Glover Bottled Gas Corp.

656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Synergy Gas Corporation a/k/a Glover Bottled Gas Corp. and Local 282, International ' Brotherhood of Teamsters,, Chauffeurs, ' Warehousemen and Helpers of America. Case 29-CA-12585 17 April 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT Upon a charge filed by the Union on 19 August 1986 and an amended charge filed on 26 September 1986, the General Counsel of the National Labor Relations Board issued a complaint on 3 October 1986 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(1) and (5) of the National Labor Relations Act. The complaint alleges that, on 6 February 1986, following a Board election in Case 29-RC-5495, the Union was certified as the exclusive collective- bargaining representative of the Company's em- ployees in the unit found appropriate. (Official notice is taken of, the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982). The complaint fur- ther alleges that since 9 April 1986 the Company has refused to bargain with the Union. Since 1 July 1986 the - Union has requested the names and ad- dresses of the employees in the unit, and the Re- spondent has refused to provide them. On 16 Octo- ber 1986 the Respondent filed its answer admitting in part and denying in part the allegations in , the complaint. On 27 January 1987 the ` General Counsel filed a Motion for Summary Judgment. On 2 February' 1987 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response on 16 March 1987.' i The Respondent's response is titled "Respondent's Opposition to Motion for Summary Judgment and Issuance of Decision and Order" The response raises two issues. The Respondent contends that the identity of the Union has changed in that Local 282 IBT was the certified bargaining agent of the employees in the bargaining unit, but the Respondent received written requests for bargaining from Building Material ' Teamsters, Local 282 We have exam- ined the'letters requesting bargaining and find that the Respondent could not have reasonably doubted the identity of the Union. Each letter bears along, its left margin the phrase "Affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica!'; and the Teamsters' "horsehead" logo. The Respondent also contends that two affidavits, relied on by the General Counsel to show that the Respondent was requested to bargain and did not, are invalid because they were given "on information and belief." We note that certain portions of the affidavits were given "on information and belief," but the relevant portions were given on personal knowledge. Both affidavits were given by Franklin K Moss, the Union's attorney. In his 27 August 1986 affidavit, par. 8, he stated that "[o]n The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer, denies that the Union re- quested it to bargain with it; denies that the Union requested the names and addresses of the unit em- ployees; and denies that the information is neces- sary for and relevant to the Union's performance of its function as collective-bargaining representative. The General Counsel argues that all material issues have been or could have been previously decided. We agree with the General Counsel. The record, including the record in Case 29- RC-5495, reveals that an election was held 11 Sep- tember 1981 pursuant to a Stipulated Election Agreement. The tally of ballots shows, that of ap- proximately 13 eligible voters, 5 cast votes for and 5 against the Union; there were 3 determinative challenged ballots. On 17 September 1981 the Respondent and the Petitioner filed objections to the election. On 10 November 1981 the Regional Director issued a Report on Challenged Ballots and Objections, Order Consolidating Cases and Notice of Hearing.2 On 20 November 1981 the Respondent filed excep- tions to the report. On 15 March 1982 the Board issued an unpub- lished Decision and Direction directing that other issues be considered as part of the hearing. On 5 August 1983 Judge D. Barry Morris issued a deci- sion in which he concluded that two of the' chal- lenged employees, Libynski and Nannery, had been discharged in violation of Section 8(a)(3) of the Act.3 Judge Morris stated that "it is likely the opening and counting of these [two] challenged ballots will produce a conclusive result." The judge recommended that Case 29-RC-5495 be sev- ered and remanded to the Regional, Director. The Respondent filed exceptions. On 10 September 1984 the Board remanded these proceedings ' to Judge Morris, consolidating them with Cases 29-CA-9764 and 29-CA-9811. On 29 November 1984 Judge Morris issued a supplemen- tal decision in which he reaffirmed his earlier rul- ings. The Respondent filed exceptions and a sup- porting brief. August 8, 1986, I caused to be mailed to Synergy Gas Corporation by certified mail, return receipt requested, the letter annexed as Exhibit F. To date, I have received no response ." This letter requested that the Re- spondent bargain with the Union and furnish it with information. We find that both the Respondent's contentions lack merit. 2 Cases 29-RC-5493 and 29-RC-5494 and Cases 29-CA-9116 and 29- CA-9117 were consolidated with the present case for the purpose of a hearing before an administrative law judge S The third determinative ballot was cast by employee Trypaulik. 