UPF Corp.

National Labor Relations Board - Board Decisions

Dec 11, 1992

309 N.L.R.B. 832 (N.L.R.B. 1992)

832
309 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We adopt the judge’s findings that the Respondent violated Sec.
8(a)(1), (2), and (3) of the Act to which there were no exceptions.
2 The General Counsel excepted to the failure of the judge’s rec-
ommended Order and notice to fully describe and remedy the unfair
labor practices set forth in the Conclusions of Law. We find merit
in the General Counsel’s exceptions and shall modify the Order and
notice accordingly.
UPF Corporation and Glass, Molders, Pottery, Plas-
tics and Allied Workers International Union,
AFL–CIO, CLC and the International Union of
Petroleum and Industrial Workers, AFL–CIO,
Party in Interest. Case 31–CA–18132
December 11, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 13, 1992, Administrative Law Judge Fred-
erick C. Herzog issued the attached decision. The Gen-
eral Counsel filed exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to af-
firm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order2 as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, UPF
Corporation, Bakersfield, California, its officers,
agents, successors, and assigns, shall take the action
sets forth in the Order as modified.
1. Substitute the following for paragraphs 1(a), (b),
and (c) and reletter paragraph 1(d) as 1(c).
‘‘(a) Assisting or contributing support to the Inter-
national Union of Petroleum and Industrial Workers,
AFL–CIO (IUPIW), or any other labor organization, or
by recognizing IUPIW as the exclusive representative
of any of its employees for the purpose of collective
bargaining, unless and until IUPIW has been duly cer-
tified by the Board as the exclusive representative of
the employees in the appropriate unit.
‘‘(b) Giving effect to, or in any manner enforcing,
the collective-bargaining agreement with the IUPIW
executed by Respondent on or about October 31, 1989,
unless and until that labor organization has been cer-
tified by the Board as the exclusive bargaining rep-
resentative of its employees; provided, however, that
nothing shall require Respondent to vary or abandon
any wage, hour, seniority, or other substantive feature
of its relations with its employees which has been es-
tablished in the performance of the agreement with the
IUPIW or prejudice the assertion by employees of any
rights they may have under the agreement.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Withdraw and withhold all recognition from
the IUPIW as the exclusive collective-bargaining rep-
resentative of any of its employees for the purpose of
collective bargaining, and cease to maintain or give
any effect to the collective-bargaining agreement with
the IUPIW, unless and until that labor organization has
been certified by the Board as the exclusive bargaining
representative of the employees; provided, however,
that nothing shall require Respondent to vary or to
abandon any wage, hour, seniority, or other substantive
feature of its relations with its employees which has
been established in the performance of any agreement
with the IUPIW or prejudice the assertion by employ-
ees of any rights they may have thereunder.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT assist or contribute support to the
International Union of Petroleum and Industrial Work-
ers, AFL–CIO (IUPIW), or any other labor organiza-
tion.
WE WILL NOT recognize the IUPIW as the exclusive
representative of our employees for the purpose of col-
lective bargaining, unless and until it has been duly
certified by the Board as the exclusive representative
of the employees in the appropriate unit.
WE WILL NOT give effect to or enforce the collec-
tive-bargaining agreement with the International Union
of Petroleum and Industrial Workers, AFL–CIO, unless
and until that labor organization has been certified by
the Board as the exclusive bargaining representative of
the employees; but nothing herein shall be construed to
require that we vary or abandon any existing term or
condition of employment.
833UPF CORP.
1 Sec. 8(a)(1) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7;
. . .’’
Sec. 7 of the Act provides that, ‘‘Employees shall have the right
to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
and shall also have the right to refrain from any or all such ac-
tivities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a)(3).
2 Sec. 8(a)(2) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to dominate or interfere with the for-
mation or administration of any labor organization or contribute fi-
nancial or other support to it.’’
3 Sec. 8(a)(3) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . by discrimination in regard to hire or
tenure of employment or any other term or condition of employment
to encourage or discourage membership in any labor organization:
. . . ’’
4 The complaint alleges, and the answer admits, that on or about
October 31, 1989, Respondent and IUPIW executed a document en-
titled ‘‘Articles of Agreement’’ whereby Respondent recognized
IUPIW as the exclusive collective-bargaining representative for all
maintenance technicians, maintenance mechanics, furnace/batch/
binder operators, lead operators, operators and crew persons em-
ployed at Respondent’s Bakersfield, California facility.
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 withdraw and withhold all recognition
from the IUPIW as the exclusive collective-bargaining
representative of any of our employees unless and until
it has been certified by the Board as the exclusive bar-
gaining representative of our employees.
UPF CORPORATION
Ann Reid Cronin, Esq., for the General Counsel.
Sidney P. Chapin and Edwin T. Shea, Esqs. (Werdel &
Chapin), of Bakersfield, California, for the Respondent.
Carl S. Yaller, Esq., of Media, Pennsylvania, for the Charg-
ing Party.
Dolly M. Gee, Esq. (Schwartz, Steinsapir, Dohrmann &
Sommers), of Los Angeles, California, for the Party in In-
terest.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Bakersfield, California, on July 31
and August 1 and 2, 1990, based on a charge filed by Glass,
Molders, Pottery, Plastics & Allied Workers International
Union, AFL–CIO, CLC (the Glass Workers Union or the
Charging Party) on March 2, 1990. The charge alleged that
UPF Corporation (Respondent or UPF) violated Section
8(a)(1) and (2) of the National Labor Relations Act (the
Act). On May 22, 1990, the Glass Workers Union filed an
amended charge which, in addition to restating its prior alle-
gations, further claimed that Respondent violated Section
8(a)(3) of the Act.
