Teledyne Economic Development

58 321 NLRB No. 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 In its response to the Motion for Summary Judgment, the Re- spondent argues that the Board should reconsider the rule announced in Management Training Corp., 317 NLRB 1355 (1995), and that special circumstances exist for the Board to reconsider its decision to exercise jurisdiction in the representation proceeding. The Re- spondent’s arguments that the Board should reconsider the rule in Management Training were fully considered and rejected by the Board in the representation proceeding. Further, contrary to the Re- spondent’s contention, we find no special circumstances here war- ranting reconsideration of the Board’s decision in that proceeding or denial of the Motion for Summary Judgment. Even assuming, as as- serted by the Respondent, that the Union’s bargaining proposals in- clude provisions on wages and other terms of employment that could not be changed without the approval of the Department of Labor, this is not a basis for reconsidering the Board’s original jurisdic- tional finding. See Management Training, 317 NLRB at 1359. Nor does it excuse the Respondent’s blanket refusal to bargain with the Union. Indeed, it is clear that the Respondent would have refused to bargain with the Union regardless of the nature of its proposals. Thus, in its reply to the Union’s letter requesting bargaining and at- taching bargaining proposals, the Respondent stated that it was refus- ing to bargain in order to test the Union’s certification, and the Re- spondent admits in its answer and response that it is refusing to bar- gain with the Union for this reason. In the underlying representation proceeding, Member Cohen dis- sented and, consistent with his dissent in Management Training Corp., would have granted the Respondent Employer’s request for review of the Regional Director’s Decision and Direction of Elec- tion. Accordingly, Member Cohen does not join in the finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the exclusive representative of the em- ployees in the units. 2 Inasmuch as we are granting the General Counsel’s Motion for Summary Judgment, we find it unnecessary to pass on the General Counsel’s motion to strike portions of the Respondent’s answer. 3 The General Counsel’s motion to amend the complaint to reflect the relationship between the Respondent and Teledyne, Inc. as set forth in the Respondent’s answer is granted. Teledyne Economic Development and Service Per- sonnel and Employees of the Dairy Industry, Teamsters Local Union No. 205 a/w Inter- national Brotherhood of Teamsters, AFL–CIO. Case 6–CA–27849 April 30, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN Upon a charge filed on January 31, 1996, the Gen- eral Counsel of the National Labor Relations Board issued a complaint on February 22, 1996, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s cer- tification in Case 6–RC–11227 as representative of cer- tain instructors and counselors employed by the Re- spondent (the Instructor/Counselor unit), and in Case 6–RC–11230 as representative of certain licensed prac- tical nurses employed by the Respondent (the LPN unit). (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respond- ent filed an answer admitting in part and denying in part the allegations in the complaint and asserting af- firmative defenses. On March 25, 1996, the General Counsel filed a Motion for Summary Judgment. On March 28, 1996, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. On April 18, 1996, the Re- spondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain, but attacks the validity of the cer- tification on the basis of its contention in the represen- tation proceeding that the Board lacks jurisdiction. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding.1 We therefore find that the Respondent has not raised any representation issue that is properly lit- igable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times the Respondent has been en- gaged in, among other things, the management and op- eration of the Pittsburgh Job Corps Center pursuant to a contract with the United States Department of Labor (DOL). The Respondent is a division of Teledyne In- dustries, a wholly owned subsidiary of Teledyne, Inc., a Delaware corporation headquartered in Los Angeles, California.3 During the 12-month period ending December 31, 1995, the Respondent, in conducting its business oper- ations, derived gross revenues in excess of $500,000 and purchased and received for use at the Pittsburgh Job Corps Center facility goods valued in excess of $50,000 directly from points outside the Common- wealth of Pennsylvania. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), 59 TELEDYNE ECONOMIC DEVELOPMENT 4 Although the Respondent’s answer denies the complaint allega- tions that the following units are appropriate units for collective bar- gaining, it is clear from the Respondent’s answer and response that the sole basis for the denial of these allegations is the Respondent’s contention that the Board lacks jurisdiction. In any event, having failed to raise any issue as to the scope and composition of the units in the representation proceeding, the Respondent is precluded from doing so in this proceeding. and (7) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the elections held October 6, 1995, the Union was certified on October 17, 1995, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate units:4 Case 6–RC–11227 All full-time and regular part-time instructors and counselors employed by the Employer at the Pitts- burgh Job Corps Center in Pittsburgh, Pennsyl- vania; excluding all office clerical employees, confidential employees, and guards, professional employees and supervisors as defined in the Act, and all other employees. Case 6–RC–11230 All full-time and regular part-time licensed prac- tical nurses employed by the Employer at the Pittsburgh Job Corps Center in Pittsburgh, Penn- sylvania; excluding all office clerical employees, confidential employees, and guards, professional employees and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since January 10, 1996, the Union, by letter, has re- quested the Respondent to bargain with it as the exclu- sive bargaining representative of the foregoing Instructor/Counselor and LPN units, and, since January 29, 1996, the Respondent has failed and refused to do so. We find that this refusal constitutes an unlawful re- fusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after January 29, 1996, to bargain with the Union as the exclusive col- lective-bargaining representative of employees in the appropriate units, the Respondent has engaged in un- fair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the un- derstanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); and Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Teledyne Economic Development, Pitts- burgh, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Personnel and Employees of the Dairy Industry, Teamsters Local Union No. 205 a/w International Brotherhood of Teamsters, AFL–CIO, as the exclusive bargaining rep- resentative of the employees in the bargaining units. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate units on terms and conditions of employ- ment and, if an understanding is reached, embody the understanding in a signed agreement: Case 6–RC–11227 All full-time and regular part-time instructors and counselors employed by the Employer at the Pitts- burgh Job Corps Center in Pittsburgh, Pennsyl- vania; excluding all office clerical employees, confidential employees, and guards, professional employees and supervisors as defined in the Act, and all other employees. Case 6–RC–11230 All full-time and regular part-time licensed prac- tical nurses employed by the Employer at the Pittsburgh Job Corps Center in Pittsburgh, Penn- sylvania; excluding all office clerical employees, confidential employees, and guards, professional employees and supervisors as defined in the Act, and all other employees. 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 If 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.’’ (b) Post at its facility in Pittsburgh, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’5 Copies of the notice, on forms provided by the Re- gional Director for Region 6, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Service Person- nel and Employees of the Dairy Industry, Teamsters Local Union No. 205 a/w International Brotherhood of Teamsters, AFL–CIO, as the exclusive representative of the employees in the bargaining units. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the following bargaining units: Case 6–RC–11227 All full-time and regular part-time instructors and counselors employed by us at the Pittsburgh Job Corps Center in Pittsburgh, Pennsylvania; exclud- ing all office clerical employees, confidential em- ployees, and guards, professional employees and supervisors as defined in the Act, and all other employees. Case 6–RC–11230 All full-time and regular part-time licensed prac- tical nurses employed by us at the Pittsburgh Job Corps Center in Pittsburgh, Pennsylvania; exclud- ing all office clerical employees, confidential em- ployees, and guards, professional employees and supervisors as defined in the Act, and all other employees. TELEDYNE ECONOMIC DEVELOPMENT