General Dynamics Corp.

National Labor Relations Board - Board Decisions

Jan 5, 1971

187 N.L.R.B. 679 (N.L.R.B. 1971)

GENERAL DYNAMICS CORP. 679
General Dynamics Corporation and International
Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC. Case 23-CA-3649
January 5, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed on June 1, 1970, by Internation-
al Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, herein called the Union, and duly
served on General Dynamics Corporation, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 23, issued a complaint on June
30, 1970, against Respondent, alleging that Respon-
dent 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 March 31,
1970, following a Board election in Cases
23-RC-3309 and 23-RC-3314, the Union was duly
certified as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit found
appropriate; I and that, commencing on or about
March 31, 1970, and at all times thereafter, Respon-
dent 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 July 27,
1970, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On August 21, 1970, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, alleging that there are no
material issues of fact raised by the Respondent's
answer to the complaint. Subsequently, on September
3, 1970, 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 there-
after filed a response to Notice To Show Cause.
On August 25, 1970, the Union also filed a response
in which it requested that the General Counsel's
Motion for Summary Judgment be granted and that
the Board direct a hearing as to the past damages due
under a "make whole" remedy. On September 17,
1970, the Respondent filed an opposition to the
Union's response.
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
Pursuant to a Stipulation for Certification Upon
Consent Election in Cases 23-RC-3309 and
23-RC-3314, the Regional Director for the Board's
Region 23, on July 11, 1969, conducted an election by
secret ballot in which a majority of the employees of
the Respondent in the stipulated unit selected the
Union as their representative for the purposes of
collective bargaining with the Union. Thereafter, the
Respondent and International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, herein
called IAM, the other labor organization participating
in the election, filed timely objections to the conduct
of the election. On September 9, 10, and 11, 1969, a
hearing was held on objections, and subsequently the
Hearing Officer recommended that the objections be
overruled in their entirety. Both the Respondent and
the IAM filed exceptions with the Board to the
Hearing Officer's recommendations. In its Decision
and Certification of Representative (181 NLRB No.
142), dated March 31, 1970, the Board found the
objections to be without merit and certified the Union
as the exclusive representative of all employees in the
stipulated unit for the purposes of collective bargain-
ing. On April 23, 1970, the Board denied the
Respondent's Motion for Reconsideration and Re-
hearing and on July 29, 1970, denied the Respon-
dent's petition to reopen record and reconsider
decision and certification of representative on basis of
newly discovered evidence.
In its answer to the complaint, the Respondent
denied the allegations of the complaint that on or
about March 31, 1970, and at all times thereafter, the
Union has requested and is continuing to request that
the Respondent meet and bargain collectively with it
and the Respondent has refused and continues to
refuse to do so. Attached to the General Counsel's
Motion for Summary Judgment are copies of two
letters dated April 21 and 28, 1970, both bearing the
signature of Respondent's chief of industrial rela-
' Official notice is taken of the record in the representation proceeding, F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151,
Cases 23-RC-3309 and 23-RC-3314 as the term "record" is defined in intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164
Sections 102 68 and 102 69(f) of the Board's Rules and Regulations, Series NLRB 378, enfd 397 F 2d 91 (C A. 7, 1968), Sec 9(d) of the NLRA.
8, as amended See LTV Elecirosyslems, Inc, 166 NLRB 938, enfd 388
187 NLRB No. 96
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lions, in which the Respondent purportedly refused
the Union's request for certain information on
grounds that it refused to recognize the Union until
after court review of the Board's orders and certifica-
tion has been obtained. Since the Respondent has
neither alluded to nor controverted the contents of
these letters in its response to the Notice To Show
Cause, its denials of the allegations of the complaint
with respect to the Union's requests to bargain and
the Respondent's failure to bargain pursuant to these
requests must be stricken and the allegations of the
complaint deemed to have been admitted.2
Although Respondent's answer to the complaint
raises, in effect, the other issues posed by it in the
representation cases, its response to the Notice To
Show Cause opposes the entry of a Summary
Judgment basically upon the failure of the Board to
set aside the election underlying the certification
because of the absence of bilingual (Spanish-English)
ballots and notices of election.3 The Respondent
contends, in effect, that Region 23 has a policy of
using bilingual ballots and notices, and that there was
a need therefor in this case, where 103 of the 137
eligible voters have Spanish surnames and were
Spanish speaking. It is significant that none of the
parties to the representation proceeding requested the
Regional Director for a bilingual election, nor did the
Respondent or the IAM specifically raise the failure
to conduct such an election in their objections.
However, some attempt was made at the hearing on
objections to question employees as to their ability to
understand and read the election notices and ballots
and this was brought to the Board's attention in the
Respondent's exceptions to the Hearing Officer's
Report. In its Decision overruling the objections, the
Board considered these matters and found them to be
lacking merit.
The Respondent also argued this bilingual election
position to the Board in its motion for reconsideration
and petition to reopen to which were attached
supporting affidavits of seven employees. The Board
again reconsidered the serious issues relating to the
conduct of the election and referred specifically to the
bilingual election issue when it denied the motion and
petition as containing nothing that the Board had not
