Teledyne, Landis Machine

National Labor Relations Board - Board Decisions

Jun 27, 1974

212 N.L.R.B. 73 (N.L.R.B. 1974)

TELEDYNE, LANDIS MACHINE
Teledyne, Landis Machine and International Associa-
tion of Machinist and Aerospace Workers , District
No. 98, AFL-CIO . Case 6-CA-7279
June 27, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
Upon a charge filed on February 15, 1974, by Dis-
trict No. 98, International Association of Machinists
and Aerospace Workers, AFL-CIO, herein called the
Union, and duly served on Teledyne, Landis Ma-
chine, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 6, issued a com-
plaint on March 8, 1974, 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 com-
plaint alleges in substance that on December 20, 1973,
following a Board election in Case 6-RC-6443, 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 January 25, 1974, and at all times thereaf-
ter, 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
March 14, 1974, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On April 16, 1974, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 26,1974, 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 thereafter filed a response to
Notice To Show Cause with attached affidavits, enti-
tled "Answer to Motion for Summary Judgment and
'Official notice is taken of the record in the representation proceeding,
Case 6-RC-6443, as the term "record" is defined in Secs 102.68 and 102
.69(f) of the Board's Rules and Regulations , Serves 8, as amended. See LTV
Electrosystems, Inc., 166 NLRB 938, enfd 388 F.2d 683 (C.A. 4, 1968);
Golden Age Beverage Co, 167 NLRB 151, 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, enfd. 397 F 2d 91 (C.A. 7, 1968), Sec 9(d) of the NLRA
73
Respondent's Motion to Dismiss Complaint." The
General Counsel has filed a Reply in opposition to
Respondent's answer.
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 response to the
Notice To Show Cause, the Respondent basically
contends that the certification of the Union in the
underlying representation case is invalid on the basis
of its objection therein, and that the Regional Direc-
tor denied it due process by not directing a hearing
thereon, not considering its submissions, and in not
answering its requests for clarification of the form the
evidence it sought to submit was to take.
Our review of the record herein, including the re-
cord in Case 6-RC-6443, reveals that, after a hearing,
an election was conducted on August 9, 1973, pur-
suant to the direction of the Acting Regional Director,
and resulted in a 254 to 173 vote in favor of the Union
with 4 void ballots. The Respondent filed a timely
Objection to Conduct Affecting the Results of the
Election, and requested a hearing thereon. The objec-
tion alleged, in substance, that the Union had distrib-
uted a pamphlet to employees 2 days prior to the
election which contained numerous false statements,
specifically that the Respondent's wages and benefits
were lower than other Teledyne plants at which the
Union had a contract, and that the Respondent's
wage rates were lower than other organized machine
tool shops, at a time when the Respondent could not
effectively reply thereto. The Acting Regional Direc-
tor, in the course of his investigation, requested addi-
tional information from the Respondent concerning
the objection, to which the Respondent, on October
19, 1973, and again on December 18, 1973, replied by
requesting clarification of the type of information
needed and the holding of a hearing to enable it to
present its case. On December 20, 1973, the Acting
Regional Director, without replying to the requests,
issued his Supplemental Decision and Certification of
Representative in which he found that the alleged
misrepresentations had been major campaign issues
and that the Respondent had adequate opportunity
and possessed sufficient information to respond to
any inaccuracies in the pamphlet. The Acting Region-
al Director also found that the Respondent's objec-
tions raised no substantial or material issues
warranting a hearing. Accordingly, he overruled the
212 NLRB No. 11
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections and certified the Union.
The Respondent filed a timely request for review of
this Supplemental Decision, reiterating its objections
and requests for a hearing, and asserting that the Act-
ing Regional Director had not allowed the record to
be developed by failing to respond to its requests for
clarification and by not considering its submissions.
The Board, by order of January 25, 1974, denied the
Respondent's request for review on the ground that it
raised no substantial issues warranting review.
In its response to the Notice To Show Cause, the
Respondent reasserts its contention that the Acting
Regional Director denied it due process by not afford-
ing it the opportunity to submit evidence at a hearing.
This contention was raised and considered in the Re-
quest for Review.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
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 and deny the Respondent's
motion to dismiss the complaint herein.4
2 See 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)
7 Respondent attaches affidavits by its president and treasurer in support
of its contentions The Respondent does not show that the information in the
affidavits , in its present form, was previously unavailable for consideration
at the various junctures of the representation proceeding , or that the affida-
vits contain newly discovered evidence Accordingly, the evidence submitted
does not warrant the relitigation of the representation case issues
4 In its answer to the complaint Respondent , inter aha , submits that it is
without sufficient information to admit or deny the Union's status as a labor
organization , which, under Sec 102 20 of the Board 's Rules and Regulations,
operates as a denial Respondent also denies that the unit is appropriate for
the purpose of collective bargaining However, these issues were litigated at
the hearing in the underlying representation case, and may not be relitigated
herein Cherokee Nitrogen Company, 200 NLRB No 89
In its answer to the complaint, the Respondent also denies the allegations
of the request and refusal to bargain However, attached to the General
Counsel's Motion for Summary Judgment are copies of correspondence
between the Union and the Respondent . By letter dated January 10 and 31,
1974, the Union requested information and the commencement of negotia-
tions, to which the Respondent replied on January 25 and February 7, 1974,
that negotiations should not commence until legal questions involving evi-
dence it sought to submit had been resolved. Respondent has submitted
