Randall, Burkart/Randall

National Labor Relations Board - Board Decisions

Jan 25, 1979

240 N.L.R.B. 263 (N.L.R.B. 1979)

RANDALL, BURKART/R-ANDALL 263
Randall, Burkart/Randall Division of Textron, Inc.
and Local 1249, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW). Case 26-CA-7434
January 25, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on September 29, 1978, by
Local 1249, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America (UAW).
herein called the Union, and duly served on Randall,
Burkart/Randall, Division of Textron, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 26, issued a complaint and notice
of hearing on October 3, 1978, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (I)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before an Administra-
tive 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 August 25, 1978,
following a Board election in Case 26-RD-381, 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 August 25, 1978, and at all times
thereafter, 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 October 13, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint. Respondent admits
service and jurisdiction. It also admits that the Union
is a labor organization and that Robert Hicks, Re-
spondent's manager of personnel and industrial rela-
tions, is an agent of Respondent and a supervisor
within the meaning of Section 2(11) of the Act. Re-
Official notice is taken of the record in the representation proceeding.
Case 2 RD 381 as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations. Series 8. as amended. See
LTV Electrosvsemns, Inc. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beserage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d
26 (5th Cir. 1969); Intertype Co. v. Penello 269 F.Supp. 573 (D.C.Va., 1967);
Foller C(orp. 164 NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir. 1968); Sec
9(d) of the NLRA as amended.
240 NLRB No. 53
spondent further admits that the most recent collec-
tive-bargaining agreement between Respondent and
the Union for the employees in the unit found appro-
priate was in effect from September 1, 1974, through
September 8, 1977, and that on August 25, 1978, the
Board certified the Union as collective-bargaining
representative of the unit found appropriate.
However, Respondent asserts that the Union's sta-
tus as exclusive bargaining representative prior to the
6 months preceding the filing of the instant charge
relates to events banned by Section 10(b) of the Act.
Respondent denies that at all times since May 26,
1976, and continuing to date, the Union has been the
exclusive collective-bargaining representative for Re-
spondent's production and maintenance employees.
Respondent also denies that the Union has requested
and is requesting that Respondent meet with it for
purposes of collective bargaining, and that since Au-
gust 25, 1978, it has refused to meet and bargain in
good faith with the Union. Respondent denies that
the Union, by virtue of the Certification of Represen-
tative, is the exclusive representative of the stipulated
unit. Respondent asserts that the Union has not dem-
onstrated its majority status in a properly conducted
election due to various objections and exceptions to
the November 16, 1977, election. Finally, Respon-
dent denies the conclusory 8(a)(5) and (1) allega-
tions.
On October 26, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November I,
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
Judgment should not be granted. The Charging Party
and Respondent thereafter filed their responses to
the 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 answer to the complaint and in its response
to the Notice To Show Cause, Respondent claims as
an affirmative defense that it has been denied its
right to due process because a hearing was not held
and evidence was not taken on some of its objections
to the election, and on the events which occurred
outside of the critical period. Specifically, Respon-
dent alleges that the Board's Certification of Repre-
sentative is invalid because: () The Board agents did
RANDALL, BURKART/RNDALL 63
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not follow an agreed-upon procedure during the elec-
tion, and this failure resulted in an atmosphere of
confusion, fear, and coercion at the polls; (2) union
agents improperly conversed and electioneered dur-
ing prohibited times in prohibited areas during the
election; (3) two voters were permitted in one voting
booth at one time; (4) prior to the election, the
Union distributed handouts which contained miss-
tatements and misrepresentations of fact; (5) prior to
the election, the Union made material misstatements
and misrepresentations of fact with respect to eco-
nomic strikers, their replacements, and unemploy-
ment compensation; (6) Respondent was denied due
process because no hearing was held on the above-
described factors numbered 1, 3, 4, and 5, and on the
alleged acts of violence and misconduct which oc-
curred prior to the filing of the decertification peti-
tion and after the November 16, 1977, election.
A review of the record herein reveals that in Case
26-RD-381 the petition was filed by Wayne Burgess,
an individual, seeking to decertify the Union. On
November 4, 1977, the Acting Regional Director for
Region 26 approved a Stipulation for Certification
Upon Consent Election, thereafter an election was
held on November 16, 1977, in two units of employ-
ees of Respondent at its Blytheville, Arkansas, loca-
tion. The Union failed to receive a majority of valid
ballots cast in the tool-and-die unit; there are no alle-
gations of unfair labor practices with respect to that
unit. The results of the election in the production and
maintenance unit show that a majority of the votes
were cast for the Union. On November 22, 1977, the
Employer filed timely objections to conduct affecting
the results of the election in the production and
maintenance unit. The Regional Director issued his
Report on Objections on December 22, 1977, in
which he recommended that Respondent's objections
be overruled in their entirety. The Board reviewed
the record in light of Respondent's exceptions and
brief, and on March 13, 1978, issued a Decision and
Order Directing Hearing to resolve the issues raised
with respect to Respondent's Objections 2 and 6; the
Board adopted the Regional Director's recommenda-
tions that Respondent's Objections 1, 3, 4, and 5 be
overruled. After holding a hearing on April 25, 1978,
on Respondent's Objections 2 and 6, the Hearing Of-
ficer issued her Report and Recommendations on
Objections on June 8, 1978. The Board then reviewed
the record in light of Respondent's brief and excep-
tions to the Hearing Officer's report, and on August
25, 1978, it issued a Decision and Certification of
Representative which overruled Respondent's Objec-
tions 2 and 6 and certified the Union as the exclusive
representative of Respondent's production and main-
tenance employees.
Respondent admits that the most recent agreement
covering the employees in the production and main-
tenance unit was effective by its terms from Septem-
ber 1, 1974, through September 8, 1977. Additionally,
Respondent signed a Stipulation for Certification
Upon Consent Election following the filing of the
decertification petition in Case 26-RD-381. Follow-
