Sohio Petroleum Co.

SOHIO PETROLEUM CO. SOHIO Petroleum Co., a Division of SOHIO Natu- ral Resources Co. (formerly B. P. Alaska, Inc.) and International Union of Operating Engineers, Local 302, AFLCIO. Case 19-CA-10426 November 14, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on May 23, 1978, by Interna- tional Union of Operating Engineers, Local 302, AFL-CIO, herein called the Union, and duly served on SOHIO Petroleum Co., a Division of SOHIO Natural Resources Co., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 19, issued a complaint and notice of hearing on June 8, 1978, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair la- bor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Cop- ies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on April 26, 1978, following Board runoff elections in Cases 19-RC 8199 and 19-RC-8207,' the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appro- priate; 2 and that, commencing on or about May II11. 1978, and at all times thereafter, Respondent has re- fused, and continues to date to refuse, to bargain collectively with the Union as the exclusive collec- tive-bargaining representative of the employees in the unit. On June 16, 1978, Respondent filed its an- swer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 10, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 17, 1978, the Board issued an order transferring the proceeding to the 'There had been two prior elections in the instant case. howeser. In neither were the results conclusive. 2 Official notice is taken of the record In the representation proceedings. Cases 19-RC-8199 and 19-RC 8207. as the term "record" Is defined In Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8. as amended. See LTV Electrosysierms, Inc.. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir. 1968). Golden Age Beverage Co. 167 NLRB 151 (1967). enfd. 415 F.2d (5th Cir. 1969); Iniertype (C, v Penello, 269 FISupp S73 (D.C.Va.. 1967); FolleLt Corp. 164 NLRB 378 (1967). enfd. 397 F.2d 91 171h Cir. 1968); Sec. 9(d) of the NLRA. as amended. Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter contemporane- ously filed a response to the Notice To Show Cause, and a Cross-Motion for Summary Judgment with a brief in support thereof. On August 24, 1978, counsel for the General Counsel filed a motion in opposition to Respondent's Cross-Motion for Summary Judg- ment. On September 1, 1978, Respondent filed a re- sponse to the motion in opposition, entitled Re- sponse to General Counsel's Motion in Opposition to Respondent's Cross-Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this prcceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motions for Summary Judgment In its answer to the complaint and Response to the Order To Show Cause,3 Respondent basically admits the underlying representation proceeding, but denies the validity of the Union's certification based on its contention that the unit is inappropriate. In its Cross- Motion for Summary Judgment and to a lesser ex- tent in its response to the Order To Show Cause, Respondent contends that substantial factual changes have occurred at its Prudhoe Bay facility since the time of the representation case hearing which warrant the relitigation of the representation case issues. Respondent maintains that these changes nullify any possible factual basis for the Board's ini- tial determination that a Central Power Station (hereinafter referred to as CPS) unit is appropriate, and mandate a finding that only a single, overall unit is appropriate. Respondent further argues that due to these factual changes, summary judgment should be granted in its favor. Review of the record herein, including the record in Cases 19-RC-8199 and 19 RC-8207, reveals that on December 30, 1976, the Regional Director for Re- gion 19 issued a Decision and Direction of Election in the subject case, in which he directed an election in a unit consisting of all employees employed by Respondent at its North Slope facility, finding inap- propriate a separate CPS unit. Thereafter, pursuant to a request for review filed by the Petitioner, Inter- national Brotherhood of Elecrical Workers (hereinaf- ter IBEW). the Board issued a Decision on Review 4 reversing the Regional Director and finding that the In Its response to the Order To Sho) ( ause. Respondent requests a hearing to determine the appropriateness of the unit in the event the Board does not grant its ( ross-Motion for Summars Judgment. 230 Nl.RB 986 (1977) 281 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CPS employees might constitute a separate appropri- ate unit because "the CPS constitutes a functionally distinct and homogenous electrical utility unit closely analogous to the powerhouse department which has been traditionally found to constitute a separate ap- propriate unit." The Board also held that a unit com- prised of all production employees might constitute an appropriate unit for purposes of collective bar- gaining. Accordingly, the Board remanded the case to the Regional Director for Region 19 for the pur- pose of conducting elections in the aforementioned groups. Two unions, IBEW and the Union, elected to appear on the ballot seeking a separate CPS unit, rather than seeking the employees in the