Emro Marketing Co.

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Speedway Petroleum, Division of Emro Marketing Company and Local 35, United Food and Com- mercial Workers International Union, AFL- CIO, CLC. Case 14-CA-17435 24 September 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS Upon a charge filed by the Union 18 May 1984, the General Counsel of the National Labor Rela- tions Board issued a complaint 5 June 1984 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act The complaint alleges that on 10 March 1984, following a Board election in Case 14-RC-9740, 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 10 May 1984, the Company has refused to bargain with the Union and since 9 May 1984, the Company has refused to furnish in- formation the Union requested On 18 June 1984 the Company filed its answer admitting in part and denying in part the allegations in the complaint, and raising affirmative defenses On 9 July 1984 the General Counsel filed a Motion for Summary Judgment On 12 July 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 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 admits its refusal to bar- gain and to furnish the Union with requested infor- mation, but attacks the validity of the certification on the basis of its objections to the election, and its position that the Union's determinative challenges to two ballots should have been overruled in the representation proceeding 1 The General Counsel ' In its answer to the complaint and response to the Notice to Show Cause, the Respondent contends that the Board s Decision and Certifica tion of Representative was invalid because the copy it received was not signed or sealed The Board s long established procedure in both representation and unfair labor practice cases is that the only signed decision remains in the argues that all material issues have previously been decided We agree with the General Counsel The record, including the record in Case 14- RC-9740, reveals that an election was held 29 July 1983 pursuant to a Stipulated Election Agreement The tally of ballots shows that of approximately eight eligible voters, four cast valid ballots for and two against the Union, there were two determina- tive challenged ballots The Company filed objec- tions to the election On 19 August 1983 the Re- gional Director issued his report recommending that the challenges to the ballots of James Smith and Kelly Corrigan be sustained and that the Com- pany's objections be overruled The Company filed exceptions to the recommendations On 10 March the Board adopted the Regional Director's report and certified the Union as the exclusive bargaining representative of the employees in the stipulated unit (Chairman Dotson dissented concerning the challenge to Smith's ballot ) On 24 April 1984 the Union requested in writing that the Company bargain and, on 9 May 1984, that the Company furnish the names, addresses, telephone numbers, dates of hire, and rates of pay for all unit employees Since 10 May 1984 the Company has refused to bargain with the Union and, since 9 May, has refused to provide the re- quested information It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding See Pittsburgh Glass Co v NLRB, 313 US 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, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding There are no factual issues regarding the Union's request for information because the Company, in its answer filed 18 June 1984, admit- ted that it refused to furnish the information We therefore find that the Company has not raised any formal case file All other copies of the Board s decisions, including those served on the parties and those sent to the Board s Regional Offices, are unsigned This procedure, of course, is dictated by practicality, and the obvious desire to free Board Members from the time consuming task of personally signing each and every copy of decisions the National Labor Relations Board Issues In this respect, the practice of the NLRB is the same as that of the Federal district and circuit courts of appeals Therefore, we find no merit in the Respondent s contention 272 NLRB No 46 EMRO MARKETING CO 283 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 FINDINGS OF FACT I JURISDICTION The Company is a corporation authorized to do business in Illinois, selling and distributing gasoline, food, and related products at its convenience store facility in Bethalto, Illinois, where it annually de- rives gross revenues in excess of $500,000 and pur- chases goods and materials valued over $50,000 di- rectly from outside the State 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 meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A The Certification Following the election held 29 July 1983, the Union was certified 10 March 1984 as the collec- tive-bargaining representative of the employees in the following appropriate unit All employees employed by the Employer at its Bethalto, Illinois facility, EXCLUDING station managers, office clerical and profes- sional 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 24 April 1984 the Union has requested that the Company bargain, and, since 9 May 1984, that the Company furnish the names, addresses, tele- phone numbers, dates of hire and rates of pay for all unit employees Since 10 May the Company has refused to bargain, and since 9 May has refused to furnish the requested information We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By refusing on and after 10 May 1984 to bargain with the Union, and by refusing on and after 9 May 1984 to provide the Union requested informa- tion necessary and relevant to its function as the exclusive collective-bargaining representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting corn- merce 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, on request, with the nec- essary and relevant information requested 9 May 1984 To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the int- 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 Or 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, Speedway Petroleum, Division of Emro Marketing Company, Bethalto, Illinois, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with Local No 35, United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC as the exclusive bar- gaining representative of the employees in the bar- gaining unit and refusing to provide the Union with information necessary for and relevant to the Union's performance as the exclusive collective- bargaining representative (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, and provide the Union with the information it re- quested 9 May 1984, including the names, address- es, telephone numbers, dates of hire, and rates of pay for all unit employees All employees employed by the Employer at its Bethalto, Illinois facility, EXCLUDING 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD station managers, office clerical and profes- sional employees, guards, and supervisors as defined in the Act (b) Post at its facility in Bethalto, Illinois, copies of the attached notice marked "Appendix "2 Copies of the notice, on forms provided by the Re- gional Director for Region 14, 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 (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 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 Na tional Labor Relations Board" shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al 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 No 35, United Food and Commercial Workers Interna- tional Union, AFL-CIO, CLC, as the exclusive representative of the employees in the bargaining unit and WE WILL NOT refuse to provide the Union with information necessary and relevant to the Union's performance as the exclusive collective- bargaining representative 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 employees employed by us at our Bethalto, Illinois facility, EXCLUDING station manag- ers, office clerical and professional employees, guards, and supervisors as defined in the Act WE WILL, on request, furnish the Union the in- formation it requested 9 May 1984, including the names, addresses, telephone numbers, dates of hire, and rates of pay for all unit employees SPEEDWAY PETROLEUM, DIVISION OF EMRO MARKETING COMPANY