Litton Industries

National Labor Relations Board - Board DecisionsJun 1, 1973

203 N.L.R.B. 1025 (N.L.R.B. 1973)

LANDIS TOOL COMPANY Landis Tool Company , Division of Litton Industries and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Lo- cal Union No. 110 . Case 6-CA-6176 June 1, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge and amended charge filed on July 7 and October 19, 1972, respectively by International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 110, herein called the Union, and duly served on Landis Tool Company, Division of Litton Industries, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 6, issued a complaint on October 20, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 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 August 15, 1972, following a Board election in Case 6-RC-5191 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 September 5, 1972, and at all times there- after, 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 October 27, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 5, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 4, 1973, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary 'Official notice is taken of the record in the representation proceeding, Case 6-RC-5191, as the term "record" is defined in Secs. 102.68 and 102 .69(f) of the Board 's Rules and Regulatons , Series 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. 1025 Judgment should not be granted. Respondent thereaf- ter filed a response to Notice To Show Cause as well as a motion in Case 6-RC-5191. The General Counsel filed opposition to the Respondent's response and motions. 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, response to the No- tice To Show Cause, and the motions in Case 6- RC-5191, the Respondent argues that the General Counsel's Motion for Summary Judgment should be denied primarily because of the alleged unit defects, particularly with respect to the failure to determine the unit placement of employees who were permitted to vote in the election under challenge and because of the Board's alleged improper setting aside of the first election and directing a rerun election. The General Counsel contends that the Respondent is attempting to relitigate issues which were raised and determined, or could have been raised and determined, by the Board in the underlying representation case and that it may not do so in the absence of newly discovered or previously unavailable evidence or special circum- stances. Our review of the record in Case 6-RC-5191 re- flects that in his April 3, 1970, Decision and Direction of Election, the Regional Director found appropriate a production and maintenance unit but did not de- termine the unit placement of certain categories of employees who were permitted to vote subject to chal- lenge? On May 1, 1970, the Board denied the Respondent's request for review as raising no substan- tial issues warranting review except with respect to three other groups of employees whom the Regional Director had excluded from the unit, but whose unit placement, the Board concluded, could best be re- solved by the challenge procedure.3 The Union failed to receive a majority of the votes cast in the election of May 7, 1970, and thereafter filed timely objections to the conduct of the election. Con- cluding that the objections, as well as other conduct of Respondent alleged to be violative of the Act which had been charged in Case 6-CA-502 1, raised substan- tial and material issues with respect to the election, the Regional Director, on July 31, 1970, consolidated for 2 Photolab employees, print shop employees, and precision inspector. 3 Disputed machine inspectors, engineering technicians, and sales service personnel 203 NLRB No. 143 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing Cases 6-RC-5191 and 6-CA-502 1. In his De- cision of February 22, 1971, the Trial Examiner 4 found that the Respondent had engaged in certain 8(a)(1) conduct , including implied promises that solic- ited-employee grievances would be remedied. Ac- cordingly, he recommended that the Board set aside the election in Case 6-RC-5191 on the basis of his 8(a)(l) findings and that a second election be con- ducted. The Respondent filed with the Board excep- tions to the Trial Examiner 's unfair labor practice findings, including those pertaining to the implied promises . On June 8 , 1971, the Board issued its Deci- sion, Order and Direction of Second Election (190 NLRB 757) affirming the Trial Examiner 's Decision and directing the holding of a rerun election.' The rerun election was conducted on September 16 and 21, 1971. The tally of ballots showed that of ap- proximately 606 eligible voters, 252 cast ballots for, and 215 against the Union, with 82 challenged and 4 void ballots . Since the challenged ballots were suffi- cient to affect the results of the election , the Regional Director, on November 17, 1971, directed a hearing on 62 challenged ballots , which raised substantial and material issues of fact and deferred the counting of the remaining 20 ballots, the challenges to which the parties had agreed to overrule . In his Report on Chal- lenged Ballots, the Hearing Officer recommended that challenges to 14 ballots be overruled and the votes counted , and that the challenges to 48 ballots be sustained . The Respondent filed with the Regional Director timely exceptions to 19 of the 48 sustained challenges .6 In his Supplemental Decision of April 4, 1972, the Regional Director adopted the Hearing Officer's rec- ommendations except those pertaining to the 19 chal- lenged ballots to which exceptions were taken pending opening and counting of the 34 ballots whose challenges had been overruled . As no request for re- view with the Board was filed, the Regional Director opened and counted the 34 ballots, 20 whose counting had been previously deferred, and 14 whose chal- lenges the Hearing Officer had recommended be ov- erruled . The revised tally showed that 267 votes had been cast for, and 234 votes against, with 19 chal- lenged ballots unopened and not counted. As the 19 undetermined ballots could not affect the election re- sults, the Acting Regional Director on April 26, 