The Shell Co. (Puerto Rico) Ltd.

THE SHELL COMPANY 647 The Shell Company (Puerto Rico) Limited and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 24-CA- 2525 June 27, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS Upon a charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 24, issued a complaint dated April 1, 1968, against The Shell Company (Puerto Rico) Limited, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Co- pies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon Respondent. With respect to the unfair labor practices, the complaint alleges in substance that on October 18, 1968, the Union was duly certified as the exclusive bargaining representative of Respondent's em- ployees in the unit found appropriate by the Board' and that, since on or about January 15, 1968, and thereafter, Respondent has refused and is refusing to recognize and bargain with the Union as such ex- clusive bargaining representative, although the Union has requested and is requesting it to do so. On April 11, 1968, Respondent filed its answer, which denied the commission of the unfair labor practices alleged and raised the following affirma- tive defenses: (1) Respondent did not at any time restrain or coerce its employees in the exercise of their lawful rights; (2) the election conducted by the Regional Director of the 24th Region on Au- gust 16, 1967, was not valid; (3) Respondent had never been afforded a hearing on its timely filed objections to the August 16, 1967 elec- tion; and (4) the election conducted by the Re- gional Director on May 31, 1967 was valid and its results should have been certified by the Re- gional Director. On April 18, 1968, the General Counsel filed with the Board a motion to strike denials and affir- mative defenses and for summary judgment, assert- ing, in view of admissions contained in Respon- dent's answer and other written admissions annexed as appendixes to the moving papers, that there are no issues of fact or law requiring a hearing, and praying the issuance of a Decision and Order find- ing the violations as alleged in the complaint. Thereafter, on April 24, 1968, the Board issued an Order Transferring Proceeding to the Board and Notice To Show Cause why the General Counsel's motion to strike denials and affirmative defenses and for summary judgment should not be granted. Thereafter, Respondent filed an answer opposing the General Counsel's motion to strike denials and affirmative defenses and for summary judgment. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Summary Judgment The record before us establishes that on January 23, 1967, the Union filed a petition in Case 24-RC-3067 , seeking to represent the service and maintenance employees of Respondent at San Juan International Airport in San Juan , Puerto Rico. Respondent sought to include all its production and maintenance employees at its plants in Catano and Guayanilla, and its offices in San Juan and Ponce, Puerto Rico . After a hearing , the Regional Director for Region 24 issued a Decision and Direction of Election on April 27, 1967 , in which he found ap- propriate for collective bargaining the following unit of employees: All production and maintenance employees employed by the Employer at its Catano and Guayanilla plants, at the International Airport at Isla Verde and at its offices at San Juan and Ponce , Puerto Rico, including airport atten- dants, yardmen and laborers, but excluding all office clerical employees , salesmen , profes- sional personnel , watchmen , guards and super- visors as defined in the Act. On May 31 , 1967, pursuant to the Direction, an election was held in which 13 valid votes were cast for the Union , and 14 valid votes were cast against the Union . Thereafter , Petitioner filed timely objec- tions to the election, contending that in the period between the filing of the petition and the holding of the election , Respondent had engaged in various unlawful acts and conduct designed to coerce and intimidate the employees to vote against the Union at the election . The Regional Director then con- ducted an administrative investigation of the objec- I Case 24-RC-3067 172 NLRB No. 63 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions , but issued no report of the results of his in- vestigation because Respondent offered and the Union agreed to a consent stipulation providing for the holding of a new election contingent upon the Union 's withdrawal of its objections to the election. After the parties executed this stipulation, the Union withdrew its objections and the Regional Director issued a Supplemental Decision and Direction of Second Election providing for the holding of a new election on August 16, 1967. On August 16, 1967, pursuant to the stipulation of the parties and the Direction of Election, an election was held in which 14 valid votes were cast for the Union , 1 1 valid votes were cast against the Union, and 2 votes were challenged . Thereafter, Respondent timely filed objections to the election, contending that on August 14, 1967, less than 2 days before the election , the Employer learned that the Union had sent out a circular letter , dated Au- gust 7, 1967, to the homes of employees that con- tained "false statements of importance with respect to the election." The Regional Director thereafter made an administrative investigation of said objec- tions and found that the statements contained in the letter either did not substantially depart from truth or that the employees were in a position to evaluate the truth of the facts asserted . The Re- gional Director further found that in any event, Respondent had an opportunity to reply or to cor- rect any alleged misrepresentation . He therefore concluded that Respondent 's objections did not raise substantial or material issues with respect to the validity of the election . A second Supplemental Decision overruling the objections was issued on October 18 , 1967, and the Union was accordingly certified by the Regional Director as the collective- bargaining agent of Respondent 's employees. Thereafter, Respondent filed with the Board a request for review of the Regional Director's Second Supplemental Decision and Certification of Representative , in which it claimed , inter alia, that a hearing should have been held on its objections. On November 27, 1967, the Board denied the request for review. On January 15, 1967 , the Union requested that Respondent bargain collectively with it as the representative of the employees in the certified unit, but Respondent refused . On February 26, 1968, the Union filed the charge upon which these proceedings are predicated. In its answer to the Board 's Notice To Show Cause , Respondent attacks the validity of the cer- tification, contending that its objections to the elec- tion held on August 16, 1967, should not have been overruled and that in any event it should have been afforded a hearing on its objections. The Respon- dent further contends the Board should now direct a hearing on the issues raised by its election objec- tions. It is thus clear that Respondent's answer to the Notice To Show Cause questions the validity of the Regional Director's Second Supplemental Decision and Certification of Respresentative on the same grounds heretofore presented to the Board in its request for review. Respondent neither asserts that it has any newly discovered evidence, nor sets out any special circumstances warranting reexamina- tion by the Board of the determinations made in the representation proceedings in Case 24-RC-3067. In essence, therefore, Respondent's answer to Notice To Show Cause attempts to relitigate issues which were involved in the prior representation case and which have already been considered and rejected by the Board. Accordingly, and as Respon- dent concedes its refusal to bargain, we find that Respondent has not raised any issue which is properly triable in the instant unfair labor practice proceeding.2 As all material issues have been previously de- cided by the Board or are admitted by Respon- dent's answer to this complaint, there are no mat- ters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's motion to strike denials and affirmative defenses and for sum- mary judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation engaged in the sale and dis- tribution of gasoline and other petroleum products on the island of Puerto Rico . During the past year, which period is representative of all times material herein , Respondent sold gasoline and other petrole- um products valued at in excess of $50,000 to firms, persons, or businesses directly engaged in in- terstate or foreign commerce , or to persons, firms, or businesses located in Puerto Rico whose opera- tions affect interstate or foreign commerce. Respondent admits, and we find, that Respon- dent 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. 