General Dynamics Corp.

GENERAL DYNAMICS CORP. 679 General Dynamics Corporation and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC. Case 23-CA-3649 January 5, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed on June 1, 1970, by Internation- al Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, herein called the Union, and duly served on General Dynamics Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on June 30, 1970, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 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 before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 31, 1970, following a Board election in Cases 23-RC-3309 and 23-RC-3314, the Union was duly certified as the exclusive collective-bargaining repre- sentative of Respondent's employees in the unit found appropriate; I and that, commencing on or about March 31, 1970, and at all times thereafter, Respon- dent 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 July 27, 1970, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 21, 1970, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, alleging that there are no material issues of fact raised by the Respondent's answer to the complaint. Subsequently, on September 3, 1970, the Board issued an Order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to Notice To Show Cause. On August 25, 1970, the Union also filed a response in which it requested that the General Counsel's Motion for Summary Judgment be granted and that the Board direct a hearing as to the past damages due under a "make whole" remedy. On September 17, 1970, the Respondent filed an opposition to the Union's response. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Pursuant to a Stipulation for Certification Upon Consent Election in Cases 23-RC-3309 and 23-RC-3314, the Regional Director for the Board's Region 23, on July 11, 1969, conducted an election by secret ballot in which a majority of the employees of the Respondent in the stipulated unit selected the Union as their representative for the purposes of collective bargaining with the Union. Thereafter, the Respondent and International Association of Ma- chinists and Aerospace Workers, AFL-CIO, herein called IAM, the other labor organization participating in the election, filed timely objections to the conduct of the election. On September 9, 10, and 11, 1969, a hearing was held on objections, and subsequently the Hearing Officer recommended that the objections be overruled in their entirety. Both the Respondent and the IAM filed exceptions with the Board to the Hearing Officer's recommendations. In its Decision and Certification of Representative (181 NLRB No. 142), dated March 31, 1970, the Board found the objections to be without merit and certified the Union as the exclusive representative of all employees in the stipulated unit for the purposes of collective bargain- ing. On April 23, 1970, the Board denied the Respondent's Motion for Reconsideration and Re- hearing and on July 29, 1970, denied the Respon- dent's petition to reopen record and reconsider decision and certification of representative on basis of newly discovered evidence. In its answer to the complaint, the Respondent denied the allegations of the complaint that on or about March 31, 1970, and at all times thereafter, the Union has requested and is continuing to request that the Respondent meet and bargain collectively with it and the Respondent has refused and continues to refuse to do so. Attached to the General Counsel's Motion for Summary Judgment are copies of two letters dated April 21 and 28, 1970, both bearing the signature of Respondent's chief of industrial rela- ' Official notice is taken of the record in the representation proceeding, F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Cases 23-RC-3309 and 23-RC-3314 as the term "record" is defined in intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 Sections 102 68 and 102 69(f) of the Board's Rules and Regulations, Series NLRB 378, enfd 397 F 2d 91 (C A. 7, 1968), Sec 9(d) of the NLRA. 8, as amended See LTV Elecirosyslems, Inc, 166 NLRB 938, enfd 388 187 NLRB No. 96 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lions, in which the Respondent purportedly refused the Union's request for certain information on grounds that it refused to recognize the Union until after court review of the Board's orders and certifica- tion has been obtained. Since the Respondent has neither alluded to nor controverted the contents of these letters in its response to the Notice To Show Cause, its denials of the allegations of the complaint with respect to the Union's requests to bargain and the Respondent's failure to bargain pursuant to these requests must be stricken and the allegations of the complaint deemed to have been admitted.2 Although Respondent's answer to the complaint raises, in effect, the other issues posed by it in the representation cases, its response to the Notice To Show Cause opposes the entry of a Summary Judgment basically upon the failure of the Board to set aside the election underlying the certification because of the absence of bilingual (Spanish-English) ballots and notices of election.3 The Respondent contends, in effect, that Region 23 has a policy of using bilingual ballots and notices, and that there was a need therefor in this case, where 103 of the 137 eligible voters have Spanish surnames and were Spanish speaking. It is significant that none of the parties to the representation proceeding requested the Regional Director for a bilingual election, nor did the Respondent or the IAM specifically raise the failure to conduct such an election in their objections. However, some attempt was made at the hearing on objections to question employees as to their ability to understand and read the election notices and ballots and this was brought to the Board's attention in the Respondent's exceptions to the Hearing Officer's Report. In its Decision overruling the objections, the Board considered these matters and found them to be lacking merit. The Respondent also argued this bilingual election position to the Board in its motion for reconsideration and petition to reopen to which were attached supporting affidavits of seven employees. The Board again reconsidered the serious issues relating to the conduct of the election and referred specifically to the bilingual election issue when it denied the motion and petition as containing nothing that the Board had not previously considered or that was previously unavailable.4 2 May Department Stores Company, 186 NLRB No 