N.L.R.B. v. Pope Maintenance Corp.
| Decision Date | 26 May 1978 |
| Docket Number | No. 77-1826,77-1826 |
| Citation | 573 F.2d 898 |
| Parties | 98 L.R.R.M. (BNA) 2644, 83 Lab.Cas. P 10,628, 3 Fed. R. Evid. Serv. 175 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. POPE MAINTENANCE CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, Michael Winer, Supervisor, Jessie Etelson, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. counsel, N.L.R.B., Washington, D. C., for petitioner.
John M. Capron, Atlanta, Ga., for respondent.
Application for Enforcement of an Order of The National Labor Relations Board.
Before HILL, RUBIN and VANCE, Circuit Judges.
This case is before us on application of the National Labor Relations Board filed pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 151, et seq., for enforcement of the board's order issued on February 22, 1977. 1 By such order the board affirmed the rulings, findings and conclusions of the administrative law judge and adopted his recommended order.
It thereby found that Pope Maintenance Corporation violated sections 8(a)(1), (3) and (5) of the act, issued a bargaining order, and ordered reinstatement of unfair labor practice strikers with back pay. We find that the board's order should be enforced.
Pope Maintenance Corporation (the Company) is a Georgia corporation engaged in the maintenance and repair of aerospace ground equipment for the United States Air Force at Robins Air Force Base. The contract governing the work performed by the Company was between the air force and the Small Business Administration (SBA). SBA subcontracted the entire contract to the Company by what is referred to as an "8(A) subcontract," an arrangement to help disadvantaged persons secure a place in the business world. 2
Under the contract the Company has the responsibility for repair of aerospace ground equipment used by the air force in the maintenance of aircraft. All parts and supplies for work on such equipment are either provided by the air force or are purchased by the Company for the air force with reimbursement by the air force to the Company. The air force supplies some of the physical facilities and certain heavy equipment. 3 The Company supplies most of the tools, some rolling stock and an off-base office and garage facility at its own expense.
The Company employs approximately 106 employees exclusive of supervisory and clerical personnel. Approximately half the work force are employed in what the contract refers to as "Category C." Employees in that category are responsible for moving equipment on and off the flight line and transporting it to the repair shops. Category C is also responsible for moving parts and supplies handled by the Company from one place to another.
Local 1063 of the Retail Clerks International (the Union) began organizational efforts in September 1975. On October 4, 1975 Union representatives met with Johnny Pope and demanded recognition on the basis of authorization cards signed by a majority of employees. Mr. Pope responded that he would talk with his associates and meet again the following week. On October 6 the Company's attorney contacted the Union representative and refused recognition. The Union representative told him that unless Mr. Pope responded to the demand promptly, he "might count (a union) majority on the street." On October 7, 1975 the Company's attorney sent a telegram to the Union confirming the Company's refusal to recognize the Union.
On November 12, 1975 the Union petitioned the board seeking an election which was held on January 6, 1976 and resulted in a 40 to 40 tie, with 1 void ballot and 56 challenged ballots.
The Union filed five separate charges alleging that the Company violated sections 8(a)(1), (3) and (5) of the act. The cases were consolidated for hearing. In adopting the findings of the administrative law judge, the board found that the Company violated 8(a)(1) 4 of the act by coercively interrogating its employees concerning their and other employees' union activities; by threatening employees with discharge, more stringent enforcement of company rules, cancellation of their vacations, loss of benefits and that the Company would cease operations if the Union were selected; by soliciting employees to sign a petition to withdraw their union cards; by creating the impression of surveillance of employee union activities; and by telling employees that it had a list of union supporters and The board ordered the Company to cease and desist from such unfair labor practices and from in any manner interfering with, restraining or coercing employees in the exercise of their section 7 rights, to reinstate the unfair labor practice strikers and make them whole, to expunge from its records the warning slips issued in violation of the act, to post appropriate notices and to bargain with the Union.
card signers and that it knew which employees had signed authorization cards. The board found that the Company violated 8(a)(1) and (3) 5 of the act by issuing written warning slips to four of its employees and by failing and by refusing to reinstate the unfair labor practice strikers applying for reinstatement. The Company was found to have violated 8(a)(5) 6 and (1) of the act by failing and refusing to bargain collectively with the Union.
