Ajax Magnethermic Corp.

National Labor Relations Board - Board Decisions

Apr 28, 1977

229 N.L.R.B. 317 (N.L.R.B. 1977)

AJAX MAGNETHERMIC CORP.
Ajax Magnethermic Corporation and United Steel-
workers of America, AFL-CIO, CLC. Case 8-CA-
10503
April 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on October 12, 1976, by
United Steelworkers of America, AFL-CIO, CLC,
herein called the Union, and duly served on Ajax
Magnethermic Corporation, herein called the Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 8, issued a complaint and notice of hearing
on November 23, 1976, and an amendment to the
complaint and notice of hearing on December 15,
1976, 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, amendment to the com-
plaint, and notice of hearing before an Administra-
tive Law Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint, as amended, alleges in substance that on
September 15, 1976, following a Board election in
Case 8-RC-10074, the Union was duly certified as
the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate; I and that, commencing on or about September
28, 1976, and that at all times thereafter, 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 December
2 and 22, 1976, Respondent filed answers to the
complaint, and to amendment, respectively, admit-
ting in part, and denying in part, the allegations in
the complaint.
On January 21, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 8,
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-
' Official notice is taken of the record in the representation proceeding,
Case 8-RC-10074, as the term "record" is defined in Secs. 102.68 and
1
02
.6
9
(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Elecirosyslems., Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4,
229 NLRB No. 45
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answers to the complaint, as amended, and in
its response to the Notice To Show Cause Respon-
dent denies in substance the material allegations of
the complaint and asserts as an affirmative defense
the ineligibility of the Union of representative status
because "the election was conducted in an atmo-
sphere which did not lend itself to a fair and
unencumbered election" and therefore the certifica-
tion was invalid and Respondent is relieved of its
duty to bargain. Respondent further alleges that
"because of changes in personnel and conditions, the
Union does not presently represent a majority of the
employees of the unit." The General Counsel asserts
that Respondent's contention that the Union was
improperly certified because of election irregularities
was duly considered by the Board in its Decision and
Certification of Representative. Respondent makes
no claim that such alleged defenses are in fact newly
discovered or based on previously unavailable
evidence. Therefore, General Counsel argues that
there exists no issue which would warrant a hearing
before the Board.
Our review of the record herein, including the
record in Case 8-RC-10074, discloses that pursuant
to a Stipulation for Certification Upon Consent
Election an election was conducted among the
employees in the stipulated unit on October 30, 1975,
which resulted in a vote of 31 votes for, and 30
against, the Union. Respondent filed timely objec-
tions which alleged in substance that (1) individuals
acting as agents of the Union picketed Respondent's
offices daily from the time of the filing of the petition
until a week before the election and threatened and
harrassed employees; and (2) union agents harrassed
and threatened several employees "as to what would
happen if the Union did not win the election." After
investigation the Regional Director on December 18,
1975, issued his Report on Objections in which he
found that the objections failed to raise substantial
issues of either fact or law with respect to the
election, and recommended that the objections be
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), 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 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overruled and that a certification of representative in
favor of the Union be issued.
On January 12, 1976, Respondent filed exceptions
to the Regional Director's Report on Objections in
which it essentially reiterated the allegations set forth
in its objections and contended that the election
should be set aside and a new election ordered. On
September 15, 1976, the Board issued its Decision
and Certification of Representative adopting the
Regional Director's findings and recommendations.
On September 28, 1976, Respondent, in response to
a request for bargaining by the Union, alleged that
the certification was invalid and that the Union did
not "represent a majority of the unit as presently
constituted."
Respondent further stated that it did not recognize
the Union as the bargaining agent for the employees
in the appropriate unit. In response to the Notice To
Show Cause, 2 Respondent argues that the General
Counsel's Motion for Summary Judgment should be
denied and that due process requires a hearing on the
issues presented herein. Respondent further alleges
that a hearing should have been directed to consider
the objections to the conduct of the election filed by
Respondent in Case 8-RC-10074. These objections
were, however, raised and considered in the represen-
tation case and ruled upon there. Moreover, it is well
settled that the parties do not have an absolute right
to a hearing. Only when the objecting party presents
a prima facie showing of "substantial and material"
issues which would warrant the election being set
aside does the right to an evidentiary hearing exist.3
Absent arbitrary action, this qualified right to a
hearing satisfies all statutory and constitutional
requirements. 4 In this case, the Board fully consid-
ered Respondent's objections and exceptions and did
not order a hearing, but rather adopted the Regional
Director's recommendations that they be overruled.
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) of the Act is
not entitled to relitigate issues which were or could
2 Although Respondent's response and brief to the General Counsel's
Motion for Summary Judgment was mailed before the Board's Notice To
