Mercury Marine

National Labor Relations Board - Board Decisions

Dec 30, 1982

259 N.L.R.B. 876 (N.L.R.B. 1982)

876 MERCURY MARINE
Mercury Marine Division of Brunswick Corporation but contends that it did not violate the Act because
and District No. 10, International Association such employees are not properly part of the appro-
of Machinists and Aerospace Workers, AFL priate unit represented by the Union.' Respondent
CIO. Case 30-CA-6456 predicates its refusal to bargain on the following
December 30, 1982 grounds. Respondent contends that during the term
of the collective-bargaining agreement effective
DECISION AND ORDER June 19, 1978, to June 15, 1980, it was determined
through the grievance arbitration procedures that
BY MEMBERS FANNING, JENKINS, AND Process Coordinator I's were not within the collec-
~ZIMMERMAN~~ ~tive-bargaining unit. Respondent also contends that
Upon a charge filed on April 24, 1981, by Dis- during subsequent negotiations the Union unsuc-
trict No. 10, International Association of Machin- cessfully sought to have Process Coordinator I's in-
ists and Aerospace Workers, AFL-CIO, herein the cluded in the unit and that the current agreement
Union, and duly served on Mercury Marine Divi- effective June 16, 1980, to June 18, 1982, does not
sion of Brunswick Corporation, herein Respondent, cover the Process Coordinator I's.
the General Counsel of the National Labor Rela- As to the allegations covering the Board Deci-
tions Board, by the Regional Director for Region sion reported at 254 NLRB 1120 (1981), Respond-
30, issued a complaint and notice of hearing on ent admits that the Board issued a decision on
May 27, 1981, and an amendment to the complaint review but contends that the decision was errone-
on August 20, 1981, alleging that Respondent had ous, unsupported by substantial evidence on the
engaged in and was engaging in unfair labor prac- record and violated due process. Respondent fur-
tices affecting commerce within the meaning of ther contends that the case should have been re-
Section 8(a)(l) and (5) and Section 2(6) and (7) of manded to the Regional Office for a hearing on the
the National Labor Relations Act, as amended. issues of fact concerning bargaining negotiations
Copies of the charge and the complaint and notice leading to the 1980-82 agreement and the impact of
of hearing before an administrative law judge and such negotiations on the contractual recognition ar-
amended complaint were duly served on the parties tides.
to this proceeding. On June 8, 1981, Respondent In addition, Respondent contends that the Proc-
filed an answer, admitting in part and denying in ess Coordinator I's cannot be part of the produc-
part the allegations of the complaint, submitting af- tion and maintenance unit because the duties of
firmative defenses, and requesting that the com- such persons make them supervisors within the
plaint be dismissed in its entirety. meaning of Section 2(11) of the Act. Further, Re-
On August 27, 1981, counsel for the General spondent contends that subsequent to the submis-
Counsel filed directly with the Board a motion to sion of the record to the Regional Director and
transfer the proceeding to the Board and a Motion prior to the decision by the Board in Case 30-UC-
for Summary Judgment. The General Counsel sub- 158 numerous changes were made in the position
mits, inter alia, that Respondent, in its answer, is of Process Coordinator I and that these changes
merely attempting to relitigate matters which could compel a finding that Process Coordinator I's are
or should have been litigated in the unit clarifica- statutory supervisors, and that, even assuming the
tion proceeding, Case 30-UC-158. Subsequently, validity of the Board's Decision, those employees
on September 1, 1981, the Board issued an order should be excluded from the unit.
transferring the proceeding to the Board and a Finally, Respondent admits the factual allega-
Notice To Show Cause why the General Counsel's tions concerning the refusal to bargain with the
Motion for Summary Judgment should not be Union as to the Process Coordinator I's on April
granted. Respondent thereafter filed a brief letter 24, 1981, but it denies the conclusionary legal alle-
response to the Notice To Show Cause. gations regarding the refusal to bargain.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na- I Respondent also admitted the factual and legal allegations pertaining
tional Labor Relations Board has delegated its au- to service of the charge and complaint, that it is an employer engaged in
commerce within the meaning of the Act, and that the Union is a laborthority in this proceeding to a three-member panel. organization within the meaning of the Act. In addi t o otheis a labor
tions of the complaint that Respondent denied, which are described else-
Ruling on the Motion for Summary Judgment where in this Decision, Respondent also denied the complaint allegation
in par. 4(a) regarding the scope of the unit, and claimed instead that the
In its answer to the complaint and opposition to Union has been designated the exclusive bargaining representative for cer-
the General Counsel's Motion for Summary Judg- tain production and maintenance employees at Respondent's Fond du
.ment, Respondent »s _ j the' refusal to bargain as Lac facility. Thereafter, the General Counsel amended par. 4(a) of the
ment, Respondent admits the refusal to bargain as complaint to describe the unit as certain production and maintenance em-
to employees classified as Process Coordinator I's ployees, thereby accommodating Respondent's answer in this respect.
