Union Oil Co., of California, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union Oil Company of California, Inc. and Oil, Chemical and Atomic Workers International Union, AFL-CIO and its Local 1-128. Case 31-CA-7595 June 9, 1978 DECISION AND ORDER By CHAIRMAN FANNIN(G ANI) MfMBERS PENEI.O ANI) MURPIIY Upon a charge filed on December 22, 1977, by Oil, Chemical and Atomic Workers International Union, AFL-CIO and its Local 1 128, herein called the Union, and duly served on Union Oil Company of ('alifornia, Inc., herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint and notice of hearing on January 25, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing be- fore an Administrative lIaw 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 November 30, 1977, following a Board election in Case 31-RC 3874, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' that, com- mcncing on or about December 2, 1977, and continu- ing to date, the Union has requested, and is request- ing. Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment; and that, commencing on or about December 8, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is re- questing it to do so. On February 7, 1978, Respon- dent filed its answer admitting in part, and denying in part, the allegations in the complaint. Respondent admits all the factual allegations in the complaint but denies those paragraphs which relate to the underly- )Ofllcial notit e is Itakell o the rccord in ihe reprcsentationl proceeding. ('is 11 R( 3874, ais the terrl "rerord" is dfinerd in Sccs 102.68 and Ii'2 6,9(g) of the Board' Rs Rui. gind K ulaititns, Series 8,. as amended. See I I I:ht rr,,rr ms. Inr, I66t Nl.RH 938 (1967), .cnrd 388 F2d 683 (('A 4, 1968): (,iddn lgl &icrailei ( ,, 167 Nl.RH 151 (1967), cnfd. 415 F.2d 26 I( .A S. 1 9)69) Inicrirpe ( o. P'lhiii,. , 219 I Supp 573 ([).(' a., 19617) 1,1li/l (4err.. 164 Ni RH 178 (1967) crid 397 I 2d 91 (('.A. 7. 96)8: Sec ). I of the NL.RA, as aniicnddc. ing representation case and which allege that a ma- jority of the employees of Respondent in the unit described in the complaint designated and selected the Union as their representative for the purposes of collective bargaining and that the Union has been, and is, the representative of a majority of the em- ployees. Respondent also denies that it violated Sec- tion 8(a)(5) and (1) of the Act. On March 23, 1978, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment with exhibits attached. General Counsel requested that the Board take official or ad- ministrative notice of all documents described in the motion and all other relevant documents in Case 31- RC 3874. The General Counsel submitted in effect that Respondent in its answer was attempting to re- litigate issues which had been raised and litigated in the representation case and that no factual issues ex- ist which would require a hearing. On April 4, 1978, the Board issued an order transferring the proceed- ings to the Board and Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent has filed no response to the Notice To Show Cause, and accord- ingly the allegations of the Motion for Summary Judgment and attached exhibits stand uncontrovert- ed. 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 proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment As reflected above, Respondent admits all the fac- tual allegations of the complaint, including its refusal to recognize and bargain with the Union which has been certified as the collective-bargaining representa- tive of the employees described in the complaint. In its answer, Respondent alleged that at the Board's election, conducted on August 25, 1977, it challenged the ballots of at least two employees as "'confiden- tial employees' within Board and Court precedent" and that these ballots were subsequently counted. Respondent further alleged that, had these votes not been tallied, the majority of the eligible voting em- ployees' votes might have been against representa- tion by the Union. Respondent concluded that it has declined to bargain with the Union in a good-faith belief that the Union did not in fact obtain a majori- ty of the eligible votes at the election and that the unit, as presently constituted, includes persons who are in fact excluded from the unit and ineligible to 230 Nl.RB No. 95 818 UNION OIL COMPANY OF CALIFORNIA vote or be represented. The General Counsel con- tends that Respondent is improperly seeking to reliti- gate issues which were raised and decided in the un- derlying representation case. We agree with the General Counsel. Clearly, by its answer to the complaint, and more specifically by its denials, in whole or in part, of the allegations of the complaint and the allegations in its answer, Respondent is attempting to relitigate the same issues which it raised in the underlying repre- sentation case, Case 31-RC-3874, and which were decided against it therein. It is well settled that in the absence of newly dis- covered or previously 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.' All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is proper- ly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record. the Board makes the following: FINDINGS OF FACT I1 THE BUSINESS OF RESPONDENT Respondent is now, and has been at all time mate- rial herein, a corporation duly organized under and existing by virtue of the laws of the State of Califor- nia, with an office and principal place of business located in Los Angeles, California, and it is engaged in the operation of a refinery located at 1660 West Anaheim Street, Wilmington, California. In the course and conduct of its business opera- tions, Respondent annually sells and ships goods or services valued in excess of $50,000 directly to cus- tomers located outside the State of California. 