Pacific Southwest Airlines

National Labor Relations Board - Board Decisions

Oct 17, 1977

233 N.L.R.B. 1 (N.L.R.B. 1977)

PACIFIC SOUTHWEST AIRLINES
Pacific Southwest Airlines, and Pacific Southwest
Airmotive and Teamsters Local 2707, Airline,
Aerospace and Allied Employees, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 21-CA-
15699
October 17, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on May 6, 1977, by Teamsters
Local 2707, Airline, Aerospace and Allied Employ-
ees, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Pacific
Southwest Airlines, and Pacific Southwest Airmotive,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 21, issued a complaint
and notice of hearing on June 10, 1977, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 30, 1976,
following a Board election in Case 21-RC-14624, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 1 and that, commenc-
ing on or about April 29, 1977, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative by unilat-
erally and without prior notification to or consulta-
tion with the Union bargaining directly with its
employees in said unit. On June 23, 1977, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On July 11, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 15, 1977, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
I Official notice is taken of the record in the representation proceeding,
Case 21-RC-14624, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penel/o, 269 F.Supp. 573 (D.C.Va.. 1967);
233 NLRB No. 10
Counsel's Motion for Summary Judgment should not
be grar..ed. Respondent thereafter filed a response to
Notice Fo Show Cause, entitled "Argument in
Support of Opposition to Motion for Summary
Judgmei ."
Pursua t to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, Respondent basically admits
the underlying representation proceeding, but denies
the validity of the Union's certification based on its
contention that the unit is inappropriate. Respondent
also contends that material issues remain in dispute
with regard to General Counsel's allegations that
Respondent bargained directly with employees of the
unit and therefore a hearing is required as to those
issues. The General Counsel contends that the unit
issues have been previously considered and decided
in the underlying representation case and, as was
found in the Decision and Order in Case 21-CA-
14967,2 may not be relitigated. We agree with the
General Counsel.
The Respondent's duty to bargain based on the
same certification was determined by the Board on
January 27, 1977, in the Decision and Order in Case
21-CA-14967 wherein Respondent raised essentially
the same issues it now raises. As in that case, we now
find that Respondent is attempting to raise and
relitigate issues already litigated and determined; this
it may not do.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
All issues raised by the Respondent in this
proceeding concerning the prior representation case
were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the
Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 227 NLRB 1578 (1977).
3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding.
Respondent, in effect, admits in its answer and in
its response to the Notice To Show Cause that its
supervisor assembled bargaining unit personnel and
informed them of planned organizational changes
which would result in a loss of bargaining unit jobs
without prior notification to or consultation with the
Union. Thus, Respondent's request for a hearing is
denied as there is no factual issue before the Board
necessitating a hearing. Furthermore, contrary to
Respondent, the supervisor's actions and conduct
constituted direct bargaining with employees, since it
is well established that "[r]espondent's obligation to
bargain with the employees' exclusive agent demands
that he accept and respect the exclusivity of that
agency." 4 We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, with its main office and place of
business in San Diego, California, is comprised of
Pacific Southwest Airlines, a California corporation
operating as an intrastate passenger air carrier, and
Pacific Southwest Airmotive, its wholly owned
subsidiary which is engaged in the overhaul of jet
engines. In the normal course and conduct of its
business operations described above, Respondent
annually derives gross revenues in excess of $500,000
and annually purchases and receives goods valued in
excess of $50,000 directly from suppliers located
outside the State of California.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local 2707, Airline, Aerospace and
Allied Employees, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All junior clericals, intermediate clericals,
senior clericals, leads 1, 2, and 3, and clerk-typists
in Respondent's inventory control department,
invoice control department, material control
department, planning and recordkeeping depart-
ment, shipping and receiving department, plating
department, inspection/records department, and
the production control recorder in the inventory
surveillance department employed at Respon-
dent's facilities located at 3225 North Harbor
Drive, and 7007 Consolidated Way, San Diego,
California; excluding all other employees, office
clerical employees, buyers, planners, chemists,
engineering analysts, engineers, professional em-
ployees, guards, and supervisors as defined in the
Act.
2. The certification
On July 22, 1976, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 21, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on July 30, 1976, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Respondent's Refusal To Bargain
Since on or about April 29, 1977, and continuing at
all times thereafter to date, the Respondent has
refused and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit by unilaterally, and without prior notification to
or consultation with the Union, bargaining directly
with its employees in said unit.
Accordingly, we find that the Respondent has,
since April 29, 1977, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
4 Obie Pacific, Incorporated 196 NLRB 458.459 (1972).
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PACIFIC SOUTHWEST AIRLINES
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and, to