259 NLRB No. 110
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By MEMBER, FANNING, JENKINS,-AND t ri r itr ti r r t t
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tive-bargai ing it.
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i O i ti it i t ea ing f the Act. In addition to other allega-
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10
MERCURY MARINE 877
It is well settled that in the absence of newly dis- change the result here but would constitute addi-
covered or previously unavailable evidence or spe- tional evidence of Respondent's refusal to bargain
cial circumstances a respondent in a proceeding al- with the Union since it would have made unilateral
leging a violation of Section 8(a)(5) is not entitled changes without bargaining.
to relitigate issues which were or could have been We find, on the basis of the foregoing, that Re-
litigated in a prior representation proceeding.2 spondent is, and has been at all times material
In her Motion for Summary Judgment, counsel herein, an employer engaged in commerce within
for the General Counsel urges that Respondent, by the meaning of Section 2(6) and (7) of the Act, and
its answer and refusal to bargain, is merely attempt- that it will effectuate the policies of the Act to
ing to relitigate matters which could or should assert jurisdiction herein.
have been litigated in the unit clarification proceed- On the basis of the entire record, the Board
ing, and that the issues raised by Respondent as a makes the following:
justification for a hearing are either irrelevant or
insufficient as a matter of law to justify a hearing FINDINGS OF FACT
now. We agree.
Respondent's contention that the Board should I. THE BUSINESS OF RESPONDENT
defer to the arbitrator's decision was previously Respondent is, and has been at all times material
litigated before the Board in Case 30-UC-158, re- herein, a Delaware corporation, with an office and
ported at 254 NLRB 1120 (1981). There the Board place of business in Fond Du Lac, Wisconsin. It is
noted that issues concerning the appropriateness of engaged in the manufacture and nonretail distribu-
bargaining units are particularly within the Board's tion of marine propulsion equipment. During the
expertise and the Board does not defer to such an representative period Re-
award. past calendar year, a representative period, Re-
Respondent's reliance on the Unions failre to ,spondent, in the course and conduct of its businessRespondent's reliance on the Union's failure to tions, sold and shipped from the ond du Lac
insist that Process Coordinator I's be included in operations, sold and shipped from the Fond du Lac
the unit during contract negotiations that took facility products, goods, and materials valued in
place after the Union filed the petition in Case 30- excess of $50000 directly to points outsde the
UC-158 is similarly misplaced. The Board has long State of Wisconsin.
held that where, as here, the petition was filed We find, on the basis of the foregoing, that Re-
before the negotiations the opposing party was on spondent is, and has been at all times material
notice that the petitioner intended to resolve the herein, an employer engaged in commerce within
unit issue through the Board's procedures rather the meaning of Section 2(6) and (7) of the Act, and
than through negotiations. 3 We find it unnecessary, that it will effectuate the policies of the Act to
therefore, to resolve any disputed factual allega- assert jurisdiction herein.
tions concerning the post-petition contract negotia-. THE LABOR ORGANIZATION INVOLVEDIt. THE LABOR ORGANIZATION INVOLVEDtions. 4
As to Respondent's contention that Process Co- District No. 10, International Association of Ma-
ordinator I's are statutory supervisors and therefore chinists and Aerospace Workers, AFL-CIO, is a
must be excluded from the unit, we note that this labor organization within the meaning of Section
issue was raised and litigated during the unit clarifi- 2(5) of the Act.
cation proceeding (30-UC-158) supra. As such, this
issue cannot be relitigated now, absent newly dis- II. THE UNFAIR LABOR PRACTICES
covered evidence or special circumstances. In this For over 20 years, and at all times material
connection, Respondent has sought to introduce herein, the Union has been the designated exclusive
evidence that the disputed employees' job duties collective-bargaining representative of certain pro-
have changed substantially since the Board's Deci- duction and maintenance employees employed by
sion issued. This assertion, if true, would not Respondent at its Fond du Lac facility and has
See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); been recognized as such representative by Re-
Rules and Regulations of the Board, Sees. 102.67() and 102.69(c). spondent. Such recognition has been embodied in
I The Western Colorado Power Company, 190 NLRB 564, fn. 1 (1971); successive collective-bargaining agreements, the
Peerless Publications Inc., 190 NLRB 658 (1971); Massey-Ferguson, Inc.,
202 NLRB 193 (1973); and WNYS-TV (WIXT), 239 NLRB 170 (1978).
4 The Union denied that any acquiescience occurred regarding the 'See Highland Terrace Convalescent Center, 233 NLRB 87 (1977).
