General Casting Co.

National Labor Relations Board - Board Decisions

May 6, 1977

229 N.L.R.B. 465 (N.L.R.B. 1977)

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