remedy Respondent's unilateral action with respect
to the direct bargaining with its employees, we shall
order Respondent, upon request, to bargain collec-
tively with the Union in good faith as the exclusive
representative of all employees in the appropriate
unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Pacific Southwest Airlines, and Pacific South-
west Airmotive is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local 2707, Airlines, Aerospace and
Allied Employees, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All junior clericals, intermediate clericals,
senior clericals, leads 1, 2, and 3, and clerk-typists in
Respondent's inventory control department, invoice
control department, material control department,
planning and recordkeeping department, shipping
and receiving department, plating department, in-
spection/records department, and the production
control recorder in the inventory surveillance depart-
ment employed at Respondent's facilities located at
3225 North Harbor Drive, and 7007 Consolidated
Way, San Diego, California; excluding all other
employees, office clerical employees, buyers, plan-
ners, chemists, engineering analysts, engineers, pro-
fessional employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since July 30, 1976, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about April 29, 1977, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Pacific Southwest Airlines, and Pacific Southwest
Airmotive, San Diego, California, its officers, agents,
successors, and assigns, shall:
i. Cease and desist from:
(a) Bargaining directly with employees who are
represented by Teamsters Local 2707, Airline,
Aerospace and Allied Employees, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor
organization.
(b) Changing any terms or conditions of employ-
ment of employees represented by said Union, or any
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization which represents them,
without prior consultation with said representatives
of said employees.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with Teamsters Local
2707, Airline, Aerospace and Allied Employees,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of all employees
in the appropriate unit, with respect to any planned
organizational changes which would result in a
reduction of bargaining unit personnel and a loss of
bargaining unit jobs and, if an understanding is
reached, embody it in a signed agreement. The
appropriate unit is:
All junior clericals, intermediate clericals,
senior clericals, leads 1, 2, and 3, and clerk-typists
in the Respondent's inventory control depart-
ment, invoice control department, material con-
trol department, planning and recordkeeping
department, shipping and receiving department,
plating department, inspection/records depart-
ment, and the production control recorder in the
inventory surveillance department employed at
Respondent's facilities located at 3225 North
Harbor Drive and 7007 Consolidated Way, San
Diego, California; excluding all other employees,
office clerical employees, buyers, planners, chem-
ists, engineering analysts, engineers, professional
employees, guards, and supervisors as defined in
the Act.
(b) Post at its 3225 North Harbor Drive and 7007
Consolidated Way facilities copies of the attached
notice marked "Appendix."5 Copies of said notice,
on forms provided by the Regional Director for
Region 21, after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable 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 21, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER MURPHY, concurring:
I cannot agree that Respondent's verbal announce-
ment concerning a unilateral change in working
conditions constitutes unlawful direct dealings. Quite
literally there were no dealings with the employees
and the change could quite obviously have been
announced just as effectively in a plant bulletin or
newspaper without any direct contacts with the
employees at all for they in a real sense were only an
audience, not participants. However, the Respon-
dent's conduct clearly involved unlawful unilateral
changes and bypassing of the Union and in the
circumstances here a finding of an 8(a)(5) and (1)
violation is warranted on that basis. See, e.g., REA
Trucking Company, Inc. v. N.LR.B., 439 F.2d 1065
(C.A. 9, 1971). It is on that basis that I join in my
colleagues' result here.
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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT bargain directly with employees
who are represented by Teamsters Local 2707,
Airline, Aerospace and Allied Employees, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization.
WE WILL NOT change any terms or conditions
of employment of employees represented by said
Union, or any other labor organization which
representes them, without prior consultation with
said representatives of said employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under Section 7 of
the Act.
WE WILL, upon request, bargain with Team-
sters Local 2707, Airline, Aerospace and Allied
Employees, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representa-
tive of all employees in the appropriate unit, with
respect to any planned organizational changes
4
PACIFIC SOUTHWEST AIRLINES
which would result in a reduction of bargaining
unit personnel and a loss of bargaining unit jobs,
and, if an understanding is reached, embody it in
a signed agreement. The appropriate unit is:
All junior clericals, intermediate clericals,
senior clericals, leads 1, 2, and 3, and clerk-
typists in the Respondent's inventory control
department, invoice control department,
material control department, planning and
recordkeeping department, shipping and
receiving department, plating department,
inspection/records department, and the pro-
duction control recorder in the inventory
surveillance department employed at Re-
spondent's facilities located at 3225 North
Harbor Drive and 7007 Consolidated Way,
San Diego, California; excluding all other
employees, office clerical employees, buyers,
planners, chemists, engineering analysts,
engineers, professional employees, guards,
and supervisors as defined in the Act.
PACIFIC SOUTHWEST
AIRLINES, AND PACIFIC
SOUTHWEST AIRMOTIVE
5