Airport-Shuttle Cincinnati, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1981

257 N.L.R.B. 955 (N.L.R.B. 1981)

AIRPORT-SHUTTLE CINCINNATI, INC.
Airport-Shuttle Cincinnati, Inc. and Soft Drink
Drivers & Helpers, Vending Drivers & Allied
Workers & Employees Local 152, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 9-CA-16344
August 25, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on January 20, 1981, by Soft
Drink Drivers & Helpers, Vending Drivers &
Allied Workers & Employees Local 152, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union, and duly served on
Airport-Shuttle Cincinnati, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 9, issued a complaint on March 4, 1981,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 and complaint and notice of
hearing before an administrative 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 May 14,
1980, following a Board election in Case 9-RC-
13149, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about December
11, 1980, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it do so. On March 13,
1981, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint, and raising an affirmative
defense.
On March 31, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on April 7,
1981, the Board issued an order transferring the
'Official notice is taken of the record in the representation proceeding,
Case 9-RC-13149, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosysems 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); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
257 NLRB No. 31
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
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 Respondent
admits that the unit is appropriate and that the
Union was certified as the collective-bargaining
representative of the unit employees, but it denies
that the Union has been and is the exclusive repre-
sentative of the employees in the unit. Respondent
admits that by letter received by Respondent on
December 10, 1980, the Union requested collective
bargaining with Respondent. It further admits that
on or about December 11, 1980, it refused,2 and
continues to refuse, to bargain collectively in good
faith with the Union as the exclusive collective-bar-
gaining representative of the employees in the unit
by refusing to recognize, to meet, or to negotiate
with the Union with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment. Respondent denies that it vio-
lated Section 8(a)(1) and (5) of the Act. In its re-
sponse to the Board's Notice To Show Cause Re-
spondent asserts that it refused to bargain because
there exists unusual circumstances which warrant a
hearing, because the Board departed from official
precedent in holding that the challenges to the bal-
lots of employees Laura S. Reichert, Carolyn
McNew, and Debra Strunk be sustained, and be-
cause the Board's certification of the Union was
improper. Review of the record herein, including
the record in Case 9-RC-13149, reveals that on or
about December 6, 1979, Respondent and the
Union entered into a Stipulation for Certification
Upon Consent Election in a unit of all full-time and
part-time employees of Respondent at and working
out its location at the Greater Cincinnati Airport,
Erlanger, Kentucky, including drivers, counter per-
sons and maintenance persons, but excluding office
clerical employees and all professional employees,
guards and supervisors as defiend in the Act.
2 The complaint also alleged, and Respondent denied, that the Union
requested bargaining on September 15, 1980. Respondent admitted that it
refused to bargain on December 11, 1980, and in his Motion for Sum-
mary Judgment the General Counsel sets forth December I 1, 1980, as the
date of Respondent's refusal to bargain. Since Respondent admits that it
refused to bargain on that date there is no factual issue as to when the
violations occurred.
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, on December 20, 1979, the em-
ployees in the unit voted in an election for the pur-
pose of selecting a collective-bargaining representa-
tive. The tally of ballots showed 18 votes cast for,
and 17 cast against, the Union, and 4 challenged
ballots, a sufficient number to affect the results of
the election. On December 31, 1979, the Union
filed timely objections to conduct affecting the re-
sults of the election, alleging in substance that Re-
spondent interfered with the employees' free
choice in the election. On February 6, 1980, the
Regional Director issued a "Report on Challenged
Ballots, Objections to Election and Recommenda-
tions" to the Board wherein, inter alia, he ap-
proved the Union's request to withdraw the objec-
tions in their entirety. At the same time, the Re-
gional Director recommended that the four chal-
lenged ballots he sustained, that they not be opened
and counted, and that the Union be certified. On
May 14, 1980, the Board found no merit in Re-
spondent's exceptions to the Regional Director's
recommendations to sustain the challenges to the
ballots of Reichert, McNew, and Strunk, and to
certify the Union as the exclusive bargaining repre-
sentative of all the employees in the unit.3 By letter
received by Respondent on December 10, 1980, the
Union requested Respondent to bargain. On De-
cember 11, 1980, and at all times thereafter, Re-
spondent admittedly has refused, and continues to
refuse, to recognize and to bargain collectively in
good faith with the Union as the exclusive collec-
tive-bargaining representative of the employees in
the unit.
It is well settled that in the absence of newly dis-
covered or previously unvailable 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 proceeding. 4
In its brief in opposition to the Motion for Sum-
mary Judgment Respondent contends for the first
time that "unusual circumstances" exist which war-
rant its refusal to bargain, or alternatively a hearing
in this proceeding. Respondent asserts that a "disaf-
fection" petition signed by 70 percent of the unit
employees and the Union's "total inactivity" fol-
lowing the election in December 1979 and the cer-
tification in May 1980 constitute the "unusual cir-
cumstances." Respondent also asserts that the
Union rendered no apparent input or assistance to
employees who filed unfair labor practice charges
3 In the absence of exceptions the Board adopted, pro forma, the Re-
gional Director's recommendation to sustain the challenge to the ballot of
Silas George Sharp.
