McCrometer, Division of Ametek, Inc.

National Labor Relations Board - Board Decisions

May 14, 1982

261 N.L.R.B. 947 (N.L.R.B. 1982)

MCCROMETER, DIVISION OF AMETEK, INC.
McCrometer, Division of Ametek, Inc. and United
Steelworkers of America, AFL-CIO. Case 21-
CA-19637
May 14, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On November 17, 1980, the Regional Director
for Region 21 of the National Labor Relations
Board issued a complaint and notice of hearing in
the above-entitled proceeding, alleging that Re-
spondent has engaged in and is engaging in certain
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. Subsequently, Respondent filed an
answer to the complaint admitting in part and
denying in part the allegations in the complaint.
On February 11, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Thereafter, on February 23,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
subsequently filed a response to the Notice To
Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 in its response
to the Board's Notice To Show Cause, Respondent
admits that it has refused to bargain with the
Union. Respondent contends, however, that the
Board's certification of the Union as the exclusive
collective-bargaining representative of the unit em-
ployees in the underlying representation case was
improper and that Respondent was denied due
process of law in the course of the certification
process. Specifically, Respondent contends that it
has been denied due process because management
representatives were not interviewed regarding the
status of Jack E. Baker, whom the Regional Direc-
tor found to be ineligible to vote, and Respondent
was not granted a hearing regarding the Union's
challenges to certain ballots. As further explained
below, we find merit in Respondent's contention
that the Union's challenges to the ballots of Jack E.
Baker and Don Barron should not have been re-
solved without a hearing. Accordingly, we shall
deny the General Counsel's Motion for Summary
Judgment and direct the Regional Director to con-
duct a hearing on these challenges.
The record in this case reveals that on May 14,
1980, the Union and Respondent entered into a
Stipulation Upon Consent Election. On June 10,
1980, an election among Respondent's employees
was conducted by the Board. The tally of ballots
shows that a total of 25 ballots was cast; 12 votes
were cast for the Union, 10 votes were cast against
the Union, and 3 votes were challenged. The chal-
lenges were resolved without a hearing by the Re-
gional Director for Region 21 as follows:
The ballot of Rodney Schug was challenged by
the Board agent because Schug's name did not
appear on the voter eligibility list. The Regional
Director found that Schug was ineligible to vote
and sustained the challenge. Schug's ballot is not at
issue in this proceeding.
The ballots of Jack E. Baker and Don Barron
were challenged by the Union on the ground that
they were not employees in the bargaining unit.
The Regional Director found Baker's duties and in-
terests to be markedly different from those of other
bargaining unit employees, that he was a "techni-
cal" employee, and that he was, therefore, ineligi-
ble to vote. The challenge to Barron's ballot was
not resolved by the Regional Director, since
Baker's ineligibility removed the possibility that
Barron's ballot could affect the results of the elec-
tion.
On August 22, 1980, Respondent filed exceptions
to the Regional Director's report. On September
25, 1980, the Board adopted the findings and rec-
ommendations of the Regional Director and issued
a Decision and Certification of Representative in
Case 21-RC- 16364.'
Upon reconsideration, we now believe that said
certification was improvidently granted. As noted
above, the Regional Director chose not to conduct
a hearing on the Union's challenges to the ballots
of Jack E. Baker and Don Barron, but rather to
sustain the challenges to Baker on the basis of evi-
dence apparently gathered from the Petitioner
during his investigation. Under the circumstances
of this case, and in light of Respondent's offer to
produce witnesses to support its contention that
Baker and Barron shared a sufficient community of
interest with other unit employees so as to require
their inclusion in the unit and that the challenges to
their ballots should be overruled, we find that com-
pliance with the Board's Rules and Regulations,
I Not rcp)rted in volumes of Board Decisions.
261 NLRB No. 136
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Series 8, as amended, Section 102.69, requires that
a hearing be held as to those allegations.
In opposition to the challenges to the ballots of
Baker and Barron Respondent submitted a letter
dated June 23. That letter notes that these two em-
ployees were permitted to vote in a previous elec-
tion involving this unit and the same petitioning
union. Further, Respondent specifically identified
the supervisor of both Baker and Barron in its
letter. It also made a clear and unequivocal offer to
identify other witnesses and to cooperate in procur-
ing affidavits.
Under these circumstances, we conclude that
even if the Union made an adequate prima facie
showing of facts, which, if true, would establish
that Baker and Barron were not unit members, Re-
