Litton System, Inc.

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Triad-Utrad Division of Litton Systems, Inc. and United Automobile, Aerospace and Agricultural Im- plement Workers of America (UAW). Cases 26-CA-4978, 26-CA-5047, 26-CA-5151, 26-CA-5189, 26-CA-5030,-2,-3, 26-CA-5262, and 26-RC-4700. May 7, 1975 ORDER DENYING MOTIONS ,BY MEMBERS FANNING, JENKINS, AND KENNEDY On September 30, 1974, the Regional Director for Region 26 of the National Labor Relations Board is- sued an Amended Consolidated Complaint in Cases 26-CA-4978, 5047, 5189, 5151, and 5030,-2,-3, alleg- ing that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended. On February 14, 1975, the Regional Director for Region 26 issued a complaint in Case 26-CA-5262 that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, and that Case 26-RC-4700 had been consolidated therewith and with the above-mentioned proceedings. On February 25, 1975, Respondent filed with the Board a motion for summary judgment and for an order dismissing portions of the complaint in certain of the above-captioned cases, and that the Board direct another election in Case 26-RC-4700. Respondent as- serts, in substance, that the complaint in Case 26-CA-5262 does not presently allege a violation of the Act, and that the remedy sought is not in accord with the Board's ruling in SteelFab, Inc., 212 NLRB 363 (1974), and that the issues involved in Case 26-CA-5030,-2,-3 concerning the alleged discrimina- tory discharge of certain employees were resolved by the Regional Director in Case 26-RC-4700.1 With re- gard to Respondent's motion that the Board direct another election in Case 26-RC-4700, Respondent argues that, inasmuch as the Union's offer to waive initiation fees was found to be ambiguous by the Re- gional Director in his investigation of Respondent's objections to the election, another election is warranted in view of the Supreme Court's decision in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973), and Board precedent. 1 In Case 26-RC-4700, the Regional Director recommended and the Board agreed that a hearing be held on the objections concerning the con- duct of these alleged discnmmatees We note further that despite the Re- gional Director's original decision not to issue a complaint, on appeal, the General Counsel directed the Regional Director to issue the complaint because the discharges of the alleged discrimmatees raised issues which warrant Board determination on the basis of record testimony with respect to these alleged discriminatees. 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. The Board, having duly considered the matter, is of the opinion that the issues raised by the above-men- tioned complaint and with regard to Case 26-RC-4700 would best be resolved on the basis of record testimony developed at the hearing held before the Administrative Law Judge on the remaining con- solidated complaint, without prejudice to Respondent's renewing its motions and contentions before the Ad- ministrative Law Judge. Contrary to our dissenting colleague, we are making no determination on the mer- its of the allegations of the complaint in Case 26-CA-5262 or the validity of the objections to the election in Case 26-RC-4700, nor are we ordering any- one to do anything at this point. We are simply permit- ting the consolidation of these cases for hearing to avoid time-consuming and costly piecemeal litigation in separate forums, as has long been our practice with representation and complaint cases when they involve interrelated issues. Further, this action will provide a full and complete record after hearing for final disposi- tion of these cases on the merits by the Board. ORDER It is hereby ordered that Respondent's motion for summary judgment and for an order dismissing por- tions of the complaint in Cases 26-CA-5030,-2,-3 and the complaint in Case 26-CA-5262 be, and they hereby are, denied. IT IS FURTHER ORDERED that Respondent's motion that the Board direct another election in Case 26-RC- 4700 be, and it hereby is, denied. MEMBER KENNEDY, dissenting: I would grant Respondent's motion for summary judgment and dismiss the complaint in Case 26-CA-5262. I do not think a respondent should be required to defend a complaint which recites that viola- tions will be alleged in the future "if " the Board 'overrules election objections on which we directed a hearing by order dated September 4, 1974, I fail to see how a respondent can be expected to answer and de- -fend against possible violations which the General Counsel is now prepared to allege only as a contin- gency. It is unfair to Respondent to litigate a contin- gency which may never happen. On March 14, 1974, an election was conducted among Respondent's production and maintenance em- ployees at Blytheville, Arkansas. Objections to that election were filed and the Regional Director, after investigation recommended that a hearing be held on Objections 1 and 4 of Respondent. In an order dated 217 NLRB No. 145 TRIAD-UTRAD DIV. OF LITTON SYSTEMS, INC September 4, 1974, the Board directed the hearing recommended by the Regional Director. The hearing has not been held. Presumably, the long delay in the hearing has been occasioned by the delay in issuing the complaint in Case 26-CA-5262.2 The allegations which the General Counsel states he may make at some future time if the Board ever over- rules the Employer's objections relate to the Em- ployer's layoff of a part of its work force commencing on