Pittston Co.

404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metropolitan Petroleum Company of Massachusetts, Div. of Pittston Company and Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case l-CA-9986 January 31, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge and amended charge filed on July 16, 1974, and August 24, 1974, by Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Metropolitan Petroleum Company of Massachu- setts, Div. of Pittston Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on August 28, 1974, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commer- ce 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 an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges that on or about February 1, 1974, and July 1, 1974, Respondent granted unilateral wage increases to employees in a unit found appropriate by the Board in Case 1-RC-12767, without prior notification to or discussion with the Union, which had been certified as the exclusive collective-bargaining representative of the unit em- ployees in that proceeding. On September 10, 1974, Respondent filed an answer to the complaint, admitting the factual allegations of the complaint, but denying the appropriateness of the unit and the Union's representative status. On September 18, 1974, the General Counsel, by counsel, filed with the Board a Motion for Summary Judgment, submitting in effect that Respondent in its answer was attempting to relitigate issues which had been raised and litigated in the representation case, and in a s. bsequent unfair labor practice proceed- ing' in which Respondent was ordered to bargain with the Union. On October 1, 1974, the Board issued an order transferring the proceedings before it i Metropolitan Petroleum Company of Massachusetts, a Div. of Pittston Company, 209 NLRB 837 (1974). Y 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). 216 NLRB No. 63 and a Notice To Show Cause why the General Counsel's motion should not be granted. Respondent filed a response to the 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its response to the Notice To Show Cause, Respondent opposes the Motion for Summary Judgment on the grounds that the certification issued the Union in the representation proceeding is invalid due to the improper inclusion of dispatchers in the unit. Respondent further submits that this issue was litigated in the prior unfair labor practice proceeding, which is currently pending on appeal to the United States court of appeals; thus the court's decision on the Board's ruling on this issue will be dispositive of the issue in the instant case. Accordingly, Respond- ent suggests that the Board deny the Motion for Summary Judgment pending the court's decision. Respondent, as it admits in its response to the Notice To Show Cause, raised and litigated this issue in the prior unfair labor practice proceeding. In that matter, we reviewed the representation proceeding, and, in the absence of any newly discovered or previously unavailable evidence, found no cause to disturb our ruling therein. By reasserting its unit contention again, in this proceeding, Respondent is seeking to relitigate this issue anew, and again offers no newly discovered or previously unavailable evidence in support of a different ruling. In accord- ance with established precedent, relitigation of the unit issue is properly barred.2 We find no merit in Respondent's contention that we should defer our decision in this case until the court issues its decision in the previous unfair labor practice proceeding. It is well settled that collateral litigation does not suspend the duty to bargain under Section 8(a)(5),3 and it is likewise clear that a unilateral wage increase by an employer, which Respondent admittedly gave, while under a duty to bargain with a certified labor organization, is a violation of Section 8(a)(5).4 3 Great Dane Trailers, Inc, 191 NLRB 6 (1971); Porta•Kamp Manufactur- ing Company, Inc., 189 NLRB 899 (1971) (Chairman Miller dissenting on the basis of his dissent in the underlying 8(a)(3) case). 4 N L. R B v. Katz, 369 U.S. 736 (1962). METROPOLITAN Accordingly, we shall grant the General Counsel's Motion for Summary Judgment.5 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 , Respondent, Metro- politan Petroleum Company of Massachusetts, a division of the Pittston Company, a Massachusetts corporation, has been engaged in the storage, sale, and delivery of heavy and light fuel oil and related petroleum products at its facility located at 11 Broadway, Chelsea, Massachusetts. In the course and conduct of its business at the facility, Respondent receives annually from points located outside the Commonwealth of Massachusetts petroleum products valued in excess of $50,000. 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. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men 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 Representative Status of the Union 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 dispatchers and clerks at the Respondent's plant in Chelsea, Massachusetts , but excluding all other employees, guards, and supervisors as defined in the Act. 2. The certification At all times material herein, the Union has been the exclusive representative of all employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. s In view of our finding in the prior unfair labor practice proceeding that the unit found in the representation proceeding was appropriate, Respond- PETROLEUM CO. 405 B. The Refusal To Bargain On or about February 1, 1974, and on or about July 1, 1974, Respondent unilaterally granted wage increases to employees included in said unit, without prior notification to or discussion with the Union, notwithstanding the Board's prior certification of the Union and the Board's Order issued March 25, 1974, wherein Respondent was ordered to recognize and bargain with the Union as the collective-bargaining representative of said employees. Accordingly, we find that the Respondent has, since February 1, 1974, 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, Respond- ent 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, 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 commer- ce. 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. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Metropolitan Petroleum Company of Massa- chusetts, Div. of Pittston Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 25, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor ent's denial of the appropriateness of the unit does not raise an issue which may be litigated in this proceeding. DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization within the meaning of Section 2(5) of the Act. 3. All dispatchers and clerks at the Respondent's plant in Chelsea, Massachusetts, but excluding all other employees, guards, 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 August 17, 1973, 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 granting unilateral wage increases to employees in the appropriate unit on or about February 1, 1974, and July 1, 1974, Respondent has refused to bargain collectively with the above-named labor organization as the exclusive representative of all the employees in the appropriate unit, and 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 , Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed 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 (b) Granting unilaterally to the employees in the aforesaid appropriate unit wage increases or other economic benefits; provided, however, that nothing herein is to be construed as requiring Respondent to rescind, abandon, or vary any term or condition of employment heretofore established , unless it be as a result of collective bargaining. (c) 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 Chelsea, Massachusetts, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 1, 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 Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Metropolitan Petroleum Company of Massachusetts, Div. of Pittston Company, Chelsea, Massachusetts, 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 Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All dispatchers and clerks at the Respondent's plant in Chelsea, Massachusetts, but excluding all other employees, guards, and supervisors as defined in the Act. 6 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 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 Team- sters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. METROPOLITAN PETROLEUM CO. 407 WE WILL NOT grant unilateral wage increases or other economic benefits to the employees in the bargaining unit set forth 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 dispatchers and clerks at the Re- spondent's plant in Chelsea, Massachusetts, but excluding all other employees, guards, and supervisors as defined in the Act. METROPOLITAN PETROLEUM COMPANY OF MASSACHUSETTS, DIV. OF PITTSTON COMPANY