spondent sufficiently rebutted this showing so as to
raise substantial and material issues of fact which
make a hearing appropriate.
The Board, having duly considered the matter, is
of the opinion that there are substantial and materi-
al issues of fact and law which may best be re-
solved at a hearing before an administrative law
judge.
ORDER
It is hereby ordered that the General Counsel's
Motion for Summary Judgment be, and it hereby
is, denied.
IT IS FURTHER ORDERED that the proceeding in
Case 21-RC-16364 be reopened and consolidated
with the proceeding in Case 21-CA-19637 for the
purpose of receiving evidence regarding the eligi-
bility of Jack E. Baker and Don Barron.
IT IS FURTHER ORDERED that the proceeding be,
and it hereby is, remanded to the Regional Direc-
tor for Region 21 for the purpose of arranging such
hearing and that said Regional Director be, and
hereby is, authorized to issue notice thereof.
IT IS FURTHER ORDERED that the Board's Certifi-
cation of Representative in Case 21-RC-16364 be,
and it hereby is, stayed pending completion by the
Board of its reconsideration in this proceeding.
MEMBER JENKINS, dissenting:
I dissent from my colleagues' failure to grant the
General Counsel's Motion for Summary Judgment.
The Board's Rules and Regulations, 2 as well as
the decisions of this Board,3 require that a hearing
be held on challenged ballots only when there exist
"substantial and material factual issues" which
cannot properly be resolved in the course of an ad-
2 Rules and Regulations of the Board, Secs. 102.6
9
(c) and (f).
Trustees of Boston University, 242 NLRB 110, 111, fn. 4 (1979); South-
west Color Printing Corp., 247 NLRB 917 (1980); Allis Chalmers Corpora-
tion, 252 NLRB 606 (1980); AJD Cap Corp., Case 5 RC-11018 (May 22,
1980) (not reported in volumes of Board Decisions).
ministrative investigation. The burden of showing
the existence of such issues rests with the party de-
siring a hearing. In this case, Respondent has of-
fered no specific evidence of any kind in support of
its contention that Baker and Barron are unit em-
ployees, other than mere expressions of disagree-
ment with the reasoning and conclusions of the Re-
gional Director. The record clearly shows that Re-
spondent decided not to present affidavits or a list
of appropriate witnesses to the Regional Director.
Instead, in its letter of June 23, 1980, Respondent
stated that such affidavits and list of witnesses
could be presented if the Regional Director
deemed it "necessary." I cannot agree with my col-
leagues that this thin statement constitutes the rais-
ing of "substantial and material factual issues" ne-
cessitating a hearing. In light of Respondent's fail-
ure to avail itself of its opportunity to present affi-
davits and a list of appropriate witnesses to the Re-
gional Director, its claim that it was denied due
process and the opportunity to present evidence is
without substance.
Neither the Board's Rules and Regulations, nor
sound policy, requires the Regional Director to
chase down representatives of Respondent when
Respondent has chosen not to offer even a list of
prospective witnessses. Nor should the Regional
Director be required to request affidavits when Re-
spondent has chosen not to present even the glim-
mer of a prima facie showing of substantial and ma-
terial issues of fact.
It has been long established that it is incumbent
upon the party seeking a hearing affirmatively to
demonstrate the existence of factual issues which
can only be resolved by a hearing and to state with
specificity the evidence it intends to present. 4
Absent such specific assertions, the Board is enti-
tled to rely on the administrative investigation and
report of the Regional Director. Since Respondent
has utterly failed to meet this burden, I believe that
my colleagues err in ordering a hearing.
Moreover, our policy in this important area
should be clear, well-defined, and consistent. In our
previous decisions, we have been guided by the
Act's policy of expeditiously resolving questions
concerning representation. 5 If we decide to depart
from this policy of requiring a hearing on chal-
lenged ballots only where the party requesting a
hearing comes forward with specific evidence dem-
onstrating substantial and material factual issues,
· Allied Foods, Inc., 189 NLRB 513 (1971); Ohio Masonic Home, 233
NLRB 1004 (1977); Hydro Conduit Corporation, 242 NLRB 171 (1979);
Southwest Color Printing Corp.. supra; N.L.R.B. v. Tennessee Packers, Inc.,
379 F.2d 172 (6th Cir. 1969), cert. denied 389 U.S. 958; N.L.R.B. v. Revco
DS., Inc, 653 F.2d 264 (6th Cir. 1981).
5 See, e.g., Trustees of Boston University, supra: Southwest Color Printing
Corp., supra.
948
MCCROMETER, DIVISION OF AMETEK, INC.
we should not do so sub silentio and on an ad hoc
basis where the parties have no way of knowing
which policy we will follow.
On September 25, 1980, the Board certified the
Union as the exclusive collective-bargaining repre-
sentative of the unit employees over the objection
of Respondent. At that time we had before us and
properly rejected all of the arguments which Re-
spondent now raises. It is undisputed that Respond-
ent has refused to recognize and bargain with the
Union. Accordingly, the General Counsel's Motion
for Summary Judgment should be granted.
949