
3, p. 28 as follows:
Except as otherwise provided in this Agreement,
new employees hired after the effective date of this
Agreement, shall be regarded as temporary employ-
ees for the first forty five (45) days of their employ-
ment and there shall be no responsibility on the part
of "THE COMPANY" for the reemployment of
temporary employees if they are discharged or laid
off during this period . If retained in the service after
the probationary period , the names of such employ-
ees shall then be placed on the seniority list for
their respective classifications in order of the date
of their original hiring at point employed. "THE
COMPANY" will furnish the Local Committee
with the name , classification , department and rate of
pay of all new employees within 5 days after em-
ployed.
In his opening statement at the hearing , the General
Counsel conceded that "it is Respondent 's policy or
practice to routinely discharge unit employees prior to
the completion of their 45 days' probationary period and
replace them by other employees in equal number."
a Recent experience of new employees under this practice is demon-
strated by summaries of Respondent 's personnel records covering the 2-
year period 1 January 1983 through 31 December 1984. See G.C. Exhs.
42(a) and (b). This data confirms terminations of newly hired employees
in high volume during the 45-day period. But the documentary proof
fails to support that all newly hired were terminated . As far as can be
ascertained from the evidence , Respondent retained employees beyond
the 45-day period on a regular basis, and in every month except February
and July 1983 and February 1984. In calendar 1983, 27 employees were
retained on Respondents payroll for a period in excess of 45 days and in
1984 some 30 more were allowed to complete their probationary period.
The documentation is completely consistent with Respondent' s explana-
tion that the temporary or probationary employees were retained only on
consideration of two factors: ( 1) the work competence of the individual
probationer ; and (2) the availability of a permanent position . This latter
criterion , however, was complicated by the fact that permanent vacancies
were created as a function of permanent manpower demands but not as a
means of meeting irregular , nonrecurrent seasonal fluctuations . In other
words, Respondent exercised its option of retaining probationary employ-
ees, but then terminating them unless demand for their labor could be jus-
tified on a permanent basis.
In this connection it is noted that after close of the hearing, counsel for
the General Counsel moved to correct Exhs . 49(a) and (b) refered to
above. Though the representations supporting that request are presum-
ably accurate, the proposed changes are insignificant and in no sense
could influence the result reached . The motion is denied as failing to
warrant further administrative action delaying ultimate resolution of the
issues presented.
AIRPORT AVIATION SERVICES
The General Counsel contends that the Employers prac
tice was designed to preclude eligibility for contract ben
efits9 and to avoid application of the contractual union
shop provision to the new hires 10
Although there is little room for argument that these
represent the `effects" of Respondent's practice, the
General Counsel does not assert that the terminations in
volved a departure from contractual prerogatives, nor
does he claim that treatment of the newly hired was ac
companied by specific evidence of antiunion motiva
tion 11 Indeed, any other view would be difficult to
maintain on the instant record For, probationary em
ployees, were hired, fired, rehired, and retained without
interest in, or knowledge of union sentiment Further
more, it does not appear that Respondent's practice in
this regard was initiated or modified under conditions
giving rise to the slightest suspicion that it was systemati
cally designed to aid organization by a rival organization
or to weaken the IAM's representative base
Sidestepping the issue of motive, the General Counsel
zeros in on the avoidance by Respondent of contractual
membership obligations to IAM as well as mitigation of
its obligations in the area of work rules and liability for
wages and fringe benefits It is argued that the result
produced by the Employers action is inherently so
prejudicial to union interests and so devoid of significant
justification that no specific evidence of intent to dis
courage union membership or other union animus is re
quired' American Shipbuilding v NLRB, 380 US 300,
311-312 (1965), see also NLRB v Great Dane Trailers,
388 U S 26 (1967), and NLRB v Ene Resistor, 373 U S
221, 227 (1963)
Unquestionably, the frequent discharge of new hires
enabled Respondent to meet its work deriards while
avoiding the higher labor costs and loss of flexibility that
would be sustained were it to add permanent positions
9 The parties stipulated that during the probationary period new hires
are not eligible for participation in fringe benefit programs It is also clear
that the Respondent retains greater flexibility n imtiatmg and revising
work assignments of probationary employees because they acquire no
rights under contractual bidding procedures
to In this latter regarding the relevant collective bargaining agreement
see Jt Eiji i art VII p 11 which provides in material part as follows
It shall be a condition of employment that all employees coy
ered by this Agreement hired on or after its execution date shall or
the forty fifth (45) day following the beginning of such employment
become and remain members in good standing in the UNION
Santiago Qumonez Torres a witness for the General Counsel test[
fled that Respondent s former personnel director Julio Purcell in Febru
ary 1984 informed him that he knew Respondents practice was against
the law In a like vein IAM International Representative Juan Maldon
ado testified that in a conversation during the same month with Respond
ent s attorney Rafael Cuevas the latter agreed that his client was violat
ing the law in this respect Cuevas who was counsel of record for the
Respondent in this proceeding did not testify Purcell terminated his em
ployment with the Company n June 1984 and also was not made avail
able Nonetheless the General Counsels testimony in this respect was
