Pyrofax Gas Corp.

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pyrofax Gas Corporation and Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No. 59, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 1-CA-7028 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On June 11, 1970, Trial Examiner Charles W Schneider issued r his Decision in the above-entitled proceeding, granting General Counsel's Motion for Summary Judgment; finding no merit in the various contentions urged by Respondent in its response to the Trial Examiner's Order To Show Cause why the Motion for Summary Judgment should not be granted; further finding on the pleadings that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended; and recommending that Respondent cease and desist from such unfair labor practices and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's 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 reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this 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 Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that ' We have again examined the Board's Decision and Certification of Representative in Case 1-RC-10723 and made an independent review of the record and conclude that the Board's findings were correct Respondent, Pyrofax Gas Corporation, Hyannis, Mas- sachusetts, 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 Issue CHARLES W. SCHNEIDER, Trial Examiner: The case arises on a Motion for Summary Judgment filed by counsel for the General Counsel upon an admitted refusal by the Respondent to bargain with the certified charging Union, the Respondent contesting the validity of Board rulings in the representation proceeding in which the Union was certified The Representation Proceeding' Upon a petition filed in Case 1-RC-10, 723 under Section 9 of the National Labor Relations Act (29 U.S.C.A. 159) on July 30, 1969, by Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 59, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, herein called the Union, the Union and Pyrofax Gas Corporation, herein called the Respondent, entered into a Stipulation for Certification Upon Consent Election, which was approved by the Acting Regional Director of Region 1 of the Board on August 21, 1969 Pursuant to the stipulation, an election in an appropriate bargaining unit, described hereinafter, was held on Septem- ber 5, 1969, under the direction and supervision of the Regional Director to determine the question of representa- tion. Upon conclusion of the election, the parties were furnished a tally of ballots, which showed that of approxi- mately 6 eligible voters, 3 cast valid ballots for the Union, 2 cast valid ballots against the Union, and one ballot was challenged The challenged ballot was sufficient to affect the results of the election. On September 10, 1969, the Respondent filed timely objections to the conduct of the election, alleging in sub- stance that the Board agent conducting the election improp- erly permitted employees not designated as observers to challenge the ballot of Harold W Perry and that a challenge of Perry's ballot by the union business agent was untimely. Administrative or official notice is taken of the record in the representa- tion proceeding, Case 1-RC-10,723, as the term "record" is defined in Sec 102 69(f) of the Board's rules (Rules and Regulations and State- ments of Procedure, National Labor Relations Board, Series 8 as amended) See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), cert denied, 393 US 843; Golden Age Beverage Co, 167 NLRB No 24, enfd 415 F 2d 26 (C A 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va 1967), Intertype Co v NLRB, 401 F 2d 41 (C A 4, 1968), cert denied, 393 U S 1049 (1969), Follett Corp, et al., 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Section 9(d) of the National Labor Relations Act 185 NLRB No. 65 PYROFAX GAS CORPORATION On September 16, 1969, the Regional Director issued his Consolidated Report on Objections and Challenged Ballots In the report, the Regional Director stated that after investigation of the objection and the challenged ballot he found that Perry's eligibility to vote was challenged by the Board agent conducting the election, after discussion of Perry's status with the Respondent's manager, and in accordance with Board practice in situations where the agent has reason to believe the voter ineligible and none of the parties challenges him The Regional Director, there- fore, recommended that the Respondent's objection be over- ruled. After consideration and discussion of Perry's status the Regional Director found him to be a student ineligible to vote The Regional Director therefore recommended that the challenge to Perry's ballot be sustained, and that a Revised Tally of Ballots and a Certification of Representa- tive be issued. Thereafter, on September 29, 1969, the Respondent filed timely Exceptions to the Regional Director's Report on Objections and Challenged Ballot, and a brief in support thereof, in which the Respondent requested that the Board overrule the findings and recommendations of the Regional Director and invalidate the challenge to Perry's ballot, or in the alternative direct a hearing for the purpose of resolving any dispute as to the facts On January 29, 1970, the Board issued a Decision and Certification of Representative in which the Board stated, inter alia , that it, " has considered the Regional Director's consolidated report and the Employer's exceptions thereto, and hereby adopts the Regional Director's findings and recommendations." The Board further said that, " . the Employer's exceptions raise no material or substantial issues of fact or law which would require a hearing or warrant reversal of the Regional Director's findings or recommendations " The Board specifically found that Perry was a summer student and as such ineligible to vote Accordingly, the Board certified the Union as the collective-bargaining re esentative of the employees in the appropriate unit. The Unfair Labor