West Coast Schools

National Labor Relations Board - Board Decisions

Jan 28, 1974

208 N.L.R.B. 725 (N.L.R.B. 1974)

WEST COAST SCHOOLS 725
Automation Institute of Los Angeles, Inc., d /b/a West
Coast Schools and Miscellaneous Warehousemen,
Drivers & Helpers Local 986, International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen
& Helpers of America . Case 21-CA-11868
January 28, 1974
DECISION AND ORDER
Summary Judgment should not be granted. Respon-
dent thereafter failed to file a response to Notice To
Show Cause.
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.
Upon the entire record in this proceeding, the
Board makes the following:
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on June 13, 1973, by
Miscellaneous Warehousemen, Drivers & Helpers
Local 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
herein called the Union, and duly served on
Automation Institute of Los Angeles, Inc., d/b/a
West Coast Schools, herein called the Respondent,
the General Cou?isel of the National Labor Relations
Board, by the Regional Director for Region 21,
issued a complaint on July 30, 1973, 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 lo the unfair labor practices, the
complaint alleges in substance that on May 31, 1973,
following a Board election in Case 21-RC-13164 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; i and that, commenc-
ing on or about May 22, 1973, 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, particular-
ly with respect to the effects of the closing of any of
its facilities on the unit employees, although the
Union has requested and is requesting it to do so. On
August 7, 1973, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 17, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 25,
1973, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
I Official notice is taken of the record in the representation proceeding,
Case 21-RC-13164. as the term "record" is defined in Secs. 102 68 and
102.69(f) of the Board 's F ules and Regulations, Series 8, as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C A. 4. 1968);
Ruling on the Motion for Summary Judgment
The thrust of the Respondent's answer to the
complaint is that it would be futile to bargain with
the certified Union on the effects of the closing of its
vocational school facilities on the unit employees
who were discharged and dismissed at the time of the
closing. The General Counsel, on the other hand,
contends that under Board and court precedent, the
Respondent has the continuing obligation to do so.
We agree with the General Counsel.
Our review of the record herein reveals that on
April 19, 1973. the Acting Regional Director in Case
21-RC-13164 approved a stipulation for consent
election agreement, previously executed by the
Union and Respondent, providing for an election in
the stipulated appropriate unit of all employees at its
vocational school facilities in southern California. In
the election conducted on May 21, 1973, a majority
of the employees voted for the Union. No timely
objections to the election having been filed by the
Respondent, the Regional Director, on May 31,
1973, certified the Union as the exclusive bargaining
representative of the employees in the stipulated
appropriate unit. Thereafter, as alleged in its answer
to the complaint, and as, in effect, conceded by the
General Counsel, the Respondent, in or about May
1973, discontinued its vocational school operations
in southern California and terminated all unit
employees working therein. Accordingly, the Res-
pondent, while admitting the Union's majority status
and certification established in the representation
case, denies that the Union is now the exclusive
representative of the unit employees.
Although the Respondent's answer to the com-
plaint appears to admit the validity of the Union's
majority status and certification, we note that, in any
event, 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
Golden Age Beverage Co, 167 NLRB 151 , enfd 415 F.2d 26 (C.A 5, 1969):
Intertype Co. v. Penello. 269 F Supp 573 (D.C. Va. 1967). Follett Corp. 164
NLRB 378, enfd. 397 F 2d 91 (C A 7, 1968), Sec. 9(d) of the NLRA
208 NLRB No. 92
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding,-and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any representation issue which is properly litigable in
this unfair labor practice proceeding.
However, as indicated above, the Respondent
defends its admitted refusal to bargain with the
certified Union3 on the ground that it had discontin-
ued, and is no longer engaged in, vocational school
operations, that it had discharged and dismissed- all
the vocational school unit employees, and that it
would be va vain and fruitless act to bargain with the
Union with respect .to the unit employees. We find
no merit in this defense.
The Board has held that the effects of a termina-
tion of operations is a mandatory subject pf
bargaining because the elimination of unit jobs is
within the statutory phrase "other terms and condi-
tions of employment "4 Further, we have held, with
court approval, that an employer must notify its
employees' collective-bargaining representative of a
decision to close its operations so the union can
bargain about the effects of the closing upon the
displaced employees.5 As.the Court of Appeals for
the Ninth Circuit said in Transmarine, once a
decision is made to close an operation, the union
must be given the opportunity to bargain over the
rights of employees whose employment status will be
altered .6
We hold therefore that the Respondent herein was
under a continuing duty to bargain about the effects
of the discontinuance of its vocational school
operations in southern California on the terminated
employees and its refusal to do so violated Section
8(a)(5) of the Act. Accordingly, we shall grant the
General Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
2 See Pittsburgh Plate Glass Company v. N.LRB., 313 U.S. 146, 162
( 1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102 .69(c).
