Textron, Inc.

BELL AEROSPACE, A DIV. OF TEXTRON Bell Aerospace, a Division of Textron, Inc. and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Amal- gamated Local 1286. Case 3-CA-4695 May 30, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on December 2, 1971, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local 1286, herein called the Union, and duly served on Bell Aerospace, a Division of Textron, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 3, issued a complaint on December 21, 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, 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 August 12, 1971, following a Board election in Case 3-RC-4987 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 December 9, 1971, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On January 3, 1972, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 2, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 9, 1972, 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. Respon- dent thereafter filed a response to Notice To Show Cause called Company's Brief in Opposition to 1 Official notice is taken of the record in the representation proceeding, Case 3-RC-4987, 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 209 Motion for Summary Judgment and in Support of Petition for Reconsideration. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, the Respondent denies the appropriateness of the unit and in its response to the Notice To Show Cause, it specifically argues that the unit employees are managerial employees and, as such, are excluded from the coverage of the Act for representational purposes. We find no merit in this position. Based on the representation hearing in Case 3-RC-4987, the Board issued its Decision and Direction of Election (190 NLRB No. 166) finding that a separate unit of buyers was appropriate for collective-bargaining purposes. The Board rejected the Respondent's two contentions: (1) that the buyers were managerial employees and, as such, not entitled to representation rights under the Act and (2) that an alleged conflict would exist if the buyers, whether managerial or not, were granted representa- tion rights. In the directed election conducted by the Regional Director on June 16, 1971, the Union received 15 votes, a majority of the 24 votes cast. The Respon- dent filed timely objections to conduct affecting the results of the election. In substance, the objections alleged that one of the sample ballots had been marked in the "Yes" box and that, since the Respondent had conducted no campaign against the Union and had not attempted to influence the voters, the resulting vote would not have favored the Union if the sample ballot had remained unmarked. After investigating the objections, the Regional Director, on June 28, 1971, issued his Report on Objections recommending that, absent evidence presented by the Respondent or adduced in his investigation that the Union was responsible for the defacement, the objections should be overruled, and the Union be certified. The Respondent filed with the Board timely exceptions to the Report on Objections reiterating its objections. On August 12, 1971, the Board issued its Supplemental Decision and Certification of Repre- sentative, finding that the objections raise no material issue of fact or law which would warrant reversal of the Regional Director's findings and recommendations or require a hearing. Accordingly, the Board certified the Union as exclusive represent- ative of the Respondent's buyers. 683 (CA. 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. 197 NLRB No. 30 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subsequently, the Respondent filed with the Board a Motion for Reconsideration of the Board's Deci- sion and Direction of Election in light of the adverse decision of the United States Court of Appeals for the Eighth Circuit denying enforcement of the Board's Order in North Arkansas Electric.2 In its motion, it argued that, since the Board had relied in the instant representation Case 3-RC-4987 on its decision in North Arkansas Electric wherein a "managerial" employee was held entitled to the protection of the Act, and since the court had judged "managerial" employees to be excluded from the protection of the Act, the Board should reconsider its previous decision and dismiss the representation petition. On May 1, 1972, the Board issued its Order Denying Motion (196 NLRB No. 127) in which, after due consideration of the court's opinion in the North Arkansas Electric case, it denied the Respondent's Motion for Reconsideration and found again that buyers herein constituted a separate appropriate unit for collective-bargaining purposes. In its response to the Notice To Show Cause the Respondent reiterated its arguments in support of the Motion for Reconsid- eration. 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.3 All issues raised by the Respondent in this proceeding 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.4 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, has 2 North Arkansas Electric Corporation, Inc v N L R B, 466 F 2d 602, denying enforcement 185 NLRB No 83 3 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 4 In its answer to the complaint and in its response to the Notice To Show Cause, the Respondent contends, in effect, that its admitted refusal to bargain was not violative of the Act because the Union's certification was not final in view of the pendency of the Motion for Reconsideration and, maintained its principal office and place of business at Wheatfield, New York, herein called the Wheat- field plant, where it is, and has been at all times material, employed in research and development in the design and fabrication of aerospace products. During the past year, the Respondent, in the course and conduct of its business operations, purchased, transferred, and delivered to its Wheatfield plant, goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported to said plant directly from States of the United States other than the State of New York. 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. H. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aero- space and Agricultural Implement Workers of Ameri- ca, Amalgamated Local 1286, is a labor organization 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All buyers in Department 121, the Purchasing and Procurement Department, at the Respon- dent's Wheatfield, New York, plant, excluding all production and maintenance employees, all office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On June 16, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 3 designated the Union as their representative for the purpose of collective bargain- therefore, no obligation to bargain arose from the certification We find no ment in this contention as subsec. 102 65(e) of the Rules and Regulations which deals, inter aha with motions for reconsideration in representation cases, provides in subpar. (3) that "the filing and pendency of a motion under this provision shall not unless so ordered operate to stay the effectiveness of any action taken or directed." See also subsec 102.48(d) as to the same practice in unfair labor practice cases. BELL AEROSPACE, A DIV. OF TEXTRON ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on August 12, 1971, and the Union continues 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 November 9, 1971, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about November 9, 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 bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since November 9, 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, Respon- dent 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 opera- tions 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 commerce and the free flow of com- merce. 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, 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 certifica- tion as beginning on the date Respondent commen- ces to bargain in good faith with the Union as the 211 recognized bargaining representative in the appropn- ate 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: CONCLUSIONS OF LAW 1. Bell Aerospace, a Division of Textron, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, Amalgamated Local 1286, is a labor organization within the meaning of Section 2(5) of the Act. 3. All buyers in Department 121, the Purchasing and Procurement Department, at the Respondent's Wheatfield, New York, plant, excluding all pro- duction and maintenance employees, all office clerical employees, professional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 12, 1971, 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 November 9, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that Respondent, Bell Aerospace, a Division of Textron, Inc., Wheatfield, New York, 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, United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local 1286, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All buyers in Department 121, the Purchasing and Procurement Department, at the Respon- dent's Wheatfield, New York, plant, excluding all production and maintenance employees, all office clerical 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 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 its Wheatfield, New York, plant and location copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representa- tive, 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 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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 " 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 Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local 1286, 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 representa- tive 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 understanding in a signed agree- ment. The bargaining unit is: All buyers in Department 121, the Pur- chasing and Procurement Department, at the Respondent's Wheatfield, New York, plant, excluding all production and mainte- nance employees, all office clerical employ- ees, professional employees, guards and supervisors as defined in the Act. BELL AEROSPACE, A DIVISION OF TEXTRON, 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Ninth Floor, Federal Building, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.