Sil-Base Co.

National Labor Relations Board - Board Decisions

Mar 31, 1989

293 N.L.R.B. 578 (N.L.R.B. 1989)

578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sil-Base Company and Aluminum , Brick and Glass
Workers International Union , AFL-CIO-CLC
Case 6-CA-21324
March 31, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On October 31, 1988,1 the General Counsel of
the National Labor Relations Board issued a com-
plaint alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by refusing the Union's request to bar-
gain following the Union's certification in Case 6-
RC-9899 (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 Respondent filed its answer admitting in part
and denying in part the allegations in the coin
plaint
On November 25 the General Counsel filed a
Motion for Summary Judgment On November 28
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted The Respondent
filed a response
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
In its answer, the Respondent attacks the validity
of the certification on the basis of its objections to
the election in the representation proceeding 2
All representation issues raised by the Respond
ent were or could have been litigated in the prior
representation proceeding The Respondent does
not offer to adduce at a hearing any newly discov-
ered and previously unavailable evidence, nor does
it allege any special circumstances that would re-
i All dates are 1988 unless otherwise indicated
2 In its answer the Respondent denies par 10 of the complaint that at
leges the Respondent since October 5 1988 has refused to bargain with
the Union The General Counsel however has submitted a copy of a
September 30 1988 letter sent by the Union to the Respondent in which
the Union requested the Respondent to meet and negotiate with it The
General Counsel also submitted the Respondent s reply dated October 5
1988 stating inter alia that the Respondent would resist any Board
Order to engage in bargaining with the Union The Respondent does not
dispute the authenticity of these letters Further it is clear from its posi
tion set forth in its October 5 letter and its response to the Notice to
Show Cause that the Respondent contends that it is under no legal obli
gation to bargain with the Union solely on the grounds that the certifica
tion was invalid Accordingly we find that the Respondents denial raises
no material issue of fact warranting a hearing
quire the Board to reexamine the decision made in
the representation proceeding 3
We therefore find that the Respondent has not
raised any representation issue that is properly liti-
gable 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 Judgment
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a Pennsylvania corporation, en-
gages in the manufacture and nonretail sale of re-
fractory products at its facility in Versailles Bor-
ough, Pennsylvania, where it annually purchases
goods and services valued over $50,000 directly
from outside the State We find that the Respond-
ent is an employer engaged in commerce within
the meaning of Section 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 September 14, 1987,
the Union was certified on September 21, 1988, as
the collective-bargaining representative of the em-
ployees in the following appropriate unit
All full time and regular part-time production
and maintenance employees employed by the
Employer at its Juniper, Street, Versailles Bor-
ough,4 Pennsylvania facility, excluding all
2 On February 16 1989 the Respondent filed a motion to dismiss the
complaint claiming that the person whose signature appears on the
charge had not in fact signed the charge The Respondent argued that
the charge was defective under the Boards Rules and Regulations Sec
102 11 and consequently that the Board had not properly asserted its
jurisdiction On February 21 1989 the General Counsel filed a motion to
amend the complaint and to amend the Motion for Summary Judgment
On March 13 the Respondent filed a response to the General Counsels
motion to amend The General Counsels motion to amend the complaint
and Motion for Summary Judgment are based on an amended charge de
scribing the alleged unfair labor practice and signed by the Charging
Party s agent whose name appears on the original charge The amended
charge corrects whatever deficiency might have existed in the original
charge and presents no 10(b) problems We reject the Respondents impli
cation that the General Counsel should be required to dismiss and then
reissue the identical complaint after the filing of the amended charge Ac
cordingly we grant the General Counsels motion to amend the Motion
for Summary Judgment and deny the Respondents motion to dismiss the
complaint
4 The certification refers to a McKeesport Pennsylvania facility How
ever the Respondent in its answer admitted the certification but correct
ed the location of the facility to reflect that the correct location is Ver
sailles Borough Pennsylvania
293 NLRB No 61
SIL BASE CO
office clerical employees, salespersons and
guards, professional employees and supervisors
as defined in the Act
The Union continues to be the exclusive represen-
tativeder Section 9(a) of the Act
B Refusal to Bargain
Since September 30, 1988, the Union has request-
ed the Respondent to bargain and, since October 5,
1988, the Respondent has refused We find that this
refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act
CONCLUSIONS OF LAW
By refusing on and after October 5, 1988, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appro-
priate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act
REMEDY
Having found that the Respondent has violated
Section 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 understanding in a signed agreement
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent 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 , Sil Base Company , Versailles Bor-
ough , Pennsylvania , its officers , agents, successors,
and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with Aluminum, Brick
and Glass Workers International Union, AFL-
CIO-CLC as the exclusive bargaining representa
tive of the employees in the bargaining unit
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
579
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) On request, bargain with the Union as the ex
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understaning is reached,
embody the understanding in a signed agreement
All full-time and regular part-time production
and maintenance employees employed by the
Employer at its Juniper Street, Versailles Bor
ough, Pennsylvania facility, excluding all
office clerical employees, salespersons and
guards, professional employees and supervisors
as defined in the Act
(b) Post at its facility in Versailles Borough,
Pennsylvania, copies of the attached notice marked
"Appendix "5 Copies of the notice, on forms pro-
vided by the Regional Director for Region 6, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Re
spondent to ensure that the notices 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 Respondent has taken to comply
5 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 Nation
al 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Aluminum,
Brick and Glass Workers International Union,
AFL-CIO-CLC 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 exer-
cise 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
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on terms and conditions of employment for our ough, Pennsylvania facility, excluding all
employees in the bargaining unit office clerical employees, salespersons and
All full time and regular part time production guards , professional employees and supervisors
and maintenance employees employed by the
as defined in the Act
Employer at its Juniper Street , Versailles Bor- SIL BASE COMPANY