LTV Electrosystems, Inc.

938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LTV Electrosystems, Inc. and United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO. Case 11-CA-3193 July 31, 1967 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On April 6. 1967, Trial Examiner Charles W. Schneider issued his Decision in the above proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative actions, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, Charging Party, and the Respondent filed exceptions and supporting briefs and the Respondent requested oral argu- ments.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has considered the Trial Examiner's Decision. the exceptions and supporting briefs, and the entire record in this case. and hereby adopts the findings, conclusions. and recommendations of the Trial Examiner, except as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended. the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, LTV Electrosystems, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order. i The Charging Party has filed exceptions to the Trial Examiner's rejec- tion of its request for a monetary remedy to make the employees whole for losses they may have, suffered as a result of the Respondent's unlawful refusal to bargain. We deem it inappropriate in this case to depart from our existing policy with respect to remedial orders in cases involving viola- tions of Section 8(a)(5), and therefore deny the said request. However, in adopting the Trial Examiner's disposition of this matter, we do not pass on or adopt his rationale for rejecting the Charging Party's contention The Respondent's request for oral argument is denied as the record, in- cluding the exceptions and briefs, adequately presents the issues and posi- tions of the parties. 2 The General Counsel excepts to the Trial Examiner's granting Respondent's Supplemental Motion to take Administrative Notice, dated March 1. 1967, of documents in possession of the Regional Director in connection with representation proceedings in Case I1-RC-2223. The General Counsel also excepts to the Trial Examiner's ordering that true copies of such documents which are in the exclusive possession of the Re- gional Director be forwarded by the Regional Director to the Board for in- clusion in the official file of the representation proceeding. We find ment in the exception The documents requested by Respondent in its Supple- mental Motion are not part of the record in either the Representation Case 11-RC-2223, or the instant unfair labor practice proceeding within the meaning of Sections 102.68 and 102.45(b) of the Rules and Regulations of the Board, nor are such documents encompassed within the requirements of Section 9(d) of the Act. Accordingly, we hereby overrule the Trial Ex- aminer's granting such motion and the order included therein TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding CHARLES W. SCHNEIDER, Trial Examiner: On October 26. 1965, the Regional Director for Region 11 of the Na- tional Labor Relations Board, herein called the Board, after hearing, issued a Supplemental Decision and Direction of Election in Case 11-RC-2223, in which he found the unit described infra appropriate for the pur- poses of collective bargaining: The Respondent Em- ployer, LTV Electrosystems, Inc., Greenville, South Carolina, on November 4,1965, moved that the Regional Director reconsider his Supplemental Decision and Direction of Election and reopen the record in the representation hearing for the purpose of admitting addi- tional evidence on the status of leadmen, whom the Respondent contended were supervisors within the meaning of the National Labor Relations Act. On November 8, 1965, the Respondent's motion for recon- sideration was denied by the Regional Director, where- upon the Respondent filed a request for review with the Board. Upon review, the Board remanded the case to the Regional Director to receive further evidence pertaining to the status of leadmen. By subsequent order of the Board dated November 29, 1965, a secret-ballot election was conducted on De- cember 10, 1965, in accordance with the Regional Director's Supplemental Decision and Direction of Elec- tion of October 26, 1965, but with instructions to the Re- gional Director to challenge the ballots cast by leadmen and to impound all ballots cast in the election. The votes of leadmen were challenged by the Respondent and at the conclusion of the election the ballots were impounded pending a final determination of the leadman issue. On December 15, 16, 17, 27, 28, and 29, 1965 a hearing was held pursuant to the Board's order of November 29, 1965, at which further record evidence was taken con- cerning the supervisory status of leadmen. The Regional Director then transferred the representation case to the Board for disposition. On April 15, 1966, the Board issued its decision find- ing that leadmen were not supervisors within the meaning of the Act and ordering that the ballots be opened and counted. The ballots were opened and counted on April 22, 1966, and the tally showed that out of 325 valid votes counted, 210 votes were cast for the Union and 115 