Houston Natural Gas Corp.

HOUSTON NATURAL GAS CORP. 1003 Houston Natural Gas Corporation and International Union of Operating Engineers, Local No. 347, AFL-CIO. Case 23-CA-4257 August 21, 1972 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on February 28, 1972, by International Union of Operating Engineers, Local No. 347, AFL-CIO, herein called the Union, and duly served on Houston Natural Gas Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on March 20, 1972, 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 December 3, 1971, following a Board election in Case 23-RC-3666, the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate;' and that, commencing on or about February 17, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On March 27, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 31, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 6, 1972, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent thereafter filed a response 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 authority in this proceeding to a three-member panel. 1 Official notice is taken of the record in the representation proceeding, Case 23-RC-3666, 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 (C A 4, 1968); 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 opposition to the General Counsel's Motion for Summary Judgment, Respondent denies the appropriateness of the unit, the validity of the election, the status of the Union as exclusive bargaining representative, and the commission of unfair labor practices. We find no ment in the Respondent's position. On October 22, 1971, the Acting Regional Director for Region 23 issued his Decision and Direction of Election finding: Employees classified as "Operators A" are properly included in the unit; the Union is qualified to represent the employees involved and has a sufficient showing of interest to support its petition; and lead operator Kitchens should be permitted to vote subject to challenge. Thereafter, the Respondent filed with the Board a request for review of the Acting Regional Director's Decision. By telegram dated November 11, 1971, the Board denied the request on grounds that it raised no substantial issues. In the election which followed, of approximately 17 eligible voters, 9 cast ballots for the Union, 3 against, and 5 were challenged, the latter being insufficient to affect the results of the election. Respondent thereafter filed timely objections to conduct affecting results of the election. Although requested to do so in a letter from the Regional Director, Respondent did not submit any evidence in support of its objections. Citing Mrs. Weaver's Salads, A Division of Dean Foods Co., Inc., 181 NLRB 197, and cases cited therein, the Regional Director found that the Respondent had failed ..o support its objections, overruled them in their entirety, and certified the Union as exclusive bargaining represent- ative of the employees in the unit herein found to be appropriate. Respondent filed a request for review in which it objected to the Regional Director's denial of a hearing on its objections and the imposition of a requirement that evidence in support of objections be furnished within 5 working days of the Regional Director's letter. The Board, in a telegraphic commu- nication, denied Respondent's request for review on the ground that it raised no substantial issues warranting review. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances of a respondent in a proceed- Golden Age Beverage Company, 167 NLRB 151, Intertype Co. v Penello, 269 F Supp 573 (D C Va , 1967), Follett Corporation, 164 NLRB 378, enfd 397 F 2d 92 (C A 7, 1968), Sec 9(d) of the NLRA 198 NLRB No. 35 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing 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. We shall, accordingly, grant the Motion for Summary Judgment.3 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a public utility, is a Texas corporation with its principal office in Houston, Texas, where it is engaged in the transmission, distribution, and sale of natural gas to residential, commercial, and industrial customers. During the past year it had a gross volume of business in excess of $250,000. During the same period, Respondent purchased goods and materials valued in excess of $50,000 from firms located in states outside the State of Texas, which goods and material were shipped directly to Respon- dent at its Texas locations. 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 International Union of Operating Engineers, Local No. 347, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2 See Pittsburgh Plate Glass Company v N LR B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 3 On July 11, 1972, approximately 2-1/2 months after filing its Opposition to the General Counsel's Motion for Summary Judgment, Respondent filed a Supplemental Opposition stating that it is "now possessed of substantial relevant evidence" which would require a dismissal of the complaint Thereafter, the General Counsel moved to strike this 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 operators A, B and C and apprentice operators, including maintenance operators and maintenance operator apprentices, employed by the Employer at its Houston Natural Gas Build- ing, Houston, Texas, excluding all other employ- ees, office clerical employees, guards, watchmen and supervisors as defined in the Act. 2. The certification On November 16, 1971, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 23, 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 December 3, 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 February 8, 1972, 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 February 17, 1972, 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 February 17,1972, 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 Supplemental Opposition As the Respondent has made no showing that the proffered evidence could not have been produced in the underlying representation proceeding , or was previously unavailable to it, or that special circumstances exist warranting reexamination of the Board's determination in the representation proceeding, we grant the General Counsel's Motion To Strike. HOUSTON NATURAL GAS CORP. 1005 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, 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. 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 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. Houston Natural Gas Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local No. 347, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All operators A, B, and C and apprentice operators, including maintenance operators and maintenance operator apprentices, employed by the Employer at its Houston Natural Gas Building, Houston, Texas, excluding all other employees, office clerical 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 December 3, 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 February 17, 1972, 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, 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, Houston Natural Gas Corporation, 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 International Union of Operating Engineers, Local No. 347, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All operators A, B and C and apprentice operators, including maintenance operators and maintenance operator apprentices, employed by the Employer at its Houston Natural Gas Build- ing, Houston, Texas, excluding all other employ- ees, office clerical 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 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Houston, Texas, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 terms and conditions of employment with Inter- national Union of Operating Engineers, Local No. 347, AFL-CIO , as the exclusive representa- tive 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 operators A, B and C and apprentice operators, including maintenance operators and maintenance operator apprentices, em- ployed by the Employer at its Houston Natural Gas Building, Houston, Texas, excluding all other employees, office clerical employees, guards, watchmen and supervi- sors as defined in the Act. HOUSTON NATURAL GAS CORPORATION (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 compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296.