1972, certified the Union as the bargaining representative of the employees in the production and maintenance 4 The title of "Taal Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 5 On May 22, 1972, the United States Court of Appeals for the Third Circuit enforced the Board 's Order, 460 F .2d 23 On October 16, 1972, the Supreme Court denied certiorari These 19 ballots had been cast by engineering technicians, sales service personnel, and photolab employees. unit originally found appropriate by the Regional Di- rector in the Decision and Direction of Election. On August 15, 1972, the Regional Director issued an Amended Certification of Representative which cor- rected inadvertent errors in the earlier certification and which noted that the unit placement of certain groups of employees had not been determined.7 No request to the Board for review of the Acting Regional Director's certification and the Regional Director's amended certification was filed by the Respondent. In its response to the Notice To Show Cause and motions in Case 6-RC-5191, the Respondent, in op- position to the General Counsel's Motion for Summa- ry Judgment, argues that the different descriptions of the unit and the failure to resolve the unit placement of some seven fringe groups of employees 8 had made the unit unclear, therefore requiring it to be redefined and had caused inaccurate election notices to be pub- lished in both elections so that there may have been employees who did not vote. We disagree with the Respondent's basic position. The Board and its Re- gional Directors have always corrected inadvertent and minor errors in certifications which do not change the substance of the unit .9 Further, the fact that the unit placement of fringe categories of employ- ees remains to be resolved, and that this was noted in the certification, cannot affect either the basic appro- priateness of the certified production and mainte- nance unit herein, the Union's majority therein, or the ability of the parties to bargain in the certified unit. There is nothing to preclude the parties from resolving the unit placement of these fringe employees either by mutual agreement or by the filing of a petition for unit clarification pursuant to Section 102.60(b) of the Board's Rules and Regulations.1° With respect to the election notices which specifi- cally advised certain employee categories that they were ineligible to vote, even though they were in fact eligible, the Respondent, as the General Counsel has stated without controversion in his motion, was aware of the nature and contents of the election notices and posted them without objection. We also note that a substantial and representative number of employees voted in the elections herein and that there is no show- ing, only an alleged possibility, that employees did not vote because of the election notices. In addition, the Respondent contends that there are unusual and special circumstances that warrant the 7 The groups of employees are. Engineering technicians , sales service per- sonnel, precision inspector , photolab and print shop employees, all of whom had been permitted to vote challenged ballots. 8In addition to the categories in In . 7, the Respondent adverts to the unresolved unit placement of the finish stock clerk and pattern repairmen. 9 The Respondent did not file with the Board a request to review the Regional Director's changes in the description of the certified unit herein The May Department Stores Company, 186 NLRB 86 , enforcement de- nied on other grounds 454 F 2d 148 (C.A 9, 1972). LANDIS TOOL COMPANY denial of the General Counsel 's Motion for Summary Judgment . It calls the Board 's attention to the Third Circuit's disapproval of the Board 's alleged per se finding that solicitation of employee grievances dur- ing the preelection campaign will always imply unlaw- ful promises ." The Respondent argues that the complaint in Case 6-CA-5021 alleged only interroga- tion and not implied promises , and, therefore, it did not litigate the issue of implied promises . According- ly, the argument runs that , since the first election had been primarily set aside on this disapproved per se finding of implied promises , the Motion for Summary Judgment should be denied . We find no merit in the position . The Board did adopt the Trial Examiner's findings of 8(a)(1) conduct by the Respondent, in- cluding that involving improper implied promises, and agreed with his recommendation that, on the ba- sis of the 8(a)(1) conduct found , the first election be set aside and a second election directed . As noted in footnote 11, supra, the court has affirmed the Board's implied promises findings of 8(a)( 1) violations as hav- ing substantial evidentiary support in the record and, therefore , the propriety of our setting aside the first election on the basis of 8(a)(1) conduct cannot be impugned . Further, our review of the record convinc- es us that, even absent such 8 (a)(1) implied promises, the election was properly set aside on the basis of the other 8(a)(1) findings of impression of surveillance of union activities , interrogation of employees, and threats to employees of loss of benefits. Finally, the Respondent contends that, because the issue of implied promises had not been timely and properly raised or litigated , it did not offer evidence to rebut the evidence of unlawful promises and that this special and unusual circumstance entitled it to a hearing at which to present evidence and to litigate the issue . We note , however, that, although the Re- spondent had specifically excepted to the Trial Examiner's findings as to the unlawful implied prom- ises and had argued in its brief the merits of these findings , it made no request to the Board for the op- portunity to introduce countervailing evidence such as it now offers . It was not until after the Board and court decisions had sustained the merits of the 8(a)(1) violations and after the filing of the Motion for Sum- mary Judgment herein that the Respondent for the first time requested a hearing in which to introduce evidence that has been available to it for over the past 2 years. The evidence now sought to be introduced is thus not previously unavailable . Accordingly, we con- clude , in these circumstances , that the Respondent is not entitled to have a hearing in which to relitigate the 11 The court also found that "[t]here is substantial evidence to support the Trial Examiner 's finding that implied promises were made , and that finding does not depend upon the operation of a per se rule." 460 F .2d 23, 25. 