Four Winds Services

National Labor Relations Board - Board Decisions

Apr 10, 1998

325 N.L.R.B. 632 (N.L.R.B. 1998)

632
325 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument The request is de-
nied as the record, exceptions, and brief adequately present the
issues and the positions of the parties.
2 In finding that the Board has jurisdiction over the Respondent,
the judge inadvertently failed to state the following facts which were
admitted by the Respondent in its answer to the complaint. The Re-
spondent, a corporation with an office in Oklahoma City, Oklahoma,
provides maintenance services to Federal Government agencies, in-
cluding the Federal Aviation Administration (FAA). Its 1997 con-
tract with the FAA to perform maintenance and repair services at the
Mike Monroney Aeronautical Center is valued in excess of $50,000
per year.
3 We shall modify the judge’s recommended Order in accord-
ance with our decision in Excel Container, Inc., 325 NLRB 17
(1997).
Four Winds Services, Inc. and International Broth-
erhood of Electrical Workers, Local Union
1141, AFL–CIO. Case 17–CA–18977
April 10, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On December 2, 1997, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.1
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 brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
We agree with the judge that the Respondent did not
carry its burden of showing that the historical elec-
tricians unit is no longer appropriate simply because
the wages and benefits of some unit members are gov-
erned by the Davis-Bacon Act and others are not. Such
differences in compensation rates do not destroy a
community of interest among employees and would
not require that they be in separate units. Banknote
Corp. of America, 315 NLRB 1041, 1043 (1994), enfd.
84 F.3d 637 (2d Cir. 1996). See also Borden, Inc., 308
NLRB 113, 115 (1992), enfd. 19 F.3d 502 (10th Cir.
1994), cert. denied 513 U.S. 927 (1994) (noting the
widespread existence of dual-tier pay structures for
employees doing the same work in the same unit).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Four
Winds Services, Inc., Oklahoma City, Oklahoma, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Substitute the following for paragraph 2(b).
‘‘(b) Within 14 days after service by the Region,
post at its Oklahoma City, Oklahoma office, at the
FAA’s Mike Monroney Aeronautical Center, copies of
the attached notice marked ‘Appendix.’4 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained by it for 60 consecutive days
in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed the facility involved in this proceed-
ing, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since January 2, 1997, the date
of the unfair labor practice.’’
Rufus L. Warr, Esq., for the General Counsel.
Charles W. Ellis, Esq. (Lawrence & Ellis), of Oklahoma
City, Oklahoma, for the Respondent.
Bill J. Motley, Business Manager (IBEW Local 1141), of
Oklahoma City, Oklahoma, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
successorship case. Resolution turns on whether the certified
bargaining unit recognized by the predecessor, FKW, Inc.,
has been shown to be no longer appropriate when Respond-
ent Four Winds Services, Inc. (Four Winds), as the success-
ful bidder for the work involved, took over the work effec-
tive January 1, 1997. Finding the answer to be no, and that
the unit therefore was appropriate at all times, I find that
Four Winds, as FKW’s successor, violated Section 8(a)(5) of
the Act by refusing, on January 2, 1997, to recognize and
bargain with the Union. I order Four Winds to recognize and
bargain with the Union.
I presided at this 2-day trial, March 17–18, 1997, in Okla-
homa City, Oklahoma. Trial was pursuant to the February
25, 1997 order consolidating cases, consolidated complaint,
and notice of hearing (complaint) issued by the General
Counsel of the National Labor Relations Board through the
Acting Regional Director for Region 17 of the Board.
The complaint is based on charges which the Union
(IBEW Local 1141) had filed against FKW (Cases 17–CA–
18563 and 17–CA–18969) (filed from February 9, 1996, to
January 9, 1997) and against Four Winds (Case 17–CA–
18977) (filed and served January 16, 1997). On March 17,
1997, shortly before I opened the record in this proceeding,
and based on an indicated settlement, the Acting Regional
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633FOUR WINDS SERVICES
1 References to the two-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Coun-
sel’s and RX for Respondent Four Winds.