Process Coordinator I's during the negotiations. In this connection, it is well settled that an employer has a duty to bar-
We note that Respondent claims the Union unsuccessfully sought in- gain when it changes the duties of bargaining unit employees' classifica-
clusion of the Process Coordinator l's during recent negotiations but does tion which result in the employees' removal from the bargaining unit to
not claim the Union withdrew its claim in exchange for other concessions supervisory positions. See Kendall College, 228 NLRB 1083 (1977), enfd.
during negotations. See WNYS-(WIXT), supra at 170. 570 F.2d 216 (7th Cir. 1978); and Fry Food Inc., 241 NLRB 76 (1979).
5
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878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
most recent of which is effective by its terms for We find that by the aforesaid conduct Respond-
the period June 16, 1980, through June 15, 1982. ent has refused to bargain collectively with the
On March 5, 1981, the Board issued a Decision Union as the exclusive representative of the em-
on Review and Order in Case 30-UC-158, report- ployees in the appropriate unit and that such con-
ed at 254 NLRB 1120, clarifying the unit referred duct violated Section 8(a)(5) and (1) of the Act.
to above by including therein the employees classi-
fied as Process Coordinator I who are employed IV. THE EFFECT OF THE UNFAIR LABOR
by Respondent at its Fond du Lac facility. PRACTICES UPON COMMERCE
The unit of employees described in the Board's The activities of Respondent set forth in section
Decision, above, and set forth below, constitutes a III, above, occurring in connection with its oper-
unit appropriate for collective-bargaining purposes ations described in section I, above, have a close,
within the meaning of Section 9(b) of the Act: intimate, and substantial relationship to trade, traf-
All production and maintenance employees, fic, and commerce among the several States and
including all classifications in the Production tend to lead to labor disputes burdening and ob-
Departments, the Production Tool Room, the structing commerce and the free flow of com-
Machine Shop, the Testing Department, the merce.
Maintenance Department, Buildings and
Grounds, Oil Facility, the Foundry Facility, . THE REMEDY
Die Cast Facility, including Process Coordina- Having found that Respondent has engaged in
tor l's, Customer Service and Repair Depart- and is engaging in unfair labor practices within the
ments, Floor Inspectors, Final Inspectors, and meaning of Section 8(a)(5) and (1) of the Act, we
Salvage Inspectors in the Inspection Depart- shall order that it cease and desist therefrom, and
ment, Time Recording Clerks, Lead persons, take certain affirmative action designed to effectu-
Mechanic Specialists, Cycle Counters, Distri- ate the policies of the Act.
bution Facility, Shipping and Receiving De- The Board, upon the basis of the foregoing facts
partment, Investment Castings Facility, and all and the entire record, makes the following:
other production and maintenance departments
which may be added to the collective bargain- CONCLUSIONS OF LAW
ing unit in the future covered by an agree- 1. Mercury Marine Division of Brunswick Cor-
ment, but excluding all executives, office and poration is an employer engaged in commerce
clerical employees, laboratory employees, pro- within the meaning of Section 2(6) and (7) of the
fessional employees, sales representatives, Act
product development and testing personnel, 2. District No. 10, International Association of
layout inspectors, paint inspectors, final line in- Machinists and Aerospace Workers, AFL-CIO, is
spectors, watchpersons, guards and supervi- a labor organization within the meaning of Section
sory employees as defined in the Labor-Man- 2(5) of the Act
agement Relations Act.agement Relations ct. 3. All production and maintenance employees,
As indicated above, Respondent has admitted the including all classifications in the Production De-
factual allegations in the complaint to the effect partments, the Production Tool Room, the Ma-
that the Union requested, in March 1981, that Re- chine Shop, the Testing Department, the Mainte-
spondent bargain collectively with it concerning nance Department, Buildings and Grounds, Oil Fa-
the wages, hours, and other terms and conditions cility, the Foundry Facility, Die Cast Facility, in-
of employment of Respondent's employees classi- cluding Process Coordinator I's, Customer Service
fled as Process Coordinator I's and that, thereafter, and Repair Department, Floor Inspectors, Final In-
Respondent has failed and refused to bargain with spectors, and Salvage Inspectors in the Inspection
the Union concerning such terms and conditions of Department, Time Recording Clerks, Lead per-
employment of the employees classified as Process sons, Mechanic Specialists, Cycle Counters, Distri-
Coordinator I's.6 bution Facility, Shipping and Receiving Depart-
ment, Investment Castings Facility, and all other
' In its motion to transfer the proceeding to the Board and Motion for roduction and maintenance departments which
Summary Judgment, the General Counsel presented certain exhibits that pr n and maintenance departments
reveal the chronology of the refusal to bargain as follows. In or about the
second week of March 1981, the Union, by its business representative, Manager of Public Relations Ronald Hanson, again requested bargaining
Joseph Develice, orally requested that Respondent bargain with it con- concerning the employees classified as Process Coordinator I. On or
cerning the wages, hours, and terms and conditions of employment of the about April 15, 1981, Respondent by Hanson, orally refused to bargain
employees classified as Process Coordinator I pursuant to the Board's regarding the Process Coordinator I's, and informed union business repre-
Decision. On or about March 27, 1981, the Union, by certified letter from sentative Develice that Respondent did not intend to abide by the
Directing Business Representative Richard A. Presser to Respondent's Board's Decision.