nothing to controvert these documents , or their contents Accordingly, we
deem these allegations of the complaint to be true . The May Department
Stores Company, 186 NLRB 86, Carl Simpson Buick, Inc, 161 NLRB 1389
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation with its
principal offices located in Waynesboro, Pennsylva-
nia, is engaged in the manufacture and nonretail sale
of machine tools. During the 12-month period imme-
diately preceding the issuance of this complaint and
notice of hearing in this proceeding, Respondent re-
ceived goods and materials valued in excess of
$50,000 for use at its Waynesboro, Pennsylvania, fa-
cility, directly from points outside the Common-
wealth of Pennsylvania. During the same period,
Respondent sold and shipped goods and materials
valued in excess of $50,000 from its Waynesboro,
Pennsylvania, facility directly to points outside the
Commonwealth of Pennsylvania.
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 mean-
ing of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
11 THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aero-
space Workers , District No. 98 , AFL-CIO , 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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding production planners, expediters, stock
clerks and shipping clerk-parcel post, employed
at Employer's Waynesboro, Pennsylvania, facili-
ty, excluding detailers, layout draftsmen, design-
ers, design engineers, research and service
technicians, sales service engineers, laboratory
technicians, engineering apprentices, engineering
associates, engineering clerks, engineering cleri-
TELEDYNE, LANDIS MACHINE
cals, methods engineers, methods leadman, tool
and jig designers, methods clerk, sales correspon-
dents, order writers , sales clericals, quotation
clerks, assistant to the purchasing agent, all other
employees, office clerical employees, watchmen,
firemen and guards, professional employees and
supervisors as defined in the Act.
2. The certification
On August 9, 1973, 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 6 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 December 20, 1973, and the Union
continues '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 January 10, 1974, and at
all times thereafter , the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective -bargaining representative of all the
employees in the above-described unit. Commencing
on or about January 25, 1974, 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 collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since January 25, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor practic-
es 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 operations
described in section I, above , have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
75
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
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 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 select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379
U.S. 817 (1964); Burnett Construction Company, 149
NLRB 1419, 1421, 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. Teledyne, Landis Machine is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding production planners, expediters, stock clerks
and shipping clerk-parcel post, employed at the
Employer's Waynesboro, Pennsylvania, facility, ex-
cluding detailers, layout draftsmen, designers, design
engineers, research and service technicians , sales ser-
vice engineers, laboratory technicians, engineering
apprentices , engineering associates , engineering
clerks, engineering clericals, methods engineers,
methods leadmen, tool and jig designers, methods
clerk, sales correspondents, order writers, sales cleri-
cals, quotation clerks, assistant to the purchasing
agent, all other employees, office clerical employees,
watchmen, firemen and guards, professional employ-
ees and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Since December 20, 1974, the above-named la-
bor 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.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By refusing on or about January 25, 1974, 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 Respon-
dent 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 mean-
ing 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 Rela-
tions Board hereby orders that Respondent, Tele-
dyne, Landis Machine, 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 condi-
tions of employment with International Association
of Machinists and Aerospace Workers, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees, in-
cluding production planners, expediters, stock
clerks and shipping clerk-parcel post, employed
at the Employer's Waynesboro, Pennsylvania,
facility, excluding detailers, layout draftsmen,
designers, design engineers, research and service
technicians, sales service engineers , laboratory
technicians, engineering apprentices, engineering
associates, engineering clerks, engineering cleri-
cals, methods engineers, methods leadman, tool
and jig designers, methods clerk, sales correspon-
dents, order writers , sales clericals , quotation
clerks, assistant to the purchasing agent, all other
employees, office clerical employees, watchmen,
firemen and guards, professional employees 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 its Waynesboro, Pennsylvania, facility
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 6, 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 6, 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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Association of Machinists and Aero-
space 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 in-
terfere 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,
TELEDYNE, LANDIS MACHINE 77
and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees,
including production planners, expediters,
stock clerks and shipping clerk-parcel post,
employed at the Employer's Waynesboro,
Pennsylvania, facility, excluding detailers, lay-
out draftsmen, designers, design engineers, re-
search and service technicians, sales service
engineers, laboratory technicians, engineering
apprentices, engineering associates, engineer-
ing clerks, engineering clericals, methods engi-
neers, methods leadman , tool and jig
designers, methods clerk, sales correspon-
dents, order writers, sales clericals, quotation
clerks, assistant to the purchasing agent, all
other employees, office clerical employees,
watchmen, firemen and guards, professional
employees and supervisors as defined in the
Act.
TELEDYNE, LANDIS MA-
CHINE
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.