votes were cast against the Union. There were 21 remaining challenged ballots. The Respondent having filed timely objections to the election, the Regional Director on June 15, 1966, after in- vestigation, (and after having afforded the parties oppor- tunity to submit evidence bearing on the issues, but without formal hearing) issued a Second Supplemental Decision and Certification of Representative in which he overruled the Respondent's objections and certified the Union as the exclusive collective-bargaining representa- tive of the employees in the appropriate unit. 166 NLRB No. 81 LTV ELECTROSYSTEMS, INC. 939 Thereafter the Respondent filed a motion for recon- sideration of its objections, which the Regional Director denied. Respondent also filed a request for review with the Board in which Respondent sought a reversal of the Regional Director's rulings in the Second Supplemental Decision and Certification of Representative and further requested that the Board set aside the election. Respond- ent's request for review was denied by the Board on Oc- tober 26, 1966, on the ground that it raised "no substan- tial issues warranting review." The Unfair Labor Practice Proceeding Under date of November 4, 1966, the Union, by letter, requested that the Respondent meet with it for the pur- pose of collective bargaining. By letter dated November 10, 1966, Respondent acknowledged receipt of the request to bargain but denied the request on the ground that the certification of the Union was invalid and unlaw- ful and that the campaign conducted by the Union, the rulings of the Regional Director and the Board, and the election of December 10, 1965, were all improper and contrary to law. Thereafter, on November 23, 1966, the Union filed a charge with the Board alleging that the Respondent had refused to bargain collectively. Upon this charge the Regional Director issued a complaint dated December 19, 1966, alleging that on or about November 10, 1966, and at all times thereafter, Respond- ent refused and continues to refuse to bargain collective- ly with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, in violation of Section 8(a)(1) and (5) of the Act. The Respondent duly filed its answer denying the com- mission of the unfair labor practices on the ground that the Union does not represent an uncoerced majority of the unit employees. The Respondent, in its answer, ad- mits the complaint allegations as to the fact of the election and the certification of the Union, and further admits that, following the certification, the Union requested the Respondent to meet with it for the purposes of collective- bargaining negotiations, and that the Respondent refused this request. The answer specifically asserts, in defense of the refusal-to-bargain charge, that the Regional Director wrongfully overruled and denied the Respon- dent's objections to the election-which would, if valid, require that the election be set aside. Under date of January 9, 1967, counsel for the General Counsel filed a motion for summary judgment, sub- sequently amended, in which the General Counsel con- tended that there is no factual matter in dispute between the parties which would require testimony to be taken at a hearing and that upon the pleadings and attached ex- hibits the General Counsel was entitled to judgment as a matter of law. Upon this motion I issued an order direct- ing the parties to show cause why summary judgment should not be granted, to which all interested parties filed briefs and memoranda in support of their respective con- tentions. On March 7, 1967, I issued a telegraphic order granting the General Counsel's motion for summary judgment and stating that a Trial Examiner's Decision would be issued at a later date. Various procedural rulings are noted below.' Decision as to Summary Judgment The Respondent's brief is devoted substantially to ar- gument upon the merit of its assertions in the representa- tion case, namely, that the Union is not a legal representa- tive, and that in any event the Respondent was im- properly deprived of hearing upon its objections. The Respondent requests that the Trial Examiner sustain its objections and set aside the election. It further asks that the Union's petition be dismissed, or in the alternative that the Trial Examiner order a hearing on the Respond- ent's objections to the election. In addition the Respond- ent raises various other procedural objections to the mo- tion for summary judgment: That there is no provision in the Board's rules for a summary judgment procedure; that the Trial Examiner is without jurisdiction and lacks authority in law to grant such a judgment; that a hearing in an unfair labor practice case is mandatory and a matter or right; and that the Respondent has additional evidence requiring a hearing. I find none of these objections to judgment sustained. It has been seen that the Union was certified by the Re- gional Director as the lawful bargaining representative in the appropriate bargaining unit ; this certification was in effect affirmed by the Board when it refused the Respond- ent's request for review thereof. It is therefore clear that the Respondent seeks to