FKW, Inc.

National Labor Relations Board - Board Decisions

Jul 12, 1994

314 N.L.R.B. 289 (N.L.R.B. 1994)

289
314 NLRB No. 52
FKW, INC.
1 The Charging Party has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 In adopting the judge’s finding that the Respondent did not, as
alleged, unlawfully refuse to bargain with the Union, Member
Devaney notes that, while he dissented in FKW, Inc., 308 NLRB
598 (1992), he accepts as the law of this case the Board majority’s
decision there to assert jurisdiction over the Respondent.
1 Except as indicated, the facts set forth below are not in dispute.
2 The unit in which the Union was certified is as follows:
All full time and regular part-time master electricians, indus-
trial electricians and electrician helpers employed by Respondent
at the Mike Moroney Aeronautical Center, Oklahoma City,
Oklahoma, But EXCLUDING, all other employees including
Q.A. specialists, master industrial HVAC, journeymen HVAC,
helper HVAC, boiler mechanics/pipefitters, mill wrights and
helpers, journeymen carpenters, master plumbers and helpers,
painters and helpers, elevator mechanics and helpers, fire sup-
pression technicians, pest control technicians, laborers, mainte-
nance trade helpers, water treatment specialists, electronics tech-
nicians, CCMS team leader, CCMS operators, CCMS surveil-
lance employees, warehouse team leader, computer
programmer/analyst, computer hardware technician, O&M
electromechanical technicians, equipment mechanics, preventa-
tive maintenance employees, telecommunications manager, of-
fice clerical employees, guards and supervisors, as defined in the
Act.
3 All dates hereinafter are 1991, unless otherwise indicated.
FKW, Incorporated and International Brotherhood
of Electrical Workers, AFL–CIO, Local Union
1141. Case 17–CA–15959
July 12, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On March 2, 1993, Administrative Law Judge Ste-
ven M. Charno issued the attached decision. The
Charging Party filed exceptions and a supporting brief,
and the Respondent submitted an answering brief to
the exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Stephen E. Wamser, Esq., for the General Counsel.
W. Davidson Pardue Jr., Esq. and Charles W. Ellis, Esq.
(Lawrence & Ellis, P.A.), of Oklahoma City, Oklahoma,
for the Respondent.
DECISION
STEVEN M. CHARNO, Administrative Law Judge. In re-
sponse to a charge timely filed by the International Brother-
hood of Electrical Workers, AFL–CIO, Local Union 1141
(Union), a complaint was issued on June 19, 1992, which al-
leged that FKW, Incorporated (Respondent) violated the Na-
tional Labor Relations Act (the Act) by refusing to bargain
collectively with the Union. Respondent’s answer and
amended answer denied the commission of any unfair labor
practice.
A hearing was held before me in Midwest City, Okla-
homa, on October 27, 1992. Briefs were thereafter filed by
the parties under due date of December 1, 1992.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged in providing mainte-
nance services for Federal agencies with an office and place
of business in Oklahoma City, Oklahoma. During the 12-
month period ending May 31, 1992, Respondent, in the
course of its operations, performed services valued in excess
of $50,000 in States other than Oklahoma. It is admitted, and
I find that, Respondent is an employer engaged in commerce
within the meaning of the Act.
The Union is admitted to be, and I find is, a labor organi-
zation within the meaning of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE1
A. Background
Since 1986, Respondent has provided maintenance and re-
pair services at the Mike Moroney Aeronautical Center (Cen-
ter) under contracts administered by the Federal Aviation
Administration (FAA). In 1990, the Union filed a representa-
tion petition with the Board seeking an election in Case 17–
RC–10512. Respondent and the Union entered a Stipulated
Election Agreement, an election was held, the Union re-
ceived a majority of the votes cast and, on July 5, 1990, the
Union was certified as the collective-bargaining representa-
tive of the electricians employed by Respondent at the Cen-
ter.2
B. The Negotiations
Around mid-October 1990, Travis L. Brown, Respondent’s
project manager, and Bill Motley, the Union’s business man-
ager, commenced collective-bargaining negotiations. In
March 1991,3 International Representative Ray Hill joined
the negotiations on behalf of the Union, and Respondent’s at-
torney, Charles Ellis, began taking part in June. Working
from a common draft, the parties reached tentative agreement
in June on a number of noneconomic provisions, including
article II, section 5 which stated:
It is acknowledged and agreed by the parties hereto that
the Company has a contract with the Federal Aviation
Administration and that particular contract (and any ap-
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Brown so testified, while Hill stated that Respondent had agreed
to provide the entire bid. Brown’s account is consistent with Re-
spondent’s documented position throughout the entire negotiations
and is supported by Ellis’ December 11 letter to Motley which
chronicled Respondent’s agreement to provide ‘‘relevant information
. . . to establish that the pending wage offer . . . were the same
rates as FKW bid on the government contract.’’ This chronicle was
not challenged or questioned in Motley’s December 14 response to
Ellis. The limited purpose for which the information was to be pro-
vided is corroborated by Motley’s affidavit: ‘‘to verify their claims
that they were offering wages and benefits in their proposal con-
sistent with this bid.’’ For the foregoing reasons and based on the
demeanor of the witnesses while testifying, I credit Brown’s account.
