U.S. Eagle, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 530 (N.L.R.B. 1973)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S. Eagle, Inc. and Service Employees Internation-
al Union , Local 250, AFL-CIO. Case 20-CA-7460
March 20, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed April 27, 1972, by Service
Employees International Union, Local 250,
AFL-CIO, herein called the Union, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 20, issued a
complaint on July 31, 1972, against U.S. Eagle, Inc.,
Respondent herein, 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) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative 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 October 20,
1971, following a Board election, the Union was duly
certified as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit
found appropriate; and that, since on or about
March 17, 1972, Respondent had refused and
continues to refuse to bargain collectively with the
Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On August 8, 1972, Respondent filed its
answer to the complaint denying the commission of
the alleged unfair labor practices.
On September 28, 1972, Respondent, the Union,
and the General Counsel entered into a stipulation in
which they agreed that the formal papers filed in this
proceeding and the facts as contained in the
stipulation together with the exhibits attached there-
to constitute the entire record in this case. The
parties agreed that no oral testimony was therefore
necessary or desired. They waived their right to a
hearing before an Administrative Law Judge, the
making of findings of facts and conclusions of law by
an Administrative Law Judge, and the issuance of an
Administrative Law Judge's Decision and recom-
mended Order; and asked that the case be trans-
ferred directly to the Board for decision. The
stipulation also provided for the filing of briefs with
the Board.
On October 4, 1972, the Board issued its Order
approving the stipulation and transferring the pro-
ceeding to the Board. Thereafter, the General
Counsel filed a brief. Respondent filed a motion to
dismiss the proceeding on grounds of mootness and
the Union thereafter timely filed a response thereto
in which it opposed the motion.
Pursuant 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.
The Board has considered the entire record in this
case including the General Counsel's brief, the
Respondent's motion, and the response thereto. For
the reasons hereafter indicated, the Board finds that
Respondent has violated Section 8(a)(5) and (1) of
the Act as alleged by the complaint.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Washington corporation with its
principal office in Vacaville, California, is, and at all
times material herein has been, engaged in providing
maintenance services for the United States Defense
Department, including the McClellan Air Force Base
located in Sacramento, California. During the past
year, in the course and conduct of its business
operations, Respondent provided services outside the
State of California in excess of $50,000 and received
gross revenues exceeding $500,000. In the same
period, Respondent also provided services valued in
excess of $50,000 for the United States Air Force.
Respondent's operations have, and at all times
material herein have had, a substantial impact on the
national defense.
We find that Respondent is, and at all times
material herein has been, an employer engaged in
commerce and an operation affecting commerce
within the meaning of Section 2(6) and (7) of the Act
and that it will effectuate the purposes of the Act to
assert jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties agree and we find that the Union is and
at all times material herein has been a labor
organization within the meaning of Section 2(5) of
the Act.
III. UNLAWFUL REFUSAL TO BARGAIN
A. The Relevant Stipulated Facts
On October 12, 1971, the Board conducted an
election in a unit all parties concede to be appropri-
ate. That unit was composed of all building, service,
and maintenance employees employed by Respon-
dent at McClellan Air Force Base excluding all office
clericals, guards, watchmen and supervisors as
defined in the Act.
202 NLRB No. 74
U.S. EAGLE, INC. 531
At the time the election was conducted, Respon-
dent was engaged in performing building and
maintenance service work at the McClellan Air
Force Base under a contract awarded it by the
United States for a period effective by its terms until
October 17, 1971. It had a complement of approxi-
mately 118 unit employees at that time and a
majority of those employees voted for the union.
Accordingly, the Board issued a certification to the
Union dated October 20, 1971, duly certifying its
election by a majority of the employees in the
appropriate unit as the exclusive bargaining repre-
sentative of the unit employees within the meaning of
Section 9(a) of the Act.
Respondent's contract with the United States Air
Force expired under its terms on October 17, 1971. A
new contract to perform the work involved was
awarded to Murcole, Inc., who then commenced
performing the same work at the same location with
the same equipment and supervisory personnel and
without any hiatus or change in the mode of
operation. Murcole retained 68 of the Respondent's
employees for its 130-man work force.
