Warren Unilube, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 357 NLRB No. 9 44 Warren Unilube, Inc. and Teamsters Local 667. Case 26–CA–023999 July 15, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on April 1, 2011, the Acting General Counsel issued the complaint on April 21, 2011, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Un- ion’s request to bargain following the Union’s certifica- tion in Case 26–RC–8616. (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); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and deny- ing in part the allegations in the complaint, and asserting affirmative defenses. On May 12, 2011, the Acting General Counsel filed a Motion for Summary Judgment. On May 13, 2011, 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 Respondent filed a response. The Acting General Counsel filed a motion to strike and a response to the Respondent’s response. The Respond- ent filed an opposition to the Acting General Counsel’s motion.1 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, the Respondent denies its refusal to bar- gain2 and contests the validity of the Union’s certifica- 1 The motion to strike is denied. The Acting General Counsel has failed to establish that the Respondent’s initial failure to serve the other parties with its response to the Notice to Show Cause, which it correct- ed by providing copies of the document to the Acting General Counsel and the Charging Party when alerted of this error, prejudiced any party in any way. 2 Par. 9 of the complaint alleges that the Respondent has failed and refused to recognize and bargain with the Union as the exclusive col- lective-bargaining representative of the unit. The Respondent’s answer denies that the Union is the properly-certified exclusive collective- bargaining representative of the unit, and therefore denies the allega- tions of par. 9. However, the Acting General Counsel attached to his motion as Exh. 17 a letter dated March 30, 2011, from the Respond- ent’s attorney to the Union’s attorney, which states that “the Company respectfully declines the union’s request [to recognize and bargain with the Union] and will not meet for the purpose of negotiating a collective- bargaining agreement.” The Respondent does not contest the authentic- ity of this letter. Accordingly, we find that there is no existing material tion based on its objections to conduct alleged to have affected the results of the election in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).3 Accord- ingly, we grant the Acting General Counsel’s Motion for Summary Judgment.4 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Arkansas corporation, with an office and place of business in West Memphis, Arkansas, has been engaged in the blending and packaging of petroleum products.5 issue of fact warranting a hearing regarding the Respondent’s failure and refusal to recognize and bargain with the Union. The Respondent’s answer also denies the allegations in complaint pars. 10 and 11. These paragraphs state, respectively, the legal conclusions that the Respond- ent has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representative of its em- ployees in violation of Sec. 8(a)(5) and (1) of the Act, and that the unfair labor practices of the Respondent affect commerce within the meaning of Sec. 2(6) and (7) of the Act. Accordingly, the Respond- ent’s denials with respect to these allegations do not raise any material issues of fact to be litigated in this proceeding. 3 In its response to the Notice to Show Cause, the Respondent acknowledges that generally, in the absence of newly discovered or previously unavailable evidence or special circumstances, a respondent is not entitled to relitigate issues which were or could have been litigat- ed in a prior representation proceeding. This principle is longstanding and endorsed by the Supreme Court. See Pittsburgh Plate Glass Co., supra at 162. The Respondent argues, however, that such relitigation is warranted here because the facts in the prior representation proceeding establish that the Union’s status of majority representative did not result from a free and fair election, citing Sub-Zero Freezer Co., 271 NLRB 47, 47 (1984). Sub-Zero is one of a limited number of cases in which the Board has departed from the rule that, in a certification-testing unfair labor practice case, issues that had been presented to and decided by the Board in a prior, related representation case cannot be relitigat- ed. Having reviewed the facts and arguments presented by the Re- spondent in its response to the Notice to Show Cause, we find no basis for departing from our longstanding rule or disturbing our Decision and Certification of Representative in the underlying representation case. 4 We therefore deny the Respondent’s request that the complaint be dismissed with prejudice on all counts. 5 In its answer to the complaint, the Respondent admits the allega- tions of par. 2, except that it denies that “the blending and packaging of petroleum products” is a full and complete statement of its activities at WARREN UNILUBE, INC. 45 During the 12-month period ending March 31, 2011, the Respondent, in conducting its business operations described above, sold and shipped from its West Mem- phis, Arkansas facility goods valued in excess of $50,000 directly to points outside the State of Arkansas, and pur- chased and received at the same facility goods valued in excess of $50,000 directly from points outside the State of Arkansas. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, Teamsters Local 667, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following a representation election held on November 5, 2010, the Board certified the Union on March 16, 2011, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: INCLUDED: All full-time and regular part-time em- ployees, including production, plastics, blending, maintenance, warehouse, plant clericals, quality inspec- tors and truck drivers at the Respondent’s West Mem- phis, Arkansas facility; EXCLUDED: All office clerical employees, profes- sional employees, quality control employees, house- keeping employees, temporary employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain At all material times, Rusty Brown held the position of the Respondent’s plant manager, and has been a supervi- sor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. At all material times, an unnamed attorney has been an agent of the Respondent within the meaning of Section 2(13) of the Act. By letter dated March 22, 2011, the Union requested the Respondent to recognize and bargain with it as the exclusive collective-bargaining representative of the unit. Since about March 30, 2011, the Respondent has failed its facility in West Memphis, Arkansas. However, the description of the Respondent’s business is set forth in the Stipulated Election Agreement signed by the parties. We therefore find that the Respond- ent’s denial does not raise any issue which warrants a hearing. and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that this failure and refusal constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since March 30, 2011, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of the employees in the unit, the Respondent has engaged in unfair labor practic- es 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 recognize and bargain on request with the Un- ion, 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 initial period of the certifi- cation 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, Warren Unilube, Inc., West Memphis, Ar- kansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Teamsters Local 667, as the exclusive collective- bargaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, re- straining, 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, recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: DECISIONS OF THE NATIONAL ALBOR RELATIONS BOARD 46 INCLUDED: All full-time and regular part-time em- ployees, including production, plastics, blending, maintenance, warehouse, plant clericals, quality inspec- tors and truck drivers at the Respondent’s West Mem- phis, Arkansas facility; EXCLUDED: All office clerical employees, profes- sional employees, quality control employees, house- keeping employees, temporary employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in West Memphis, Arkansas, copies of the attached notice marked “Appendix.”6 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 26, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means.7 Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed its facilities involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 30, 2011. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 6 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 7 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB 11 (2010), Member Hayes would not require electronic distribution of the notice. 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with Teamsters Local 667, as the exclusive collective- bargaining representative of the employees in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employ- ees in the following bargaining unit: INCLUDED: All full-time and regular part-time em- ployees, including production, plastics, blending, maintenance, warehouse, plant clericals, quality inspec- tors and truck drivers at our West Memphis, Arkansas facility; EXCLUDED: All office clerical employees, profes- sional employees, quality control employees, house- keeping employees, temporary employees, guards and supervisors as defined in the Act. WARREN UNILUBE, INC.