Linn Gear Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Linn Gear Company and International Association of Machinists and Aerospace Workers, District Lodge No. 163. AF,-CIO. Case 36 CA 3177 May 15. 1978 DECISION AND ORDER BY CHIIAIRMAN F\NNIN(; ANI) MLNBIlt RS JI NKINS AND MURI)IPM Upon a charge filed on October 12. 1977. by In- ternational Association of Machinists and Aerospace Workers, District Lodge No. 163, AFI. CIO, herein called the Union, and duly served on linn Gear Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a conm- plaint and notice of hearing on December 12, 1977. against Respondent. alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing he- fore an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on May 24, 1977, fol- lowing a Board election in Case 36-RC 3838. the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about July 25, 1977, and at all times there- after, Respondent has refused and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 14, 1978, Respondent filed its second amended answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 3, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently. on March 6, 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary I Official notice is taken of the record in the representation proceeding. Case 36 RC 3838. as the term "record" is defined in Secs. 1(2.68 and 102.69(g)of the Board's Rulesand Regulations, Series 8.,asamended See l.1'' Electrosvsrems, Inrc. 166 NL.RB 938 (1967), enfd. 388 F.2d 683 (C'.A. 4. 1968). Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 1 .2d 26 (C.A. 5, 1969); Interntpe Co. v. Penello, 269 F.Supp. 573 ( C.Va.. 1967): Foilett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (('.A 7, 1968). Sec 9(d) of the NL.RA, as amended. Judgment should not be granted. Respondent there- after filed a response to Notice To Show Cause. 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 au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding. the Board makes the following: Ruling on the Motion for Summary Judgment In its second amended answer to the complaint. Respondent admits that the Union requested certain information preparatory to bargaining, but denies that it refused the requests. However, attached to the General Counsel's motion is a letter dated July 25. 1977, in which Respondent refused to provide the information, or to recognize or bargain with the Union. Neither this letter, nor its import, are contro- verted by Respondent in its response to the Notice To Show Cause. Accordingly, we shall deem the alle- gations that Respondent refused to provide informa- tion, or to recognize or bargain with the Union, to be true and Respondent's denials thereof are stricken.2 Respondent also contends that the Union was im- properly certified because the Regional Director should not have sustained a challenge to the ballot of Brian Hartl. The record indicates that an agreement- for-consent election was conducted on April 21. 1977. The tally of ballots showed 54 votes cast for the Petitioner and 45 against: there were 9 challenged ballots, a sufficient number to affect the results. On May 24, 1977, the Regional Director for Region 19 issued a Report on Challenged Ballot and Certifica- tion of Representative. In his report the Regional Di- rector found that Hartl did not share a community of interest with the other employees and sustained the challenge to his ballot. Hartl, a full-time employee, lives at home and is a son of the president of the Respondent. His father is also the majority stock- holder of Respondent's controlling company. Respondent took exception to this finding. The Board's Associate Executive Secretary informed the Respondent, by letter dated June 14. 1977, that, pur- suant to the Board's Rules and Regulations in an agreement for consent election, the Respondent had agreed that the Regional Director's determination would be final and the Board would not entertain an appeal. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- S, h,, art Brolhern, l Inc. ind Dilrlrrr Re, ords, Ii.. 194 NLRB 1 50 ( 971); lih 1I(,1 Department SIorrl% ('ornpanm, 186 NL RB 86 (1970). 236 NLRB No. 13 64 LINN GEAR COMPANY gate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is proper- ly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Oregon corporation with an of- fice and place of business located in Lebanon, Ore- gon. It is engaged in the business of manufacturing sprockets and gears. During the past 12 months, a representative period, Respondent has sold and shipped from its Lebanon plant finished products valued in excess of $50,000 to points outside the State of Oregon. We find, on the basis of the foregoing, that Re- spondent is, 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. and that it will effectuate the policies of the Act to assert juris- diction herein. It. THE LABOR ORGANIZATION INVOLtVED International Association of Machinists and Aerospace Workers, District Lodge No. 163, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR L.ABOR PRAC(I( LtS A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All employees of Respondent employed at 3See Piisburgh Plate Glass (o v. V .R B., 313 U.S. 146. 162 (1941): Rules and Regulations of the Board. Sees 102 67(f) and 102.69tc) 100 North Eight Street, Lebanon, Oregon, ex- cluding office clerical employees, salesmen, pro- fessional employees, guards and supervisors as defined in the Act. 2. The certification On April 21, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 19 designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on May 24. 1977, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about July 5, 1977, and at all times thereafter, the Union has requested that Re- spondent provide information preparatory to collec- tive bargaining with it as the exclusive collective-bar- gaining representative of all the employees in the unit. Commencing on or about July 25, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in that unit. Accordingly, we find that Respondent has, since July 25, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IVIlI 1111 ( I:IF(I rilt LNAIR .ABOR PRA(TI(CES IPON ( (OMIMER( ' The activities of Linn Gear Companv set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V TIEi REMEDYI> Having found that Respondent has engaged in and is engaging in unfair labor practices within the 65 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Linn Gear Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, District Lodge No. 163, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of Respondent employed at 100 North Eighth Street, Lebanon, Oregon, excluding of- fice clerical employees, salesmen, professional em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 24, 1977, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 25, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced. and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Linn Gear Company, Lebanon, Oregon, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with International Associa- tion of Machinists and Aerospace Workers, District Lodge No. 163, AFL-CIO, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All employees of Respondent employed at 100 North Eighth Street, Lebanon, Oregon, ex- cluding office clerical employees, salesmen, pro- fessional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at 100 North Eighth Street, Lebanon, Or- egon, copies of the attached notice marked "Appen- dix." 4 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately upon receipt thereof, and be 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 Respondent to 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 66 LINN GEAR COMPANY insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES PosrED BY ORDER OF' THE NATIONAI. LABOR RELATIONS BOARI) An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Inter- national Association of Machinists and Aero- space Workers, District Lodge No. 163, AFL CIO, as the exclusive representative of the em- ployees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. W. WIlll upon request, bargain with the above-named Union, as the exclusive represent- ative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of the Employer employed at 100 North Eighth Street, Lebanon, Oregon, excluding office clerical employees, salesmen, professional employees, guards and supervis- ors as defined in the Act. LINN GEAR COMPANY 67