17, Carl Simpson Buick, Inc, 161 NLRB 1389 3 The Respondent also raises a procedural question that the Board, under the decision in Pepsi-Cola Buffalo Bottling Company v N L R B, 409 F 2d 676 (C A 2), cert denied 396 U S 904, was required , but faded, to make its own independent findings of fact and determinations in the representation proceedings Pepsi-Cola concerns the validity of the Board's review procedures with respect to cases decided by a Regional Director under authority delegated to him pursuant to Section 3(b) of the Act, The instant case, on the other hand, rests upon a decision made by the Board after a review of the entire record as provided in the stipulation executed It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a Respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.5 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, with offices and place of business at 615 Pergz Street, San Antonio, Texas, is engaged in the manufacture of aircraft parts and subassemblies. During the past 12 months, which period is representative of all times material herein, Respondent in the course and conduct of its business purchased goods and materials valued in excess of $50,000, which were shipped directly to Respondent from points outside the State of Texas. We find, on the basis of the foregoing, that Respondent 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 jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, is a labor organi- zation within the meaning of Section 2(5) of the Act. by the Respondent in Cases 23-RC-3309 and 23-RC-3314 The Respondent's reliance on Pepsi-Cola is for that reason, and apart from other considerations, misplaced. Lipman Motors, Inc, 187 NLRB No 36 4 The decisions in Marriott In-Fbte Services Division of Marriott Corporation v N L R B, 417 F 2d 563 (C A 5), and in Facs, Foods Division, Per, Incorporated, Case 23-RC-3394, are distinguishable because they involved failure to comply with requests for bilingual elections Where such requests are made , the Regional Director provides bilingual ballots and notices 5 See Pittsburgh Plate Glass Co v N L R B, 313 US 146,162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) GENERAL DYNAMICS CORP. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding wood working employees, shipping and receiving, plant clerical employees, and quality- control inspectors, employed at the Employer's San Antonio, Texas, facility, but excluding all office clerical, professional employees, guards, watchmen, and supervisors as defined in the Act, and all other employees. 2. The certification On July 11, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted pursuant to a Stipulation for Certification Upon Consent Election under the supervision of the Regional Director for Region 23 designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 31, 1970, and the Union continues to be such exclusive representative within the meaning of Sec- tion 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 31, 1970, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about March 31, 1970, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 31, 1970, 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 engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6 The Union' s request for a hearing on past damages due under a "make whole " remedy is denied for the reasons set forth in Ex-Cell-O IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 681 The activities of Respondent 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, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10).6 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. General Dynamics Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding wood working employees, shipping and receiving, plant clerical employees, and quality- control inspectors, employed at the Employer's San Antonio, Texas, facility, but excluding all office clerical, professional employees, guards, Corporation, 185 NLRB No 20 Member Brown disagrees for the reasons set forth in the dissent of the cited case. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watchmen, and supervisors as defined in the Act, and all other employees. 4. Since March 31, 1970, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 31, 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged 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 to them in Section 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 Relations Board hereby orders that Respondent, General Dynamics Corporation , San Antonio, 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 conditions of employment, with International Union of Electri- cal, Radio and Machine Workers, AFL-CIO-CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, in- cluding wood working employees, shipping and receiving, plant clerical employees, and quality- control inspectors , employed at the Employer's San Antonio, Texas, facility, but excluding all office clerical, professional employees, guards, watchmen, and supervisors as defined in the Act, and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at the San Antonio, Texas, facility copies of the attached notice marked "Appendix. " 7 Copies of said notice, on forms provided by the Regional Director for Region 23 after being duly signed by Respondent's representative, shall be posted 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 insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. r 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD 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 Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, as the exclusive repre- sentative of the employees 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. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees, including wood working employees, shipping and receiving, plant clerical employees, and quality-control inspectors, employed at the Employer's San Antonio, Texas, facility, but excluding all office clerical, professional GENERAL DYNAMICS CORP. 683 employees, guards, watchmen, and supervi- This is an official notice and must not be defaced by sors as defined in the Act, and all other anyone. employees . This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, GENERAL DYNAMICS defaced, or covered by any other material. CORPORATION Any questions concerning this notice or compliance (Employer) with its provisions may be directed to the Board's Office, Dallas-Brazos Building , Fourth Floor, 1125 Dated By Brazos Street, Houston, Texas 77002, Telephone (Representative ) (Title) 713-226-4271.