Practice Case On March 4, 1970, the Union filed the instant unfair labor practice charge alleging that since the certification the Respondent was engaging in unfair labor practices by refusing to bargain with the Union On March 24, 1970, the Regional Director issued a complaint and notice of heanng alleging violations by the Respondent of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act, by refusing since on or about February 24, 1970, March 2, 1970, and at all times thereafter, to bargain collectively or meet with the certified Union On April 8, 1970, Respondent filed its answer to com- plaint, in which it denied the representative status of the Union, and the commission of unfair labor practices, but admitted most of the remaining factual allegations of the complaint. The Respondent reiterated its objections to the election and to the rulings of the Regional Director. Specifi- cally, the Respondent denied that the Board agent challenged Perry's ballot and contended that the ballot should be 259 counted and that there was substantial and material factual dispute requiring hearing The Respondent attached to its answer documents in support of its contentions On April 20, 1970, counsel for the General Counsel filed a Motion for Summary Judgment, dated April 17, 1970. On April 22, 1970, I issued an Order To Show Cause on General Counsel's Motion for Summary Judgment, returnable May 6, 1970, and subsequently extended, upon request by counsel for the Respondent, to May 13, 1970. Thereafter, the Respondent filed its Reply to Order To Show Couse on General Counsel's Motion for Summary Judgment No other responses have been received Ruling on Motion for Summary Judgment Respondent opposes granting of the Motion for Summary Judgment In its Reply to Order To Show Cause the Respondent reiterates its contentions made in the representa- tion case, disputing the Regional Director's finding that the challenge was made by the Board agent, and contending that there being no proper challenge, Perry's ballot should be counted. In addition the Respondent asserted that it has newly discovered evidence, referred to hereafter In conclusion, the Respondent prayed that the Motion for Summary Judgment be overruled and the complaint dis- missed in entirety or that a hearing be held It is established Board policy, in the absence of newly discovered or previously unavailable evidence, or special circumstances, not to permit litigation before a trial examiner in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceeding 2 This policy is applicable even though no formal hearing on objections has been provided by the Board Such a hearing is not a matter of right unless substantial and material issues are raised ' The Board has ruled that the Respondent's objections to the election raised no substantial or material issues Unless the Respondent's additional evidence is newly discov- ered, the Board's holding is binding on the Trial Examiner and may not be reviewed by him To justify its reception, newly discovered evidence must be "such evidence [as] will probably change the outcome of the litigation." Red-More Corp., d/b/a Disco Fair, 169 NLRB No 63 In addition, the evidence must be such that it was not discoverable previously with the exercise of due diligence. Schott Sheet Metal Products Co., 128 NLRB 415. The new evidence offered by the Respondent does not meet either of these tests ' Krieger-Ragsdale & Co, Inc., 159 NLRB 490, enfd 379 F 2d 517 (C A 7), cert denied 389 US 1041 See Pittsburgh Plate Glass Co v NL.R B, 313 U S 146, 162, NLRB Rules and Regulations, Sec 102 67(f) and 102 69(c) ' O K Van and Storage. Inc 127 NLRB 1537, enfd 297 F 2d 74 (C A 5) See N L R B v Air Control Windoi, Products Inc 335 F 2d 245. 249 (C A 5) "If there is nothing to hear, then a hearing is a senseless and useless formality " See also N L R B v Bata Shoe Co 377 F 2d 821, 826 (C A 4) cert denied 389 U S 917 " there is no requirement, constitutional or otherwise that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification " 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The new evidence is a letter dated} April 27, 1970 (a copy of which is attached to the Respondent's Reply to the Order To Show Cause) from Harold Perry to Bruce- P Phinney, the Respondent's branch manager at the location involved. In this letter Mr. Perry states his present recollec- tion to be that his right to vote was not challenged until after he had' cast his ballot. Mr. Perry's recollection in this respect appears contrary to that of Mrs Gene A. Raymond, the Respondent's observer at the election An affidavit of Mrs. Raymond's dated September 22, 1969, 17 days after the election, attached to the Respondent's brief to the Board in support of the Respondent's exceptions to the Regional Director's Consolidated Report on Objec- tions and Challenged Ballots,, indicates that Mr. Perry's vote was challenged before he cast his ballot In any event, this evidence is of such nature that it was discoverable by due diligence during the pendency of the representation proceeding. No explanation is offered for the failure to present it at that time In such circumstances I do not believe that it can be said that the evidence reflected in Mr. Perry's affidavit would either probably change the out- come of the litigation or was previously unavailable. In the light of these considerations the decision of the Board to the effect that the Respondent's objections raised no substantial' or material issues affecting the validity of the election is the law of the case at this stage of the proceeding, and may be reviewed only by the Board or a Court of Appeals. There thus being no unresolved matters requiring an evidentiary hearing the motion of counsel for the General Counsel for Summary Judgment is granted' Upon the basis of the record before me, I make the' following further FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Respondent, Pyrofax Gas Corporation, is and has been at all times herein mentioned a corporation duly organized under