Moss Amber Mfg. Co.

National Labor Relations Board - Board Decisions

Dec 12, 1957

119 N.L.R.B. 732 (N.L.R.B. 1957)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Local 169 United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and Carpenters District Council of Tri-Court-
ties, Illinois, and their agents are not and have not been lawfully
entitled to force or require W. H. Condo, Brick Contractor or any
employer member of the Association to assign the work of erecting
or dismantling scaffolding to employees who are members of Local
169 rather than to employees assigned by W. H. Condo, Brick Con-
tractor, or any other employer member of the Association to perform
such work.9
2. Within then (10) days from the date of this Decision and De-
termination of Dispute, Local 169 and the District Council shall
notify, in writing, the Regional Director for the Fourteenth Region
whether or not they accept the Board's Determination of Dispute
and whether or not they will refrain from forcing or requiring W. H.
Condo, Brick Contractor, or any employer member of the Associa-
tion, by means proscribed by Section 8 (b) (4) (D) of the Act to
assign the work in dispute to members of Local 169 rather than to
other employees assigned to perform the work by their employers.
9 In making a broad determination covering other employers in the Association , we note
that Local 169 has an announced policy for its members to attempt to obtain scaffolding
work whenever such work is not being performed by carpenters and that Local 169 has in
the past sought to require other members of the Association to comply with that policy,
although such members have assigned scaffolding work to the Hod Carriers. Therefore, in
order to effectuate the policies of the Act we have broadened our determination so as to
protect all employer members of the Association from an unwarranted continuation of
this jurisdictional strife. See Arming-Johnson Company, 113 NLRB 1237.
Moss Amber Mfg. Co. and Los Angeles Joint Board, Amalga-
mated Clothing Workers of America , AFL-CIO. Case No.
21-CA-2657. December 12, 1957
DECISION AND ORDER
On May 21, 1957, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 [Chairman Leedom and Members 'Murdock and
Rodgers.
119 NLRB No. 104.
MOSS AMBER MFG. CO. 733
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Moss Amber
Mfg. Co., San Fernando, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with the Los Angeles Joint
Board, Amalgamated Clothing Workers of America, AFL-CIO, as
the exclusive representative of all spreaders and cutters employed by
the Respondent at its San Fernando, California, plant, excluding all
other production employees, shipping and office employees, mainte-
nance employees, bundle girls, the patternmaker-cutter, and all other
supervisors as defined in the Act.
(b) In any other manner interfering with the efforts of the Los
Angeles Joint Board, Amalgamated Clothing Workers of America,
AFL-CIO, to bargain collectively with it in behalf of the employees
in the appropriate unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with the Los Angeles Joint
Board, Amalgamated Clothing Workers of America, AFL-CIO, as
the exclusive bargaining representative of all the employees in the
appropriate unit with respect to wages, rates of pay, hours of employ-
ment, or other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement.
1 On the ground that the Respondent could not relitigate in this proceeding issues which
had been decided in the prior representation proceeding , 116 NLRB 1998 , the Trial Ex-
aminer at the hearing herein excluded , inter alia, certain evidence which the Respondent
asserts was newly discovered and therefore admissible. The Respondent further asserts
that such evidence, pertaining to alleged efforts by the Union to organize employees in ad-
dition to those included in the appropriate unit, would establish that such unit was inap-
propriate under Section 9 (c) (5) of the Act because it was based on the Union 's extent
of organization . Section 9 ( c) (5), however , precludes the Board only from giving con-
trolling weight to extent of organization, and the findings made in the representation case
show that the Board's unit determination in that case was affirmatively supported by clear
and decisive evidence wholly unrelated to extent of organization . In these circumstances,
the allegedly newly discovered evidence, even if admitted, would not affect the validity
of the Board 's unit determination in the representation proceeding or our agreement
therewith . See The Employers' Liability Assurance Corporation , Ltd., 117 NLRB 92;
Kwidset Locks , Inc., 116 NLRB 1648. Accordingly , the Trial Examiner 's ruling, even if as-
sumed to be erroneous , was not prejudicial.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant in San Fernando, California, copies of the
notice attached hereto, marked "Appendix." 2 Copies of said notice, to
be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and main-
tained by it for a period of sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees are
,customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent has taken to comply herewith.
2 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 "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of-Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively upon request with Los Angeles
Joint Board, Amalgamated Clothing Workers of America, AFL-
CIO, as the exclusive representative of all employees in the bar-
gaining unit described herein with respect to wages, rates of pay,
hours of employment, or other terms or conditions of employment,
and, if an understanding is reached, embody such understanding
in a signed agreelnent. The bargaining unit is:
All spreaders and cutters employed by the Company at its
San Fernando, California, plant, excluding all other produc-
tion employees, shipping and office employees, maintenance
employees, bundle girls, the patternmaker-cutter, and all
other supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of the
above-named Union to bargain collectively with us, or refuse to
bargain with said Union as the exclusive representative of the
employees in the bargaining unit set forth above.
