Polychem Corp.

National Labor Relations Board - Board Decisions

Dec 31, 2003

340 N.L.R.B. 167 (N.L.R.B. 2003)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Polychem Corporation, a Subsidiary of Conmat
Technologies, Inc., Polychem Corporation, a di­
vision of Ecesis LLC and United Food and
Commercial Workers Union Local 130T. Cases
4–CA–31082, 4–CA–31485, and 4–CA–31529
December 31, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent has withdrawn its
answer to the complaint. Upon a charge filed by the Un­
ion in Case 4–CA–31082 on February 22, 2002; a charge
and an amended charge filed by the Union in Case 4–
CA–31485 on July 29, 2002, and August 23, 2002, re­
spectively; and a charge filed by the Union in Case 4–
CA–31529 on August 20, 2002, the General Counsel
issued the consolidated complaint on November 26,
2002, against Polychem Corporation, a subsidiary of
ConMat Technologies, Inc. (Respondent ConMat) and its
successor, alter ego, and single employer, Polychem
Corporation, a division of Ecesis LLC (Respondent Ece­
sis), collectively called the Respondent, alleging that it
has violated Section 8(a)(1) and (5) of the Act. Respon­
dent Ecesis filed an answer to the consolidated complaint
on about January 10, 2003. On October 15, 2003, how-
ever, Respondent Ecesis withdrew its answer. Respon­
dent ConMat did not file an answer.
On October 23, 2003, the General Counsel filed a Mo­
tion for Summary Judgment with the Board. On October
27, 2003, the Board issued an order transferring the pro­
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
no response. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the consolidated complaint affirma-
1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer to the com­
plaint. Accordingly, we construe the General Counsel’s motion as a
motion for default judgment.
tively stated that unless an answer was filed within 14
days from service of the consolidated complaint, all the
allegations in the consolidated complaint would be con­
sidered admitted. On January 10, 2003, Respondent
Ecesis filed an answer to the complaint. However, by
letter dated October 15, 2003, to the Regional Director
for Region 4, Respondent Ecesis withdrew its answer.
The withdrawal of an answer has the same effect as a
failure to file an answer, i.e., the allegations in the con­
solidated complaint must be considered to be true.2
Accordingly, we grant the General Counsel’s Motion
for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, until it ceased operations in June
or July 2002, Respondent ConMat, a Pennsylvania cor­
poration with an office and place of business in Phoenix­
ville, Pennsylvania (the Facility), was engaged in the
manufacture and sale of plastic components in the water
treatment and material handling industries.
During a 12-month period ending March 1, 2002, Re­
spondent ConMat, in conducting its business operations
described above, purchased and received at the Facility
goods valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania.
At all material times, since in or about March 2002,
Respondent Ecesis, a Delaware limited liability company
with an office and place of business at the Facility, has
been engaged in the manufacture and sale of plastic
components in the water treatment and material handling
industries.
Since March 1, 2002, Respondent Ecesis, in conduct­
ing its business operations described above, purchased
and received at the Facility goods valued in exc ess of
$50,000 directly from points outside the Commonwealth
of Pennsylvania.
In March 2002, Respondent Ecesis purchased the
business of Respondent ConMat, and since then has con­
tinued to operate the business of Respondent ConMat in
basically unchanged form, and has employed, as a major­
ity of its employees, individuals who were previously
employees of Respondent ConMat.
In late June 2002, Respondent Ecesis offered contin­
ued employment at the Facility to employees in the unit
referred to below, without notifying the employees that
they would be employed under changed terms and condi­
tions.
2 See Maislin Transport, 274 NLRB 529 (1985).
340 NLRB No. 167
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Before engaging in the conduct described above, Re­
spondent Ecesis had notice of Respondent ConMat’s
liability in Board Case 4–CA–31082 because agents of
Respondent Ecesis, who are also agents of Respondent
ConMat, received the charge on about February 25,
2002.
About March 2002, Respondent Ecesis was established
as a disguised continuation of Respondent ConMat.
Since about March 2002, Respondent ConMat and Re­
spondent Ecesis have been affiliated business enterprises
operating at the same facility with substantially the same
ownership, management, supervision, personnel, suppli­
ers, customers, equipment and business purpose.
Based on the conduct and operations described above,
Respondent Ecesis has continued the employing entity
with notice of Respondent ConMat’s potential liability to
remedy its unfair labor practices and is: (1) a successor
of Respondent ConMat;3 and (2) a “perfectly clear” suc­
cessor of Respondent ConMat.4
Based on the conduct and operations described above,
Respondent ConMat and Respondent Ecesis are alter
egos and a single employer within the meaning of the
Act.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the United Food and Commercial
Workers Union Local 130T, the Union, is a labor organi­
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of Respondent ConMat within
the meaning of Section 2(11) of the Act and agents of
Respondent ConMat within the meaning of Section 2(13)
of the Act:
Paul A. DeJuliis - Chief Executive Officer

