Textron, Inc.

National Labor Relations Board - Board Decisions

May 30, 1972

197 N.L.R.B. 209 (N.L.R.B. 1972)

BELL AEROSPACE, A DIV. OF TEXTRON
Bell Aerospace, a Division of Textron, Inc. and Interna-
tional Union, United Automobile , Aerospace and
Agricultural Implement Workers of America, Amal-
gamated Local 1286. Case 3-CA-4695
May 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
Upon a charge filed on December 2, 1971, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
Amalgamated Local 1286, herein called the Union,
and duly served on Bell Aerospace, a Division of
Textron, Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region 3,
issued a complaint on December 21, 1971, 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 a Trial Examiner were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 12,
1971, following a Board election in Case 3-RC-4987
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 December 9, 1971, 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 January 3, 1972, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On February 2, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 9,
1972, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause called Company's Brief in Opposition to
1 Official notice is taken of the record in the representation
proceeding, Case 3-RC-4987, as the term "record" is defined in Secs.
102 68 and 102.69(f) of the Board's Rules and Regulations , Series 8, as
amended . See LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d
209
Motion for Summary Judgment and in Support of
Petition for Reconsideration.
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, the Respondent
denies the appropriateness of the unit and in its
response to the Notice To Show Cause, it specifically
argues that the unit employees are managerial
employees and, as such, are excluded from the
coverage of the Act for representational purposes.
We find no merit in this position.
Based on the representation hearing in Case
3-RC-4987, the Board issued its Decision and
Direction of Election (190 NLRB No. 166) finding
that a separate unit of buyers was appropriate for
collective-bargaining purposes. The Board rejected
the Respondent's two contentions: (1) that the
buyers were managerial employees and, as such, not
entitled to representation rights under the Act and
(2) that an alleged conflict would exist if the buyers,
whether managerial or not, were granted representa-
tion rights.
In the directed election conducted by the Regional
Director on June 16, 1971, the Union received 15
votes, a majority of the 24 votes cast. The Respon-
dent filed timely objections to conduct affecting the
results of the election. In substance, the objections
alleged that one of the sample ballots had been
marked in the "Yes" box and that, since the
Respondent had conducted no campaign against the
Union and had not attempted to influence the voters,
the resulting vote would not have favored the Union
if the sample ballot had remained unmarked. After
investigating the objections, the Regional Director,
on June 28, 1971, issued his Report on Objections
recommending that, absent evidence presented by
the Respondent or adduced in his investigation that
the Union was responsible for the defacement, the
objections should be overruled, and the Union be
certified.
The Respondent filed with the Board timely
exceptions to the Report on Objections reiterating its
objections. On August 12, 1971, the Board issued its
Supplemental Decision and Certification of Repre-
sentative, finding that the objections raise no
material issue of fact or law which would warrant
reversal of the Regional Director's findings and
recommendations or require a hearing. Accordingly,
the Board certified the Union as exclusive represent-
ative of the Respondent's buyers.
683 (CA. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; 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.
197 NLRB No. 30
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, the Respondent filed with the Board
a Motion for Reconsideration of the Board's Deci-
sion and Direction of Election in light of the adverse
decision of the United States Court of Appeals for
the Eighth Circuit denying enforcement of the
Board's Order in North Arkansas Electric.2 In its
motion, it argued that, since the Board had relied in
the instant representation Case 3-RC-4987 on its
decision in North Arkansas Electric wherein a
"managerial" employee was held entitled to the
protection of the Act, and since the court had judged
"managerial" employees to be excluded from the
protection of the Act, the Board should reconsider its
previous decision and dismiss the representation
petition. On May 1, 1972, the Board issued its Order
Denying Motion (196 NLRB No. 127) in which, after
due consideration of the court's opinion in the North
Arkansas Electric case, it denied the Respondent's
Motion for Reconsideration and found again that
buyers herein constituted a separate appropriate unit
for collective-bargaining purposes. In its response to
the Notice To Show Cause the Respondent reiterated
its arguments in support of the Motion for Reconsid-
eration.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
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.3
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.4
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, has
2 North Arkansas Electric Corporation, Inc v N L R B, 466 F 2d 602,
denying enforcement 185 NLRB No 83
3 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c)
4 In its answer to the complaint and in its response to the Notice To
Show Cause, the Respondent contends , in effect, that its admitted refusal to
bargain was not violative of the Act because the Union's certification was
not final in view of the pendency of the Motion for Reconsideration and,
maintained its principal office and place of business
at Wheatfield, New York, herein called the Wheat-
field plant, where it is, and has been at all times
material, employed in research and development in
the design and fabrication of aerospace products.
During the past year, the Respondent, in the course
and conduct of its business operations, purchased,
transferred, and delivered to its Wheatfield plant,
goods and materials valued in excess of $50,000 of
which goods and materials valued in excess of
$50,000 were transported to said plant directly from
States of the United States other than the State of
New York.
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.
H. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Ameri-
ca, Amalgamated Local 1286, 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All buyers in Department 121, the Purchasing
and Procurement Department, at the Respon-
dent's Wheatfield, New York, plant, excluding all
production and maintenance employees, all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On June 16, 1971, 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 3 designated the Union as their
representative for the purpose of collective bargain-
therefore , no obligation to bargain arose from the certification We find no
ment in this contention as subsec. 102 65(e) of the Rules and Regulations
which deals, inter aha with motions for reconsideration in representation
cases, provides in subpar. (3) that "the filing and pendency of a motion
under this provision shall not unless so ordered operate to stay the
effectiveness of any action taken or directed." See also subsec 102.48(d) as
to the same practice in unfair labor practice cases.
BELL AEROSPACE, A DIV. OF TEXTRON
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on August 12, 1971, 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 November 9, 1971, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about November 9, 1971, 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 9, 1971, 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
(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 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 commen-
ces to bargain in good faith with the Union as the
211
recognized bargaining representative in the appropn-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Bell Aerospace, a Division of Textron, Inc., is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, Amalgamated Local 1286, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All buyers in Department 121, the Purchasing
and Procurement Department, at the Respondent's
Wheatfield, New York, plant, excluding all pro-
duction and maintenance employees, all office clerical
employees, 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 12, 1971, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about November 9, 1971,
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)(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
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that Respondent, Bell
Aerospace, a Division of Textron, Inc., Wheatfield,
New York, 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
conditions of employment with International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, Amalgamated
Local 1286, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All buyers in Department 121, the Purchasing
and Procurement Department, at the Respon-
dent's Wheatfield, New York, plant, excluding all
production and maintenance employees, all office
clerical employees, 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 its Wheatfield, New York, plant and
location copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms
provided by the Regional Director for Region 3,
after being duly signed by Respondent's representa-
tive, 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 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
Amalgamated Local 1286, as the exclusive repre-
sentative 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 buyers in Department 121, the Pur-
chasing and Procurement Department, at
the Respondent's Wheatfield, New York,
plant, excluding all production and mainte-
nance employees, all office clerical employ-
ees, professional employees, guards and
supervisors as defined in the Act.
BELL AEROSPACE, A
DIVISION OF
TEXTRON, INC.
(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, Ninth Floor, Federal Building, 111
West Huron Street, Buffalo, New York 14202,
Telephone 716-842-3100.