Bray Oil Co., Inc.

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bray Oil Company, Inc. and Local 232, Petroleum Drivers, Helpers & Allied Employees, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 3-CA-4797 July 17, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on February 16, 1972, by Local 232, Petroleum Drivers, Helpers & Allied Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Bray Oil Company, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint on March 15, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 July 28, 1971, following a Board election in Case 3-RC-5147 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; i and that, commenc- ing on or about September 24, 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 March 20, 1972, and March 31, 1972, Respon- dent filed its answer and amended answer, respec- tively, to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 28, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 10, 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 Opposition to Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 and in its response to the Notice To Show Cause, the Respondent con- tends, in effect, that the General Counsel's Motion for Summary Judgment be denied because the Board's disenfranchisement of two-thirds of the voters eligible to vote voided the representation election. It is the General Counsel's basic position that all issues raised by the Respondent have been decided by the Board. Accordingly, he contends that they may not be relitigated here and that he is entitled to summaryjudgment as a matter of law. We agree. The record in Case 3-RC-5147 shows that pur- suant to a Stipulation for Certification Upon Consent Election, the Regional Director, on May 25, 1971, conducted an election by secret ballot among the employees of the Respondent in the stipulated unit. The tally of ballots furnished the parties showed that of approximately eight eligible voters, seven ballots were cast, of which three were for, and two against, the Union. There were two ballots chal- lenged by the Respondent which were sufficient to affect the results of the election and which the Regional Director investigated. Thereafter, on June 8, the Respondent submitted to the Regional Director a letter objecting to the disenfranchisement of a large number of employees who were not included on the list of eligible voters and contending that the failure to include these eligible voters invalidated the election and required that it be set aside. On July 1, 1971, the Regional Director issued his Report on Challenges (1) concluding that the objection raising the disenfranchisement question was filed too late and thus should not be considered on the merits because of untimeliness and (2) recommending that the challenges be sustained and the Union be certified as the exclusive collective- bargaining representative of the employees in the stipulated unit. Thereafter, the Respondent filed with the Board a timely "appeal" from the Regional Director's report raising again the disenfranchise- ment issue. On July 28, 1971, the Board issued its i Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151, Inlertype Co v Penello, 269 Case 3-RC-5147, as the term "record" is defined in Secs 102 68 and F Supp 573 (D.C V A. 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 102.69(f) of the Board's Rules and Regulations , Series 8, as amended See 91 (C A 7, 1968), Sec 9(d) of the NLRA LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), 198 NLRB No. 34 BRAY OIL COMPANY, INC. 227 Decision and Certification of Representative in which, after considering the challenges, the Regional Director's report, and the Respondent's "appeal," it adopted the Regional Director's findings, conclu- sions, and recommendations and it specifically agreed that the Respondent's objections were not timely filed and that the Regional Director properly refused to consider them on their merits. According- ly, it certified the Union. 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 proceeding 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.3 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 Respondent, a New York Corporation, with its principal office and place of business at 259 Warren Street, Glen Falls, New York, and terminal at Whitehall Road, Fort Ann, New York, herein called Fort Ann Terminal, is, and has been at all times material herein, engaged in the sale and distribution of petroleum and related products. During the past 12 months the Respondent, in the course and conduct of its business operations, purchased, trans- ferred, and delivered to its plants goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to said plants directly from States other than the State of New York. We find, on the basis of the foregoing, that Respondent is, and has been at all times material 2 See Pittsburgh Plate Glass Co v. N L R B, 313 US 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c) 3 In its answer and amended answer, the Respondent denies having knowledge sufficient to form a belief as to the filing and service of the charge herein The Board has taken official notice of the record herein which establishes the filing with the Board and service on the Respondent of the unfair labor practice charge Further, the Respondent's answer does not treat with the allegations of the complaint relating to the Respondent's 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. 11. THE LABOR ORGANIZATION INVOLVED Local 232, Petroleum Drivers, Helpers & Allied Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of the Respondent employed at its town of Fort Ann, New York, terminal, excluding all office clerical employees and all guards, professional employees and supervisors as defined in the Act. 2. The certification On May 25, 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 3, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on July 28, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 22, 1971, 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 September 24, 1971, and continuing at all times thereafter to date, the commerce operations, its status as an employer, the Union's status as a labor organization , the status of Dana S Bray as an agent of the Respondent, the appropriate unit, and the allegations of the request and refusal to bargain As the Respondent has not denied, explained, or stated that it was without knowledge as to these allegations , and absent any showing of good cause to the contrary, we shall deem these allegations to be admitted and found to be true See Sec 102 20 of the Board's Rules and Regulations, Series 8, as amended 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 September 24, 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, 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 opera- tions 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 commerce and the free flow of com- merce. 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 thereform, 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 certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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. Bray Oil Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 232, Petroleum Drivers, Helpers & Allied Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees of the Respondent employed at its town of Fort Ann, New York, terminal, excluding all office clerical employees and all guards, professional employees 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 July 28, 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 September 24, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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, Bray Oil Company, Inc., its officers, agents, succes- sors, 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 Local 232, Petrole- um Drivers, Helpers & Allied Employees, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees of the Respondent employed at its Town of Fort Ann, New York, terminal, excluding all office BRAY OIL COMPANY, INC. 229 clerical employees and all guards, professional employees 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Fort Ann, New York, terminal copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 3, 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. terms and conditions of employment with Local 232, Petroleum Drivers, Helpers & Allied Em- ployees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 representa- tive 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 understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part- time em- ployees of the Respondent employed at its town of Fort Ann, New York, terminal, excluding all office clerical employees and all guards, professional employees and su- pervisors as defined in the Act. BRAY OIL COMPANY, INC. (Employer) 4 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." 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 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 compli- ance with its provisions may be directed to the Board's Office, Ninth Floor, Federal Building, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.