Amax Aluminum Extrusion Products, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1969

174 N.L.R.B. 1104 (N.L.R.B. 1969)

1 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amax Aluminum Extrusion Products , Inc. and
Aluminum Workers International Union,
AFL-CIO. Case 26-CA-3192
M arch 11, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 3, 1969, Trial Examiner David
London issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the finding,,
conclusions, and recommendations of the Trial
Examiner.
REMEDY
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 year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the recognized 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).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Amax
Aluminum Extrusion Products, Inc., Hernando,
Mississippi, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified.'
Insert as the last indented paragraph in the notice the following
WE WILL NOT , by refusing to bargain, interfere with the efforts of
Aluminum Workers International Union , AFL-CIO, to negotiate for or
to represent the employees in the said appropriate unit as their exclusive
bargaining agent
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding
DAVID LONDON, Trial Examiner Upon a petition filed
February 21, 1968, in Case 26-RC-3114 by Aluminum
Workers International Union, AFL-CIO (the Union)
seeking certification as collective-bargaining representative
of specified employees of Amax Aluminum Extrusion
Products, Inc. (Employer or Respondent), the Union and
the Employer, on or about March 6, 1968 entered into a
stipulation for certification upon consent election By that
stipulation, approved by the Board's Regional Director for
Region 26, the parties agreed that an election be
conducted by the Board on April 10, 1968, among the
following described employees constituting an appropriate
collective-bargaining unit All production and maintenance
employees of the Employer at its Hernando, Mississippi,
plant, including general plant employees and die
repairmen, excluding metallurgical inspectors, office
clerical employees, factory and receiving clerical
employees, shipping clerical employees, technical and
professional employees, guards and supervisors as defined
in the Act At that election, 35 employees voted for the
Union, 25 against that organization, and 5 ballots were
challenged
On April 17, 1968, the Employer filed six detailed
objections to that election and requesting that by reason
thereof the election be set aside or, in the alternative, that
its objections not be dismissed without a hearing thereon
Objection I reads as follows: "The Greater
t-Iernando-Memphis Community climate during the period
on or about March I, 1968 through April 10, 1968, the
election date, was such that a free and fair election as
required by the Board in its many decisions relating to
community environment and the need for proper
`laboratory conditions' was not possible and did not, in
fact, exist." In support of this objection, the Employer
specified six events (a)-(f) inclusive which, it contended,
"created such a community climate in Hernando,
Mississippi that an election under laboratory conditions
were impossible " All of these incidents pertained to the
atmosphere created in the Hernando-Memphis area
arising out of the assassination of Dr Martin Luther
King, Jr , on April 4, 1968 '
Objection II is grounded on the "conduct of the
election and that of the Board agent Mr D Bruce
Baldwin " In support thereof, the Objections specified
four incidents which, the Employer contended, requires
setting the election aside
Objection III deals with the "Union's publication of the
Company's St Charles, Illinois, pay rates on or about
April 9, 1968. Employer first obtained a copy of this
publication subsequent to the election " With respect
thereto, the Employer contends "said publication
contained a misrepresentation of material facts and was
timed to prevent the Company from making an effective
rebuttal "
Objection IV charges that "a Union publication
distributed on or about April 8, 1968 contained a material
misrepresentation which the Union agent, Mr Gene
Foster, had personal knowledge of "
'Hernando, Mississippi, is approximately 30 miles south of Memphis,
Tennessee
174 NLRB No. 163
AMAX ALUMINUM EXTRUSION PRODUCTS 1105
Objection V charged that by a Union letter dated
February 16, 1968, "the Union impliedly had agreed to a
waiver of fees if the employees voted for the Union "
Objection VI charges "threats and intimidation,
expressed and implied by Union agents which prohibited a
free and fair election."
