Magnesium Casting Co.

National Labor Relations Board - Board Decisions

Apr 17, 1969

175 N.L.R.B. 397 (N.L.R.B. 1969)

MAGNESIUM CASTING CO. 397
Magnesium Casting Co. and United Steelworkers of
America , AFL-CIO. Case 1-CA-6498
April 17, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On January 28, 1969, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
and the Charging Party filed exceptions to the Trial
Examiner's Decision and Respondent filed a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Magnesium
Casting Company, Hyde Park, Massachusetts, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
in its exceptions to the Trial Examiner's Decision, the Charging Party
requests an affirmative bargaining order, without any further request that
the Respondent bargain with it, and a monetary remedy to, inter aha,
make the employees and it whole for losses they may have suffered as a
result of the Respondent's unlawful refusal to bargain We deem it
inappropriate in this case to depart from our existing policy with respect to
remedial orders in cases involving violations of Section 8(a)(5), and
therefore deny the said request See Monroe Auto Equipment Company,
164 NLRB No 144, fn I
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE REPRESENTATION PROCEEDING'
PAUL E. WELL, Trial Examiner Upon a petition filed
under Section 9(c) of the National Labor Relations Act
'Administrative or official notice is taken of the record in the
(29 U.S.C.A. 159(c)) by United Steelworkers of America,
AFL-CIO, hereinafter called the Charging Party, a
hearing was held by the Regional Director for Region 1 of
the Board at which the employer appeared specially
arguing that the hearing should not be conducted because
of the pendency of a charge filed by it against the Union
alleging a violation of Section 8(b)(1) (A). The Motion
was denied and the hearing was completed
The Regional Director consequently issued a decision
directing an election in a unit consisting of all production
and maintenance employees of the employer at its Hyde
Park , Massachusetts plant including the records keeping
department employees , shipping and receiving employees
and the truckdriver but excluding office clerical
employees , professional employees , guards and supervisors
as defined in the Act. The Decision specifically dealt with
a classification of alleged supervisors known as assistant
foremen, six of whom were found to be employees and the
seventh to be a supervisor and excluded from the unit.
On May 31, 1968, the Respondent filed a request for
review pursuant to Section 102.67 of the Board ' s Rules
and Regulations contending that three of the assistant
foremen found to be employees are in fact supervisors and
the Union filed its statement in opposition to the request
for review . On June 18 the Board denied the request for
review on the ground that it raised no substantial issues
warranting review. On June 17 Respondent filed a Motion
to Withdraw Decision and Direction of Election and
Dismiss Petition contending that by furnishing an election
eligibility list to the Union pursuant to the Excelsior rule'
Respondent had been required to lend assistance to the
Union which necessarily would affect the results of the
election . Respondent also contended that the rule was
improperly promulgated and contrary to the requirements
of the Administrative Procedures Act.
The Motion was denied on June 19 by the Regional
Director on the ground that the Wyman -Gordon ' decision
of the First Circuit upon which Respondent rested its
Motion does not provide for retroactive application. The
election was conducted on June 21 , 1968, and
Respondents moved the District Court for the District of
Masachusetts for a ruling enjoining the certification of the
results of the election on the same grounds on which its
motion to the Regional Director rested . The United States
District Court granted the rule sought by Respondent and
its action was summarily reversed by the United States
Court of Appeals for the First Circuit.'
On June 28 the Respondent filed objections to conduct
affecting the results of the election , again raising the
Excelsior and the Wyman-Gordon issues and further
alleging that prior to the election the Union informed
employees that if they did not sign an authorization card
they would have to pay $75 initiation fee to the Union.
The objections were overruled and the United
Steelworkers of America was certified as the
representative of the employees on October 11, 1968
Respondent by telegram to the Board excepted to the
Supplemental Decision and Certification on the ground
representation proceeding Case 1-RC-9973, as the term " record" is defined
in Section 102 68 and 102 69 (f) of the Board's Rules and Regulations
Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB No 81,
enfd 388 F 2d 683 (C A. 4, 1968)
'Excelsior Underwear, Inc, 156 NLRB 1236
Wyman-Gordon Company et al v N L R B, 379 F 2d 394 (C A 1,
1968)
'394 U S 759
175 NLRB No. 68
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the employer proposed to seek a writ of certiorari
before the United -States Supreme Court to the decision of
the First Circuit Court, of Appeals in which the District
Court injunction was set aside This exception was treated
as a request for review and denied on the ground that it
raised no substantial issues warranting review.