overall unit.' The North Slope Employees Association (here- inafter NSEA) decided to seek to represent employ- ees in the overall unit. The elections were held on four dates between August 28 and September 2, 1977, and the tally of ballots showed that a majority of the production employees voted for "no union"; and the CPS employees voted nine for the Union, eight for "no union," seven for IBEW, and none for NSEA.6 Thereafter, the Regional Director scheduled a runoff election in the CPS employee unit, between the Union and IBEW, the first and third choices of the voters, respectively. On September 8, 1977, the Respondent filed a Mo- tion for Reconsideration alleging, inter alia, that the Board's August 17 Order was contrary to Section 9(c)(3) of the National Labor Relations Act.7 Re- spondent requested that the two top choices of the CPS employees, the Union and "no union." appear on the runoff election ballot. In a Supplemental De- cision and Direction,8 the Board denied Respon- dent's motion for reconsideration to the extent that it would limit the ballot choices to the Union and "no union" (the two highest vote-getters respectively), and ordered "another election"; placing on the ballot the following three choices: the Union, IBEW. and "no union." On February 2, 1978, Respondent filed a complaint and a motion for preliminary injunction in On August 17. 1977. the Board by telegraphic order granted in part a motion for reconsideration filed by the Union. an Intervenor in the .original proceeding. which permitted the Union as well as the IBIEW to elect be- tween appearing on the ballot for the CPS employees or on the ballot for the overall unit. In the August 17 Order, the Board also stated that if a mnajorits of the ballots cast by the (CPS employees indicated a preference for separate representation, but neither union received a majoriti of the votes cast. then the Regional Director should hold a runoff election among the C(PS ernplos- ees. e NSEA was also on the CPS unit ballot as a choice for representation In the overall unit. 7I he last sentence to Sec. 9(c)(3) reads as follows: "In any election where none of the choices on the ballot receives a nmajoritl. a run-off shall he conducted. the ballot providing for a selection between the two choices receiving the largest and second largest number oIf valid votes cast In the election." 234 NLRB 125 (1978) the United States District Court for the District of Columbia. Respondent contended that the Board's Supplemental Decision and Direction was contrary to the National Labor Relations Act, as amended, and that the election, as proposed, should not be held. On February 17, 1978, Respondent's motion was denied. Pursuant to the Board's Supplemental Decision and Direction of Election, a further election was held between February 21 and February 28, 1978. The results, however, were not conclusive and a runoff election was held between April II and 18, 1978, in which the Union prevailed. No objections were filed and the Regional Director issued a Certifi- cation of Representative on April 26, 1978. It is well settled that in the absence of newly dis- covered or previouisly unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.9 When the Board made its unit determination in the Decision on Re- view, it was anticipated that once oil production be- gan in June 1977, the factual circumstances at Re- spondent's Prudhoe Bay facility would differ from those which were in existence at the time of the No- vember 1976 representation hearing. While Respon- dent alleges that it made changes in its operational and organizational structure, we find, for the reasons stated below, that they are not the kinds of changes which would require the Board to reexamine the de- cision it made in the representation proceeding. Therefore, we find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. As noted above, Respondent alleges that substan- tial changes have occurred at its Prudhoe Bay facility since the representation hearing on November 18, 1976. and that such changes render the unit which the Board found appropriate at 234 NLRB 125, su- pra. and which was certified by the Regional Direc- tor, inappropriate for collective-bargaining purposes. In support of this allegation, Respondent contends that: (I) it has increased the size of its work force from a November 1976 figure of 130 hourly employ- ees, to 261 hourly employees following the startup of oil production in June 1977, and as of August 1978, to 318 hourly employees: (2) since the time of the representation hearing, Gathering Center 3, a princi- pal unit of production operations, has been con- structed and is currently in operation some 500 yards from the CPS; (3) some months after production be- gan in June 1977, it relocated management officials formerly based 800 miles away in Anchorage, to ISee Pirrttsurgl Plale (Gls (o. v. .V LRB. 313 U.S. 146. 162 (1941). Rulcs Liand Regulartions of the Board. Secs 102.671f) and 102.69(c). 