2 As I have suggested, demeanor is not an issue. All witnesses tes-
tified with apparent sincerity.
Director severed the two FKW cases by his order (GCX 5)
dated March 17, 1997.1
The pleadings establish that the Board has both statutory
and discretionary jurisdiction over Four Winds, that Four
Winds is a statutory employer, and that IBEW Local 1141
is a statutory labor organization. They further establish that,
by letter dated December 31, 1996 (GCX 3), the Union re-
quested that Four Winds recognize and bargain with it as the
exclusive bargaining representative of employees in the bar-
gaining unit (a unit of electricians). By letter dated January
2, 1997 (GCX 4), Four Winds denied the Union’s request on
the basis of doubt that the Union represented a majority of
employees in any appropriate unit.
In the Government’s complaint, the General Counsel al-
leges that, since January 2, 1997, Four Winds has violated
Section 8(a)(5) and (1) of the Act by failing and refusing to
bargain with the Union as the collective-bargaining rep-
resentative of the employees in the bargaining unit. The com-
plaint actually alleges both a violation of Section 8(a)(1) and
(5) based on the refusal to recognize and bargain. Admitting
the fact, but denying any violation, Four Winds avers that its
refusal was legally justified. As no independent 8(a)(1) con-
duct is alleged, the 8(a)(1) alleged is merely derivative of the
8(a)(5), as in 8(a)(5) and (1). Flannery Motors, 321 NLRB
931 at 931 (1996).
The situs involved here is the Will Rogers World Airport
at Oklahoma City, Oklahoma, and, specifically, the FAA’s
Mike Monroney Aeronautical Center (the Center) located on
the west side (2:105) of the airport’s property.
For witnesses the General Counsel called Bill J. Motley,
the Union’s business manager; Kirk Thrasher, a lead elec-
trician employed by Four Winds, and Stanley W. Houser, an-
other electrician employed by Four Winds. The General
Counsel then rested. (1:80.) Four Winds recalled Motley,
briefly, and then called Travis Brown, Four Winds’ project
manager at the Center, and Denis M. Carson, Four Winds’
general manager. Four Winds then rested. (2:173.) For a
brief rebuttal, the General Counsel recalled Business Man-
ager Motley. There was no surrebuttal.
No material facts (as to incidents, conversations, or the
like) are disputed. Portions of the testimony relate to asserted
provisions, interpretations, or applications of the Davis-
Bacon Act and the Service Contract Act, and there is some
dispute about such matters. Much of such testimony is in the
form of tertiary authority (attended seminars; worked as a
contracting officer or union representative) concerning such
laws, and regulations, interpretations, and procedures by the
Wage-Hour Division of the U.S. Department of Labor. (No
party saw fit to call, as an expert witness, someone from the
Wage-Hour Division to testify.) I attach little weight to what-
ever is contested on such legal matters. Although the parties
lodged no objections to the competency of the witnesses to
expound on these subjects, that does not bind the Board to
give weight to such expoundings.
On the entire record, including my observation of the de-
meanor of the witnesses,2 and after consideration of the
briefs filed by the General Counsel and Four Winds, I make
these:
FINDINGS OF FACT
A. Background
The parties stipulated (1:9–10) that, from 1986 to Decem-
ber 31, 1996, FKW had a contract with the FAA to provide
facility maintenance at the Center (Mike Monroney Aero-
nautical Center) in Oklahoma City. The Center, situated on
900 acres on the west side of the airport, consists of 16
major buildings and 26 smaller buildings containing some 4
million square feet of usable office space. (2:105, Brown.)
The FAA’s mission there is to train air traffic controllers and
aviation accident investigators. Records of all pilots are
maintained and stored there. (2:105–106.) The Center’s
buildings are used mainly as training facilities for air traffic
controllers. (2:105.) The airplanes and airport terminal, of
course, are not included. (1:74–75, Thrasher.) Nearly all the
maintenance work applies to the interior of the buildings.
