Damon Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 509 (N.L.R.B. 1971)

INTERNATIONAL EQUIPMENT COMPANY 509
International Equipment Company, Subsidiary of
Damon Corporation and International Association
of Machinists and Aerospace Workers, AFL-CIO.
Case 1-CA-7379
March 31, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed on November 19, 1970, by
International Association of Machinists and Aero-
space Workers, AFL-CIO, herein called the Union,
and duly served on International Equipment Compa-
ny, Subsidiary of Damon Corporation, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 1, issued a complaint on December 30, 1970,
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 a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about July
31, 1970, following a Board election in Case
1-RC-11045 the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate; I
and that, commencing on or about August 11, 1970,
and at all times thereafter, Respondent had 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 January 7, 1971, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint, alleging an affirmative defense.
On January 15, 1971, counsel for General Counsel
filed with the Regional Director a Motion for
Judgment on the Pleadings, and on January 21, 1971,
transferred the motion to the Board. In his Motion for
Judgment on the Pleadings, which we shall treat
herein as a Motion for Summary Judgment, the
General Counsel avers that the Respondent's answer
to the complaint raises no issues of fact or law
warranting an evidentiary hearing. The General
Counsel additionally contends that the Respondent's
affirmative defense is an attempt to litigate in this
unfair labor practice proceeding issues which were
raised and decided in the underlying representation
case, and, accordingly, prays the Board to grant the
motion and enter its order. Subsequently, on January
25, 1971, the Board issued an order transferring the
proceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Judgment on
the Pleadings should not be granted. Respondent
thereafter filed as its response a Motion for Judgment
on the Pleadings.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 response to the General Counsel's motion, as
in its answer to the complaint, the Respondent
contends that the certification in Case 1-RC-11045 is
invalid by reason of the Regional Director's failure to
sustain the Respondent's objections, which alleged
that the Regional Director abused his discretion by
refusing the Respondent's request for a postponement
of the election conducted on June 15, 1970. In
addition, in its response to the General Counsel's
motion, and in reliance on Pepsi-Cola Buffalo Bottling
Co. v. N.L.R.B., 409 F.2d 676 (C.A. 2), and related
cases, the Respondent contends that the Board erred
in denying its request for review without having
conducted a full review of the representation case
record and by failing to articulate its reasons for
sustaining the Regional Director. We find that neither
contention of the Respondent is meritorious.
On June 15, 1970, pursuant to a Decision and
Direction of Election issued by the Regional Director
on May 15, 1970, an election was conducted among
the Respondent's employees in the unit herein found
appropriate. The tally of ballots served on the parties
after the conclusion of the election reflected that of
approximately 175 eligible voters, 160 cast ballots, of
which 108 were cast in favor of the Union and 52 were
cast against the Union. The Respondent filed timely
objections alleging that the Regional Director abused
his discretion by refusing the Respondent's request,
made on the day of the election, for a postponement
of the balloting. More particularly, the Respondent
contended that the suicide of one of its foremen on
June 14, 1970, had resulted in the circulation of
I Official notice is taken of the record in the representation proceeding,
Case 1-RC-11045 , as the term "record" is defined in Secs 10268 and
102 69(f) of the Board' s Rules and Regulations , Series 8, as amended See
LTV Electrosystenis, Inc, 166 NLRB 938, enfd 388 F 2d 683 (CA 4,
1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello,
269 F Supp 573 (C C Va, 1967), Follett Corp , 164 NLRB 378, enfd 397
F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA
189 NLRB No. 78
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rumors and untruths among the employees, and that
these circumstances created a general atmosphere of
confusion which prevented the employees from
exercising a free and rational choice in the selection of
a bargaining representative.