282 SOHIO PETROLEUM CO. Prudhoe Bay, the site of the operations, in an effort to integrate its supervisory structure; (4) a unitization agreement was executed in June 1977, which, in part, provides for an allocation of production costs among the 16 owners of the oil field, and rebuts any finding that CPS operates as a "public utility." Respondent further alleges that since the startup of oil production in June 1977, there has been increased on-the-job contact and similarity in working hours between CPS employees and nonunit employees, and that since January 1977, a training program has been instituted, "covering job classifications both within and outside the power generation group...." In conclusion, Respondent argues that the above-alleged changes, having transpired since the time of the representation hearing, "nullify any relevance and continued appli- cability of factors previously relied upon by the Board" in making its unit determination, and that only a single overall unit is appropriate. Respondent therefore requests that summary judgment should be granted in its favor. We find no merit in Respondent's contentions. As to (1), while allegedly there has been a large overall percentage growth in Respondent's employee com- plement since the startup of oil production, there has not been a corresponding increase in the number of employees assigned to the Central Power Station.' ° As to (2), the alleged closeness in proximity of Gath- ering Center 3 to the CPS has little relevance to the appropriateness of the CPS unit, given the fact that the Board has already found that the CPS is not di- rectly involved in the oil production process." As to (3), Respondent does not contend that the alleged transformation of its organizational structure has caused any changes in the CPS employees' wages, hours, or other terms and conditions of employment. As to (4), the alleged unitization agreement issue may not be relitigated, as it was already considered and rejected by the Board in its August 17, 1977, Order denying Respondent's motion for reconsideration. Finally, as to Respondent's contentions concerning alleged employee contact and similarity in working hours and training, we find that Respondent has failed to show that with due diligence it could not have brought forth this evidence within a reasonably short period of time after its discover)y and/or imple- mentation.'l In this regard, we note that this evidence 10 There were approximatel? 22 employees on the CPS pa ,roll at the Inme of the hearing. As of July 1978, however, there were approximiatcl? 20 em- ployees assigned to the CPS (see Resp. Exh. I (affidavit appended to (rloss- Motion for Summary Judgment. at par. 5) ). I 230 NLRB 986. 988. 12 Respondent cites Frito lao. Inc.. 177 NLRB 820 (1969), in support of its contention that the CPS unit is not appropriate for purposes of collectise- bargaining because "the factors relied upon by the Board are shon hn the new evidence to have changed since the Urll determination" frito -l.r, was first brought to the Board's attention in Respon- dent's Cross-Motion for Summary Judgment and in its response to the Order To Show Cause, both dated August 7. 1978, despite the fact that Respondent cites alleged increased employee contact and simi- larity in working hours and training as developments arising from the production startup in June 1977, and the institution of a formal training program in Janu- ary 1977. In these circumstances, we find that the alleged evidence should not be considered newly dis- covered or previously unavailable evidence and does not constitute special circumstances warranting the relitigation of issues raised in the representation case. 3 We shall, accordingly, deny Respondent's Cross-Motion for Summary Judgment and grant the General Counsel's Motion for Summary Judgment.'4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent, SOHIO Petroleum Co., a Divi- sion of SOHIO Natural Resources Co. (formerly B. P. Alaska, Inc.), is a Delaware corporation with its office and place of business in Anchorage, Alaska, where it is engaged in the production of petroleum products. During the past calendar year, Respondent purchased and caused to be transferred and deliv- ered to its facilities within the State of Alaska. goods and materials valued in excess of $50,000 directly from sources outside said State or from suppliers within said State which in turn obtained such goods and materials directly from sources outside said State. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that hoeuveer. is distinguishable from the factual situation at issue in the ilstant case In that case. the Board dismissed Ihe refusal-to-bargain complaint and found the presiously certified unit inappropriate because the "essential fac- Ior" upon which the Board had based its earlier unit determination (the autonomy of area managers) was eliminated due to the Emplo)er's reorga- nization of its operations. The Board also noted that the Emplover's reorga- nization project had been in the planning stage prior to the commencement of the representation proceeding and was not instituted In order to avoid coimpliance with the Board's unit finding. In the Instant case. the Board considered numerous factors in reaching its determination as to unit appro- priatetness. and while Respondent alleges that it made numerous changes. thes are not. for the reasons stated in the text. the kinds of changes which would require the Board to reexamine the decision it made In the represen- taio0n proceeding. i Herila Ns, uriing ( enter. Inc.. 207 NL RB 826. 