International Ass'n of Machinists and Aerospace Workers, AFL-CIO v. N.L.R.B.
| Decision Date | 08 January 1979 |
| Docket Number | No. 75-1056,P,AFL-CI,75-1056 |
| Citation | 193 U.S.App.D.C. 279,595 F.2d 664 |
| Parties | 98 L.R.R.M. (BNA) 2787, 193 U.S.App.D.C. 279, 84 Lab.Cas. P 10,644 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Boeing Company, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mozart G. Ratner, Washington, D. C., with whom Plato E. Papps and Denis F. Gordon, Washington, D. C., were on the brief, for petitioner.
Peter Carre, Atty., N.L.R.B., Washington, D. C., with whom John S. Irving, Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert Sewell, Atty. N.L.R.B Washington, D. C., were on the brief, for respondent.
Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.
Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
Petitioner, International Association of Machinists and Aerospace Workers, AFL-CIO (IAM), complained to the National Labor Relations Board that the Boeing Company, as a successor employer, unlawfully refused to bargain with IAM over the initial terms and conditions of the successor employment. The Board interpreting Supreme Court pronouncements on the subject, 1 concluded that Boeing had no clear plan to incorporate as a majority of its own workforce employees of the predecessor employer 2 a prerequisite to an obligation to bargain with incumbent employees over initial employment terms 3 and the litigation is now before us for review of the decision and order of the Board dismissing IAM's complaint. 4 We accept the Board's construction and application of Supreme Court doctrine on the duty of a successor employer to negotiate with an incumbent union before fixing such terms and accordingly affirm.
For seven years prior to March 31, 1971, Trans World Airlines (TWA), pursuant to contract, performed installation support services for the National Aeronautical and Space Administration (NASA) at the Kennedy Space Center. These services included test support management, plant engineering and maintenance, and logistical functions relating to NASA's utilization of the Center as a principal space-launch site. Since February, 1964, TWA had recognized IAM as the exclusive bargaining representative of the employees performing such services at the Center; and as of March 7, 1971, 1,054 of these employees were covered by an agreement between IAM and TWA for an effective term extending from January 28, 1970, through the end of 1971. The agreement was a company-wide contract encompassing all TWA operations in the Nation and by its terms was governed by the Railway Labor Act. 5
On June 30, 1970, NASA invited bids for an undertaking to furnish essentially the same installation support services as those previously supplied by TWA. 6 The term of the undertaking was to be one year commencing April 1, 1971, subject to extensions for successive one-year terms at NASA's option. In response to the invitations, proposals were submitted to NASA by TWA, Boeing and five other companies. The labor costs specified in Boeing's principal bid were based specifically upon the wage rates and fringe benefits stipulated in its existing national agreement with IAM, which also applied to Boeing's "hardware contracts" with NASA for the Center. 7 These costs were substantially below those set by TWA's preexisting agreement with IAM for the installation support service unit.
NASA's invitation required bidders to explain their recruiting plans, including the "approximate number," by type, of existing employees to be hired. Boeing proposed to acquire 85.6% Of its total work force for the operation from incumbent employees. This figure was derived after computing the number of Boeing employees who would transfer to the operation, the number to be recalled from layoff from Boeing employment in the area, and the number with known talent available in the area for employment. Boeing stated that its staffing proposal "recognize(d) the desirability of retaining incumbent contractor personnel to provide continuity of functional support," 8 and reported that its "analysis indicate(d) that effectiveness and economy can be achieved by retaining experienced and qualified incumbent personnel." 9 Boeing's proposition repeatedly noted a need for continuity and its intent to hire incumbent employees, 10 but observed that "(w)hile the staffing plan is based on retaining approximately 86 percent of the incumbent personnel, (Florida State Employment Service) data indicated that the local labor market is sufficient in both skills and number to provide the staffing requirements of this contract. 11
On November 23, 1970, NASA announced that it had selected Boeing as the party with which it would negotiate a contract to provide the installation support services at the Center. Subsequently, Boeing requested a meeting with IAM to discuss the company's bid, and at the meeting, on December 4, 1970, Boeing emphasized that its proposal to NASA was based on its current "hardware contract" at the Center. At an internal meeting on the next day, IAM officials agreed that they could not accept Boeing's plan to apply its existing contract with IAM to installation support service employees because that would result in a reduction in wages and benefits for such of them as were incumbents. 12 IAM promptly communicated its decision to Boeing and NASA, indicating that IAM would insist on perpetuation of the agreement with IAM and TWA for these employees.
