Litton Industries, Inc.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Louis-Allis Company, a Division of Litton Indus- tries, Inc. and International Union of Electrical, Ra- dio and Machine Workers, IUE-AFL-CIO-CLC. Case 25-CA-4132 May 7, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a charge filed on January 29, 1971, by Interna- tional Union of Electrical, Radio and Machine Work- ers, IUE-AFL-CIO-CLC, herein called the Union, and duly served on The Louis-Allis Company, A Divi- sion of Litton Industries, Inc:, herein called the Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 25, issued a complaint on February 22, 1971, against Respondent, alleging that Respondent 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, com- plaint, 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 com- plaint alleges in substance that on December 14, 1970, following a Board election in Case 25-RC-4337 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about January 26, 1971, 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 Un- ion has requested and is requesting it to do so. On February 25, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, submitting as an affirma- tive defense the denial of a hearing, and requesting that the complaint be dismissed in its entirety. On March 4, 1971, counsel for the General Counsel filed directly with the Board a Motion To Strike Por- tions of Respondent's Answer and Motion for Sum- mary Judgment, with exhibits and argument in support thereof. The General Counsel submits that the Re- spondent, by its answer, seeks to litigate matters previ- ously considered and decided in the representation pro- ' Official notice is taken of the record in the representation proceeding, Case 25-RC-4337, as the term "record" is defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. ceeding and that no issues have been raised which warrant a hearing in the instant case. The General Counsel moves that the Respondent's affirmative de- fense and its denial of the legality of the certification in the answer be stricken and that the Board grant sum- mary judgment. Subsequently, on March 10, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled "Respondent's An- swer to General Counsel's Motion To Strike'Portions of Respondent's Answer and Motion for Summary Judgment." 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 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 response to the Notice To Show Cause, as in its answer to the complaint, the Respondent contends that, because it was not afforded an opportunity for a hearing on its objections to the election underlying the certification in Case 25-RC-4337 and was thereby de- prived of due process, the certification was not lawfully issued and the Union is not the exclusive representative of the Respondent's employees in the appropriate unit. The record in Case 25-RC-4337 reflects that pursu- ant to a petition filed by the Union, the Regional Direc- tor, on July 15, 1970, issued a Decision and Direction of Election ordering an election in the production and maintenance unit found appropriate therein. In the election, conducted on August 26, 1970, among the Respondent's employees in the unit, there were 383 valid votes cast, of which a majority of 276 were cast for, and 95 against, the Union, with 12 votes chal- lenged. On September 2, 1970, the Respondent filed timely objections to the conduct affecting the results of the election. In substance, the objections alleged as follows: (1) The election was held at a time when the Respond- ent had only 7 working days-an allegedly inadequate time within which to convey its views to its employees; (2) the election date was set while unfair labor practice charges were pending and shortly before the election a complaint thereon was issued against the Respondent; (3) the Union illegally polled the employees before the election; (4) the Board agent refused to challenge group leaders and required the Respondent's observer to do so; and (5) the Union mailed to employees an allegedly 190 NLRB No. 54. THE LOUIS-ALLIS COMPANY false and misleading letter to which the Respondent had inadequate time to respond and the Union also distributed other allegedly false and misleading material late in the organizational campaign so that the Respondent was unable to obtain the correct facts before the election.2 After an investigation, the Acting Regional Director issued a detailed Supplemental Decision on December 14, 1970, in which he found the Respondent's objec- tions were without merit, overruled them in their en- tirety, and certified the Union. Thereafter, on January 8, 1971, the Respondent filed a Petition for Review of the Acting Regional Director's Supplemental Decision in which it reiterated its objec- tions as a basis for vacating the Union's certification and argued that the objections raised substantial fac- tual issues warranting an evidentiary hearing. After due consideration, the Board, on January 22, 1971, denied the Petition for Review on the ground that it raised no substantial issue warranting review. On January 26, 1971, the Respondent filed a motion for reconsideration of the Board's denial of the Petition for Review arguing, inter alia, that the denial deprived the Respondent of the right to renew its allegations of bias in connection with the Region's disposition of the case on the merits. (See fn. 2 herein.) By telegram dated February 12, 1971, the Board denied the Respondent's motion for reconsideration as lacking in merit, and stated that, in denying the Respondent's request for review, the Board "carefully considered the allegations of bias and prejudice and concluded that no substantial issues were raised requiring a hearing or warranting review of the Regional Director's disposition of the objections." It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior repre- sentation 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 ' The Respondent's conclusionary statement in its objections also alleged that the Regional Director acted with bias On the basis of this allegation, the Respondent telegraphically requested on September 4, 1970, that the investigation and disposition of the objections be assigned to another Re- gion On September 11, 1970, the Board denied the request without preju- dice to the Respondent's right to renew its allegations in connection with the Regional Director's disposition on the merits and advised that, if a hearing is required to resolve issues of fact as to any alleged improper conduct by Regional personnel, it was Board practice to designate a hearing officer from another Region whose report may be reviewed by the Board. ' See Pittsburgh Plate Glass Co v. N.L.R.B., 313 U S. 