not believed Maldonado was not regarded as a reliable witness He im
pressed me as strongly argumentative and prone to pass on his own inter
pretation of ambiguous events as fact The statements he imputed to
Cuevas in the circumstances impressed me as entirely unlikely With re
spect to the averments involving Purcell documented evidence refutes
any basis for concluding the Respondent had an absolute policy of terms
nating probationary employees Moreover it strikes as unlikely that the
personnel director would have confessed illegality to Torres who at the
time was an IAM official The testimony of Torres and Maldonado is re
jected
827
As a corollary IAM membership was adversely affected
However, far from any hostile device of discrimination,
the practice in question entailed no more than a rightful
exercise of contractually conferred prerogatives and
sound business judgment Respondent simply utilized its
contractual discretion by retaining the few probationers
necessary to meet its regular, recurrent, and permanent
work demands It was cheaper and more efficient to op
erate in this fashion under a collective bargaining agree
ment that placed no limitation on the quantity of new
hires to be retained 12 Thus, not only was the practice
consistent with Respondent 's legitimate economic inter
ests, it was also inoffensive to any bargain struck with
the JAM See, e g , Dorsey Laboratory, 239 NLRB 857,
861 (1978)
Nor are these legitimate interests offset by any readily
identified federally guaranteed right which had been im
periled by the action taken agamst probationary employ
ees Probationary provisions are neither illegal, nonman
datory, nor do they operate on their face to impede any
right of employees protected by Section 7 of the Act
Moreover, the limited retention rights they confer on
probationary employees is a phenomenon not unfamiliar
to the industrial scene Wide latitude is universally con
ferred on employers in their handling of new hires under
collective bargaining agreements One salient, if not the
primary objective of such an arrangement, is to establish
an economic scenario, within which an employer might
evaluate new hires against its need for permanent em
ployees while avoiding the cost and constraints other
wise applicable under the subsisting collective bargaining
agreement It is difficult to imagine that mere implemen
tation of such a traditional arrangement would be consid
ered by the authorities as falling within the category of
inherently discriminatory devices contemplated by Amer-
ican Shipbuilding v NLRB, supra, and related cases
If there is no statutory right offended by the Employ
er s practice, there obviously can be no destruction of
important employee rights The absence of this indis
pensable element distinguishes this case from Freezer
Queen Foods, 249 NLRB 330 (1980) a case in which the
General Counsel appears to place heavy reliance That
case involved application of Great Dane, supra to proba
tionary employees as a class However, all had engaged
in a protected economic strike and the issue before the
Board was validity of the employers action in reinstating
the probationary employees under conditions penalizing
them for their participation in such activity clearly pro
tected by Section 7 of the Act Thus that which was
deemed inherently discriminatory in Freezer Queen Foods
was the reprisal agamst employees who as a class en
gaged in activity protected by Section 7 of the Act
Here, however, the General Counsel would extend the
protective mantle of the Act to probationary employees,
based solely on their status as such rather than their par
ticipation in any activity protected by the Act The
result sought by the General Counsel in this case is not
12 Compare however art XLI sec I of the collective bargaining
agreement that does impose a limitation on the Employers right to use
part time employees
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
justified either by Freezer Queen, supra, or any other line
of authority brought to my attention
Equally untenable are the General Counsels additional
arguments to the effect that denial to new hires of the
fruits of the collective bargaining agreement negotiated
by the union itself was a discriminatory act and unlaw
ful First is the suggestion that the discouraging effect on
membership in IAM of this practice was evidenced by
the fact that the Intervenor was able to muster the neces
sary showing of interest to support processing of its peti
tion in Case 24-RC-6852 This is pure speculation De
fections from IAM might have been translated into sup
port of the rival labor organization in consequence of a
spectrum of diverse considerations, and no rational
ground exists for attributing this loss to Respondent s
method of evaluating new hires Along the same line, the
General Counsel argues that the practice discouraged
membership in the IAM in that it exposed the IAM s in
ability to protect probationary employees and to prevent
assignment of unit work to nonunion employees In this
instance, the General Counsels argument proves too
much The same could be said of implementation of any
subcontracting clause legitimately negotiated which
causes a loss of unit work and possible constriction of
the represented unit The fallacy in the General Court
sel's argument is also evident from the fact that each
time a probationary employee is terminated the contract
mg union is denied the fruits of the union shop provi
sions about that individual, while the employer saves the
cost of fringes and avoids the loss of flexibility that
would have been experienced had the individual been re
tained beyond the contractual period Contrary to the
General Counsel, if the employers vice be its having ex
ercised contractual discretion too often the solution to
the problem lies within the process of free collective bar
gaining rather than a strained extension of statutory con
cepts allowing findings of discrimination where actual
proof of motive is wanting
In sum the claim of inherent discrimination does not
in this case involve employer action addressed to a
group that had engaged in protected activity In addi
tion, the effect of the Employers practice fails to
damage IAM to an extent sufficiently extreme as to dis
suade employees from supporting it generally Accord
ingly the practice does not carry its own mdicia of
