Nixon Gear, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1392 (N.L.R.B. 1980)

1392 NIXON GEAR, INC.
Nixon Gear, Inc. and District Lodge No. 137, Inter-
national Association of Machinists & Aerospace
Workers, AFL-CIO. Case 3-CA-9764
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on May 1, 1980, by District
Lodge No. 137, International Association of Ma-
chinists & Aerospace Workers, AFL-CIO, herein
called the Union, and duly served on Nixon Gear,
Inc., herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 3, issued a complaint
on May 20, 1980, 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on April 3,
1980, following a Board election in Case 3-RC-
7628 the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about about April 22,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On June 2,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On June 30, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment, with exhibits attached. Subse-
quently, on July 7, 1980, 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. Respondent thereafter filed a response to
Notice To Show Cause.
' Official notice is taken of the record in the representation proceed-
ing, Case 3-RC-7628, 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 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967): Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
251 NLRB No. 184
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 and its response to
the notice to Show Cause, Respondent admits that
it refused the Union's request to bargain. However,
for reasons set forth in its objections to the election
Respondent asserts, essentially, that the Union was
not properly certified and that it properly refused
to bargain with the Union as the exclusive bargain-
ing representative of its employees. The General
Counsel contends that Respondent is attempting to
raise issues which were litigated in the prior repre-
sentation proceeding and which were resolved ad-
versely to Respondent's position in that proceed-
ing. Accordingly, the General Counsel contends
Respondent is precluded from relitigating those
issues in this proceeding. We agree with the Gener-
al Counsel.
A review of the record herein, including that in
Case 3-RC-7628, reveals that pursuant to a Stipu-
lation for Certification Upon Consent Election ap-
proved by the Regional Director on November 14,
1979, an election by secret ballot was conducted on
December 19, 1979, resulting in a vote of 23 votes
for and 21 votes against the Union. There were no
challenged ballots. Thereafter, Respondent filed
timely objections to conduct affecting the election.
In its objections, Respondent contended essentially
that the Union engaged in material misrepresenta-
tion, threatened employees, and made improper job
and financial inducements to employees. On Febru-
ary 1, 1980, the Regional Director issued a Report
on Objections in which he recommended that the
objections be overruled. On April 3, 1980, the
Board issued a Decision and Certification of Repre-
sentative which adopted the Regional Director's
Report on Objections and certified the Union as
exclusive bargaining representative of the unit em-
ployees.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
1392 , .
NIXON GEAR, INC. 1393
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we 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 RESPONDENT
At all times material herein, Respondent, a New
York corporation with its principal place of busi-
ness in Syracuse, New York, and with other facili-
ties in the State of New York, is engaged in the
manufacture, sale, and distribution of custom gears
and related products. Annually, Respondent, in the
course and conduct of its business operations pur-
chases, transfers, and delivers to its Syracuse, New
York plant, goods and materials valued in excess of
$50,000, which goods and materials are transported
directly to said plant from States of the United
States other than the State of New York. Annually,
Respondent, in the course and conduct of its busi-
ness operations, manufactures, sells, and distributes
at its Syracuse, New York, plant products valued
in excess of $50,000, of which products valued in
excess of $50,000 are shipped from said plant di-
rectly to States of United States other than the
State of New York.
We find, on the basis of the foregoing, that Re-
spondent 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
District Lodge No. 137, International Associ-
ation of Machinists & Aerospace Workers, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full time and regular part-time production
and maintenance employees employed by the
Respondent at its 4601 Nixon Park Drive,
Syracuse, New York facility including: turning
department, milling operations department,
grinding department, gear department, quality
control department, shipping and receiving de-
partment, tool crib and tool making depart-
ment and maintenance department employees,
but excluding: all office clerical employees,
professional employees, guards and supervisors
as defined in the Act including: production su-
perintendent, night foreman, foremen of the
turning, milling operations, grinding, gear,
quality control, shipping and receiving, main-
tenance and tool crib and tool making depart-
ments.
2. The certification
On December 19, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 3, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on April 3,
1980, 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 April 14, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 22, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
April 22, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
NIXON GEAR, INC.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Nixon Gear, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. District Lodge No. 137, International Associ-
ation of Machinists & Aerospace Workers, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees employed by Respond-
ent at its 4601 Nixon Park Drive, Syracuse, New
York facility including: turning department, milling
operations department, grinding department, gear
department, quality control department, shipping
and receiving department, tool crib and tool
making department and maintenance department
employees but excluding: all office clerical employ-
ees, professional employees, guards and supervisors
as defined in the Act including: production superin-
tendent, night foreman, foremen of the turning,
milling operations, grinding, gear, quality control,
shipping and receiving, maintenance and tool crib
and tool making departments, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since April 3, 1980, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 April 22, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing.
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Nixon Gear, Inc., Syracuse, New York, its officers,
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
conditions of employment with District Lodge No.
137, International Association of Machinists &
Aerospace Workers, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time production
and maintenance employees employed by the
Employer at its 4601 Nixon Park Drive, Syra-
cuse, New York facility including: turning de-
partment, milling operations department,
grinding department, gear department, quality
control department, shipping and receiving de-
partment, tool crib and tool making depart-
ment and maintenance department employees;
but excluding: all office clerical employees,
NIXON GEAR, INC. 1395
professional employees, guards and supervisors
as defined in the Act including: production su-
perintendent, night foreman, foremen of the
turning, milling operations, grinding, gear,
quality control, shipping and receiving, main-
tenance and tool crib and tool making depart-
ments.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Syracuse, New York, facility
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the
Regional Director for Region 3, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 Pursu-
ant 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 District Lodge No. 137, International As-
sociation of Machinists & 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 employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full time and regular part-time produc-
tion and maintenance employees employed
by us at our 4601 Nixon Park Drive, Syra-
cuse, New York facility in an appropriate
place including: turning department, milling
operations department, grinding department,
gear department, quality control department,
shipping and receiving department, tool crib
and tool making department and mainte-
nance department employees, but excluding:
all office clerical employees, professional
employees, guards and supervisors as de-
fined in the Act including: production super-
intendent, night foreman, foremen of the
turning, milling operations, grinding, gear,
quality control, shipping and receiving,
maintenance and tool crib and tool making
departments.
NIXON GEAR, INC.
NIXON GEAR, INC I