Nightingale Oil Co.

NIGHTINGALE OIL CO. 1005 Nightingale Oil Company and Teamsters Local Union 25, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 1- CA-25980 July 17, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On January 17, 1989, the General Counsel of the National Labor Relations Board issued a complaint alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union's request to bargain follow- ing the Union's certification in Case 1-RC-18875. (Official notice is taken of the "record" in the rep- resentation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Re- spondent filed its answer admitting in part and de- nying in part the allegations in the complaint. On May 8, 1989, the General Counsel filed a Motion for Summary Judgment . On May 10, 1989, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted . The Respondent filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to recognize and bargain with the Union, but attacks the validity of the certification on the basis of its objections to the conduct of the election and to the Board's unit determination in the representation proceeding. All representation issues raised by the Respond- ent were or could have been litigated in the prior representation proceeding.' The Respondent does ' The Respondent contends, as it did in the representation proceeding, that the voting procedure employed by the Regional Office was imper- missible because it could have misled the employees regarding the identi- ty of the unit. We disagree, as we did in the representation case, and we reiterate that the decisions relied on by the Respondent-Hamilton Test Systems Y. NLRB, 743 F.2d 136 (2d Cir. 1984), NLRB v. Lorimar Produc- tions, 771 F.2d 1294 (9th Cir. 1985), and NLRB Y. New School for Social Research, 793 F.2d 503 (2d Cir. 1986)-are clearly distinguishable from this case. In this case, unlike those cited by the Respondent, the unit found appropriate by the Regional Director and ultimately by the Board, and the unit in which the Union has been certified, is identical to the one in which the election was directed and held That employees other than those in the unit were allowed to vote under challenge pending resolu- tion of the request for review filed by the Employer is immaterial in these circumstances. not offer to adduce at a hearing any newly discov- ered and previously unavailable evidence , nor does it allege any special circumstances that would re- quire the Board to reexamine the decision made in the representation proceeding . We therefore find that the Respondent has not raised any representa- tion issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Ac- cordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, a corporation, is engaged in the installation, maintenance, and repair of oil burner service equipment and in the retail sale of heating oil at its facility in Braintree, Massachusetts, where it annually purchases and receives products , goods, and materials valued in excess of $50,000 directly from points outside Massachusetts . 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held July 1, 1987, the Union was certified on July 8 , 1988, as the collec- tive-bargaining representative of the employees in the following appropriate unit: All full time and regular part time oil burner servicemen employed by the Employer at its Braintree, Massachusetts location, but exclud- ing all other employees, oil drivers, dispatch- ers, clerical employees, guards and supervisors 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 about July 25, 1988, the Union has request- ed the Respondent to bargain and, since about that same date, the Respondent has refused . We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. 295 NLRB No. 110 1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW By refusing on and after July 25, 1988, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit, 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. 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, Nightingale Oil Company, Brain- tree, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local Union 25, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit. (b) 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 oil burner servicemen employed by the Employer at its Braintree, Massachusetts location, but exclud- ing all other employees, oil drivers, dispatch- ers, clerical employees, guards and supervisors as defined in the Act. (b) Post at its facility in Braintree, Massachusetts, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Re- gional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. P If this Order is enforced by a judgment of a United States court of appeals, the words mlf 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 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 Teamsters Local Union 25, affiliated with International Broth- erhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclu- sive representative of the employees in the bargain- ing unit. 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 oil burner servicemen employed by us at our Braintree, Massachusetts location , but excluding all other employees, oil drivers, dispatchers, clerical employees, guards and supervisors as defined in the Act. NIGHTINGALE OIL COMPANY