THE COMPLAINT CASE
On October 22, 1968, the Union filed the unfair labor
practice charge involved in the instant case, alleging that
the employer refused to bargain with the Union as the
exclusive collective-bargaining representative of
Respondent ' s employees in spite of the certification. On
November 8, 1968, the Regional Director, for Region I
issued a 'Complaint and Notice of Hearing alleging that
Respondent had committed unfair labor practices in
violation of Section 8(a)(1) and (5) and Section 2(6) and
(7) of the Act by refusing to bargain with the Union upon
request. On November 18 Respondent filed a Motion for
a Bill of Particulars and on the 19th an Answer to the
Complaint. The General Counsel filed an Opposition to
the Motion for a Bill of Particulars giving certain
additional particulars. On December 5 a Motion for
Summary Judgment dated December 3 was filed with the
Chief Trial Examiner by the Regional Director. Trial
Examiner Schneider on December 6 issued an Order to
Show Cause on the Motion for Summary Judgment to
which Respondent replied on January 2, 1969
RULING ON MOTION FOR SUMMARY JUDGMENT
In its Opposition to the Motion for Summary
Judgment the Respondent urges that the General
Counsel ' s Motion should be denied for a number of
reasons which may be summarized as follows-
1. The General Counsel omitted part of the
background of the case notably the grounds on which
the Regional Director denied the employer ' s Motion to
Withdraw Decision and Direction of Election and
Dismiss the Petition.
2. The complaint is premature since the Respondent
has filed a Petition for Writ of Certiorari to the United
States Court of Appeals for the First Circuit in its
injunction proceeding and further the Supreme Court
has agreed to review the Wyman -Gordon Decision
wherefore the Board should not proceed with this
matter until both actions by the Supreme Court have
been consummated.
3. The General Counsel should be estopped from its
motion by the action of the General Counsel in
granting certain assurances to Respondent that it is
entitled to a full hearing.
4. The Decision of the First Circuit Court of Appeals
in Wyman -Gordon constitutes newly-discovered
evidence.
5. The representation election was not conducted
according to rules promulgated in accordance with
Section 6 of the Act and is therefore invalid.
6. The appropriate unit should have included as
supervisors the assistant foreman.
7 Newly discovered evidence concerning the
supervisory status of one Scott and his actions on
behalf of the Union necessitate a full hearing.
Finally Respondent moved that the Trial Examiner
postpone the hearing in the instant case until the Supreme
Court acts on the petition for writ of certiorari and also
renders its decision in the Wyman -Gordon case.
With respect to the first , issue raised by Respondent
concerning the omission . of facts by .the General Counsel,
as I stated above, administrative notice has been taken of
the record in the representation proceeding which includes
the employer's Motion to Withdraw the Decision and
Direction of Election , the denial by the Regional Director,
the Request for Review and the Board ' s denial thereof.
Accordingly, the facts allegedly omitted by the General
Counsel are before the Trial Examiner and the Board.
With regard to Respondent ' s argument that the
complaint issued by the General Counsel is premature, to
the extent that Respondent ' s argument is predicated on
the litigation of the validity of the Excelsior rule in the
Wyman -Gordon case this matter has already been
considered by the Board in the representation proceeding
and will not be reconsidered herein . To the extent that the
argument is predicated on the filing of a petition for
certiorari in the injunction proceeding Respondent cites no
authority for the proposition that the Board 's processes
should be held up pending a determination by the
Supreme Court of the United States whether to grant
certiorari and presumably if certiorari is granted the
period of time necessary for the Supreme Court to issue
its decision . As the United States Court of Appeals for
the First Circuit stated in its decision in Magnesium
Casting Co., 401 F.2d 516 (C A. 1) "labor matters should
proceed promptly ." I am not convinced by Respondent's
argument especially in view of the fact that Respondent's
petition for a writ of certorari does not necessarily speak
to the validity of the election.
Regarding Respondent ' s argument that the General
Counsel should be estopped by alleged ' assurances by
General Counsel Ordman that Respondent is entitled to a
full and complete hearing , the alleged assurances • are
contained in a letter which recites the provisions of
Section 10(b) of the National Labor Relations Act that
any person charged with the commission of an unfair
labor practice must be served with a complaint stating the
charges and a notice of hearing . The notice of hearing sets
the time and place of the hearing and advises a
Respondent that • it is entitled to participate fully and
present whatever evidence i t has in support of its position
to a duly designated Trial Examiner.
