Howell Refining Co.

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howell Refining Company and Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case 23-CA-2568. May 10, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On March 22, 1967, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Howell Refining Company, San Antonio and Corpus Christi, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THE REPRESENTATION PROCEEDING[ CHARLES W. SCHNEIDER, Trial Examiner: Upon petition for certification as collective-bargaining representative under Section 9 of the National Labor Relations Act filed by Oil, Chemical and Atomic Workers International Union, AFL-CIO (the Union) and following hearing, the Regional Director for Region 23 on May 18, 1966, directed an election among the employees of Respondent, Howell Refining Company. In his Decision the Regional Director held, contrary to the contentions of the Respondent, that the Respondent's two refineries ' Official notice is taken of the representation proceeding, Howell Refining Co., Case 23-RC-2666 This includes such of the exhibits identified in Respondent's opposition to General located in San Antonio, Texas, and Corpus Christi, Texas, constituted a single multiplant bargaining unit, and further, that all clerical employees should be excluded from the unit. On May 27, 1966, the Respondent filed with the National Labor Relations Board in Washington, D.C., an Employer's request for review of Regional Director's Decision and Direction of Election, excepting to the Regional Director's determinations that the two refineries constituted one appropriate unit, and that all clerical employees be excluded from the bargaining unit. On June 8, 1966, the Board denied Employer's request for review on the ground that it "raise [d] no substantial issues warranting review except as to the unit placement of yield clerks." As to these the Board amended the Regional Director's Decision to permit yield clerks to vote subject to challenge. On June 15, 1966, an election by secret ballot was conducted in the appropriate unit under the supervision of the Regional Director. The Union received a majority of the valid ballots cast. On June 22, 1966, the Respondent filed timely objections to the election, asserting conduct by or attributed to the Union affecting the results of the election. On August 19, 1966, after investigation, the Regional Director issued a Supplemental Decision, Order and Certification of Representative in which he found Respondent's objections without merit, overruled the objections, and certified the Union as exclusive representative of all employees in the appropriate unit. On September 9, 1966, the Respondent filed with the Board timely objections to the Regional Director's Supplemental Decision, Order and Certification of Representative. On November 3, 1966, the Board denied Respondent's request for review on the ground that it "raise [d] no substantial issues warranting review " The Complaint Case On December 1, 1966, the Union filed the unfair labor practice charge involved in the instant case, in which it alleged that since the certification the Respondent has refused to bargain with the Union. On December 15, 1966, the General Counsel, by the Regional Director, issued a complaint alleging that Respondent had committed unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union upon request. In due course the Respondent filed its answer to the complaint in which certain allegations of the complaint were admitted and others denied. In its answer, filed on December 23, 1966, the Respondent admitted the jurisdictional allegations of the complaint, the fact of the election and the certification of the Union, and request of the Union to bargain thereafter. However, the Respondent, reiterating the position taken by it in the representation proceeding, denied the appropriateness of the bargaining unit and the validity of the certification. The Respondent further denied refusing to bargain, and denied the commission of unfair labor practices. On January 26, 1967, the General Counsel filed a motion for summary judgment, supported by accompanying documents, contending that Respondent's answer to the Counsel's motion for summary judgment as were presented to the Regional Director or the Board in connection with the disposition of the representation case See Sec 9(d) of the Act 164 NLRB No. 88 HOWELL REFINING CO. 513 complaint raised no triable issue of fact and that therefore there was no necessity of a hearing. On January 30, 1967, I issued an Order to Show Cause on General Counsel's motion for summary judgment. The parties were directed to show cause on or before February 15, 1967, as to whether or not the motion should be granted, with an additional direction to Respondent to specifically state whether or not it denied the authenticity of certain correspondence between the Union and the Respondent (copies of which were among documents attached to the motion for summary judgment), which indicated that the Respondent, following the certification, had refused requests of the Union to meet for the purpose of negotiating a labor agreement. On February 13, 1967, the Respondent filed an answer and opposition to the General Counsel's motion for summary judgment, supported by a brief and other documents, including copies of evidence which the Respondent had evidently submitted to the Regional Director in connection with the Respondent's objections to the election. In addition the Respondent in its opposition stated that it had advised the Union on December 14, 1966, by letter, that it was prepared to proceed to bargain with the Union in good faith, without waiving its objections to the election. While admitting the authenticity of the other correspondence above referred to, in which it declined to meet with the Union for bargaining purposes, the Respondent also stated that beginning January 16, 1967,2 the Union and the Respondent have been meeting and conferring for the purpose of negotiating a collective-bargaining agreement. On February 15, 1967, the General Counsel filed a response to the Order to Show Cause. Because of the representations made by Respondent concerning the negotiations in its answer and opposition to the motion for summary judgment, I issued a request for statement of position on February 17, 1967, seeking advice from the parties as to whether the motion for summary judgment should be disposed of on its merits, or whether disposition should be suspended pending outcome of the negotiations. All parties have filed statements: the Respondent in favor of suspension, the General Counsel and the Union in opposition. The ground stated for the General Counsel's opposition is that occurrences since December 14, 1966, are irrelevant and immaterial to the issues presented by the complaint. The Union represents that although it met with the Respondent on December 16, 1967 (sic), January 24, and February 8, the Respondent has refused to recognize the Union as certified. In view of these varying positions and representations, the motion for summary judgment will be disposed of on its merits at this time. If, as the Respondent contends, it is now bargaining in good faith, this does not make the case moot. Mexia Textile Mills, Inc., 339 U.S. 563, 567; Pennsylvania Greyhound Lines, 303 U.S. 261, 271. The Respondent opposes the General Counsel's motion for summary judgment. The Respondent contends, as it did throughout the representation proceeding, that the bargaining unit determined by the Regional