litigate in this unfair labor prac- tice proceeding issues which have been finally decided by the Board in the representation proceeding. This the Respondent may not do before the Trial Examiner. It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation in a complaint case of issues which were or could have been litigated in a prior related representa- tion proceeding.2 1 The Respondent has requested oral argument before the Trial Ex- aminer. This request is denied inasmuch as the record is adequate to dispose of the issues litigable before me. The Respondent filed a response to the Charging Party's response to the motion for summary judgment The Respondent 's request for permis- sion to file a brief in support of its response is denied. On February 10, 1967, the Respondent filed a motion to take adminis- trative notice, later corrected. Upon that motion I entered an order taking administrative notice of the record and formal documents in the represen- tation proceeding, Case 11-RC 2223. Administrative notice was also taken of the record and formal documents in Cases 11-CA-2948, 11-CA-3045, I 1-CA-3100, and I l-CA-3104, to the extent requested by the Respondent , insofar as they bear on the issue of the status of leadmen. On March 1 , 1967, the Respondent filed a supplemental motion to take administrative notice It appearing from that motion that the documents referred to therein were before the Regional Director in his consideration of the representation proceeding , the motion is granted. As to such of the documents as are in the exclusive possessiorrof the Regional Director, the Director is requested to forward true copies to the Board in Washington for inclusion in the official file of the representation proceeding Administrative notice is taken of these various matters , not for the pur- pose of permitting the Trial Examiner to re-examine the previous disposi- tions of the Regional Director and the Board, but in order that there be a complete record for judicial review of the dispositions , if such is sought. See Section 9(d) of the Act. 1 Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 162; Collins & Aikman Corporation, 160 NLRB 1750 And see Rules and Regulations , National Labor Relations Board , Series 8 as revised January 1, 1965, Sec. 102.67(f): Denial of a request for review [of a decision by a Regional Director in a representation case] shall constitute an affirmance of the Re- gional Directo.r's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceed- ing. See also 102.69(c). 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This policy is applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial and material issues are raised.3 And that there are not such is- sues has been effectively decided-by the Board. The Trial Examiner has no authority to review the Board's final dispositions of the representation issues or to question its conclusions made on the existing record. The Respondent is free, in exceptions to this Decision, to request the Board to reconsider the determinations in the representation case, and, in the event of an unfavorable final order by the Board, the Respondent may request review of the determinations in an appropriate court of appeals. At this stage of the proceedings, however, absent newly discovered evidence, the Board's disposition of the representation matters is the law of the case, and is bind- ing on the Trial Examiner. While the Respondent asserts that it has other evidence to adduce at a hearing, there is no claim that this evidence is newly discovered or previ- ously unavailable. The other procedural contention of the Respond- ent-that the Trial Examiner is without authority to grant a summary judgment-is equally unsustainable. The Board has approved the granting of summary judgment motions by Trial Examiners in prior cases. See E-Z Davies Chevrolet, 161 NLRB 1380, and cases cited in footnote 5 of that decision. See also Krieger-Ragsdale & Company, Inc., 159 NLRB 190. The refusal to bargain being admitted, there are no is- sues litigable before a Trial Examiner, and therefore no matter requiring hearing. Accordingly, the General Coun- sel's motion for summaryjudgment has been granted, and I hereby make the following further: FINDINGS 1. THE BUSINESS OF THE RESPONDENT (a) The Respondent is a Delaware corporation en- gaged in the repair, overhaul, and modification of military aircraft at its Greenville, South Carolina, installation, on the former Donaldson Air Force Base, pursuant to a con- tract with the U.S. Air Force. (b) Respondent, during the past 12 months, which time is representative of all times material herein, received at its Greenville, South Carolina, installation, from points outside the State of South Carolina, raw materials valued in excess of $50,000. During the salve period, Respondent sold and shipped from its Greenville, South Carolina, installation, to points outside the State of South Carolina finished goods valued in excess of $50,000. (c) During the past 12 months, which time is represent- ative of all times material herein, in the course and con- duct of its business operation, Respondent, at its Green- ville, South Carolina, installation, furnished services valued in excess of $50,000, which had a substantial im- pact on national defense. a Q.K. Van and Storage, Inc., 127 N LRB 1537, E-Z Davies Chevrolet, 161 N LRB 1380. And see Air Control Window Products, Inc., 335 F.2d 245, 249: "If there is nothing to bear then a hearing is a senseless and use- less formality." 