' See Pittsburgh Plate Glass Co. v. N.L.R.B.. 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f and 102.69(c).
in June and July 1980, 5 and that Respondent was
not informed of the appointment of a steward, any
grievances, potential strikes, or handbilling and re-
ceived no wage demands from the Union. Re-
spondent further asserts that there "appears to be
other factual issues based upon other facts which
can only be presented at a hearing."
We find no merit in Respondent's contention that
it has no obligation to bargain with the Union be-
cause a majority of the unit employees allegedly
signed a disaffection petition indicating dissatisfac-
tion with the Union. It is well settled that absent
unusual circumstances an employer is required to
honor a certification for a period of 1 year.6 Em-
ployee disenchantment with the certified repre-
sentative during the certification year does not
excuse an employer from its obligation to bargain
during the certification year, absent unusual cir-
cumstances. The fact that the Union may not have
contacted Respondent until December 10, 1980,
following its certification on May 14, 1980, is not
such an "unusual circumstance."' Respondent also
asserts that there are other facts which warrant a
hearing, but it does not state what those facts are,
nor has it proffered any evidence to warrant a
hearing. Accordingly, we find no merit in Re-
spondent's affirmative defense.
All other issues raised by Respondent in this pro-
ceeding were or could have been litigated in the
prior representation proceeding, and Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence
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, a Delaware corporation, is engaged
in ground transportation at its location at the
Greater Cincinnati Airport, Erlanger, Kentucky.
During the past 12 months, a representative period,
Respondent had a gross volume of business in
excess of $250,000. During the same period of time,
Respondent purchased and received goods and ma-
I Respondent implies that it has no knowledge of this "inactivity." In
any event its knowledge or lack of knowledge of input or assistance by
the Union in the filing of charges by employees is completely irrelevant
to the issue of whether it violated Sec. 8(a)(5) of the Act.
6 Brooks v. N.L. R.B., 348 U.S. 96 (1954), and cases cited therein.
'Ibid.
956
AIRPORT-SHUTTLE CINCINNATI, INC.
terials valued in excess of $50,000 which were
shipped to its Erlanger, Kentucky, facility directly
from points outisde the State of Kentucky.
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
Soft Drink Drivers & Helpers, Vending Drivers
& Allied Workers & Employees Local 152, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
III. 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 full-time and part-time employees of Re-
spondent at and working out of its location at
the Greater Cincinnati Airport, Erlanger, Ken-
tucky, including drivers, counter persons and
maintenance persons, but excluding office
clerical employees and all professional employ-
ees, guards and supervisors as defined in the
Act.
2. The certification
On December 20, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 9, 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 May 14, 1980, 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 December 10, 1980,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about December 11, 1980, 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
December 11, 1980, 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 Airport-Shuttle Cincinnati, Inc.,
set forth in section III, above, occuring in connec-
tion with its operations described in section I,
above, have a close, intimate, and substantial rela-
tionship 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 commerce.
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 insure 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. Airport-Shuttle Cincinnati, Inc., is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
957
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Soft Drink Drivers & Helpers, Vending Driv-
ers & Allied Workers & Employees Local 152, af-
filiated with International Brotherhood of Team-
sters, Chauffuers, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and part-time employees of Re-
spondent at and working out of its location at the
Greater Cincinnati Airport, Erlanger, Kentucky,
including drivers, counter persons and maintenance
persons, but exlcuding office clerical employees
and all professional employees, guards and supervi-
sors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since May 14, 1980, 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 December 11, 1980,
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.
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,
Airport-Shuttle Cincinnati, Inc., Erlanger, Ken-
tucky, 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 Soft Drink Drivers
& Helpers, Vending Drivers & Allied Workers &
Employees Local 152, affiliated with International
Brotherhood of Teamsters, Chauffuers, Warehouse-
men and Helpers of America, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All full-time and part-time employees of Re-
spondent at and working out of its location at
the Greater Cincinnati Airport, Erlanger, Ken-
tucky, including drivers, counter persons and
maintenance persons, but excluding office
clerical employees and all professional 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 facility in Erlanger, Kentucky,
copies of the attached notice marked "Appendix."s
Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
8 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Soft Drink Drivers & Helpers, Vending
958
AIRPORT-SHUTTLE CINCINNATI, INC.
Drivers & Allied Workers & Employees Local
152, affiliated with International Brotherhood
of Teamsters, Chauffuers, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees 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 agreeement. The bargaining unit is:
All full-time and part-time employees of the
Employer at and working our of its location
at the Greater Cincinnati Airport, Erlanger,
Kentucky, including drivers, counter per-
sons and maintenance persons, but excluding
office clerical employees and all profesional
employees, guards and supervisors as de-
fined in the Act.
AIRPORT-SHUTTLE CINCINNATI, INC.
959