wrongful intent Being too remote from any form of pro
tected activity to be inherently fragmentary of important
employee rights the Employers action here fell outside
the proscriptive scope of Section 8(a)(3) and (1) of the
Act and there being no specific evidence of antiunion
motivation that allegation shall be dismissed
2 Other conduct preceding the election in
Case 24-RC-6852
a The requests for information
The complaint includes allegations that Respondent
violated Section 8(a)(5) and (1) of the Act by breaching
its duty to furnish information, pursuant to a series of
IAM requests, beginning in the fall of 1983 which are
outlined as follows
(i) On 7 October 1983 and 21 March 1984 IAM
requested Respondent to furnish the names dates of
hire rates of pay, and job classifications of all newly
hired employees
(ii) Since 26 October 1983 IAM requested Re
spondent to furnish the Union with the names dates
of hire rates of pay and job classifications of all em
ployees
(iii) Since 2 September 1983, IAM requested Re
spondent to furnish all payrolls for the preceding
year (1982)
(iv) Finally, the complaint alleges with respect to
all the foregoing that since 7 October 1983 and
thereafter, Respondent refused to provide said infor
mation in complete and sufficient form
The evidence in this respect shows that by letter dated
23 February 1983 the IAM appears for the first time to
have protested the Company s practice of discharging
new hires before completion of their 45 day probationary
period At that time, and on various occasions thereafter,
the Union requested certain information pertaining to the
treatment of new hires, including payroll records 13
By letter dated 9 March 1983, Respondent answered
the 23 February 1983 request attaching a list of all hired
employees working for the Company at the time while
identifying the area in which each employee was work
ing as well as his rate of pay 14 Although the 1982 pay
rolls were not submitted, this went unmentioned in later
correspondence and by 4 August 1983 IAM s objection
to company responses appears to have narrowed to the
following
Your Company has not been advising the Union of
the new [sic] hired employees within five days after
the hiring may I use this opportunity to request
such information 15
Along this same line, by letter dated 7 October 1983
the IAM again wrote Respondent as follows
This is to bring once more to the attention of the
company that the Union is entitled to be notified of
the hiring of new employees within five (5) days of
its hiring please see Section 3 of Article XVIII
I have been receiving the names of some employees
but at no time it shows the hiring date and rate of
pay in addition to their classification I trust you
will be able to resolve the above reference matter
so the Union will receive the proper information 16
In response, by letter dated 13 October 1983 the Em
ployer provided the names of four new hires explaining
that it was instituting the use of a new personnel action
13 See G C Exhs 2 and 3
14 This response was excluded by the General Counsel from a series of
correspondence pertaining to the information requests See R Exh 2
's See GC Exh 4
"SeeSee G C Exh 6
AIRPORT AVIATION SERVICES 829
form that would serve to provide notice of any adminis
trative action taken regarding employees 17
In its initial challenge to the propriety of the Respond
ent s submissions , the General Counsel alleges that the
information provided on 13 October was incomplete and
not sufficient in form to constitute a return pursuant to
the Unions request of 7 October 1983 The cited defi
ciencies were the failure to disclose (1) the date of initial
hire, and (2) the rate of pay the new hires as of that date
Thus, each of the personnel action forms actually for
warded to the IAM on 13 October 1983, included two
distinct dates one described as effective date and the
other referencing "Notice of Personnel Action ' IAM
representative Maldonado, who testified that the Em
ployer s response was incomplete because it failed specif
ically to indicate the date of hire, denied that he inter
preted the effective date entry as signifying date of
hire 18 When questioned about whether he had sought
clarification from Respondent about why the personnel
form had two different dates and what they meant, Mal
donado afforded unbelievable testimony First he related
that he had written a series of letters to the Employer
telling them that this information was incorrect and re
questing the correct information 19 and then stating that
he could not recall having otherwise communicated his
difficulty in understanding these documents It is con
cluded that neither Maldonado nor any other agent of
Respondent took steps to clarify any such discrepancies
This despite the fact that Respondent pointed out specifi
cally in its 13 October letter that the personnel action
forms were part of a new system
On analysis, it would appear that caution is necessary
in this area of the law to avoid unwarranted intrusion in
the bargaining process through breakdowns in the corn
municative process which could have been avoided by
ordinary prudence on behalf of the party seeking a dis
closure of information Misunderstanding and even error
are to be expected in the process of exchanging informa
tion Reconciliation of information within the framework
of the give and take process will have a far more salu
tary effect than the invocation of Board remedies The
former is the practice to be encouraged not the latter
Here by the exercise of ordinary diligence the Union
could have afforded the Employer an opportunity to
correct or clarify its return without need for intervention
of the Board Having failed to do so in the circum
stances, the Employer rightfully could assume that its
return complied with the request Accordingly, it is con
cluded that the evidence fails to demonstrate that Re
spondent s submission of 13 October 1983 did not consti
tute substantial compliance with the obligations imposed
14 See G C Exh 7 This document includes a reference to a letter
which was forwarded by Respondent earlier on 9 August 1983 containing
the names of new hires The latter was not submitted in evidence
18 Counsel for the General Counsel supplements Maldonado s testimo
ny by arguing that the rate of pay shown on these documents does not
