Smith and Smith Aircraft Company

National Labor Relations Board - Board Decisions

Mar 18, 1982

260 N.L.R.B. 1045 (N.L.R.B. 1982)

SMITH AND SMITH AIRCRAFT COMPANY
Smith and Smith Aircraft Company and Laborers'
International Union, Local 8, AFL-CIO. Case
17-CA- 10636
March 18, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on October 1, 1981, by La-
borers' International Union, Local 8, AFL-CIO,
herein called the Union, and duly served on Smith
and Smith Aircraft Company, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 17, issued a complaint on October 13,
1981, 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 and complaint were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 22,
1981, following a Board election in Case 17-RC-
9196,1 the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit appropriate; and that,
commencing on or about August 3, 1981, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On October 23, 1981, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On November 9, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November
17, 1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
I Official notice is taken of the record in the representation proceeding.
Case 17-RC-9196, 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 Electrosysterms. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969); Intertype Co. N. Penello, 269 F.Supp 573
(D.C.Va. 1967); Follelt Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91
(7th Cir. 1968); Sec 9(d) of the NLRA, as amended
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 answers to the notice and the complaint
Respondent is attempting to relitigate the issues
raised in the representation proceeding. However,
Respondent also argues that the Union's demands
for bargaining are inappropriate because they
stressed a date and certain time when negotiations
would begin without inquiring whether the dates
and times were reasonable or convenient for Re-
spondent. Respondent's contention is without
merit. Moreover, we note that the Union's second
demand for bargaining (G.C. Exh. N) also states
"or as soon as possible thereafter." Respondent's
replies to these demands clearly indicate an inten-
tion to "test the certification." Accordingly, we
find no merit to Respondent's contention.
Respondent also argues that it now has a petition
signed by its employees stating that they do not
want the Union to represent them. It is well estab-
lished that following an election and certification
the employees have committed themselves to the
Union as their representative for a reasonable
period which, as approved in Ray Brooks v.
N.L.R.B., 348 U.S. 96 (1954), has been determined
by the Board to be I year absent unusual circum-
stances. An employee petition is not an unusual cir-
cumstance. Cocker Saw Company, Inc., 186 NLRB
893 (1970), enfd. 446 F.2d 870 (2d Cir. 1971).
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.2
We therefore find that Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. Accordingly, we 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 RESPONDENT
Respondent is engaged in the manufacture of
after market military aircraft parts at its facility lo-
cated in Wichita, Kansas. In the course and con-
duct of its business operations within the State of
7See Prttsbhrgh Plate Glass Co v LRB., 313 US 146, 162 (1q41)
Rules and Regulations of the Board, Secs 102 67(0 and 102 69(c)
260 NLRB No. 141
1045
I) tCISIONS OF NATIONAL LAB()OR RELAT IONS BOARD
Kansas, Respondent annually sells goods and serv-
ices valued in excess of $50,000 directly to custom-
ers located outside the State of Kansas.
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
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE I.ABOR ORGANIZATION INVOI.VED
Laborers' International Union, Local 8, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR I.ABOR PRACTIC[ES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production
and maintenance employees including leadmen
employed by Smith & Smith Aircraft Compa-
ny at its facility located at 3738 West 29th
Street South, in Wichita, Kansas, EXCLUD-
ING truck driver, office clericals, draftsman
and other professional employees, guards and
supervisors as defined in the Act.
2. The certification
On March 25, 1981, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 17, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on July 22, 1981, 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 Respondents
Refusal
Commencing on or about August 3, 1981, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about August 3, 1981, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
August 3, 1981, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THEI EFFECT OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 appropriate unit and, if an understanding is
reached, embody 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 certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett 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. Smith and Smith Aircraft Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Laborers' International Union, Local 8, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
1046
SMIIH AND SMITH AIRCRAFT C()MPANY
3. All full-time and regular part-time production
and maintenance employees including leadmen em-
ployed by Smith & Smith Aircraft Company at its
facility located at 3738 West 29th Street South, in
Wichita, Kansas, excluding truck driver, office
clericals, draftsman and other professional employ-
ees, 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 July 22, 1981, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 3, 1981, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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.
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,
Smith and Smith Aircraft Company, Wichita,
Kansas, 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 Laborers' Interna-
tional Union, Local 8, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time production
and maintenance employees including leadmen
employed by Smith & Smith Aircraft Compa-
ny at its facility located at 3738 West 29th
Street South, in Wichita, Kansas, EXCLUD-
ING truck driver, office clericals, draftsman
and other 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 ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facility located at 3738 West 29th
Street South, Wichita, Kansas, copies of the at-
tached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 17, after being duly signed by Re-
spondent'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. Rea-
sonable 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 17,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
In the eernl that thi, Order is enforced by a Judgment of a United
States Court of Appeals. the w, ords in the notice reading "Posted hby
Order of the National ahbor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the Nationil I ahor Relationrs Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI_ LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL . NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Laborers' International Union, Local 8,
AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WIliL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILtL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time produc-
tion and maintenance employees including
leadmen employed by Smith & Smith Air-
craft Company at its facility located at 3738
West 29th Street South, in Wichita, Kansas,
EXCLUDING truck driver, office clericals,
draftsman and other professional employees,
guards and supervisors as defined in the Act.
SMITH AND SMITH AIRCRAFT COM-
PANY
1048