Moss AMBER MFG. CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
MOSS AMBER MFG. CO. 735
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Act, was heard at Los
Angeles, California, on April 29, 1957, pursuant to due notice to all parties.' The
complaint, dated April 1, 1957, was issued by the General Counsel and duly served
on the Company. The complaint alleged in substance that the Company on or about
February 15, 1957, and thereafter, refused to bargain collectively with the Union,
which was the certified bargaining representative of the Company's employees in
an appropriate unit, and that by such conduct the Company had violated Sections
8 (a) (1) and (5) of the Act. The Company duly filed an answer denying the
commission of the alleged unfair labor practices, and asserting at a defense that
the bargaining unit defined by the Board in its Decision and Direction of Election
in a representation case between the parties (Moss-Amber Corporation, 116 NLRB
1998) was in fact inappropriate, and that the Board's finding as to unit was "illegal
and contrary to the express provisions of the Act."
At the hearing all parties were represented, were afforded a full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence bearing
on the issues, to argue the issues orally upon the record, and to file briefs and
proposed findings.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Upon the pleadings, and a stipulation made at the hearing as to certain facts of
the Company's business, I find that the Company is a California corporation engaged
in San Fernando and Los Angeles. California, in the manufacture of men's sport
shirts. The Company annually ships directly to points located outside the State of
California products valued in excess of $50,000.
Upon all the evidence, including that produced in the prior representation case
between the parties, supra, of which I hereby take judicial notice, I find that the
Company is engaged in commerce within the meaning of Section 2 (6) and (7) of
the Act.
H. THE LABOR ORGANIZATION INVOLVED
Upon all the evidence, I find that Los Angeles Joint Board, Amalgamated Clothing
Workers of America, AFL-CIO, is a labor organization admitting to membership
employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Representation Proceeding
The sole issue in the instant proceeding is whether the Company has refused to
bargain collectively with the Union and has thereby violated Section 8 (a) (1) and
(5) of the Act.
As will be seen below, the Company asserts as a defense to its refusal to bargain,
the contention that the unit as found by the Board in its Decision and Direction of
Election in Moss-Amber Corporation, 116 NLRB 1998, is not appropriate, and that,
in consequence, the Company was under no duty to bargain with the Union. A
short review of the representation proceeding will demonstrate that the contentions
of the Company on the unit issue have been heard and determined by the Board in
that proceeding.
On September 5, 1956, the Union filed a petition requesting certification of repre-
sentatives for a unit of the Company's employees at its San Fernando plant described
as, "all cutters," excluding specifically all other production employees, shipping
and office employees, maintenance employees, and supervisory employees, as defined
in the Act. Pursuant to notice, a representation proceeding was conducted before
a hearing officer at Los Angeles, California, on October 1, 1956. Full opportunity
was afforded all parties to present evidence. At the hearing, the Company assumed
the position that: (1) The proposed unit was inappropriate because it did not include
employees working for the Company at its Los Angeles plant which, according
',In this Report. Moss Amber Mfg. Co. is referred to as the Company ; Los Angeles Joint
Board, Amalgamated Clothing Workers of America, AFL-CIO, as the Union; the General
Counsel of the Board and his representative at the hearing, as the General Counsel; the
National Labor Relations Board, as the Board ; and the Labor Management Relations Act
of 1947, as amended, as the Act.
736 DECISIONS OF• NATIONAL LABOR RELATIONS BOARD
to the testimony of the Company 's witnesses, was integrated with the San Fernando
plant; and (2) the unit of employees at the San Fernando plant should include
bundle girls , the patternmaker-cutter, and others.
On December 31, 1956 ; the Board issued its Decision and Direction of Election
in the representation case finding that the following employees of the Company at
its plant at San Fernando , California, constituted an appropriate unit within the
meaning of Section 9 (b) of the Act : all spreaders and cutters , excluding all other
production employees , shipping and office employees , maintenance employees , bundle
girls, the patternmaker -cutter, and all other supervisors as defined in the Act.
On January 30, 1957, pursuant to the Direction of Election , an election by
secret ballot was conducted under the supervision of the Regional Director for
the Twenty -first Region . Of the 3 voters eligible to vote in the election, 2 voted
in favor of the Union . On February 11, 1957, the Regional Director issued to the
Union a certification of representatives covering the unit.
B. The refusal to bargain
After the Union had received its certification , on February 12, 1957, Jerome
Posner, its manager, by letter notified the Company that it had received its certi-
fication and that it would like to arrange a meeting with a representative of the
Company for the purpose of engaging in collective bargaining.
On February 15, 1957, Mrs . Edwin Selvin replied to Posner 's letter of February 12,
1957. Mrs. Selvin 's letter reads as follows: 2
DEAR SIR: Your certified mail, special delivery letter , addressed to Mr.
Edward Moss of Moss -Amber Corporation , has been forwarded to me for reply.