clearly relate to that in effect on the date of hire
19 No such documents were introduced in evidence and as shall be
seen no reference to any confusion generated by the personnel forms
was included in the Union s subsequent written correspondence request
ing information Indeed shortly thereafter on 26 October 1983 Maldon
ado wrote Respondent requesting other information but raised no dissat
isfaction with the data supplied on 13 October 1983 See G C Exh 8
by the duty to bargain in good faith, and the allegation
that Respondent violated Section 8(a)(5) and (1) in this
respect shall be dismissed
A further alleged noncompliance stems from IAM s
letter dated 26 October 1983, in which Maldonado
wrote the Company as follows
Since August 9, 1983 you wrote the undersigned
that in a few days you were going to submit an up
to date list of all employees working for the compa
ny The list has not been received as of today May
I use this opportunity to request the following infor
mation also
A Name of all employees, address, hiring date
rate of pay and classification of work
Your prompt respond [sic] will be appreciated
since we have to use some of the information to de
termine the 1984 Union dues
Respondent reacted promptly On 31 October 1983 it
forwarded to IAM a detailed employee listing The fol
lowing was incorporated on the cover letter
In reference to your request of October 26, 1983,
I am pleased to enclose a list of all hired employees
(Regular/Part time) working at present for the
Company The list is in alphabetical order and it
identifies the hiring date, salary and other informa
tion relative to the employee
We sincerely regret the delay in submitting this
information, as this was mainly caused by our inter
est of furnishing the right input to the new comput
erized system which was recently put into oper
ation
Here again the information provided was considered
incomplete by the General Counsel who relies on Mal
donado s testimony set forth below
It is incomplete because my request was of all
employees working in the contracting unit The
letter from the Employer of 31 October 1983 re
stricts this information to those he considers regular
employees and regular part timers, thus implying
that they are those that have approved probationary
period of 45 days and it also implies that he left out
all the new employees, and there were many
Once more there is no evidence that IAM on a timely
basis notified Respondent that the submitted listings were
in any fashion incomplete Moreover, if the information
in complete form was important to the IAM a question
arises as to its own neglect For despite the urgency ex
pressed in its letter of 26 October, it does not appear that
IAM formally protested omissions from the Employer s
submission of 31 October until the filing of the first
unfair labor practice charge on 2 March 1984 Moreover,
considering past submission pertaining to probationary
employees and their identity, I am convinced that Re
spondent lacked any intention of gaining advantage
through a less than complete response and that any omis
sions were purely inadvertent and de minimis Once
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
more, it is concluded that Respondent substantially com-
plied with the dictates of Section 8(d) of the Act, and
the allegation that it violated 8(a)(3) and (1) of the Act in
this respect shall be dismissed.
Allegations of the complaint were also addressed to
IAM's request for 1982 payrolls. Apparently, this allega-
tion finds its origin in IAM's letter dated February 23,
1983, addressed to the Company, which requested the
latter to "produce to the Union the payroll of the Com-
pany in the last year preceding the receipt of this
letter,"20 'together with a further request incorporated in
IAM's letter of 27 April 1983 for this very informa-
tiion.21 On cross-examination , Maldonado admitted that
by letter dated 9 March 1983, the Company responded,
providing information concerning where employees were
working and their rates of pay with the explanation that
the Company's accounting department had been instruct-
ed to begin compiling the balance, which was to be pro-
vided "within a reasonable time ." Beyond that , allega-
tions pertaining to the failure to provide the payrolls
pursuant to requests as early as February and April 1983,
being some 6 months in advance of the 10(b) cutoff date,
were clearly time-barred within the intendment of the
Act.
Nonetheless, shortly before the election, some II
months after IAMs most recent request for the payrolls,
Maldonado on 21 March 1984, wrote Respondent stating
as follows: "I am still waiting for the payroll, requested
in my letters in 1983; I am once more requesting that it
be furnished me."22
By way of analysis, it is noted that the complaint in
this respect alleged that, since 2 September 1983, the
IAM requested the 1982 payrolls and that Respondent
violated Section 8(a)(5) and (1) of the Act since 7 Octo-
ber 1983 by failing to provide the information "in com-
plete and sufficient form." In fact, it does not appear that
these documents were ever provided. And at no time did
IAM make any effort to update its request by seeking
more recent payrolls. Yet these more recent documents
presumably would throw greater light on important
issues affecting validity of the Intervenor's 1984 rival
claim for representation. On the other hand, since the
payrolls were relevant, and not furnished in response to
IAM's request of 21 March 1984, Respondent in this re-
spect is deemed to have violated Section 8(a)(5) and (1)
of the Act.
b. The refusal to discuss grievances covered by the
pending unfair labor practice charges
A further allegation falling within the preelection
period relates to the claim that "Respondent failed and
refused to bargain collectively with the Union concern-
ing grievances over matters which were the subject of
charges pending before the Board." In this connection,
by letter dated 20 March 1984 the Union forwarded an
"agenda" to Respondent outlining issues for consider-
ation at an upcoming grievance meeting. The agenda in-
cluded, inter alia, challenges to Respondent's action in
20 See G .C. Exh. 2.
21 See G .C. Exh. 3.
22 See G .C. Exh. 13(a).
terminating certain newly hired employees within the 45-
day period.23
The meeting was held as scheduled on 27 March 1984.