On February 24, 1972, Murcole defaulted on its
maintenance contract and was immediately replaced
by Respondent for the contract period ending on
October 17, 1972. Upon taking over the operation,
Respondent employed approximately 130 employees,
54 of whom had formerly been employed by
Murcole,l and an additional 21 of whom had been
employed by Respondent under the preceding
maintenance contract but had not been employed by
Murcole. In performing the work, it also utilized the
same equipment and supervisory personnel and
made no changes of substance in the mode of
operation.
On or about March 17, 1972, and at various times
thereafter, the Union requested that Respondent
recognize and bargain with it as the certified
bargaining representative of the unit employees.
Respondent admittedly refused to honor the Union's
recognition and bargaining request.
B. The Parties' Contentions
The complaint described Respondent' s refusal to
recognize and bargain with the Union as violative of
Section 8(a)(5) and (1) of the Act because that refusal
occurred within the initial year of the Union's
I Of the 54, 37 had also been employed by Respondent when it held the
preceding contract.
2 Ray Brooks v. N.L.R.B., 348 U.S. 96, 98, affg . 204 F.2d 899(C.A. 9),
enfg . 98 NLRB 976.
3 Kentucky News, Incorporated, 165 NLRB 777.
4 N. L. R. B. v. Burns International Security Services, 404 U.S. 999.
5 N. L. R.B. v. Holly-General Company, Division of Seigler Corp., 305 F.2d
670 (C.A. 9), enfg. 129 NLRB 1098.
6 Murcole's obligation to bargain was not placed in issue by the
certification as the bargaining representative of the
employees in the certified appropriate unit. Respon-
dent's answer denies the existence of any legal
obligation to bargain with the Union at times here
relevant on two grounds. The first ground seeks to
place in issue the validity of the certification because
of Murcole's replacement of Respondent as the
employer of the unit employees for the approximate-
ly 4-month period between October 17, 1971, and
February 25, 1972. The second challenges the
Union's continuing majority status, in any event, in
light of the events occurring after the Board election
was held. We find both grounds on which Respon-
dent disclaims any legal duty to bargain with the
Union to be without merit.
It is now well established that, absent unusual
circumstances, an employer violates Section 8(a)(5)
and (1) of the Act if he refuses to honor a
certification based on a valid Board election during
the initial certification year.2 It is equally established
that the rule's provision for suspension of the
bargaining obligation in the presence of "unusual
circumstances" does not include situations where,
during the certification year, there has either been a
turnover in the unit' s complement3 or a change in
ownership of the employing entity; 4 or even an
actual defection from the certified union by a
majority of the unit employees.5 Application of those
precedents here necessarily precludes Respondent's
reliance upon the 4-month replacement by Murcole
as the employer of the unit employees at the outset of
the certification year and its attempt to question the
Union's majority status. Our view is supported by the
undisputed facts that the election underlying the
Board's certification was a valid election; that the
same was conducted at a time when Respondent was
the employer of the unit employees; that the certified
Union's bargaining demand was made at a time
when the Respondent was the employer of the unit
employees and succeeded the conduct of the election
by only a few months; that the employing industry of
which the unit employees were a part remained
unchanged despite the transfer of the maintenance
contract for 4 months from Respondent to Mur-
cole; 6 and that there was no break in the continuity
of that industry's operations.
Accordingly, we find that by refusing to recognize
and bargain with the Union, on March 17, 1972, and
complaint inasmuch as the Respondent 's obligation to bargain involved a
certification naming it as the employer of the employees involved when they
designated the Union as their representative in the election . The inclusion in
the parties ' stipulation of facts describing Murcole 's retention of Respon-
dent's employees in a number sufficient to constitute a majority of its total
complement upon takeover of the operations would establish a basis on
which we could dispose of the case if we found it necessary to ground
Respondent 's obligation to bargain with the Union upon a theory of
successorship , the primary issue of Burns, supra.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at all times thereafter , Respondent violated Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. U.S. Eagle, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Service Employees International Union, Local
250, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All building service and maintenance employ-
ees employed by the Respondent at McClellan Air
Force Base , excluding all office clerical employees,
guards, watchmen 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. At all times here material, the above-named
labor organization has held a valid certification
issued by the Board on October 20, 1971, as the
exclusive representative of all the employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. Respondent's refusal, on or about March 17,
1972, and at all times thereafter, to honor the
requests of the above-named labor organization that
Respondent bargain collectively with it as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, is an
unfair labor practice within the meaning of Section
8(a)(5) of the Act.
