Dyncorp/Dynair Corp v. NLRB ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DYNCORP/DYNAIR CORPORATION,
Petitioner,
v. No. 96-2822
NATIONAL LABOR RELATIONS BOARD,
Respondent.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 97-1092
DYNCORP/DYNAIR CORPORATION,
Respondent.
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
(31-CA-22083)
Argued: July 8, 1997
Decided: August 28, 1997
Before WILKINSON, Chief Judge, and WILKINS
and WILLIAMS, Circuit Judges.
_________________________________________________________________
Enforcement granted by unpublished per curiam opinion.
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COUNSEL
ARGUED: Stephen Russell Leuke, Matthew Todd Wakefield, BAL-
LARD, ROSENBERG & GOLPER, Universal City, California, for
Petitioner. Daniel Josef Michalski, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for Respondent. ON BRIEF:
Frederick L. Feinstein, General Counsel, Linda Sher, Associate Gen-
eral Counsel, Aileen A. Armstrong, Deputy Associate General Coun-
sel, Fred L. Cornnell, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
DynCorp/DynAir Corporation ("DynAir") petitions for review of a
National Labor Relations Board ("Board") bargaining order, and the
Board cross-petitions for enforcement of that order. DynAir defends
its refusal to bargain, arguing that the Board certified too narrow a
bargaining unit. The Board's bargaining unit determination, however,
was within the scope of its discretion. Furthermore, the Board's
actions with respect to the Union's showing of employee interest are
non-litigable, and the valid representation election renders the compa-
ny's questions concerning that prior showing of interest moot.
Accordingly, we grant the Board's petition for enforcement.
I.
DynAir is an independent company which provides passenger, line
maintenance, cargo handling, ramp and cabin cleaning, and other avi-
ation services to domestic and international airlines at airports world-
wide. DynAir provides these services to approximately 30 airlines at
the Los Angeles International Airport ("LAX"). On January 31, 1995,
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the Miscellaneous Warehousemen, Drivers and Helpers, Local 986,
International Brotherhood of Teamsters, AFL-CIO ("Union") filed a
petition to represent a unit including "all mechanics" employed by
DynAir at its LAX facility. At the commencement of the February
hearing on the Union's petition, the Union amended its petition to
narrow the unit to only airframe and power plant mechanics ("A &
Ps").
DynAir contended that an appropriate unit must also include all
other ground service employees -- mechanics, cleaners, rampers, and
dispatchers. DynAir presently has three other unionized U.S. facili-
ties, and employs A & Ps at two of those locations. Pursuant to stipu-
lations between DynAir and the respective union at each of those
airports, the Board-certified bargaining units include A & Ps along
with all other ground service employees.
On March 16, 1995, the Acting Regional Director issued a Deci-
sion and Direction of Election approving the Union's proposed unit
and directing an election among employees in that unit. One week
later, DynAir moved to dismiss the Union's petition with prejudice
based on allegations that a supervisor personally participated in orga-
nizational activities on behalf of the Union and thereby compromised
the validity of the Union's showing of interest. On April 5, 1995, the
Regional Director denied DynAir's motion because the Union submit-
ted a new showing of interest that was not tainted by supervisory
involvement.
The Board then conducted the election on April 14, 1995. Those
favoring union representation prevailed. Accordingly, on February 29,
1996, the Regional Director certified the Union as the exclusive col-
lective bargaining representative of the employees in the unit. DynAir
subsequently refused to bargain with the Union, leading to an unfair
labor charge and this appeal.
II.
DynAir argues that the bargaining unit certified by the Board --
comprised solely of A & Ps, and excluding all other ground service
employees -- is inappropriate. The issue, however, is not one for
first-instance resolution by this Court. Section 9(b) of the National
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Labor Relations Act delegates to the Board the power to determine
"the unit appropriate for the purposes of collective bargaining." 29
U.S.C. § 159(b). The Board possesses broad discretion in reaching
this decision, "reflecting Congress' recognition`of the need for flexi-
bility in shaping the [bargaining] unit to the particular case.'" NLRB
v. Action Automotive, Inc., 469 U.S. 490, 494 (1985) (quoting NLRB
v. Hearst Publications, Inc., 322 U.S. 111, 134 (1944)); see also
Arcadian Shores, Inc. v. NLRB, 580 F.2d 118, 119 (4th Cir. 1978).
Here, the Board acted within the scope of its discretion. The A &
Ps are the only employees who repair the aircraft serviced by DynAir.