Although the meeting continued throughout the entire
business day until approximately 5:30 p.m., according to
Santiago Quinonez-Torres, Angel Colon, and Maldon-
ado, all witnesses for the General Counsel, Bauzo .refused
to discuss, deal with, or provide an answer to those
grievances that were based on allegations pending before
the National Labor Relations Board.24 All other griev-
ances on the agenda proposed by the Union were dis-
cussed.
As a general rule "the pendency of unfair labor prac-
tice charges against an employer does not relieve :it of its
duty to bargain with the union filing those charges and
. . . a refusal to bargain because of pending charges con-
stitutes bad-faith bargaining on its part." Zenith Radio
Corp., 187 NLRB 785 (1971); Pine Manor Nursing Home,
230 NLRB 320, 326 (1977). The precedent, however, in-
volved blanket, outright, across-the-board refusals to
meet . Here, the Employer continued to recognize and
bargain with the IAM and treated with a formidable list
of grievances raising issues that were not before the
Board. Its limited refusal in no way threatened the viabil-
ity of the basic bargaining relationship. Nor did it ob-
struct the overall functioning of the process of grievance
resolution. In the circumstances, Bauzo's position was ex-
pressed in exceptional circumstances and is deemed a
privileged acquiescence to the IAMs own preference
that certain grievances be resolved outside the frame-
work of contractual remedies, in order that others may
be fully and expeditiously addressed within that process.
Accordingly, the 8(a)(5) and (1) allegation in this respect
shall be dismissed.
c. Abrogation of the grievance procedure
On 16 January 1984, the Intervenor filed its petition in
Case 24-RC-6852 . Thereafter , following a hiatus of sev-
eral months in its correspondence , the IAM , by letter of
10 February 1984, informed Respondent as follows:
"Due to the fact that at this time there is a petition for
election where our representative status is questioned,
there can be no bargaining."25
As indicated before, the Company met with the Union
on 27 March at a second -step session to discuss a number
of grievances . This was followed by the election con-
ducted on 29 March 1984. The contract expired on 11
23 See G.C. Exh. 12.
24 Bauzo testified that it was his understanding that those items that
were subject to resolution in the Board proceeding would necessarily
pertain to matters in which the parties had exhausted all reasonable
means for resolution. Bauzo claims that those matters were dropped on
his suggestion that the higher authorities should resolve them. According
to Bauzo, Maldonado agreed with this proposal and on that basis, these
matters were no longer discussed . In this connection , although there may
have been an innocent misunderstanding, I am inclined to give the benefit
of the doubt to the General Counsel's witnesses.
25 See R. Exh. 3. IAM was mistaken in this respect. Under the law in
effect at the time, despite pendency of the election petition, Respondent
remained obligated to continue to bargain in good faith with the incum-
bent representative. See RCA Del Caribe, 262 NLRB 963 (1982). Cf.
Crown Cork de Puerto Rico, Inc., 273 NLRB 243, 244 fn. 6 (1984).
AIRPORT AVIATION SERVICES
April 1984 Thereafter, on 2 May 1984, IAM wrote Re
spondent as follows
You have not answered grievances discussed on
March 27, 1984, identified in my March 20, 1984
letter This action constitutes an additional violation
of the agreement, Article XXIII, as well as a viola
tion of the Labor Management Act, Section 8(a)(5)
I am once more soliciting an answer in each indi
vidual case inasmuch as in some cases, such as the
ones involving Juan C Lopez and Jose M Cande
lano, you expressed the possibility of a solution
Regarding the negative ones, the reason given by
you for your rejection will indubitably [sic] help
identify the differences between the parties The
records must also reflect that, as concerns the cases
before the National Board, you have stated that
they would not be discussed because they are now
before the forum
Your prompt attention to this matter is expected
but if no reply is received within five days, I must
assume that it is not your intention to give us a
reply and we will proceed to take appropriate
action to see to it that you fulfill your responsibility
towards this organization 26
By virtue of the subsisting collective bargaining agree
ment, management is required to respond to second step
grievances in writing within 5 working days 27 It does
not appear that Respondent ever complied with this re
quirement The only followup action taken by Respond
ent with respect to the IAM s letter of 2 May, was the
following expression of position appearing in its letter
dated 23 May, which informed IAM as follows
We feel, and understand that this is the way you
also feel as expressed in your February 10, 1984
letter, that since there is, at the present time a lull
in the counting of the ballots cast in the past elec
tion, where the representative status of the IAM is
questioned, and based on the recent NLRB decision
in the case of Gourmet Foods Inc, our company
cannot, at this moment answer the current gnev
ances since this would entail implicit negotiation
and, at the present time, we are hindered from en
gaging in such activity worse still unfair labor
practice charges could be filed against us at the Na
tional Labor Relations Board by UITA (Interve
nor), who alleges that our agreement expired on
April 11 1984 because there is no extension of same
signed by the IAM and the Company and who
attack at the same time, the majority position
wielded by the IAM and claim they have such a
majority [sic]
I hope you will understand our position and wait
patiently for the certification of the past election
and for a clarification of your representative
status 28 Thus, Respondent, like IAM was mistaken