The city of Oklahoma City maintains the buildings’ exterior.
(2:123, Brown.) In 1990 the Union filed a petition, docketed
as Case 17–RC–10512, to represent FKW’s electricians. An
election was held on June 27, 1990, and on July 5, 1990, the
Acting Regional Director issued a Certification of Represent-
ative (GCX 2) certifying the Union as the exclusive collec-
tive-bargaining representative of FKW’s employees in the
following appropriate unit:
All full time and regular part-time master electricians,
industrial electricians and electrician helpers employed
by the Employer at the Mike Monroney 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 suppression technicians, pest control technicians, la-
borers, maintenance trade helpers, water treatment spe-
cialists, electronics technicians, CCMS team leader,
CCMS operators, CCMS surveillance employees, ware-
house team leader, computer programmer/analyst, com-
puter hardware technician, O&M electromechanical
technicians, equipment mechanics, preventive mainte-
nance employees, telecommunications manager, office
clerical employees, guards and supervisors, as defined
in the Act.
Bargaining commenced, and some 40 to 50 meetings were
held, but no contract was ever concluded. (1:39, 52.) In 1992
a 1-day trial was conducted on a complaint alleging a refusal
to bargain. Initially the complaint was dismissed. FKW, 314
NLRB 289 (1994). When the District of Columbia Circuit
Court of Appeals vacated the Board’s order, the Board, on
remand, found a violation. FKW, 321 NLRB 93 (1996).
While the litigation was pending, the parties agreed to sus-
pend negotiations. (1:51–52, Motley.)
At a meeting about October 1996, after negotiations had
resumed, FKW’s attorney and Travis Brown, FKW’s contract
negotiators, informed the Union’s Bill Motley that FKW was
no longer eligible to bid on the upcoming maintenance con-
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634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tract, and that another contractor would take over. (1:47.)
Eventually, in December, Motley learned from Denis Carson
that Four Winds (the new contractor) would be represented
by (FKW’s) Attorney Charles W. Ellis. (1:48.) Carson con-
firmed that employment applications for Four Winds had
been distributed at FKW. (1:48–49.) On December 6, 1996,
Carson testified (2:160), Four Winds was awarded the main-
tenance contract.
Lead electrician Kirk Thrasher testified that, at a general
meeting of all FKW employees (an ‘‘all hands’’ meeting) in
December 1996, Travis Brown told assembled employees
that Four Winds had been awarded the contract, and that
FKW and JWK (another contractor) would be subcontractors,
with FKW handling the automated warehouse, JWK handling
the preventive maintenance (PM) program, and everyone else
working for Four Winds. (1:56–57.) Around that time, appar-
ently, FKW supervisors, as Thrasher recalls, distributed ap-
plications for employment with Four Winds. (1:58, 70.) Ef-
fective January 1, 1997, Four Winds became the new mainte-
nance contractor. (1:58; 2:132.)
B. Operation of the Maintenance Contract
1. General
Under the contract, FAA permits an employee complement
of 87 full-time employees plus some temporaries. The total
employee complement is around 100. They belong to various
crafts, including HVAC (heating, ventilation, and air condi-
tioning), carpenters, plumbers, elevator mechanics, and oth-
ers, plus the electricians. (2:133; RX 6.) As an organization
chart in evidence (RX 6) shows, Four Winds employs about
half the full-time employees, with the 2 subcontractors (FKW
and JWK) employing the other half, and Four Winds em-
ploying some 2 dozen temporary employees, for a total of
slightly over 100.
Travis Brown, Four Winds’ project manager for the con-
tract at the Center, had held that same position with FKW
for 7 or 8 years. (2:104–105, 156–157). Most all the man-
agers and supervisors under him also came over from FKW,
and usually to the same position that they occupied at FKW.
In late December 1996, the bargaining unit involved here
consisted of all the electricians (about 15) employed by
FKW. The electricians, and all the other crafts, were as-
signed to functional departments. Of the 15 electricians, 8
were in Building Support and 4 were in Environmental Serv-
ices. These 12 were hired by Four Winds effective January
1, 1997. (1:58–59, 79.) Two electricians were on the pm
crew, and on January 1 they went to JWK, the subcontractor.
