East Coast Equipment Corp.

National Labor Relations Board - Board Decisions

May 20, 1977

229 N.L.R.B. 825 (N.L.R.B. 1977)

EAST COAST EQUIPMENT CORP.
East Coast Equipment Corporation and Steco Sales,
Inc. and Aluminum Workers International Union,
AFL-CIO. Case 4-CA-7811
May 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 16, 1976, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. Counsel for the General
Counsel filed a brief in answer to Respondent's
exceptions.
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.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,l and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The complaint alleges that East Coast Equipment
and Steco Sales are, and at all material times have
been, affiliated businesses which constitute a single
integrated business enterprise. The complaint further
alleges that on or about December 3, 1974, Steco
Sales purchased the assets of East Coast thereby
becoming, alternatively, a successor to and an alter
ego of East Coast.
At the hearing Respondent moved to dismiss the
complaint as to East Coast on the ground that there
had been no showing that East Coast is in interstate
commerce. Counsel for the General Counsel opposed
the motion and noted the refusal by East Coast and
Steco Sales to honor subpenas concerning their
business activities. The Administrative Law Judge
held the motion in abeyance.
In his decision the Administrative Law Judge took
official notice of a prior Board decision 2 involving
these parties, wherein the Board found that before
December 1974, and thus at the time of the unlawful
conduct found therein, East Coast and Steco Sales
were a single employer and that after December 1974
Steco Sales was "at least the successor to East
I Respondent's request for oral argument is hereby denied because the
record, the exceptions, and the briefs adequately present the issues and the
positions of the parties.
2 221 NLRB 618(1976).
3 See Clark Concrete Construction Corporation, 116 NLRB 321 (1956);
International Longshoremen d Warehousemen's Union, and Local No. 13
(Catalina Island Sightseeing Lines), 124 NLRB 813 (1959).
4 Saul Spector, president of both East Coast and Steco Sales, testified
that, after the sale of East Coast's machinery and equipment, Steco Sales
229 NLRB No. 130
Coast." Accordingly, in that case, the Board found
that both companies were engaged in interstate
commerce and that the complaint correctly named
East Coast and Steco Sales as a single respondent.
Based on the decision in the prior case, on the
Respondent's refusal in the instant case to honor a
subpoena duces tecum relating to its business activi-
ties, and on his conclusion that Respondent is not
entitled to relitigate here matters which were or could
have been litigated in the prior case, the Administra-
tive Law Judge found that East Coast and Steco
Sales constitute a single integrated business enter-
prise, that since December 3, 1974, Steco Sales has
been at least the successor of East Coast, and that the
complaint properly names the two companies as a
single respondent. Accordingly, the Administrative
Law Judge denied Respondent's motion.
In the absence of any probative evidence in this
record that East Coast Equipment is an employer
engaged in commerce within the meaning of the Act,
we believe that the complaint must be dismissed as to
that company.3 In this regard we note that in its
answer Respondent admitted the sale of East Coast's
assets to Steco Sales in December 1974 but denied
that East Coast and Steco Sales constitute a single
integrated business enterprise, that within the 12-
month period preceding the complaint East Coast
purchased and received goods valued in excess of
$50,000 directly from points outside Pennsylvania, or
that East Coast is an employer engaged in commerce.
Thereafter, at the hearing, Phyllus Zitkus, the office
manager for Steco Sales and the former office
manager for East Coast Equipment, testified that
East Coast has transacted no business since the sale
of its assets to Steco Sales in December 1974.4
Neither counsel for the General Counsel nor the
Charging Party offered any testimony or other
evidence concerning East Coast's business activity
since the sale of its assets in 1974. Hence, Respon-
dent's denial that East Coast is engaged in commerce
and the testimony that East Coast has transacted no
business since December 1974 stand unrebutted on
this record.
Nor is there a ground for finding legal jurisdiction
over East Coast in this proceeding because of the
Board's prior decision involving these parties. In the
prior case the Board merely adopted an Administra-
tive Law Judge's finding that the complaint there
continued to manufacture trailers at the same location, using the same
employees and paying the same wages as had East Coast. This record clearly
establishes that Steco Sales is the successor to East Coast Equipment. See
Spitzer Akron, Inc., 195 NLRB 114 (1972), enfd. 470 F.2d 1000 (C.A. 6,
1972). Moreover, although Respondent in its answer denied that Steco Sales
is the successor to East Coast, thereafter in its brief in support of exceptions
it conceded that Steco Sales has been the successor to East Coast since the
sale.