On May 30, 1990, the Regional Director for Region 31 of
the National Labor Relations Board (the Board) issued a
complaint and notice of hearing alleging violations of Sec-
tion 8(a)(1)1, (2),2 and (3)3 of the Act. The substance of the
complaint asserts that Respondent unlawfully recognized the
International Union of Petroleum and Industrial Workers,
AFL–CIO (IUPIW or Petroleum Workers Union) as the ex-
clusive collective-bargaining representative for certain of its
workers,4 even though IUPIW did not then represent an
uncoerced majority of the relevant employees and was not a
lawfully recognized exclusive bargaining representative for
those workers. Respondent thereafter filed a timely answer to
the allegations contained within the complaint, denying all
wrongdoing.
All parties appeared at the hearing and were given full op-
portunity to participate, to introduce evidence, to examine
and cross-examine witnesses, to argue orally, and file briefs.
Based upon the record, my consideration of the briefs filed
by counsels for the various parties and my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that
Respondent is a California corporation with an office and a
place of business in Bakersfield, California, where, at all
times material, it has been engaged in the business of manu-
facturing glass fiber. During the 12-month period ending
with the issuance of the complaint, and in the course and
conduct of its business, Respondent purchased and received
goods or services valued in excess of $50,000 at the above
location directly from suppliers located outside the State of
California.
Accordingly, I find and conclude that Respondent is now,
and at all times material has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATIONS
The complaint alleges, the answer admits, and I find that
the Charging Party is now, and at all times material has
been, a labor organization within the meaning of Section 2(5)
of the Act.
Further, the complaint alleges, the answer admits, and I
find that the IUPIW is now, and at all times material has
been, a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent’s production and maintenance em-
ployees may properly be accreted to a unit of similar em-
ployees located at a neighboring facility operated by the
Consolidated Fiberglass Products Company (Conglass).
2. Whether the Board lacks jurisdiction in this matter be-
cause the IUPIW was not timely served with the charge.
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Unless otherwise stated, all dates hereafter refer to the year
1989.
6 Art. 1, sec. 1 of the articles of agreement between Conglass and
the IUPIW (the Conglass agreement), effective during the period be-
tween June 1, 1988, and June 1, 1990, recognized IUPIW as the ex-
clusive collective-bargaining representative for the following
Conglass employees:
All production and maintenance employees employed by [Re-
spondent] at it’s [sic] facilities at 3801 Standard Street and 3531
Shell Ave., Bakersfield, California, excluding office clerical em-
ployees, professional employees, guards and supervisors as de-
fined in the Act.
7 George Beltz testified that IUPIW’s International representative
functioned as its business representative.
8 According to Beltz’ testimony, the IUPIW also raised the possi-
bility of adding Respondent’s workers to the Conglass agreement via
a supplementary agreement, or an appendix, during that same meet-
ing; however, this proposal was similarly rejected by Respondent.
9 Jack Pfeffer, vice chairman, CEO, and 20-percent stock owner of
Respondent (also 5-percent owner of Conglass) testified to another
meeting between himself and Thomas Rincon, an International rep-
resentative organizer from the IUPIW, during which he informed
Rincon that the UPF corporation had been formed as a distinct and
separate company from Conglass. He also informed Rincon that they
were beginning construction of a new plant. Pfeffer did not recall
if Earl Church and George Beltz were present at that meeting. How-
ever, according to Pfeffer’s recollections of the circumstances sur-
rounding the meeting, the meeting apparently took place prior to the
April or May meeting.
10 From the testimony, it appears, and I find, that John Rutledge
and Gary Fuller primarily negotiated on behalf of Respondent while
Earl Church negotiated on behalf of the IUPIW.
11 George Beltz, Walsh (IUPIW’s secretary and treasurer), and Earl
Church signed on behalf of the IUPIW. However, this agreement
was not signed by any member of Respondent’s employee com-
plement.
12 Diana Thoms and Mike Garcia, employees at UPF during the
relevant period, both testified to this effect.
3. Whether Respondent violated Section 8(a)(1) and (2) of
the Act by recognizing IUPIW as the exclusive collective-
bargaining representative for its production and maintenance
employees at a time when said labor organization did not
possess majority status.
4. Whether Respondent violated Section 8(a)(1) and (3) of
the Act by entering into a union-security agreement with
IUPIW while that labor organization did not possess a major-
ity status.
5. What are the appropriate remedies, if violations of the
Act are indeed found in this case.
B. Background
In September 1988, Respondent began construction of a
plant for the production of wet chopped fiberglass and roof-
ing materials at 3447 Standard Street in Bakersfield, Califor-
nia. Respondent’s plant was completed and began production
in mid-October 1989.5 The parties stipulate that as of Octo-
ber 31, Respondent employed 28 employees at its Bakers-
field plant.
Respondent’s new plant is located about 300 to 400 feet
from three facilities owned and operated by Conglass. These
facilities consist of a roofing plant, a mat plant, and a main-
tenance service plant. In November, Conglass employed be-
tween 40 and 50 maintenance and production workers who
were current on union dues at the three Conglass facilities.
At all times relevant, the IUPIW was the recognized exclu-
sive collective-bargaining representative for the workers at
Conglass.6 Since the 1950s, it has been affiliated with the
Seafarer’s International Union of North America, AFL–CIO
(the Seafarers Union).
C. The IUPIW-UPF Collective-Bargaining Agreement
and Subsequent Events
During April or May, George Beltz, president of IUPIW,
and Earl Church, an International representative for the
IUPIW,7 met with John Rutledge, Ron Peterson, and Gary
Fuller. Rutledge was then the human resources manager for
both Conglass and the Respondent corporation. Peterson was
Respondent’s general manager and vice president, and Gary
Fuller was Respondent’s plant manager. The meeting took
place at Conglass’ office. At the meeting, the IUPIW sought
to add UPF’s production and maintenance employees to its
existing Conglass agreement. While not objecting to rec-
ognizing the IUPIW as the exclusive collective-bargaining
representative for said workers, Respondent refused to add
those employees to the existing Conglass agreement.8 Instead
to sought to enter into a separate bargaining agreement with
the IUPIW in regards to to its maintenance and production
employees.9
After the April or May meeting, Respondent and the
IUPIW entered into negotiations for an agreement governing
the compensation, rights, privileges, and working conditions
for Respondent’s maintenance and production employees.10
Negotiations were completed in August.