Director is inappropriate, and that the Regional Director erroneously and without formal hearing overruled Respondent's objections to the election. Those contentions involve questions of fact and law which were decided by the Regional Director in the representation case, and which the Board affirmed by declining to review them for lack of a substantial issue. In the absence of newly discovered or previously unavailable evidence the Board will not permit litigation in a complaint case of issues which were decided or could have been litigated in a prior related representation proceeding.3 No newly discovered or previously unavailable evidence is offered by the Respondent. The determinations by the Regional Director, affirmed by the Board, as to the appropriateness of the bargaining unit, the merit of the Respondent's objections to the election, and the representative status of the Union, are thus the law of the case and binding on the Trial Examiner. The Respondent may, in exceptions to this decision, request the Board to reconsider the previous determinations, and if unsuccessful, have them reviewed by the appropriate court of appeals. The Trial Examiner, however, is without such authority. The admitted facts establish that following the certification the Union requested the Respondent to bargain and that the Respondent refused to do so. There are thus no material unresolved factual issues litigable before a Trial Examiner, and no matters requiring an evidential hearing. The record as made establishes the violations alleged in the complaint, summary judgment is appropriate, the General Counsel's motion therefore is granted, and I hereby make the following further findings: 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation with its principal office and place of business in the city of San Antonio, Texas, and is engaged in the refining of petroleum and related products at two refineries located in San Antonio and Corpus Christi, Texas. During the past 12 months, a representative period, Respondent in the course of its business operations manufactured, sold, and distributed products valued in excess of $50,000, which were shipped from Respondent's Texas refineries directly to points in States other than Texas. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The following employees of Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: 2 There is conflict as to this date The January 16, 1967, date is given by the Respondent in its opposition However, the Union, in a statement of position subsequently filed, gives a date of "December 16, 1967 " It is thus not clear which is the correct month 3 Pittsburgh Plate Glass Company v N L R.B., 313 U S 146, 162, Union Brothers, Inc., 162 NLRB 1505 And see Rules and Regulations of the National Labor Relations Board, Series 8, as revised January 1,1965, Sec 102 67(f) Denial of a request for review [of a decision by a Regional Director in a representation case] shall constitute an affirmance of the Regional Director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. See also Sec. 102 69(c) 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees, including truckdrivers, mechanics, and laboratory technicians employed at the Employer's two refineries in San Antonio, Texas, and Corpus Christi, Texas, excluding all office clerical employees, chemists, temporary construction workers, guards, watchmen and supervisors as defined in the Act. On June 15, 1966, a majority of employees of Respondent in the above-described unit selected the Union as their collective-bargaining representative in a secret-ballot election conducted under the supervision of the Regional Director for Region 23 of the Board in Case 23-RC-2666. On August 19, 1966, the Regional Director on behalf of the Board, after consideration of Respondent's objections to the above-described election, certified the Union as the exclusive collective-bargaining agent of the employees in the above-described unit At all times since August 19, 1966, and continuing to date the Union has been the representative for the purpose of collective bargaining of the employees in the above- described unit and by virtue of Section 9(a) of the Act, has been, and is now, the exclusive bargaining representative of all of the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. On or about August 22, 1966, and November 7, 1966, the Union requested the Respondent to bargain with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive bargaining representative of all of the employees in the appropriate unit. On or about August 25, 1966, Respondent refused, and since continues to refuse, to recognize and bargain with the Union as such representative. By thus refusing to recognize and bargain with the Union the Respondent has refused to bargain collectively in violation of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: workers, guards, watchmen and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate or bargain for or represent the employees in said appropriate unit as the exclusive bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively, with Oil, Chemical and Atomic Workers International Union, AFL-CIO, as the exclusive representative of the employees in the appropriate unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its San Antonio and Corpus Christi refineries copies of the attached notice marked "Appendix."5 Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by an authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.6 Mar-Jac Poultry Company, Inc, 136 NLRB 785; N.L R B v Commerce Co., 328 F 2d 600 (C A. 5), N L R.B. v. Burnett Construction Co , 350 F 2d 57 (C A 10) 5 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 6 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 23, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES ORDER A. The certification period is extended to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative.4 B. Howell Refining Company, San Antonio, Texas, its officers, agents, successors, and assigns, shall- 1. Cease and desist from: (a) Refusing to bargain collectively with Oil, Chemical and Atomic Workers International Union, AFL-CIO, as the exclusive bargaining representative of the employees in the following appropriate unit: All production and maintenance employees, including truckdrivers, machanics, and laboratory technicians employed at the Employer's two refineries in San Antonio, Texas, and Corpus Christi, Texas, excluding all office clerical employees, chemists, temporary construction Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Oil, Chemical and Atomic Workers International Union , AFL-CIO , as the exclusive bargaining representative of all the following employees: All production and maintenance employees, including truckdrivers , mechanics, and laboratory technicians employed at the Employer's two refineries in San Antonio, Texas, and Corpus Christi, Texas, excluding all office clerical employees , chemists, temporary construction workers, guards, watchmen and supervisors as defined in the Act. HOWELL REFINING CO. WE WILL NOT in any like or related manner interfere with , restrain , or coerce employees in the exercise of their rights under the Act. WE WILL bargain collectively with the Union as the exclusive bargaining representative of these employees and, if an understanding is reached, we will sign a contract with the Union. HOWELL REFINING COMPANY (Employer) Dated By 515. (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston , Texas 77002, Telephone 228-0611. 298-668 0-69-34