Samson Tug and Barge Co., Inc.

SAMSON TUG AND BARGE CO. 317 Samson Tug and Barge Company, Inc. and Inland Boatmen's Union of the Pacific, Puget Sound Division, affiliated with Seafarers International Union of North America, AFL-CIO. Case 19-CA-5348 November 24, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on July 1, 1971, by Inland Boatmen's Union of the Pacific Puget Sound Divi- sion, affiliated with Seafarers International Union of North America, AFL-CIO, herein called the Union, and duly served on Samson Tug and Barge Company, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint on September 9, 1971, against Respondent, alleging that Respondent 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 23, 1971, following a Board election in Case 19-RM-877 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 1, 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 September 17, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 22, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 29, 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 did not file a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 1 Official notice is taken of the record in the representation proceeding, Case l9-RM-877, as the term "record" is defined in Secs 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 (CA 4, National Labor Relations Board has delegated its authority 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 In its answer to the complaint, Respondent denies the validity of the Union's certification on the ground that in the underlying representation proceeding, Case 19-RM-877, the Board failed to accord it due process with respect to Respondent's Objection 2 to the election by failing to follow the Board's own instructions and precedents and by denying Respon- dent's motion for reconsideration of Objection 2; its motion to vacate its prior Decision and Certification of Representative; and motion either to direct a second election or a hearing on, or additional investigation of, Respondent's Objection 2. We find no merit in Respondent's position. The record in Case 19-RM-877 indicates that, in a mail ballot election conducted pursuant to a Stipula- tion for Certification Upon Consent Election, 10 ballots were cast for, and 9 against, the Union. Respondent thereafter filed timely objections to conduct affecting the results of the election which alleged, in substance, that after the employees had received their mail ballots, union representatives held two meetings of employees while the latter were in a pay status and that employees were informed by the Union that another election could not be held for 2 years if the Union lost the present election. After an investigation, the Regional Director issued a Report on Objections to Election in which he recommended that the objections be overruled in their entirety and the Union certified. The Respondent filed timely exceptions to the Regional Director's report. On June 23, 1971, the Board issued a Decision and Certification of Representative in which it adopted the findings and recommendations of the Regional Director and certified the Union. Thereafter, on July 19, 1971, the Respondent filed a motion for reconsid- eration of Decision and Certification of Representa- tive and Other Relief in which it requested a second election, or, alternatively, a hearing or additional investigation. The Board, in an Order of August 26, 1971, denied the motion as containing nothing not previously considered by the Board. 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 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 194 NLRB No. 46 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 I. THE BUSINESS OF THE RESPONDENT Respondent is an Alaska corporation engaged in the towing of barges in the State of Alaska and elsewhere. During the most recent calendar year income from sales and services to customers outside the State of Alaska exceeded $50,000 and the dollar volume of its sales and services to firms which, in turn, made sales to customers, outside Alaska exceeded $50,000. The total dollar volume of all its sales and services exceeded $500,000. 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. company owners, officers, shore employees and guards and supervisors as defined in the Act. 2. The certification On March 12, 1971, a majority of the employees of Respondent in said unit, in a mail ballot election conducted under the supervision of the Regional Director-for Region 19 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 23, 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 1, 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 1, 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 1, 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. II. THE LABOR ORGANIZATION INVOLVED Inland Boatmen's Union of the Pacific, Puget Sound Division, affiliated with Seafarers Internation- al Union of North America, AFL-CIO, is a labor organization 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 regular tug and barge employees; excluding 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 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 2 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) SAMSON TUG AND BARGE CO. 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 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, 1421, 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. Samson Tug and Barge Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Inland Boatmen's Union of the Pacific, Puget Sound Division, affiliated with Seafarers Internation- al Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular tug and barge employees; excluding company owners, officers, shore employees and guards and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 23, 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 1, 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 319 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Samson Tug and Barge Company, 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 Inland Boatmen's Union of the Pacific, Puget Sound Division, affiliated with Seafar- ers International Union of North America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All regular tug and barge employees; excluding company owners, officers, shore employees and guards 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 office in Sitka, Alaska, and aboard each of its boats copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 19 after being duly signed by Respondent's representative, 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 19, 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." 320 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 Inland Boatmen's Union of the Pacific, Puget Sound Division, affiliated with Seafarers International Union of North America, AFL-CIO, 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: Alh:regular tug and barge employees; exclud- ing.company owners, officers, shore employ- ees-'and guards and supervisors as defined in the Act. Dated By SAMSON TUG AND BARGE COMPANY, INC. (Employer) (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, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, - Washington 98101, Telephone 206-442-4532.