283 NLRB No. 100 GLOVER BOTTLED GAS CORP. On 11 June 1985 the .Board affirmed Judge Morris' recommendation and ordered Case 29-RC- 5495 severed and remanded to the Regional Direc- tor.4 On 22 January 1986 the Regional Director opened the ballots of Libynski and Nannery; both ballots were for the Union. The revised tally of ballots shows seven votes for the Union, five against, with one nondeterminative challenged ballot.5 On 6 February 1986 the Acting Regional Direc- tor issued a certification "of representative certifying the Union as the exclusive collective-bargaining representative of the employees in the unit found appropriate. By letters dated 9 April, 28 July, and 8 August 1986 the Union requested that the Respondent bar- gain, and since 9 April 1986 the Respondent has re- fused to bargain with the Union. By letters dated 1 July 1986 and 8 August 1986 the Union requested the names and addresses of the employees in the bargaining unit, and since 1 July 1986 the Respond- ent has failed to provide the Union with the em- ployees' names and addresses.6 It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, I a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated) in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The, Company does not offer to 'adduce at a hearing any newly discovered and previously un- available evidence. We do not find any special cir- cumstances that would require the Board to reex- amine the decision made in the representation pro- ceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment. - On the entire record,' the Board makes the fol- lowing 4 275 NLRB 658 (1985). S The Regional Director served on the parties a revised tally of ballots that showed that a majority of the employees in the stipulated unit select- ed the Union as their collective-bargaining representative. In its answer, the Respondent, denied that it was asked to bargain with the Union and that the Union requested the employees' names and addresses. We note that the Union made its requests in writing, and the requests were forwarded to the Respondent by certified mail, return re- ceipt requested. FINDINGS OF FACT 657 I. JURISDICTION The Company, a New York corporation, is en- gaged in the sale of propane gas at its facility in Patchoque, New York, where during the past year it purchased and caused to, be transported and de- livered to its place of business in excess of $50,000 worth of goods and materials located outside of the State of New York.7 We find that the Company 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 organization within the mean- ing of Section 2(5) of the Act. H. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 11 September 1981, the Union was certified on 6 February 1986 as the collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time office cleri- cal employees employed by the Employer at its Patchoque, New York location; excluding all temporary employees, guards and supervi- sors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 9 April 4986 the Union has requested the Company to bargain. Since 9 April 1986 the Com- pany has refused. We find that this refusal consti- tutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. Since 1 July 1986, the Union has requested the Respondent to provide it ' with the names and ad- dresses of the employees in the bargaining unit de- scribed above in section II, A; such information is necessary and relevant to the Union's performance of its function as collective-bargaining representa- tive. CONCLUSIONS OF LAw By refusing on 9 April 1986 to bargain with the Union as the exclusive collective-bargaining repre- sentative of employees in the appropriate unit, and by refusing since 1 July 1986 to provide the Union with the names and addresses of the unit employ- ' In its answer, the Respondent denied that its principal location was Patchoque, New York, and that it is engaged in the nonretail sale of pro- pane gas. Counsel for the General Counel states that he does not contest these denials. We find that, as the Respondent admitted being engaged in interstate commerce, the denials do not raise issues requiring a hearing. 658' DECISIONS OF THE NATIONAL- LABOR RELATIONS BOARD ees, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 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 understanding in a signed agreement; and to "provide the Union with the names and ad- dresses of the unit employees.8 To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent 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 (10th Cir. 1965). - ORDER The National Labor Relations Board orders that the Respondent, Synergy Gas Corporation a/k/a Glover Bottled Gas Corp., Patchoque, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) -Refusing to bargain with Local 282, Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America as the exclu- sive bargaining representative of the employees in,, the bargaining unit. (b) Refusing to provide the Union with the names and addresses of the employees in, the unit. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: , All full-time and regular part-time office cleri- cal employees employed by the Employer at its Patchoque, New York location; excluding 8 The General Counsel's request for a visitatorial clause is denied, as such a clause is not necessary in the circumstances of this case. all temporary employees, guards and supervi- sors as defined in the Act. (b) Provide the Union with the names and ad- dresses of the unit employees. {c) Post at its facility in Patchoque, New York, copies of the attached notice marked "Appendix."' Copies of the notice, on forms provided by the Re- gional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by- the Respondent immediately upon receipt 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 notices are not altered, defaced, or covered by any other material. (d) _ Notify the Regional Director in writing within 20 days from the date of this Order what" steps the Respondent has taken to comply.'- 9 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 Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations, Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 282, International Brotherhood of Teamsters;, Chauf- feurs, Warehousemen and Helpers of America as the exclusive representative of the employees in the bargaining unit. WE WILL NOT refuse to provide the Union with the names and addresses of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the` exer- cise 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 regular part-time office cleri- cal employees employed by the Employer at its Patchoque, New York location; excluding all temporary employees, guards and supervi- sors as defined in the Act. GLOVER BOTTLED GAS CORP. 659 WE WILL provide the Union with the names and addresses of the unit employees. SYNERGY GAS CORPORATION A/K/A GLOVER BOTTLED GAS CORP.