2 Pittsburgh Plate Glass Company v. N.L R.B., 313 U.S. 146; Banco Credito Y Ahorro Ponceno, 167 NLRB 397 THE SHELL COMPANY II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees constitute a unit ap- propriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its Catano and Guayanilla plants, at the International Airport at Isla Verde and at its offices at San Juan and Ponce , Puerto Rico , including airport atten- dants, yardmen and laborers, but excluding all office clerical employees, salesmen , profes- sional personnel , watchmen , guards and super- visors as defined in the Act. 2. The certification On August 16, 1967, a majority of the employees of Respondent in the appropriate unit , in a secret- ballot election conducted under the supervision of the Regional Director for Region 24, designated the Union as their representative for the purposes of collective bargaining with the Respondent , and, on October 18 , 1967, the Union was certified as the collective-bargaining representative of the em- ployees in said unit and continues to be such representative. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 15, 1968, and continuing to date, the Union has requested and is requesting Respondent to bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in the above- described unit. Since January 15, 1968, and con- tinuing to date, Respondent has refused , and con- tinues to refuse , to bargain collectively with the Union as exclusive collective-bargaining represent- ative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above in the Board 's certification, and that the Union at all 649 times since October 18, 1967, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. We further find that Respondent has, since January 15, 1968, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit, and that, by such refusal, the Respondent has engaged in, and is engaging in, un- fair 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 III, above, occurring in connection with its opera- tions described in section I, above, have a close, in- timate, 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 unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom; upon request bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit ; and, if an understanding is reached, embody such understanding in a signed agreement. Since some of the employees in the unit ap- parently have little occasion to go to Respondent's principal office in San Juan, Puerto Rico, we shall also order Respondent to post the notice, attached hereto as an Appendix, at the Catano and Guaya- nilla plants, at the International Airport at Isla Verde, and at its office at Ponce, Puerto Rico, if Respondent has facilities for such posting. If not, Respondent shall mail a copy of the notice to each employee in the unit. CONCLUSIONS OF LAW 1. The Shell Company (Puerto Rico) Limited, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer at its Catano and Guayanilla plants, at the International Airport at Isla Verde, and at its offices at San Juan and Ponce, 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Puerto Rico, including airport attendants, yardmen, and laborers, but excluding all office clerical em- ployees, salesmen, professional personnel, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since October 18, 1967, the above-named 'labor organization has been the exclusive represent- ative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 15, 1968, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforementioned 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 Section 7 of the Act, and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning 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 Relations Board hereby orders that the Respon- dent , The Shell Company (Puerto Rico ) Limited, San Juan , Puerto Rico , its officers , agents, succes- sors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages , hours, and other terms and conditions of employment, with International Association of Machinists and Aerospace Workers , AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees employed by the Employer at its Catano and Guayanilla plants , at the International Airport at Isla Verde and at its offices at San Juan and Ponce , Puerto Rico, including airport atten- dants , yardmen and laborers , but excluding all office clerical employees , salesmen , profes- sional personnel , watchmen, guards and super- visors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed them by 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 understanding is reached, embody such un- derstanding in a signed agreement. (b) Post at its principal office at San Juan, and, if Respondent possesses facilities, at the Catano and Guayanilla plants, at the International Airport at Isla Verde, and at its offices at Ponce, all in Puerto Rico, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms pro- vided by the Regional Director for Region 24, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. If Respondent does not possess facilities for posting of the notice at the above-mentioned Catano and Guayanilla plants and at the International Airport at Isla Verde and at its offices at Ponce, Respon- dent shall mail a copy of said notice to each em- ployee in the unit. (c) Notify the Regional Director for Region 24, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. J In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " APPENDIX Notice to All Employees Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with International Association of Machinists and Aerospace Workers, AFL-CIO, as the ex- clusive representative of the employees in the bargaining unit described below. THE SHELL COMPANY WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees 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 described below, with respect to wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employees employed by the Employer at its Catano and Guayanilla plants, at the International Airport at Isla Verde and at its offices at San Juan and Ponce, Puerto Rico, including airport atten- dants, yardmen and laborers, but excluding all office clerical employees, salesmen , profes- 651 sional personnel, watchmen, guards and super- visors as defined in the Act. Dated By THE SHELL COMPANY (PUERTO Rico) LIMITED (Employer) (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 255 Ponce de Leon, Seventh Floor, El Hato Rey Building, Santurce, Puerto Rico 00919, Telephone 765-1125, if they have any questions concerning this notice or com- pliance with its provisions.