General Casting Co.

THE GENERAL CASTING CO., INC. The General Casting Co., Inc. and United Steelwork- ers of America, AFL-CIO. Case 8-CA-10670 May 6, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER Upon a charge filed on December 17, 1976, by United Steelworkers of America, AFL-CIO, herein called the Union, and duly served on The General Casting Co., Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a complaint on January 14, 1977, against Respon- dent, 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 Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on August 3, 1976, following a Board election in Case 8-RC- 10276, 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 August 16, 1976, 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 representative, although the Union has requested and is requesting it to do so. On January 24, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 11, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 25, 1977, 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. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. X Official notice is taken of the record in the representation proceeding, Case 8-RC-10276, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See LTV Electros4stems, Inc.. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4. 229 NLRB No. 71 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 Notice To Show Cause, Respondent admits the request and refusal to bargain but in substance attacks the Union's certification on the basis of certain election objections in the underlying repre- sentation case. Respondent further contends that the failure of the Board to grant a hearing on these objections deprived Respondent of due process and that it is entitled to a hearing on these issues. The General Counsel in his Motion for Summary Judgment and brief asserts that Respondent is attempting in this proceeding to relitigate matters decided in the prior representation case and this it may not do. We agree. The record, including that in the representation proceeding, Case 8-RC-10276, establishes that pur- suant to a Stipulation for Certification Upon Con- sent Election an election was held on March 18, 1976; the tally of ballots was 43 for, and 39 against, the Union. There was one challenged ballot, an insufficient number to affect the results. Respondent filed timely objections to the election, alleging, in substance, that certain instances of voter disenfran- chisement, including that occasioned by the Board's failure to provide bilingual notices and ballots (English and Spanish), coupled with the Union's misrepresentation of certain facts, illegal electioneer- ing by the Union's observer, and certain promises of benefit which the Union extended, effectively pre- cluded the possibility of a fair and impartial election. After investigation, the Regional Director, on May 25, 1976, issued his Report on Objections in which he recommended that the objections be overruled in their entirety and that the Union be certified. Thereafter, Respondent filed timely exceptions to the Regional Director's report which specifically reiterat- ed the objections theretofore presented for consider- ation by the Regional Director, and requested a hearing thereon. On August 3, 1976, after consider- ation of the Regional Director's report. Respondent's exceptions, and the entire record, a Board panel issued its Decision and Certification of Representa- tive, in which it adopted the Regional Director's findings and recommendations and certified the 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 268 F.Supp. 573 (D.C.Va.. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRB, as amended. 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union (not published in bound volumes of Board Decisions). 2 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation with its principal place of business in Delaware, Ohio. This case is solely concerned with Respondent's facility located on Toledo Street in Delaware, Ohio, where Respondent is engaged in the manufacture of gray iron castings. Respondent, in the course and conduct of its business operations, annually ships goods valued in excess of $50,000 from its Delaware, Ohio, facility directly to points located outside the State of Ohio. Respondent admitted, and we find, that it 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. II. THE LABOR ORGANIZATION INVOLVED Respondent admitted, and we find, that United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2 The parties do not have an absolute right to a hearing. Only when a prima facie showing of "substantial and material" issues warranting the election being set aside is presented will a hearing be held. Allied Meat Company, 220 NLRB 27 (1975). In this case, after full consideration of Respondent's objections and exceptions, the Board determined that no such 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 production and maintenance employees em- ployed at Respondent's Toledo Street facility in Delaware, Ohio, including shop janitors and truckdrivers, excluding all office clerical employ- ees, guards and supervisors as defined in the Act. 2. The certification On March 18, 1976, 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 8, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on August 3, 1976, 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 August 5, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about August 16, 1976, and continuing at all times thereafter to date, 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 August 16, 1976, 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. issues were raised and therefore adopted the Regional Director's recommen- dations. 3 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 466 THE GENERAL CASTING CO., INC. 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), 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. The General Casting Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed at Respondent's Toledo Street facility in Delaware, Ohio, including shop janitors and truck- drivers, excluding all office clerical 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 3, 1976, 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 August 16, 1976, 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 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 Relations Board hereby orders that the Respondent, the General Casting Co., Inc., Delaware, 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 conditions of employment with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed at Respondent's Toledo Street facility in Delaware, Ohio, including shop janitors and truckdrivers, excluding all office clerical employ- ees, 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. 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its Toledo Street facility in Delaware, Ohio, copies of the attached notice marked "Appen- dix."4 Copies of said notice, on forms provided by the Regional Director for Region 8, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4In 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 United Steelworkers of America, AFL-CIO, as the exclusive representative 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 production and maintenance employees employed at The General Casting Co., Inc.'s Toledo Street facility in Delaware, Ohio, including shop janitors and truckdrivers, excluding all office clerical employees, guards and supervisors as defined in the Act. THE GENERAL CASTING Co., INC. 468