CSC Oil Co.

CSC OIL COMPANY 19 CSC Oil Company and Retail Store Employees Union, Local 1099, Retail Clerks International As- sociation, AFL-CIO. Case 9-CA-9165 August 28, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO mary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled "Reasons Why Summary Judgment Should Not be Granted Herein." 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: Upon a charge filed on February 21, 1975, by Re- tail Store Employees Union, Local 1099, Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on CSC Oil Com- pany, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a com- plaint on April 1, 1975, 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 no- tice of hearing before 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 December 12, 1974, following a Board election in Case 9-RC- 10442 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about December 20, 1974, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is re- questing it to do so. On April 9, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 12, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On May 19, 1975, Respondent filed a statement in opposition to the General Counsel's Motion for Summary Judgment. Subsequently, on May 23, 1975, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- 'Official notice is taken of the record in the representation proceeding, Case 9-RC-10442, 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 (C.A. 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 Supp. 573 (D C. Va., 1967), Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C A 7, 1968); Sec. 9(d) of the NLRA. Ruling on the Motion for Summary Judgment In its answer to the complaint and opposition and response to the Motion for Summary Judgment, the Respondent attacks the Union's representative status and certification basically because its objections should not have been overruled, specifically in view of the closeness of the election and because it was deprived of due process by the denial of a hearing on the material issues raised by the objections. Our review of the record, including that of Case 9-RC-10442, shows that pursuant to a Stipulation for Certification Upon Consent Election, an election was held on June 19, 1974, among Respondent's em- ployees in the appropriate unit. The tally of ballots showed four votes cast for and three votes cast against the Union and one challenged ballot. Re- spondent filed timely objections to conduct affecting the election, alleging in substance interrogation, mis- representations, a threat, and various promises of benefits if the Union got in, and that the Union in- structed an employee not to vote. Following an in- vestigation of the challenged ballots and Respondent's objections, the Acting Regional Direc- tor for Region 9 issued, on August 15, 1974, a report on election, challenged ballot, objections to election, and recommendations to the Board. He recommend- ed that the challenged ballot be sustained and, after concluding that the objections, including an addi- tional allegation by Respondent that its observer at one of the polling places was intoxicated and could neither carry out his duties nor cast an intelligent vote, raised no substantial or material issues affecting the results of the election, recommended that the ob- jections be overruled in their entirety and that the Board issue an appropriate certification. Thereafter Respondent filed a brief and exceptions to the report on election, challenged ballot, objec- tions to election, and recommendations to the Board urging the Board to sustain its objections and order a new election or to hold a hearing. Respondent al- leged the Acting Regional Director erred in his factu- al and legal determinations and that, in elections such as this where the outcome is determined by one 220 NLRB No. 10 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vote, the Board is under a higher duty to examine each alleged item of misconduct and to consider con- duct in the aggregate for its impact upon the election. Respondent also contended that full consideration of its objections was impaired because of the ex parte investigation in which its attorney was denied direct and cross-examination of witnesses and it was denied an opportunity to present a factual case. Respondent also contended it was denied due process and was entitled to a hearing on the material issues raised by its objections. On December 12, 1974, the Board issued a Deci- sion and Certification of Representative in which, af- ter considering the objections and the Acting Re- gional Director's report and after reviewing the record in light of the exceptions and briefs, the Board adopted the findings and recommendations of the Acting Regional Director and certified the Union. It thus appears that the Respondent's objections and due process contentions were considered in the underlying representation proceeding and may not be reconsidered here . Further, it is clear that to be entitled to a hearing Respondent must raise substan- tial or material issues and, as it did not do so in the representation case, it has not been denied due pro- cess? 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.4 2 Big Three Industries, Inc, Formerly Big Three Industrial Gas & Equip- ment Co., 214 NLRB No. 104 (1974); Raub Supply Company, 215 NLRB No. 75 (1974). 