Thereafter, on October 31, Respondent signed the resultant
document entitled ‘‘Articles of Agreement between U.P.F.
Corporation and The International Union of Petroleum and
Industrial Workers’’ (the UPF agreement). The IUPIW
signed the UPF agreement on November 6.11 All parties stip-
ulate that on November 6, and at all times prior to that date,
the IUPIW did not have authorization cards, or other
writings, signed by a majority of Respondent’s production
and maintenance employees designating the IUPIW as their
agent for purposes of collective bargaining.
There is no evidence in the record which establishes that
Respondent’s employees were notified of the IUPIW-UPF
contract negotiations and/or of the existence of the UPF
agreement prior to December 6.
On that date, Earl Church, on behalf of the IUPIW, dis-
patched letters to Respondent’s maintenance and production
employees, informing them that it had reached a labor agree-
ment with the UPF Corporation, and that the agreement
would be put into effect after IUPIW reviewed its provisions
with them for possible changes and acceptance. The letter
also arranged three meetings between the IUPIW and the rel-
evant employees to take place at a Best Western Inn on De-
cember 13 and 14. Undisputed testimony by various wit-
nesses reveals, and I find, that, at these meetings, representa-
tives from the IUPIW solicited authorization cards from Re-
spondent’s employees.12
On February 8, 1990, the Glass Workers Union filed a pe-
tition with the Board, in which it sought to be certified as
the collective-bargaining representative for all of Respond-
835UPF CORP.
13 The Charging Party’s petition was given the case number of 31–
RC–6667.
14 I note that the IUPIW is asserting the accretion theory in this
case as an affirmative defense against the alleged violations of the
Respondent.
15 In the IUPIW’s brief, it cited factors employed by courts to de-
termine ‘‘single employer status.’’ However, I find these cases are
not controlling in accretion cases. The question of whether employ-
ees in two facilities are employed by a single employer is irrelevant
to a determination of the propriety of accretion between the employ-
ees of the facilities. The focus in accretion cases is on whether the
employees of the separate facilities cannot be placed in separate ap-
propriate units and on the degree of their community of interest.
Therefore the Board has often found accretion to be inappropriate
for employees of distinct facilities even where their employer is ulti-
mately identical. See Super Valu Stores, supra; see also Safeway
Stores, supra.
ent’s production and maintenance employees employed at its
Bakersfield facility.13
On February 26, 1990, Michael Sacco, president of the
Seafarers Union, on behalf of the IUPIW, filed a charge with
the AFL–CIO, in which it was alleged that the Charging
Party has violated article XX, sections 2, 3, and 20 of the
AFL–CIO constitution by attempting to organize Respond-
ent’s employees.
The Board then delayed the processing of the Charging
Party’s certification petition after receiving a March 1, 1990
letter from Respondent informing it of the article XX charge.
According to the testimony of George Beltz, the article XX
charge was withdrawn a few days after it was first filed by
the Seafarers Union. On March 2, 1990, the Charging Party
filed its instant unfair labor practice charge with the Board.
D. IUPIW’s Accretion Argument
The IUPIW takes the position that Respondent could not
have violated any part of the Act in this case. In particular,
it argues that Respondent’s recognition of the IUPIW as the
bargaining representative for its maintenance and production
employees, and its entry into the UPF agreement at a time
when the latter possessed no evidence of majority status at
its facility, are not unlawful. Instead, the IUPIW contends
that Respondent’s actions were justified because its new fa-
cility should be accreted to an existing unit represented by
the IUPIW located at neighboring Conglass. IUPIW’s above
contention is opposed by the Board, by the Charging Party
as well as by Respondent. The latter parties argue that accre-
tion is improper in this case in light of the surrounding facts.
1. Legal principles governing claims of accretion
In cases involving allegations of unlawful, premature rec-
ognition of a bargaining representative by an employer, the
theory of accretion can serve to insulate the employer from
potential liabilities for its alleged unlawful actions.
However, since the application of the doctrine in such
cases can so clearly interfere with the rights of interested em-
ployees to select a bargaining representative of their own
choosing, accretion is necessarily treated as a narrow excep-
tion to the general rule against prehire or premature recogni-
tion by employers. Hence, under such circumstances, the
Board has stated:
Pursuant to this policy, a valid accretion (is found)
only when the additional employees have little or no
separate group identity and thus cannot be considered
to be a separate appropriate unit and when the addi-
tional employees share an overwhelming community of
interest with the preexisting unit to which they are
accreted. Safeway Stores, 256 NLRB 918 (1981). [Em-
phasis added.]
From the above statement, it is clear that the doctrine of
accretion may be applied only in those cases where it is
proven by a heavier evidentiary burden than in unit deter-
mination cases. Thus, I must find that accretion is appro-
priate in this case only if the evidence establishes both that:
(a) The additional employees may be included in a
preexisting unit, and, also,
(b) That the additional employees cannot, by them-
selves, be considered to be a separate appropriate
unit.14
It is also evident that the primary policy in accretion cases
is to avoid substantial interference with the additional em-
ployees’ Section 7 rights through an application of the accre-
tion theory.