They are, therefore, significantly more skilled than DynAir's other
ground service employees. Furthermore, only the A & Ps must earn
FAA certification as a prerequisite to their position. The FAA issues
such licenses only upon the individual's completion of at least two
years of schooling and the passing of a licensing exam. Thus, the A
& Ps are more highly educated than the other ground service employ-
ees. The Acting Regional Director, in his decision, noted the Board's
past reliance on just such a distinction in the aircraft service context,
citing Tri-State Aero, Inc., 180 N.L.R.B. 60, 60-61 (1969) (line ser-
vice employees "do not use any particular skill or academic discipline
in the performance of their work" and therefore constitute appropriate
bargaining unit separate from mechanics). The distinction between A
& Ps and other ground service employees is further demonstrated by
the wage differential within DynAir's work force. A & Ps earn a start-
ing wage of $14 to $17 per hour, whereas ground service mechanics
earn $10 to $15, rampers earn $5.50 to $6.50, and cleaners earn $4.75
to $6 per hour. In light of the Board's discretion in this area, and the
substantial differences between the A & Ps and other ground service
employees, we cannot say that the Board erred in designating the A
& Ps as an appropriate bargaining unit.
DynAir argues, however, that the Board acted inconsistently in
light of DynAir's own bargaining history at its other unionized facili-
ties. The company's evidence with respect to this factor is not com-
pelling. DynAir provides its services at twenty-four U.S. airports. Yet
it presently has only three other unionized facilities, and employs A
& Ps at just two of the three. A & Ps are included in Board-certified
units along with all other ground service employees only pursuant to
stipulations by DynAir and the respective unions. The fact that these
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units were stipulated ones is significant: "The rule has been often
stated that `where the parties stipulate that the appropriate unit will
include [or exclude] given jobs, the Board may not alter the unit; its
function is limited to construing the agreement according to contract
principles, and its discretion to fix the appropriate bargaining unit is
gone.'" Methodist Home v. NLRB, 596 F.2d 1173, 1176 (4th Cir.
1979) (quoting Tidewater Oil Co. v. NLRB, 358 F.2d 363, 365 (2d
Cir. 1965)). Because the Board was constrained by the stipulations
governing collective bargaining at these other locations, it can hardly
be held to have acted arbitrarily or inconsistently when it determined
under applicable Board precedent that the A & Ps at the LAX facility
constituted a separate appropriate bargaining unit.
DynAir argues finally that this court's decision in NLRB v. Lundy
Packing Co., 68 F.3d 1577 (4th Cir. 1995), cert. denied, 116 S. Ct.
2551 (1996), dictates the denial of the Board's petition for enforce-
ment here. Lundy Packing, however, presented a different case. The
quality control employees excluded by the Board from the bargaining
unit there shared, inter alia, comparable wages and similar educa-
tional backgrounds with those employees included in the unit. Id. at
1580. The differences here between the A & Ps and DynAir's other
ground service employees are more pronounced and could not be
described as "meager." Id. at 1581. Moreover, in Lundy Packing, the
Board had developed a consistent rationale for including quality con-
trol employees along with production and maintenance employees. Id.
at 1582. We do not observe a similar clear rule in the Board's deci-
sions regarding aircraft service employees and therefore do not dis-
cern the inconsistency that was so apparent in Lundy Packing.*
III.
DynAir also contends that the Board's failure to dismiss the
Union's petition for election with a six-month prejudice period
allowed the alleged supervisory misconduct to taint the entire repre-
sentation proceedings. We disagree. DynAir concedes that it is not
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*As the Board notes, DynAir and the Union could agree in the future,
through collective bargaining, to alter the scope of the bargaining unit.
See, e.g., The Idaho Statesman v. NLRB, 836 F.2d 1396, 1400 (D.C. Cir.
1988).
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challenging the validity of the ultimate election, as it must because it
failed to file exceptions to the hearing officer's post-election findings.
Yet the validity of the Union's pre-election showing of interest -- the
issue DynAir does raise in this appeal -- is not litigable.
A union's showing that "a substantial number of employees . . .
wish to be represented for collective bargaining," 29 U.S.C.
§ 159(c)(1)(A), serves only as a screening mechanism for the Board
to determine when there is a true "question of representation affecting
commerce," id. § 159(c)(1), that deserves the Board's attention. "The
section 9(c)(1)(A) substantial interest requirement is not a jurisdic-
tional prerequisite to NLRB action . . . ." NLRB v. Metro-Truck Body,
Inc., 613 F.2d 746, 749 (9th Cir. 1979), cert. denied, 447 U.S. 905(1980). Thus, courts have regularly held that the validity of the show-
ing of interest is committed to the Board's discretion and may not be
litigated. Intertype Co. v. NLRB, 401 F.2d 41, 43 (4th Cir. 1968), cert.
denied, 393 U.S. 1049 (1969). Whether a union enjoys support among
the employees of a bargaining unit is conclusively determined by the
actual representation election. Id. at 43; Metro-Truck Body, 613 F.2d
at 750. Because the validity of that election is not contested here,
DynAir's challenge to the prior showing of interest is moot.
IV.
For the foregoing reasons, we deny the company's petition for
review and grant enforcement of the Board's order.
ENFORCEMENT GRANTED
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