Cavert Wire Co.

National Labor Relations Board - Board Decisions

Apr 17, 1995

316 N.L.R.B. 1237 (N.L.R.B. 1995)

1237
316 NLRB No. 188
CAVERT WIRE CO.
1 The Respondent’s answer denies ‘‘as stated’’ the allegation that
the Respondent purchased the stock of Cavert Wire Company and
continued the business of Cavert Wire Company in unchanged form
under the name of Cavert Acquisition Co., d/b/a Cavert Wire Com-
pany, asserting that the Respondent purchased the assets rather than
the stock of Cavert Wire Company. The General Counsel’s motion
does not dispute the Respondent’s assertion that the Respondent pur-
chased the assets rather than the stock, but contends that the Re-
spondent by its answer has nevertheless effectively admitted that it
has purchased and continued the business of Cavert Wire Company
in unchanged form. The Respondent has not disputed this contention
in response to the Notice to Show Cause. We agree with the General
Counsel and find that the Respondent has effectively admitted that
it has purchased and continued the business of Cavert Wire Com-
pany in unchanged form. See Sec. 102.20 of the Board’s Rules.
Cavert Acquisition Co., d/b/a Cavert Wire Com-
pany and United Mine Workers of America,
AFL–CIO. Case 6–CA–26733
April 17, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon a charge and amended charges filed on Sep-
tember 27, October 14 and 31, 1994, and February 15,
1995, the General Counsel of the National Labor Rela-
tions Board issued an amended complaint on February
15, 1995, against Cavert Acquisition Co., d/b/a Cavert
Wire Company, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National Labor
Relations Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 6–RC–
10988. (Official notice is taken of the ‘‘record’’ in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed an answer admitting in part and denying in
part the allegations in the complaint, and asserting af-
firmative defenses.
On March 16, 1995, the General Counsel filed a
Motion for Summary Judgment with the Board. The
same day, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer, the Respondent admits its refusal to
bargain, but attacks the validity of the certification on
the basis of the Board’s disposition of certain chal-
lenged ballots in the representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New York
corporation with an office and place of business on
Route 119, North Union Township, Pennsylvania, has
been engaged in the manufacture and nonretail sale of
steel wire.
On about August 23, 1994, the Respondent pur-
chased the assets of Cavert Wire Company and contin-
ued the business of Cavert Wire Company in un-
changed form under the name of Cavert Acquisition
Co., d/b/a Cavert Wire Company.1
During the 12-month period ending August 31,
1994, the Respondent, in conducting its business oper-
ations, purchased and received at its Route 119, North
Union Township, Pennsylvania facility goods valued in
excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania. We find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act
and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held December 21 and 22,
1993, the Union was certified on August 4, 1994, as
the collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time production and
maintenance employees, including shift leaders,
the billing clerk, the order clerk, and the operating
supplies clerk, employed by the Respondent at its
Route 119, North Union Township, Pennsylvania,
facility; excluding office clerical employees and
guards, professional employees and supervisors as
defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Although the Respondent’s answer denies the complaint’s allega-
tion that the Union telephonically requested recognition by telephone
about August 31 and September 7, 1994, it admits that the Union
made a timely request for recognition. Although the Respondent’s
answer also ‘‘admits that prior to February 14, 1994, it failed to rec-
ognize the union,’’ it appears that the Respondent intended to refer
to February 14, 1995, because the complaint does not allege a re-
fusal to bargain ‘‘prior to February 14, 1994.’’ Further, a copy of
its September 27, 1994 letter to the Union declining to bargain is
attached to the General Counsel’s motion, and the Respondent has
not disputed the authenticity of that letter in response to the Notice
to Show Cause. Although the Respondent’s answer further avers that
the Respondent has entered into a conditional recognitional agree-
ment with the Union, the Respondent acknowleges that this agree-
ment is conditioned on the outcome of this proceeding. In addition,
in the final paragraph of its answer, the Respondent ‘‘requests that
Summary Judgment proceeedings be initiated as quickly as possible
to permit the underlying representation issue to be addressed by the
United States Court of Appeals.’’ In these circumstances, we find
that the Respondent is refusing to bargain with the Union in order
to test the Union’s certification as alleged in the complaint and mo-
tion. See Terrace Gardens Plaza, 315 NLRB 749 (1994).
3 If 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.’’
B. Refusal to Bargain
Since about September 27, 1994, the Respondent
has refused the Union’s timely request to bargain.2 We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after September 27, 1994, to
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar- Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Cavert Acquisition Co., d/b/a Cavert Wire
Company, North Union Township, Pennsylvania, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Workers
of America, AFL–CIO as the exclusive bargaining rep-
resentative of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time production and
maintenance employees, including shift leaders,
the billing clerk, the order clerk, and the operating
supplies clerk, employed by the Respondent at its
Route 119, North Union Township, Pennsylvania,
facility; excluding office clerical employees and
guards, professional employees and supervisors as
defined in the Act.
(b) Post at its facility in North Union Township,
Pennsylvania, copies of the attached notice marked
‘‘Appendix.’’3 Copies of the notice, on forms provided
by the Regional Director for Region 6, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
1239CAVERT WIRE CO.
WE WILL NOT refuse to bargain with the United
Mine Workers of America, AFL–CIO as the exclusive
representative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time production and
maintenance employees, including shift leaders,
the billing clerk, the order clerk, and the operating
supplies clerk, employed by us at our Route 119,
North Union Township, Pennsylvania, facility; ex-
cluding office clerical employees and guards, pro-
fessional employees and supervisors as defined in
the Act.
CAVERT ACQUISITION CO., D/B/A
CAVERT WIRE COMPANY