3 Although admitting a refusal to bargain , the Respondent's answer
appears to deny the alleged request to bargain made on or about May 22,
1973. Attached to the General Counsel's Motion for Summary Judgment
are exhs . F and G( l) and (2) which purport to be copies of letters dated May
22, 1973 , and June 18 , 1973, requesting the Respondent to supply
bargaining information prior to a meeting for the purpose of negotiating an
agreement . As the Respondent failed to file a response to the Notice To
Show Cause, it has not controverted the letters and, therefore, they are
deemed to be admitted as true and so found to be true. Accordingly, as
these letters establish the CJnion 's requests to bargain, the Respondent's
FINDINGS OF FACT
1. THE BUSINESS OF, THE RESPONDENT
At all times material herein, the Respondent has
been, and is now, a corporation with its main office
and place of business in Los Angeles, California, and
has been engaged in the operation of vocational
schools in southern California. In the course and
conduct of its business operations, the Respondent
annually derives gross revenues in excess of $500,000
and annually purchases materials and supplies
valued in excess of $50,000 directly from suppliers
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
Miscellaneous Warehousemen, Drivers & Helpers
Local 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, is
a labor organization within the meaning of Section
2(5) of the Act.
111. 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 employees employed by the Employer at its
facilities located at 1430 West Venice Boulevard,
Los Angeles, California; 16611 Hawthorne Boule-
vard, Lawndale, California; 11441 South Atlantic
Avenue, Lynwood, California; 5059 East Whittier
Boulevard, East Los Angeles, California; 5003
East Whittier Boulevard, East Los Angeles,
California; 4985 East Whittier Boulevard, East
Los Angeles, California; 426 West Duarte Road,
denial is stricken and the allegations of the complaint with respect to the
Union's bargaining request of May 22 , 1973, stand admitted. See Delta-
Macon Brick & Tile Company, inc., 196 NLRB 148, Family Heritage
Hone--Beaver Dam Incorporated 195 NLRB 1100.
4 New York Mirror, Division of the Hearst Corporation, 151 NLRB 834,
838, fn, 4.
5 Interstate Tool Co., Inc.. 177 NLRB 686; Transmarine Navigation
Corporation, 170 NLRB 389. 380 F .2d 933 (C.A. 9, 1967), remanding 152
NLRB 998; Royal Plating and Polishing Co., Inc., 160 NLRB 990; New York
Mirror, supra.
6 N. L.. R.B. v. Transmarine Navigation Corporation, supra at 939.
WEST COAST SCHOOLS
Monrovia, California; 448 South Hill Street, Los
Angeles, California; 451 South Hill Street, Los
Angeles, California; 454 South Hill Street, Los
Angeles, California; I Wilshire Boulevard, Los
Angeles, California; excluding all corporate
directors and officers, confidential employees,
administrative assistants, guards, and supervisors
as defined in the Act.
. The certification
On May 21, 1973, 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 May 31, 1973, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
. Refusal
Commencing on or about May 22, 1973, and at all
times thereafter, the Union has requested the
Respondent to bargain, collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit, with
respect to the effects of the Respondent's closing of
any of its vocational school facilities on said
employees. Commencing on or about May 22,1973,
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 representative for collective bargaining of
all employees in said unit with respect to, but not
limited to, refusing to meet and bargain with the
Union over the terms of an initial collective-bargain-
ing agreement or over the effects of the closing of
any of its vocational school facilities on said
employees.
Accordingly, we find that the Respondent has,
since May 22, 1973, 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-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(ax5) and
(1) of the Act.
7 We have indicated that backpay orders are appropriate means of
remedying 8(a)(5) violations of the type involved herein, even where such
violations are unaccompanied , by a discriminatory discontinuance of
IV. THE EFFECT OF *THE UNFAIR LABOR
PRACTICES UPON COMMERCE
727
The activities of Respondent set forth in section
III, above , occurring in connection with its opera-
tions described in section 1, 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 the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that the
Respondent cease and desist therefrom , and take
certain affirmative action designed to effectuate the
policies of the Act.
As a result of the Respondent's unlawful failure to
bargain about the effects of its discontinuance, the
terminated employees have been denied an opportu-
nity to bargain through their collective-bargaining
representative at a time when the Respondent might
have been still in need of their services, and a
measure of balanced bargaining power existed.
Meaningful bargaining cannot be assured until some
measure of economic strength is restored to the
Union. A bargaining order alone, therefore, cannot
serve as an adequate remedy for the unfair labor
practices committed.