The Board has traditionally looked to a number of evi-
dentiary factors in arriving at a determination of the appro-
priateness of accretion. Thus, factors which are relevant in
this case include:
(a) the degree of operational integration between the
additional employees’ plant and the preexisting unit’s
plant, including such facts as employee interchange and
contact among the employees of the two plants;
(b) similarities in the skills, functions, interests and
working conditions of the employees in the two plants;
proximity of the plants;
(c) their bargaining history; and,
(d) the degree of common supervision and control.
Super Valu Stores, 283 NLRB 134, 136–137 (1987);
Armco, Inc. v. NLRB, 832 F.2d 357, 362 (6th Cir. 1987),
cert. denied 486 U.S. 1042 (198).15
I now examine this case in light of the aforementioned
factors.
2. The facts
a. Operational integration
Gary Fuller, Respondent’s plant manager, testified that Re-
spondent’s Bakersfield plant is engaged in the manufacture
of ‘‘wet chopped fiber glass.’’ According to him, it pur-
chased sand, clay, limestone, and other minor ingredients in
bulk. After arriving at Respondent’s plant, these ingredients
are mixed together in formulated amounts into ‘‘batches’’
which are, in turn, fed into a gas-fired furnace that melts the
ingredients into glass. The molten glass is then poured
through ‘‘bushings’’ in the form of the finished fiberglass.
When the fiberglass cools, it is packaged and sent to cus-
tomers.
Fuller characterized Respondent’s operations as manufac-
turing processes. However, he distinguished the operations
engaged in by Conglass’ facilities as fabrication processes.
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Pfeffer, in addition to being vice chairman, CEO, and 20-percent
owner of Respondent Company, is also vice chairman, CEO, and 5-
percent owner of Conglass.
17 General Counsel argues in brief that only events which occurred
on or before the alleged unfair labor practice of October 31 should
serve as evidence with respect to the accretion. The General Counsel
contends that events subsequent to that date are simply not relevant
to the question of whether Respondent committed an unfair labor
practice on that date.
I find this argument unconvincing. The propriety of the alleged ac-
cretion in this case depends on examining the factual circumstances
existing at the different facilities. However, as of October 31, Re-
spondent’s facility had only recently begun operations. Hence, the
interrelationships between the facilities may not have been fully
manifested before that date. I therefore find that events which oc-
curred after October 31 may help elucidate the actual degree of oper-
ational integration between the plants.
18 Harris also testified that the employees at Conglass’ and Re-
spondent’s plants have separate breakrooms.
19 However, Pfeffer testified that within Conglass’ payroll system,
Respondent’s employees are separately identified.
20 Such evidence includes:
(a) Respondent’s employees used the same time clock as
Conglass’ mat plant employees.
(b) Respondent sometimes stored materials at Conglass (in an
area referred to as the ‘‘bullpen.’’
(c) Respondent and Conglass both employ the same account-
ing company.
21 See Safeway Stores, supra at 918.
22 Such evidence includes the credited testimony by Pfeffer and
Fuller, regarding the planned expansion of Respondent’s product
lines, as well as Fuller’s testimony that he expects Respondent to
add administrative personnel as Respondent’s business expands due
to the new product lines.
According to Fuller, Conglass’ operations are different from
those of the Respondent because Conglass takes various in-
termediate products, e.g., fiberglass, as well as some raw in-
gredients, and fabricates finished products, such as mats and
roofing materials.
According to Fuller, when Respondent first began produc-
tion, 100 percent of its chopped fiberglass were purchased by
Conglass. At the time of the hearing, however, Respondent
was selling some of its fiberglass in Ireland. Nevertheless,
over 90 percent of its fiberglass continues to go to Conglass.
But Jack Pfeffer testified as to Respondent’s future
plans.16 According to him, Respondent was planning an ex-
pansion of its product line to include aircraft insulation and
a high efficiency air filter medium. Respondent expected to
introduce the new product lines within 4 or 5 weeks after the
hearing and also hoped that it will account for over 60 per-
cent of its total business. Fuller testified that the new product
lines are to be sold to companies other than Conglass.
Despite the apparent differences in the processes engaged
in by the Conglass facilities and by Respondent’s plants, tes-
timony during the hearing establishes that some employee
interchange between Respondent and Conglass has taken
place.17
Thus, Jose Vela, who worked variously as a packer and
an ‘‘unwind attendant’’ at Conglass’ roofing plant, testified
that he worked at Respondent’s plant as a bricklayer for 5
days during February 1990, after being temporarily laid off
from Conglass immediately prior to that. Vela also testified
that he observed five other Conglass employees working at
Respondent’s plant during those 5 days.
In addition, Rickey Harris, a maintenance worker at
Conglass since September, testified that after March 1990, he
and other members of the Conglass maintenance crew began
doing work at Respondent’s facility. According to Harris,
four maintenance workers from Respondent’s plant also
came to work at Conglass’ facilities at that time.18
However, Jack Pfeffer testified that Respondent is billed
for all the services provided by Conglass’ maintenance em-
ployees. He further stated, without contradiction, that senior-
ity accrued by employees in Respondent’s facility is not
transferable to Conglass if employees leave to work for
Conglass.
Undisputed evidence also establishes that both Respondent
and Conglass’ employees are paid by Conglass’ checks
issued through Conglass’ payroll office.19 Additional undis-
puted evidence shows that the two companies at times shared
storage space and certain administrative functions.20
However, based on all the evidence in the record pertinent
to the factor of operational integration, I am unable to find
that this factor clearly weighs in favor of accretion.