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
properly named East Coast and Steco Sales because
prior to December 3, 1974, and hence at the time of
the commission of the unfair labor practices in issue
there, East Coast and Steco Sales were a single
employer.
Although it is well settled that the Board may take
official notice of its own proceedings and rely
thereon,5 it is clear that East Coast's status after
December 3, 1974, was not crucial to the resolution
of any issue in the prior case and was not directly
passed upon by the Board. 6 In any event, the finding
of a single-employer status before the sale of East
Coast's assets in December 1974, and thus long
before the commission of the unfair labor practices
alleged in the instant complaint, could not be
determinative of East Coast's status for purposes of
this proceeding. In our view, if counsel for the
General Counsel intended to show that after Decem-
ber 3, 1974, and at the time of the unlawful conduct
alleged here, there was more than a successor
relationship between East Coast and Steco Sales, and
that such a relationship provided a basis for naming
East Coast in the complaint and for finding legal
jurisdiction over East Coast, it was incumbent upon
him to present evidence on the issue. In the absence
of any such evidence we shall dismiss the complaint
as to East Coast Equipment Corporation.7
CONCLUSIONS OF LAW
1. Steco Sales, Inc., but not East Coast Equip-
ment Corporation, is found to be engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act. Accordingly, the complaint will be
dismissed as to East Coast Equipment Corporation.
2. Aluminum Workers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees constitute a unit
appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Respondent at its Pottsville,
Pennsylvania, location, excluding all office cleri-
cal employees, professional employees, guards,
foremen and supervisors as defined in the Act.
4. At all times material herein the Union has been
and is now the exclusive bargaining representative of
the employees in the aforesaid appropriate unit for
5 See Plant City Welding and Tank Company, 123 NLRB 1146 (1959).
6 Just as clearly, the statement by the Administrative Law Judge in the
Frior decision that after the December 1974 sale Steco Sales became "at
east the successor to East Coast" does not purport to be a finding as to East
Coast's status after that date.
Our concurring colleague fails to distinguish between alter ego
employers on the one hand and a mere predecessor-employer, successor-
employer relation on the other.
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing since December 5, 1975, to bargain
collectively with the Union as the exclusive bargain-
ing representative of all the employees in the
appropriate unit with respect to wages, hours, and
other terms and conditions of employment, the
Respondent, Steco Sales, Inc., has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(aX5) and (1) of the Act.
6. 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
The Respondent, Steco Sales, Inc., Pottsville,
Pennsylvania, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Aluminum
Workers International Union, AFL-CIO, as the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All production and maintenance employees em-
ployed by the Respondent at its Pottsville,
Pennsylvania location, excluding all office clerical
employees, professional employees, guards, fore-
men and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Alumi-
num Workers International Union, AFL-CIO, as the
exclusive bargaining representative of the employees
in the appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
(b) Post at its Pottsville, Pennsylvania, location
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly
signed by an authorized representative of Respon-
dent, shall be posted by it immediately upon receipt
thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
8 In the event the Order is enforced by a Judgment of the 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."
826
EAST COAST EQUIPMENT CORP.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint against
the Respondent, East Coast Equipment Corporation,
be, and it hereby is, dismissed.
MEMBER PENELLO, concurring:
I would dismiss the 8(a)(5) charge against East
Coast, but for a different reason than that of my
colleagues. The majority opinion addresses the issue
of whether East Coast is an employer engaged in
commerce, finds that there is no evidence that East
Coast is engaged in commerce, and concludes that
the Board has no legal jurisdiction over it. I,
however, believe that the keystone issue in this case
arises prior to the determination of whether East
Coast is engaged in commerce; namely, whether East
Coast was in fact an employer of the employees in
question when the refusal to bargain occurred.
The evidence clearly supports a finding that when
East Coast sold its assets to Steco Sales, the latter
became the successor to or alter ego of East Coast.9
Thus, East Coast was the predecessor of Steco
Sales.10 East Coast, moreover, assumed that status
over a year prior to the commission of the unfair
labor practice. In these circumstances, I am unwilling
to ascribe vicarious liability upon a predecessor for
the acts of a successor or alter ego employer, since
the predecessor (East Coast) was not an employer of
the employees in question when the violation
occurred.'"
