Smith & Smith Aircraft Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith & Smith Aircraft Company and Local Lodge 37, International Association of Machinists and Aerospace Workers, AFLCIO. Case 15-CA-6305 April 27, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on November 23, 1976, by Local Lodge 37, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Smith & Smith Aircraft Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on December 15, 1976, 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 complaint alleges in substance that on August 10, 1976, following a Board election in Case 15-RC- 5905, 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 November 3, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative although the Union has requested and is requesting it to do so. On December 27, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 30, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On January 17, 1977, Respon- dent filed a brief in opposition. Subsequently, on January 25, 1977, 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. On January 31, 1977, Respondent thereafter filed a brief in response. i Official notice is taken of the record in the representation proceeding, Case 15-RC-5905, 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, 229 NLRB No. 46 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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, opposition to General Counsel's Motion for Summary Judgment, and response to the Notice To Show Cause the Respondent admits the refusal to bargain but contends that the certification of the Union in the underlying representation case is invalid on the basis of its objections therein, and that the Regional Director denied it due process by not directing a hearing thereon. Our review of the record herein, including the record in Case 15-RC-5905, reveals that, after a hearing, an election was conducted on June 18, 1976, pursuant to a Decision and Direction of Election of the Regional Director, and resulted in a nine-to- seven vote in favor of the Union with four challenged ballots. The Respondent filed timely objections to conduct affecting the results of the election, and requested a hearing thereon. The objections alleged in substance that the Union interfered with the election by using supervisors in its organizational campaign and an alleged discriminatee as its election observer; by promising a waiver of initiation fees for employees who joined the Union before the election; by restraining the Respondent in the selection of representatives for various purposes under the Act; by materially misrepresenting that Respondent laid off or terminated employees because of their union activities, engaged in illegal surveillance of union meetings, and threatened employees with termina- tion if they attended such meetings; and by the Union's observer recording on a separate list which employees voted in the election and engaging in improper election conduct by speaking with an eligible voter during the polling period in order to request that he contact and send another voter to the polls to vote. After an independent investigation, on August 10, 1976, the Regional Director issued a Supplemental Decision and Certification of Repre- sentative, in which he sustained all the challenges and overruled the objections in their entirety, finding that the latter did not raise any substantial or material issues affecting the results of the election or the conduct thereof. In doing so, however, he inadvertently omitted any reference to the Respon- 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, as amended. 304 SMITH & SMITH AIRCRAFT CO. dent's objection alleging that the Union's observer sought to have one employee send another employee to vote. On August 23, 1976, Respondent filed a timely request for review of the Regional Director's Supple- mental Decision in which it merely by reference restated all its objections, and specifically discussed only the objections concerning the Union's observer, namely, that the latter (1) kept a voting list separate and apart from the official one and (2) asked one employee to send another to vote, asserting as to the second of these allegations that the Regional Direc- tor failed to examine or comment upon it. Respon- dent also asserted that it had been denied due process by the Regional Director's denial of a hearing on its objections. Thereafter, on August 30, 1976, the Regional Director issued a Second Supple- mental Decision and Certification of Representative in which he found that the evidence relating to (2) above failed to raise material or substantial issues with respect to the election because neither the voter spoken to nor the voter allegedly requested to be contacted was eligible as challenges to both of their votes were properly sustained, and, further, there was no evidence to show that the observer requested the issuing voter be contacted and sent to vote. The Regional Director also affirmed his Supplemental Decision issued on August 10, 1976.2 The Board, by order of September 17, 1976, denied the Respondent's request for review on the ground that it raised no substantial issues warranting review.3 By the denial of review for lack of substantial issues the Board implicitly and necessari- ly found that Respondent raised no issue warranting hearing on its objections.4 Likewise, due process does not require such a hearing in this summary judgment proceeding because the only issues raised here were considered and determined in the representation proceeding.5 Finally, Respondent was afforded an opportunity to oppose the Motion for Summary Judgment and did so as noted above. Respondent has thus been afforded a proper forum in which to be heard and, accordingly, has not been denied due process. 