Opinion
Hearing Granted May 24, 1961.
Opinion vacated 15 Cal.Rptr. 156.
Bodle, Fogel & Warren and George E. Bodle, Los Angeles, for appellant.
Musick, Peeler & Garrett, Gerald G. Kelly, Roderick M. Hills and Frederick B. Warder, Jr., Los Angeles, for respondent.
VALLEE, Justice.
Appeal by plaintiff from an adverse judgment in an action to have it declared that a collective bargaining agreement between the parties is in full force and effect.
Prior to March 3, 1958 there were two corporations providing mass transit in the Los Angeles metropolitan area, Los Angeles Transit Lines, called LATL, and Metropolitan Coast Lines with its wholly owned subsidiary, Asbury Rapid Transit, called MCL. Prior to March 3, 1958 LATL had entered into a collective bargaining agreement with Transportation Union, Division 1277, Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, called Amalgamated. The agreement covered about 2,100 employees. On February 7, 1958 MCL had entered into a collective bargaining agreement with Brotherhood of Railroad Trainmen, called BRT. The agreement covered about 1,047 employees. MCL or Asbury had collective bargaining agreements with three other unions: International Association of Machinists, called IAM; System Federation No. 159; and Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, called BRC.
In 1957 the Legislature passed the Los Angeles Metropolitan Transit Authority Act of 1957. Stats.1957, c. 547, p. 1609. The Act created defendant Los Angeles Metropolitan Transit Authority and empowered it to acquire existing facilities from publicly or privately owned public utilities. The Act provided, 'Whenever the authority acquires existing facilities from a The Act also provided:
'If there is a question whether a labor organization represents a majority of employees or whether the proposed unit is or is not appropriate, such matters shall be submitted to the State Conciliation Service for disposition. The State Conciliation Service shall promptly hold a public hearing after due notice to all interested parties and shall thereupon determine the unit or units appropriate for the purposes of collective bargaining. In making such determination and in establishing rules and regulations governing petitions, the conduct of hearings and elections, the State Conciliation Service shall be guided by relevant federal law and administrative practice, including but not limited to the self-determination rights accorded crafts or classes in the Labor Management Relations Act, 1947, and the Railway Labor Act.
'The State Conciliation Service shall provide for an election to determine the question of representation and shall certify the results to the parties.' § 3.6(d).
On March 3, 1958 the Authority acquired the operating facilities of LATL and MCL. In June 1958 BRT filed a petition with the State Conciliation Service for certification as collective bargaining representative of all operators employed by the Authority. Three of the four other labor organizations also filed petitions for certification on a system-wide basis of the units they represented. The Service, after extensive hearings, ruled that the operating personnel of the Authority constituted one unit appropriate for collective bargaining, and its maintenance personnel constituted a second unit appropriate for collective bargaining; and directed that an election be held in each unit for the purpose of determining its representative.
System Federation relinquished its bargaining rights to IAM.
On May 14, 1959, elections were held in each unit. BRT was selected as the collective bargaining representative of the operating personnel. On May 21, 1959 the Service certified BRT as such representative. Amalgamated was selected and certified as the collective bargaining representative of the maintenance personnel. By its terms, the BRT collective bargaining agreement with MCL of February 7, 1958 did not expire until November 30, 1959. On certification of BRT it requested the Authority to recognize its agreement of February 7, 1958 as covering all employees of the Authority for whom BRT had been certified. Amalgamated made the same request with respect to the employees for whom it had been certified. The Authority took the position that the merger of the three properties and the certification of the new bargaining representatives by operation of law cancelled the two agreements not later than May 21, 1959. Amalgamated agreed with the position of the Authority. BRT did not agree.
BRT then brought this action seeking a decree that its agreement of February 7, 1958 was in full force and effect with respect to all personnel as to whom it had been certified. Judgment was that the BRT agreement of February 7, 1958 terminated as of May 21, 1959. BRT appeals.
The controversy is in part moot. At the time the Authority took the position that after the certification the BRT and Amalgamated agreements were terminated, it declared it would, during the pendency of negotiations in good faith for new contracts, continue to abide by the terms of the BRT and Amalgamated agreements with respect to employees covered by them prior to May 21, 1959. It did so. It appears that as of January 28, 1960 the Authority and BRT entered into a new collective bargaining The Honorable Julius V. Patrosso, the learned trial judge, filed a memorandum opinion which is in the record on appeal. We are in accord with that opinion and adopt it in part and make it a portion of this decision.