While it is apparent that there is some employee inter-
change as well as some sharing of space between Conglass
and the Respondent, it has not been demonstrated that there
has been any concerted effort directed at integrating the func-
tions of the two companies. In particular, the instances of
employee interchange appear to have been generally un-
scheduled.21
Further, there is some evidence that Conglass’ purchase of
most of Respondent’s products at the time of hearing, and
the sharing of many administrative functions between the
two companies, may have been only a temporary phenome-
non, resulting perhaps from the relative youth of Respond-
ent.22
At this point, I must note that I have given little weight
to evidence pertaining to the similarities in the identities of
the owners and corporate officers in the two companies,
since operational integration between the two facilities has
little to do with issues of common ownership. In fact, accre-
tion has often been denied to units existing in different divi-
sions of a single employer. See Armco, Inc. v. NLRB, supra.
b. The skills, functions, and working conditions of the
employees from the two companies
The parties agree that all the production and maintenance
employees from Conglass and the Respondent Company are
unskilled workers. However they disagree on whether the
functions and working conditions of these employees differ
in any significant manner.
Rickey Harris testified during the hearing that UPF’s and
Conglass’ facilities are similar, in that they all involve con-
tinuous production processes, although there exist some vari-
ations between the plants. Harris also testified that both the
UPF plant and the Conglass plants run 24-hour production
facilities. However, according to Harris, UPF operates 7 days
a week, in four shifts, while Conglass’ mat plant operates 5
days a week, in three shifts. Conglass’ roofing plant also op-
erates 5 days a week, but rotates between having two or
three shifts per day, depending on demand for its products.
Harris further admitted that each of the plants uses different
job classifications and titles for their respective employees.
837UPF CORP.
23 The UPF furnaces operate in the range of 2700 to 2800 degrees
Fahrenheit. According to Harris, while Conglass’ roofing plant uses
a cooler and boiler and its mat plant operates an incinerator, all of
which require heat, they generally operate in the range of about 600
degrees Fahrenheit.
24 Respondent argues that exhibit evidence indicates a fence di-
vides Respondent’s premises from that of Conglass. My view is that
it not clearly established.
25 There is no evidence that Beltz made his view known to the Re-
spondent. In fact, Beltz specifically denied mentioning the accretion
issue during a November 8 telephone conversation that he had with
Respondent’s vice president.
26 Similarities between the contracts include, but are not limited to,
provisions affecting holidays, vacations, medical benefits, leaves,
bulletin boards, and employee probationary periods. Differences be-
tween the contracts include retirement plans, grievance and arbitra-
tion procedures, and the agreements’ respective union-security provi-
sions, job classifications, and wage scales for the employees of the
two companies.
27 Respondent’s attorney also represented the interests of Conglass.
Harris’ testimony regarding the dissimilarities in the classi-
fication of job titles between the plants is supported by docu-
mentary evidence from the UPF agreement and from the col-
lective-bargaining agreement for Conglass employees. These
documents establish that the employee titles for each of the
plants are completely different from those for the other
plants. According to Gary Fuller’s testimony, the actual du-
ties for some of the employees in each of the plants may
overlap despite their different titles. Nevertheless, there is no
evidence which indicates complete identity in the duties be-
tween employees with different titles in the various plants.
With respect to the working conditions in the various
plants, both Fuller and Harris indicated that the machines
used in Conglass’ mat and roofing plants, as well as the ma-
chines used in the UPF plant, are all dissimilar. Furthermore,
Fuller, testified without contradiction that the working condi-
tions at the UPF plant are significantly different from the
conditions at all the other Conglass plants, because the UPF
plant employs furnaces which operate in the high tempera-
ture range.23
In light of the above evidence, I find that consideration of
the skills, functions and working conditions for the employ-
ees in the two companies does not support IUPIW’s conten-
tion that Respondent’s employees cannot constitute a sepa-
rate appropriate unit.
Although it has been conceded that all the production and
maintenance employees for the two companies are unskilled
workers, their job classifications and functions are clearly
dissimilar. The admitted overlap in functions between certain
employees does not appear to rise to a level which can allow
one to equate job classifications at one facility with classi-
fications at the other facility. The most important evidence
with respect to this factor, however, is that there are dissimi-
lar machineries present in the UPF and Conglass plants, and
the high-temperature working environment in the UPF plant,
which is not present in the Conglass plants. Such
dissimilarities in working conditions imply possible dif-
ferences in the interests of the employees in the two plants.
Under these circumstances, the possibility that Respond-
ent’s employees may constitute a separate appropriate unit
cannot be precluded.
c. Geographic proximity
It is undisputed that Respondent’s facility is located within
300 to 400 feet from Conglass’ production plants.24 Further,
uncontradicted testimony establishes that both Conglass and
UPF employees park in the same parking lot.
In light of such evidence, I find that geographic proximity
is a factor which weighs in favor of accretion in this case.
d. Bargaining history
Since Respondent’s plant began operation only in the fall
of 1989, there is no prior bargaining history, aside from the
UPF agreement entered into between the IUPIW and Re-
spondent. However, the UPF agreement itself indicates that
Respondent’s employees constitute a separate, appropriate
unit.
Testimony by George Beltz, president of the IUPIW, indi-
cated that during the initial meeting between the IUPIW and
the Respondent, it sought to represent UPF employees by in-
cluding them in the then existing Conglass collective-bar-
gaining contract. Respondent refused, and insisted that its
employees should be treated as a separate unit, apart from
Conglass employees.
However, Beltz maintained that he continued to believe
that Respondent’s employees might be accreted to the
Conglass unit.
Despite Beltz’ belief that accretion is appropriate, the
IUPIW proceeded to negotiate a separate agreement with the
Respondent on behalf of Respondent’s employees. Beltz,
however, testified that, at the time, he viewed this agreement
only as a supplemental agreement.25 John Pfeffer, vice chair-
man and CEO of the Respondent, largely confirmed Beltz’
testimony.