As you are aware , we made formal objection to the Board 's ruling as to the
appropriate bargaining unit 'of employees . We did not participate in the
election, nor allow it to be held on company premises , nor did we post the
notices of such election . Nor will we now recognize the certification issued
as a result of the election held outside the company 's plant.
This action is taken pursuant to Section 10 (f) of the National Labor
Relations Act, which section provides the means by which our objections may
be reviewed by a United States Circuit Court or by the United States Court of
Appeals. - When and if a "final Order of the Board" issues , after hearing of
our refusal to bargain , it is our intention to invoke this right of a Court review
of our objections.
In the meantime , you may consider this letter refusal to meet and discuss
any terms of a contract.
Yours truly
On February 20, 1957, the Union filed the instant charge against the Company.
At the hearing , the Company assumed the position that it sought a review of the
Board 's decision on the question of appropriate unit by the Board and the courts,
and that its refusal to bargain was the procedure required to raise that question.
Counsel for the Company also sought to introduce into evidence certain exhibits,
and proffered certain testimony , bearing on certain phases of the question of
appropriate unit. The General Counsel objected to the receipt in evidence of these
exhibits , and the testimony of these witnesses proposed by the Company, on the
ground that the exhibits and testimony all related to issues in the representation
proceeding , which had been litigated , and that the Company was trying to use the
present proceeding to relitigate matters which were res adjudicata . The Trial
Examiner sustained the objection of the General Counsel, on the ground that it has
long been the policy of the Board not to permit a respondent to relitigate, in a
subsequent unfair labor practice proceeding involving charges of a refusal' to
bargain with a certified representative, the issues decided ' in a prior representation
proceeding.3
In consequence of the rejection of these exhibits and the preclusion of this testi-
mony, no further defense was interposed by the Company.4
General Counsel 's Exhibit No. 4.
3N. L. ii. B. v. IVorcester Woolen Dli.lls Corporation , 170 F . 2d 13 ( C. A. 1) cert. denied
33'6 U. S. 903; Pittsburgh Plate Glass Co. v. N . L. It. B., 313`U. S 146 ; Allis-Chalmers
dfanutactarinr Co. v. N . L. It. B., 162 F. 2d 435 (C. A. 7) ; N. L. R. B . v. West Kentucky
Coal Company, 152 F. 2d 198 ( C. A. 6) cert. denied 328 U . S. 866 ; N. L. R. B . v. Anwelt
Shoe Mfg. Co., 93 F. 2d 367 ( C. A. 1).
* The rejected exhibits were marked , for identification , Respondent ' s Exhibits Nos. 1-6.
They may be found: in the file of rejected exhibits . In that connection see transcript of
testimony pages 28-31. See also , testimony of Griselda ' Kuhlman, pages 25, and Edward
Moss, page 40 , as to testimony ruled inadmissible. .
DALMO VICTOR COMPANY DIVISION OF TEXTRON, INC . 737
Therefore , upon the evidence as a whole, I find that on or about February 15,
1957, and at all times thereafter , the Company has refused , and is refusing, to
bargain collectively with the Union as the exclusive representative of its employees
in an appropriate unit, and has thereby interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above, occurring in con-
nection with the operations of the Company described in section .1, 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 Company has engaged in certain unfair labor practices,
it will be recommended that the Company cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having also found that the Union represented, and now represents, a majority
of the employees in the appropriate unit, and that the Company has refused to
bargain collectively with it, the Trial Examiner will recommend that the Company
upon request bargain collectively with the Union.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Los Angeles Joint Board, Amalgamated Clothing Workers of America,
AFL-CIO, . is a labor organization within the meaning of Section 2 ( 5) of the Act.
2. All spreaders and cutters employed by the Company at its San Fernando
plant, excluding all other production employees , shipping and office employees,
maintenance employees , bundle girls , the patternmaker -cutter and all other super-
visors as defined in the Act, form a unit appropriate for the purposes of collective
bargaining.
3. The above-named Union was on February 11, 1956, and at all times thereafter
has been and is, the exclusive representative of all the employees in the aforesaid
unit for the purposes of collective bargaining within the meaning of Section 9 (a)
of the Act.
4.. By refusing on February 15, 1957, and at all times thereafter to bargain collec-
tively with the Union as the exclusive representative of all its employees in the
aforesaid appropriate unit, the Company has engaged in , and is engaging in, unfair
labor practices within the meaning of Section 8 (a) (5) of the Act , as amended.
5. By the aforesaid refusal to bargain , the Company has interfered with, re-
strained , and coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act, and has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act, as amended.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Dalmo Victor Company Division of Textron, Inc. and E. A. Math=
ews, Petitioner and International Union of Guards and Watch-
men (Ind .). Case No. 2O-RD-166. December M,1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the. National
Labor Relations Act, a hearing was held before Robert Al. Yeates,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.;
119 NLRB No. 100.
476321-58-vol. 119-48