The Sheffield Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1967

163 N.L.R.B. 180 (N.L.R.B. 1967)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by Respondents to insure
that such notices are not altered, defaced, or covered by
any other material.
(c) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of this Decision, what
steps the Respondent has taken to comply herewith. 15
1' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said
Regional Director, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
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 NOT refuse to bargain collectively with
Associated Maritime Workers Local No. 8, affiliated
with International Organization of Masters, Mates
and Pilots, AFL-CIO, as the exclusive representative
of all the employees in the bargaining unit described
below.
WE WILL, upon request, bargain with Associated
Maritime Workers Local No. 8, affiliated with
International Organization of Masters, Mates and
Pilots, AFL. CIO, as the exclusive bargaining
representative of all the employees in the bargaining
unit described below with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All marine employees employed aboard our
tugboats and work boats operating from the
continental United States, excluding dredge
crews, office clerical employees, guards,
supervisors as defined in the Act, and all the
other employees.
WE WILL NOT fail or refuse to meet at reasonable
times with the Union for contract negotiations.
WE WILL NOT fail or refuse, upon request, timely to
furnish the Union with information necessary or
relevant to collective bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of rights guaranteed in Section 7 of the
Act.
B. F. DIAMOND
CONSTRUCTION COMPANY,
INC., AND DIAMOND
MANUFACTURING COMPANY,
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 employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 706
Federal Office Building, 500 Zack Street, Tampa, Florida
33602, Telephone 228-7711.
The Sheffield Corporation and International
Union of Electrical , Radio and Machine
Workers, AFL-CIO. Case 9-CA-4016.
February 28,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Upon a charge filed by International Union of
Electrical, Radio and Machine Workers, AFL-CIO,
herein called the Union, the General Counsel for the
National Labor Relations Board, by the Regional
Director for Region 9, issued a complaint and notice
of hearing dated September 14, 1966, against The
Sheffield Corporation, herein called the
Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor
practices within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing were duly served on
the Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on June 16,
1966, the Union was duly certified by the Board' as
the exlusive collective-bargaining representative of
Respondent's employees in the unit found
appropriate by the Board, and that, since on or about
August 8, 1966, Respondent has refused to bargain
with the Union as such exclusive bargaining
representative, although the Union has requested it
to do so.
On October 31, 1966, the General Counsel filed
with the Board a motion for summary-judgment and
a memorandum in support thereof requesting that
Respondent's answer be stricken as sham, that the
allegations of the complaint be found to be true, and
that the Board make findings of fact and conclusions
of law in conformity with the allegations of the
complaint. On November 1, 1966, the Board issued
an order transferring proceeding to the Board and a
notice to show cause. On November 23, 1966,
Respondent filed with the Board a memorandum in
opposition to General Counsel's motion for summary
judgment.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
Upon the entire record in this case, the Board
makes the following:
' Fifth Supplemental Decision and Certification of
Representative issued June 16, 1966, in Case 9-RC-5858 (not
published in NLRB volumes).
163 NLRB No. 34
THE SHEFFIELD CORPORATION 181
RULING ON THE MOTION FOR
SUMMARY JUDGMENT
In its opposition to General Counsel's motion for
summary judgment, Respondent contends that it is
entitled to a hearing to insure full litigation of the
facts. This contention is without merit. The
Respondent's answer to the complaint and its
memorandum in opposition to General Counsel's
motion for summary judgment establish that the
Respondent is seeking to relitigate matters decided
by the Board in the prior representation proceeding.
The record before us establishes that on June 8,
1964, the Regional Director for Region 9 issued a
Decision and Direction of Election in Case
9-RC-5858 in which a description of the appropriate
unit was set forth. Thereafter, the Respondent filed
a request for review with the Board, which request
was denied on July 9, 1964. On July 15, 1964, a
secret-ballot election was conducted under the
direction of the Regional Director for Region 9; the
results of said election were inconclusive inasmuch
as the challenged ballots were sufficient in number
to affect the results of the election. On July 22, 1964,
the Union filed timely objections to conduct
affecting the results of the election. On December 9,
1964, the Regional Director issued his supplemental
decision, in which he inter alia, found merit in
certain of the Union's objections and directed a
second election. Respondent filed a request for
review of said supplemental decision, which request
was denied by the Board on January 11, 1965.
On February 19, 1965, a second secret-ballot
election was conducted among the Respondent's
employees. The results of said second election were
inconclusive inasmuch as the challenged ballots
were sufficient in number to affect the results of the
election. On February 23, 1965, the Employer filed
objections to conduct affecting the results of the
second election. On June 28, 1965, the Regional
Director for Region 9 issued his second
supplemental decision, in which he overruled the
Respondent's objections as being without merit and
ordered a hearing to resolve the challenged ballots.
Thereafter, Respondent filed with the Board a
request for review of the second supplemental
decision, which request was denied by order of the
Board on July 12, 1965. A hearing was held, and on
October 5, 1965, the Hearing Officer issued his
report in which he recommended that the challenges
to certain ballots be sustained and the challenges to
certain other ballots be overruled.