The General Counsel's letter goes on to state "the Act
also provides that such proceedings ` shall so far -as
practicable be conducted in accordance with the rules of
evidence applicable in the district courts of the United
States under the rules of civil procedure for the district
courts of the United States....... The Board and the
courts have many times had occasion to consider whether
the language quoted above constitutes a requirement that
a hearing be conducted in cases such as this. A recent case
in which this issue was raised is El . Ge Potato Chip
Company, Inc., 173 NLRB No. 19, in which the Trial
Examiner quoted from the Board decision in Harry T.
Campbell Sons' Corporation, 164 NLRB No. 36, fn. 9
"where there are no unresolved issues requiring an
evidential hearing the motion of the General Counsel for
summary judgment on the pleadings is normally granted.
There is no absolute right to a hearing." The United
States Court of Appeals for the Fifth Circuit put it
succinctly in N L.R.B, v Air Control Window Products
of St. Petersburg, 335 F.2d 245, 249 (C.A. 5, 1964): "If
there is nothing to hear , then a hearing is a senseless and
useless formality."
The letter of the General Counsel does not constitute a
waiver but on the contrary it refers to language which the
Board and the courts have so many times construed that
MAGNESIUM CASTING CO. 399
the construction must be read together with language. I
reject the argument.
Respondent contends that the decision of the court in
the Wyman-Gordon case and the "imminent decision of
the United States Supreme Court in the same case"
constitutes newly discovered evidence. Respondent does
not indicate in what regard it considers that the decisions
of courts constitute evidence nor, other than asserting the
fact, do they argue so. However whether viewed as
evidence or legal authority the contention was raised
before the Board in the representation proceeding and
rejected The same must be said of Respondent's
contention that the representation election was not
conducted according to rules promulgated in accordance
with Section 6 of the Act and is invalid. Respondent's
reference therein is to the fact that the Wyman-Gordon
decision found the " B'xrelsior" rule invalid because it
was not published as a rule but laid down in a decision.
Equally the contention that the appropriate unit should
have excluded the assistant foreman was litigated before
the Board in the representation proceeding. In the absence
of newly discovered or previously unavailable evidence or
special circumstances it is established Board policy not to
permit litigation before a trial examiner in an unfair labor
practice case of issues which were or could have been
litigated in a prior representation proceeding.' Respondent
does not assert that any special circumstances exist other
than its characterization of the decisional authorities in
the Wyman-Gordon case as evidence and a contention
that there is newly discovered evidence concerning the
supervisory status of Ivory Scott, one of the assistant
foremen.
In its Reply Respondent submits that Ivory Scott
"admittedly withheld information in the representation
hearing concerning his full responsibilities and authority
as an assistant foreman for Respondent and that Scott
solicited authorization cards for the Union and
participated in its organizational drive." The only
construction that I can make of Respondent's Reply is
that it views Scott' s "admission" as newly discovered
evidence, however Respondent furnishes no support for its
contention other than offering to prove in a full hearing
that Scott had supervisory authority and did various acts
consistent thereto, each of which particulars was litigated
and considered in the hearing in the representation case.
To what extent such evidence is new is impossible to
determine other than Scott's admission which presumably
came after the hearing and of which we know nothing.
The evidence which Respondent offers to adduce is
evidence which Respondent must have had prior to the
representation case hearing. With regard to the fact that
Scott solicited authorization cards and participated in the
Union's organizational drive, inasmuch as he was found to
be an employee by the Board no relevance is given this
fact. New evidence on an irrelevant issue is certainly not
grounds for a hearing. The issue as to the inclusion of the
assistant supervisors was vigorously contested at the
representation hearing. No reason is given for failure to
offer evidence such as Respondent recites at that time, if
in fact it was not offered. There is no showing that the
testimony was not then available or that it could not have
been obtained and adduced with the exercise of reasonable
diligence . Under these circumstances reopening the
representation hearing at this stage of the proceeding is
'Howard Johnson Company. 164 NLRB No 121, Winfield
Manufacturing Co, Inc.. 173 NLRB No 103, El-Ge Potato Chip
Company. Inc , supra , and all the cases therein cited on this point
not warranted' I find the Respondent's contention
unsubstantiated
Finally Respondent moves to postpone the hearing until
the decision of the Supreme Court on its petition for writ
of certiorari. Inasmuch as I have found that no hearing is
necessitated herein the Motion must be denied.