previously considered or that was previously
unavailable.4
2 May Department Stores Company, 186 NLRB No 17, Carl Simpson
Buick, Inc, 161 NLRB 1389
3 The Respondent also raises a procedural question that the Board,
under the decision in Pepsi-Cola Buffalo Bottling Company v N L R B, 409
F 2d 676 (C A 2), cert denied 396 U S 904, was required , but faded, to
make its own independent findings of fact and determinations in the
representation proceedings Pepsi-Cola concerns the validity of the Board's
review procedures with respect to cases decided by a Regional Director
under authority delegated to him pursuant to Section 3(b) of the Act, The
instant case , on the other hand, rests upon a decision made by the Board
after a review of the entire record as provided in the stipulation executed
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.5
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. We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, with
offices and place of business at 615 Pergz Street, San
Antonio, Texas, is engaged in the manufacture of
aircraft parts and subassemblies. During the past 12
months, which period is representative of all times
material herein, Respondent in the course and
conduct of its business purchased goods and materials
valued in excess of $50,000, which were shipped
directly to Respondent from points outside the State
of Texas.
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 Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
by the Respondent in Cases 23-RC-3309 and 23-RC-3314 The
Respondent's reliance on Pepsi-Cola is for that reason , and apart from
other considerations, misplaced. Lipman Motors, Inc, 187 NLRB No 36
4 The decisions in Marriott In-Fbte Services Division of Marriott
Corporation v N L R B, 417 F 2d 563 (C A 5), and in Facs, Foods Division,
Per, Incorporated, Case 23-RC-3394 , are distinguishable because they
involved failure to comply with requests for bilingual elections Where such
requests are made , the Regional Director provides bilingual ballots and
notices
5 See Pittsburgh Plate Glass Co v N L R B, 313 US 146,162 (1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
GENERAL DYNAMICS CORP.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees, in-
cluding wood working employees, shipping and
receiving, plant clerical employees, and quality-
control inspectors, employed at the Employer's
San Antonio, Texas, facility, but excluding all
office clerical, professional employees, guards,
watchmen, and supervisors as defined in the Act,
and all other employees.
2. The certification
On July 11, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted pursuant to a Stipulation for Certification
Upon Consent Election under the supervision of the
Regional Director for Region 23 designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on March
31, 1970, and the Union continues to be such
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 31, 1970, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about March 31, 1970, 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 collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
March 31, 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, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
6 The Union' s request for a hearing on past damages due under a
"make whole " remedy is denied for the reasons set forth in Ex-Cell-O
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
681
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
commerce among the several States and tend to lead
to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate 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).6
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. General Dynamics Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The following employees of the Respondent
constitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees, in-
cluding wood working employees, shipping and
receiving, plant clerical employees, and quality-
control inspectors, employed at the Employer's
San Antonio, Texas, facility, but excluding all
office clerical, professional employees, guards,
Corporation, 185 NLRB No 20 Member Brown disagrees for the reasons
set forth in the dissent of the cited case.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
watchmen, and supervisors as defined in the Act,
and all other employees.
4. Since March 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 March 31, 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, 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
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
Relations Board hereby orders that Respondent,
General Dynamics Corporation , San Antonio, 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 Union of Electri-
cal, Radio and Machine Workers, AFL-CIO-CLC,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees, in-
cluding wood working employees , shipping and
receiving , plant clerical employees , and quality-
control inspectors , employed at the Employer's
San Antonio , Texas , facility , but excluding all
office clerical, professional employees , guards,
watchmen , and supervisors as defined in the Act,
and all other employees.
(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 the San Antonio, Texas, facility copies of
the attached notice marked "Appendix. " 7 Copies of
said notice, on forms provided by the Regional
Director for Region 23 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 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
r 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 Interna-
tional Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, as the exclusive repre-
sentative 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,
including wood working employees, shipping
and receiving, plant clerical employees, and
quality-control inspectors, employed at the
Employer's San Antonio, Texas, facility, but
excluding all office clerical, professional
GENERAL DYNAMICS CORP. 683
employees , guards , watchmen , and supervi- This is an official notice and must not be defaced by
sors as defined in the Act, and all other anyone.
employees . This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
GENERAL DYNAMICS defaced , or covered by any other material.
CORPORATION Any questions concerning this notice or compliance
(Employer) with its provisions may be directed to the Board's
Office , Dallas-Brazos Building , Fourth Floor, 1125
Dated By Brazos Street , Houston , Texas 77002, Telephone
(Representative ) (Title) 713-226-4271.