On November 19, 1965, the Regional Director for
Region 9 issued his third supplemental decision, in
which he adopted the Hearing Officer's
recommendations except for those with respect to
five ballots on which he reserved ruling until other
ballots were opened, and, in the event they could
still then affect the results of the election, he
directed that a hearing be held to resolve them.
Respondent filed a request for review of said third
supplemental decision, which request was denied by
order of the Board on January 10, 1966.
On January 14, 1966, certain employees, whose
votes had been challenged in the second election,
filed a complaint in the United States District Court
for the Southern District of Ohio, Western Division
(Civil Action No. 6081), seeking to enjoin the
Regional Director for Region 9 from opening any of
the challenged ballots until such time as he had
determined the validity of all challenged ballots. On
'January 14, 1966, the court granted a temporary
restraining order and thereafter, on March 8, 1966,
issued an injunction enjoining the opening of any
challenged ballots until the validity of all challenged
ballots was determined.
On March 10, 1966, the Regional Director for
Region 9 issued his fourth supplemental decision in
which he ordered that a hearing be held to resolve
the issues relating to the five challenged ballots of
which he had previously reserved ruling in his third
supplemental decision. A hearing was held, and on
May 31, 1966, the Hearing Officer issued his report
in which he recommended that the challenges to
three of the five ballots be overruled and that
challenges to the two remaining ballots be sustained.
On June 16, 1966, the Regional Director for
Region 9 issued his fifth supplemental decision in
which he adopted the Hearing Officer's
recommendations of May 31, 1966, and issued a
certification of representative, certifying the Union
as the exclusive collective-bargaining representative
of the employees in the appropriate unit.
Respondent filed a request for review of the fifth
supplemental decision, which the Board, on July 22,
1966, denied.
Respondent admits in its answer to the complaint
that the Union has requested it to bargain
collectively with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment, and admits that it has
failed and refused and continues to refuse to bargain
collectively with the Union. In its answer,
Respondent denies that the unit certified by the
Board in Case 9-RC-5858 is appropriate, that the
Union is the exclusive collective-bargaining
representative of the employees in said unit, and
that by its actions Respondent has violated the
provisions of Section 8(a)(1) and (5) of the Act.
In the absence of newly discovered or previously
unavailable evidence, issues which were or could
have been raised in a representation proceeding may
not be relitigated in a related refusal-to-bargain
proceeding.2 Admittedly, the issues which
Respondent seeks to raise in the instant proceeding
have been in dispute since the inception of
Case 9-RC-5858. Respondent alleges that it has
been denied, in the representation case, a
i Pittsburgh Plate Class Co. v N L R.B., 313 U S. 146, Collins
& Atkman Corporation, 160 NLRB 1750; and United States
Rubber Company, 155 NLRB 1298
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comprehensive review of its contentions with
respect to the unit deemed appropriate by the
Board, and that it has a right to pursue and exhaust
its administrative remedies. Inasmuch as the
Respondent has already litigated these issues, it has
not raised any issue which is properly triable in the
instant unfair labor practice proceeding.
All material issues thus having been decided by
the Board or admitted in the answer to the
complaint, there are no matters requiring a hearing
before a Trial Examiner. Accordingly, the General
Counsel's motion for summary judgment is granted.
On the basis of the record before it, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized and existing by
virtue of the laws of the State of Delaware, and is
engaged in the production of machine tools,
precision instruments , and other measuring devices
at its plant in Dayton, Ohio. During the past year,
which period is representative of all material times
herein, Respondent had a direct outflow of its
products, in interstate commerce, valued in excess
of $50,000 which it sold and shipped from its Dayton,
Ohio, plant to points located directly outside the
State of Ohio.
Respondent admits, and we find, 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.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio and
Machine Workers, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. The certification
On February 19, 1965, a majority of the employees
of Respondent in said unit , in a secret election
conducted under the supervision of the Regional
Director for Region 9, designated the Union as their
representative for the purposes of collective
bargaining with Respondent; and on June 16, 1966,
the Regional Director for Region 9 certified the
Union as the collective-bargaining representative of
the employees in said unit and the Union continues
to be such representative.
B. The Request to Bargain and the
Respondent's Refusal
Commencing on or about July 27, 1966, and
continuing to date, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit.
Commencing on or about August 8, 1966, and
continuing to date, Respondent did refuse, and
continues to refuse, to bargain collectively with the
Union as the exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative
of the employees of the Respondent in the
appropriate unit described above, and that the
Union, at all times since June 16, 1966, has been and
now is the exclusive bargaining representative of all
the employees in the aforesaid unit, within the
meaning of Section 9(a) of the Act. We further find
that Respondent has, since August 8, 1966, refused
to bargain collectively with the Union as the
exclusive bargaining representative of its employees
in the appropriate unit, and that, by such refusal, the
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
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein the following
employees of the Respondent have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All production and maintenance employees of
the Respondent at its Dayton, Ohio, plant,
including plant clericals and followup clerks but
excluding all management personnel, office
clericals, technical employees with diverse
interests, sales employees, co-op students, field
service department employees, professional
employees, guards, and supervisors as defined
in the Act.