There being no unresolved issues requiring an evidential
hearing the Motion of the General Counsel for Summary
Judgment is granted and I hereby make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION AND LABOR ORGANIZATION
It is admitted in the answer and therefore found (1)
that the Respondent is engaged in commerce within the
meaning of 2(6) and (7) of the Act and (2) that the Union
is a labor organization within the meaning of the Act
It. TIIE UNFAIR LABOR PRACTICES
A The Representation Proceeding
1. The unit
The following employees at the Respondent's Hyde
Park, Massachusetts plant constitute a unit appropriate
for collective bargaining within the meaning of Section
9(b) of the Act
All production and maintenance employees employed at
Respondent's Hyde Park, Massachusetts plant including
the records keeping department employees, shipping and
receiving employees and the truckdriver exclusive of
office clerical employees, professional employees,
guards and all supervisors as defined in Section 2(11) of
the Act.
2. The certification
On June 21, 1968, the majority of the employees in the
unit described above by a secret ballot election conducted
under the supervision of the Regional Director for the
First Region of the Board designated the Union as the
representative for the purpose of collective bargaining with
Respondent, and on October It, 1968, the Regional
Director for the First Region 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
On or about October 22, 1968, the Union requested
Respondent to bargain collectively in respect to rates of
pay, wages, hours of employment or other conditions of
employment with the Union as the exclusive representative
of all the employees of Respondent in the unit described
above.'
`Goldspot Dairy. Inc. 173 NLRB No 151. Cf Ideal Laundry and Dry
Cleaning Co., 330 F 2d 712 (C A. 10, 1964), therein cited
'Although Respondent in its answer denied that the Union requested
Respondent to bargain it has at no point in the proceeding controverted
this fact and its answer and particularly its Reply to the Order to Show
Cause make it ultimately clear that it has and continues to refuse to
bargain
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all times since on or about October 22, 1968, the
Respondent has refused to recognize and bargain
collectively with the Union as exclusive
collective-bargaining representative of all employees in
said unit
Accordingly I find that Respondent has refused to
bargain collectively with the Union as the exclusive
bargaining representative of the 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 (I) of the Act.
III THE EFFECT OF THE UNFAIR PRACTICES UPON
COMMERCE
The acts of the Respondent as set forth in section II
above occurring in connection with its operations as found
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
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 I shall recommend 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 i n a signed
agreement
In order to insure that the employees in the appropriate
unit will be accorded the services of their
collective-bargaining agent for the period provided by law
I shall recommend that the initial year of certification be
construed as beginning on the date the Respondent
commences to bargain in good faith with the Union as the
recognized bargaining representative in the appropriate
unit. See Pacific Intermountain Express Company. 173
NLRB No. 75, 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
CONCLUSIONS OF LAW
1. Magnesium Casting Co., 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 of
Magnesium Casting Co employed at its Hyde Park,
Massachusetts plant including the record keeping
department employees, shipping and receiving employees,
and the truckdriver exclusive of its office clerical
employees, professional employees, guards and all
supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. Since October 22, 1968, the above-named labor
organization has been certified as the exclusive
representative of all the 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 October 22 and at all times
since 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 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
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.
RECOMMENDED ORDER
Magnesium Casting Co., 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
United Steelworkers of America, AFL-CIO as the
exclusive bargaining representative of its employees in the
following appropriate units.
All production and maintenance employees employed at
Respondent's Hyde Park, Massachusetts plant including
the records keeping department employees, shipping and
receiving employees and the truckdriver exclusive of
office clerical employees, professional employees,
guards and all supervisors as defined in Section 2(11) of
the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to 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, 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 Hyde Park, Massachusetts, place of
business copies of the attached notice marked
"Appendix."' Copies of said notice, on forms provided by
the Regional Director for Region 1, after being duly
signed by Respondent's representatives shall be posted by
Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter
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 said Regional Director for Region 1, in
writing, within 20 days from receipt of this Recommended
Order, what steps the Respondent has taken to comply
therewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify the Regional Director for
Region I , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
MAGNESIUM CASTING CO. 401
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
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 representative of all employees
in the bargaining unit described below with respect to
wages, hours , 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 production and maintenance employees employed
at our Hyde Park , Massachusetts plant including the
records keeping department employees , shipping and
receiving employees and the truckdriver exclusive of
office clerical employees , professional employees,
guards and all supervisors as defined in Section 2(11)
of the Act.
Dated By
MAGNESIUM CASTING CO
(Employer)
(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, John F.
Kennedy Federal Building, 20th Floor, Cambridge & New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
617-223-3300