Sillcocks/Miller Co.

National Labor Relations Board - Board Decisions

Mar 6, 1992

306 N.L.R.B. 607 (N.L.R.B. 1992)

607
306 NLRB No. 116
SILLCOCKS/MILLER CO.
Sillcocks/Miller Company and Graphic Commu-
nications International Union, Local 612M.
Case 22–CA–17552
March 6, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On a charge filed by the Union on February 28,
1991, the General Counsel of the National Labor Rela-
tions Board issued a complaint on April 12, 1991,
against Sillcocks/Miller Company, the Respondent, al-
leging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by failing to recog-
nize the Union as the exclusive collective-bargaining
representative of unit employee Luz Saldana, by failing
to apply the collective-bargaining agreement with the
Union to Saldana, and by unilaterally disregarding the
seniority and job-posting provisions of the collective-
bargaining agreement with Local 612M. Thereafter, the
Respondent filed a timely answer admitting in part and
denying in part the allegations in the consolidated
complaint and asserting, as affirmative defenses, that it
is adhering to an earlier arbitration award and that
there is a bona fide question concerning representation.
On August 20, 1991, the Respondent, the General
Counsel, and the Union filed a stipulation of facts and
joint motion to transfer these proceedings directly to
the Board. The parties agree that the charge, com-
plaint, answer, and stipulation, with attached exhibits,
shall constitute the entire record in this case and that
no oral testimony is necessary or desired by any of the
parties. The parties further agree that the stipulation
has been entered into by them for the purpose of the
above-entitled matters only. The parties waive a hear-
ing before an administrative law judge, the making of
findings of fact and conclusions of law by an adminis-
trative law judge, and the issuance of a decision by an
administrative law judge, and agree to submit this case
directly to the Board for findings of fact, conclusions
of law, and the issuance of a Decision and Order.
On October 2, 1991, the Deputy Executive Sec-
retary, by direction of the Board, issued an order grant-
ing the motion, approving the stipulation, and transfer-
ring the proceeding to the Board. Thereafter, the Re-
spondent, the General Counsel, and the Union filed
briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Sillcocks/Miller Company, a cor-
poration with an office and place of business in Berke-
ley Heights, New Jersey, is engaged in the business of
printing on plastics. During the 12 months preceding
issuance of the complaint, the Respondent, in the
course and conduct of its business, sold and shipped
from its Berkeley Heights facility products, goods, and
services valued in excess of $50,000 directly to points
outside the State of New Jersey.
Accordingly, in agreement with the stipulation of the
parties, we find that the Respondent is an employer in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. Facts
Sillcocks Plastics International is the parent com-
pany of the Respondent and Daylux, Inc. Since about
1956, the Union has been the designated exclusive col-
lective-bargaining representative of the employees at
the Respondent’s Berkeley Heights facility in the fol-
lowing appropriate unit:
All employees employed in the fabrication depart-
ment, lamination department, tool room, mainte-
nance department, material handling department
and shipping and receiving.
Such recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of
which is effective by its terms for the period of De-
cember 1, 1989, to November 30, 1992.
On October 10, 1989, the Board certified Graphic
Communications International Union, Local 119B-43B
(Local 119) as the collective-bargaining representative
of a unit of employees at the Daylux facility in Union,
New Jersey.
In October 1990, Sillcocks Plastics International no-
tified Local 119 that the Daylux facility would be clos-
ing. The closure occurred on January 1, 1991, and a
limited portion of the production machinery from the
Daylux facility was moved to the Respondent’s facility
in Berkeley Heights. Subsequently, Local 119 filed a
grievance alleging that Sillcocks Plastics Inter-
national’s decision to consolidate bargaining unit work
from the Daylux facility with the work of the Re-
spondent’s facility violated the recognition and work
preservation clauses of the contract between Daylux
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Neither the Respondent nor the Union was a party to the arbitra-
tion.
2 We find it unnecessary to pass on the General Counsel’s conten-
tion that the arbitrator’s decision is clearly repugnant to the purposes
and policies of the Act.
and Local 119. Local 119 and Daylux took the matter
to arbitration.1
On February 19, 1991, the arbitrator issued his deci-
sion, ordering that the Respondent dovetail Daylux em-
ployees with its employees hired after October 10,
1989, the date of Local 119’s certification. The arbi-
trator further ordered that the Daylux employees retain
their status as members of Local 119.
On March 1, 1991, the Respondent laid off employ-
ees David Obando and Damaris Ruiz from its fabrica-
tion department. On March 4, 1991, in compliance
with the arbitrator’s award, the Respondent placed
former Daylux employee Luz Saldana in its lamination
department as a loader. Saldana worked alongside the
Respondent’s employees doing the same work under
the same supervision as those employees represented
by the Union. Further, in compliance with the award,
