Teledyne, Landis Machine

TELEDYNE, LANDIS MACHINE Teledyne, Landis Machine and International Associa- tion of Machinist and Aerospace Workers, District No. 98, AFL-CIO. Case 6-CA-7279 June 27, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on February 15, 1974, by Dis- trict No. 98, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Teledyne, Landis Ma- chine, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a com- plaint on March 8, 1974, 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 an Administrative Law Judge 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 20, 1973, following a Board election in Case 6-RC-6443, 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 25, 1974, and at all times thereaf- ter, Respondent 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 March 14, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 16, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 26,1974, 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 a response to Notice To Show Cause with attached affidavits, enti- tled "Answer to Motion for Summary Judgment and 'Official notice is taken of the record in the representation proceeding, Case 6-RC-6443, as the term "record" is defined in Secs 102.68 and 102 .69(f) of the Board's Rules and Regulations, Serves 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, enfd. 415 F.2d 26 (C.A. 5, 1969); 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 73 Respondent's Motion to Dismiss Complaint." The General Counsel has filed a Reply in opposition to Respondent's answer. 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 In its answer to the complaint and response to the Notice To Show Cause, the Respondent basically contends that the certification of the Union in the underlying representation case is invalid on the basis of its objection therein, and that the Regional Direc- tor denied it due process by not directing a hearing thereon, not considering its submissions, and in not answering its requests for clarification of the form the evidence it sought to submit was to take. Our review of the record herein, including the re- cord in Case 6-RC-6443, reveals that, after a hearing, an election was conducted on August 9, 1973, pur- suant to the direction of the Acting Regional Director, and resulted in a 254 to 173 vote in favor of the Union with 4 void ballots. The Respondent filed a timely Objection to Conduct Affecting the Results of the Election, and requested a hearing thereon. The objec- tion alleged, in substance, that the Union had distrib- uted a pamphlet to employees 2 days prior to the election which contained numerous false statements, specifically that the Respondent's wages and benefits were lower than other Teledyne plants at which the Union had a contract, and that the Respondent's wage rates were lower than other organized machine tool shops, at a time when the Respondent could not effectively reply thereto. The Acting Regional Direc- tor, in the course of his investigation, requested addi- tional information from the Respondent concerning the objection, to which the Respondent, on October 19, 1973, and again on December 18, 1973, replied by requesting clarification of the type of information needed and the holding of a hearing to enable it to present its case. On December 20, 1973, the Acting Regional Director, without replying to the requests, issued his Supplemental Decision and Certification of Representative in which he found that the alleged misrepresentations had been major campaign issues and that the Respondent had adequate opportunity and possessed sufficient information to respond to any inaccuracies in the pamphlet. The Acting Region- al Director also found that the Respondent's objec- tions raised no substantial or material issues warranting a hearing. Accordingly, he overruled the 212 NLRB No. 11 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objections and certified the Union. The Respondent filed a timely request for review of this Supplemental Decision, reiterating its objections and requests for a hearing, and asserting that the Act- ing Regional Director had not allowed the record to be developed by failing to respond to its requests for clarification and by not considering its submissions. The Board, by order of January 25, 1974, denied the Respondent's request for review on the ground that it raised no substantial issues warranting review. In its response to the Notice To Show Cause, the Respondent reasserts its contention that the Acting Regional Director denied it due process by not afford- ing it the opportunity to submit evidence at a hearing. This contention was raised and considered in the Re- quest for Review. 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 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 and deny the Respondent's motion to dismiss the complaint herein.4 2 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) 7 Respondent attaches affidavits by its president and treasurer in support of its contentions The Respondent does not show that the information in the affidavits, in its present form, was previously unavailable for consideration at the various junctures of the representation proceeding, or that the affida- vits contain newly discovered evidence Accordingly, the evidence submitted does not warrant the relitigation of the representation case issues 4 In its answer to the complaint Respondent , inter aha, submits that it is without sufficient information to admit or deny the Union's status as a labor organization, which, under Sec 102 20 of the Board's Rules and Regulations, operates as a denial Respondent also denies that the unit is appropriate for the purpose of collective bargaining However, these issues were litigated at the hearing in the underlying representation case, and may not be relitigated herein Cherokee Nitrogen Company, 200 NLRB No 89 In its answer to the complaint, the Respondent also denies the allegations of the request and refusal to bargain However, attached to the General Counsel's Motion for Summary Judgment are copies of correspondence between the Union and the Respondent. By letter dated January 10 and 31, 1974, the Union requested information and the commencement of negotia- tions, to which the Respondent replied on January 25 and February 7, 1974, that