The opinion, with interpolations in brackets, reads: '[W]e pass directly to a consideration of the specific questions presented, namely, the present status of the collective bargaining agreements existing between the plaintiff * * * and Metropolitan Coach Lines and Asbury Transit System [MCL] and between Amalgamated Association of Street Electric Railway and Motor Coach Employees of America [and LATL] * * * at the time that the facilities of these two private ut[i]lities were acquired by the defendant Authority. Both of these agreements, according to their terms, are still in effect except insofar as one or both may have terminated by operation of law as a result of the certification by the Department of Industrial Relations of the State of California [Department] * * * of BRT as the collective bargaining representative of the class of employees which, for the purposes hereof, may be described generally as operators now in the employ of the defendant Authority, and which, with some few exceptions, include the same class of employees formerly employed by MCL and LATL and constituting the bargaining units represented respectively by BRT and [Amalgamated] under the bargaining agreements in effect prior to the acquisition of MCL and LATL by the Authority as above stated. * * *
'The relevant statutory provisions with which we are here concerned are those found in the Los Angeles Metropolitan Transit Authority Act (Stats.1957, Chap. 547, p. 1609 et seq., hereinafter referred to as the Act). [Section 3.6(e) of the Act, as stated above, is quoted.]
'In compliance with this statutory mandate [the Act], the Authority, when it acquired the facilities of MCL and LATL, expressly agreed in writing to assume and observe the existing labor contracts with BRT and Amalgamated. In the light of this, it is clear that at least for the time being both of these contracts were continued in force and effect and it but remains to examine the Act in order to ascertain under what circumstances, if any, such contracts should terminate or be altered prior to the expiration of the terms thereof. * * * [Section 3.6(d), as stated above, is quoted with emphasis on the provision that the State Conciliation Service 'shall thereupon determine the unit or units appropriate for the purposes of collective bargaining.']
'It is evident that when both BRT and Amalgamated filed their respective petitions with the Department requesting certification as the exclusive bargaining representative of all of the employees of the Authority in the classifications set forth in their respective petitions, which included, with some few exceptions, substantially the same class of employees as those comprising the bargaining units under their existing agreements, a question arose whether either represented a majority of the employees of the Authority in such classifications and whether the unit which each proposed was 'appropriate'. Implicit in this was a representation by each union that the former bargaining units were no longer appropriate because neither included all of the employees of the Authority in such classifications. These questions were resolved by the action of the Department in determining (1) that the appropriate unit consisted of all of the employees of the Authority within the classifications specified in its 'What, then, was the effect of such certification? The answer appears to be found in section 3.6(c), which reads in part as follows:
'Notwithstanding any other provision of this act, whenever a majority of the employees employed by the authority in a unit appropriate for collective bargaining indicate a desire to be r[e]presented by a labor organization, the authority, upon determining as provided in subdivision (d) of this section that such labor organization represents the employees in the appropriate unit, shall enter into a written contract with the accredited representative of such employees governing wages, salaries, hours and working conditions.' (Emphasis added.)
'The foregoing language appears to be clear and unequivocal. It plainly says that 'whenever a majority of the employees employed by the authority in a unit appropriate for collective bargaining indicate a desire to be represented by a labor organization, the authority * * * shall enter into a written contract with the accredited representative of such employees governing wages, salaries, hours and working conditions.' The Department having determined the unit 'appropriate for the purposes of collective bargaining' and having certified BRT as the bargaining representative of such unit, both the Authority and the representative are under the mandatory duty of engaging in collective bargaining to the end of entering into a written contract governing the wages, salaries, hours, etc., of the employees composing the bargaining unit. This, in the court's view, necessarily implies that any existing bargaining agreement or agreements covering employees included within the unit as defined by the Department cease to be effective.
