Four Winds Services, 632 (1998)

Four Winds Services, Inc. and International Brotherhood of Electrical Workers, Local Union 1141, AFL-CIO. Case 17-CA-18977

April 10, 1998

DECISION AND ORDER

BY MEMBERS FOX, LIEBMAN, AND BRAME

On December 2, 1997, Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief.1

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3

We agree with the judge that the Respondent did not carry its burden of showing that the historical electricians unit is no longer appropriate simply because the wages and benefits of some unit members are governed by the Davis-Bacon Act and others are not. Such differences in compensation rates do not destroy a community of interest among employees and would not require that they be in separate units. Banknote Corp. of America, 315 NLRB 1041, 1043 (1994), enfd.

84 F.3d 637 (2d Cir. 1996). See also Borden, Inc., 308 NLRB 113, 115 (1992), enfd. 19 F.3d 502 (10th Cir. 1994), cert. denied 513 U.S. 927 (1994) (noting the widespread existence of dual-tier pay structures for employees doing the same work in the same unit).

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Four Winds Services, Inc., Oklahoma City, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

Substitute the following for paragraph 2(b).

''(b) Within 14 days after service by the Region, post at its Oklahoma City, Oklahoma office, at the FAA's Mike Monroney Aeronautical Center, copies of the attached notice marked 'Appendix.'4 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained by it for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in this proceeding, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 2, 1997, the date of the unfair labor practice.''

Rufus L. Warr, Esq., for the General Counsel.

Charles W. Ellis, Esq. (Lawrence & Ellis), of Oklahoma

City, Oklahoma, for the Respondent.

Bill J. Motley, Business Manager (IBEW Local 1141), of

Oklahoma City, Oklahoma, for the Charging Party.

DECISION

STATEMENT OF THE CASE

RICHARD J. LINTON, Administrative Law Judge. This is a successorship case. Resolution turns on whether the certified bargaining unit recognized by the predecessor, FKW, Inc., has been shown to be no longer appropriate when Respondent Four Winds Services, Inc. (Four Winds), as the successful bidder for the work involved, took over the work effective January 1, 1997. Finding the answer to be no, and that the unit therefore was appropriate at all times, I find that Four Winds, as FKW's successor, violated Section 8(a)(5) of the Act by refusing, on January 2, 1997, to recognize and bargain with the Union. I order Four Winds to recognize and bargain with the Union.

I presided at this 2-day trial, March 17-18, 1997, in Oklahoma City, Oklahoma. Trial was pursuant to the February 25, 1997 order consolidating cases, consolidated complaint, and notice of hearing (complaint) issued by the General Counsel of the National Labor Relations Board through the Acting Regional Director for Region 17 of the Board.

The complaint is based on charges which the Union (IBEW Local 1141) had filed against FKW (Cases 17-CA- 18563 and 17-CA-18969) (filed from February 9, 1996, to January 9, 1997) and against Four Winds (Case 17-CA- 18977) (filed and served January 16, 1997). On March 17, 1997, shortly before I opened the record in this proceeding, and based on an indicated settlement, the Acting Regional

1 The Respondent has requested oral argument The request is denied as the record, exceptions, and brief adequately present the issues and the positions of the parties.

2 In finding that the Board has jurisdiction over the Respondent, the judge inadvertently failed to state the following facts which were admitted by the Respondent in its answer to the complaint. The Respondent, a corporation with an office in Oklahoma City, Oklahoma, provides maintenance services to Federal Government agencies, including the Federal Aviation Administration (FAA). Its 1997 contract with the FAA to perform maintenance and repair services at the Mike Monroney Aeronautical Center is valued in excess of $50,000 per year.

3 We shall modify the judge's recommended Order in accordance with our decision in Excel Container, Inc., 325 NLRB 17 (1997).

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Director severed the two FKW cases by his order (GCX 5) dated March 17, 1997.1

The pleadings establish that the Board has both statutory and discretionary jurisdiction over Four Winds, that Four Winds is a statutory employer, and that IBEW Local 1141 is a statutory labor organization. They further establish that, by letter dated December 31, 1996 (GCX 3), the Union requested that Four Winds recognize and bargain with it as the exclusive bargaining representative of employees in the bargaining unit (a unit of electricians). By letter dated January 2, 1997 (GCX 4), Four Winds denied the Union's request on the basis of doubt that the Union represented a majority of employees in any appropriate unit.

In the Government's complaint, the General Counsel alleges that, since January 2, 1997, Four Winds has violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union as the collective-bargaining representative of the employees in the bargaining unit. The complaint actually alleges both a violation of Section 8(a)(1) and

(5) based on the refusal to recognize and bargain. Admitting the fact, but denying any violation, Four Winds avers that its refusal was legally justified. As no independent 8(a)(1) conduct is alleged, the 8(a)(1) alleged is merely derivative of the 8(a)(5), as in 8(a)(5) and (1). Flannery Motors, 321 NLRB 931 at 931 (1996).

The situs involved here is the Will Rogers World Airport at Oklahoma City, Oklahoma, and, specifically, the FAA's Mike Monroney Aeronautical Center (the Center) located on the west side (2:105) of the airport's property.

For witnesses the General Counsel called Bill J. Motley, the Union's business manager; Kirk Thrasher, a lead electrician employed by Four Winds, and Stanley W. Houser, another electrician employed by Four Winds. The General Counsel then rested. (1:80.) Four Winds recalled Motley, briefly, and then called Travis Brown, Four Winds' project manager at the Center, and Denis M. Carson, Four Winds' general manager. Four Winds then rested. (2:173.) For a brief rebuttal, the General Counsel recalled Business Manager Motley. There was no surrebuttal.

No material facts (as to incidents, conversations, or the like) are disputed. Portions of the testimony relate to asserted provisions, interpretations, or applications of the Davis-Bacon Act and the Service Contract Act, and there is some dispute about such matters. Much of such testimony is in the form of tertiary authority (attended seminars; worked as a contracting officer or union representative) concerning such laws, and regulations, interpretations, and procedures by the Wage-Hour Division of the U.S. Department of Labor. (No party saw fit to call, as an expert witness, someone from the Wage-Hour Division to testify.) I attach little weight to whatever is contested on such legal matters. Although the parties lodged no objections to the competency of the witnesses to expound on these subjects, that does not bind the Board to give weight to such expoundings.

On the entire record, including my observation of the demeanor of the witnesses,2 and after consideration of the

briefs filed by the General Counsel and Four Winds, I make these:

FINDINGS OF FACT

1. Background

   The parties stipulated (1:9-10) that, from 1986 to December 31, 1996, FKW had a contract with the FAA to provide facility maintenance at the Center (Mike Monroney Aeronautical Center) in Oklahoma City. The Center, situated on 900 acres on the west side of the airport, consists of 16 major buildings and 26 smaller buildings containing some 4 million square feet of usable office space. (2:105, Brown.) The FAA's mission there is to train air traffic controllers and aviation accident investigators. Records of all pilots are maintained and stored there. (2:105-106.) The Center's buildings are used mainly as training facilities for air traffic controllers. (2:105.) The airplanes and airport terminal, of course, are not included. (1:74-75, Thrasher.) Nearly all the maintenance work applies to the interior of the buildings. The city of Oklahoma City maintains the buildings' exterior. (2:123, Brown.) In 1990 the Union filed a petition, docketed as Case 17-RC-10512, to represent FKW's electricians. An election was held on June 27, 1990, and on July 5, 1990, the Acting Regional Director issued a...