9 The majority reaches part of this conclusion at fn. 4 of their opinion,
wherein they state Steco Sales is the successor to East Coast. Moreover, the
facts recited in fn. 4 indicate that Steco Sales might not be merely the
successor to but the alter ego of East Coast. See Marquis Printing
Corporation and Mutual Lithograph Company, 213 NLRB 394, 401403
(1974); Associated Transport of Texas, Inc. 194 NLRB 62. 63 (1971); J.
Howard Jenks, d/b/a Glendora Plumbing, 172 NLRB 1700, 1702 (1968);
Butler Chemical Company, 116 NLRB 1041, 1049 50 (1956).
lo I use the term "predecessor" to include organizations which chrono-
logically precede both successor and alter ego employers. Thus, I find no
need to distinguish between these types of employers in this case.
11 I would, however, not hesitate to hold a predecessor employer liable
for the acts of its alter ego if the arrangement creating an alter ego
relationship was designed as a subterfuge to evade the purposes of the Act.
Nor would I hesitate, in order to effectuate the policies of the Act, to hold a
predecessor liable if such arrangement leaves any aggrieved employees
without a financially viable respondent in a case where the Board orders a
monetary award in order to remedy an unfair labor practice. In this case.
however, the General Counsel has not asserted, nor does the evidence
indicate, that either situation is present.
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 with
Aluminum Workers International Union, AFL-
CIO, as the exclusive collective-bargaining repre-
sentative of all our employees in the following
unit:
All production and maintenance employees
employed by the Respondent at its Potts-
ville, Pennsylvania, location, excluding all
office clerical employees, professional em-
ployees, guards, foremen and supervisors as
defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the National Labor Relations Act, as amended.
WE WILL bargain collectively with the Union
upon request as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit.
STECO SALES, INC.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was heard at Pottsville, Pennsylvania, on April 28,
1976, and is based on a charge filed on January 19, 1976,
by Aluminum Workers International Union, AFL-CIO,
hereinafter referred to as the Union, upon a complaint
issued on March 24, 1976, by the General Counsel for the
National Labor Relations Board, hereinafter referred to as
the Board, against East Coast Equipment Corporation and
Steco Sales, Inc., hereinafter referred to as the Respondent,
alleging violations of Section 8(aX)(1) and (5) and Section
2(6) and (7) of the National Labor Relations Act, as
amended (61 Stat. 136), and upon an answer timely filed by
the Respondent denying the commission of any unfair
labor practices.
At the hearing all parties were represented by counsel
and were afforded full opportunity to examine and cross-
examine witnesses, to introduce evidence pertinent to the
issues, and to engage in oral argument. Subsequent to the
close of hearing, timely briefs were submitted by counsel
for the General Counsel and for the Respondent.
Upon the entire record in this proceeding, and from my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial, reliable evidence
"considered along with the consistency and inherent
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
probability of testimony" (Universal Camera Corporation v.
N.L.R.B., 340 U.S. 474, 496 (1951)), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Notwithstanding the Respondent's assertion to the
contrary, for reasons hereinafter set forth, I find that East
Coast Equipment Corporation and Steco Sales, Inc., are
affiliated businesses incorporated in Pennsylvania and
jointly engaged in the manufacture and sale of trailers at
Lower Mill Creek Manor, just outside Pottsville, that said
Companies constitute a single-integrated business enter-
prise, that since December 3, 1974, Steco has been at least
the successor to East Coast, and that the complaint
correctly names them as a single respondent.
During the 12-month period immediately preceding the
issuance of the complaint, the Respondent purchased and
received goods valued in excess of $50,000 directly from
points outside Pennsylvania. Accordingly, I find that the
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The parties admit, and I find, that Aluminum Workers
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
On November 6, 1974, in Case 4-RC-11267, a hearing
was held on the Union's petition for an election among the
production and maintenance employees of Respondent
East Coast Equipment Corporation. On December 3, 1974,
Steco Sales, Inc., purchased all of the machinery and
equipment of East Coast. On December 10, 1974, an
election was held. The ballots of 14 employees who had
been laid off on October 25 were challenged, and the
Regional Director ordered a hearing on the challenges
affecting the results of the election and on certain
objections filed by the Union.