the Respondent recognized Local 119 as Saldana’s bar-
gaining representative, and applied the terms of its col-
lective-bargaining agreement with Local 119 to
Saldana.
Obando and Ruiz filed grievances, alleging that the
Respondent had violated the job-posting provision of
the contract between the Respondent and the Union by
failing to post the job in the lamination department to
allow other employees to apply. The grievances further
allege that the Respondent violated the seniority provi-
sion of the contract with the Union concerning bump-
ing and recall.
B. Contentions of the Parties
The General Counsel and the Union contend that the
Respondent violated Section 8(a)(5) and (1) by failing
to recognize the Union as the exclusive bargaining rep-
resentative of Saldana, by failing to apply the collec-
tive-bargaining agreement to him, and by unilaterally
disregarding the job-posting and seniority provisions of
the contract. The General Counsel and the Union fur-
ther contend that deferral to the arbitrator’s award is
inappropriate where, as here, all the parties with an im-
portant interest were not represented at the arbitration
proceeding.
The Respondent admits that it failed to honor the
recognition, job-posting, and seniority provisions of its
contract with the Union with regard to the placement
of Saldana, but contends that it should not be penal-
ized for compliance with the arbitrator’s award. The
Respondent further contends that since both the Union
and Local 119 claim representation rights, there should
be no finding of a violation of the Act until the issue
of representation has been resolved.
C. Discussion and Conclusions
We find no merit in the Respondent’s contentions.
The Respondent in essence contends that the Board
should defer to the arbitrator’s award. Deferral, how-
ever, is clearly inappropriate in light of the fact that
neither the Respondent nor the Union were parties to
the arbitration nor did the Union agree to be bound.
Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955);
Olin Corp., 268 NLRB 573, 573–574 (1984).2 Further,
contrary to the Respondent’s contention, we find that
no question concerning representation of the former
Daylux employees has arisen. Saldana was the only
Daylux employee transferred into the bargaining unit,
and he does bargaining unit work under the same su-
pervision as other bargaining unit employees. Saldana,
therefore, as a member of the bargaining unit, is rep-
resented by the Union and is covered by its collective-
bargaining agreement with the Respondent.
Accordingly, in view of the Respondent’s admission
of the complaint allegations, we find that the Respond-
ent, by failing to recognize the Union as the exclusive
bargaining representative of unit employee Saldana, by
failing to apply the collective-bargaining agreement to
Saldana, and by unilaterally disregarding the job-post-
ing and seniority provisions of the collective-bar-
gaining agreement, has violated Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By failing to recognize the Union as the exclusive
bargaining representative of unit employee Luz
Saldana, by failing to apply the collective-bargaining
agreement to Saldana, and by unilaterally disregarding
the job-posting and seniority provisions of the collec-
tive-bargaining agreement, the Respondent has com-
mitted unfair labor practices affecting commerce with-
in 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 engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Sillcocks/Miller Company, Berkeley
Heights, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
609SILLCOCKS/MILLER CO.
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.’’
(a) Refusing to bargain in good faith with the Union
by failing to recognize the Union as the exclusive bar-
gaining representative of unit employee Luz Saldana,
by failing to apply the collective-bargaining agreement
to Saldana, and by unilaterally disregarding the job-
posting and seniority provisions of its collective-bar-
gaining agreement.
(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 polices of the Act.
(a) Recognize the Union as the exclusive bargaining
representative of unit employee Luz Saldana and apply
the collective-bargaining agreement to him.
(b) Comply with the job-posting and seniority provi-
sions of the collective-bargaining agreement.
(c) Post at its facility, copies of the attached notice
marked ‘‘Appendix.’’3 Copies of this notice, on forms
provided by the Regional Director for Region 22, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous 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.
(d) 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.
WE WILL NOT refuse to bargain in good faith with
Graphic Communications International Union, Local
612M, by failing to recognize the Union as the exclu-
sive bargaining representative of unit employee Luz
Saldana, by failing to apply the collective-bargaining
agreement to Saldana, and by unilaterally disregarding
the job-posting and seniority provisions of the collec-
tive-bargaining agreement for the following appropriate
unit:
All employees employed in our fabrication depart-
ment, lamination department, tool room, mainte-
nance department, material handling department
and shipping and receiving.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL recognize the Union as the exclusive bar-
gaining representative of Saldana and apply the collec-
tive-bargaining agreement to him.
WE WILL comply with the job-posting and seniority
provisions of the collective-bargaining agreement.
SILLCOCKS/MILLER COMPANY