827 (1973) 4 t1is Ing denied Respondent's Cross-Motion for Summary Judgment. we likewle den'. for the same relasons. Respondent', request for a hearing ito determine the appropriateness of the unit. 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it will effectuate the policies of the Act to assert juris- diction herein. 11. TIIE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 302, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All powerhouse employees including all mainte- nance operators, linemen, transmission and dis- tribution technicians, substation technicians, and general helpers working in or out of Em- ployer's Central Power Station, and employed by Employer at its North Slope, Prudhoe Bay, Alaska, facility: excluding all office clerical em- ployees, professional employees, managerial em- ployees, confidential employees, guards, and supervisors as defined in the Act. 2. The certification Between April I I and April 18, 1978, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 19, designated the Union as their representative for the purpose of col- lective bargaining with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on April 26, 1978, and the Union continues to be such exclusive representa- tive within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about May 9, 1978, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about May 11, 1978, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 11, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its opera- tions described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company. 149 NLRB 1419, 1421, (1964), enfd. 350 F.2d 57 (1Oth Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. SOHIO Petroleum Co., a Division of SOHIO Natural Resources Co., (formerly B. P. Alaska, Inc.) is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 302, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All powerhouse employees including all mainte- nance operators, linemen, transmission and distribu- 284 SOHIO PETROLEUM CO. tion technicians, substation technicians, and general helpers working in or out of Emloyer's Central Power Station, and employed by the Employer at its North Slope, Prudhoe Bay. Alaska, facility: excluding all office clerical employees, professional employees, managerial employees, confidential employees. guards, and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 26, 1978, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 11, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, SOHIO Petroleum Co., a Division of SOHIO Natu- ral Resources Co. (formerly B. P. Alaska, Inc.), An- chorage, Alaska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with International Union of Operating Engineers, Local 302, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All powerhouse employees including all mainte- nance operators, linemen, transmission and dis- tribution technicians, substation technicians, and general helpers working in or out of Em- ployer's Central Power Station, and employed by the Employer at its North Slope, Prudhoe Bay, Alaska. facility: excluding all office clerical employees, professional employees, managerial employees, confidential employees, guards, and supervisors as defined in the Act. (b) In an)' like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Central Power Station. Prudhoe Bay, Alaska, facility copies of the attached notice marked "Appendix." " Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's repre- sentative. shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial. (c) Notify the Regional Director for Region 19. in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER JENKINS. dissenting: For the reasons stated in my dissent in the repre- sentation proceeding in this matter, 230 NLRB 986 (1978), I would not have run this election, and thus would not grant summary judgment. " In the event that this Order is enforced by a Judgment of a United States ( ourt of Appeals. the words in the notice reading "Posted hb Order of the National l.abor Relations Board" shall read "Posted Pursuant to a Judgment iof the Uinited States ( ourt of Appeals Enforcing an Order of the National Lah)or Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE vWILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Inter- 285S DECISIONS OF NATIONAL LABOR RELATIONS BOARD national Union of Operating Engineers. Local 302, AFL-CIO, as the exclusive representative of the employees in the bargaining unit de- scribed below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union. as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay. wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All powerhouse employees including all main- tenance operators, linemen, transmission and distribution technicians, substation techni- cians, and general helpers working in or out of Employer's Central Power Station, and em- ployed by the Employer at its North Slope, Prudhoe Bay, Alaska, facility; excluding all office clerical employees, professional em- ployees, managerial employees, confidential employees, guards, and supervisors as defined in the Act. SOHIO PETROLEUM Co. A DIVISION OF SOHIO NAIURAL RESOURCES Co (FORMERLY B. P. ALASKA. IN(C) 286