(1:79, Houser.) The 15th electrician worked in the automated
warehouse and telecommunications department, and he re-
mained with FKW. (1:79–80.) Four Winds hired four addi-
tional electricians (who were not at FKW) in Building Sup-
port since January 1. (1:59–61, Thrasher.) However, these
may have been temporaries, for the chart (RX 6), as con-
firmed by Brown (2:110–111), lists only six full-time elec-
tricians. Thrasher’s current number of 12 to 13 (1:71) adds
up, however, when the 7 temporaries listed (RX 6) are added
to the number of full-time electricians in Building Support.
Under both FKW and Four Winds, the functions of the
Building Support department and Environmental department
(Four Winds denominates it the Environmental Branch, RX
6) remain the same, as does the work of the electricians. As
Thrasher testified (1:58, 61, 73), ‘‘Our work has not
changed.’’ Building Support is concerned with remodeling of
the interior of the buildings. For example, if the Center wants
walls moved to reconfigure offices, the electricians will be
only one of several crafts involved in that project. Thus,
work of these crafts is coordinated and planned in advance.
(1:65–67, Thrasher; 2:118–119, 122, Brown.) By contrast,
the separately supervised Environmental electricians perform,
as they did with FKW, the ‘‘trouble shooting.’’ (1:65, 69, 71;
2:119–120.) ‘‘Trouble calls,’’ as the term implies, are about
problems—such as flickering lights (1:69, 78), odors of elec-
trical wires burning (1:78), or problems with noisy lights,
light switches, nonfunctioning sound systems, video screens,
or computer systems (2:119–120). As such description sug-
gests, the Environmental electricians work alone rather than
in conjunction with carpenters or members of the other
crafts. (2:122.) Similarly, the two groups of electricians do
not work together. (2:122, Brown.)
2. After Davis-Bacon imposed
The source of the problem in this case dates to January
1, 1996. Before that date, all FKW’s personnel at the Center
were covered by the Service Contract Act. (2:147, Brown.)
About early to mid-December 1995, the FAA contracting of-
fice informed Project Manager Brown that, beginning Janu-
ary 1, 1996, FKW would have to pay the Davis-Bacon pre-
vailing wage rates to the crafts (including the electricians) in
the Building Support group. (2:110–111, 135, 147–149.)
FKW had no choice but to comply. (2:147–148.) At a subse-
quent bargaining session about July 1996, the Union submit-
ted copies of a maintenance agreement (RX 4) and a con-
struction agreement (RX 5), between another employer and
a different IBEW local, suggesting that they could serve as
models for similar agreements for FKW’s two groups of
electricians. (2:136–137, 154.) No information is given about
any bargaining on the subject, and nothing suggests that the
Union insisted on that suggestion.
The sticking point here appears to be certain differences
which apparently exist in the wage and benefit schemes
under the Davis-Bacon Act and the Service Contract Act.
Wage determinations by the Wage-Hour Division have
issued under both Acts as to the Building Support group
(Davis-Bacon) and as to the Environmental group (Service
Contract), and they have been made a part of Four Winds’
contract with the FAA. (2:155, Brown.) Brown acknowl-
edges, however, that room for some bargaining between the
Union and Four Winds can take place respecting both
groups. (2:156.)
C. Discussion
As one of the cases cited (Br. 13) by Four Winds instructs,
the ‘‘Davis-Bacon rates are a minimum rate, and higher
wage and benefit packages may be, and often are, negotiated
by the contractors and union employees.’’ Operating Engi-
neers Local 571 v. Hawkins Construction Co., 727 F.Supp.
537, 539 (D.Ct. Neb. 1990). And the Service Contract Act
initially looks to any collective-bargaining agreement. Gracey
v. Electrical Workers IBEW Local 1340, 868 F.2d 671 (4th
Cir. 1989).
