Ohio Machinery Co.

National Labor Relations Board - Board Decisions

Jun 25, 1969

176 N.L.R.B. 1045 (N.L.R.B. 1969)

OHIO MACHINERY CO. 1045
Ohio Machinery Co. and International Union of
Operating Engineers, Local 18, 18A, 18B, and
18C, AFL-CIO. Case 8-CA-5375
June 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a charge filed by International Union of
Operating Engineers , Local 18, 18A , 18B, and 18C,
AFL-CIO, herein called the Union , the General
Counsel of the National Labor - Relations Board, by
the Regional Director for Region 8, issued a
complaint dated March 27, 1969, against Ohio
Machinery Co., herein called the Respondent,
alleging that the 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 , herein called the Act.
Copies of the charge, complaint , and notice of
hearing before a Trial Examiner were duly served
upon the Respondent and the Union.
The record before us establishes that as a result of
the filing of a petition by the Union for an election
among certain of Respondent ' s employees, and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations , Series 8, as
amended , the Regional Director for Region 8
directed a hearing to take evidence relating to the
issues raised by the petition . On October 2, 1968,
the Regional Director issued his Decision and
Direction of Election. Respondent 's Request for
Review of the Decision and Direction of Election,
on grounds relating to the appropriateness of the
unit , was denied by the Board on October 23, 1968.
On October 29, 1968, pursuant to the Decision and
Direction of Election , an election was held in which
the Union received a majority of the valid ballots
cast . On November 5, 1968, the Union was certified
as the exclusive bargaining representative of
Respondent' s employees in the unit found
appropriate.
The complaint alleges that commencing on or
about November 22, 1968, February 1, 1969, and at
all times therafter , Respondent has refused to meet
and bargain with the Union , although the Union has
requested it to do so . On April 11, 1969,
Respondent filed its answer , admitting in part and
denying in part the allegations of the complaint. It
contends that the unit described in paragraph 5 of
the complaint does not consititute a unit appropriate
for bargaining within the meaning of Section 9 of
the Act, and requests that the complaint be
dismissed.
On April 18, 1969, the General Counsel filed with
the Board a Motion for Summary Judgment
submitting that the pleadings raised no issues of fact
which required a hearing or which were not
previously presented to and decided by the Board in
a prior related representation case, Case 8-RC-7249,
of which the Board is requested to take official
notice, and requesting that the Board issue an Order
that cause be shown why a Decision and Order
should not be issued finding the violations as alleged
in the complaint, and that such Decision and Order
be duly issued thereafter. On April 22, 1969, the
Board issued an Order Transferring Proceeding to
the Board and Notice to Show Cause. On May 1,
1969, the Respondent filed a reply to the Notice to
Show Cause, requesting a hearing on certain issues
relating to the unit determination.
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.
Ruling on the Motion for Summary Judgment
Respondent is engaged in the sale and service of
heavy construction equipment at four locations in
the State of Ohio: Cleveland, Cadiz, Zanesville, and
Youngstown, with its principal office and place of
business at its Cleveland operation. The Union's
petition sought a representation election among all
the parts department employees at all these
locations. Respondent's position at the
representation hearing was that the appropriate unit
should be one consisting of parts-department
employees employed by members of a
multiemployer bargaining association to which the
Respondent belongs. Respondent reiterated this
position in its request for review and submitted, in
the alternative, that separate-plant units of parts
department employees would also be appropriate. In
his Decision, the Regional Director noted that
although there had been multiemployer bargaining
for certain mechanics, there was no history of
collective bargaining for Respondent's parts
employees or those of other association members.
He further noted that a history of multiemployer
bargaining for one group of employees does not
establish the appropriateness of a multiemployer
unit for previously unrepresented employees in
another category. Taking into consideration the
facts that overall supervision of the parts operation
is conducted by the general parts manager from
Cleveland, that labor relations policy is formulated
at Cleveland, and that all parts employees work
under the same conditions and terms, the Regional
Director concluded that the following employees of
Respondent constituted a unit appropriate for the
purposes of collective bargaining within the meaning
of the Act:
All parts department employees at the Employer's
Cleveland, Cadiz, Zanesville, and Youngstown
facilities, excluding office clerical employees,
professional employees, guards, and supervisors as
176 NLRB No. 130
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defined in the Act, and all other employees.
request for review was denied on the ground that it
raised no substantial issues warranting review.
In support of his Motion for Summary Judgment,
the General Counsel contends that since
Respondent ' s answer to the complaint denies only
that the unit found to be appropriate by the
Regional Director is an appropriate unit and that
the Union is the representative of the employees in
the unit , admits all other factual allegations, and
raises no affirmative defenses , the pleadings raise no
issues of fact which require a hearing or which were
not previously presented and decided in the
representation proceeding . He argues that
Respondent is foreclosed from relitigating the issue
of the appropriateness of the unit inasmuch as the
identical issue was disposed of in the representation
hearing.
Respondent, in reply to the Order Transferring
Proceeding to the Board and Notice to Show Cause,
contends that because of the inappropriateness of
the bargaining unit, it is under no legal duty to
bargain . Respondent argues that all material issues
were not and could not have been litigated in the
representation proceeding , as there have been
changes in the unit and in company policy since the
hearing , and that there are still unresolved issues,
arising from the erroneous factual determinations
made by the Regional Director. It further requests
that the Board re-examine its position regarding
relitigation of issues first disposed of in
representation cases in subsequent unfair labor
practice proceedings.
We see no reason in this case to depart from the
well-established established rule that in the absence
of newly discovered or previously unavailable
evidence , issues which were or could have been
raised in the related representation proceeding may
not be relitigated in an unfair labor practice
proceeding.' Although Respondent in its reply
asserts that it "does not waive its rights to present
newly discovered evidence or previously unavailable
evidence ," it neither discloses the nature of such