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 295 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 prop- erly 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 is, and has been at all times material herein, a corporation duly organized under, and exist- ing by virtue of, the laws of the State of Delaware. At all times material herein, the Respondent has maintained its principal office at Milwaukee, Wiscon- sin, with a place of business at Evansville, Indiana, herein called the facility, and is, and has been at all times material herein, engaged at said facility in the manufacture, sale, and distribution of electrical motors and related products. During the past 12 months, a representative period, the Respondent, in the course and conduct of its busi- ness operations, purchased, transferred, and delivered to its facility, goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than the State of Indiana. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical, Radio and Ma- chine Workers, IUE-AFL-CIO-CLC, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding forklift truckdrivers, plant clerical em- ployees, dispatchers, expediters, data processing technicians, inspectors, shipping and receiving ' In view of our disposition herein, we shall deny the General Counsel's motion to strike portions of the Respondent's answer 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, janitors, and regular part-time em- ployees of the Respondent employed at its Evans- ville, Indiana, facility, exclusive of all office cleri- cal employees , professional employees , guards and supervisors as defined in the Act. 2. The certification On August 26, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 25, designated the Union as their represent- ative 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 December 14, 1970, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate 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 begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: B. The Request To Bargain and Respondent's Refusal Commencing on or about January 20, 1971, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about January 26, 1971, 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 bar- gaining of all employees in said unit. Accordingly, we find that the Respondent has, since January 26, 1971, 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed 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 commerce and the free flow of commerce. V. 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, bar- CONCLUSIONS OF LAW 1. The Louis-Allis Company, A Division of Litton Industries, Inc., 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 Ma- chine Workers, IUE-AFL-CIO-CLC, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cluding forklift truckdrivers, plant clerical employees, dispatchers, expediters, data processing technicians, in- spectors, shipping and receiving employees, janitors, and regular part-time employees of the Respondent employed at its Evansville, Indiana, facility, exclusive of all office clerical employees, professional employees, guards and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 14, 1970, the above- named labor organization has been and now is the certified and ex- clusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 26, 1971, 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 Respond- ent 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 in- terfering 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 engag- THE LOUIS-ALLIS COMPANY ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, The Louis-Allis Company, A Division of Litton Industries, Inc., 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 Electrical, Radio and Machine Workers, IUE-AFL-CIO-CLC, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees, in- cluding forklift truckdrivers, plant clerical em- ployees, dispatchers, expediters, data processing technicians, inspectors, shipping and receiving employees, janitors, and regular part-time em- ployees of the Respondent employed at its Evans- ville, Indiana, facility, exclusive of all office cleri- cal employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaran- teed 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its Evansville, Indiana, facility copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 25 after being duly signed by Respond- ent's representative, shall be posted by Respondent im- mediately 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 ' 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 " 297 by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 25 in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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, IUE-AFL-CIO-CLC, as the exclusive representative 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 Sec- tion 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance em- ployees, including forklift truckdrivers, plant clerical employees, dispatchers, expediters, data processing technicians, inspectors, ship- ping and receiving employees, janitors, and regular part-time employees of the Respond- ent employed at its Evansville, Indiana, facility, exclusive of all office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. THE LOUIS-ALLIS COMPANY, A DIVISION OF LITTON INDUSTRIES, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Any questions concerning this notice or compliance Office, 614 ISTA Center, West Market Street, In- with its provisions may be directed to the Board's dianapolis, Indiana 46204, Telephone 317-633-8921.