ing the November 16, 1977, election, the Union, by a
letter dated January 4, 1978, requested that Respon-
dent meet and bargain with respect to the production
and maintenance unit. In its reply letter dated Janu-
ary 23, 1978, Respondent stated that because the
Union had not been certified, its request to bargain
was premature. After the issuance of the Certifica-
tion of Representative, the Union renewed its bar-
gaining request in a letter dated September 6, 1978.
By a letter dated September 18, 1978, Respondent
refused to recognize and bargain with the Union be-
cause it contended that the Union's certification as
the representative of the production and mainte-
nance employees was "legally invalid for the reasons
set forth in the Company's objections and briefs in
NLRB Case No. 26-RD-381."
In its brief in support of its opposition to the mo-
tion for summary judgment, Respondent specifically
states that it "is not seeking to introduce new or addi-
tional factual evidence relating to those issues raised
in the underlying representation case, nor is Respon-
dent acting in defiance of the statutory policy of the
Act but merely is preserving its position in order to
obtain judicial review of the Board's decision that the
election resulting in the Union's certification should
not be set aside."
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-
gate issues which were or could have been litigated in
a prior representation proceeding.2
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.3
2See 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).
3 In its response to the Notice To Show Cause, the Charging Party re-
quested that the Board provide a "make-whole" remedy for the Union and
RANDALL, BURKART/RANDALL 265
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times relevant herein, Respondent has been
a corporation doing business in the State of Arkan-
sas, and has had an office and place of business lo-
cated in Blytheville, Arkansas, where it is engaged in
the manufacture of automobile trim. During the past
12 months, Respondent, in the course and conduct of
its business operations, purchased and received at its
Blytheville, Arkansas, location, products valued in
excess of $50,000 directly from points located outside
the State of Arkansas, and during the same period of
time, Respondent sold and shipped from its Blythe-
ville, Arkansas, location, products valued in excess of
$50,000 directly to points located outside the State of
Arkansas.
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.
II. THE LABOR ORGANIZATION INVOLVED
Local 1249, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), 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 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 truckdrivers employed at the Employer's
the employees under the rule laid down in Tidee Products. Inc.. 194 NLRB
1234 (1972), and United Steelworkers o A merica. A FL-CIO [Metco Incorpo-
rated] v. N.L.R.B., 4% F.2d 1324 (5th Cir. 1974). In responding to this
request. Respondent claims that its position is not frivolous. but rather is
clearly debatable. While Respondent's defense is clearly nonmeritorious, we
find that the extraordinary remedies requested by the Charging Party of
awarding litigation costs, organizing expenses. and wages and benefits to
employees is not warranted here. Charging Party's request is. therefore, de-
nied.
Blytheville, Arkansas, plant and excluding all
other employees, including tool-and-die depart-
ment employees, technicians, sales, salaried, en-
gineering and professional employees, guards
and supervisors as defined in the Act.
The certification
On November 16, 1977, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 26, 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 August 25, 1978, and the Union con-
tinues 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 25, 1978, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about August 25, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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 Respondent has, since
August 25, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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.
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 pera-
tions described in section I, above, have a close, inti-
mate, 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 commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
On the basis of the entire record, the Board makes
RANDALL, BURKART/RANDALL 65
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed statement.
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 PoultrV Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Randall, Burkart/Randall Division of Textron,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 1249, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding truckdrivers employed at the Employer's
Blytheville, Arkansas, plant and excluding all other
employees, including tool-and-die department em-
ployees, technicians, sales, salaried, engineering and
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 August 25, 1978, the above-named labor
organization has been and now is the certified and
exclusive 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 August 25, 1978, 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 approproate 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 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)(I) 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,
Randall, Burkart/Randall Division of Textron. Inc.,
Blytheville, Arkansas, 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 Local 1249, United Au-
tomobile, Aerospace and Agricultural Implement
Workers of America (UAW), as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All production and maintenance employees, in-
cluding truckdrivers employed at the Employer's
Blytheville, Arkansas, plant and excluding all
other employees, including tool-and-die depart-
ment employees, technicians, sales, salaried, en-
gineering and 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 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 Blytheville, Arkansas, copies of the at-
tached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director
for Region 26, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
RZANDALL, BURKART/R-ANDALL 267
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insare that said no-
tices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 26, 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 Nor refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Local
1249, United Automobile and Agricultural Im-
plement Workers of America (UAW), as the ex-
clusive representative of the employees in the
bargaining unit described below.
WE WILL NO] 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 represen-
tative 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 production and maintenance employees,
including truckdrivers employed at the Em-
ployer's Blytheville, Arkansas, plant and ex-
cluding all other employees, including tool
and die department employees, technicians,
sales, salaried, engineering and professional
employees, guards and supervisors as defined
in the Act.
RANDALL. BURKART RANDALL DIVISION OF
TEXTRON. IN(C.
RANDALL, BURKART/RANDALL
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