Air Exp. Intern. Corp. v. N.L.R.B.

• Decision Date: 19 October 1981
• Docket Number: No. 79-3776,79-3776
• Citation: 659 F.2d 610
• Parties: 108 L.R.R.M. (BNA) 2795, 92 Lab.Cas. P 13,041 AIR EXPRESS INTERNATIONAL CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 610

659 F.2d 610

108 L.R.R.M. (BNA) 2795, 92 Lab.Cas. P 13,041

AIR EXPRESS INTERNATIONAL CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 79-3776.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Oct. 19, 1981.

Guggenheimer & Untermyer, Jerold D. Jacobson, Fred Kolikoff, New York City, for petitioner-cross respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, Diana Orantes Ceresi, NLRB, Washington, D. C., for respondent-cross petitioner.

On Petition for Review and Cross-Application for Enforcement of an Order of The National Labor Relations Board.

Before GODBOLD, Chief Judge, MORGAN and HENDERSON, Circuit Judges.

GODBOLD, Chief Judge:

Air Express International ("AEI") seeks to set aside the Board's order entered against it, and the Board seeks enforcement.

AEI is engaged in the business of air freight forwarding. Until February 9, 1978 its plant serving Atlanta's airport was located in East Point, Georgia. February 10, 1978 AEI acquired nationwide all of Trans-Air Freight System, Inc.'s ("Trans-Air") air freight forwarding business and moved its own Atlanta operation to Trans-Air's Atlanta facility located seven to 10 miles away in contiguous College Park, Georgia, consolidating the two Atlanta operations.

Just two months prior to this move Truckdrivers and Helpers Local Union No. 728 ("the union") was certified as the collective bargaining representative for the nonsales personnel at AEI's East Point facility. ¹ Trans-Air's College Park facility was not unionized.

This controversy centers on AEI's decision to transfer only three of its East Point nonsales personnel to the new College Park facility, thereby discharging five members of the East Point bargaining unit, and AEI's refusal to recognize the union as the representative of the College Park employees. Also at issue is the discharge of a sixth East Point employee prior to the move, the alleged failure of AEI to bargain in good faith with the union over the effects of the move, and AEI's alleged acts of interrogation, threats of reprisal, promises of benefit, solicitation of employees not to engage in union activity or to give testimony to the Board, and creation of the impression of surveillance. An administrative law judge ("ALJ") found against AEI on virtually all charges and recommended that AEI be ordered to cease and desist from the various violations of §§ 8(a)(1), (3), and (5) of the National Labor Relations Act ("the Act"), 29 U.S.C. §§ 158(a)(1), (3) and (5), that he had found, to offer reinstatement and back pay to the six discharged East Point employees, and to post the usual notice. The Board affirmed the ALJ's findings in all particulars except one, ² adopted the recommended order (with minor variations), and rejected AEI's contention that it had been prejudiced by any bias of the ALJ.

I.

We focus first on the discharged employees. AEI contends that the five East Point employees who were not transferred to the new College Park facility were terminated ³ because it was decided as a business matter that the company needed to break up one of the employee groups and the employees of the less profitable operation should be let go with the hope that Trans-Air's more profitable customers would be retained. ⁴ Thus AEI argues that it had no illegal motive, or if there were such a motive that it would have made the same decision regardless. The Board found to the contrary. Its decision is based on substantial evidence . First, there is direct testimony by a former AEI sales employee that Frank O'Rorke, AEI's district manager stationed at East Point, told her over a series of conversations that the company was not going to allow the union in Atlanta, that it was going to get rid of the employees who voted for the union, and that "those guys ... cut their throats" by bringing in the union. Second, circumstances speak as loudly as these words. Of the three East Point employees retained after the move one was the station manager, one was a vocal anti-union advocate, and the third was the replacement for Nella Ree Dunn, the employee who had been discharged prior to the move. By contrast, the five employees not transferred included all of the acknowledged union organizers and supporters at the East Point facility. Elsewhere in the country when AEI consolidated its operations with Trans-Air's not a single AEI employee was discharged except for two part-time workers. We have no difficulty in holding that the Board correctly found that these terminations violated § 8(a)(3) of the Act and in enforcing the orders of reinstatement and back pay.