In short, while some areas of bargaining are restricted, oth-
ers are open. Nothing in the record, or the law, would call
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635FOUR WINDS SERVICES
3 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.
4 If 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.’’
for a finding that the historical bargaining unit of electricians
is inappropriate simply because part of the unit (the majority,
even) is covered by the Davis-Bacon Act, while the remain-
der is covered by the Service Contract Act. The unit as a
whole is covered by the National Labor Relations Act, and
that statute is flexible enough to accommodate other federal
laws. Thus, parties can still meet the requirements of the
Davis-Bacon Act and the Service Contract Act and still reach
a collective-bargaining agreement under the National Labor
Relations Act.
In any event, and contrary to the implication in Four
Winds’ brief (Br. 8), the ‘‘heavy evidentiary burden’’ is on
Four Winds to prove that the historical unit is no longer ap-
propriate, and not on the Government to prove that it re-
mains appropriate. Banknote Corp. of America, 315 NLRB
1041, 1043 (1994), enfd. 84 F.3d 637 (2d Cir. 1996). Four
Winds has not carried that burden here. As Four Winds was
the successor to FKW, and as the historical bargaining unit
at all times has remained an appropriate bargaining unit, it
follows that, by its refusal of January 2, 1997, to recognize
and bargain with the Union respecting the bargaining unit,
Four Winds violated Section 8(a)(5) of the Act, as alleged.
CONCLUSIONS OF LAW
1. As of January 1, 1997, Four Winds Services, Inc. be-
came the successor employer to FKW, Inc. respecting the
employees in the following appropriate bargaining unit:
All full time and regular part-time master electricians,
industrial electricians and electrician helpers employed
by the Employer at the Mike Monroney 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 suppression technicians, pest control technicians, la-
borers, maintenance trade helpers, water treatment spe-
cialists, electronics technicians, CCMS team leader,
CCMS operators, CCMS surveillance employees, ware-
house team leader, computer programmer/analyst, com-
puter hardware technician, O&M electromechanical
technicians, equipment mechanics, preventive mainte-
nance employees, telecommunications manager, office
clerical employees, guards and supervisors, as defined
in the Act.
2. At all times material here, the Union has been and is
the exclusive collective-bargaining representative of the em-
ployees in the bargaining unit.
3. By refusing, since January 2, 1997, to recognize and
bargain with the Union respecting the bargaining unit, Four
Winds has violated Section 8(a)(5) and (1) of the Act.
4. The unfair labor practice found affects commerce with
the meaning of Section 2(6) and (7) of the Act and, unless
permanently enjoined, will continue to do so.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Four Winds Services, Inc., Oklahoma
City, Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Electrical Workers, Local Union
1141, AFL–CIO as the exclusive bargaining representative of
the employees in the appropriate unit described below.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
(b) Within 14 days after service by the Region, post at its
Oklahoma City, Oklahoma office, at the FAA’s Mike
Monroney Aeronautical Center, copies of the attached notice
marked ‘‘Appendix.’’4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 26, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained by it for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed
the facility involved in this proceeding, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by
the Respondent at any time since January 16, 1997, the date
the charge herein was filed and served.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official, on a form provided by the Region, attesting to the
steps that the Respondent has taken to comply.
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636 DECISIONS 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
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with
Electricial Workers IBEW Local 1141 as the exclusive bar-
gaining representative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and condi-
tions of employment for our employees in the bargaining
unit:
All full time and regular part-time master electricians,
industrial electricians and electrician helpers employed
by the Employer at the Mike Monroney 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 suppression technicians, pest control technicians, la-
borers, maintenance trade helpers, water treatment spe-
cialists, electronics technicians, CCMS team leader,
CCMS operators, CCMS surveillance employees, ware-
house team leader, computer programmer/analyst, com-
puter hardware technician, O&M electromechanical
technicians, equipment mechanics, preventive mainte-
nance employees, telecommunications manager, office
clerical employees, guards, and supervisors, as defined
in the Act.
FOUR WINDS SERVICES, INC.
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