Beltz’ belief that the UPF agreement is ‘‘supplementary’’
to the Conglass contract is weakened by the contents of the
documents themselves. Although the substance of the UPF
agreement contains many similarities with the Conglass col-
lective-bargaining cocontract, there also exists significant dif-
ferences between the two.26
The alleged supplementary nature of the UPF agreement,
and the implication that Respondent’s employees have not
been treated as a separate bargaining unit, is further weak-
ened by Beltz’ admission that the IUPIW removed a picket
at Respondent’s gate in July 1990. According to Beltz, in an
IUPIW-Conglass labor dispute which occurred at that time,
it was decided by the Petroleum Workers Union to also set
up a picket in front of Respondent’s facility. However, after
receiving a letter from Respondent’s attorney,27 the picket
was removed because he felt that there is as yet no dispute
between the IUPIW and the Respondent. Beltz also indicated
that the IUPIW removed the picket as a good will gesture
to the UPF ‘‘division’’ of Respondent.
In light of the history of bargaining between the IUPIW
and Respondent, I find that IUPIW has consistently treated
Respondent’s employees as a bargaining unit apart from the
Conglass employees. Therefore, I find that bargaining history
does not support IUPIW’s present claim that Respondent’s
employees cannot constitute a separate appropriate bargain-
ing unit.
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 The supervisor is Don Stubblefield, manager of furnace and pro-
duction operations at UPF.
29 Sec. 10(b) of the Act provides in pertinent part: ‘‘That no com-
plaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom
such charge is made . . . .’’
30 The Board argues that the Charging Party and Respondent’s em-
ployees did not, and could not, have known of the October 31, 1989
agreement between Respondent and the IUPIW until after December
6, 1989. The October agreement constitutes the substance of the al-
leged unfair labor practice under consideration.
31 In the context of an 8(a)(2) charge, an independent union is one
which is not under the control or domination of the employing com-
pany. See Consolidated Edison Co.
e. Day-to-day supervision and control
Joe Ruiz, Conglass’ corporate manager for safety and se-
curity, testified without contradiction that he hired employees
for both Conglass and UPF after January 1990. Before that
date, John Rutledge, manager of human resources for both
UPF and Conglass, also hired employees for both plants.
This testimony is confirmed by Rickey Harris.
The General Counsel, however, points to testimony by
Fuller, UPF’s plant manager, which explained that, although
Rutledge and Ruiz screen employees for both UPF and
Conglass, it falls upon Fuller and another UPF manager to
interview and finally approve potential UPF employees.
There is also uncontradicted testimony by Rickey Harris
that Ron Cheatwood and Paul Murphy, respectively, served
as maintenance superintendent and maintenance supervisor at
both Conglass and at Respondent’s facility. Furthermore,
Gary Fuller admits that one of his supervisors had supervised
employees from Conglass.28 However, he explained that
these employees were not working at Conglass at that time
and were considered temporary UPF employees. Fuller fur-
ther denied that either he, as UPF’s plant manager, or Wen-
dell Green, UPF’s manager of alloy and production equip-
ment, have ever supervised Conglass employees. I credit
Fuller’s testimony.
The evidence indicates that there exists some overlap in
supervision between Conglass’ and Respondent’s facilities.
However, it does not unequivocally indicate that such super-
visory overlap is a widespread phenomenon. Furthermore, it
is clear that Respondent has, for the most part, its own man-
agement personnel. Therefore, I find that this factor does not
greatly enhance the IUPIW’s contention that Respondent’s
employees retains little or no separate group identity.
3. Conclusion
In light of the evidence presented by the parties, I find that
the UPF employees possess a group identity and interests
separate from the employees at Conglass.
The only factor which unequivocally weighs in favor of
accretion in this case is the close geographic proximity be-
tween the relevant plants.
However, other factors, such as employees’ skills, working
conditions, and the bargaining history at UPF, clearly argue
against the propriety of accretion in this case.
Factors such as the degree of operational integration, em-
ployee interchange and day to day supervision are somewhat
ambiguous. But, in light of the restrictive Board policy in
granting accretion, I find that these latter factors offer little
support for the IUPIW’s position in favor of accretion.
General Counsel also argued in its brief that accretion is
not warranted here because of the relatively large number of
UPF production and maintenance employees in relation to
the size of the unit to which the IUPIW seeks to accrete
them. I find this argument persuasive, since many of the ob-
jective evidentiary factors generally applicable in accretion
cases do not offer clear guidance in this case.
From the record, the relevant UPF employees would
amount to about 50 percent of the existing Conglass unit. In
this situation, accretion is appropriate only where the objec-
tive factors clearly weighs in favor of this action so as not
to unduly foreclose employees’ Section 7 rights. Here, the
factors, on the whole, weigh against a finding of accretion.
But even if I were to find that the objective factors give
only an ambiguous answer, accretion is not warranted in this
case due to the size of the UPF unit in relation to the exist-
ing Conglass unit.
For the above reasons, I find that Respondent’s mainte-
nance and production employees do not share a sufficient
community of interest with Conglass employees such that
they may be accreted to the latter’s bargaining unit.
E. IUPIW’s 10(b) Argument
The IUPIW also argues that the Board lacks jurisdiction
in this matter because the original charge was not timely
served on it pursuant to Section 10(b) of the Act (29 U.S.C.
§ 160(b)).29
According to the IUPIW, it is an ‘‘independent union’’ in
relation to the instant 8(a)(2) allegation. Hence, it occupies
the status of an ‘‘indispensable party,’’ and is entitled to re-
ceive notice of the charge within the 6-month period pre-
scribed by Section 10(b).
