Big Three Industries, Inc.

BIG THREE INDUSTRIES, INC. Big Three Industries, Inc., formerly Big Three Indus- trial Gas & Equipment Co. and International Asso- ciation of Machinists & Aerospace Workers, AFL, CIO. Case 23-CA-5102 November 7, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on May 14, 1974, by Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Big Three Industries, Inc, formerly Big Three Industrial Gas & Equipment Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on June 7, 1974, 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 be- fore an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on April 16, 1974, following a Board election in Case 23-RC-3954 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about May 2, 1974, and at all times thereaf- ter, 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 June 11, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, submitting certain affir- mative defenses, and requesting that the complaint be dismissed and such other and further relief and orders as may be appropriate. On July 18, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, requesting that the Board find that all is- 'Official notice is taken of the record in the representation proceeding, Case 23-RC-3954, as the term "record" is defined in Secs 102 68 and 102 69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (CA 4, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26 (C A 5, 1969), Intertype Co v Penello, 269 F Suppl 573 (D C Va , 1957), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA 775 sues raised by Respondent were or could have been litigated in the representation proceeding, and that Respondent does not offer to adduce any newly dis- covered or previously unavailable evidence or any special circumstances which would require the Board to change its decision in the representation proceed- ing. The General Counsel further requests that, on the basis of these findings, the Board take appropri- ate action to remedy the Respondent's unlawful con- duct. Subsequently, on July 30, 1974, the Board is- sued 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 an answer to the Motion for Summary Judgment and thereafter a response to the notice to show cause in which it adopted and incorporated its answer to the Motion For Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 Respondent, in its answers to the complaint and Motion for Summary Judgment, assigns error to the proceedings in the underlying representation case. It argues that (1) the unit found by the Board was inap- propriate, as it is in derogation of the unit agreed upon by the parties; (2) a majority of the eligible voters did not vote in favor of the Union; (3) certain of the determinations in the representation case were based on perjured testimony and therefore are inval- id; and (4) by denying it time to prepare a response to an amendment to the petition in the representa- tion case hearing, the Board acted arbitrarily. In ad- dition, Respondent incorporates all its pleadings sub- mitted in the representation case. With regard to the instant proceeding, Respondent submits that an evi- dentiary hearing is necessary. Review of the representation case record, which we have before us, indicates that Respondent raised contentions (1), (3), and (4) in its numerous requests for review of the determinations made in the repre- sentation proceeding. In each instance, the Board, upon due consideration, found these requests for re- view did not raise substantial issues warranting re- view. Respondent sets forth no reason in this pro- ceeding why those rulings should be disturbed, be they newly discovered or previously unavailable evi- dence, special circumstances, or other reason. With respect to (2), that a majority of the eligible voters 214 NLRB No. 104 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not vote in favor of the Union, it appears that Respondent raised this contention in its objection to the election, but did not raise it in its exceptions to the Board of the Regional Director's resolution thereof. That it did not do so, however, is not to say that it could not have done so. Thus, having had the opportunity for Board consideration of the issue, Re- spondent is not now entitled to Board consideration of this issue. With respect to Respondent's contention that a hearing is required on its objections to the election and the unit issue it has raised throughout the pro- ceedings, we note that this request was made in its previous appeals to the Board, both in its request for review of the Regional Director's Decision and Direction of Election and his resolution of Re- spondent's objections to the election. On those oc- casions, we found, inter alia, that Respondent had not raised substantial issues warranting review, and thereby necessarily found that Respondent had not raised issues warranting a hearing. Absent the pre- sentation by Respondent of such substantial issues, it is clear that a hearing is not required,' thus we find no merit in its contention. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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 1. THE BUSINESS OF THE RESPONDENT Respondent, a Texas corporation maintaining its 2 N L R B v Golden Age Beverage Co, 415 F 2d 26 (C A 5, 1969), Amal- gamated Clothing Workers of America v N L R B, 424 F.2d 818 (C A D C, 1970), N L R B v Tennessee Packers, Inc, 379 F 2d 172 (C A 6, 1967) 3 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) principal office and place of business in Houston, Texas, is engaged in the manufacture of oxygen, acetylene, and nitrogen. During the past 12 months, which period is representative at all times material hereto, Respondent manufactured, sold, and shipped products valued in excess of $50,000 from its Hous- ton, Texas, facility, directly to States other than the State of Texas. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. 