LTV Aerospace Corp.

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service Technology Corporation , a Subsidiary of LTV Aerospace Corporation and District 37, Internation- al Association of Machinists and Aerospace Work- ers, AFL-CIO. Case 23-CA-4428 October 11, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on July 10, 1972, by District 37, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Un- ion, and duly served on Service Technology Corpora- tion, a Subsidiary of LTV Aerospace 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 July 11, 1972, 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 before an Administrative Law Judge I were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on June 9, 1972, following a Board election in Case 23-RC-3577, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;2 and that, commencing on or about June 13, 1972, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, 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 July 20, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 31, 1972, counsel for the General Coun- sel filed directly with the Board a Motion To Transfer and Continue Case Before the Board and Motion for Summary Judgment, requesting that the Board take official notice of the records in consolidated Cases 23-RC-3577 and 23-CA-3946-1 (196 NLRB No. 160), and that the pleadings herein be considered to- t The title of "Tnal Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 ' Official notice is taken of the record in the representation proceed- ing, Case 23-RC-3577, 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. gether therewith, alleging that the Respondent's an- swer to the complaint raised no issues which were not raised and decided in the prior proceedings, and pray- ing the Board to grant the Motion for Summary Judg- ment. Subsequently, on August 2, 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. Respondent thereafter filed an Opposi- tion to 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 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 The thrust of the Respondent's answer to the complaint and its Opposition to the Motion for Sum- mary Judgment addresses itself essentially to the Board's finding that Barbara B. Salvato was not a confidential employee under Board law. Upon our review of the record, including the records in Cases 23-RC-3577 and 23-CA-3946-1, we find no merit in this contention. Pursuant to a Decision and Direction of Elec- tion, an election was conducted on May 13, 1971. The tally of ballots served on the parties at the conclusion of the election reflected that of the valid votes cast, eight ballots were for the Union, six ballots were cast against the Union, and four ballots, determinative of the results of the election, were challenged. No objec- tions were filed to the conduct of the election. Inasmuch as the challenged ballots raised sub- stantial and material issues, the Regional Director, on June 9, 1971, issued an order directing hearing and consolidating cases, in which he consolidated Cases 23-RC-3577 and 23-CA-3946-1 for the purpose of hearing, ruling, and decision by an Administrative Law Judge. The Regional Director's order also direct- ed that thereafter Case 23-RC-3577 be transferred to and continued before the Board. During the course of the hearing, the parties agreed that the ballot of Richard Hopkins should not be counted. The Union withdrew its challenge to the ballot of Mary Tucker and agreed that her ballot should be opened and counted. On December 22, 1971, the Administrative Law Judge issued his Deci- sion, in which he found, contrary to the Regional Director, that Barbara B. Salvato was not a confiden- tial employee and recommended that the challenged ballots of Barbara B. Salvato and Patricia Hopkins be opened and counted. Thereafter, the Respondent filed exceptions and a supporting brief which were 199 NLRB No. 102 SERVICE TECHNOLOGY CORPORATION 667 directed essentially to the Administrative Law Judge's finding that Barbara B. Salvato was not a confidential employee under Board law and to his conclusion that she was unlawfully discharged. On May 14, 1972, the Board issued its Decision, Order, and Direction in Cases 23-RC-3577 and 23- CA-3946-1,3 in which it affirmed the rulings, find- ings, conclusions, and recommendations of the Ad- ministrative Law Judge and ordered the Regional Director to open and count the ballots of Barbara B. Salvato, Patricia Hopkins, and Mary Tucker and thereafter prepare and cause to be served on the par- ties a revised tally of ballots, including therein the count of said ballots, and that the appropriate certifi- cation be issued. The revised tally of ballots reflected that of the 17 valid ballots cast, 9 were cast for the Union and 8 were cast against the Union, and, ac- cordingly, on June 9, 1972, the Union was certified as the collective-bargaining representative in the unit herein found appropriate. It is well settled that in the absence of newly discovered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding alleg- ing a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigat- ed in a prior representation proceeding.4 All issues raised by the Respondent in this pro- ceeding 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 Respondent is, and has been at all times material herein, a corporation duly organized under and ex- isting by virtue of the laws of the State of Delaware and has maintained its principal office and place of business at the Manned Spacecraft Center of the Na- tional Aeronautics and Space Administration, in Har- ris County, Texas, herein called NASA site, where it 3 Service Technology Corporation, a Subsidiary of LTV Aerospace Corpora- tion, 196 NLRB No. 160. 