Despite vigorous protests by TWA and IAM, NASA contracted with Boeing for the installation support services on March 11, 1971. On the day following, IAM requested recognition by Boeing and again urged adoption of the TWA-IAM collective bargaining agreement. Boeing replied on March 19 that it recognized IAM as the representative of the employees on the assumption that they would become an accretion to the unit already covered by the Boeing-IAM contract rather than a distinct unit. 13 Boeing predicted that IAM would lack majority representation of the installation and support service workforce, and indicated that the Boeing-IAM contract would be implemented without change.
On April 1, 1971, Boeing began performance of the contract with a workforce of 970, including 380 TWA incumbents, 138 Boeing employees transferred or recalled from layoff, or formerly Boeing personnel 450 outsiders and two employees unidentified as to source. Each hourly employee arriving for work on and after April 1 was given a copy of the Boeing-IAM agreement.
As the Boeing-IAM national agreement was to expire on October 1, Boeing and IAM commenced negotiations on or about August 3, 1971 for a replacement. On November 12, 1971, the parties entered into a new nationwide agreement effective from December 13, 1971, through October 1, 1974, with a provision for automatic yearly renewal. Throughout the negotiations, each side maintained its legal position on the applicability of the TWA-IAM contract to the installation support service unit at the Center. 14
On May 10, 1973, the Board's General Counsel issued a complaint, upon charges filed by IAM, alleging a violation of Section 8(a)(5) of the National Labor Relations Act 15 arising from Boeing's failure to consult IAM on the initial terms and conditions of employment for the installation support services unit. 16 An administrative law judge recommended that the complaint be dismissed in its entirety. 17 Relying on a number of factors, the judge rejected IAM's contention that Boeing had a "perfectly clear" plan to retain a substantial majority of incumbent employees 18 a plan that would have created an obligation on Boeing's part, under the Supreme Court's Burns holding, 19 to consult with IAM before setting initial employment terms. 20 Although the Board agreed with the administrative law judge's conclusions and adopted his recommended order, it expressly chose to ground its decision solely on the reasons set forth in its Spruce Up opinion 21 as applied to the facts of the instant case. 22 The Board's order was followed by the petition to this court for review.
An employer's collective bargaining obligation derives from Section 8(a)(5) of the National Labor Relations Act, which makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section (9(a)) of (the Act)." 23 Section 9(a) provides in pertinent part that "(r)epresentatives designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining . . .." 24 By conjunctive operation of these two sections, a union representing a majority of the employees in an appropriate bargaining unit may compel the employer to negotiate with respect to the terms and conditions of employment applicable to that unit.
In Burns, 25 the Supreme Court considered the impact of employer succession on the bargaining status of a union previously selected by the predecessor employer's labor force. Like the case before us, Burns involved a succession to duties under a service contract; Burns International Security Services, Inc., had replaced Wackenhut Corporation, which for five years had provided plant-protection services for Lockheed Aircraft Service Company at an airport. Burns retained 27 of the Wackenhut guards and completed its workforce with 15 of its own transferees from other Burns locations. Burns refused to deal with the United Plant Guard Workers of America (UPG), which less than four months earlier had been certified after a Board-supervised election as the exclusive bargaining representative of Wackenhut's employees. UPG demanded that Burns...
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