negotiations should not commence until legal questions involving evi- dence it sought to submit had been resolved. Respondent has submitted nothing to controvert these documents , or their contents Accordingly, we deem these allegations of the complaint to be true . The May Department Stores Company, 186 NLRB 86, Carl Simpson Buick, Inc, 161 NLRB 1389 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a Pennsylvania corporation with its principal offices located in Waynesboro, Pennsylva- nia, is engaged in the manufacture and nonretail sale of machine tools. During the 12-month period imme- diately preceding the issuance of this complaint and notice of hearing in this proceeding, Respondent re- ceived goods and materials valued in excess of $50,000 for use at its Waynesboro, Pennsylvania, fa- cility, directly from points outside the Common- wealth of Pennsylvania. During the same period, Respondent sold and shipped goods and materials valued in excess of $50,000 from its Waynesboro, Pennsylvania, facility directly to points outside the Commonwealth of Pennsylvania. 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 mean- ing of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11 THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aero- space Workers , District No. 98, 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 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 production planners, expediters, stock clerks and shipping clerk-parcel post, employed at Employer's Waynesboro, Pennsylvania, facili- ty, excluding detailers, layout draftsmen, design- ers, design engineers, research and service technicians, sales service engineers, laboratory technicians, engineering apprentices, engineering associates, engineering clerks, engineering cleri- TELEDYNE, LANDIS MACHINE cals, methods engineers, methods leadman, tool and jig designers, methods clerk, sales correspon- dents, order writers, sales clericals, quotation clerks, assistant to the purchasing agent, all other employees, office clerical employees, watchmen, firemen and guards, professional employees and supervisors as defined in the Act. 2. The certification On August 9, 1973, 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 6 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 December 20, 1973, 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 January 10, 1974, 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 January 25, 1974, 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 collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since January 25, 1974, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es 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 described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY 75 Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes' the following: CONCLUSIONS OF LAW 1. Teledyne, Landis Machine is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cluding production planners, expediters, stock clerks and shipping clerk-parcel post, employed at the Employer's Waynesboro, Pennsylvania, facility, ex- cluding detailers, layout draftsmen, designers, design engineers, research and service technicians , sales ser- vice engineers, laboratory technicians, engineering apprentices, engineering associates, engineering clerks, engineering clericals, methods engineers, methods leadmen, tool and jig designers, methods clerk, sales correspondents, order writers, sales cleri- cals, quotation clerks, assistant to the purchasing agent, all other employees, office clerical employees, watchmen, firemen and guards, professional employ- ees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since December 20, 1974, the above-named la- bor 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. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By refusing on or about January 25, 1974, 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. 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 mean- ing 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 Rela- tions Board hereby orders that Respondent, Tele- dyne, Landis Machine, 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 International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees, in- cluding production planners, expediters, stock clerks and shipping clerk-parcel post, employed at the Employer's Waynesboro, Pennsylvania, facility, excluding detailers, layout draftsmen, designers, design engineers, research and service technicians, sales service engineers , laboratory technicians, engineering apprentices, engineering associates, engineering clerks, engineering cleri- cals, methods engineers, methods leadman, tool and jig designers, methods clerk, sales correspon- dents, order writers , sales clericals , quotation clerks, assistant to the purchasing agent, all other employees, office clerical employees, watchmen, firemen and guards, professional employees 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 Waynesboro, Pennsylvania, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 6, 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 6, 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 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Inter- national Association of Machinists and Aero- space Workers, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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, TELEDYNE, LANDIS MACHINE 77 and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, including production planners, expediters, stock clerks and shipping clerk-parcel post, employed at the Employer's Waynesboro, Pennsylvania, facility, excluding detailers, lay- out draftsmen, designers, design engineers, re- search and service technicians, sales service engineers, laboratory technicians, engineering apprentices, engineering associates, engineer- ing clerks, engineering clericals, methods engi- neers, methods leadman, tool and jig designers, methods clerk, sales correspon- dents, order writers, sales clericals, quotation clerks, assistant to the purchasing agent, all other employees, office clerical employees, watchmen, firemen and guards, professional employees and supervisors as defined in the Act. TELEDYNE, LANDIS MA- CHINE (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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.