The acts of the Respondent set forth in section III,
above, occurring in connection with its operations as
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 flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged 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 embody in a signed agreement any
understanding reached.
THE SHEFFIELD CORPORATION 183
CONCLUSIONS OF LAW
1. The Sheffield Corporation is an employer
engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and
Machine Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
the Respondent at its Dayton, Ohio, plant, including
plant clericals and followup clerks but excluding all
management personnel, office clericals, technical
employees with diverse interests, sales employees,
co-op students, field service department employees,
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 June 16, 1966, and at all times thereafter,
the above-named labor organization has been and is
the certified and exclusive representative of all
employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on or about August 8, 1966, and at
all times thereafter, to bargain collectively with the
above-named 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) and (1) of the
Act.
6. By the aforesaid refusal to bargain,
Respondent has interfered with, restrained, 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 has
thereby 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
meaning of Section 2(6) and (7) of the Act.
excluding all management personnel, office
clericals, technical employees with diverse
interests, sales employees, co-op students, field
service department employees, 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 to them by 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 embody in
a signed agreement any understanding reached.
(b) Post at its Dayton, Ohio, facilities, copies of
the attached notice marked "Appendix."3 Copies of
said notice, to be furnished by the Regional Director
for Region 9, 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 the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director for Region 9, in
writing, within 10 days from the date of this Decision
and Order, what steps have been taken to comply
herewith.
In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order," the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
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 Sheffield Corporation, Dayton, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with International Union of Electrical,
Radio and Machine Workers, AFL-CIO, as the
exclusive and duly certified bargaining
representative of its employees in the following
appropriate unit:
All production and maintenance employees of
the Respondent at its Dayton, Ohio, plant,
including plant clericals and followup clerks but
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with International Union of Electrical, Radio
and Machine 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
representative of all employees in the
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unit described below with respect to
wages, hours, and other terms and conditions of
employment, and embody in a signed
agreement any understanding reached. The
bargaining unit is:
All production and maintenance employees
of the Respondent at its Dayton, Ohio,
plant, including plant clericals and
followup clerks but excluding all
management personnel, office clericals,
technical employees with diverse interests,
sales employees, co-op students, field
service department employees,
professional employees, guards, and
supervisors as defined in the Act.
THE SHEFFIELD
CORPORATION
(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 employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office. Room 2407, Federal Office Building, 550
Main Street, Cincinnati, Ohio 45202, Telephone
684-3686.
Universal Form Clamp Co. and Tool & Die
Makers Lodge No. 113 , International
Association of Machinists , AFL-CIO,
Petitioner. Case 13-RC-10572.
March 1, 1967
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On June 16, 1965, the Regional Director for
Region 13 issued a Decision and Direction of
Election in the above-entitled proceeding in a voting
group confined to the Employer's toolroom
department employees at its Chicago, Illinois, plant.
In so doing, he granted the Petitioner's request for
severance of such employees from an established
production and maintenance unit represented by
Intervenor, District 50, United Mine Workers of
America, and found they could appropriately
constitute a separate unit, if they so desired.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
filed a timely request for review of the Regional
Director's Decision granting a severance election for
the toolroom employees. The National Labor
Relations Board, by telegraphic order dated July 13,
1965, granted the request for review and stayed the
election.
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 entire record in this
case with respect to the Regional Director's
determination under review and makes the following
findings:
The Employer, a manufacturer of concrete form
clamps, employs about 165 production and
maintenance employees (including the toolroom
employees here involved) who are currently
represented by the Intervenor. There is a long
bargaining history for this unit. District 8 of the IAM,
of which the Petitioner herein is a component part,
was the representative for an 18-year period
beginning with its certification in 1944 and ending in
1962, when, following a Board election, the
Intervenor superseded District 8 as the collective-
bargaining representative for the employees in the
production and maintenance unit. At or near the end
of the first bargaining contract negotiated by the
Intervenor following its 1962 certification, the
Petitioner timely filed the instant petition to sever
the toolroom department from the contractual unit.
The Regional Director granted the requested
beverance, finding that the toolroom is a separately
supervised department located in a partitioned
corner of the plant and that the 11 employees in this
department (7 are tool-and-die makers, 3 are
machinists, and 1 is a machinist apprentice) are
journeymen who possess the skills customarily
associated with their their respective crafts. The
Employer contends that these considerations alone
are not enough to warrant a severance election.
Emphasizing that less than 50 percent of the working
time of toolroom employees is devoted to typical
toolroom work and that substantial functional
interchange exists between this work and the work
of employees in the production department, the
Employer seeks dismissal of the severance petition
on the ground, among others, that Petitioner has not
established that the toolroom employees are
primarily engaged in the performance of tasks
requiring the exercise of their craft skills.
The record indicates that only about 40 percent of
the toolroom employees' worktime involves the
making and repairing of the Employer's production
tools and dies for the manufacture of concrete form
clamps.
About 45 percent of the work done by toolroom
employees is described as "troubleshooting." This
work is performed on the production floor and
entails the observation of malfunctioning machines
and making necessary corrections, adjustments, or
setups on the production floor. As appears from the
163 NLRB No. 23