INTERNATIONAL ASS'N OF MACH. & AERO. WKRS. v. NLRB

• Decision Date: 07 May 1974
• Docket Number: No. 73-1231,73-1501.,73-1231
• Citation: 498 F.2d 680
• Parties: INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Atlantic Technical Services Corp., Intervenor. ATLANTIC TECHNICAL SERVICES CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

498 F.2d 680 (1974)

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Atlantic Technical Services Corp., Intervenor.

ATLANTIC TECHNICAL SERVICES CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor.

Nos. 73-1231, 73-1501.

United States Court of Appeals, District of Columbia Circuit.

Argued March 7, 1974.

Decided May 7, 1974.

Bernard Dunau, Washington, D. C., with whom Plato E. Papps, Washington, D. C., was on the brief, for petitioner in No. 73-1231 and intervenor in No. 73-1501.

Leo P. Rock, Jr., Tampa, Fla., for petitioner in No. 73-1501 and intervenor in No. 73-1231.

Joseph C. Thackery, Atty., N. L. R. B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, and Robert Sewell, Atty., N. L. R. B., were on the brief, for respondent.

Before HASTIE,^* Senior Circuit Judge, and WRIGHT and ROBB, Circuit Judges.

HASTIE, Senior Circuit Judge:

This controversy and the National Labor Relations Board order we now review arose out of the refusal of an employer to bargain with a union.

On April 1, 1971, under a contract with the National Aeronautics and Space Administration, Atlantic Technical Services (ATS) commenced performance of mail and freight distribution services at Kennedy Space Center. Trans World Airways (TWA), the contractor which had performed these services for seven years prior thereto, had recognized the International Association of Machinists and Aerospace Workers (the Union) as the representative of its employees, including those who constituted the mail distribution service force. Terms and conditions of employment were controlled by a labor contract between TWA and the Union.

The record shows, and the administrative law judge found, that ATS thought it important to retain as many incumbent employees as possible, and wanted and offered to hire all of them. Shortly after the award of a new contract to ATS was announced, TWA helped ATS to set up interviews with the incumbent employees. There is no finding or evidence that anyone other than incumbents was informed of or invited to attend these interviews. At the interviews, and apparently before ATS offered positions, ATS officials advised the incumbents that fringe benefits under ATS would have to be substantially less than they had been under TWA. Of the 41 incumbents, 27 accepted the ATS offer. The positions of the 14 who declined were filled pursuant to applications solicited from the general public.

The administrative law judge ruled that ATS was obligated to bargain with the Union concerning initial terms of employment on takeover. However, the Board held that the duty to bargain arose only on April 9, as a result of an employer conducted poll of employees on that date which disclosed majority adherence to the Union. In reaching this result the Board ruled that ATS was not a "successor employer", and hence could have no obligation to the Union under the "successor" doctrine as discussed and construed in N. L. R. B. v. Burns Int'l Security Services, Inc., 1972, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61. Accordingly, the Board ordered no retroactive relief or "make whole" remedy.

On petition for review, the Union contends that the action of ATS in rejecting collective bargaining and unilaterally changing terms and conditions of employment when it took over the mail distribution operation and work force was an unfair labor practice, a refusal "to bargain collectively with the representatives of his employees" within the meaning of section 8(a)(5) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(a)(5). As a remedy, the Union asks that the employees be made whole for dimunition of fringe benefits, retroactively to April 1, 1971.

Also before us is the Board's application for enforcement of its order that from now on the employer must recognize and bargain with the Union. ATS opposes the granting of any relief.

We have no doubt that ATS became obligated to bargain with the Union when its own poll disclosed union adherence by a majority of its employees. N. L. R. B. v. Sehon Stevenson & Co., Inc., 4th Cir. 1967, 386 F.2d 551; N. L. R. B. v. Nelson Mfg. Co., 6th Cir. 1964, 326 F.2d 397; Nation-Wide Plastics Co., Inc., 1972, 197 NLRB No. 136. A more substantial question is whether, as the Union contends, ATS was obligated to bargain with it over whatever changes in terms and conditions of employment this new employer contemplated upon takeover of the operation.

It is not contended that the TWA labor contract survived as such after April 1, when ATS, an unrelated entrepreneur, became the new employer of the mail service and distribution force. For a duty to bargain with the Union to survive the takeover there should be some significant indication that a majority of the employees concerned desired that the Union bargain for them collectively.¹

In many situations the fact that a union has represented a group of employees in the past serves as a basis for a presumption of continuing employee adherence to it. But if the circumstances of a particular case destroy the logical basis without which...