T H E E FF E C T O F T H E U N FA IR L A BO R

111
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MERCURY MARINE 879
may be added to the collective-bargaining unit in bution Facility, Shipping and Receiving De-
the future covered by an agreement, but excluding partment, Investment Castings Facility, and all
all executives, office and clerical employees, labo- other production and maintenance departments
ratory employees, professional employees, sales which may be added to the collective bargain-
representatives, product development and testing ing unit in the future covered by an agree-
personnel, layout inspectors, paint inspectors, final ment, but excluding all executives, office and
line inspectors, watchpersons, guards and supervi- clerical employees, laboratory employees, pro-
sory employees as defined in the Labor-Manage- fessional employees, sales representatives,
ment Relations Act, constitute a unit appropriate product development and testing personnel,
for the purposes of collective bargaining within the layout inspectors, paint inspectors, final line in-
meaning of Section 9(b) of the Act. spectors, watchpersons, guards and supervi-
4. At all times material herein, the Union hasepoees as dened n t
been the exclusive representative of all the employ- employees as d
ees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning (b) In any like or related manner interfering
of Section 9(a) of the Act. with, restraining, or coercing employees in the ex-
5. By failing and refusing to bargain with the ercise of the rights guaranteed them under Section
Union concerning the wages, hours, and other 7 of the Act.
terms and conditions of employment of the em- 2. Take the following affirmative action which
ployees in the aforesaid appropriate unit classified the Board finds will effectuate the purposes of the
as Process Coordinator I, Respondent has engaged Act:
in and is engaging in unfair labor practices within (a) Upon request, bargain collectively with Dis-
the meaning of Section 8(a)(5) and (1) of the Act. trict No. 10, International Association of Machin-
6. The aforesaid unfair labor practices are unfair ists and Aerospace Workers, AFL-CIO, as the ex-
labor practices affecting commerce within the clusive bargaining representative of all the employ-
meaning of Section 2(6) and (7) of the Act. ees in the appropriate unit set forth above concern-
ORDER ing the wages, hours, and other terms and condi-
tions of employment of employees in the said ap-
Pursuant to Section 10(c) of the National Labor ion o o n o o
propriate unit classified as Process Coordinator I.Relations Act, as amended, the National Labor Re- Any understanding reached shall be embodied in alations Board hereby orders that the Respondent,derstandg reached shall be embodied
Mercury Marine Division of Brunswick Corpora- signed agreement
tion, Fond du Lac, Wisconsin, its officers, agents, (b) Post at its facility in Fond du Lac, Wiscon-
successors, and assigns, shall: sin, copies of the attached notice marked "Appen-
1. Cease and desist from: dix." 7 Copies of said notice, on forms provided by
(a) Failing and refusing to bargain collectively in the Regional Director for Region 30, after being
good faith with District No. 10, International Asso- duly signed by Respondent's representative, shall
ciation of Machinists and Aerospace Workers, be posted by Respondent immediately upon receipt
AFL-CIO, as the exclusive representative of its thereof, and be maintained by it for 60 consecutive
employees in the appropriate unit set forth below days thereafter, in conspicuous places, including all
concerning the wages, hours, and other terms and places where notices to employees are customarily
conditions of employment of the employees in the posted. Reasonable steps shall be taken by Re-
said appropriate unit classified as Process Coordi- spondent to insure that said notices are not altered,
nator I. The appropriate unit is: defaced, or covered by any other material.
All production and maintenance employees, (c) Notify the Regional Director for Region 30,
including all classifications in the Production in writing, within 20 days from the date of this
Departments, the Production Tool Room, the Order, what steps Respondent has taken to comply
Machine Shop, the Testing Department, the herewith.