At the outset we are faced with a jurisdictional issue. The Company urges that it is not an "employer" within the meaning of the act because it is so totally controlled by the SBA and the air force that it cannot engage in meaningful collective bargaining. In addition, the Company asserts that its operations are governmental in nature and are so intimately related to the mission of the United States Air Force as to share its statutory exemption. 7
The act does not require an employer to engage in an exercise of futility and jurisdiction of the board is to be declined if the employer does not retain sufficient control over the employment relationship to engage in meaningful collective bargaining. Compton v. Nat. Maritime U. of America, AFL-CIO, 533 F.2d 1270 (1st Cir. 1976); Herbert Harvey, Inc. v. NLRB, 137 U.S.App.D.C. 282, 424 F.2d 770 (1969). It is the duty of the board in the first instance to determine who is a statutory employer for the purposes of the act and its determination "must be accepted by reviewing courts if it has a reasonable basis in the evidence and is not inconsistent with the law." NLRB v. E. C. Atkins & Co., 331 U.S. 398, 403, 67 S.Ct. 1265, 1268, 91 L.Ed. 1563 (1947). Here the board determined that the Company has considerable freedom to negotiate concerning most of the terms and conditions of employment commonly found in labor-management contracts. We agree.
There is no restriction imposed either by the air force or by SBA on the Company's determination of wages or benefits. Like other federal contractors, the Company is subject to the Service Contract Act 8 and must meet certain minimum standards regarding holidays, vacations, benefits and wages. Above those minimums, however, the Company is free to establish its own rates and standards. The evidence shows that some employees work on an incentive basis earning from $14,000 to $20,000 annually, while others work on a straight hourly basis. In addition, persons with the same job titles are not always paid the same rates.
The Company says, however, that its potential profit is so restricted by the contract that there is no realistic range within which to bargain with the Union. It is true that it cannot immediately pass on to the air force any increased cost that may result from bargaining. The Company is paid at a fixed hourly unit price for work performed. Up to 80% Of the work performed is so standardized that a set number of hours has been established for each job. The remaining 20% Of the work is negotiated on a job-by-job basis. As noted by the board, this method of compensation gives the Company greater flexibility than the cost-plus-fixed-fee method. 9 By increasing efficiency the Company directly increases profits. The fact that 20% Of the work is negotiated on a daily basis gives the Company an even greater chance to increase profits.
The air force requires that the work shifts of company employees be the same as the aircraft repair branch but the Company determines individual work schedules. Breaks and lunch periods are required to coincide with those of government personnel but in reality they are determined by the arrival of a refreshment truck. The air force dictates the exact number of employees who work in "Category C" both by classification and shift. Otherwise, the contract only specifies a representative number and classification of personnel for daily maintenance. 10
The hiring of employees is essentially controlled by the Company. The contract does state that persons with questionable backgrounds shall not be employed and that the Company's personnel records may be reviewed by the air force. There is also a provision that company employees may be subject to a security check. The only required qualifications involve minimum experience criteria and the requirement that vehicle operators have appropriate drivers' licenses.
The Company directs its employees on a daily basis in the performance of their work. Supervision of the details of the work done is conducted by company supervisors. The board noted that in one instance the air force required that the Company increase the number of employees on the job when the work was falling behind schedule. There is no other evidence of any employee performance evaluation by the air force.
We find no significant limitations imposed by either the SBA or the air force on other matters commonly the subject of labor negotiations: seniority, grievance procedures, sick leave, retirement plans, profit sharing plans, health insurance plans, and merit pay increases.
"The process of collective bargaining . ....
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