Smith & Smith Aircraft Co.

National Labor Relations Board - Board Decisions

Apr 27, 1977

229 N.L.R.B. 304 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith & Smith Aircraft Company and Local Lodge
37, International Association of Machinists and
Aerospace Workers, AFLCIO. Case 15-CA-6305
April 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on November 23, 1976, by
Local Lodge 37, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, herein
called the Union, and duly served on Smith & Smith
Aircraft Company, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 15,
issued a complaint on December 15, 1976, 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 10,
1976, following a Board election in Case 15-RC-
5905, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; ' and that,
commencing on or about November 3, 1976, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative although the Union has requested and is
requesting it to do so. On December 27, 1976,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On December 30, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. On January 17, 1977, Respon-
dent filed a brief in opposition. Subsequently, on
January 25, 1977, 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 January 31, 1977, Respondent thereafter
filed a brief in response.
i Official notice is taken of the record in the representation proceeding,
Case 15-RC-5905, as the term "record" is defined in Secs. 102.68 and
1
0
2.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
229 NLRB No. 46
Pursuant to the provisions of Section 3(b) of the
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, opposition to
General Counsel's Motion for Summary Judgment,
and response to the Notice To Show Cause the
Respondent admits the refusal to bargain but
contends that the certification of the Union in the
underlying representation case is invalid on the basis
of its objections therein, and that the Regional
Director denied it due process by not directing a
hearing thereon.
Our review of the record herein, including the
record in Case 15-RC-5905, reveals that, after a
hearing, an election was conducted on June 18, 1976,
pursuant to a Decision and Direction of Election of
the Regional Director, and resulted in a nine-to-
seven vote in favor of the Union with four challenged
ballots. The Respondent filed timely objections to
conduct affecting the results of the election, and
requested a hearing thereon. The objections alleged
in substance that the Union interfered with the
election by using supervisors in its organizational
campaign and an alleged discriminatee as its election
observer; by promising a waiver of initiation fees for
employees who joined the Union before the election;
by restraining the Respondent in the selection of
representatives for various purposes under the Act;
by materially misrepresenting that Respondent laid
off or terminated employees because of their union
activities, engaged in illegal surveillance of union
meetings, and threatened employees with termina-
tion if they attended such meetings; and by the
Union's observer recording on a separate list which
employees voted in the election and engaging in
improper election conduct by speaking with an
eligible voter during the polling period in order to
request that he contact and send another voter to the
polls to vote. After an independent investigation, on
August 10, 1976, the Regional Director issued a
Supplemental Decision and Certification of Repre-
sentative, in which he sustained all the challenges
and overruled the objections in their entirety, finding
that the latter did not raise any substantial or
material issues affecting the results of the election or
the conduct thereof. In doing so, however, he
inadvertently omitted any reference to the Respon-
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), 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 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
304
SMITH & SMITH AIRCRAFT CO.
dent's objection alleging that the Union's observer
sought to have one employee send another employee
to vote.
On August 23, 1976, Respondent filed a timely
request for review of the Regional Director's Supple-
mental Decision in which it merely by reference
restated all its objections, and specifically discussed
only the objections concerning the Union's observer,
namely, that the latter (1) kept a voting list separate
and apart from the official one and (2) asked one
employee to send another to vote, asserting as to the
second of these allegations that the Regional Direc-
tor failed to examine or comment upon it. Respon-
dent also asserted that it had been denied due
process by the Regional Director's denial of a
hearing on its objections. Thereafter, on August 30,
1976, the Regional Director issued a Second Supple-
mental Decision and Certification of Representative
in which he found that the evidence relating to (2)
above failed to raise material or substantial issues
with respect to the election because neither the voter
spoken to nor the voter allegedly requested to be
contacted was eligible as challenges to both of their
votes were properly sustained, and, further, there was
no evidence to show that the observer requested the
issuing voter be contacted and sent to vote. The
Regional Director also affirmed his Supplemental
Decision issued on August 10, 1976.2
The Board, by order of September 17, 1976, denied
the Respondent's request for review on the ground
that it raised no substantial issues warranting
review.3 By the denial of review for lack of
substantial issues the Board implicitly and necessari-
ly found that Respondent raised no issue warranting
hearing on its objections.4 Likewise, due process does
not require such a hearing in this summary judgment
proceeding because the only issues raised here were
considered and determined in the representation
proceeding.5 Finally, Respondent was afforded an
opportunity to oppose the Motion for Summary
