Skelly Oil Co.

SKELLY OIL CO. Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct Marketing Branch) andAutomotive, Petroleum and Allied -Industries, -Local No.- 552, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 177-CA-4564 August 18, 1971 DECISION AND ORDER BY MEMBERS FANNING, BRowN, AND JENKINS Upon a charge and an amended charge filed on February 1, 1971, and March 24, 1971, respectively, by Automotive, Petroleum and Allied Industries, Local No. 552, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct Marketing Branch), herein called the Respondent, the General Counsel of the National Labor Relations Board, by _ the Regional Director for Region 17, issued a complaint on April 20, 1971, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor 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. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 18, 1970,1 following a Board election in Case 17-RC-6216 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commencing on or about December 15, 1970, and at all times thereafter, Respondent has refused, and continues to date to refuse, to-bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 29, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 1, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 8, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should r On May 25, 1970, the Board issued an order correcting its, May 18, 1970,. Decision and Certification of Representative by striking from the second line on page 3 thereof the words "Section 9(d)" and substituting therefor the words "Section 9(a)." 2 Official notice is taken of the record in the representation proceeding, Case 17-RC-6216, as the term "record" is defined in Sees. 102.68 and 741 not be granted. Respondent thereafter filed- a re- sponse to Notice To Show Cause. 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 proceeding to a three- member panel. - Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Judgment Summary, The record in Case 17-RC-6216 establishes ^ that, pursuant -to a Stipulation for Certification Upon Consent Election, an election was,, conducted on November 12, 1969, among' the employees in the stipulated unit. The tally of 'ballots shows that- of approximately, 23 eligible voters, 12 cast ballots for and 9 cast ballots -against the the Union, and 1 ballot was challenged. After the -election, the Respondent filed timely Objections -to Conduct Affecting the Results of the Election. The Respondent argued therein that alleged misrepresentations by a -union agent with respect to wages, occurring just prior to the election, -at a *time when no effective reply could be made, necessitated an investigation' and a second election. The Regional Director - investigated these objections, and- found them to be without merit because the misrepresentations- did not "constitute grounds to set aside the election under either the Board's customary test or `the Court's-test concerning employees' subjective reactions." Accordingly, he recommended that the objections be overruled by the Board and that the Union be certified as the exclusive collective-bargaining representative for the employ- ees in the stipulated unit. Thereafter, the Respondent filed timely exceptions with the-Boar`d to the Regional Director's Report, again arguing that the alleged misrepresentations dictated anew election or, alterna- tively, a hearing to resolve credibility issues not determined by the Regional Director.- On May 18, 1970, after full consideration of the record, the Board: issued its Decision and ' Certification 'of Representa- tive, in which it adopted the Regional -Director's recommendations and certified the Union, finding that the Respondent's exceptions, raised no material or substantial issue'of fact or law warrantingnreversal of the Regional Director's findings or recommenda- tions, or requiring a hearing. The basic position of the Respondent in both its 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystenti, Inc, 166 NLRB 938, enfd. 388 F.2d483 (CA. 4, 1968); Golden Age Beverage Co., 167 NLRB' 151; Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 192 NLRB No. 106 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answer to the complaint andits response to, the Notice To Show Cause is that,the Board's certification of the Union, was improper in the face of the Respondent's objections, ,and that the Respondent was denied a,due process, hearing on its objections to the conduct of the election. These -contentions have no merit in the unfair labor practice proceeding now before us. In the representation proceeding the Respondent had the opportunity to and did litigate the issues which it seeks to raise now. The fact that no evidentiary hearing was held with respect to the Respondent's objections to the election does not detract from this conclusion, for, as has been consistently held, an evidentiary, hearing is not required where, as is the case here, there are no substantial and material issues of fact to be determined.3 It is well settled that in the absence of newly discovered ; or previously unavailable, evidence or special circumstances„a respondent in a,proceeding alleging a,violation of, Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by the Respondent in this proceed- ing were or could have „been litigated in the prior representation proceeding, and the Respondent does not offer to,adduce at a hearing any newly discovered or previously , 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, the Respondent has not raised any issue which is properly litigable inmthis unfair labor practice proceeding.5 We shall, accordingly, grant the Motion for Summary- .Judgment.