Richard Rex Schutte - President

William J. Crighton - Vice President

David Dalziel - Production Manager

At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of Respondent Ecesis within
the meaning of Section 2(11) of the Act and agents of
Respondent Ecesis within the meaning of Section 2(13)
of the Act:
Paul A. DeJuliis - Chief Executive Officer
Richard Rex Schutte - President
3 See Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
4 See NLRB v. Burns Security Services, 406 U.S. 272 (1972).
William J. Crighton - Comptroller

David Dalziel - Production Manager

The following employees of Respondent ConMat
(prior to about June or July 2002) and of Respondent
Ecesis (since March 2002) constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by Respondents at the Facility, including group leaders,
but excluding all company officials, main office force,
Employee Relations Department personnel, time study
persons, estimators, laboratory employees, security
guards, general supervisors, supervisors and all other
supervisory employees (but not group leaders) with au­
thority to hire, promote, discharge, discipline or other-
wise affect changes in the status of employees or effec­
tively recommend such action.
From 1995 until June or July 2002, the Union was the
exclusive collective-bargaining representative of the unit
employed by Respondent ConMat, and, during that pe­
riod of time, the Union had been recognized as such rep­
resentative by Respondent ConMat. This recognition
was embodied in successive collective-bargaining
agreements, the most recent of which, herein called the
collective-bargaining agreement, was effective by its
terms from September 25, 1999, to September 28, 2002.
Since at least 1995, based on the facts described above,
the Union has been the designated exclusive collective-
bargaining representative of the unit.
On about August 3, 2002, the Respondent, by Paul A.
DeJuliis, in statements to employees at the Facility,
threatened that Union President William Warner would
be physically assaulted if he came to the Facility.
Since about February 1, 2002, the Respondent has
failed to continue in effect all the terms and conditions of
the collective-bargaining agreement by failing to pay its
employees vacation pay in accordance with paragraphs
77 through 80 and 90 of the agreement.
Since about June 21, 2002, the Respondent has failed
to continue in effect all the terms and conditions of the
collective-bargaining agreement by failing to remit to the
Union, in accordance with paragraph 5 of the agreement,
dues that had been deducted from employee paychecks.
Since about July 1, 2002, the Respondent has refused
to continue in effect the terms and conditions of the col­
lective-bargaining agreement.
The subjects set forth above relate to wages, hours, and
terms and conditions of employment of the unit and are
mandatory subjects for the purposes of collective bar-
gaining.
POLYCHEM CORP. 3
The Respondent engaged in the conduct set forth
above, without prior notice to the Union and without
affording the Union an opportunity to bargain with the
Respondent regarding this conduct and without the Un­
ion’s consent.
In about the middle of August 2002, the Union, by its
President William Warner, in a telephone conversation
with David Dalziel, requested that the Respondent rec­
ognize the Union as the exclusive collective-bargaining
representative of the unit.
Since about the middle of August 2002, the Respon­
dent has failed and refused to recognize the Union as the
exclusive collective-bargaining representative of the unit.
CONCLUSIONS OF LAW
1. By threatening that a union representative would be
physically assaulted if he came to the Respondent’s facil­
ity, the Respondent has been interfering with, restraining
and coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act, in violation of Sec­
tion 8(a)(1) of the Act.
2. By failing and refusing to recognize the Union as
the exclusive collective-bargaining representative of the
unit, and by failing to continue in effect all of the terms
and conditions set forth in the September 25, 1999, to
September 28, 2002, collective-bargaining agreement,
the Respondent has been failing and refusing to bargain
collectively with the exclusive collective-bargaining
representative of its employees, and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer­
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, we shall
order the Respondent to recognize and, on request, bar-
gain with the Union as the exclusive collective-
bargaining representative of the unit employees and, if an
understanding is reached, embody the understanding in a