Since all parties agree that the alleged unfair labor practice
occurred, if at all, on or about October 31, and since it is
uncontradicted that IUPIW was not served with the charge
within 6 months of that date, IUPIW now argues that the
Board is deprived of jurisdiction over this case. In support
of its current jurisdictional arguments, IUPIW relies prin-
cipally on the case of Consolidated Edison Co. v. NLRB.,
305 U.S. 197 (1938).
Both the General Counsel and the Charging Party coun-
tered IUPIW’s jurisdictional argument by asserting that,
while there can be no argument against the proposition that
the IUPIW is entitled to receive notice regarding the com-
plaint, and the hearing, in a case such as this, no legal prece-
dents support the IUPIW’s position that it is also entitled to
receive 10(b) notice of the charge. They further argue that,
even if IUPIW was entitled to receive 10(b) notice of the
charge, such notice was perfected within the 6-month limita-
tion period, since the running of that period did not begin
until December 6.30
I find IUPIW’s instant jurisdictional contention to be with-
out merit.
It is undisputed that the IUPIW is an independent union
in relation to the present 8(a)(2) allegation.31 Further, in
view of the Supreme Court’s opinion in Consolidated Edi-
son, it is clear that IUPIW is an indispensable party to the
present proceeding, since the IUPIW’s ‘‘beneficial interests’’
in the continued validity of its agreement with the Respond-
839UPF CORP.
32 In this case, the General Counsel is essentially seeking Respond-
ent’s withdrawal from an agreement whereby it recognized IUPIW
as the exclusive bargaining representative for certain of its employ-
ees.
33 The three employees are David Barry, Diana Thoms, and Mike
Garcia. All three were employed at Respondent’s Bakersfield plant
throughout the relevant period.
34 See NLRB v. Don Burgess Construction Corp., 596 F.2d 378
(9th Cir. 1979).
ent may be adversely affected by this proceeding.32 Never-
theless, the legal precedents cited by IUPIW do not support
its argument that it is entitled to 10(b) notice of the charge.
The IUPIW places heavy reliance on Consolidated Edison
to support its instant proposition. That case is factually dis-
tinguishable from the current proceeding. In that case, the
Supreme Court ruled that independent unions are entitled to
notice and hearing before their contracts with employers, al-
leged to have violated Section 8(a)(2), can be set aside. But
this ruling was made in reference to a situation in which the
relevant union received neither notice of the complaint, nor
notice of the hearing. The Court never addressed the question
of whether the independent union was entitled to 10(b) notice
of the underlying charge.
Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S.
411 (1960), another case cited by IUPIW, also does not sup-
port its jurisdictional arguments. In Bryan Mfg. Co., Section
10(b) operated to time-bar a Board proceeding which was in-
stituted to invalidate a union-security agreement entered into
between the employer and an independent union prior to the
time that the union obtained majority status. However, the
critical fact which triggered the operation of Section 10(b)’s
6-month statute of limitation in that case was that the under-
lying charge was not filed with the Board in a timely man-
ner. The Court, in Bryan Mfg. Co., did not address situations
involving the untimely service of the underlying charge upon
the independent union. Id. at 414.
IUPIW failed to cite clear legal support for its argument
that it was entitled to receive 10(b) notice of the underlying
charge in this case. Thus, while the failure to serve the initial
charge upon the IUPIW may not have been in conformity
with the dictates of good practice, it also does not appear to
be fatal to the present proceeding. In any case, IUPIW’s
present jurisdictional objection is also meritless on another
ground.
From testimony adduced at the hearing, it is apparent that
the running of Section 10(b)’s 6-month limitation period did
not begin until December 6. Consequently, the service of the
amended charge and the complaint upon IUPIW was timely
within the meaning of Section 10(b).
During the hearing, three of Respondent’s present and
former employees testified without contradiction that they
learned of Respondent’s agreement with IUPIW only after
receiving a letter on that subject from Earl Church, Inter-
national representative of IUPIW, sometime after December
6.33 In addition, there is no evidence in the record which es-
tablish that any of Respondent’s employees had so much as
an inkling regarding IUPIW’s activities prior to that date.
Despite such uncontradicted evidence, IUPIW claims that the
10(b) period could not have been tolled until December 6,
because there is no evidence of fraudulent concealment by
either the Respondent or by the IUPIW. I find this argument
unconvincing.
Under Board law, it is well established that Section
10(b)’s limitation period does not begin to run until the ad-
versely affected party receives actual or constructive notice
of the alleged unlawful conduct. J.F. Morris Co., 292 NLRB
869, 870 fn. 2 (1989); Hot Bagels & Donuts, 227 NLRB
1597, 1597 (1977); Wisconsin River Valley District Council,
211 NLRB 222, 227 (1974), enfd. 532 F.2d 47 (7th Cir.
1976). This rule has been approved by a number of courts
of appeal. See NLRB v. Electrical Workers IBEW Local 112,
827 F.2d 530, 533 (9th Cir. 1987), citing American Distrib-
uting Co. v. NLRB, 715 F.2d 446, 452 (9th Cir. 1983), cert.
denied 446 U.S. 958 (1984); see also Armco, Inc. v. NLRB,
supra at 362. While the running of the limitation period may
also be tolled by acts of fraudulent concealment on the part
of the perpetrator of the alleged unfair labor conduct,34 fraud
does not appear to be a prerequisite to the rule that the 10(b)
period does not begin to run until notice is given to the ad-
versely affected party.
The IUPIW and the Respondent failed to present any evi-
dence which even remotely suggests that Respondent’s em-
ployees could have learned of their October 31 agreement.
Instead, the record on the whole indicates that the employees
were kept completely in the dark concerning the IUPIW’s
newly acquired status as their recognized representative until
December 6 at the earliest. In fact, prior to that date, there
is no evidence that IUPIW even made known to the affected
employees that it possessed the intention to represent them.
Clearly, Respondent’s maintenance and production employ-
ees received neither actual nor constructive notice of the al-
leged unfair labor conduct.
Therefore, I find that with respect to the alleged 8(a)(2)
violation, the 10(b) limitation period did not begin to run
until December 6.
Thus, I conclude that the service of both the amended
charge and the complaint upon the IUPIW was timely. Ac-
cordingly, I further find and conclude that the instant pro-
ceeding is not time-barred, and the Board retains jurisdiction.