26See GC Exh 15
21 See Jt Exh I art XXIII sec 2(b) p 37
28 See G C Exh 16(a)
831
in its view of the impact of the question concerning
representation upon its duty to bargain in good
faith 29
Although the wording of the above letter would
appear to raise broader issues than litigated in this pro
ceeding, and the entire matter is frought with ambiguity,
the broad declarations in Respondents letter of 23 May
were apparently addressed to all outstanding issues, in
cluding IAM's request that it provide written statements
of its position regarding grievances that arose while the
contract remained viable As it does not appear that Re
spondent ever met its obligation under the contract in
this respect, its action constituted a unilateral modifica
tion violative of Section 8(d) and 8(a)(5) and (1) of the
Act American Sink Top & Cabinet Co, 242 NLRB 408
(1979), Digmor Equipment & Engineering Co, 261 NLRB
1175 (1982)
3 Postelection refusals to provide information and
the withdrawal of recognition
It will be recalled that the election was conducted on
29 March 1984 Less than 2 weeks later, on 11 April, the
most recent collective bargaining agreement between the
IAM and Respondent expired
Respondent's president, Will Santana, testified that
around the first week of June 1984 an employee ap
proached him delivering a set of documents, including a
cover letter, dated 25 May 1984, which stated as follows
Submitted herewith are signatures where employees
of Airport Aviation Services, Inc [and] mem
bers of the contracting unit covered by the collec
tive bargaining agreement between International
Association of Machinists and Aerospace Workers
Local 2725 and the AAS do not authorize said
Union (I A M) to negotiate a collective bargaining
agreement in relation to terms and conditions of our
employment or to represent us in any way [sic]
Appended was a listing of signatures purporting to be
those of some 150 members of the collective bargaining
unit 30 According to the uncontradicted testimony of
Santana , he directed that the document be forwarded to
the accounting department for verification of social secu
my numbers as well as comparison of signatures against
samples held within the payroll department Following
this process Santana concluded that the signatures were
true and accurate and were representative of a majority
of the bargaining unit employees
In the meantime , by letter dated 6 June 1984 notwith
standing his prior letter of 10 February, Maldonado on
behalf of IAM, wrote Respondent requesting an opening
29 The reference to Gourmet Foods 270 NLRB 578 ( 1984) appears
misplaced That decision relates to the efficacy of minority bargaining
orders under NLRB v Gissel Packing Co 395 U S 575 ( 1969) an issue
that in no way relates to the Employer s bargaining obligation in the face
of a genuine claim for representation on behalf of a rival labor orgamza
Lion See RCA Del Canbe supra
so See G C Exh 7 This document was submitted in tandem with an
other whereby employees sought to deauthonze checkoff to IAM See
R Exh 8
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of contract renewal negotiations, while (1) requesting in
formation concerning the name, date of hire address
classification and wage scales of all workers hired since
submission of the Excelsior list in Case 24-RC-6852, (2)
requesting the names of all persons discharged after 28
April 1984, and (3) the cost of the existing medical
plan-individual and family Finally the letter went on
to request the work schedule of all workers in the bar
gaining unit as well as an explanation of why 2 work
days had been given to regular part timers in the first
week of June 1984 when Respondent had previously re
jected such a request 311
By letter of the same day, Respondent informed IAM
that the request had been forwarded to its attorney for
evaluation and advice 32
Finally by letter dated 14 August 1984, Respondent
wrote Maldonado as follows
Taking in consideration the evidence submitted to
this office by a group of employees we have
reasonable doubts that IAM represents the majority
of the employees in the bargaining unit This doubt
is based on documents signed by employees in
which they deauthorized the dues check off on
behalf of IAM and on the other hand do not au
thonze any negotiation between AAS and the
Union you represent For this reason we are unable
to deal in the matters mentioned by you at this time
We are confident that once the case is pending
before the National Labor Relations Board are
heard and the votes cast in the recent elections are
counted, said Board will announce which Union
will have the legitimate representation of the em
ployees [sic]33
The complaint alleges that Respondent violated Sec
tion 8(a)(5) and (1) of the Act not only by its failure to
provide the information requested in IAM s letter of 6
June, but also by the withdrawal of recognition on 14
August 1984 The basic ground rules for reconciling the
employers options when confronted with evidence of
employee defections were outlined in Terrell Machine
Co, 173 NLRB 1480 1480-1481 (1969) as follows
It is well settled that a certified union, upon expira
tion of the first year following its certification [or
voluntary recognition], enjoys a rebuttable pre
sumption that its majority representative status con
tinues This presumption is designed to promote sta
bility in collective bargaining relationships without
impairing the free choice of employees According
ly once the presumption is shown to be operative a
prima facie case is established that an employer is
obligated to bargain and that its refusal to do so
would be unlawful The prima facie case may be re
butted if the employer affirmatively establishes
either (1) that at the time of the refusal the union in
fact no longer enjoyed majority representative
status or (2) that the employers refusal was predi