Show Cause was issued a subsequent letter by Respondent dated February
11, 1977, indicated its intent that its response and brief serve as written
cause as to why General Counsel's motion should be denied.
3 N.L.R.B. v. Modine Manufacturing Co., 500 F.2d 914 (C.A. 8, 1974).
Amalgamated Clothing Workers of America [Winfield Manufacturing
Company, Inc.l v. N. LR.B., 424 F.2d 818, 828 (C.A.D.C., 1970).
s 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 (0) and 102.69(c).
6 Diamond Crystal Salt Company, 222 NLRB 714 (1976), and cases cited
in fn. 6 therein. Williams Energy Company, 218 NLRB 1080 (1975).
7 In its answer to the complaint Respondent asserts, in effect, that it does
not have sufficient knowledge or information "as to the Union's status as a
labor organization." However, the Board, in its previously referred to
have been litigated in a prior representation proceed-
ing. 5
Aside from the alleged loss of majority status of the
Union, all issues raised by Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and 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.
Furthermore, we find no merit in Respondent's
assertion that it is not obligated to bargain with the
Union because it does not believe that the Union
presently represents a majority of the unit employees
due to changes in personnel and conditions. An
employer's bargaining obligation extends for I year
from the date of certification and employee turnover
does not constitute "unusual circumstances" within
the Supreme Court's decision in Ray Brooks v.
N.L.R.B., 348 U.S. 96 (1954). Consequently, a
hearing on employee turnover is not warranted and
Respondent's belief about the Union's loss of
majority status is not a basis upon which it can
lawfully refuse to bargain.6 We therefore find that
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.7
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged in
the manufacture and sale of induction heating and
melting equipment at its sole facility located in
Warren, Ohio. Respondent, in the course of conduct
of its business operations, ships goods valued in
excess of $50,000 directly to points located outside
the State of Ohio.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
Decision and Certification of Representative, found the Union to be a labor
organization within the meaning of Sec. 2(5) of the Act and therefore that
issue cannot be relitigated herein. Teledyne, Landis Machine, 212 NLRB 73
(1974). Respondent also denies that the Union requested bargaining
commencing on or about September 20, and continuing to date. However,
attached to the General Counsel's Motion for Summary Judgment are
copies of correspondence between the Union and Respondent. By letter
dated September 20, the Union requested negotiations, to which Respon-
dent replied on September 28, that it "does not recognize the United
Steelworkers of America as the bargaining agent" of its employees.
Respondent has submitted nothing to controvert these documents, or their
contents. Accordingly, we deem these allegations of the complaint to be
true. The May Department Stores Company, 186 NLRB 86 (1970); Carl
Simpson Buick Inc., 161 NLRB 1389 (1966).
318
AJAX MAGNETHERMIC CORP.
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
United Steelworkers of America, AFL-CIO, CLC,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All office clerical employees employed by Re-
spondent at its location at 1745 Overland Avenue,
N.E., Warren, Ohio, excluding all confidential
employees and all professional employees, guards
and supervisors as defined in the Act, and all
other employees.
2. The certification
On October 30, 1975, 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 8 on September 15, 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 September 20, 1976, and
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about September 28, 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 Respondent has, since
September 28, 1976, and at all times thereafter,
refused to bargain collectively with the Union as the
8 Although the unit description as certified by the Board did not contain
the specification of Respondent's employees located at the above address in
Warren, Ohio, it is implicit therein that the unit comprises such employees.
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
(I) 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 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. Ajax Magnethermic Corporation is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO,
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All office clerical employees employed by
Respondent at its location at 1745 Overland Avenue,
N.E., Warren, Ohio, excluding all confidential
319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and all professional employees, guards
and supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since September 15, 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 September 28, 1976,
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
Relations Board hereby orders that the Respondent,
Ajax Magnethermic Corporation, Warren, 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, CLC, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All office clerical employees employed by Re-
spondent at its location at 1745 Overland Avenue,
N.E., Warren, Ohio, excluding all confidential
employees and all professional employees, guards
and supervisors as defined in the Act, and all
other employees.
(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 offices and place of business in
Warren, Ohio, copies of the attached notice marked
"Appendix." 9 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 Respondent 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.
9 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 United
Steelworkers of America, AFL-CIO, CLC, 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 office clerical employees employed by
Respondent at its location at 1745 Overland
Avenue, N.E., Warren, Ohio, excluding all
320
AJAX MAGNETHERMIC CORP.
confidential employees and all professional
employees, guards and supervisors as de-
fined in the Act, and all other employees.
AJAX MAGNETHERMIC
CORPORATION
321