March 15, 1974, without bargaining with the Union. The employees were selected for layoff on the basis of departmental seniority. It is clear that the layoffs were for economic reasons and on a nondiscriminatory basis. The Regional Director and the General Counsel have so ruled. In a letter dated May 8, 1974, the Regional Director dismissed the charge in Case 26-CA-5047 insofar as it related to the layoff of the 78 employees laid off begin- ning on March 15 and who are the employees named in the complaint in Case 26-CA-5262. That letter stated: With respect to the allegation that the Employer violated Section 8(a)(3) and (1) of the Act by lay- ing off certain of its employees, the investigation disclosed that as a direct result of a substantial decrease in orders for color televisions yokes, the Employer, commencing on March 15, 1974, laid off 78 employees at its Blytheville, Arkansas, plant. The investigation showed that the Blythe- ville plant was the only domestic plant of the Em- ployer engaged in the manufacture of color yokes at the time of the layoff, and there was no evidence that any other facility of the Employer engaged in the manufacture of this product after the com- mencement of the layoff. Employees were selected for layoff on the basis of departmental seniority and, although there was no history of a prior layoff at the Blytheville location, it was concluded that there was insufficient evidence to show that em- ployees were selected for layoff because they joined or assisted the Union. While there has been no increase in the Employer's employee comple- ment since the layoff was completed on March 29, 1974, the Employer has rehired approximately 18 employees since March 29 in order to fill vacancies created by the voluntary departure of retained employees. The investigation showed that there was insufficient evidence to establish that the Employer failed to select employees for rehire be- cause they joined or supported the Union. Rather, three of those employees rehired were among the 24 individuals alleged in the charge to have been 2 The charge in Case 26-CA-5262 was filed August 20, 1974, and the hypothetical complaint issued February 14, 1975 843 laid off for discriminatory reasons. As a result of the investigation, merit was found to certain alle- gations of independent violations of Section 8(a)(1) and to the allegation that the discharge of employee Phyllis Trammel constituted a violation of Section 8(a)(3) and (1) of the Act. Absent settle- ment, a complaint alleging these acts as violations will issue in the near future. For those reasons recited hereinabove, I am refusing to issue a com- plaint alleging the layoff or the selection of em- ployees for layoff to constitute violations of the Act. By letter dated September 13, 1974, the General Counsel sustained the Regional Director's dismissal. He stated: The appeal is denied substantially for the reasons set forth in the Regional Director's letter of May 8, 1974. Although the evidence indicated that some employees worked overtime during the period of the layoff, this fact would not warrant a contrary conclusion in light of the evidence re- vealed by the investigation substantiating the Company's business justification for the layoff. Moreover, contrary to the contention on appeal, the evidence failed to establish that the Company discriminated against employees who supported the Union either with respect to layoffs or recall. It was noted in this regard, that substantial num- bers of employees were subsequently recalled by the Company and that the charge did not specific- ally allege that the method of recall used by the Company was discriminatory. In any event, the investigation did not establish that the recall of employees was, itself unlawful. Under these cir- cumstances, the fact that the Company advertised openings for production workers in July 1974 would not warrant a contrary conclusion. The evidence was also insufficient to establish that warnings given to certain employees were based on unlawful considerations rather than the reasons advanced by the Company. Assuming arguendo that the Board concludes after the hearing on objections in Case 26-RC-4700 that the Union should be certified, I am unwilling to give such certification retroactive application. the Supreme Court's decision in Ray Brooks v. N.L.R.B.3 teaches that a certification must be honored for 1 year after its issuance, absent unusual circumstances . I am aware of no authority suggesting that a party should anticipate how this Board might rule on objections before a hear- 3 348 U S 96 (1954) 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing is conducted and give retroactive effect to a Board certification. Respondent cannot now be required to anticipate what this Board might someday do with its objections. Whatever the future disposition of those objections, I do not believe it proper to now entertain a hypothetical complaint alleging a possible violation of Section 8(a)(5) contingent upon this Board's ultimate resolu- tion of the representation case . It is improper to require an employer to bargain with a petitioning union con- cerning layoffs in accordance with departmental seni- ority required by, bona fide economic considerations before this Board rules upon the merits of that em- ployer's objections in the underlying representation case. The Respondent's motion for summary judgment and dismissal of the complaint in Case 26-CA-5262 should be granted.