Pursuant to Section 102.69 of the Board's Rules and
Regulations, its Director for Region 26 caused an
investigation of the foregoing Objections to be made,
during which the Employer and the Union were afforded
an opportunity, and submitted, evidence bearing on the
issues On May 23, 1968, the said Regional Director filed
his report on said objections in which he recommended
that all of the objections be overruled and that the Union
be certified as exclusive representative of the employees in
the unit described above
On or about June 3, 1968, the Employer filed with the
Board its exceptions to the Regional Director's report last
aforementioned together with its argument in support of
said exceptions The Board, having considered the
Employer's objections and its brief in support thereof, on
July 30, 1968 issued its Decision and Certification (172
NLRB No. 149) by which it adopted the Regional
Director's critical and ultimate findings that all the
objections were without merit and "raise no material or
substantial issues of fact or law which would warrant
reversal of the Regional Director's findings or
recommendations, or require a hearing." Accordingly, it
certified the Union as collective-bargaining representative
of the employees in the appropriate unit heretofore
described 2
The Unfair Labor Practice Proceeding
On October 14, 1968, the Union filed the unfair labor
practice charge in Case 26-CA-3192, the instant case,
alleging that Respondent, in violation of Section 8(a)(1)
and (5) of the Act, refused to bargain with it. On
November 1, 1968 the Board's Regional Director for
Region 26 issued the complaint herein alleging that
commencing on or about July 31, 1968 and continuing to
date, the Union, as the duly designated representative of
the employees of the appropriate unit described above,
requested Respondent to bargain collectively with it with
respect to rates of pay, wages, hours of employment and
other terms and conditions of employment of said
employees, and that commencing on or about August 13,
1968, and at all times thereafter, Respondent refused to
bargain collectively with the Union
On or about November 11, 1968, Respondent filed its
answer to the complaint in which it admitted most of the
material allegations of the complaint, but denied that it
had unlawfully refused to bargain with the Union
In that Answer, Respondent admitted (1) the
jurisdictional allegations of the complaint, (2) the status of
the Union as a labor organization, (3) the appropriateness
of the unit described in the representation proceeding, (4)
that following the election of April 10, 1968, the Board,
on July 30, 1968, certified the Union as
collective-bargaining representative of the employees in
that unit, and (5) that since on or about August 13, 1968,
'Adminstrative or official notice is taken of the record in the
representation proceeding , Case 26-RC- 3114 See Rules and Regulations
and Statements of Procedure, National Labor Relations Board , Series 8,
as revised January I , 1965, Sections 102 68 and 102 69 (f) See also L T V
Electra Systems , Inc. 166 NLRB No 81, Golden Age Beverage
Company, 167 NLRB No 24 , Intertype Co v Penello , 269 F Supp 573,
Follett Corporation, et al. 164 NLRB No 47, enfd 397 F 2d 91 (C A 7)
Respondent has refused to bargain with the Union as such
representative . It denied that the aforementioned election
and certification are valid determinations . In addition, it
pleaded eight affirmative defenses which , however, are
substantially the same defenses that were pleaded by the
Employer in its exceptions to the Regional Director's
report on objections in the representation proceeding and
were ruled upon, adversely to the Employer , by the Board
in its Decision and Certification of July 30, 1968.
On or about November 15, 1968, the General Counsel
filed its motion herein, entitled "Motion for Judgment on
the Pleadings ." He contends therein that by reason of the
admissions contained in Respondent ' s Answer to the
complaint and the Board ' s decision and certification in the
representation proceeding , no litigable issue remains and
that the remedy sought by his complaint should be
summarily granted. On or about November 19, 1968,
Trial Examiner Charles Schneider issued an order
requiring all parties to the proceeding to show cause, on
or before December 6, 1968, whether or not the aforesaid
motion for judgment on the pleadings should be granted.
On or about December 5, 1968, Respondent filed its
answer to said order to show cause . In substance, it pleads
(a) that neither the Act, the Board ' s Rules and
Regulations and its Statement of Procedure , nor the
Administrative Procedure Act, permit grant of a motion
for judgment on the pleadings , and (b ) that Respondent's
constitutional right to due process requires that it be given
a full evidentiary hearing on the issues raised by its
objections to the Regional Director ' s report in the
representation proceeding and the affirmative defenses
pleaded in its answer to the complaint.'
With respect to (a) immediately above, I find no merit
to that contention . While neither the Act, the Board's
Rules and Regulations and its Statement of Procedure,
nor the Adminstrative Procedure Act, specifically
authorize or mention motions for judgment on the
pleadings, it does not necessarily follow that resort to such
a motion is unauthorized or inappropriate . In any event,
the procedure here invoked has met with court approval
See N. L.R B v . Neuhoff Bros Packers, Inc, 362 F 2d
611 (C.A. 5 ); N L R.B v. Ortronix , Inc, 380 F.2d 737
(C.A. 5); N L.R B v Carolina Natural Gas Corp, 386
F. 2d 571 (C. A. 4).
A more appealing argument is presented by Respondent
in support of contention (b), that due process requires that
it be given a hearing on its Objections to the election and
the affirmative defenses pleaded in its Answer. With
respect thereto, however, and regardless of what
misgivings may be entertained arising out of Respondent's
failure to secure the requested hearing, as an arm of the
Board, I am constrained to adhere to the Board ' s prior
decision in the representation proceeding that
Respondent ' s Objections are without merit and do not
"require a hearing." See Carolina Natural Gas
Corporation , 157 NLRB 674, enfd 386 F 2d 571 (C.A 4);
Goldspot Dairy, Inc, 173 NLRB No. 151; Iowa Beef
Packers, Inc , 144 NLRB 615.
