Cooper/T. Smith, Inc.

1 325 NLRB No. 28 1 We therefore deny the Respondent’s cross-motion for summary judgment. NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. Cooper/T. Smith, Inc. and its wholly owned subsidi- aries, Crescent Towing Company, Inc. and Sa- vannah Docking Pilots Association, Inc. and International Organization of Masters, Mates Pilots, ILA, AFL–CIO. Case 10–CA–30470 December 19, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND LIEBMAN Pursuant to a charge and an amended charge filed on September 2 and October 8, 1997, respectively, the General Counsel of the National Labor Relations Board issued a complaint on October 16, 1997, alleg- ing that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus- ing the Union’s request to bargain following the Union’s certification in Case 10–RC–14795. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu- lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an an- swer admitting in part and denying in part the allega- tions in the complaint, and asserting affirmative de- fenses. On November 17, 1997, the General Counsel filed a Motion for Summary Judgment. On November 19, 1997, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. On December 2, 1997, the Respondent filed a response and cross-mo- tion for summary judgment. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain, but attacks the validity of the cer- tification on the basis of its contention in the represen- tation proceeding that the unit docking pilots are statu- tory supervisors. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all times material herein, Crescent Towing Com- pany, Inc. (Crescent), Savannah Docking Pilots Asso- ciation, Inc. (Savannah Docking), and Cooper/T. Smith, Inc. (Cooper/T), herein collectively referred to as the Respondent, have been affiliated business enter- prises. At all times material herein, Crescent and Savannah Docking have been wholly owned subsidiaries of Cooper/T, a Louisiana corporation, engaged in the movement of ships. At all material times herein, Savannah Docking, a Georgia corporation, with an office and place of busi- ness located in Savannah, Georgia, which it shares with Crescent, has been engaged in the movement of ships within the Port of Savannah. At all material times herein, Crescent, a Louisiana corporation, with an office and place of business lo- cated in Savannah, Georgia, which it shares with Sa- vannah Docking, has been engaged in the movement of ships within the port of Savannah. The Respondent admits and we find that Cooper/T, Savannah Docking and Crescent constitute a single in- tegrated business enterprise and are a single employer within the meaning of the Act. During the 12-month period preceding the issuance of the complaint, Savannah Docking and Crescent, in the course and conduct of their operations described above, have purchased at their Savannah, Georgia, lo- cation goods and services valued in excess of $50,000 directly from suppliers located outside the State of Georgia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held July 9, 1997, the Union was certified on August 7, 1997, as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and relief docking pilots employed by the Respondent at the Port of Savannah, Geor- 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 If 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.’’ gia, but excluding all other employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain About August 12 and 19, 1997, the Union requested the Respondent to bargain, and, since about August 21 and 22, 1997, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after August 21, 1997, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the un- derstanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (l0th Cir 1965). ORDER The National Labor Relations Board orders that the Respondent, Cooper/T. Smith, Inc., and its wholly owned subsidiaries, Crescent Towing Company, Inc. and Savannah Docking Pilots Associations, Inc., a sin- gle employer, Savannah, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Organiza- tion of Masters, Mates & Pilots, ILA, AFL–CIO, as the exclusive bargaining representative of the employ- ees in the bargaining unit (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employ- ment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time and relief docking pilots employed by the Respondent at the Port of Savannah, Geor- gia, but excluding all other employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Savannah, Georgia, copies of the at- tached notice marked ‘‘Appendix.’’2 Copies of the no- tice, on forms provided by the Regional Director for Region 10 after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since August 21, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 19, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Wilma B. Liebman, Member 3 COOPER/T. SMITH, INC. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with International Organization of Masters, Mates & Pilots, ILA, AFL– CIO, as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and relief docking pilots employed by us at the Port of Savannah, Georgia, but ex- cluding all other employees, guard and super- visors as defined in the Act. COOPER/T. SMITH, INC. AND ITS WHOL- LY OWNED SUBSIDIARIES, CRESCENT TOWING COMPANY, INC. AND SAVAN- NAH DOCKING PILOTS ASSOCIATION, INC.