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 2 See Pirrsburgh Plate Glass Co. v. NLRB.. 313 t.S 146 162 19411: Rules and Regulations of the Board. Secs 102 67(f) and 102.69(c). it will effectuate the policies of the Act to assert juris- diction herein. II THE I.AH()OR ()RG(;,NIZTI()N INVO \ ED Oil. Chemical and Atomic Workers International Union. AFL CIO and its Local I--128, is a labor or- ganization within the meaning of Section 2(5) of the Act. 11. IHE IUNFAIR LABOR PRACI I ES A. The Represenlation 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 unrepresented office clerical employees em- ployed at its refinery located at 1660 West Ana- heim Street, Wilmington. California. but exclud- ing all represented employees specified in the certification in Case 21 RC-740, confidential employees, professional employees. guards and supervisors as defined in the Act. 2. The certification On August 25. 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 31. designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the emplosees in said unit on November 30, 1977. and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Re.spondent'S Refusal Commencing on or about December 2. 1977, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about December 8. 1977. and continuing at all times thereafter to date. Respondent has refused. and continues to refuse. to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly. we find that Respondent has. since December 8, 1977. and at all times thereafter. refused to bargain collectively with the Union as the exclu- 819 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sive representative of the employees in the appropri- ate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. THE EFFECT OF TIHE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section Ill, above, occurring in connection with its opera- tions described in section I, above, have a close, initi- 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCI.USIONS OF LAW 1. Union Oil Company of California, Inc.. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO and its Local 1-128, is a labor organization within the meaning of Section 2(5) of the Act. 3. All unrepresented office clerical employees em- ployed at Respondent's refinery located at 1660 West Anaheim Street, Wilmington, California, but exclud- ing all represented employees specified in the certifi- cation in Case 21-RC-740, confidential employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 30, 1977, the above-named la- bor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 8, 1977, 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 them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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, Union Oil Company of California, Inc., Wilmington, California, its officers, agents, successors, and as- signs, 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 Oil, Chemical and Atomic Workers International Union, AFL-CIO and its Local 1-128, as the exclusive bargaining rep- resentative of its employees in the following appro- priate unit: All unrepresented office clerical employees at Respondent's refinery located at 1660 West An- aheim Street, Wilmington, California, but ex- cluding all represented employees specified in the certification in Case 21-RC-740, confiden- tial employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, 820 UNION OIL COMPANY OF CALIFORNIA 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 1660 West Anaheim Street. Wil- mington, California, facilities copies of the attached notice marked "Appendix." 3 Copies of said notice. on forms provided by the Regional Director for Re- gion 31, after being duly signed by Respondent's rep- resentative, 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 31, in writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. 3In the event that 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." APPENDIX NOTICE F To EMPL.ON [I S POSTED BY OR[)ER OF IHE NATIONAL LABOR REiLATIONS BOARD An Agency of the United States Government WE Will. NOT refuse to bargain collectively concerning rates of pay. wages, hours, and other terms and conditions of employment with Oil. Chemical and Atomic Workers International Union. AFL CIO and its Local I 128. as the exclusive representative of the employees in the bargaining unit described 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 pa). 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 unrepresented office clerical employees at our refinery located at 1660 West Anaheim Street, Wilmington, California, but excluding all represented employees specified in the cer- tification in Case 21 RC-740. confidential employees, professional employees, guards and supervisors as defined in the Act. UNION OIL COMPANY OF CALIFORNIa. IN( 821