-On the basis of the entire -record, the Board makes the following: FINDINGS OF FACT 1. THE ,BUSINESS OF-,THE RESPONDENT The Respondent, a -Delaware corporation, is en- gaged in the manufacture, distribution, and wholesale and retail, sales of petroleum and petroleum products from installations in several States of the United States. In the course and conduct of its business operations, the Respondent maintains. and operates a division,known as the Kansas-City, Missouri,. Skelgas Direct Marketing Branch (the- only one of its 3 Lipman Motor., Inc., 187 NLRB No. 36, and cases cited therein. - + See Pittsburgh Plate Glass Co v. N.L.RB., 313 U.S. 146,162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). S In its answer to the complaint, the Respondent denied-that it is, or has been, an employer engaged in commerce within the meaning of the Act, and stated that,it was without knowledge as to whether the Union is, or has been, a-labor organization within the-meaning of the Act. However, these issues have been raised and determined in the underlying representation case and are not litigable herein. For its final affirmative defense, the installations, directly involved herein) which is en- gaged in, inter alia, wholesaling and distributing-liquid propane gas from a store maintained-and operated by it in Independence, Missouri. The Respondent's gross volume of sales of products exceeds $500,000 annual- ly. From its store in Independence, Missouri, the Respondent annually ships products valued in excess of $50,000 directly to customers located outside the State of Missouri. We find, on the basis of the foregoing, that Respondent 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 it will effectuate the policies of the Act to assert jurisdiction herein. U. THE LABOR ORGANIZATION INVOLVED Automotive, Petroleum and Allied Industries, Local No. 552, affiliated with the international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) ' of , the Act: All truckdrivers and maintenance employees of Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct Marketing Branch), Kansas City, Missouri, and vicinity, excluding all office clerical employees, salesmen, professional employees, guards'and' super- visors as defined in the Act. 2. The certification On November 12,1969, 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 17, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in,said unit on May 18, 1970, and the Union continues Respondent argues that the complaint should be dismissed on the bases of )aches and equitable estoppel, asserting that the Unions) delay in requesting bargaining and in filing its charges resulted in prejudice to the Respondent and the possibility that, if the Union mean a lost its majority, the Respondent might be forced to bargain with minority representative. As the Union's request and its subsequent arges all occurred during the 1-year certification period , which carries, an almost irrebuttable presumption of majority representation, we find , o merit in the Respondent's position. SKELLY OIL CO. 743 to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 20, 1970, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about December 15, 1970, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employ- ees in said unit. Accordingly, we find that the Respondent has, since December 15, 1970, 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, Respon- dent has engaged 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 the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce 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 meaning of Section 8(aX5) 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419,1421 , enfd. 350 F.2d 57 (CA. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct Marketing Branch) is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Automotive, Petroleum and Allied Industries, Local No. 552, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. All truckdrivers and maintenance employees of Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct Marketing Branch), Kansas City, Missouri, and vicinity, excluding all office clerical employees, salesmen, professional employees, guards and super- visors 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 May 18, '1970, the above-named labor 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 15,1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent '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 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 meaning 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 Relations Board hereby orders that Respondent, Skelly OR Co. (Kansas City, Missouri, Skelgas Direct Marketing Branch), its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 744 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD (a) Refusing to bargain collectively concerning, rates of pay, wages, hours, and other terms and conditions of employment with Automotive, Petroleum and Allied Industries, Local No. 552, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of 'America, as the exclusive bargaining representative of its employees in the following appropriate unit: All truckdrivers and maintenance employees of Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct Marketing Branch), Kansas City, Missouri, and vicinity, excluding all office clerical employ- ees, salesmen, professional employees, guards and supervisor as defined in the Act. (b) In any 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 understand-, ing is reached, embody such understanding in a signed agreement. - (b) Post at its Kansas City, Missouri, Skelgas Direct Marketing Branch copies of the attached notice marked "Appendix." &Copies of said notice,on forms provided by the Regional Director for ' Region 17, after being duly signed by Respondent's representa- tive, shall be posted by 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,, Respondent to insure that said notices are not altered;defaced,or covered by any other material. (c) Notify the Regional Director for,Region 17, in writing, within 20 days from the date of , this ;Order, what steps have been taken to.comply herewith. a 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS 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 Auto- motive, Petroleum and Allied Industries, Local No. 552, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and- Helpers of America, as the exclusive repre- sentative 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 wir L, upon request, bargain with the above- named Union,' as the exclusive representative of all employees in ' the bargaining unit described below, with respect to rates of pay, -wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a, signed agreement. The bargaining unit is: All truckdrivers and maintenance employees of Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct Marketing Branch), Kansas City, Missouri, and vicinity,, excluding all office clerical , employees, salesmen, profes- sional employees, guards and supervisors as defined in the Act. SKELLY OIL Co. (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 byany other material. Any ^questio`ns concerning this-notice or compliance with its provisions may be directed to -the Board's Office, 610 Federal Building, '601 East 12th Street; Kansas City, Kansas 64106, Tel. 816-374-5181.