Litton System, Inc.

National Labor Relations Board - Board Decisions

May 7, 1975

217 N.L.R.B. 842 (N.L.R.B. 1975)

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.