On July 31, 1970, after having investigated the
Employer's objections, the Regional Director issued
his Supplemental Decision and Certification of
Representative, in which he overruled the Employer's
objections and certified the Union as the bargaining
representative in the appropriate unit. The Employer
filed a Petition for Review with the Board, advancing
the same arguments upon which it now relies in its
affirmative defense to the complaint and its response
to the General Counsel's motion. On September 10,
1970, the Board denied the Respondent's petition on
grounds that it raised no substantial issues warranting
review.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) of the Act is not
entitled to litigate issues which were or could have
been raised in a prior representation proceeding.2
It is clear that all issues and arguments raised by the
Respondent in this proceeding were raised and
decided 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 circum-
stances exist herein which would require the Board to
reverse the Regional Director's determinations in the
representation case, or reexamine the Board's denial
of the Respondent's petition for review.3 Accordingly,
we find that the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding. Accordingly, we shall grant the Motion
for Summary Judgment and deny the Respondent's
Motion for Judgment on the Pleadings.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times herein
material a corporation duly organized under and
existing by virtue of the laws of the Commonwealth
of Massachusetts.
At all times herein mentioned, Respondent has
maintained its principal office and place of business
at 300 Second Avenue in the City of Needham
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)
9 Contrary to the Respondent's assertion the Board was not required to
undertake a complete and independent review of the Regional Director's
Heights, Commonwealth of Massachusetts, and is
now and continuously has been engaged at said plant
in the manufacture, sale, and distribution of centri-
fuges and related products.
Respondent annually recieves at its Needham
Heights, Massachusetts, location directly from points
located outside the Commonwealth of Massachusetts
metals and other materials having a value in excess
of $50,000.
Respondent annually ships from its Needham
Heights, Massachusetts, location directly to points
located outside the Commonwealth of Massachusetts
centrifuges and related products having a value 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
International Association of Machinists and Aeros-
pace 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of
Respondent at its Needham Heights, Massachu-
setts, plant, including the employees in the
machine shop, tool department, research and
development area, assembly area, stockroom,
paint room, repair department, inspection depart-
ment and plant clerical employees, but excluding
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
2. The certification
On June 15, 1970, 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 1, designated the Union as their
representative for the purpose of collective bargain-
determinations , nor was it required to articulate its reasons for denying the
Respondent 's Petition for Review Magnesium Casting Co v N L R B,
U S , February 23, 1971
INTERNATIONAL EQUIPMENT COMPANY
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on July 31, 1970, 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 5, 1970, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about August 11, 1970, and continu-
ing at all times thereafter to date, the 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 the Respondent has,
since August 11, 1970, 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
(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 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-
511
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. International Equipment Company, Subsidiary
of Damon Corporation, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent at its Needham Heights, Massachusetts,
plant, including the employees in the machine shop,
tool department, research and development area,
assembly area, stockroom, paint room, repair depart-
ment, inspection department and plant clerical
employees, but excluding office clerical employees,
professional employees, guards, and supervisors 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 July 31, 1970, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about August 11, 1970, 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 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)(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
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that Respondent,
International Equipment Company, Subsidiary of
Damon Corporation, 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 International Association of
Machinists and aerospace Workers, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees of
Respondent at its Needham Heights, Massachu-
setts, plant, including the employees in the
machine ship, tool department, research and
development area, assembly area, stockroom,
paint room, repair department, inspection depart-
ment and plant clerical employees, but excluding
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Needham Heights, Massachusetts,
location copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 1, 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 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 be changed to 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 Associ-
ation of Machinists 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 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 under-
standing in a signed agreement. The bargaining
unit is:
All production and maintenance employees
of Respondent at its Needham Heights,
Massachusetts, plant, including the employ-
ees in the machine shop, tool department,
research and development area, assembly
area, stockroom, paint room, repair depart-
ment, inspection department and plant cleri-
cal employees, but excluding office clerical
employees, professional employees, guards,
and supervisors as defined in the Act.
INTERNATIONAL
EQUIPMENT COMPANY,
SUBSIDIARY OF DAMON
CORPORATION
(Employer)
Dated By
(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 compliance
with its provisions may be directed to the Board's
Office, 20th Floor, John F. Kennedy Federal Build-
ing, Cambridge and Sudbury Streets, Boston, Massa-
chusetts 02203, Telephone 617-223-3300.