Sil-Base Co.

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