'BRT, however, seemingly contends that the bargaining unit determined to be appropriate by the Department is in effect the same unit as that under its agreement with MCL because the employees included therein perform substantially the same class of work as that performed by those employees composing the unit determined to be appropriate, and hence that its agreement with MCL continues in effect and now includes all of the employees of the Authority formerly employed by LATL in the classifications covered by the unit as defined by the Department. To the court this appears to be wholly unrealistic. As Professor Cox points out (57 Mich.Law Rev., p. 5), in speaking of section 9(a) of the LMRA [Labor Management Relations Act, 1947], which is somewhat similar to the provisions of section 3.6(d) of the Act: 'The NLRB [National Labor Relations Board] defines the bargaining unit and determines when and how the representative shall be chosen.' If it is the function of the Department of Industrial Relations to define the appropriate bargaining unit for which the members thereof are to select a bargaining representative, it seems incongruous to assert that simply because the bargaining representative selected may, under a preexisting agreement, have been the representative of a bargaining unit comprising some of the same employees included in the bargaining unit so defined by the Department, the contract executed by it as representative of the former unit continues in force and is extended to cover the new unit.
'If such had been the intention of the legislature, it is only reasonable to assume that it would have used language different from that which it did, and would not have provided in section 3.6(d) that the Department should determine the appropriate unit 'We turn our attention now to the decisions of the National Labor Relations Board relied upon by the parties in support of their respective positions. While it is not necessary to consider each of these in detail, it is necessary to point out that while not, perhaps, entirely consistent in the result reached, they fall in two categories: (1) the situation where, as a result of the expansion of the employer's business, an addition to the labor force results in job classifications which are covered by an existing bargaining agreement between a labor union and the employer; and (2) where, as here, there is a merger or consolidation of two or more corporate entities engaged in the same line of business and having employees doing substantially the same class of work, which were covered by separate bargaining agreements in effect prior to the merger or consolidation, and a subsequent integration of the business formerly conducted by the separate entities under centralized managerial control. In the first class, the Board has held that the result is merely an accretion to the work force and hence the existing bargaining agreement continues in effect and con[sti]tutes a bar to a certification proceeding. (See, e. g.: Borg-Warner Corp. (1955), 113 N.L.R.B. 152; Richfield Oil Corp. (1958), 119 N.L.R.B. 1425; Red Ball Motor Freight, Inc. (957), 118 N.L.R.B. 360.) In the second class of cases the Board has held that a new operation results and existing bargaining agreements are not a bar to a certifications proceeding. (See, e. g.: Hocker Electrochemical Co. (1956), 116 N.L.R.B. 1393; Greyhound Garage of Jacksonville, Inc. (1951), 95 N.L.R.B. 902; L. B. Spear & Co. (1953), 106 N.L.R.B. 687; Industrial Stamping & Mfg. Co. (1955), 111 N.L.R.B. 1038.) It is to be noted that none of these decisions deal with the precise question posed here, namely, the effect of a new certification upon an existing agreement, and this for obvious reasons. In the first class of cases the Board, having held that the existing bargaining agreement constituted a bar and having dismissed the petition, no new certification results; and in the second class of cases the Board, having held that the existing bargaining agreement did not constitute a bar and having defined the appropriate bargaining unit and ordered an election, no question with respect to the effect of such new certification could arise until after the election is held and the bargaining representative certified. These decisions, however, are important in this: The distinction made by the Board between the two situations resides in the fact that in the first by its decision the Board necessarily determines that the bargaining unit covered by the existing agreement is an 'The court finds itself in accord with Professor Cox when he says: 'My only contention is that it is unrealistic to attempt to separate the question whether a new election shall be held, from the question of the continued effectiveness of the old agreement. Once it is decided to certify a new representative, termination of the old agreement is a practical necessity.' (57 Mich.Law Rev., P. 13) And this would seem to be particularly true in a situation where, as here, the existing agreements cover different units from that for which the new representative is certified.
'The court concludes, as previously indicated, that the BRT and Amalgamated agreements have terminated and neither constitutes an agreement between the Authority and BRT covering the present bargaining units as certified by the Department. Thus the Authority and BRT as the representative of such unit, are each under the legal duty of engaging in collective bargaining, with the view of reaching an agreement in accordance with the mandate of the statute.'
The foregoing answers the contentions of BRT in seeking reversal of the judgment.
Affirmed.
SHINN, P. J., and FORD, J., concur.