4 The Respondent's answer denies the complaint allegation that the Respondent is engaged in commerce within the meaning of Section 2(6) (d) Respondent is now , and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.4 H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act.5 III. THE UNFAIR LABOR PRACTICES All production and maintenance employees, including leadmen, aircraft checkers, inventory audit clerks, timekeepers and firemen employed at the Employer's Greenville, South Carolina, operations, excluding office cl:rical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of the Act. On December 10, 1965, an election was conducted in which the employees in the appropriate unit selected the union as their exclusive bargaining representative and on June 15, 1966, the Regional Director certified the Union as such representative. On November 10, 1966, the Respondent refused and continues to refuse to meet with the Union for the pur- pose of conducting collective bargaining negotiations respecting the employees in the appropriate unit. By thus refusing to meet with the Union, the Respond- ent has refused to bargain collectively in violation of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced its employees in violation of Sec- tion 8(a)(1) of the Act. The aforesaid unfair labor prac- tices affect commerce within the meaning of Section 2(6) and (7) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in un- fair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent refuses to bargain collectively with the Union. It will therefore be recommended that the Respondent, upon request, bargain collectively with the Union as the exclusive representative of the unit em- ployees and, if an understanding is reached, embody such understanding in a signed agreement. The Charging Party (the Union) asserts that the forego- ing remedy, conventional in 8(a)(5) cases, is here in- adequate. It urges a more "meaningful" remedy-one designed to "take the profit" out of deliberate procrastination in fulfilling the collective-bargaining obligation. Specifically the Charging Party requests an order directing the Respondent to make the employees whole for any monetary losses they may have suffered as a result of the Respondent's wrongful refusal to bargain. and (7) of the Act. However, it admits the specific facts stated in para- graphs I(a), (b). and (c) above. These are sufficient to establish the findings in paragraph (d). 5 The Respondent's answer neither admits nor denies the allegation in the complaint that the Union is a labor organization within the meaning of the Act. That fact was established in the representation proceeding. LTV ELECTROSYSTEMS. INC. 941 This proposition has been, and is now, before the Board and United States courts of appeals in a number of cases, as follows, In three cases in which the issue was presented to the Board, the Board declined to order such a remedy: Preston Products Company, Inc., 158 NLRB 322, Saks and Company, 160 NLRB 682 , and United Insurance Company of America, 162 NLRB 439 . In the Preston Products case the matter was first raised before the Board, and the request was summarily denied as being "without merit." (Id. at footnote 1.) In the Saks and United Insurance cases the issue was raised before the Trial Examiners (Paul E. Weil and Harold X. Summers, respectively), who refused to recommend reimbursement orders, either on the ground that there was no precedent for it, or on the ground that such an order would be based on speculation as to the result of future bargaining. In those cases the Board adopted the Trial Examiner 's deci- sions without comment as to that issue. All three cases are presently pending before various United States courts of appeals : Preston and Saks before the Court of Appeals for the District of Columbia and United Insurance before the Court of Appeals for the Third Circuits As of this date there are no cases in which the Board has prescribed such a remedy. In addition, the issue is presented in five cases pending' before the Board at the present time : Zinke's Foods, Case 30-CA-372, Trial Examiner Josephine Klein ; Kawneer Company, A Division of American Metal Climax, Inc., Case 9-CA-3335 [164 NLRB 983], Trial Examiner Sid- ney Asher; Herman Wilson Lumber Company, Case 26-CA-2536, Trial Examiner Thomas N. Kessel; Ex- Cell-O Corp., Case 25-CA-2377, Trial Examiner Owsley Vose; Monroe Auto Equipment Company, Hart- well Division , Case 10-CA-6705 [ 164 NLRB 1051]. Trial Examiner Charles W. Schneider. In Zinke's Foods and in Ex-Cell-O Corp., Trial Ex- aminers Klein and Vose took evidence respecting the remedial issue and, finding reimbursement orders war- ranted by the record, recommended the issuance of such orders by the Board. In the other cases presenting the issue to the Board and the courts, there is no