Ohio Precision Castings, Inc.

OHIO PRECISION CASTINGS Ohio Precision Castings, Inc. and District Lodge 13 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Case 9-CA-7691 August 20, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on April 4, 1973, by District Lodge 13 of the International Association of Machin- ists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Ohio Precision Cast- ings, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a com- plaint on April 24, 1973, 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 February 16, 1973, following a Board election in Case 9-RC-9865, 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 March 23, 1973, 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 May 3, 1973, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On May 11, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, and a memorandum in support thereof. Subsequently, on May 23, 1973, 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 grant- ed. Respondent thereafter filed a response to Notice To Show Cause and a memorandum entitled "Motion 'Official notice is taken of the record in the representation proceeding, Case 9-RC-9865, as the term "record" is defined in Secs 102 68 and 102 69(1) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystemr, 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 615 Opposing Motion For Summary Judgment, with at- tachments," and Exceptions with Attached Memo- randum, with exhibits attached. Subsequently, counsel for the General Counsel filed a reply to the Respondent's opposition. 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 attacks the validity of the appropriate unit, the election, and the Union's certification. The General Counsel submits that the Respondent is attempting to relitigate issues which were or could have been litigated in the under- lying representation proceeding in Case 9-RC-9865 and this the Respondent may not do. We agree with the General Counsel. A review of the entire record before us, including the record in Case 9-RC-9865, reveals that on De- cember 29, 1972, the Regional Director issued his De- cision and Direction of Election finding appropriate the production and maintenance unit including in- spectors whom the Respondent would have excluded. The Respondent did not file a request for review of the Regional Director's Decision. Thereafter, an elec- tion was conducted in which the Union received a majority of the valid ballots cast. Subsequently, the Respondent filed with the Regional Director timely objections to conduct affecting the results of the elec- tion, wherein it alleged, in substance, that the Union's preelection circulation of two leaflets, which stated or implied that the Respondent was a liar and which the Respondent claimed could not be refuted during the campaign, invalidated the election and the Union's certification. On February 16, 1973, the Regional Director issued a Supplemental Decision and Certification of Repre- sentative in which he found that the leaflets did not exceed the bounds of permissible campaign propa- ganda. Accordingly, he overruled the Respondent's objection in its entirety and certified the Union. Thereafter, on March 14, 1973, by telegraphic order, the Board denied the Respondent's request for review of the Regional Director's Supplemental Decision as it raised no substantial issues warranting review. It thus appears that the Respondent is merely reit- erating the issues which previously were, or could have been, raised and determined in the representa- tion case. 205 NLRB No. 99 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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.4 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 an Ohio corporation engaged in the manufacture and sale of precision castings and relat- ed pattern products at its plant in Dayton, Ohio. During the past 12 months, which is a representa- tive period, Respondent purchased materials and sup- plies valued in excess of $50,000 from firms located outside the State of Ohio which goods and materials it caused to be shipped in interstate commerce direct- ly to its Dayton, Ohio, plant from points outside the State of Ohio. We find, on the basis of the foregoing, that Respon- dent is, and has been at all times material herein, an 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) Accordingly, we grant the General Counsel's motion to stoke the Respondent's answer deny- ing the appropriate unit We note also that the Respondent had agreed to the appropriate unit in the representation proceeding and had not sought review by the Board from the inclusion of inspectors therein by the Regional Direc- tor 3 In its response, the Respondent attaches a copy of another pamphlet distributed before the election by the Union which the Respondent alleges misrepresented the current status of the law as it applies to guaranteed benefits and wages of employees There is no showing that the pamphlet was newly discovered or previously unavailable evidence or that special circum- stances exist Accordingly, we grant the General Counsel's motion to strike the Respondent's oppostion insofar as it raises for the first time new matters concerning the representation proceeding not previously raised To the extent that the Respondent now contends that it is entitled to a hearing on its objections, our denial of the Respondent's request for review as not raising substantial issues warranting review necessarily establishes that no hearing was warranted or required See Commercial Letter, inc, 188 NLRB 827, and cases cited in In 2, see also Davis Sales Co, 195 NLRB 464 ° The Respondent has requested oral argument This request is hereby denied, as the entire record before us adequately presents the issues and position of the Respondent employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED District Lodge 13 of the International Association of Machinists 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 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 em- ployed by the Employer at its Dayton, Ohio, plant, including inspectors; but excluding all of- fice clerical employees, pattern makers, profes- sional employees, guards and supervisors as defined in the Act. 2. The certification On January 24, 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 9 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 February 16, 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 February 20, 1973, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 23, 1973, 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 March 23, 1973, and at all times thereafter, re- OHIO PRECISION CASTINGS fused 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 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; 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. Ohio Precision Castings, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge 13 of the International Associa- tion of Machinists and Aerospace Workers, AFL- CIO, is a labor' organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by the Employer at its Dayton, Ohio, plant, including inspectors; but excluding all office clerical 617 employees, pattern makers, professional employees, guards and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 16, 1973, 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 March 23, 1973, 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 Seciion 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, Ohio Pre- cision Castings, Inc., Dayton, Ohio, 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 Lodge 13 of the 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 production and maintenance employees em- ployed by the Employer at its Dayton, Ohio, plant, including inspectors; but excluding all of- fice clerical employees, pattern makers, profes- sional 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: 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 Dayton, Ohio plant copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees 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 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Machinists 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 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, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by the Employer at its Dayton, Ohio, plant, including inspectors; but exclud- ing all office clerical employees, pattern mak- ers, professional employees, guards and supervisors as defined in the Act. 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Dis- trict Lodge 13 of the International Association of OHIO PRECISION CASTINGS, 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, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.