LTV Aerospace Corp.

National Labor Relations Board - Board Decisions

Oct 11, 1972

199 N.L.R.B. 666 (N.L.R.B. 1972)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service Technology Corporation , a Subsidiary of LTV
Aerospace Corporation and District 37, Internation-
al Association of Machinists and Aerospace Work-
ers, AFL-CIO. Case 23-CA-4428
October 11, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Upon a charge filed on July 10, 1972, by District
37, International Association of Machinists and
Aerospace Workers, AFL-CIO, herein called the Un-
ion, and duly served on Service Technology Corpora-
tion, a Subsidiary of LTV Aerospace Corporation,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 23, issued a complaint on July 11,
1972, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 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 I were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on June 9, 1972,
following a Board election in Case 23-RC-3577, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;2 and that, commencing
on or about June 13, 1972, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the Un-
ion has requested and is requesting it to do so. On July
20, 1972, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On July 31, 1972, counsel for the General Coun-
sel filed directly with the Board a Motion To Transfer
and Continue Case Before the Board and Motion for
Summary Judgment, requesting that the Board take
official notice of the records in consolidated Cases
23-RC-3577 and 23-CA-3946-1 (196 NLRB No.
160), and that the pleadings herein be considered to-
t The title of "Tnal Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
' Official notice is taken of the record in the representation proceed-
ing, Case 23-RC-3577, 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 683 (C.A. 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.
gether therewith, alleging that the Respondent's an-
swer to the complaint raised no issues which were not
raised and decided in the prior proceedings, and pray-
ing the Board to grant the Motion for Summary Judg-
ment. Subsequently, on August 2, 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. Respondent thereafter filed an Opposi-
tion to Motion for Summary Judgment.
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
The thrust of the Respondent's answer to the
complaint and its Opposition to the Motion for Sum-
mary Judgment addresses itself essentially to the
Board's finding that Barbara B. Salvato was not a
confidential employee under Board law. Upon our
review of the record, including the records in Cases
23-RC-3577 and 23-CA-3946-1, we find no merit in
this contention.
Pursuant to a Decision and Direction of Elec-
tion, an election was conducted on May 13, 1971. The
tally of ballots served on the parties at the conclusion
of the election reflected that of the valid votes cast,
eight ballots were for the Union, six ballots were cast
against the Union, and four ballots, determinative of
the results of the election, were challenged. No objec-
tions were filed to the conduct of the election.
Inasmuch as the challenged ballots raised sub-
stantial and material issues, the Regional Director, on
June 9, 1971, issued an order directing hearing and
consolidating cases, in which he consolidated Cases
23-RC-3577 and 23-CA-3946-1 for the purpose of
hearing, ruling, and decision by an Administrative
Law Judge. The Regional Director's order also direct-
ed that thereafter Case 23-RC-3577 be transferred to
and continued before the Board.
During the course of the hearing, the parties
agreed that the ballot of Richard Hopkins should not
be counted. The Union withdrew its challenge to the
ballot of Mary Tucker and agreed that her ballot
should be opened and counted. On December 22,
1971, the Administrative Law Judge issued his Deci-
sion, in which he found, contrary to the Regional
Director, that Barbara B. Salvato was not a confiden-
tial employee and recommended that the challenged
ballots of Barbara B. Salvato and Patricia Hopkins be
opened and counted. Thereafter, the Respondent
filed exceptions and a supporting brief which were
199 NLRB No. 102
SERVICE TECHNOLOGY CORPORATION 667
directed essentially to the Administrative Law Judge's
finding that Barbara B. Salvato was not a confidential
employee under Board law and to his conclusion that
she was unlawfully discharged.
On May 14, 1972, the Board issued its Decision,
Order, and Direction in Cases 23-RC-3577 and 23-
CA-3946-1,3 in which it affirmed the rulings, find-
ings , conclusions , and recommendations of the Ad-
ministrative Law Judge and ordered the Regional
Director to open and count the ballots of Barbara B.
Salvato, Patricia Hopkins, and Mary Tucker and
thereafter prepare and cause to be served on the par-
ties a revised tally of ballots, including therein the
count of said ballots, and that the appropriate certifi-
cation be issued. The revised tally of ballots reflected
that of the 17 valid ballots cast, 9 were cast for the
Union and 8 were cast against the Union, and, ac-
cordingly, on June 9, 1972, the Union was certified as
the collective-bargaining representative in the unit
herein found appropriate.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding alleg-
ing a violation of Section 8(a)(5) is not entitled to
relitigate issues which were or could have been litigat-
ed in a prior representation proceeding.4
All issues raised by the Respondent in this pro-
ceeding 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 is, and has been at all times material
herein , a corporation duly organized under and ex-
isting by virtue of the laws of the State of Delaware
and has maintained its principal office and place of
business at the Manned Spacecraft Center of the Na-
tional Aeronautics and Space Administration, in Har-
ris County, Texas, herein called NASA site, where it
3 Service Technology Corporation , a Subsidiary of LTV Aerospace Corpora-
tion, 196 NLRB No. 160.
4 See Pittsburgh plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 ( 1941);