11. THE LABOR ORGANIZATION INVOLVED International Association of Machinists & Aero- space Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed at the Employer's 3602 West 11th Street, Houston, Texas, location, including Ran- some Company assemblers, electricians, fabrica- tors, machinists, parts pullers and welders, all inside salesmen, warehouse, shipping and receiv- ing clerks, city truckdrivers, Ransome truckdri- ver, Oxygen plant employees, laboratory em- ployees, repair shop employees, Victor Compa- ny employees and Ransome Company material control clerk, excluding all other employees, en- gineers, engineering draftsman and field ser- vicemen, outside salesmen and gas salesmen, au- tomatic welding employees, NOWSCO employ- ees, Bowen Tool Company employees, Sanstorm Division employees, Acetylene plant employees, Bayport, Corpus Christi and Dallas employees, Chauffeur, safety engineer, gas serviceman, switchboard operator and Herbert D. Carlton, Malcom A. Smith and Bruce Fuller, office cleri- cal employees, Ransome Company office em- ployees, temporary employees, professional em- ployees, guards and supervisors within the meaning of the Act. BIG THREE INDUSTRIES, INC 777 2. The certification On October 2, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 23, 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 April 16, 1974, 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 April 18, 1974, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about May 2, 1974, 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 collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since May 2, 1974, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate 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. 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, inti- mate, 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 commerce. V THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Big Three Industries, Inc., formerly Big Three Industrial Gas & Equipment Co., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists & Aerospace Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed at the Employer's 3602 West 11th Street, Houston, Texas, location, including Ransome Com- pany assemblers , electricians, fabricators, machinists, parts pullers and welders , all inside salesmen, ware- house, shipping and receiving clerks, city truckdri- vers, Ransome truckdriver, Oxygen plant employees, laboratory employees, repair shop employees , Victor Company employees and Ransome Company mate- rial control clerk, excluding all other employees, en- gineers, engineering draftsman and field servicemen, outside salesmen and gas salesmen, automatic weld- ing employees, NOWSCO employees, Bowen Tool Company employees , Sanstorm Division employees, Acetylene plant employees, Bayport, Corpus Christi and Dallas employees , Chauffeur, safety engineer, gas serviceman, switchboard operator and Herbert D. Carlton, Malcom A. Smith and Bruce Fuller, of- fice clerical employees , Ransome Company office employees, temporary employees , professional em- ployees, guards and supervisors within the meaning of the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section _9(b) of the Act. 4. Since April 16, 1974, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By refusing on or about May 2, 1974, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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 mean- ing 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 Re- lations Board hereby orders that Respondent, Big Three Industries , Inc., formerly Big Three Industrial Gas & Equipment Co., Houston, Texas, 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 con- ditions of employment with International Associa- tion of Machinists & Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees employed at the Employer's 3602 West 11th Street, Houston, Texas, location, including Ran- some Company assemblers , electricians, fabrica- tors, machinists, parts pullers and welders, all inside salesmen, warehouse, shipping and receiv- ing clerks, city truckdrivers, Ransome truckdri- ver, Oxygen plant employees, laboratory em- ployees, repair shop employees, Victor Compa- ny employees and Ransome Company material control clerk, excluding all other employees, en- gineers, engineering draftsman and field ser- vicemen, outside salesmen and gas salesmen, au- tomatic welding employees , NOWSCO employ- ees, Bowen Tool Company employees, Sanstorm Division employees, Acetylene plant employees, Bayport, Corpus Christi and Dallas employees, Chauffeur, safety engineer, gas serviceman, switchboard operator and Herbert D. Carlton, Malcom A. Smith and Bruce Fuller, office cleri- cal employees, Ransome Company office em- ployees, temporary employees , professional em- ployees, guards and supervisors within the meaning of 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 Houston, Texas, facility copies of the attached notice marked "Appendix." ° Copies of said notice, on forms provided by the Regional Di- rector for Region 23 after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices 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 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4In 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 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 Association of Machinists & Aerospace Workers, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 BIG THREE INDUSTRIES, INC. above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employees employed at the Employer's 3602 West 1 l th Street, Houston, Texas, location, including Ransome Company assemblers, electricians, fabricators, machinists, parts pullers and welders, all inside salesmen, warehouse, ship- ping and receiving clerks, city truckdrivers, Ransome truckdriver, Oxygen plant employ- ees, laboratory employees, repair shop em- ployees, Victor Company employees and Ransome Company material control clerk, ex- 779 cluding all other employees, engineers, engi- neering draftsman and field servicemen, out- side salesmen and gas salesmen, automatic welding employees, NOWSCO employees, Bowen Tool Company employees, Sanstorm Division employees, Acetylene plant employ- ees, Bayport, Corpus Christi and Dallas em- ployees, Chauffeur, safety engineer, gas ser- viceman, switchboard operator and Herbert D. Carlton, Malcom A. Smith and Bruce Full- er, office clerical employees, Ransome Com- pany office employees, temporary employees, professional employees, guards and supervi- sors within the meaning of the Act. BIG THREE INDUSTRIES, INC., FORMERLY BIG THREE INDUSTRIAL GAS & EQUIPMENT CO.