Cato Oil & Grease Co.

CATO OIL AND GREASE COMPANY Cato Oil and Grease Company and Oil, Chemcial and Atomic Workers International Union, Local 5-232, AFL-CIO. Case 16-CA-8248 May 22, 1979 DECISION AND ORDER By MEMBERS JENKINS, MURPHY, AND TRUESDALE Upon a charge filed on December 18, 1978, by Oil, Chemical and Atomic Workers International Union. Local 5-232, AFL-CIO, herein called the Union, and duly served on Cato Oil and Grease Company, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Acting Regional Director for Region 16, issued a complaint on Janu- ary 5, 1978, against Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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 hear- ing 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 November 17, 1978, following a Board election in Case 16-RC- 7568, 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 8, 1978, and at all times thereafter, Respondent has refused and con- tinues 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 January 12, 1979, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint. On February 2, 1979, counsel for the General Counsel filed directly with the Board a motion to transfer and continue proceeding before the Board and a Motion for Summary Judgment. On February 13, 1979, Respondent filed an opposition to the Gen- eral Counsel's motion. On March 1, 1979, the Board issued 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 Official notice is taken of the record in the representation proceeding. Case 16-RC-7568, as the term "record" is defined in Sec. 102.68 and Sec. 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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.va., 1967); Follett Corp. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. be granted. Respondent thereafter filed an opposition 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 it author- ity 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 answer to the complaint and in its various opposition papers to the General Counsel's respective motions, Respondent admits that the Union has de- manded bargaining and that it has refused to bargain. but Respondent denies the validity of the Board's cer- tification of the Union in the underlying representa- tive case. It asserts that the Board erred in its Supple- mental Decision and Certification of Representative 2 by finding that five individuals were supervisors and that the challenges to their ballots be sustained. The General Counsel contends that Respondent raises no defenses relating to the certification by the Board of the Union in the present case that were not already litigated in the representation proceeding. We agree. Review of the record herein, including that in Case 16-RC-7568, discloses that pursuant to a Stipulation for Certification Upon Consent Election an election was conducted among the employees in the stipulated unit on September 16, 1977, and that the tally of bal- lots furnished the parties after the election showed 38 votes for and 30 against the Union, and 14 challenged ballots, a sufficient number to affect the result. The Union filed timely objections to conduct affecting the results of the election; however, it subsequently re- quested the withdrawal of all the objections with ex- ception to that part of Objection 4 which alleged that Respondent engaged in conduct violative of Section 8(a)(1) of the Act. The withdrawal was subsequently approved. After investigation, the Regional Director, on December 16, 1977, issued his report on chal- lenged ballots and objection and notice of hearing, in which he concluded that substantial and material fac- tual issues exist with respect to the 14 challenged bal- lots and to that part of Objection 4 alleging that Re- spondent enaged in conduct violative of Section 8(a)(1) of the Act,3 and that these issues could be more appropriately resolved after a hearing. On Janu- ary 4, 1978, Respondent filed exceptions to the Re- gional Director's report, and on February 13, 1978, the Board issued its Decision and Order directing a hearing on the issues raised by the Union's challenges 2Not reported in hound volumes. 3 The Board does not, of course, make unfair labor practice findings in a representation proceeding. E.g.. Times Square Stores Corporatin, 79 NlRB 361. 365 (1948). 242 NLRB No. 70 431 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and a portion of its Objection 4. A hearing was held on April 26, 27, and 28, 1978. On July 19, 1978, the Hearing Officer issued his report on objection and challenges recommending that the Union's objection be overruled in its entirety, that the challenges to five ballots be sustained, that the challenges to nine bal- lots be overruled, and that the ballots counted. Both Respondent and the Union filed timely exceptions to the Hearing Officer's report. On November 17, 1978, the Board issued its Sup- plemental Decision and Certification of Representa- tive wherein the Board, having reviewed the record in light of the parties' exceptions, found that Respon- dent's exceptions raised no material issues of law or fact. However, the Board found, contrary to the Hearing Officer, that the challenges to two additional ballots be sustained. Since the remaining uncounted ballots were not sufficient in number to affect the election results, and the tally of ballots showed that the Union received a majority of votes cast, the Board certifies the Union as the collective-bargaining repre- sentative of the employees in the appropriate unit.4 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 relitigate issues which were or could have been litigated in a prior representation proceeding.5 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reeaxamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, an Oklahoma corporation with an office and place of business in Oklahoma City, Oklahoma, 4 In light of the record findings in the underlying representation proceed- ing, Respondent's denials of complaint allegations to the effect that an elec- tion was conducted and that a majority of the unit employees have selected the Union as their bargaining representative are without substance or ment. 5See Pittsburgh Plate Glass Co. v. N.L.R.B. 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sec. 102.67(f) and Sec. 102.69(c). where it is engaged in the manufacture and sale of grease and petroleum. During the past 12 months, a representative period, Respondent, in the course and conduct of its business operations, purchased and re- ceived goods valued in excess of $50,000 directly from suppliers located outside the State of Oklahoma. We find, on the basis of the foregoing, that Respon- dent 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 Oil, Chemical and Atomic Workers International Union, Local 5-232, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production, maintenance, laboratory, local trucking, laborers, janitoral and warehouse em- ployees of the Employer at its Oklahoma City, Oklahoma plant but excluding all other employ- ees and guards, watchmen and supervisors as de- fined in the Act. 2. The certification On September 16, 1977, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region 16, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on November 17, 1978, and the Union con- tinues 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 4, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on 432 CATO OIL AND GREASE COMPANY or about December 8, 1978, and continuing at all times thereafter to date, 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 Respondent has, since December 8, 1978, 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lend 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 commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/bla Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Cato Oil and Grease Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers Interna- tional Union Local 5-232, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All production, maintenance, laboratory, local trucking, laborers, janitoral, and warehouse employ- ees of the Employer at its Oklahoma City, Oklahoma, plant, but excluding all other employees and guards, watchmen, and supervisors as defined in the Act con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since November 17, 1978, 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 with the meaning of Section 9(a) of the Act. 5. By refusing on or about December 8, 1978, 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 them in Sec- tion 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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 Rela- tions Board hereby orders that the Respondent, Cato Oil and Grease Company, Oklahoma City, Okla- homa, 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 Oil, Chemical and Atomic Workers International Union, Local 5-232, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All products, maintenance, laboratory. local trucking, laborers, janitorial and warehouse em- ployees of the Employer at its Oklahoma City, Oklahoma, plant but excluding all other employ- 433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees and guards, watchmen and supervisors as de- fined 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 understand- ing is reached, embody such understanding in signed agreement. (b) Post at its office and place of business in Okla- homa City, Oklahoma, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 16, af- ter being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Oil, Chemical and Atomic Workers International Union, Local 5-232, 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 representa- tive of all employees in the bargaining unit de- scribed 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 agreement. The bargaining unit is: All productions, maintenance, laboratory, local trucking, laborers, janitorial and ware- house employees at our Oklahoma City, Okla- homa, plant but excluding all other employees and guards, watchmen and supervisors as de- fined in the Act. CATO OIL AND GREASE COMPANY 434