31 See G C Exh 19(a)
3 z See R Exh 20(a)
33 See G C Exh 23(a)
cated on a good faith and reasonably grounded
doubt of the union s continued majority status
In the instant case, at the time of the withdrawal, the
contract had expired and hence the presumption that the
IAM, as the incumbent representative, continued to rep
resent a majority was subject to rebuttal on a showing of
objective considerations affording a reasonable basis for
doubt that it continued to represent a majority See, e g,
United States Gypsum Mfg Co, 151 NLRB 1482 (1965)
Moreover in this case, the General Counsel does not dis
pute the transmittal to the Employer at a time reasonably
contemporaneous with the Union s request for informa
tion on June 6
Instead, the General Counsel relies on equally well es
tablished authority which precludes assertion of doubt of
majority in the context of unremedied unfair labor prac
tices, a limitation designed to preserve the bargaining re
lationship where serious violations of the Act tend to
produce disaffections from a union,' Anvil Products, 205
NLRB 709 fn 1 (1973) This does not mean that every
unfair labor practice will override that which in the
total circumstances, seemingly appears as the clear, un
coerced choice of bargianing unit personnel Thus
absent a rational basis for concluding that unlawful con
duct tends to bear a causal link with mass defections
from a union, Board remedies will not be invoked to per
petuate an unwanted bargaining relationship 34 Here
only two violations predated the emerging doubt of ma
jority Both were free from animus and constituted tech
nical noncompliances with Respondents duty to bargain
in good faith Neither had a direct adverse impact on
wages or benefits and their long term effects were imper
ceptible at the time of the deauthorization activity The
first violation involving Respondents failure to furnish
1982 payrolls was in a context marked by Respondent s
repeated submissions of payroll data in other forms in re
sponse to IAM requests Moreover the 1982 payroll re
flected on conditions existing more than a year before
the Intervenor filed its election petition and would clear
ly be less illuminating than payrolls actually obtained by
the General Counsel in response to subpoenas served on
Respondent in this proceeding A more serious violation
was evident from Respondents failure to furnish re
sponses to the 27 March grievances as requesed by the
Union s letter of 2 May However evidence surrounding
this breach is vague and its impact on the relationship
too conjectural to warrant an inference that employee al
legiances were influenced thereby to any significant
extent Accordingly, it is concluded that these technical
violations of Section 8(a)(5) of the Act neither in and of
themselves, nor by virtue of their effect on important
IAM interests influenced or in any way tainted directly
or indirectly, employee repudiation of that union Hence
prior illegalities did not in any way preclude the lawful
ness of subsequent action taken by Respondent in light of
evidence that IAM had suffered a loss of majority See,
e g Deblm Mfg Corp, supra, Chet Monez Ford, 241
NLRB 349 (1979) enfd sub nom NLRB v Chet Monez
' Deblin Mfg Corp 208 NLRB 392 401 (1974)
AIRPORT AVIATION SERVICES
Ford, 624 F 2d 193 (9th Cir 1980) Accordingly, it is
found that Respondent did not violate Section 8(a)(5)
and (1) of the Act by withdrawing recognition from
IAM on 14 August 1984 35
In light of this conclusion, an identical result is war
ranted regarding the allegations that Respondent violated
Section 8(a)(5) and (1) of the Act by various changes in
conditions of work on and after 14 August 1984, includ
ing Respondent's unilateral changes in shift bidding pro
cedures, disavowal of contractual disciplinary proce
dures, elimination of the coordinator classification, re
fusal to contribute to the Christmas party, and refusal to
select an arbitrator at IAM's request
4 The alleged threat of reprisal
The complaint alleged that Respondent violated Sec
tion 8(a)(1) of the Act through President Tony Santana s
alleged threat of unspecified reprisals in an incident oc
curnng several months after the withdrawal of recogni
tion In this connection, Santiago Quinonez Gamboa, an
incumbent employee at the time of the hearing, testified
that he attended an arbitration proceeding on 17 and 18
October 1984 He claimed that the next day, 19 October,
in the presence of coworkers Angel Colon, Raul Garcia,
and Jaime Cosme, Santana questioned Gamboa about
why he had testified at the two arbitration proceedings
indicating that his having done so caused Santana harm
Quinonez informed Santana that he participated in the
arbitration because he had been summoned by the Union
Santana allegedly argued that Quinonez did not have to
go, stating further that Gamboa was looking for prob
lems, in that respect 36 Of the three other employees that
Quinonez named as present during this incident, Angelo
Colon, was the only one called by the General Counsel
Colon who also participated in the arbitration proceed
ing, but was not approached by Santana, did not com
pletely corroborate critical aspects of Gamboa's account
He testified that on the occasion in question he heard
Santana tell Gamboa that he did not have to submit'
any case for arbitration, that he did not have to go the
arbitration proceeding, and that Gamboa s father, a
former IAM official was the one who had told Gamboa
to submit those cases Colon asserts that although he
then walked away and heard nothing further Santana
appeared to be upset and aggressive and used obscene
words He went on to relate that after the incident
Gamboa discussed the incident with him, but Colon
could not recall that Gamboa complained that he had
been threatened by Santana
35 The 8(a)(5) and ( 1) allegation based on the Respondents failure to
provide the information requested in IAM s letter of 6 June is also dis
