U.S. Mags

National Labor Relations Board - Board Decisions

Mar 19, 1973

202 N.L.R.B. 458 (N.L.R.B. 1973)

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Art Hale , Inc., d /b/a U.S. Mags and International
Union, United Automobile , Aerospace & Agricul-
tural Implement Workers of America , UAW. Case
21-CA-11323
March 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on October 18, 1972, by
International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America,
UAW, herein called the Union, and duly served on
Art Hale, Inc., d/b/a U.S. Mags, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 21, issued a complaint and notice of hearing
on October 20, 1972, against Respondent, alleging
that 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. Copies of the charge, complaint, and
notice of hearing before an Administrative 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 September 29,
1972, following a Board election in Case
21-RC-12647 the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate; 1
and that, commencing on or about October 12, 1972,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On November 15, 1972,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint, and submitting affirmative defen-
ses.
On November 22, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached, request-
ing that the Board take official notice of the
documents in Case 21-RC-12647, and submitting, in
effect, that the Respondent, in its answer, is
attempting to relitigate issues which have been
previously litigated and decided in the underlying
' Official notice is taken of the record in the representation proceeding,
Case 21-RC-12647, 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
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
representation proceeding, and that there are no
factual issues which warrant a hearing. He, therefore,
requests the Board to grant the Motion for Summary
Judgment. Subsequently, on November 30, 1972, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. On December 13, 1972, the
Respondent filed a Motion for Summary Judgment
of Dismissal of Complaint, accompanied by a brief
in support thereof and in opposition to the General
Counsel's Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 Motion for Summary Judgment of Dismissal
of Complaint, accompanied by a brief in support
thereof and in opposition to the General Counsel's
Motion for Summary Judgment, as in the affirmative
defenses contained in its answer to the complaint, the
Respondent attacks the Regional Director's Report
with respect to his findings and conclusions on the
Respondent's objections to conduct 'affecting the
results of the election, which were adopted by the
Board in its Decision and Certification of Represent-
ative, issued on September 29, 1972. The Respondent
admits that it has declined to recognize the Board's
Decision and Certification of Representative and
further admits that it "has taken this action because
it is the only available means of judicial review of the
Board's Decision overruling the Company's Objec-
tions to Conduct Affecting Election." The record of
the prior representation proceeding, which is before
us, shows that the Board in its Decision and
Certification of Representative issued on September
29, 1972, had considered the entire record in this case
with respect to the issues under review, including the
Regional Director's Report, in which he recommend-
ed that the Respondent's objections to the election be
overruled, and the Respondent's exceptions thereto,
and adopted the Regional Director's findings and
recommendations. The Board further found that the
Respondent's exceptions did not raise material and
substantial issues of fact warranting that a hearing be
held. Accordingly, as the Board overruled the
Respondent's objections to the election in their
entirety and as the tally of ballots showed that the
Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269
F Supp 573 (D C Va , 1967), Follett Corp, 164 NLRB 378, enfd. 397 F 2d
91 (C A 7, 1968), Sec 9(d) of the NLRA
202 NLRB No. 55
U.S. MAGS
Union had received a majority of the valid ballots
cast, the Union was certified. Thus, the Respondent,
by attacking the legal effect or validity of the Board's
Decision and Certification of Representative is
attempting to relitigate the same issues which it
raised and litigated in the prior representation
proceeding, Case 21-RC-12647.
Upon the foregoing, and having reviewed the
record in Case 21-RC-12647, as well as the record in
the instant unfair labor practice proceeding, we find
no grounds to support the Respondent's contention
that an evidentiary hearing is required in this unfair
labor practice proceeding. Although the Respondent
alludes to "newly discovered or previously unavaila-
ble evidence" it could adduce if accorded the
opportunity for an evidentiary hearing, it has not
shown that the evidence is in fact newly discovered
or was previously unavailable to it during the course
of the representation proceeding.
It is established Board policy, in the absence of
newly discovered or previously unavailable evidence
or special circumstances, not to permit litigation in
an unfair labor practice case of issues which were or
could have been litigated in the 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
has not offered to adduce at a hearing any evidence
which is in fact newly discovered or was previously
unavailable, nor are there any special circumstances
herein which would require the Board to reexamine
the decision made in the representation proceeding.
As all material issues have been previously decided
by the Board, we find that there are no matters
requiring an evidentiary hearing before an Adminis-
trative Law Judge. Accordingly, the General Coun-
sel's Motion for Summary Judgment is granted, and
the Respondent's Motion for Summary Judgment of
Dismissal of Complaint is denied.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation, is engaged
in business at Long Beach, California, in the
manufacture and sale of wheels. In the course and
conduct of its business operations the Respondent
annually sells and ships goods valued in excess of
$50,000 directly to customers located outside the
State of California.
459
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
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America,
UAW, 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 production and maintenance employees,
including employees in the foundry, machine
shop, shipping and receiving employees, packag-
ing, boxing, polishing, and truckdrivers; exclud-
ing office employees, professional employees,
guards and supervisors as defined in the National
Labor Relations Act.
2. The certification
On June 1, 1972, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted pursuant to a Stipulation for Certification
Upon Consent Election, under the supervision of the
Regional Director for Region 21, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on
September 29, 1972, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 2, 1972, and at
all times thereafter, 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. Com-
mencing on or about October 12, 1972, and continu-
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)
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since October 12, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent 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 the 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 , 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 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. Art Hale, Inc., d/b/a U.S. Mags, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aero-
space & Agricultural Implement Workers of Ameri-
ca, UAW, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees,
including employees in the foundry, machine shop,
shipping and receiving employees, packaging, box-
ing, polishing, and truckdrivers; excluding office
employees, professional employees, guards and
supervisors as defined in the National Labor Rela-
tions Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since September 29, 1972, 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 October 12, 1972, and
at all times thereafter, 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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, Art
Hale, Inc., d/b/a U.S. Mags, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with International Union,
United Automobile, Aerospace & Agricultural Im-
plement Workers of America, UAW, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees,
including employees in the foundry, machine
shop, shipping and receiving employees, packag-
ing, boxing, polishing, and truckdrivers; exclud-
U.S. MAGS 461
ing office employees, professional employees,
guards and supervisors as defined in the National
Labor Relations 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, 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Long Beach, California, location
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 21, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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."
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 bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Union, United Automobile, Aerospace
& Agricultural Implement Workers of America,
UAW, 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 in a signed agreement. The bargain-
ing unit is:
All production and maintenance employ-
ees, including employees in the foundry,
machine shop, shipping and receiving em-
ployees, packaging, boxing, polishing, and
truckdrivers; excluding office employees,
professional employees, guards and supervi-
sors as defined in the National Labor
Relations Act.
ART HALE, INC., D/B/A
U.S. MAGS
(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, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.