United Gas, Inc.

UNITED GAS, INC. 133 United Gas, Inc. and Oil, Chemical and Atomic Workers International Union AFL-CIO, Local 4-202. Case 16-CA-4446 November 10, 1971 DECISION AND ORDER 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: BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on August 11, 1971, by Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 4-202, herein called the Union, and duly served on United Gas, Inc., herein called the Respondent, the Acting General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a complaint on August 16, 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 June 30, 1971, following a Board election in Case 16-RC-5447 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; i and that, commencing on or about July 28, 1971,'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 August 31, 1971, Respondent filed its answer to the complaint, admitting in part and denying in part the allegations in the complaint. On September 15, 1971, counsel for the General Counsel filed directly with the Board a Motion-for Summary Judgment, alleging that the Respondent is attempting to relitigate the issues concerning the prior related representation case, 16-RC-5447. Subse- quently, on September 24, 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 not be granted. Respondent thereafter filed a response to Notice To Show Cause, called Respondent's Motion for Summary Judgment. i Official notice is taken of the record in the representation proceeding, Case 16-RC-5447 as the term "record" is defined in Sees . 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co, 167 NLRB 151, Intertype Co. v. Penello, RULING ON THE MOTION FOR SUMMARY JUDGMENT In its answer, and in its response to the Notice to Show Cause in which it has moved for summary judgment and a dismissal of the complaint, the Respondent contends that the districtwide bargaining unit defined in Case 16-RC-5447 is not appropriate because it fragments the smallest homogenous subdi- vision of the Respondent's administrative organiza- tion. The General Counsel argues, and we agree, that the Respondent is attempting to relitigate issues that were decided in the representation case, Case 16-RC-5447. A review of the record in Case 16-RC-5447, shows that the Regional Director issued his Decision and Direction of Election finding appropriate two sepa- rate district units, one of which is the Tyler district, the only district involved herein. The Respondent timely sought, and was granted, review of the Regional Director's Decision. It argued that a division unit, rather than separate district units, was the appropriate unit for bargaining. The full Board, affirming the Regional Director's unit findings in United Gas, Inc., 190 NLRB No. 123 (1971), found no merit in the Respondent's argument that short of a systemwide unit, only a divisionwide unit was appropriate. 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.2 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 in this unfair labor practice 269 F.Supp. 573 (D.C. Va, 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91 (CA. 7, 1968); Sec. 9(d) of the NLRA. 2 See Pittsburgh Plate Glass Co. v. N.L R B., 313 U S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 194 NLRB No. 19 134 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD proceeding. 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 At all times material herein, the Respondent, a Delaware corporation, has been continuously en- gaged in the sale and distribution of natural gas in the States of Texas, Louisiana, Florida, and Mississippi. The Respondent has maintained, for the purposes of administering its business operation, various geo- graphical districts, including the Tyler district with headquarters and offices in Tyler, Texas. During the past 12 months, a representative period, Respondent in the course and conduct of its business operations received gross income in excess of $500,000 from the sale and distribution of natural gas. During the same period, the Respondent purchased and received within the State of Texas goods and materials valued in excess of $50,000 directly from States other than the State of Texas. 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. II. THE LABOR ORGANIZATION INVOLVED 2. The certification On June 22, 1971, 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 16 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 June 30, 1971, and the Union continues 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 July 14, 1971, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about July 28, 1971, 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 employees in said unit. Accordingly, we find that the Respondent has, since July 28, 1971, 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, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 4-202, 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 of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer in its Tyler, Texas, district including servicemen, advanced service- men, crewmen, advanced crewmen, machine operators, crew leaders and custodians; but excluding office clerical employees, utility fore- men, meter readers, professional employees, guards, watchmen and supervisors as defined in 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(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 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 UNITED GAS, INC. 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 recogniz- ed 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 1419,142 1, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. United Gas, 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, Local 4-202, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer in its Tyler, Texas, district including servicemen, advanced servicemen, crew- men, advanced crewmen, machine operators, crew leaders and custodians; but excluding office clerical employees, utility foremen, meter readers, profession- al employees, guards, watchmen 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 June 30, 1971, 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 July 28, 1971, 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 135 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, United Gas, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing 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, Local 4-202, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer in its Tyler, Texas, district including servicemen, advanced service- men, crewmen, advanced crewmen, machine operators, crew leaders and custodians; but excluding office clerical employees, utility fore- men, meter readers, professional employees, guards, watchmen and supervisors 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 district headquarters and offices in Tyler, Texas, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 16, 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 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 In 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 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." 136 DECISIONS OF 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 Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 4-202, 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 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 production and maintenance employ- ees employed by the Employer in its Tyler, Texas, district including servicemen, ad- vanced servicemen, crewmen, advanced crewmen, machine operators, crew leaders and custodians ; but excluding office clerical employees, utility foremen, meter readers, professional employees, guards, watchmen and supervisors as defined in the Act.' UNITED GAS, INC. (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, Federal Office Building, Room 8A24, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.