evidence nor contends that it has such evidence in its
possession . Furthermore , the changes in the
bargaining unit and in company policy to which
Respondent alludes in its reply are not alleged with
sufficient specificity to permit us to determine what
impact, if any, they might have upon the unit
determination . We find , therefore , no merit in
Respondent ' s contention regarding the necessity of a
hearing under Section 10(b) of the Act. Accordingly,
as all material issues herein have been decided by
the Board or admitted in Respondent ' s answer to
the complaint, the General Counsel's Motion for
Summary Judgment is hereby granted. On the basis
of the record before it, the Board makes the
following:
'Roadway Express . Inc, 170 NLRB No. 161. Cf. Pittsburgh Plate Glass
Company v. N L.R B, 313 U.S. 146, 158
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent , an Ohio corporation , is engaged in
the sale and service of heavy construction equipment
and, annually , in the course and conduct of its
business , receives products valued in excess of
$50,000 directly from points outside the State of
Ohio . Respondent admits, and we find, that it is and
has been at all times material herein, engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers,
Local 18, 18A, 18B , and 18C , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Appropriate Unit
The following employees of Respondent
constitute , and at all times material herein have
constituted, a unit appropriate for purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All parts department employees at the Employer's
Cleveland, Cadiz, Zanesville, and Youngstown,
Ohio facilities, excluding office clerical employees,
professional employees , guards, and supervisors as
defined in the Act, and all other employees.
B. The Certification
On or about October 29, 1968, a majority of the
employees of Respondent voting in a secret ballot
election conducted among the employees in said
unit , under the supervision of the Regional Director
for Region 8, designated the Union as their
representative for the purpose of collective
bargaining with Respondent. On November 5, 1968,
the Board certified the Union as the exclusive
collective-bargaining representative of the employees
in said unit, and the Union continues to be such
representative.
C. The Request to Bargain and the
Respondent's Refusal
Commencing on or about November 22, 1968,
February 1, 1969, and continuing to date, the Union
has requested , and is requesting Respondent to
bargain with it as the exclusive collective-bargaining
representative of all the employees in the
above-described unit. Commencing on or about
November 22, 1968, February 1, 1969, and at all
OHIO MACHINERY CO. 1047
times thereafter , 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. Since
Respondent was obligated to meet and bargain with
the Union, upon request, we find, on the basis of the
factors mentioned above , that the Respondent's
refusal on and after November 22, 1968, and
February 1, 1969, to bargain collectively with the
Union as the exclusive bargaining representative of
the employees in the appropriate unit was and is
violative of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the Respondent set forth in section III
above, occuring 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 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 , 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 year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the certified 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).
CONCLUSIONS OF LAW
1. Ohio Machinery Co. is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union of Operating Engineers,
Local 18, 18A, 18B, and 18C, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All parts' department employees at the
Employers Cleveland, Cadiz, Zanesville, and
Youngstown, Ohio, facilities, excluding office
clerical employees, professional employees, guards
and supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. At all times since November 5, 1968, the
Union has been the exclusive representative for the
purposes of collective bargaining of the
Respondent's employees in the approriate unit.
5. By refusing to bargain collectively with the
Union as the exclusive representative of employees
in the appropriate unit on and after November 22,
1968, and February 1, 1969, the 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 are unfair
labor practices affecting commerce within the
meaning 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,
Ohio Machinery Co., Cleveland, Ohio, its officers,
agents , successors, and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with
International Union of Operating Engineers, Local
18, 18A, 18B, and 18C, AFL-CIO, as the exclusive
bargaining representative of the employees in the
following appropriate unit:
All parts department employees at the Employer's
Cleveland, Cadiz, Zanesville, and Youngstown,
Ohio facilities, excluding office clerical employees,
professional employees, guards, and supervisors as
defined in the Act, and all other employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their right to bargain collectively through said
Union.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with
International Union of Operating Engineers, Local
18, 18A, 18B, and 18C, AFL-CIO, as the exclusive
representative of the employees in the appropriate
unit described above and, if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Post at its plants in Cleveland, Cadiz,
Zanesville, and Youngstown, Ohio, copies of the
attached notice marked "Appendix."2 Copies of said
notice, on forms provided by the Regional Director
for Region 8, shall, after being duly signed by
'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 "
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent' s representative , be posted by it
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 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 10 days from the date of this Order,
what steps have been taken to comply herewith.
pay, wages , hours of employment , and other terms and
conditions of employment , and, if an understanding is
reached , embody the same in a signed agreement. The
appropriate bargaining unit it:
All parts department employees at the Employer's
Cleveland, Cadiz, Zanesville, and Youngstown, Ohio
facilities , excluding office clerical employees,
professional employees , guards, and supervisors as
defined in the Act , and all other employees.
WE WILL NOT refuse to bargain collectively, as
aforesaid , nor will we , in any like or related manner,
interfere with , restrain , or coerce our employees in the
exercise of their right to bargain collectively through
said Union.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the 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 our employees that:
WE WILL bargain collectively, upon request, with
International Union of Operating Engineers , Local 18,
18A, 18B , and 18C, AFL-CIO, as the exclusive
bargaining representative of all employees in the
bargaining unit described below concerning rates of
OHIO MACHINERY CO.
(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, Federal Office
Building , Room 1695, 1240 East Ninth Street, Cleveland,
Ohio, 44199 Telephone 216-522-3715.