6. The aforesaid refusal to bargain is also an
unfair labor practice within the meaning of Section
8(a)(1) of the Act because Respondent thereby
interfered with, restrained, and coerced employees in
the exercise of rights guaranteed them in Section 7 of
the Act.
7. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It has been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
and (5) of the Act by failing and refusing to bargain
with the Union as the certified bargaining represent-
ative of the employees composing the appropriate
unit.
Following submission of the case to the Board,
Respondent filed a motion to dismiss the complaint
asserting, as a basis therefor, that its contract at the
Air Force base had expired and that the new
contractor will be performing future services, so that
the issues of this case are moot. The General Counsel
filed no response to the motion, but the Charging
Party opposes our granting it, without directly
controverting the brief statement of the fact set forth
in the motion.
Without an examination of all relevant facts, there
is no way in which we can render an informed
judgment on whether or not the new contractor is a
successor to Respondent. In view of the history of
this matter, it is entirely possible that there may be
successorship here, in which event the case is by no
means mooted. Furthermore, that history also
indicates that there is at least a possibility that
Respondent may, at some future date, again be at
this location, which again would suggest that a
remedy vis-a-vis Respondent would not be an empty
gesture. Nor do we have any facts from the motion
or any other document as to Respondent's relation-
ship, or lack thereof, with the current contractor; yet
an examination of any such relationship would also
be relevant to the appropriateness of enforcing our
Order. Most of these matters, we have concluded,
may best be explored at the compliance stage of this
proceeding or in subsequent proceedings, if necessary.
But since we do not clearly have an adequate
factual basis for granting any motion to dismiss for
mootness at this stage, that motion is dismissed.
Accordingly, we shall enter our customary bargain-
ing order. Furthermore, in order to provide for the
employees in the appropriate unit an opportunity for
them to be accorded the services of their chosen
collective-bargaining agent for the period contem-
plated by the law, we shall construe the period of
certification as extending for a 7-month period
beyond the date on which Respondent or its
successor commences to bargain in good faith with
the Union in the appropriate unit of all building
service and maintenance employees employed by
Respondent or its successor at the McClellan Air
Force Base , excluding all office clerical employees,
guards, watchmen and supervisors as defined in the
Act.7 Mar-Jac Poultry Company, Inc., 136 NLRB
785; Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, enfd. 328 F.2d 600 (C.A. 5), cert. denied
379 U.S. 817; Burnett Construction Company, 149
NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10);
Village Rambler Sales, Inc., 174 NLRB 247. See also
Minute Maid Corporation, 124 NLRB 355, 361.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
I This means that the presumption of majority status which attaches to
the Union upon certification will continue for the 7-month period following
the commencement of good-faith bargaining.
U.S. EAGLE, INC 533
Relations Board hereby orders that Respondent,
U.S. Eagle, Inc., Vacaville, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Service Employees
International Union, Local 250, AFL-CIO, as the
statutory bargaining representative of the employees
in the following appropriate unit:
All building service and maintenance employees
employed by Respondent or its successor at
McClellan Air Force Base , excluding all office
clerical employees, guards, watchmen and super-
visors as defined in the Act.
(b) 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 the Union as the
exclusive representative of the employees in the
appropriate unit, and, if an understanding is reached,
reduce it to writing and sign it. Regard the Union
upon resumption of bargaining, and for 7 months
thereafter, as if the initial year following certification
had not expired.
(b) Mail a copy of the attached notice marked
"Appendix" 8 to each of its employees who were
employed at the McClellan Air Force Base between
March 17, 1972, and October 17, 1972. Copies of said
notice, on forms provided by the Regional Director
for Region 20, shall, after being duly signed by
Respondent, be mailed immediately upon receipt
thereof.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
8 In the event this order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Mailed by Order of the
National Labor Relations Board" shall read "Mailed Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay wages, hours, and other
terms and conditions of employment with union
employees in the appropriate bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain collectively
and in good faith with the Union which repre-
sents a majority of our present employees in the
unit set forth below with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
All building service and maintenance em-
ployees employed by Respondent or its
successor at McClellan Air Force Base,
excluding all office clerical employees,
guards, watchmen and supervisors as de-
fined in the Act.
U.S. EAGLE, INC.
(Employer)
Dated By
(Representative) (Title)
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Box 36047, 450 Golden Gate Avenue,
San Francisco, California 94102, Telephone
415-556-3197.