Judgment and did so as noted above. Respondent
has thus been afforded a proper forum in which to be
heard and, accordingly, has not been denied due
process. 6
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
2 As to Objection (I) above, which Respondent emphasized and dwelled
upon in its request for review, the Regional Director found in his earlier
decision that the Union's observer did not keep a separate list of those who
voted in the election, and that the employees had no reason to believe that
she did.
3 Although the denial is stated in terms relating to the Supplemental
Decision of the Regional Director. in fact the Board considered that
decision and the Regional Director's Second Supplemental Decision in Case
15-RC-5905 as subjects of the review requested.
4 See. e.g.. CSC Oil Company, 220 NLRB 19, 20 (1975); Allied Meat
Company, 220 NLRB 27, 28 (1975); and Williams Energy Compan),, 218
NLRB 1080, 1081 (1975).
5 Target Stores, Inc., 219 NLRB 561 (1975). In this regard we also note
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.s
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
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Tennessee corporation, with its
principal office and place of business located in New
Orleans, Louisiana, is engaged in the wholesale
distribution and manufacture of aircraft parts.
During the 12-month period immediately preceding
the issuance of this complaint and notice of hearing
in this proceeding, Respondent sold and shipped
directly to customers located outside the State of
Louisiana goods and materials valued in excess of
$50,000.
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 37, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
that in its answer to the complaint Respondent denies that the unit herein is
appropriate. However, in Case 15-RC-5905 that issue was fully litigated by
the parties at a hearing and thereafter determined by the Regional Director
in his Decision and Direction of Election. No request for review was sought
of that decision. Accordingly, the appropriateness of the unit is not subject
to litigation in the instant unfair labor practice proceeding. Walgreen Co.,
226 NLRB 548 (1976) and 226 NLRB 553 (1976); and Piper Industries Inc.,
215 NLRB 368, 369, fn. 4 (1974).
s Globe Secunrity Services, Inc., 221 NLRB 596(1975), enforcement denied
on other grounds 94 LRRM 2593, 81 LC¶ 13,084 (C.A. 3, February 7, 1977).
7 See Pittsburgh Plate Glass Co. v. N. LR.B, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 plant clerical, warehouse and sheet metal
employees, and truckdrivers employed by Re-
spondent at its New Orleans, Louisiana, facility,
excluding all professional employees, guards, and
supervisors as defined in the Act.
2. The certification
On June 18, 1976, 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 15, 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 10, 1976, which
certification was affirmed on August 30, 1976, and
the Union continues to be such exclusive representa-
tive 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, 1976, and
October 6, 1976, the Union has requested, and is
continuing to request, Respondent to bargain collec-
tively with it as the exclusive collective-bargaining
representative of all the employees in the above-
described unit. Commencing on or about November
3, 1976, 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 November 3, 1976, 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
(I) 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, 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 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);
Burnett 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
1. Smith & Smith Aircraft Company is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local Lodge 37, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All plant clerical, warehouse and sheet metal
employees, and truckdrivers employed at the Re-
spondent's New Orleans, Louisiana, facility, exclud-
ing all professional employees, guards, and supervi-
sors 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 10, 1976, as affirmed on August
30, 1976, the above-named labor organization has
been and now is the certified and exclusive represen-
306
SMITH & SMITH AIRCRAFT CO.
tative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on or about November 3, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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)(l) 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,
Smith & Smith Aircraft Company, New Orleans,
Louisiana, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Local Lodge 37,
International Association of Machinists and Aero-
space Workers. AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All plant clericals, warehouse and sheet metal
employees, and truckdrivers employed at Respon-
dent's New Orleans, Louisiana, facility, excluding
all professional employees, 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, 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 its New Orleans, Louisiana, facility
copies of the attached notice marked "Appendix." s
Copies of said notice, on forms provided by the
Regional Director for Region 15, 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 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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."
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 37, International Association of Machin-
ists and 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, bargain with the
above-named Union, as the exclusive representa-
tive 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 agree-
ment. The bargaining unit is:
All plant clericals, warehouse and sheet
metal employees, and truckdrivers employed
at our New Orleans, Louisiana, facility
excluding all professional employees, guards
and supervisors as defined in the Act.
SMITH & SMITH
AIRCRAFT COMPANY
307