Ranco Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 1006 (N.L.R.B. 1974)

1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ranco Incorporated and District Lodge 52 of the
International Association of Machinists and Aero-
space Workers,AFL-CIO. Case 8-CA-8169
June 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on February 11, 1974, by
District Lodge 52 of the International Association of
Machinists and Aerospace Workers, AFL-CIO,
herein called the Union, and duly served on Ranco
Incorporated, herein called the Respondent, the
General Counsel of the National Labor Relations
Board , by the Regional Director for Region 8, issued
a complaint on March 6, 1974, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 December 13,
1973, following a Board election in Case 8-RC-9205
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 January 23, 1974, and at all
times thereafter, Respondent has refused , and con-
tinues to date to refuse, to provide information to,
and bargain collectively with the Union as the
exclusive bargaining representative, although the
Union had requested and is requesting it to do so. On
March 15, 1974, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On March 27, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on April 9, 1974,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent 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
I Official notice is taken of the record in the representation proceeding,
including exhibits A, B, and C attached to the request for review therein
dealing with representation proceedings at a sister plant of the Respondent,
Case 8-RC-9204 as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See
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 answer to the complaint and response to the
Notice To Show Cause the Respondent contends, in
effect, that the certification of the Union in the
underlying representation case is invalid as the extent
of organization was the controlling factor in the unit
determination in contravention of Section 9(c)(5) of
the Act, and that the Board erred in neither granting
review nor articulating its reasons therefore.
Our review of the record herein, including the
entire record in Case 8-RC-9205, reveals that
following a hearing the Acting Regional Director
issued a Decision and Direction of Election on
November 2, 1973, finding appropriate a toolroom
unit sought by the Union. In so determining, he
found that (1) the toolroom employees constituted a
homogenous , identifiable , traditional departmental
group with a nucleus of craft tool and die makers, (2)
they were separately supervised but were not
significantly integrated with, and performed func-
tions different than, the production employees, (3)
they did not interchange with other employees who
did not have an orderly and mechanical progression
into the toolroom, (4) there was no history of
collective bargaining at the plant involved, and (5)
there was no other labor organization seeking to
represent the toolroom employees in a more compre-
hensive unit.
The Respondent filed with the Board a timely
request for review, with supporting exhibits and
brief, attempting , in substance , to controvert the
Acting Regional Director's findings , asserting, inter
alia, that the Acting Regional Director had ignored
the unsuccessful prior organizational attempts by the
Union and other labor organizations to include the
toolroom employees in a plantwide unit, and that, in
finding the toolroom employees to constitute a
separate appropriate unit, he had improperly relied
on the extent of organization as controlling. The
Board, on November 27, 1973, denied review as not
raising substantial issues warranting review.
Thereafter, the election was held on December 6,
1973, and resulted in a 38-to-25 vote in favor of the
Union, with no challenged ballots. On December 13,
1973, the Acting Regional Director certified the
Union.
LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A. 4,1%8);
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., 1%7); Follett Corp., 164
NLRB 378, enfd . 397 F.2d 91 (C.A. 7, 1%8); Sec. 9(d) of the NLRA.
211 NLRB No. 133
RANCO INCORPORATED
In its response , the Respondent reiterates the
contentions it made in its objections and request for
review in the representation case , including the
argument, not mentioned by the Acting Regional
Director in his Decision and Direction of Election,
that the unit determination was based upon the
Union's extent of organization. It appears that it is
thus attempting to relitigate issues that were raised
and determined in the underlying representation
case.
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.2
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 reverse the
decision made in the representation proceeding.3 We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
In its response , the Respondent also contends that
there must be a specified Board articulation of its
rationale for denial of the Respondent's request for
review, especially with respect to the "extent of
organization" issue . We find no merit in this
contention. Our conclusions, as reaffirmed herein
after de novo review, that the request raises no
substantial issues warranting review, are sufficient
articulation of our decision to deny review, and the
Acting Regional Director's Decision and Direction
of Election explanation of the reasons for his unit
determination sufficiently explicates the basis for our
Order herein so as to offer a proper basis for judicial
review.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
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation with an office
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).