Maintenance Department, Buildings and
Grounds, Oil Facility, the Foundry Facility,
Die Cast Facility, including Process Coordina-
tor I's, Customer Service and Repair Depart-
ments, Floor Inspectors, Final Inspectors, and In the event that this Order is enforced by a Judgment of a United
Salvage Inspectors in the Inspection Depart- States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ment, Time Recording Clerks, Lead persons, ant to a Judgment of the United States Court of Appeals Enforcing an
Mechanic Specialists, Cycle Counters, Distri- Order of the National Labor Relations Board."
,
, r i- l ri l l s, la rat r e ployees, pro-
i t - fessi al e l ees, sales representatives,

t ll ti i i it i t i t , ,
employees fine i he Labor-Man-
ploy-Relations Act.
.
t:
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ti ( ) f t t. tri t . 10, I ter ati al ssociation of achin-
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l i ll t l
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t e e i th saidiap-
l p uni classiie Cordin
ndent, A ueanding r s ll be i i a
ig n e .
o s t a t it s f ilit in F o n d d u L a c, is c
o n -
s in , i o f t h e
d i x '
t
ents, loor nspectors, inal nspectors, s
alvage nspectors nspection epart-
ent, ime ecording lerks, ersons, ,an, Judg
echanic ycle ounters, istri-
.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX Specialists, Cycle Counters, Distribution Fa-
NOTICE To EMPLOYEEScility, Shipping and Receiving Department,
N POSTED BY ORER OF THE Investment Castings Facility, and all other
NATIPOSD BY ORD RELTIONS BOARD production and maintenance departments
NATIONAL LABOR RELATIONS BOARDG r _n which may be added to the collective bar-An Agency of the United States Government gaining unit in the future covered by angaining unit in the future covered by an
agreement, but excluding all executives,WE WILL NOT fail and refuse to bargain col- agreement, but ec el laaxecutives,
lectively in good faith with District No. 10, office and clecal employees, laboratory
International Association of Machinists and employees, professional employees, sales
representatives, product development andAerospace Workers, AFL-CIO, as the exclu- representatives, product development and
sive bargaining representative of our employ- testing personnel, layout inspectors, pat n-
ees in the appropriate unit described below spectors, fnal line inspectors, watchpersons
concerning the wages, hours, and other terms guards and supervisory employees as definedin the Labor-Management Relations Act.and conditions of employment of employees in t Labor-Management Relations Act.
the said appropriate unit classified as Process WE WILL NOT in any other manner interfere
Coordinator I. The appropriate unit is: with, restrain, or coerce employees in the exer-
All production and maintenance employ- cise of the rights guaranteed them under Sec-
ees, including all classifications in the Pro-on e Act
duction Departments, the Production Tool WE WILL, upon request, bargain in good
Room, the Machine Shop, the Testing De- faith with the Union as the exclusive bargain-
partment, the Maintenance Department, ing representative of all employees in the ap-
Buildings and Grounds, Oil Facility, the propriate unit described above concerning the
Foundry Facility, Die Cast Facility, includ- wages, hours, and other terms and conditions
ing Process Coordinator I's, Customer Serv- of employment of the employees in said appro-
ice and Repair Department, Floor Inspec- priate unit classified as Process Coordinator I.
tors, Final Inspectors, and Salvage Inspec-
tors in the Inspection Department, Time Re- MERCURY MARINE DIVISION OF
cording Clerks, Lead persons, Mechanic BRUNSWICK CORPORATION
i li ,
NOTICE To EmPLOYEES c lity, i i i i
POSTICED RD ML HEEInvestment ti cili ll
TI N D A DRE AT F ti rNATIONAL LABOR RELATIONS BOARD ^ coltiebrAn Agncy o the itedState Govenmentwhich ay be added to the collective bar-
gency f the nited States Govern ent i i it i
... , .. , , . , . ,~~~agreement, l i ll ti ,il i l ag exluig l mployees, laboratory
i i i i i employeesn rofessioal employees, sales
t ational i ti i ists poes rfsinlepoes e
Aerospace orkers, AFL-CI , as the exclu- t ti , l t
i i i nt ti l P rs l, l y t inspectors, paint i-
i ri l s ec t o r s, f in a l li e'ispect rs, atchpersons
r i t ga rvi r l y s as defined
i l l i i r- a t elations ct.
i t e l - c is e o f
th e rights guaranteed them under Sec-
All prductin an ainteance eploy- tion 7 of the Act.
W E W ILL ,
fa th w th th e o n

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ti l cise