signed agreement. In addition, having found that the
Respondent violated Section 8(a)(5) and (1) by failing
since July 1, 2002, to continue in effect all of the terms
and conditions of the September 25, 1999, to September
28, 2002, collective-bargaining agreement, we shall order
the Respondent to abide by the terms of the agreement
until a new agreement or good faith impasse in negotia­
tions is reached. We shall also order the Respondent to
make whole its unit employees for any loss of earnings
and other benefits they have suffered as a result of the
Respondent’s failure to comply with the agreement since
July 1, 2002. In addition, we shall order the Respondent
to make all contractually-required benefit fund contribu­
tions, if any, that have not been made since that date,
including any additional amounts due the funds in accor­
dance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 6 (1979). The Respondent shall also reimburse
unit employees for any expenses ensuing from its failure
to make the required contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
661 F.2d 940 (9th Cir. 1981).5 Further, having found that
the Respondent also violated Section 8(a)(5) and (1) by
failing since February 1, 2002, to make vacation pay
payments to employees, as required by the collective-
bargaining agreement, we shall order the Respondent to
make unit employees whole by paying them the vacation
pay that has not been paid since that date. All payments
to employees shall be computed in the manner set forth
in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Finally, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to remit dues deducted
from employees’ paychecks to the Union, as required by
the collective-bargaining agreement, we shall order the
Respondent to forward such withheld dues to the Union,
with interest as prescribed in New Horizons for the Re­
tarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Polychem Corporation, a subsidiary of
ConMat Technologies, Inc. and its successor, alter ego,
and single employer, Polychem Corporation, a division
of Ecesis LLC, Phoenixville, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening that union representatives will be
physically assaulted if they come to the Respondent’s
facility.
(b) Failing and refusing to recognize the United Food
and Commercial Workers Union Local 130T, as the ex­
clusive collective-bargaining representative of the em­
ployees in the following unit:
All production and maintenance employees employed
by Respondents at the Facility, including group leaders,
5 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Respondent’s delin­
quent contributions during the period of the delinquency, the Respon­
dent will reimburse the employee, but the amount of such reimburse­
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
but excluding all company officials, main office force,
Employee Relations Department personnel, time study
persons, estimators, laboratory employees, security
guards, general supervisors, supervisors and all other
supervisory employees (but not group leaders) with au­
thority to hire, promote, discharge, discipline or other-
wise affect changes in the status of employees or effec­
tively recommend such action.
(c) Failing and refusing, since July 1, 2002, to continue
in effect all of the terms and conditions of the September
25, 1999, to September 28, 2002, collective-bargaining
agreement.
(d) Failing and refusing, since February 1, 2002, to
comply with paragraphs 77 through 80 and 90 of the col­
lective-bargaining agreement by failing to make vacation
pay payments.
(e) Failing and refusing, since about June 21, 2002, to
comply with paragraph 5 of the collective-bargaining
agreement by failing to transmit dues to the Union that
have been deducted from employees’ paychecks.
(f) In any like or related manner interfering with, re-
straining, 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) Recognize and, on request, bargain with the Union,
as the exclusive collective-bargaining representative of
the unit employees on terms and conditions of employ­
ment and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) Continue in effect all of the terms and conditions of
the September 25, 1999, to September 28, 2002, collec­
tive-bargaining agreement, until a new agreement or
good-faith impasse in negotiations is reached.
(c) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of its refusal since July 1, 2002, to continue in ef­
fect all of the terms and conditions of the collective-
bargaining agreement, with interest, as set forth in the
remedy section of this decision.
