Decoto Aircraft, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1974

209 N.L.R.B. 1034 (N.L.R.B. 1974)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decoto Aircraft, Inc. and Local Lodge 1531 , Interna-
tional Association of Machinists & Aerospace
Workers, AFL-CIO. Case 19-CA-6680
April 3, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on October 9, 1973, by Local
Lodge 1531, International Association of Machinists
& Aerospace Workers, AFL-CIO, herein called the
Union, and duly served on Decoto Aircraft, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 19, issued a complaint
on October 17, 1973, 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 23,
1973, following a Board election in Case
19-RC-6371 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate; I
and that, commencing on or about October 1, 1973,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. Thereafter, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On November 5, 1973, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment. Subsequently, on November 12,
1973, 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 November 15
and 28, 1973, respectively, Respondent filed a
response, with attached affidavits and documents
entitled "Answer to the Motion to Transfer Case to
the Board and for Summary Judgment."
Pursuant to the provisions of Section 3(b) of the
I Official notice is taken of the record in the representation proceeding,
Case 19-RC-6371, as the term "record" is defined in Secs. 102 68 and
102.69(f) of the Board 's Rules and Regulations, Series 8, as amended See
LTV Electrosystemr, Inc, 166 NLRB 938, enfd 388 F.2d 683 (C.A 4, 1968);
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 and its response to
the motion for summary judgment with attached
affidavits, the Respondent contends that the certifi-
cation of the Union in the underlying representation
case was improper inasmuch as the Board erred in
setting aside a first election conducted herein, which
the Union lost.
Our review of the record herein indicates that,
pursuant to a stipulation for certification upon
consent election, an election was conducted on
November 20, 1972, in which 45 eligible voters cast
ballots for, and 49 against, the Union, and 1 ballot
was challenged. The Union timely filed three
objections alleging in substance that, by the follow-
ing and other acts and conduct, Respondent inter-
fered with the election's laboratory conditions in
order to undermine the Union: (1) the Respondent
granted wage increases subsequent to the filing of the
representation petition; (2) it cut back employees'
work hours; and (3) it threatened an employee union
adherent with shift change. After conducting an
investigation, the Regional Director, on March 30,
1973, issued his report on objections to election in
which he found no merit in Objections 1 and 2,
found merit in the third objection, and also found
objectionable certain other conduct of the Respon-
dent. Accordingly, he recommended that the election
be set aside.
In his report, the Regional Director noted that his
investigation had revealed evidence of other conduct
not specifically alleged in the Union's objections and
that he advised the Respondent that he intended to
consider and weigh the testimony, but the Respon-
dent objected to going into matters other than those
specifically alleged in the objections and refused to
offer evidence in rebuttal thereof. Accordingly, he
considered the other evidence upon which he made
five additional findings in which he found that the
Respondent had coercively interrogated employees,
solicited grievances, and promised benefits. While
conceding that the threat to transfer and the transfer
of the union adherent, who acted as the Union's
observer, alone did not constitute interference with
the election, the Regional Director concluded that
Objection 3, in conjunction with the additional
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.
209 NLRB No. 149
DECOTO AIRCRAFT, INC. 1035
findings, was sufficient to warrant setting aside the
election.
The Respondent filed with the Board timely
exceptions to the Regional Director's report. With
respect to Objection 3, it asserted that the union
observer had been transferred for reasons unrelated
to the Union. With respect to the additional conduct
not specifically encompassed in the objections, it
contended that it was prejudiced by lack of notice
thereof, renewed a contention concerning conduct
occurring on the date the petition was filed, disputed
the Regional Director's conclusions, and requested a
hearing. However, on June 14, 1973, the Board issued
its Decision and Direction of Second Election, in
which it found the Respondent's exceptions without
merit; and denied its request for a hearing on the
grounds that, having received reasonable notice of
specific conduct alleged to have interfered with the
election, Respondent nevertheless refused to present
any evidence to the Regional Director rebutting
those allegations. Accordingly, the Board adopted
the findings and recommendations of the Regional
Director, set aside the election, and directed a second
election. In the second election, which was conduct-
ed on August 15, 1973, 54 ballots were cast for, and
52 against, the Union. No objections were filed and,
on August 23, 1973, the Regional Director certified
the Union.
Respondent's response to the motion for summary
judgment is essentially a renewal of the foregoing
contentions and assertions, except that it now
supports some of its assertions with affidavits which
are not alleged to be, and are not, newly discovered
evidence. It is clear that Respondent is now attempt-
ing to relitigate issues which were decided adversely
to it in the underlying representation proceeding.
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) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
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
1. THE BUSINESS OF THE RESPONDENT
Respondent, Decoto Aircraft, Inc., is a State of
Washington corporation engaged in the manufacture
and sale of hydraulic, pneumatic, and mechanical
control equipment at Yakima, Washington. During
the past\ calendar year, a representative period,
Respondent made sales in excess of $50,000 directly
to customers located outside the State of Washing-
ton.
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 1531, International Association 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 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 at
the Respondent's Yakima, Washington, opera-
tions, excluding office clerical employees, profes-
sional employees, salesmen, guards, and supervi-
sors as defined in the Act.
2. The certification
On August 15, 1973, 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 19, 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 23, 1973, and the
2 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).
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 September 21, 1973, and
at all times thereafter , in anticipation of collective
bargaining, the Union has requested Respondent to
submit certain information concerning the employ-
ees in the bargaining unit relevant to the negotiation
of a collective-bargaining agreement, including, but
not limited to, names, job classifications and descrip-
tions, "fringe benefits," rest periods, and shop rules
(herein collectively called the information), and has
requested the Respondent to bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-described
unit. Commencing on or about October 1, 1973, and
at all times thereafter, Respondent refused to supply
the information on the ground that it did not
recognize the Union as bargaining agent of the
employees in the bargaining unit , and 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 October 1, 1973, 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 , provide the requested and other
necessary and relevant information and bargain
collectively with the Union as the exclusive repre-
sentative 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; Commerce 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. Decoto Aircraft, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local Lodge 1531, International Association of
Machinists & Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees at
the Respondent's Yakima, Washington, operations,
excluding office clerical employees , professional
employees , salesmen , 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 August 23, 1973, 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 October 1, 1973, and
at all times thereafter , to provide information
necessary and relevant for intelligent collective
bargaining and 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.
DECOTO AIRCRAFT, INC. 1037
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.
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 "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Decoto Aircraft, Inc., Yakima , Washington, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to provide information necessary and
relevant for intelligent collective bargaining and to
bargain collectively concerning rates of pay , wages,
hours , and other terms and conditions of employ-
ment with Local Lodge 1531, International Associa-
tion of Machinists & Aerospace Workers, AFL-CIO,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees at
the Respondent 's Yakima , Washington , opera-
tions, excluding office clerical employees , profes-
sional employees , salesmen , 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, provide information necessary
and relevant for intelligent collective bargaining and
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 understanding in a signed agreement.
(b) Post at its Yakima, Washington, operations
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 19, 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 19, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 1531, International Association of Ma-
chinists & 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, provide information
necessary and relevant for intelligent collective
bargaining and 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 bar-
gaining unit is:
All production and maintenance employ-
ees at the Respondent's Yakima, Washing-
ton, operations, excluding office clerical
employees, professional employees, sales-
men, guards, and supervisors as defined in
the Act.
DECOTO AIRCRAFT, INC.
(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 compli-
ance with its provisions may be directed to the
Board 's Office , 10th Floor Republic Building, 1511
Third Avenue, Seattle , Washington 98101, Tele-
phone 206-442-4532.