1027 issue of the unlawful implied promises. 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.12 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.13 We shall, accordingly, deny the Respondent's motions in Case 6-RC-5191 and shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Pennsylvania corporation with principal office and manufacturing facility located in Waynesboro, Pennsylvania, where it is engaged in the manufacture, sale, and service of machine tools and related products. Within the 12-month period imme- diately preceding the issuance of the complaint, the Respondent purchased and received goods and mate- rials valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. During the same 12-month period, the Respondent shipped goods valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. "See Pittsburgh Plate Glass Co v. NLRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). 13 In his answer to the complaint , the Respondent denies the service of the amended charge as alleged in par. I of the complaint . Attached to the General Counsel 's Motion for Summary Judgment are Exh . M (affidavit of service of Complaint and Notice of Hearing with Form 4668 and amended charge attached, by registered mail) and Exh. 9 N and 0 (return receipts of service of registered mail). Since these uncontroverted exhibits establish ser- vice of the amended charge on the Respondent , its denial is stricken and the allegations of the complaint are found to be true . The Respondent 's answer also denies the description of the Respondent 's operation and location al- leged in par. 2 of the complaint . Since these allegations have been previously litigated in Case 6 -RC-5191 and in Case 6-CA-5021, they may not be relitigated herein 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 110, is a labor organization within the meaning of Section 2(5) of the Act. Ill. 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 and apprentices at the Landis Tool Company, Divi- sion of Litton Industries, Waynesboro, Pennsyl- vania, facilities, including programmers, assembly technicians, inspection technicians, machine inspectors, repair order clerk, tape punch operators, plant clerical employees and helpers and clerk in the pattern shop; excluding pattern shop employees represented by the Pat- tern Makers' League of North America, AFL- CIO, office clerical employees and guards, pro- fessional employees and supervisors as defined in the Act. 2. The certification On September 16 and 21, 1971, 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 6 designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was cer- tified as the collective-bargaining representative of the employees in said unit on August 15, 1972, 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 August 25, 1972, 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 September 5, 1972, 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 September 5, 1972, 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 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. Landis Tool Company, Division of Litton In- dustries, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 110, is a labor organization within the meaning of Section 2(5) of the Act. LANDIS TOOL COMPANY 3. All production and maintenance employees and apprentices at the Landis Tool Company, Division of Litton Industries, Waynesboro, Pennsylvania, facili- ties, including programmers, assembly technicians, inspection technicians, machine inspectors, repair or- der clerk, tape punch operators, plant clerical employ- ees and helpers and clerk in the pattern shop; excluding pattern shop employees represented by the Pattern Makers' League of North America, AFL- CIO, office clerical employees and guards, profession- al employees and supervisors as defined in the Act constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 25, 1972, the above-named labor 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. 5. By refusing on or about September 5, 1972, 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, Landis Tool Company, Division of Litton Industries, its offi- cers , 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 Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local Union No. 110, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All production and maintenance employees and apprentices at the Landis Tool Company, Divi- 1029 Sion of Litton Industries, Waynesboro, Pennsyl- vania, facilities, including programmers, assem- bly technicians, inspection technicians, machine inspectors, repair order clerk, tape punch opera- tors, plant clerical employees and helpers and clerk in the pattern shop; excluding pattern shop employees represented by the Pattern Makers' League of North America, AFL-CIO, office cler- ical 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, facilities copies of the attached notice marked "Appendix." 14 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. 14 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- 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local Union No. 110, 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, and, if an understanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees and apprentices at the Landis Tool Company, Division of Litton Industries , Waynesboro, Pennsylvania , facilities , including program- mers, assembly technicians, inspection techni- cians, machine inspectors, repair order clerk, tape punch operators , plant clerical employees and helpers and clerk in the pattern shop; ex- cluding pattern shop employees represented by the Pattern Makers' League of North America , AFL-CIO, office clerical employees, and guards , professional employees and super- visors as defined in the Act. Dated By LANDIS TOOL COMPANY, DI- VISION OF LITTON INDUSTRIES (Employer) (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.