3 Because questions have recently been raised concerning the Board's
procedures for deciding requests for review which were in effect at the time
the request for review was denied in the underlying representation case
herein , the Panel has considered de novo in the instant proceeding the issues
sought to be raised by the said request for review , and has determined that
1007
and place of business located at London Road,
Delaware, Ohio, is engaged in the manufacture of
thermostatic controls. Annually, in the course and
conduct of business, -Respondent shipped goods
valued in excess of $50,000 from its Delaware, Ohio,
facility, 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
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
District Lodge 52 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All toolroom employees, including tool and die
makers, toolroom machine operators, and ap-
prentices, at the Employer's Delaware, Ohio,
plant, but excluding all production and mainte-
nance employees, office clerical employees, and
professional employees, guards, and supervisors
as defined in the Act.
2. The certification
On December 6, 1973, 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 the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on December 13, 1973, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
the request was properly denied for lack of merit in that it raised no issues
which would have warranted granting review of the Acting Regional
Director's Decision and Direction of Election.
4 Lake Odessa Machine Products, Inc., a wholly-owned subsidiary of
Spartan Corporation, 210 NLRB No. 13: Chayes Virginia Corporation, A
Wholly Owned Subsidiary of BCC Industries, Inc, 206 NLRB No. 122.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 23, 1974, and at
all times thereafter, the Union has requested the
Respondent to furnish information necessary for it to
formulate contract proposals and bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-described
unit. Commencing on or about January 25, 1974, and
continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
provide information to, and 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 January 25, 1974, and at all times thereafter,
refused to provide information to, and bargain
collectively with, the Union as the exclusive repre-
sentative of the employees in the appropriate unit,
and that, by such refusal, Respondent has engaged in
and is engaging in unfair labor practices 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 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, provide information to, and bargain
collectively with, the Union as the exclusive repre-
sentative 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; 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Ranco Incorporated is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. District Lodge 52 of the International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All toolroom employees, including tool and die
makers, toolroom machine operators, and appren-
tices, at the Employer's Delaware, Ohio, plant, but
excluding all production and maintenance employ-
ees, office clerical employees, 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. Since December 13, 1973, 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 January 25, 1974, and
at all times thereafter, to provide information to, and
bargain collectively with, the above-named labor
organization as the exclusive bargaining representa-
tive 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 provide information
and bargain, Respondent has interfered with, re-
strained, 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 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 Respondent,
Ranco Incorporated, Delaware, Ohio, its officers,
agents, successors, and assigns, shall:
RANCO INCORPORATED
1. Cease and desist from:
(a) Refusing to provide information to and bargain
collectively concerning rates of pay, wages, hours,
and other terms and conditions of employment with
District Lodge 52 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All toolroom employees, including tool and die
makers, toolroom machine operators, and ap-
prentices, at the Employer's Delaware, Ohio,
plant, but excluding all production and mainte-
nance employees, office clerical employees, and
professional 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:
(a) Upon request, provide information to, and
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 understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its Delaware, Ohio, facility copies of the
attached notice marked "Appendix." 5 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 conspicu-
ous 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.
b 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."
1009
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 provide information to,
and bargain collectively concerning rates of pay,
wages, hours, and other terms and conditions of
employment with, District Lodge 52 of the
International Association of 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
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 toolroom employees, including tool and
die makers, toolroom machine operators,
and apprentices, at the Employer's Dela-
ware, Ohio, plant, but excluding all pro-
duction and maintenance employees, office
clerical employees, and professional employ-
ees, guards, and supervisors as defined in the
Act.
RANCO INCORPORATED
(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, Suite 1695, Anthony J. Celebrezze
Federal Building, 1240 East Ninth Street, Cleveland,
Ohio 44199, Telephone 216-522-3715.