and existing by virtue of the laws of the State of Delaware and a wholly owned subsidiary of Texas Eastern Transmission Corporation At all times herein mentioned, Respondent has maintamedr its principal office and place of business at Houston, Texas, and has maintained a place of business at Route #132 in the Town of Hyannis, County of Barnstable, and Common- wealth of Massachusetts (herein called the Hyannis plant), and is now and continuously has been engaged at said, plant in the retail sale and distribution of liquified petroleum gas and retail sale and service of various gas appliances and related products Respondent in the course and conduct of its business causes, and continuously has caused at all times herein mentioned, large quantities of liquified petroleum gas and various gas appliances used by it in the retail sale and distribution of liquified petroleum gas and retail sale and service of various gas appliances to be purchased and trans- ported to interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts. Respondent's gross-volume of sales of liquified petroleum gas and various gas appliances exceeds $500,000 annually Respondent receives liquified petroleum gas and, various gas appliances valued in excess of $50,000 annually directly from, points located outside the Commonwealth of Massa- chusetts. The Respondent is, and has been engaged in commerce within the meaning of the Act. ii THE LABOR ORGANIZATION, INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES The following employees of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act All driver-salesmen, delivery-servicemen, and truck drivers employed by the Respondent' at its Hyannis plant, exclusive of clerical workers, guards„ and all supervisors as defined in the Act At all times since January 29, 1970, the Union has been the representative for the purposes of collective bargain- ing of a majority of the employees in the appropriate unit for purposes of collective bargaining On or about February 2, 1970, and on or about February 25, 1970, and on or about March 2, 1970, the Union requested' Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment On or about February 24, 1970, March 2, 1970, and all times thereafter, Respondent did refuse and continues to refuse to bargain collectively with the Union as, such representative By thus refusing to bargain collectively Respondent has engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act Upon the foregoing findings and conclusions, pursuant to Section 10(c) of the Act, I recommend that the Board issue the following ORDER A For the purpose of determining the duration. of'the certification, the initial-year of certification shall, be deemed to begin on the date the Respondent commences to. bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit.4 B. Pyrofax Gas Corporation, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from (a) Refusing to bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No 59, a/w International Brotherhood of Teamsters; Chauf- ' The purpose of this. provision is to insure that. the employees in the appropriate unit will be accorded the services of their selected bargain- ing agent for the period provided, by law See Mar-Jac Poultry Co, 136 NLRB 785, Commerce Co, d/b/a Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600 (C A (C A 5), cert denied 379 -U S 817, Burnett Construction Co, 149 NLRB 1419, 1421, 350 F 2d 57 (C A 10) PYROFAX GAS CORPORATION feurs, Warehousemen and Helpers of America, as the exclu- sive collective-bargaining representative of the employees in the following appropriate bargaining unit All driver-salesmen, delivery-servicemen, and truck driv- ers employed by, the Respondent at its Hyannis plant, exclusive of clerical workers, guards, and all supervisors as defined in the Act (b) Interfering with the efforts of said Union to negotiate for or represent employees as exclusive collective-bargaining representative 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No 59„a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclu- sive representative of all 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 place of busmessnn Hyannis, Massachusetts, copies of the notice attached hereto marked "Appendix."5 Copies of said notice on forms provided by the Regional Director for Region 1, after being duly signed by an author- ized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof and be maintained by the Respondent for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 1, in writing, within 20 days from receipt of this Decision, what steps the Respondent has taken to comply herewith 6 ' In the event no exceptions are filed • as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's 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 be changed to read "Posted[ Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." In the event these recommendations are adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 1, in writing, within 10 days from receipt of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 261 WE WILL NOT refuse to bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No 59, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargain- ing representative of all our following employees All driver-salesmen , delivery-servicemen, and truck drivers employed at our Hyannis plant, exclusive of clerical workers, guards, and all super- visors as defined in the Act. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclu- sive collective-bargaining representative. WE WILL bargain collectively with the Union as the exclusive collective-bargining representative of the employees in the appropriate unit, and if an understand- ing is reached we will sign a contract with the Union. PYROFAX GAS CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and- must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may, be directed to the Board's Office, 20th Floor, John F. Kennedy Federal Building, Cambridge & New Sudbury Streets, Boston, Massachusetts 02203, Tele- phone 617-223-3300.