Aircraft Services International, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1982

262 N.L.R.B. 864 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aircraft Services International, Inc. and District
100, International Association of Machinists &
Aerospace Workers, AFL-CIO. Case 12-CA-
10076
July 13, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on March 3, 1982, by Dis-
trict 100, International Association of Machinists &
Aerospace Workers, AFL-CIO, herein called the
Union, and duly served on Aircraft Services Inter-
national, Inc., herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 12, issued a
complaint on March 29, 1982, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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
and complaint and notice of hearing before an ad-
ministrative 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 June 4, 1981,
following a Board election in Case 12-RC-6066,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about September 8, 1981, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On April 12, 1982, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On April 29, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on May 5,
1982, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
I Official notice is taken of the record in the representation proceed-
ing, Case 12-RC-6066, as the term "record" is defined in Secs. 102.68
and 102.6 9(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
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Folleit rorp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
262 NLRB No. 110
thereafter filed a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 opposition to
the Motion for Summary Judgment, Respondent
admits that the Union has requested that it bargain
and that it has refused to do so, but contends that
the certification of the Union is invalid because the
unit certified is inappropriate for the purposes of
collective bargaining. Respondent also alleges that
it has been denied fundamental due process in its
efforts to challenge the appropriateness of the unit.
Specifically, Respondent asserts that the Hearing
Officer improperly refused to grant its request for a
continuance.
Review of the record herein, including that in
the representation proceeding, Case 12-RC-6066,
establishes that, upon a petition duly filed under
Section 9(c) of the Act, a hearing was held before
a hearing officer of the National Labor Relations
Board. Thereafter, the Regional Director issued a
Decision and Direction of Election on April 15,
1981, wherein he found that the petitioned-for unit
of all tank farm and transport employees employed
by Respondent at Tampa International Airport,
Tampa, Florida, including all attendants, operators,
mechanics and transport truck drivers, but exclud-
ing all office clerical employees, building and auto
maintenance employees, ramp agents, janitorial-
maid employees, guards and supervisors as defined
in the Act, constitutes an appropriate unit for the
purposes of collective bargaining, and directed that
an election by secret ballot be conducted among
the employees in that unit.
Respondent filed a request for review on April
24, 1981, alleging, inter alia, that the Regional Di-
rector made erroneous factual conclusions that
there was a sufficient community of interest be-
tween the tank farm workers and the transport
drivers, and that a unit limited to tank farm work-
ers and transport drivers, and not including all of
the unorganized employees employed by Respond-
ent at the Tampa International Airport, was inap-
propriate. Respondent also contended that the
Hearing Officer erred in not granting its motion for
a continuance. By telegraphic order of May 6,
1981, the Board denied Respondent's request for
review.
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AIRCRAFT SERVICES INTERNATIONAL, INC.
In accordance with the Regional Director's De-
cision and Direction of Election, a secret-ballot
election was conducted on May 15, 1981. The tally
of ballots shows that the Union won the election.
Respondent filed timely objections to the election,
alleging that the Regional Director's unit determi-
nation was factually erroneous and that its request
for a continuance had been improperly denied. On
June 4, 1981, after an administrative investigation,
the Regional Director for Region 12 issued a Sup-
plemental Decision, Order, and Certification of
Representation. Respondent filed a timely request
for review of the Supplemental Decision, Order
and Certification of Respresentation, reiterating the
contentions made in its objections. By telegraphic
order of July 9, 1981, the Board denied Respond-
ent's request for review.
As noted, in its answer to the complaint and op-
position to the Motion for Summary Judgment, Re-
spondent denies the appropriateness of the unit and
alleges that the Regional Director erred in certify-
ing the unit requested. Respondent contends that
the only proper bargaining unit includes all 47 of
the unrepresented employees at its Tampa, Florida,
station and not just the 8 tank farm and transport
employees. Respondent also contends that the
Hearing Officer's refusal to grant a continuance
constituted a denial of due process. Finally, in its
answer to the complaint, Respondent contends that
it is without knowledge to answer the allegation
that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
All of these issues, the appropriateness of the
unit, the denial of a continuance, and the Union's
status under Section 2(5) of the Act, were litigated
and decided in the underlying representation pro-
ceeding. Respondent has not alleged any newly dis-
covered evidence in this proceeding which would
controvert any of the findings and conclusions
made as to such issues in the representation case.
Nor do any of Respondent's contentions raise any
substantial or material issues of fact or law which
would warrant reconsideration of those issues or a
hearing herein.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceedings
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
I See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees 102.67(f) and 102.69(c).
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we 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 RESPONDENT
Respondent Aircraft Services International, Inc.,
a Delaware corporation with an office and place of
business in Tampa, Florida, is engaged in the busi-
ness of providing fueling services and related serv-
ices for airlines at Tampa International Airport.
During the past 12 months, Respondent, in the
course and conduct of its business operations, pro-
vided services valued in excess of $50,000 to com-
panies who, in turn, meet a jurisdictional standard
other than solely indirect inflow or outflow.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
District 100, International Association of Ma-
chinists & Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
IlI. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All tank farm and transport employees em-
ployed by the Respondent at Tampa Interna-
tional Airport, Tampa, Florida, including all
attendants, operators, mechanics and transport
truck drivers; excluding all office clerical em-
ployees, building and auto maintenance em-
ployees, ramp agents, janitorial-maid employ-
ees, guards and supervisors as defined in the
Act.
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On May 15, 1981, 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 12; designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on June 4, 1981, 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 August 25, 1981, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about September 8, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
September 8, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
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 ensure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Aircraft Services International, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. District 100, International Association of Ma-
chinists & Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All tank farm and transport employees em-
ployed by Respondent at Tampa International Air-
port, Tampa, Florida, including all attendants, op-
erators, mechanics and transport truck drivers; ex-
cluding all office clerical employees, building and
auto maintenance employees, ramp agents, janitori-
al-maid employees, guards and supervisors as de-
fined 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 June 4, 1981, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about September 8, 1981,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
866
AIRCRAFT SERVICES INTERNATIONAL, INC.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Aircraft Services International, Inc., 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 District 100, Inter-
national Association of Machinists & Aerospace
Workers, AFL-CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All tank farm and transport employees em-
ployed by the Respondent at Tampa Interna-
tional Airport, Tampa, Florida, including all
attendants, operators, mechanics and transport
truck drivers; excluding all office clerical em-
ployees, building and auto maintenance em-
ployees, ramp agents, janitorial-maid employ-
ees, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Tampa International Airport,
Tampa, Florida, location copies of the attached
notice marked "Appendix. " s Copies of said notice,
on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's
s In the event that this Order ;s enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 12,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED 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 District 100, International Association of
Machinists & Aerospace Workers, AFL-CIO,
as the exclusive representative of the employ-
ees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All tank farm and transport employees em-
ployed by the Employer at Tampa Interna-
tional Airport, Tampa, Florida, including all
attendants, operators, mechanics and trans-
port truck drivers; excluding all office cleri-
cal employees, building and auto mainte-
nance employees, ramp agents, janitorial-
maid employees, guards and supervisors as
defined in the Act.
AIRCRAFT SERVICES INTERNATIONAL,
INC.
867