6 It is well settled that in the absence of newly discovered or previously unavailable evidence or 2 As to Objection (I) above, which Respondent emphasized and dwelled upon in its request for review, the Regional Director found in his earlier decision that the Union's observer did not keep a separate list of those who voted in the election, and that the employees had no reason to believe that she did. 3 Although the denial is stated in terms relating to the Supplemental Decision of the Regional Director. in fact the Board considered that decision and the Regional Director's Second Supplemental Decision in Case 15-RC-5905 as subjects of the review requested. 4 See. e.g.. CSC Oil Company, 220 NLRB 19, 20 (1975); Allied Meat Company, 220 NLRB 27, 28 (1975); and Williams Energy Compan),, 218 NLRB 1080, 1081 (1975). 5 Target Stores, Inc., 219 NLRB 561 (1975). In this regard we also note special circumstances 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.s All issues raised by the Respondent in this proceeding 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, a Tennessee corporation, with its principal office and place of business located in New Orleans, Louisiana, is engaged in the wholesale distribution and manufacture of aircraft parts. During the 12-month period immediately preceding the issuance of this complaint and notice of hearing in this proceeding, Respondent sold and shipped directly to customers located outside the State of Louisiana goods and materials valued in excess of $50,000. We find, on the basis of the foregoing, that Respondent 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 jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local Lodge 37, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. that in its answer to the complaint Respondent denies that the unit herein is appropriate. However, in Case 15-RC-5905 that issue was fully litigated by the parties at a hearing and thereafter determined by the Regional Director in his Decision and Direction of Election. No request for review was sought of that decision. Accordingly, the appropriateness of the unit is not subject to litigation in the instant unfair labor practice proceeding. Walgreen Co., 226 NLRB 548 (1976) and 226 NLRB 553 (1976); and Piper Industries Inc., 215 NLRB 368, 369, fn. 4 (1974). s Globe Secunrity Services, Inc., 221 NLRB 596(1975), enforcement denied on other grounds 94 LRRM 2593, 81 LC¶ 13,084 (C.A. 3, February 7, 1977). 7 See Pittsburgh Plate Glass Co. v. N. LR.B, 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 305 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All plant clerical, warehouse and sheet metal employees, and truckdrivers employed by Re- spondent at its New Orleans, Louisiana, facility, excluding all professional employees, guards, and supervisors as defined in the Act. 2. The certification On June 18, 1976, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 15, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on August 10, 1976, which certification was affirmed on August 30, 1976, and the Union continues to be such exclusive representa- tive within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about August 25, 1976, and October 6, 1976, the Union has requested, and is continuing to request, Respondent to bargain collec- tively with it as the exclusive collective-bargaining representative of all the employees in the above- described unit. Commencing on or about November 3, 1976, 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 November 3, 1976, 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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 opera- tions 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 com- merce. 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate 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); Burnett 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. Smith & Smith Aircraft Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Lodge 37, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All plant clerical, warehouse and sheet metal employees, and truckdrivers employed at the Re- spondent's New Orleans, Louisiana, facility, exclud- ing all professional employees, guards, and supervi- sors 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 August 10, 1976, as affirmed on August 30, 1976, the above-named labor organization has been and now is the certified and exclusive represen- 306 SMITH & SMITH AIRCRAFT CO. tative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 3, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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)(l) 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 Relations Board hereby orders that Respondent, Smith & Smith Aircraft Company, New Orleans, Louisiana, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local Lodge 37, International Association of Machinists and Aero- space Workers. AFL-CIO, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All plant clericals, warehouse and sheet metal employees, and truckdrivers employed at Respon- dent's New Orleans, Louisiana, facility, excluding all professional employees, guards and supervi- sors 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 New Orleans, Louisiana, facility copies of the attached notice marked "Appendix." s Copies of said notice, on forms provided by the Regional Director for Region 15, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 15, 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Local Lodge 37, International Association of Machin- ists and Aerospace 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 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 described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All plant clericals, warehouse and sheet metal employees, and truckdrivers employed at our New Orleans, Louisiana, facility excluding all professional employees, guards and supervisors as defined in the Act. SMITH & SMITH AIRCRAFT COMPANY 307