Linn Gear Co.

National Labor Relations Board - Board Decisions

May 15, 1978

236 N.L.R.B. 64 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Linn Gear Company and International Association of
Machinists and Aerospace Workers, District Lodge
No. 163. AF,-CIO. Case 36 CA 3177
May 15. 1978
DECISION AND ORDER
BY CHIIAIRMAN F\NNIN(; ANI) MLNBIlt RS JI NKINS
AND MURI)IPM
Upon a charge filed on October 12. 1977. by In-
ternational Association of Machinists and Aerospace
Workers, District Lodge No. 163, AFI. CIO, herein
called the Union, and duly served on linn Gear
Company, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 19, issued a conm-
plaint and notice of hearing on December 12, 1977.
against Respondent. alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 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 he-
fore an Administrative Law Judge were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on May 24, 1977, fol-
lowing a Board election in Case 36-RC 3838. the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about July 25, 1977, and at all times there-
after, Respondent 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
February 14, 1978, Respondent filed its second
amended answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On February 3, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently. on March 6,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
I Official notice is taken of the record in the representation proceeding.
Case 36 RC 3838. as the term "record" is defined in Secs. 1(2.68 and
102.69(g)of the Board's Rulesand Regulations, Series 8.,asamended See l.1''
Electrosvsrems, Inrc. 166 NL.RB 938 (1967), enfd. 388 F.2d 683 (C'.A. 4.
1968). Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 1 .2d 26
(C.A. 5, 1969); Interntpe Co. v. Penello, 269 F.Supp. 573 ( C.Va.. 1967):
Foilett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (('.A 7, 1968). Sec
9(d) of the NL.RA, as amended.
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause.
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 second amended answer to the complaint.
Respondent admits that the Union requested certain
information preparatory to bargaining, but denies
that it refused the requests. However, attached to the
General Counsel's motion is a letter dated July 25.
1977, in which Respondent refused to provide the
information, or to recognize or bargain with the
Union. Neither this letter, nor its import, are contro-
verted by Respondent in its response to the Notice
To Show Cause. Accordingly, we shall deem the alle-
gations that Respondent refused to provide informa-
tion, or to recognize or bargain with the Union, to be
true and Respondent's denials thereof are stricken.2
Respondent also contends that the Union was im-
properly certified because the Regional Director
should not have sustained a challenge to the ballot of
Brian Hartl. The record indicates that an agreement-
for-consent election was conducted on April 21.
1977. The tally of ballots showed 54 votes cast for the
Petitioner and 45 against: there were 9 challenged
ballots, a sufficient number to affect the results. On
May 24, 1977, the Regional Director for Region 19
issued a Report on Challenged Ballot and Certifica-
tion of Representative. In his report the Regional Di-
rector found that Hartl did not share a community of
interest with the other employees and sustained the
challenge to his ballot. Hartl, a full-time employee,
lives at home and is a son of the president of the
Respondent. His father is also the majority stock-
holder of Respondent's controlling company.
Respondent took exception to this finding. The
Board's Associate Executive Secretary informed the
Respondent, by letter dated June 14. 1977, that, pur-
suant to the Board's Rules and Regulations in an
agreement for consent election, the Respondent had
agreed that the Regional Director's determination
would be final and the Board would not entertain an
appeal.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
S, h,, art Brolhern, l Inc. ind Dilrlrrr Re, ords, Ii.. 194 NLRB 1 50 ( 971);
lih 1I(,1 Department SIorrl% ('ornpanm, 186 NL RB 86 (1970).
236 NLRB No. 13
64
LINN GEAR COMPANY
gate issues which were or could have been litigated in
a prior representation proceeding.3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously 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 proper-
ly 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
Respondent is an Oregon corporation with an of-
fice and place of business located in Lebanon, Ore-
gon. It is engaged in the business of manufacturing
sprockets and gears. During the past 12 months, a
representative period, Respondent has sold and
shipped from its Lebanon plant finished products
valued in excess of $50,000 to points outside the State
of Oregon.
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 juris-
diction herein.
It. THE LABOR ORGANIZATION INVOLtVED
International Association of Machinists and
Aerospace Workers, District Lodge No. 163, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR L.ABOR PRAC(I( LtS
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All employees of Respondent employed at
3See Piisburgh Plate Glass (o v. V .R B., 313 U.S. 146. 162 (1941):
Rules and Regulations of the Board. Sees 102 67(f) and 102.69tc)
100 North Eight Street, Lebanon, Oregon, ex-
cluding office clerical employees, salesmen, pro-
fessional employees, guards and supervisors as
defined in the Act.
2. The certification
On April 21, 1977, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 19 designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on May 24. 1977, and the Union contin-
ues 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 July 5, 1977, and at all
times thereafter, the Union has requested that Re-
spondent provide information preparatory to collec-
tive bargaining with it as the exclusive collective-bar-
gaining representative of all the employees in the
unit. Commencing on or about July 25, 1977, and
continuing 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 that
unit.
Accordingly, we find that Respondent has, since
July 25, 1977, 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 en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IVIlI 1111 ( I:IF I rilt LNAIR .ABOR PRA(TI(CES IPON
( (OMIMER( '
The activities of Linn Gear Companv 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, traf-
fic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V TIEi REMEDYI>
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 appro-
priate unit will be accorded the services of their se-
lected 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 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), 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
I. Linn Gear Company 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, District Lodge No. 163, AFL
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees of Respondent employed at 100
North Eighth Street, Lebanon, Oregon, excluding of-
fice clerical employees, salesmen, professional em-
ployees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since May 24, 1977, 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 July 25, 1977, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 them in Sec-
tion 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 Re-
lations Board hereby orders that the Respondent,
Linn Gear Company, Lebanon, Oregon, 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 con-
ditions of employment with International Associa-
tion of Machinists and Aerospace Workers, District
Lodge No. 163, AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All employees of Respondent employed at
100 North Eighth Street, Lebanon, Oregon, ex-
cluding office clerical employees, salesmen, pro-
fessional employees, guards and supervisors 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, 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at 100 North Eighth Street, Lebanon, Or-
egon, copies of the attached notice marked "Appen-
dix." 4 Copies of said notice, on forms provided by
the Regional Director for Region 19, after being duly
signed by Respondent's representative, shall be post-
ed 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
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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
66
LINN GEAR COMPANY
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
PosrED BY ORDER OF' THE
NATIONAI. LABOR RELATIONS BOARI)
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 Inter-
national Association of Machinists and Aero-
space Workers, District Lodge No. 163, AFL
CIO, as the exclusive representative of the em-
ployees 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.
W. WIlll upon request, bargain with the
above-named Union, as the exclusive represent-
ative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All employees of the Employer employed at
100 North Eighth Street, Lebanon, Oregon,
excluding office clerical employees, salesmen,
professional employees, guards and supervis-
ors as defined in the Act.
LINN GEAR COMPANY
67