indication that any evidential record was made providing a basis for such a remedy.7 In the instant case no evidential record was made or of- fered to support the propriety of the requested reimburse- ment order. On the basis of the record before me 1 find no adequate foundation for recommending such an order. Though in some cases employees may properly and feasibly be ordered made whole for losses occasioned by a refusal to bargain (see, for example, East Bay Union of Machinists , Local 1304, Steelworkers (Fibreboard Paper Products Corp.), 379 U.S. 203, 215, et seq. and cases cited by Trial Examiner Vose in (Ex-Cell-O Corp., supra), on the record here the fact and amount of losses appears too speculative to warrant attempt at ascertain- ment. Absent experiential presumption or statistical or other evidence from which reasonable inference of possi- ble loss may flow, there is no basis in this record for a make-whole order. Without more than we have, it can- not be said with sufficient certainty to warrant a reim- bursement order that the Respondent and the Union would probably have bargained to a contract containing, without offsetting bargaining trades, monetary benefits above the present scale. What the Board said in the case of Chemrock Corporation, 151 NLRB 1074, 1082, in another connection seems applicable . " ... it is specula- tive, and cannot be determined, what rate or rates of pay might have governed ... had the Respondent fulfilled its obligation to bargain ...... What the result might be upon a different record it is unnecessary to decide. In order to insure that the employees will be accorded the statutorily prescribed services of their selected bar- gaining agent for the period provided by law, it will be recommended that the initial year of certification begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit." Upon the foregoing findings and conclusions and the entire record in the case, I recommend that the Board issue the following: ORDER A. For the purpose of determining the effective period of duration of the certification the initial year of certifica- tion shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. B. LTV Electrosystems, Inc., Greenville, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Au- tomobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, as the exclusive collective-bar- gaining representative in the following appropriate bar- gaining unit: All production and maintenance employees , including leadmen, aircraft checkers, inventory audit clerks, timekeepers and firemen employed at the Employer's Greenville, South Carolina, operations , excluding office clerical employees, professional employees , guards and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees in said ap- propriate unit as the exclusive collective-bargaining representative. 2. Take the following affirmative action which ;s necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with United Automobile, Aerospace & Agricultural Implement Work- ers of America, AFL-CIO, as the exclusive representa- tive of the employees in the appropriate unit with respect to rates of pay, wages, hours of work and other terms and 6 1 am informed that the Board has requested the Court of Appeals to remand the Preston case to it for further consideration . In the United In- surance case the company has filed a motion to transfer the proceedings to the Seventh Circuit. I In the United Insurance case the union offered in evidence a collec- tive-bargammng contract which it had made with a predecessor employer as supporting the propriety of a reimbursement order, but apparently of- fered no other evidence. Trial Examiner Summers rejected the evidence on the ground that he regarded the union 's contention as speculative (Id. at fn. 65). The Board, without specific reference to that issue, affirmed the Trial Examiner's rulings 8 Mar Jac Poultry Company, Inc., 136 NLRB 785; Commerce Co dlbla Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5); Burnett Construction Company , 149 NLRB 1419, 1421, enfd . 350 F.2d 57 (C A. 10). 942 DECISIONS OF NATIONAL conditions of employment, and embody in a signed agree- ment any understanding reached. (b) Post at its Greenville, South Carolina, installation, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.'° 9 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 10 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT refuse to bargain collectively with United Automobile, Aerospace & Agricultural Im- LABOR RELATIONS BOARD plement Workers of America , AFL-CIO, as the ex- clusive bargaining representative of all the following employees: All production and maintenance employees in- cluding leadmen, aircraft checkers, inventory audit clerks, timekeepers and firemen employed at the Employer's Greenville, South Carolina, operations, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of their rights under the Act. WE WILL bargain collectively with the Union as the exclusive representative of these employees, and, if an understanding is reached, sign a contract with the Union. LTV ELECTROSYSTEMS, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 2710 1, Telephone 723-2911.