Pursuant to the filing of an unfair labor practice charge,
the Regional Director on March 17, 1975, issued a
complaint in Case 4-CA-7104 against East Coast Equip-
ment Corporation and Steco Sales, Inc., alleging the
unlawful discharge of 18 individuals, 14 of whom were
subject to challenges in the representation proceeding. The
two cases were joined for hearing, and said consolidated
hearing was held on March 31 and April 1 and 2, 1975.
The Board's Decision, Order, and Direction issued on
November 13, 1975,1 wherein the Board found the 18
employees to have been discriminatorily laid off and
directed the Regional Director to open and count the 14
challenged ballots. Subsequently, the Regional Director
I East Coast Equipment Corporation and Steco Sales, Inc., 221 NLRB 618
(1975). I hereby take judicial notice of the Board's decision in this matter.
z Saul Spector testified herein that he is president of both East Coast and
Steco Sales, Inc.
3 The information requested consisted of (I) the name, rate of pay,
issued a revised tally of ballots, which revealed that the
Union had received a majority of votes cast, and, on
November 25, 1975, issued to the Union a Certification of
Representative.
By letter dated December 1, 1975, to Saul Spector,2
Robert Christian, International representative of the
Union, requested certain employee information and data
concerning existing employee benefits "in order to properly
prepare for the forthcoming negotiations...."3 Having
received no reply, the Union again wrote to Spector on
December 15, 1975, alluding to the November 25 certifica-
tion as bargaining representative and reiterating its request
for the specific information "in order to prepare our
contract proposals."
Again, the Union received no reply. It did, however, in
the meantime, by letter of December 5, 1975, with a copy
to the Board, receive notification from the Respondent's
attorney that the Respondent did not intend to comply
with the Board's Decision and Order and would file a
cross-petition to any Board proceedings seeking enforce-
ment.
Upon learning of the recently filed unfair labor practice
charges, the Respondent's attorney, on February 4, 1976,
wrote to the Board, alluding to the Respondent's attitude
as expressed in its December 5 letter to the Union and
stating that "for technical purposes, I herewith inform you
that my client is refusing to bargain with a view to testing
the certification of the Union."
On March 25, 1976, John Black, regional director for the
Union, wrote to the Respondent as follows:
Mr. Saul Spector
East Coast Equipment Corporation and Steco Sales,
Inc.
P.O. Box 453
Pottsville, Penna. 17901
Dear Mr. Spector:
Having received no answers from you on our previous
requests for information necessary for us to negotiate a
contract, I am now of the opinion that you do not
intend to recognize our Union as the bargaining agent
at your Plant.
In order to be sure of my assumption, I am, herewith,
asking you if you are accepting our Union as the
Bargaining Agent in accordance with National Labor
Relations certification.
Please reply by return mail.
Very truly yours,
JOHN C. BLACK, Director
Region #4
As of the date of the instant hearing, other than the
Company's communication of December 5, the Union had
classification, and original hiring date of each employee covered under the
unit, and (2) a list of all fringe benefits, including insurance, bonuses,
pensions, holidays, currently paid vacations, medical and surgical programs,
and weekly sick benefits.
828
received no response from the Respondent to its earlier
demands relative to its anticipated contract negotiations.
Analysis and Conclusions
Pleading the above facts, which are not controverted, the
General Counsel alleges that, at all times since December
5, 1975, the Respondent has refused to bargain collectively
with the Union in violation of Section 8(aX)(5) of the Act.
The Respondent, admitting in its answer its refusal to
bargain, asserts as a defense to the charges that (a) East
Coast is a defunct organization and is not engaged in
commerce, that East Coast and Steco Sales do not
constitute a single, integrated enterprise, and that Steco
Sales is not a successor to or alter ego of East Coast, (b) the
certification of the Union was not proper because of the
Board's alleged erroneous 8(aX3) finding currently being
challenged by the Respondent in the Third Circuit, (c) the
bargaining unit in which the election was held was not an
appropriate unit, and (d) no request to bargain was made
by the Union prior to the issuance of complaint herein.