5 Brown’s testimony to this effect is supported by Ellis’ December
11 letter to Motley.
6 Brown so testified, while Hill denied any commitment to engage
in marathon bargaining. Again, Brown’s testimony was supported by
Ellis’ December 11 letter to Motley which recited an agreement to
‘‘schedule a meeting and meet as long as necessary to reach a col-
lective-bargaining agreement, if possible.’’ Motley’s December 14
reply to Ellis neither questioned nor controverted the recited agree-
ment. For this reason and based on my observation of the demeanor
of both witnesses while testifying, I credit Brown over Hill on this
point.
7 General Counsel does not appear to contend that defendant’s re-
fusal to supply profit or financial information was violative of the
Act.
8 Official notice was taken of the entire record in that proceeding.
plicable laws) for its term or any extensions thereof,
during the term of this Agreement, shall control any
and all provisions of this Agreement.
Although six or seven noneconomic issues were still unre-
solved at this time, the parties turned their attention to the
economic issues.
On July 29, Respondent made a wage and benefit offer to
the Union with the explanation that the offer contained the
same wages and benefits as those in Respondent’s pending
bid for an FAA contract. That offer represented a decrease
in the wages and benefits then being received by Respond-
ent’s employees at the Center. At this and subsequent ses-
sions, the Union requested a copy of Respondent’s bid to the
FAA. Respondent consistently declined to produce the docu-
ment on the ground that the contract had not yet been award-
ed and the bid contained proprietary information.
On September 10, the parties agreed to suspend negotia-
tions until an FAA contract was awarded. They further
agreed that (1) Respondent would notify the Union within 24
hours of the award, (2) Respondent would make available
bid information in order to establish that Respondent’s offer
was consistent with the wages and benefits set forth in its
bid to the FAA,4 (3) the Union would have 7 days to exam-
ine the information,5 and (4) the parties would thereafter en-
gage in ‘‘marathon bargaining’’ in order to reach an agree-
ment.6
Brown received notice that Respondent had been awarded
the FAA contract at 4 p.m. on December 6. He immediately
informed a member of the Union’s bargaining committee of
the award and asked that individual to inform Motley. Brown
also sent Motley a letter by certified mail, which Motley
signed for on December 9. Motley did not open the letter but
left with Hill for a seminar in Dallas. On December 11, Ellis
wrote to Motley iterating the agreements reached on Sep-
tember 10 and urging haste in meeting since the FAA con-
tract was due to be implemented on January 1, 1992. Motley
returned from Dallas on December 13 and, the following
day, wrote Ellis to agree to a negotiating session on Decem-
ber 16.
On December 16, Motley and his bargaining committee
(with the exception of Hill) met with Respondent’s represent-
atives. The latter supplied 12 pages of bid information con-
cerning the wages and benefits of electricians at the Center,
and Motley requested (1) the wages of other employees
working for Respondent at the Center; (2) Respondent’s pol-
icy concerning merit wages increases; and (3) Respondent’s
award and bonus fees, i.e., Respondent’s profit, under the
contract. Respondent made a verbal proposal on sick leave
and jury duty, and the parties agreed to meet on December
20. Later that day, Respondent sent the Union a facsimile
which set forth the wages paid other employees at the Cen-
ter.
At the December 20 meeting, Hill requested job descrip-
tions, merit increase procedures, profit information, Respond-
ent’s accounting statement on the FAA contract, and Re-
spondent’s corporate profit-and-loss statement. Respondent
requested additional negotiating sessions on December 21,
23, and 24, but Hill ruled out any meetings before January
6, 1992, in view of the impending holidays and Motley’s va-
cation plans. The session ended without agreement on a date
for further negotiations. Later that day, Ellis wrote Hill sup-
plying the requested job descriptions, noting that the merit
increase information had been supplied on December 16 and
again refusing to supply profit or financial information since
Respondent had never asserted a financial inability to pay the
wages or benefits proposed by the Union.7
On December 30, Respondent announced implementation
of its December 16 wage and benefit offer to the Union.
That offer did, in fact, incorporate the wages and benefits set
forth in the FAA contract.
The parties met again on January 24, 1992, when the
Union made a new economic proposal and an agreement was
reached on jury duty and leaves of absence. The parties then
agreed to suspend further negotiations until the unfair labor
practice charge which is the subject of this proceeding was
resolved.
