John S. Barnes Corp.

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John S. Barnes Corporation and Lodge 1553, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Case 13-CA-10757 May 22, 1972 SUPPLEMENTAL DECISION AND ORDER GRANTING MOTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 29, 1972, the National Labor Rela- tions Board issued a Decision and Order' in the above-entitled proceeding in which the Board, finding that the Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, granted the General Counsel's Motion for Summary Judgment and, upon the basis of the record herein, made conclusions of law and entered an Order. The Board found that commenc- ing on or about July 9, 1971, the Respondent refused to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in the appropriate unit. The Board further found that the Respondent thereafter, by letter to the Union dated August 9, 1971, continued, and is continuing, to refuse to bargain for the express purpose of challenging the Board's rulings and obtaining judicial review of the Board's decisions in the representation proceeding.2 On March 20, 1972, the Respondent filed a motion for reconsideration and memorandum in support thereof. The Respondent contends that certain of the Board's statements in its Decision and Order are erroneous and prejudicial, and incorrectly reflect the Respondent's position. The Respondent further contends that the Board failed to consider issues, pertaining to the Union's request to bargain, as raised by the Respondent in its response and reply, and that, in the alternative, if the Board did rule on these issues, it failed to set forth any reasoning or basis for its rulings. Respondent moves that the Board reconsider its Decision and Order in light of the above issues. The Board3 has duly considered the aforemen- tioned contentions and hereby grants Respondent's motion for reconsideration. A. Contrary to Respondent's contention, foot- note 7 of the Board's original Decision and Order, supra, pointed out only that the events alleged as constituting the Union's bargaining request-and not the legal conclusions to be drawn therefrom -were uncontroverted. As for the Union's request of July 6, for an "immediate meeting within the next seven days," Respondent's answer on July 9 did not mention any disagreement with the 7-day aspect of the request; Respondent's further reply of August 9, 1971, indicated that Respondent's denial of the Union's bargaining demand was "in order to challenge the Board's rulings, and because it is the only method by which judicial review of the Board's decisions in Case 13-RC-10159 can be obtained."' At no time prior to the filing of the complaint herein did the Respondent, in rejecting the Union's bargaining requests, advise the Union that it deemed such requests to be insufficient because of any reference to an immediate meeting, or one within 7 days. B. With respect to Respondent's contention that the appropriate unit described in the complaint varies from that described in the Union's request for bargaining, we have reexamined our earlier response to this contention, contained in footnote 5 of our original Decision and Order, supra, and further explicate our reasoning as follows: 1. As noted by Respondent, the unit eventually certified by the Board differs in several respects from that found appropriate by the Regional Director in his Decision and Direction of Election dated June 29, 1964. The Regional Director, in his Report on Challenged Ballots and Objections (to second elec- tion), alluded to the revised unit description used in that election, and explained that the unit as so revised conformed to that found appropriate by the Trial Examiner and the Board in the intervening consolidated representation and unfair labor practice proceeding, John S. Barnes Corp., 180 NLRB 911, 935. The exclusion of leadmen, working foremen, and setup men was based on the finding in that case that these classifications were supervisory (supra, 180 NLRB at 929). Respondent's response to notice to show cause questioned whether the Regional Direc- tor was correct in altering the unit description to conform with the Board's findings in the consolidat- ed proceeding. We so intended in issuing our Decision, Order, and Direction of Election in 180 NLRB 911, and so held in adopting the Regional Director's findings with respect to the Employer's Objection 4 to second election. 2. With respect to the failure of the revised unit description specifically to refer to the classification of "inside truckers," there appears to have been an inadvertent error. However, that category, like many others not specifically mentioned, would appear to be encompassed by the broad "production and maintenance" portion of the unit description. In any 1 195 NLRB No 123 Act, as amended, the National Labor Relations Board has delegated its 2 Case 13-RC-10159 authority in this proceeding to a three-member panel. 3 Pursuant to the provisions of Sec 3(b) of the National Labor Relations 197 NLRB No. 10 JOHN S. BARNES CORPORATION 33 event, as the Regional Director found , "no evidence has been presented that any eligible employee failed to vote because of the change in the unit description from the first election to the second election." See also footnote 5 of our earlier issued Decision and Order, supra, which we reaffirm. 3. As for Respondent's contention that the Union requested bargaining in a unit other than that certified, the Union's letter of July 6, 1971, request- ing bargaining, refers to negotiations "as per the N.L.R.B. Certification dated June 30, 1971." Re- spondent is correct that the Union's letter of August 3, 1971, mistakenly refers to the unit before it was revised by the Board prior to the second election. However, Respondent's response of August 9 made no reference to the Union's obvious error, but rather characterized the Union's request as contemplating bargaining in the "unit described in the Board's recent certification." Moreover, as previously set forth, Respondent specifically admitted its refusal to bargain was for the purpose of testing the Union's certification. For the above reasons, we affirm our Decision and Order previously issued.