I find Respondent's position as to each untenable. As to
(a), above, the Respondent unsuccessfully raised the same
issue in the earlier consolidated proceeding involving the
parties. In that case the evidence revealed the following
(221 NLRB 618, 622 (1975)):
East Coast Equipment Corporation and Steco Sales,
Inc., are each Pennsylvania corporations and, up to
December 3, 1974, together carried on a trailer
manufacturing and selling business at Lower Mill
Creek Manor, Pennsylvania. At that time Steco bought
the entire assets of East Coast and continued uninter-
rupted the same manufacturing and selling business as
before, using the same equipment and the same
complement of employees and supervisors. Both corpo-
rations were, and still are, owned in their entirety by
Saul Spector, who is and always has been president and
direct manager of each and always used a single office
for both of his businesses. Spector runs the distribution
part of the business in part by traveling about the
country as a salesman. As to the production part, all
centered in Pennsylvania, he had, before December of
1974, a supervisor or two directly in charge of the
production process, but they always took their orders
from him, It was always he who made all business
decisions, including level of hiring, purchase of materi-
als, and any other management decisions needed for
the day-to-day functioning of the plant. He took
everything into the name of his Steco Sales Corporation
as a paper device to clear unpaid bills of East Coast and
from December on has had less supervision in produc-
tion and spent more of his time in direct contact with
the production process.
Noting therein that both Companies, named together as
the Respondent, disputed the allegation that together they
constituted a single employer or that Steco Sales was a
successor to East Coast, Administrative Law Judge
4 Pittsburgh Plate Glass Company v. N.LR.B., 313 U.S. 146, 162 (1941).
s The Respondent's motion made at the hearing and held in abeyance to
dismiss the complaint as to East Coast Equipment Corporation is hereby
denied.
6 189 NLRB 899, 900(1971).
EAST COAST EQUIPMENT CORP.
Thomas A. Ricci found, subsequently affirmed by the
Board, that "the two corporations were, before December
1974, a single employer, that Steco since then has been at
least the successor to East Coast, that the complaint
correctly names them a single Respondent here, and that
they are engaged in commerce within the meaning of the
Act."
In the instant proceeding, notwithstanding its assertion
that East Coast has been defunct and has done no business
in over a year, the Respondent refused to honor a subpoena
duces lecum requesting information pertinent to this overall
issue. That East Coast continues to exist as an entity,
however, is established by the testimony of Saul Spector
who testified that he was, as of the date of the instant
hearing, president of East Coast, as well as president of
Steco Sales.
As it is well established that in the absence of newly
discovered or previously unavailable evidence or special
circumstances, a respondent in a proceeding alleging a
violation of Section 8(a)(5) of the Act is not entitled to
relitigate issues which were or could have been litigated in
a prior proceeding, 4 I find, as alleged herein and found by
the Board in the earlier consolidated proceeding, that East
Coast and Steco Sales constitute a single-integrated
business enterprise, that since December 3, 1974, Steco
Sales has been at least the successor to East Coast, and that
the complaint herein properly names them a single
Respondent.5
Turning to the Respondent's defense that the certifica-
tion issued to the Union is not proper, the Respondent
points to the fact that the matter concerning the propriety
of the Board's finding that the 14 employees, whose votes
were challenged and determinative of the outcome of the
election in the representation case, were discriminatorily
placed on a permanently laid-off basis, is currently before
the Third Circuit Court of Appeals on application for
enforcement. Thus, the Respondent argues that, should the
court overrule the Board's 8(a)(3) findings in the unfair
labor practice case, the ballots of the 14 employees whose
votes were determinative in the election would not be
counted, resulting in the Union losing the election, and,
accordingly, an improper issuance of the certification.
This argument has been considered, and found without
merit, by the Board. In Porta-Kamp Manufacturing Compa-
ny, Inc.,6 the Board held that:
[P]endency in court of a petition to review the
determination by the Board of the status of discharged
employees whose challenged ballots were determinative
of the representation election is no defense to a refusal
to bargain with the Union as the exclusive bargaining
representative certified by the Board, "for it is well
established that the pendency of collateral litigation
does not suspend the duty to bargain under Section
8(aX5)." 6
s Keller Alumirsnum Chairs Southern, Inc., 173 NLRB 947, citing
in fn. 14. Board and court decisions, including Old King Cole Inc. v.
N.LR.B., 260 F.2d 530.
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, I precluded the Respondent from
challenging the appropriateness of the unit.7 In the earlier
consolidated proceeding, wherein it was found that, at the
time of the election herein, Steco Sales was at least the
successor to East Coast and that East Coast and Steco
Sales were properly named as a single respondent, the
Board directed that, in the event that the revised tally of
ballots indicates that the Union received a majority of the
ballots cast, the Regional Director shall issue a certification
of representative to the Union. Thus, under these circum-
stances, to give credence to the Respondent's position, of
necessity, one would have to credit the Board with
directing the issuance of a certification of representative in
an inappropriate unit. The absurdity of this is obvious. I
find without merit the Respondent's position that the unit
in which the election was held is not appropriate.
