Cessna Aircraft Co.

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aircraft Radio Corporation (Division of the Cessna Aircraft Co.) and International Union of Electrical, Radio & Machine Workers, AFL-CIO. Case 22- CA-5737 October 25, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on January 3, 1974, by Inter- national Union of Electrical, Radio & Machine Workers, AFL-CIO, herein called the Union, and duly served on Aircraft Radio Corporation (Division of the Cessna Aircraft Co.), herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Acting Regional Direc- tor for Region 22, issued a complaint and notice of hearing on February 22, 1974, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive 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 13, 1973, following a Board election, conducted pursuant to an agreement for consent election, in Case 22- RC-5855, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate;' and that, commencing on or about December 14, 1973, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On March 7, 1974, Re- spondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent admits all of the factual allegations of the complaint, including its refusal to recognize and bargain with the Union. As affirma- tive defenses, the Respondent in its answer contends 'Official notice is taken of the record in the representation proceeding, Case 22-RC-5855, as the term "record" is defined in Secs . 102 68 and 102 69(g) of the Board's Rules and Regulations , Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), 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 (1967), enfd 397 F 2d 91 (C A. 7, 1968); Sec 9(D) of the NLRA. that the Union's certification is invalid by reason of the Acting Regional Director's errors at the several stages of the underlying representation case. On March 25, 1974, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment and memorandum in support there- of, submitting, in effect, that Respondent's answer to the complaint raises no issue which is properly litiga- ble in this unfair labor practice proceeding, and re- questing the Board to grant the Motion for Summary Judgment. Subsequently, on April 2, 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. Thereafter, Respondent filed a memo- randum in opposition to the General Counsel's Mo- tion for Summary Judgment, with exhibits, and the General Counsel filed a reply thereto. 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 As reflected above, the Respondent's answer ad- mits all of the factual allegations of the complaint, including its refusal to recognize and bargain with the Union which had been certified as the collective- bargaining representative of the employees described in the complaint . In its affirmative defenses to the complaint, as well as in its response to the notice to show cause, with exhibits,' the Respondent attacks the Acting Regional Director's several rulings at the various stages of the representation proceeding, in- cluding the Acting Regional Director's denial of the Respondent's motion for reconsideration and its sup- plemental arguments in support thereof.3 By this as- sertion, and more specifically by its denials, in whole or in part, of the allegations of the complaint, the affirmative defenses alleged in its answer , and the arguments propounded in its response to the General Counsel's motion, the Respondent is attempting to relitigate the same issues which it raised in the repre- 2 The exhibits are the same as those previously considered by the Acting Regional Director in the representation proceeding and are entitled "Air- craft Radio Corporation documents submitted to the Regional Director in support of Objections to Election " After considering the Respondent's request that the Report on Objec- tions and Certification of Representative issued by the Acting Regional Director be reconsidered in light of N L R B v Savair Manufacturing Co, 414 U S 270 ( 1973), the Acting Regional Director on January 30, 1974, issued his Order on Motion for Reconsideration in which he found that the Respondent's motion raised no substantial or material issues with regard to conduct affecting the results of the election warranting a revocation of the ruling previously made 214 NLRB No. 69 AIRCRAFT RADIO CORPORATION 359 sentation proceeding, Case 22-RC-5855. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding .4 Moreover, the election in the underlying representation case was conducted pursuant to an agreement for consent election, which specified on its face that determina- tions by the Regional Director (Acting Regional Di- rector herein) are final and binding. It is the Board's policy not to undertake to review the merits of such determinations unless it is shown that there has been fraud, misconduct, or such gross mistakes as to imply bad faith and support a conclusion that the Acting Regional Director's rulings were arbitrary or capri- cious.' On the record here, we are unable to conclude that the Acting Regional Director's determinations, in Case 22-RC-5855, were arbitrary or capricious. On the basis of the foregoing, we find that the Re- $pondent had, and utilized, the opportunity to raise and have decided in the prior representation case in the forum it had chosen the issues which it now raises by its answer and its opposition to the General Counsel's Motion for Summary Judgment. The Re- spondent does not allege any newly discovered or previously unavailable evidence, or the existence of any special circumstances which would require the Board to examine the determination made by the Acting Regional Director in the prior representation proceeding. Accordingly, as the Respondent has not raised any issue properly litigable in this unfair labor practice proceeding, we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: and at all times material herein has been continuous- ly, engaged at said plant in the manufacture, sale, and distribution of airborne communications and navigational equipment, and related products. Respondent's Boonton plant is its only facility in- volved in this proceeding. In the course and conduct of Respondent's business operations during the pre- ceding 12 months, said operations being representa- tive of its operations at all times material herein, Re- spondent caused to be manufactured, sold, and dis- tributed at said Boonton plant products valued in excess of $50,000, of which, products valued in ex- cess of $50,000 were shipped from said Boonton plant in interstate commerce directly to States of the United States other than the State of New Jersey. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 International Union of Electrical, Radio & Ma- chine 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: 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 Kansas. At all times material herein, Respondent has maintained a plant at Rockaway Valley Road, Boonton, New Jersey, herein called the Boonton plant, and is now, 4 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). 5 This policy has been consistently affirmed by the Federal Courts of Appeals See N L R B v Hood Corporation and Contractors ' Equipment Sup- ply Company d/b/a Cesco, 346 F 2d 1020 (C A. 9, 1965), N L R B v General Tube Co, 331 F.2d 751 (C A. 6, 1964), N L R B v Parkhurst Manufacturing Company, Inc, 317 F.2d 513 (C.A 8, 1963); Buffalo Arms, Inc v N L R B, 224 F 2d 105 (C A. 2, 1955). All production and maintenance employees employed by the Respondent at the Boonton plant, but excluding all office clerical employees and plant clerical employees, model shop em- ployees, professional employees, guards and su- pervisors as defined in the Act. 2. The certification On September 28, 1973, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted, pursuant to an agreement for con- sent election, under the supervision of the Acting Re- gional Director for Region 22, designated the Union as their representative for the purpose of collective- bargaining with the Respondent. The Union was cer- 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tified as the collective-bargaining representative of the employees in said unit on December 13, 1973, and the Union continues to be such exclusive repre- sentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about December 14, 1973, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about December 14, 1973, 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 December 14, 1973, 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 prac- tices 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, traf- fic, 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 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the bar- gaining 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964). cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), 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. Aircraft Radio Corporation (Division of the Cessna Aircraft Co.) is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio & Ma- chine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by the Respondent at the Boonton plant, but excluding all office clerical employees and plant cler- ical employees, model shop 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 December 13, 1973, the above-named la- bor 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 December 14, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices 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 Re- lations Board hereby orders that Respondent, Air- AIRCRAFT RADIO CORPORATION 361 craft Radio Corporation (Division of the Cessna Air- craft Co.), Boonton, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (1) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with International Union of Electrical, Radio & Machine Workers, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees employed by the Respondent at the Boonton plant, but excluding all office clerical employees and plant clerical employees, model shop em- ployees, professional employees, guards 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 Boonton, New Jersey, plant copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 22, 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 no- tices to employees are customarily posted. Reason- able 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 22, 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Inter- national Union of Electrical, Radio & Machine Workers, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employees employed by the Respondent at the Boonton plant, but excluding all office clerical employ- ees and plant clerical employees, model shop employees, professional employees, guards and supervisors as defined in the Act. 6 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 11 AIRCRAFT RADIO CORPORATION (DIVISION OF THE CESSNA AIRCRAFT Co.)