We also enforce the Board's decision as it relates to Nella Ree Dunn. Dunn was secretary to district manager Frank O'Rorke. She was fired July 11, 1977, two and one-half weeks before the election, because O'Rorke suspected her of being the source of leaks of salary information that were causing dissension among the employees. Later, O'Rorke asserted as additional grounds for Dunn's dismissal her incompetence and slow business. The Board found these reasons to be disingenuous. There was no direct evidence that Dunn was responsible for the leaks, they took place well before Dunn's discharge, and salary information was commonly known and was not as a general rule kept in confidence. The later asserted grounds were found to be pretextual. Thus, the Board concluded that the real reason for Dunn's discharge was that O'Rorke suspected her of supporting the union. The evidence is substantial.

In its reply brief AEI raises for the first time the argument that Dunn is not protected by the Act because she is a confidential secretary. Without deciding the validity of this legal contention, ⁵ we hold that the ALJ correctly found Dunn not to be a confidential secretary. O'Rorke testified that June 8, the day he received the union's election petition, all confidential duties that Dunn might have had were withdrawn from her. Thus, at the time of her discharge one month later Dunn's position was admittedly non-confidential.

II.

AEI hotly contests the order directing it to bargain with the union at its College Park facility. The Board based this order on two alternative grounds: first, that the certification obtained December 14, 1977 at the East Point facility covered the College Park employees once AEI transferred its operations there February 10, 1978; second, that a Gissel ⁶ order was warranted because of the severity of AEI's illegal opposition to the union.

A Gissel bargaining order is typically invoked when a union that has only informal evidence of majority status is refused recognition; the order issues because a formal election either fails or is likely to fail because of the company's commission of unfair labor practices. Bargaining orders are also appropriate where recognition is withdrawn from a union that has been formally certified as the representative of a bargaining unit. See Peoples Gas System, Inc. v. NLRB, 629 F.2d 35, 46-48 (D.C.Cir.1980) (discussing the distinction). Certification carries with it an entitlement to one year's presumptive majority status, a presumption irrebuttable absent "unusual circumstances." Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954); NLRB v. Auto Ventshade, Inc., 276 F.2d 303 (5th Cir. 1960). If an employer fails to honor properly a union's certification, then a non-Gissel bargaining order may issue to enforce the certification. See e. g., NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 278-81, 92 S.Ct. 1571, 1577-79, 32 L.Ed.2d 61 (1972); NLRB v. Louisiana Bunkers, Inc., 409 F.2d 1295 (5th Cir. 1969). If the East Point certification extends to the College Park facility, then this is a withdrawal of recognition (non-Gissel ) case. If not, then College Park is uncertified and we have a refusal of recognition (Gissel ) case.

A union certification applies to the intangible construct known in labor parlance as a "bargaining unit" (or simply "unit"). A unit enjoys the ephemeral attributes of not being rigidly defined by any fixed location, size, or composition of personnel. Thus, the relocation of a unit, an increase or decrease in the size of a unit, or a complete turnover within a unit alone does not require a finding that a once-certified unit has ceased to exist. See Louisiana Bunkers, Inc., 409 F.2d at 1298-99 (relocation); NLRB v. King Radio Corp., 510 F.2d 1154, 1156-57 (10th Cir.), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975) (increase); NLRB v. Middleboro Fire Apparatus, Inc., 590 F.2d 4, 8 (1st Cir. 1978) (decrease); NLRB v. Leatherwood Drilling Co., 513 F.2d 270, 273 (5th Cir. 1970), cert. denied, 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975) (turnover). But as with other metaphysical categories, these mutations by degree, if severe enough, shade into mutations by kind, and may result in eradication of a unit. In such cases, where changes in the characteristics of a unit result in its being classified as either a different unit or a nonunit, "unusual circumstances" have occurred so that a company is justified in withdrawing recognition from a union during the first year of certification. See Brooks v. NLRB, 348 U.S. at 98-99, 75 S.Ct. at 178 (unusual circumstances include radical fluctuation of unit size in a short time). The courts give a wide degree of discretion to the Board in its determinations of the composition and definition of units. E. g., Vicksburg Hospital, Inc. v. NLRB, 653 F.2d 1070 at 1074-75 (5th Cir. 1981); NLRB v. Foodway, 496 F.2d 117, 119 (5th Cir. 1974) (arbitrary and capricious standard); NLRB v. Baton Rouge Water Works, 417 F.2d 1065 (5th Cir. 1969) (same).

With these principles in mind, we examine the facts to determine whether the College Park unit is a continuation of the East Point unit. AEI first contends that certification does not extend to College Park because a single-plant unit is no longer...