7 See Pittsburgh Plate Glass Co v. N LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c) 4 In the Motion for Summary Judgment , counsel for the General Counsel moves that certain denials of Respondent 's answer to the complaint be stricken. The denials relating to the representative status and certification of the Union are disposed of in the Ruling on the Motion for Summary Judg- ment. Respondent's denials as to the unit and its status as an Ohio corpora- tion are stricken because the Respondent stipulated thereto in the Stipula- tion for Certification Upon Consent Election . While Respondent admits a continuing request to bargain by the Union on or about December 20, 1974 it denies any violation of the Act but does not refer to the refusal-to-bargain allegation. Attached to the memorandum in support of the Motion for Sum- On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT CSC Oil Company is an Ohio corporation engaged in the distribution and retail sale of gasoline at vari- ous locations in the States of Ohio and Kentucky. During the past 12 months, a representative period, it has received gross revenues valued in excess of $500,000 and during the same period purchased goods and supplies valued in excess of $50,000 from suppliers located outside the States of Ohio and Ken- tucky, which it caused to be shipped in interstate commerce directly to its places of business in Ohio and Kentucky. Respondent's retail outlets involved in this proceeding are at 82 Carothers Road, New- port, Kentucky 41071; 7900 Beechmont Avenue, Cincinnati, Ohio 45230; and 5245 Ridge Road, Cin- cinnati, Ohio 45213. 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. II. THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union, Local 1099, Retail Clerks International Association, AFL-CIO, is a la- bor 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9 (b) of the Act: All gas station attendants employed by the Employer at its 7900 Beechmont Avenue, Cin- cinnati, Ohio 45230, 5245 Ridge Road, Cincin- mary Judgment is the Union 's letter of January 31, 1975, requesting Re- spondent to bargain and Respondent 's response thereto of February 10, 1975, in which its counsel advises the Union that Respondent declines to bargain with it. These uncontroverted letters establish a refusal to bargain by the Respondent and its answer is stricken to the extent that it denies a refusal to bargain . Accordingly, we find that the above allegations of the complaint stand admitted and are found to be true. CSC OIL COMPANY nati, Ohio 45213, and 82 Carothers Road, New- port, Kentucky 41071, locations ; but excluding all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. 2. The certification On June 19, 1974, 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 9 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 December 12, 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 December 20, 1974, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about February 10, 1975, 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 10, 1975, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. I,V. 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 1, 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- 21 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. CSC Oil Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 1099, Re- tail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All gas station attendants employed by the Em- ployer at its 7900 Beechmont Avenue, Cincinnati, Ohio 45230, 5245 Ridge Road, Cincinnati, Ohio 45213, and 82 Carothers Road, Newport, Kentucky 41071, locations; but excluding all office clerical em- ployees, professional employees, guards and supervi- sors as defined in the Act, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 12, 1974, the above-named la- bor 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 10, 1975, 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 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 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 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent CSC Oil Company, Newport, Kentucky, and Cincinnati, Ohio, 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 Retail Store Employees Union, Local 1099, Retail Clerks International Asso- ciation, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appropri- ate unit: All gas station attendants employed by the Employer at its 7900 Beechmont Avenue, Cin- cinnati, Ohio 45230, 5245 Ridge Road, Cincin- nati, Ohio 45213, and 82 Carothers Road, New- port, Kentucky 41071, locations; but excluding all office clerical employees, professional em- ployees, 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its outlets at 7900 Beechmont Avenue and 5245 Ridge Road, Cincinnati, Ohio, and 82 Car- others Road, Newport, Kentucky, copies of the at- tached notice marked "Appendix." S Copies of said notice, on forms provided by the Regional Director for Region 9, 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, 51n 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 Retail Store Employees Union, Local 1099, Retail Clerks International Association, 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 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 employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit: All gas station attendants employed by the Employer at its 7900 Beechmont Avenue, Cin- cinnati, Ohio 45230, 5245 Ridge Road, Cin- cinnati, Ohio 45213, and 82 Carothers Road, Newport, Kentucky 41071, locations; but ex- cluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. CSC OIL COMPANY