missed That request was received at a time contemporaneous with the
Respondent s receipt of a showing furnishing a reasonably based doubt of
majority The signatures purported to precede the Union s 6 June re
quest During the period that this request went unanswered Respondent
was endeavoring to obtain legal advice Subsequently Respondent
having withdrawn recognition based on events existing at the time of the
request for information was privileged to consider its obligation to fur
rash the additional information as having been abated
36 Gamboa in his preheanng affidavit averred that Santana expressed a
specific threat of discharge In that document he also related under
oath that he told Santana in response that if he wished to discharge me
go ahead and do it that I was causing him no harm See R Exh I
833
It is true that Santana was not examined as to the inci
dent and that Gamboa was an incumbent employee at
the time he testified Moreover, no doubt is held that an
incident occurred in which heated words were ex
changed Nonetheless based on my observation of
Gamboa and considering the inconsistencies in his pre
hearing affidavit, and the absence of any corroboration
as to alleged threatening remarks, he was not regarded as
a reliable witness Accordingly, the 8(a)(1) allegation in
this respect shall be dismissed as unsubstantiated by cred
ible proof
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 International Association of Machinists and Aero
space Workers, AFL-CIO Local 2725 and Union Inde
pendiente de Trabajadores de Aeropuertos are labor or
ganizations within the meaning of Section 2(5) of the
Act
3 Respondent violated Section 8(a)(5) and (1) of the
Act by refusing since 21 March 1984 to furnish copies of
its 1982 payroll to IAM in order that the latter might
perform its duties as exclusive collective bargaining rep
resentative
4 Respondent violated Section 8(a)(1) of the Act by
failing to provide IAM with written statements of posi
tion with respect to pending grievances
5 Respondent did not violate the Act in any other re
spect
6 The unfair labor practices set forth in paragraph 3
above are unfair labor practices having an effect on com
merce within the meaning of Section 2(6) and (7) of the
Act
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of the Act, it
shall be recommended that it be ordered to cease and
desist therefrom and to take certain appropriate action
to effectuate the purposes and the policies of the Act
Apart from the posting of a conventional bilingual
notice, an affirmative provision requiring Respondent to
furnish properly requested information shall be included
in the recommended order on a conditional basis Thus,
on disposition of the question concerning representation
in Case 24-RC-6852 should IAM be certified as the ex
clusive representative of employees Respondent shall be
ordered to, on request provide relevant and necessary
information to that labor organization On the other
hand, if the Intervenor or no union achieves a lawful ma
jonty this provision shall be considered null and void
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed37
97 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Airport Aviation Airport Services
Incorporated, Isla Verde, Puerto Rico, its officers,
agents , representatives , and assigns, shall
1 Cease and desist from
(a) Refusing, on request, to furnish the exclusive repre
sentatives of its employees information relevant and nec
essary to the performance of its duties as exclusive col
lective bargaining representative
(b) Modifying the terms of an existing collective bar
gaining agreement, without assent of the statutory repre
sentative, by refusing to provide written answers to
second step grievances
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) In the event that International Association of Ma
chmists and Aerospace Workers, AFL-CIO, Local 2725
is designated as a certified collective bargaining agent of
employees in the appropriate unit, furnish to that labor
organization copies of the 1982 payroll, as well as any
other information requested which is relevant or neces
sary to the performance of its duties as certified bargain
ing agent
(b) Post at its terminals at the San Juan International
Airport, Isla Verde, Puerto Rico, in both English and
Spanish, copies of the attached notice marked 'Appen
dix "38 Copies of the notice, on forms provided by the
Regional Director for Region 24, 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 cus
tomanly posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered de
faced, or covered by any other material 39
38 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
19 If International Association of Machinists and Aerospace Workers
AFL-CIO Local 2725 is designated as exclusive collective bargaining
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
representative of employees in the appropriate unit in Case 24-RC-6852
add the following paragraph to the attached notice
WE WILL on request furnish to International Association of Ma
chimsts and Aerospace Workers AFL-CIO Local 2725 information
reasonably necessary for that organization to fulfill its responsibility
to you as your exclusive collective bargaining representative
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 or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, ,loin, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
Accordingly, we give you these assurances
WE WILL NOT refuse to provide information requested
by the exclusive statutory representative of our employ
ees if necessary and relevant to the performance of its
duty to represent you with respect to wages, hours and
terms and conditions of employment
WE WILL NOT modify the terms of an existing collec
tive bargaining agreement without assent of your exclu
sive statutory bargaining representative
AIRPORT AVIATION SERVICES INCORPO
RATED