F. Violations of Section 8(a)(1) and (2)
In its posthearing Brief, Respondent does not argue that it
is not liable for violations of Section 8(a)(1) and (2) of the
Act.
General Counsel has also correctly pointed out that a vio-
lation of Section 8(a)(1) and (2) exists whenever an employer
recognized a union which did not possess majority status, re-
gardless of whether the employer’s action was undertaken in
good faith. Ladies’ Garment Workers v. NLRB, 366 U.S.
731, 738 (1961); see E. L. Wagner Co., 294 NLRB 493, 498
(1989).
All parties stipulated at the hearing that on or before No-
vember 6, Respondent did not have authorization cards or
other writings signed by a majority of its production and
maintenance employees which show that they were designat-
ing the IUPIW as their agent for purposes of collective bar-
gaining. There is also no evidence in the record which indi-
cates that Respondent ever inquired about the IUPIW’s ma-
jority status prior to November 6 when the UPF agreement
was executed. In fact, Gary Fuller, who helped negotiate the
UPF agreement on behalf of the Respondent, admitted at the
hearing that there was no discussion regarding IUPIW’s au-
thorization cards during the negotiations themselves. Accord-
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 All outstanding motions, if any, inconsistent with the terms of
this decision are hereby overruled. If no exceptions are filed as pro-
vided by Sec. 102.46 of the Board’s Rules and Regulations, the find-
ings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to
them shall be deemed waived for all purposes.
36 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.’’
ing to him, it was only after the UPF agreement was signed
that Respondent discussed with the IUPIW the need to obtain
authorization cards so as to show that the IUPIW had ob-
tained or retained employee backing.
In light of the above, I find that the allegation that Re-
spondent has unlawfully recognized the IUPIW, a labor orga-
nization, before it received authorization as the collective-
bargaining agent from an uncoerced majority of maintenance
and production employees at Respondent’s Bakersfield facil-
ity, is fully supported by the facts.
G. Violations of Section 8(a)(1) and (3)
Respondent contends that the General Counsel has failed
to establish a violation of Section 8(a)(3) of the Act since
there is no evidence which would indicate that Respondent
discriminated against its workers with respect to their hire,
tenure, or terms or conditions of employment.
However, it is established law that where an employer en-
ters into a collective-bargaining agreement containing a
union-security clause with a union which did not possess
support from a majority of the employer’s workers, that em-
ployer has violated Section 8(a)(1) and (3) of the Act. Such
an agreement, entered into between a employer and an union
that has been assisted by an unfair labor practice, also con-
stitute violations of Section 8(a)(1) and (3) by the employer.
Meyer’s Cafe & Konditorei, a wholly owned subsidiary of
Fred Meyer, Inc., 282 NLRB 1, 4 (1986).
In this case, the General Counsel alleges, and Respondent
admits, that Respondent entered into a collective-bargaining
agreement with the IUPIW which includes a union-security
clause. Further, it has been stipulated by all parties at the
hearing that the IUPIW, prior to November 6, did not pos-
sess any evidence that it had been designated the collective-
bargaining agent by an uncoerced majority of UPF produc-
tion and maintenance workers. Finally, the evidence clearly
indicates that the IUPIW’s entry into Respondent’s facility
was assisted by an unfair labor practice committed by the
Respondent. Under these facts, I find that the allegation that
Respondent violated Section 8(a)(1) and (3) of the Act is
well supported by evidence.
IV. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist from its unlawful conduct.
General Counsel, the Respondent, and the IUPIW all agree
that the record establishes that Respondent and IUPIW have
never enforced the union-security provision. The record also
establishes that none of Respondent’s maintenance and pro-
duction employees ever paid union dues to either directly to
the IUPIW or indirectly to the Respondent.
Under these circumstances, the remedy of reimbursement
is inappropriate. See Safeway Stores, 276 NLRB 944 (1985).
Therefore, Respondent shall not be required to take any re-
medial affirmative actions regarding reimbursement of initi-
ation fees or dues.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The IUPIW and the Glass Workers Union are both
labor organizations within the meaning of Section 2(5) of the
Act.
3. The Respondent, on October 31, 1989, by recognizing
the IUPIW as the exclusive bargaining representative for its
maintenance and production employees through the execution
of a collective-bargaining agreement, at a time when the
IUPIW did not represent an uncoerced majority of such
workers, has violated Section 8(a)(1) and (2) of the Act.
4. The Respondent, on October 31, 1989, by executing a
collective-bargaining agreement with the IUPIW containing a
union-security provision, at a time when the IUPIW did not
represent an uncoerced majority of such workers, has vio-
lated Section 8(a)(1) and (3) of the Act.
5. The above unfair labor practices have an effect on com-
merce as defined by Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended35
ORDER
The Respondent, UPF Corporation, Bakersfield, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Giving assistance and support to IUPIW.
(b) Granting exclusive recognition to IUPIW and execut-
ing a collective-bargaining agreement with it which contains
a union-security provision when it does not represent a free,
unassisted or uncoerced majority in the appropriate unit.
(c) Maintaining or giving any force or effect to the collec-
tive-bargaining agreement executed on November 6, 1989, or
any modification, extension, renewal, or supplement, purport-
ing to cover Respondent’s employees at Bakersfield, Califor-
nia.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw and withhold recognition from IUPIW as the
collective-bargaining representative of any of its employees
at its Bakersfield, California facilities; and cease maintaining,
or giving any effect to the collective-bargaining agreement
with that union that purports to cover the employees in its
Bakersfield facilities.
(b) Post at its facilities in Bakersfield, California, copies
of the attached notice marked ‘‘Appendix.’’36 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 31, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
841UPF CORP.
employees are customarily posted. Reasonable steps shall be
taken by the Respondent 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.