4 See Pittsburgh plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); NLRB Rules and Regulations , Secs. 102.67(f) and 102.69(c). provides facility support services. Respondent's NASA site is the only facility involved in this pro- ceeding. During the preceding 12 months, which are representative of all times material herein, in the course and conduct of said operations, Respondent purchased, transferred, and delivered to its NASA site goods and materials valued in excess of $50,000 di- rectly from States of the United States other than the State of Texas. 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. II. THE LABOR ORGANIZATION INVOLVED District 37, International Association of Machin- ists and Aerospace Workers, AFL-CIO, 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All Visitor Services Section, Public Informa- tion Section and Exhibit Section employees, per- forming services for the Employer at the National Aeronautics and Space Admin- istration's Manned Spacecraft Center, Houston, Texas, including full-time and regular part-time escorts, administrative clerks, exhibit specialists, clerk expeditors, exhibits schedulers, research writers and communications coordinators, ex- cluding fabricators, refurbishers and warehouse- men under the Exhibits Section, the secretary to the project manager, guards, watchmen and su- pervisors as defined in the Act. 2. The certification On May 13, 1971, 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 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 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in said unit on June 9, 1972, 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 June 13, 1972, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described, unit. Commencing on or about June 13, 1972, 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 June 13, 1972, 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with its oper- ations 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 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, bargain collectively with the Union as the exclusive representative of all employees in the appro- priate unit, and, if an understanding is reached, em- body such understanding in a signed agreement. In order to insure that the employees in the ap- propriate 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAw 1. Service Technology Corporation, a Subsidiary of LTV Aerospace Corporation, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 37, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All Visitor Services Section, Public Informa- tion Section and Exhibit Section employees, perform- ing services for the Employer at the National Aeronautics and Space Administration's Manned Spacecraft Center, Houston, Texas, including full- time and regular part-time escorts, administrative clerks, exhibit specialists, clerk expediters, exhibits schedulers, research writers and communications co- ordinators, excluding fabricators, refurbishers and warehousemen under the Exhibits Section, the secre- tary to the project manager, guards, watchmen 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 June 9, 1972, the above-named labor organization has been and now is the certified and exclusive 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 June 13, 1972, 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 Respon- dent 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. 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 meaning of Section 2(6) and (7) of the Act. SERVICE TECHNOLOGY CORPORATION 669 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Service Technology Corporation, a Subsidiary of LTV Aero- space Corporation, 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 condi- tions of employment with District 37, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All Visitor Services Section, Public Informa- tion Section and Exhibit Section employees, per- forming services for the Employer at the National Aeronautics and Space Admin- istration's Manned Spacecraft Center, Houston, Texas, including full-time and regular part-time escorts, administrative clerks, exhibit specialists, clerk expediters, exhibits schedulers, research writers and communications coordinators, ex- cluding fabricators, refurbishers and warehouse- men under the Exhibits Section, the secretary to the project manager, guards, watchmen and su- pervisors 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 facility at the Manned Spacecraft Center in Harris County, Texas, copies of the at- tached notice marked "Appendix."' 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 Re- spondent 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. S 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 Dis- trict 37, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclu- sive representative of the employees in the bar- gaining 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 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, em- body such understanding in a signed agreement. The bargaining unit is: All Visitor Services Section, Public Infor- mation Section and Exhibit Section employ- ees, performing services for the Employer at the National Aeronautics and Space Administration's Manned Spacecraft Center, Houston, Texas, including full-time and reg- ular part-time escorts, administrative clerks, exhibit specialists, clerk expediters, exhibits schedulers, research writers and communica- tion coordinators, excluding fabricators, refur- bishers and warehousemen under the Exhibits Section, the secretary to the project manager, guards, watchmen and supervisors as defined in the Act. Dated By SERVICE TECHNOLOGY CORPORA- TION, A SUBSIDIARY OF LTV AEROSPACE CORPORATION (Employer) (Representative) (Title) 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced Any questions concerning this notice or compli- by anyone. ance with its provisions may be directed to the This notice must remain posted for 60 consecu- Board's Office, Dallas-Brazos Building, 1125 Brazos tive days from the date of posting and must not be Street, Houston, Texas 77002, Telephone 713-226- altered, defaced, or covered by any other material. 4296.