(d) Make all contractually required benefit fund con­
tributions, if any, that have not been made on behalf of
unit employees since July 1, 2002, and reimburse unit
employees for any expenses ensuing from its failure to
make the required payments, with interest, as set forth in
the remedy section of this decision.
(e) Pay the unit employees vacation pay that has not
been paid since February 1, 2002, in accordance with
paragraphs 77 through 80 and 90 of the collective-
bargaining agreement, with interest, as set forth in the
remedy section of this decision.
(f) Remit to the Union the dues that have been de­
ducted from employees’ paychecks since June 21, 2002,
in accordance with paragraph 5 of the collective-
bargaining agreement, with interest, as set forth in the
remedy section of this decision.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec­
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Phoenixville, Pennsylvania, copies of the
attached notice marked “Appendix.”6 Copies of the no­
tice, on forms provided by the Regional Director for Re­
gion 4, after being signed by the Respondent’s author­
ized representative, shall be posted by the Respondent
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 notices are not al­
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil­
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no­
tice to all current employees and former employees em­
ployed by the Respondent at any time since February 1,
2002.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. December 31, 2003
Wilma B. Liebman, Member
Peter C. Schaumber, Member
6 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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
POLYCHEM CORP. 5
Dennis P. Walsh, Member
(SEAL) 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 vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten that union representatives will
be physically assaulted if they come to our facility.
WE WILL NOT fail and refuse to recognize the United
Food and Commercial Workers Union Local 130T, as
the exclusive collective-bargaining representative of the
employees in the following unit:
All production and maintenance employees employed
by us at the Facility, including group leaders, but ex­
cluding all company officials, main office force, Em­
ployee Relations Department personnel, time study
persons, estimators, laboratory employees, security
guards, general supervisors, supervisors and all other
supervisory employees (but not group leaders) with au­
thority to hire, promote, discharge, discipline or other-
wise affect changes in the status of employees or effec­
tively recommend such action.
WE WILL NOT fail to continue in effect all of the terms
and conditions of the September 25, 1999, to September
28, 2002, collective-bargaining agreement with the Un­
ion.
WE WILL NOT unilaterally fail to pay unit employees
vacation pay in accordance with paragraphs 77 through
80 and 90 of the collective-bargaining agreement.
WE WILL NOT unilaterally fail to remit to the Union
dues that we have deducted from unit employees’ pay-
checks in accordance with paragraph 5 of the collective-
bargaining agreement.
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 recognize and, on request, bargain with the
Union, as the exclusive collective-bargaining representa­
tive of the unit employees on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement.
WE WILL continue in effect all of the terms and condi­
tions of the September 25, 1999, to September 28, 2002,
collective-bargaining agreement, until a new agreement
or good-faith impasse in negotiations is reached.
WE WILL make whole unit employees for any loss of
earnings and other benefits they may have suffered as a
result of our refusal to continue in effect all of the terms
and conditions of the collective-bargaining agreement
since July 1, 2002, with interest.
WE WILL make all contractually required benefit fund
contributions, if any, that have not been made on behalf
of unit employees since July 1, 2002, and reimburse unit
employees for any expenses ensuing from our failure to
make the required payments, with interest.
WE WILL pay unit employees vacation pay that has not
been paid since February 1, 2002, in accordance with
paragraphs 77 through 80 and 90 of the collective-
bargaining agreement, with interest.
WE WILL remit to the Union the dues that we have de­
ducted from unit employees’ paychecks since June 21,
2002, in accordance with paragraph 5 of the collective-
bargaining agreement, with interest.
POLYCHEM CORPORATION, A SUBSIDIARY OF
CONMAT TECHNOLOGIES, INC.
POLYCHEM CORPORATION, A DIVISION OF
ECESIS LLC