Finally, we reach the point on which the Respondent
appears to rely most heavily in its brief, but which,
although litigated, was not specifically raised by the
Respondent until the General Counsel had rested its case,
- that, as the Union's only requests of the Respondent,
December 5 and 15, 1975, were requests for information
and do not constitute a clear an unequivocal demand to
bargain, the General Counsel has failed to prove a refusal
to bargain by the Respondent.
The summary of the pertinent facts in this regard reveals
that, following the issuance of certification, the Union on
December 1 requested employee information and other
data "in order to properly prepare for the forthcoming
negotiations." By letter of December 5, the Respondent
notified the Union that it did not intend to comply with the
Board's Decision and Order. On December 15, the Union
again, as certified bargaining representative, reiterated its
request for specific information "in order to prepare our
contract proposals." 9 And finally, on March 25, 1976, the
Union wrote the Respondent, first alluding to the fact that
it had received no response from the Company as to its
previous request for information "necessary for us to
negotiate a contract," and then asking the Respondent
whether it were accepting the Union as the bargaining
representative pursuant to the Board certification.
In Rod-Ric Corporation,0 faced with a fact situation
paralleling that before us, the Board held such a request to
constitute a bargaining demand. The pertinent facts therein
reveal that, immediately following the issuance of a
certification, the union, preparatory to the preparation of a
bargaining proposal, wrote the respondent requesting
certain employee information, and that the respondent
responded by stating that it did not agree with the Regional
Director's certification and planned to litigate the manner
further and was declining to furnish the information.
Before the Board, the respondent therein argued that the
Union's letter did not constitute a demand to bargain,
The unit alleged in the complaint as appropriate consists of:
All production and maintenance employees of Respondent, at its
Pottsville, Pennsylvania location; but excluding all office clerical
employees, professional employees, guards, foremen and supervisors as
defined in the Act.
s See Pittsburgh Plate Glass Co. v. N.L.R.B., supra, as to the relitigation of
issues which were or could have been litigated in a prior proceeding.
since it was only a request for information preliminary to
bargaining, and that the respondent's reply was not a
refusal, since it was only a declination to furnish bargain-
ing information. Faced squarely with the issue, and noting
that the respondent conceded that it would have refused to
bargain if requested because the election was invalid, the
Board held the respondent's position to be without merit
and found a refusal to bargain.
In the case at bar, upon receiving the Union's similar
initial request for information "preliminary to bargaining,"
the Respondent, by replying to the Union that it did not
intend to comply with the Board's Order pursuant to which
the certification had issued, was in effect notifying the
Union that it did not intend to furnish the requested
information and that it was refusing to recognize and
bargain with the Union. Under the rationale of Rod-Ric
Corporation, I find the Union's request herein to constitute
a demand to bargain and the Respondent's letter of
December 5, coupled with a complete absence of commu-
nication thereafter, to constitute a refusal on the part of the
Respondent to bargain with the Union.1I
I find, as alleged, that at all times since December 5,
1975, the Respondent has refused to bargain collectively
with the Union as the exclusive representative of the
Respondent's employees, in violation of Section 8(aX5) of
the Act.
Upon the basis of the above findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. East Coast Equipment Corporation & Steco Sales,
Inc., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Aluminum Workers International Union, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. The following constitutes a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees employed
by the Respondent at its Pottsville, Pennsylvania,
location, excluding all office clerical employees, profes-
sional employees, guards, foremen and supervisors as
defined in the Act.
4. At all times material herein the Union has been and
is now the exclusive bargaining representative of the
employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing since December 5, 1975, to bargain
collectively with the Union as the exclusive bargaining
9 While the Respondent's subsequent letter of February 4, 1976, to the
Board is not responsive as to the Union, it does reflect the Respondent's
determination that it "is refusing to bargain with a view to testing the
certification of the Union."
'o 171 NLRB922 (1968).
" I further note that paragraphs 8 and 9 of Respondent's answer admit
that the Union on or about March 25, 1976, requested that the Respondent
bargain collectively, and that the Respondent has not done so.
830
EAST COAST EQUIPMENT CORP.
representative of all the employees in the appropriate unit
with respect to wages, hours, and other terms and
conditions of employment, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent 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 commerce.
THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]
831