On June 19, 1992, the Union filed a petition with the
Board in Case 17–RC–10798 to allow it to represent all full-
time and regular part-time operation and maintenance em-
ployees (excluding the electricians) employed at the Center
by Respondent pursuant to the FAA contract.8 The Regional
Director’s decision asserting jurisdiction over Respondent in
that proceeding was adopted by the Board on August 31,
1992, in FKW, Inc., 308 NLRB 598 (1992).
C. Discussion
The FAA is not an ‘‘employer’’ within the meaning of the
Act, 29 U.S.C. § 152(2), and is, therefore, exempt from the
Board’s jurisdiction. It is the Board’s policy to refuse to ex-
ercise jurisdiction over an employer whose contractual rela-
tionship with an exempt entity precludes meaningful bargain-
ing with a labor organization. See Res-Care, Inc., 280 NLRB
670 (1986). Based on this policy, Respondent contends that
the Board should decline to exercise jurisdiction in this case.
This issue is resolved by the finding made by the Regional
Director and adopted by the Board in FKW, Inc., supra,
291FKW, INC.
9 The Center’s Contracting Officer, who appeared as an expert wit-
ness on behalf of General Counsel, credibly testified that, although
Respondent was theoretically free to use its profits to increase em-
ployee compensation, any such payments would be costs subject to
reimbursement under the FAA contract and would therefore violate
the wage provisions of the Contract.
10 Given this holding, I find Respondent’s arguments concerning
waiver to be moot.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
which I conclude to be the ‘‘law of the case’’ regarding ju-
risdiction in this proceeding. See Southern Pac. R.R. v.
United States, 168 U.S. 1, 48–49 (1897). The Board there as-
serted jurisdiction over Respondent because the letter was
able to bargain with the Union in a meaningful manner con-
cerning certain matters which were not controlled by the
FAA contract. Specifically, the Board found that the FAA
contract allowed Respondent sufficient control to permit
meaningful bargaining in the following areas: (1) the discre-
tionary awarding of incentive pay, as opposed to wage levels
which were established by the FAA contract; (2) the mix of
insurance benefits, as opposed to the total amount of such
benefits which were set by the contract; and (3) Respond-
ent’s personnel and labor policies. Given the absence of evi-
dence in this proceeding contravening the Board’s earlier
findings, I conclude that the Board has jurisdiction over Re-
spondent in this proceeding.
The Board’s Order in FKW, Inc., supra, also adopts find-
ings that the FAA contract (1) ‘‘specifies the specific wage
rate to be paid employees in each classification,’’ (2) ‘‘speci-
fies that employees receive pension benefits equal to 5% of
their wages,’’ and (3) ‘‘provides for vacation, sick leave and
paid holidays.’’ It is precisely these wages and benefits
which were the subject of Respondent’s December 16 offer
to the Union and which were unilaterally implemented by
Respondent on January 1, 1992. That offer provided the
maximum dollar amount of nonincentive wages and benefits
which might be paid without violating the FAA contract.9 In
sum, I find that Respondent implemented only those terms
and conditions dictated by the FAA contract and thereafter
demonstrated its willingness to negotiate concerning terms
and conditions not controlled by the contract. I further find
that, because Respondent lacked the ability to negotiate con-
cerning the matters prescribed by the FAA contract, its fail-
ure to do so did not constitute a refusal to bargain violative
of the Act.10 To hold otherwise would either require the
Board to modify the contractual relationship between Re-
spondent and an entity over which the Board has no jurisdic-
tion or to unfairly require Respondent to act in violation of
its contract with an exempt entity.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time master electricians,
industrial electricians, and electrician helpers employed by
Respondent at the Mike Moroney Aeronautical Center, Okla-
homa City, Oklahoma, but EXCLUDING, all other employ-
ees including Q.A. specialists, master industrial HVAC, jour-
neymen HVAC, helper HVAC, boiler mechanics/pipefitters,
mill wrights and helpers, journeymen carpenters, master
plumbers and helpers, painters and helpers, elevator mechan-
ics and helpers, fire suppression technicians, pest control
technicians, laborers, maintenance trade helpers, water treat-
ment specialists, electronics technicians, CCMS team leader,
CCMS operators, CCMS surveillance employees, warehouse
team leader, computer programmer/analyst, computer hard-
ware technician, O&M electromechanical technicians, equip-
ment mechanics, preventative maintenance employees, tele-
communications manager, office clerical employees, guards
and supervisors, as defined in the Act, constitute a unit ap-
propriate for bargaining within the meaning of Section 9(b)
of the Act.
4. A preponderance of the evidence does not establish that
Respondent violated the Act.
On these findings of fact and conclusions of law and on
the entire record I issue the following recommended11
ORDER
The complaint issued on June 19, 1992, against FKW, In-
corporated, Oklahoma City, Oklahoma, is dismissed.