Accordingly, we deem it necessary, in order to
effectuate the purposes of the Act, to require the
Respondent to bargain with* the Union concerning
the effects of the discontinuance of its vocational
school operations on its employees, and shall include
in our . Order a limited backpay requirement 7
designed both to make whole the employees for
losses suffered as a result of the violation and to
recreate in some practicable manner a situation in
which the parties' bargaining position is not entirely
devoid of economic consequences for the Respon-
dent. We shall do so in this case by requiring the
Respondent to pay backpay to its employees in a
manner similar to that required in Transmarine,
supra. Thus the Respondent shall pay employees
backpay at the rate of their normal wages when last.
in Respondent's employ from 5 days after the date of
this Decision and Order until the occurrence of the
earliest of the following conditions: (1) the date the
Respondent bargains to agreement with the Union
on those subjects pertaining to the effects of the
vocational school discontinuance on its employees;
operations. Cf. Royal Plating and Polishing Co., Inc., 148 NLRB 545, 548,
and cases cited therein.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) a bona fide impasse in bargaining ; (3) the failure
of the Union to request bargaining within 5 days of
this Decision and Order, or to commence negotia-
tions within 5 days of the Respondent 's notice of its
desire to bargain' with the Union; or (4) the
subsequent failure of the Union to bargain in good
faith; but in no "event shall the sum paid to any of
these employees exceed the amount he would have
earned as wages from in or about May 1973, when
the Respondent terminated its operations , to the time
he secured equivalent employment elsewhere, or the
date on which the Respondent shall have offered to
bargain, whichever occurs sooner; provided, howev-
er, that in no event shall this sum be less than these
employees would have earned for a 2-week period at
the rate of their normal wages when last in the
Respondent's employ.8
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Automation Institute of Los Angeles, Inc.,
d/b/a West Coast Schools, is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Miscellaneous Warehousemen, Drivers &
Helpers Local 986, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America , is a labor organization within the meaning
of Section 2(5) of the Act.
3. All employees employed by the Employer at its
facilities located at 1430 West Venice Boulevard, Los
Angeles, California; 16611 Hawthorne Boulevard,
Lawndale, California; 11441 South Atlantic Avenue,
Lynwood, California; 5059 East Whittier Boulevard,
East Los Angeles, California; 5003 East Whittier
Boulevard, East Los Angeles, California; 4985 East
Whittier Boulevard, East Los Angeles, California;
426 West Duarte Road, Monrovia, California; 448
South Hill Street, Los Angeles, California; 451 South
Hill Street, Los Angeles, California; 454 South Hill
Street, Los Angeles, California; 1 Wilshire Boule-
vard, Los Angeles, California; excluding all corpo-
rate directors and officers, confidential employees,
administrative assistants , 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 May 31, 1973, 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 May 22, 1973, 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(aX5) 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 Respondent,
Automation Institute of Los Angeles, Inc., d/b/a
West Coast Schools, Los Angeles, California, its
officers , agents, successors, and assigns, shall:
1. Cease and desist from refusing to bargain with
Miscellaneous Warehousemen, Drivers & Helpers
Local 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
concerning the effects on its employees of the
discontinuance of its vocational school facilities in
southern California.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Pay the discontinued employees their normal
wages for the period set forth in the remedy section
of this Decision and Order.
(b) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the aforesaid
appropriate unit with respect to the effects on its
employees of its discontinuance of vocational school
operations in southern California and reduce to
writing any agreement reached as a result of such
bargaining.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary or useful in checking
compliance with this Order.
(d) Mail a copy of the attached notice marked
"Appendix" to Miscellaneous Warehousemen, Driv-
ers & Helpers Local 986 , International Brotherhood
8 Transmarine Navigation Corporation. supra.
WEST COAST SCHOOLS 729
of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, and to all the employees who were
employed at its former vocational school facilities in
or about May 1973-when the facilities were discon-
tinued . Copies of said notice, on forms provided by
the Regional Director for Region 21, after being duly
signed by Respondents authorized representative,
shall be mailed immediately upon receipt thereof, as
hereinabove directed.
(e) 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.
APPENDIX
were employed there, and reduce to writing any
agreement reached as a result of such bargaining.
WE WILL pay the employees who were em-
ployed at the southern California vocational
school their normal wages for a period required
by a Decision and Order of the National Labor
Relations Board,,
AUTOMATION INSTITUTE
OF Los ANGELES,. INC.,
D/B/A WEST COAST
SCHOOLS
(Employer)
NOTICE To ALL EMPLOYEES
MAILED BY - ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL, upon, request, bargain collectively
with Miscellaneous Warehousemen, Drivers &
Helpers Local 986 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, with respect to the effects of
discontinuance of our southern California voca-
tional school operations upon the employees who
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered; defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's .Office, Eastern Columbia Building, 849
South Broadway , Los Angeles, California 90014,
Telephone 213-688-5254.