NLRB Rules and Regulations , Secs. 102.67(f) and 102 .69(c).
provides facility support services. Respondent's
NASA site is the only facility involved in this pro-
ceeding. During the preceding 12 months, which are
representative of all times material herein, in the
course and conduct of said operations, Respondent
purchased, transferred, and delivered to its NASA site
goods and materials valued in excess of $50,000 di-
rectly from States of the United States other than the
State of Texas.
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
District 37 , International Association of Machin-
ists and Aerospace Workers, 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 con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All Visitor Services Section, Public Informa-
tion Section and Exhibit Section employees, per-
forming services for the Employer at the
National Aeronautics and Space Admin-
istration's Manned Spacecraft Center, Houston,
Texas, including full-time and regular part-time
escorts, administrative clerks, exhibit specialists,
clerk expeditors, exhibits schedulers, research
writers and communications coordinators, ex-
cluding fabricators, refurbishers and warehouse-
men under the Exhibits Section, the secretary to
the project manager, guards, watchmen and su-
pervisors as defined in the Act.
2. The certification
On May 13, 1971, 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 23, 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
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in said unit on June 9, 1972, 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 June 13, 1972, 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 June 13, 1972, 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 June 13, 1972, 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, Respondent has en-
gaged 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 the Respondent set forth in sec-
tion III, above, occurring in connection with its oper-
ations 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 commerce.
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 appro-
priate unit, and, if an understanding is reached, em-
body such understanding in a signed agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate 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. Service Technology Corporation, a Subsidiary
of LTV Aerospace Corporation, is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. District 37, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All Visitor Services Section, Public Informa-
tion Section and Exhibit Section employees, perform-
ing services for the Employer at the National
Aeronautics and Space Administration's Manned
Spacecraft Center, Houston, Texas, including full-
time and regular part-time escorts, administrative
clerks, exhibit specialists, clerk expediters, exhibits
schedulers, research writers and communications co-
ordinators, excluding fabricators, refurbishers and
warehousemen under the Exhibits Section, the secre-
tary to the project manager, guards, watchmen 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 June 9, 1972, 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 June 13, 1972, 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.
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
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
SERVICE TECHNOLOGY CORPORATION 669
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Service
Technology Corporation, a Subsidiary of LTV Aero-
space Corporation, 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 District 37, International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All Visitor Services Section, Public Informa-
tion Section and Exhibit Section employees, per-
forming services for the Employer at the
National Aeronautics and Space Admin-
istration's Manned Spacecraft Center, Houston,
Texas, including full-time and regular part-time
escorts, administrative clerks, exhibit specialists,
clerk expediters, exhibits schedulers, research
writers and communications coordinators, ex-
cluding fabricators, refurbishers and warehouse-
men under the Exhibits Section, the secretary to
the project manager, guards, watchmen and su-
pervisors 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 facility at the Manned Spacecraft
Center in Harris County, Texas, copies of the at-
tached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director
for Region 23, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 23,
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 be changed to 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 Dis-
trict 37, International Association of Machinists
and Aerospace Workers, AFL-CIO, as the exclu-
sive representative of the employees in the bar-
gaining 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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All Visitor Services Section, Public Infor-
mation Section and Exhibit Section employ-
ees, performing services for the Employer at
the National Aeronautics and Space
Administration's Manned Spacecraft Center,
Houston, Texas, including full-time and reg-
ular part-time escorts, administrative clerks,
exhibit specialists, clerk expediters, exhibits
schedulers, research writers and communica-
tion coordinators, excluding fabricators, refur-
bishers and warehousemen under the Exhibits
Section, the secretary to the project manager,
guards, watchmen and supervisors as defined
in the Act.
Dated By
SERVICE TECHNOLOGY CORPORA-
TION, A SUBSIDIARY OF LTV
AEROSPACE CORPORATION
(Employer)
(Representative) (Title)
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced Any questions concerning this notice or compli-
by anyone. ance with its provisions may be directed to the
This notice must remain posted for 60 consecu- Board's Office , Dallas-Brazos Building, 1125 Brazos
tive days from the date of posting and must not be Street, Houston, Texas 77002, Telephone 713-226-
altered , defaced , or covered by any other material. 4296.