By reason of all the foregoing, and upon the entire
record in both proceedings , the Trial Examiner to whom
the aforesaid motions have been referred for disposition,
hereby grants the General Counsel ' s Motion for Judgment
on the Pleadings and makes the following further
'The General Counsel's motion of December 19, 1968 , to strike
Respondent's answer to the aforesaid Order to Show Cause is hereby
denied
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
I THE BUSINESS OF RESPONDENT
Respondent is now, and has been at all times material
herein, a Delaware corporation with a place of business
located at Hernando, Mississippi, where it is engaged in
the manufacture of custom aluminum extrusions During
the year preceding the issuance of the complaint herein,
Respondent, in the course and conduct of its business
operation at its Hernando, Mississippi location, purchased
and received goods and products valued in excess of
$50,000 directly from points outside the State of
Mississippi and, during the same period, sold and shipped
goods and materials valued in excess of $50,000 directly to
points outside the State of Mississippi Respondent
admits, and I find, that during all times relevant herein it
was, and is, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
iI. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
All production and maintenance employees of
Respondent at its Hernando, Mississippi, plant, including
general plant employees and die repairmen, excluding
metallurgical inspectors, office clerical employees, factory
and receiving clerical employees, shipping-clerical
employees, technical and professional 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
On or about April 10, 1968, a majority of the
employees of Respondent in the unit described above, by a
secret ballot election conducted under the supervision of
the Board's Regional Director for Region 26 in Case
26-RC-3114, designated and selected the Union as their
representative for the purposes of collective bargaining
with Respondent. On or about July 30, 1968, the Board
issued its Decision and Certification of Representative,
172 NLRB No 149, and certified the Union as the
exclusive bargaining representative of the employees in
said unit At all times since April 10, 1968, and continuing
to date, the Union has been the representative for the
purposes of collective bargaining of the employees in the
unit described above and has been, and is now, the
exclusive representative of all the employees in said unit
for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment and other terms
and conditions of employment
Commencing on or about July 31, 1968, the Union
requested Respondent to bargain collectively with respect
to rates of pay, wages, hours of employment and other
terms and conditions of employment as the exclusive
bargaining representative of all of the employees of
Respondent in the unit described above
Commencing on or about August 13, 1968, and at all
times thereafter, Respondent refused and continues to
refuse to bargain collectively with the Union as the
exclusive representative of all the employees in the unit
described above.
The activities of Respondent set forth in section III,
above, occurring with the operations of Respondent
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free now
thereof
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, including the
representation proceeding aforementioned, I make the
following:
CONCLUSIONS OF LAW
1. Amax Aluminum Extrusion Products, Inc , is an
employer within the meaning of Section 2(2) of the Act
and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2. Aluminum Workers International Union, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act
3. All production and maintenance employees of
Respondent at its Hernando, Mississippi plant, including
general plant employees and die repairmen, excluding
metallurgical inspectors, office clerical employees, factory
and receiving clerical employees, shipping clerical
employees, technical and professional 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 On and at all times since April 10, 1968, the Union
has been, and now is, the exclusive representative of the
employees in the above-described unit for the purposes of
collective bargaining.
5. By refusing on and after August 13, 1968, to bargain
collectively with the Union as the exclusive representative
of the employees in the appropriate unit, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I recommend that it be required to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in this
proceeding and in Case 26-RC-3114, and pursuant to
Section 10(c) of the Act, it is hereby ordered that
Respondent Amax Aluminum Extrusion Products, Inc,
its officers, agents, successors, and assigns, shall
I Cease and desist from:
(a) Refusing to bargain collectively with Aluminum
Workers International Union, AFL-CIO, as the exclusive
collective-bargaining representative of its employees in the
appropriate unit.
(b) Interfering with the efforts of Aluminum Workers
International Union, AFL-CIO, to negotiate for, or to
represent, the employees in the said appropriate unit as
AMAX ALUMINUM EXTRUSION PRODUCTS
their exclusive bargaining agent.
2. Take the following affirmative action which I find
will effectuate the policies of the Act-
(a) Upon request, bargain collectively with Aluminum
Workers International Union, AFL-CIO, as the exclusive
representative of all the employees in the appropriate unit
with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its places of business at Hernando,
Mississippi, copies of the notice attached hereto and
marked "Appendix "0 Copies of said notice, on forms
provided by the Regional Director for Region 26, shall,
after being duly signed by an authorized representative of
Respondent, be posted by it immediately upon receipt
thereof and maintained by it for a period of 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 26, in
writing, within 20 days from the receipt of this Decision
and Recommended Order, what step, it has taken to
comply herewith '
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 26 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
1107
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request, bargain with Aluminum
Workers International Union, AFL-CIO, as the
exclusive collective-bargaining representative of the
employees in the appropriate unit described below, with
respect to rates of pay, wages, hours of employment
and other conditions of employment and, if an
understanding is reached, embody such understanding
in a signed agreement
The appropriate unit is-
All production and maintenance employees of
Amax Aluminum Extrusion Products, Inc , at its
Hernando, Mississippi plant, including general
plant employees and die repairmen, excluding
metallurgical inspectors, office clerical employees,
factory and receiving clerical employees, shipping
clerical employees, technical and professional
employees, guards and supervisors as defined in the
Act.
AMAX ALUMINUM
EXTRUSION PRODUCTS,
INC.
(Employer)
Dated By
(Representative ) (Title)
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.
If members have any question concerning this notice or
compliance with its provisions they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee, Telephone 901-534-3161