Delek Refining, LTD

363 NLRB No. 41 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Delek Refining, LTD. and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Al- lied Industrial and Service Workers Interna- tional Union, AFL–CIO. Case 16–CA–158842 November 13, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN 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 August 27, 2015, by United Steel, Paper and Forestry, Rubber, Man- ufacturing, Energy, Allied Industrial and Service Work- ers International Union, AFL–CIO (the Union), the Gen- eral Counsel issued the complaint on August 31, 2015, alleging that Delek Refining, LTD (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain following the Union’s certification in Case 16–RC–149865. (Offi- cial notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regula- tions, Secs. 102.68 and 102.69(g). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer and an amended answer admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On September 15, 2015, the General Counsel filed a Motion for Summary Judgment. On September 17, 2015, 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 delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its contention, raised and rejected in the underlying repre- sentation proceeding, that the storeroom attendants do not share a community of interest with the unit employ- ees currently represented by the Union and, therefore, that they should not be included in the bargaining unit. 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). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a Texas limited partnership with an office and place of business in Tyler, Texas (the facility), and has been engaged in the business of refining petroleum.1 In conducting its business operations during the 12- month period ending July 31, 2015, the Respondent pur- chased and received at its Tyler, Texas facility goods valued in excess of $50,000 directly from points outside the State of Texas. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. We further find 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 a June 12, 2015 self-determination election, the Board issued a certification of representative on June 22, 2015, certifying that the Union may bargain for the employees in the voting group described below as a part of the existing unit of maintenance, production, operat- ing, and hourly safety employees2 it currently represents: Included: All storeroom attendants. Excluded: All supervisory employees as defined in the Act, technical, clerical, safety, plant protection and se- 1 The complaint alleges that the Respondent is a Texas corporation. In its amended answer, the Respondent denies this allegation and states that it is a Texas limited partnership. We have adopted the Respond- ent’s description of its business. The disagreement between the com- plaint allegation and the Respondent’s amended answer as to the de- scription of the Respondent’s business is not material to this proceeding and does not present an issue warranting a hearing. 2 This description of the existing unit is included in the complaint, the amended answer, and the parties’ current collective-bargaining agreement. We note that the certification of representative in Case 16– RC–149865 states that the existing unit is comprised of maintenance, production, and lab employees. However, there is no assertion in this proceeding that the description of the existing unit in the complaint and amended answer is incorrect. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 curity, marketing terminal, loading rack and its em- ployees and professional employees. At all material times since June 22, 2015, the Union has been and continues to be the exclusive collective- bargaining representative of the unit, including the voting group of storeroom attendants, under Section 9(a) of the Act. B. Refusal to Bargain On August 7, 2015, the Union requested that the Re- spondent recognize and bargain with it as the exclusive collective-bargaining representative of the bargaining unit employees inclusive of the voting group of store- room attendants. Since August 11, 2015, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the bar- gaining unit employees inclusive of the voting group of storeroom attendants. We find that the Respondent’s conduct 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 August 11, 2015, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of the unit employees inclusive of the storeroom attendants, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 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. ORDER The National Labor Relations Board orders that the Respondent, Delek Refining, LTD., Tyler, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with United Steel, Paper and Forestry, Rubber, Manufactur- ing, Energy, Allied Industrial and Service Workers Inter- national Union, AFL–CIO 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, bargain with the Union as the exclu- sive collective-bargaining representative of the following group of employees as part of the recognized unit of maintenance, production, operating, and hourly safety employees on terms and conditions of employment and, if an understanding is reached, embody the understand- ing in a signed agreement: Included: All storeroom attendants. Excluded: All supervisory employees as defined in the Act, technical, clerical, safety, plant protection and se- curity, marketing terminal, loading rack and its em- ployees and professional employees. (b) Within 14 days after service by the Region, post at its facility in Tyler, Texas, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent’s authorized representa- tive, 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. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate 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 August 11, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 16 a sworn certifi- cation of a responsible official on a form provided by the 3 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.” DELEK REFINING, LTD. 3 Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. November 13, 2015 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Kent Y. Hirozawa, Member ______________________________________ Lauren McFerran, Member (SEAL) 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 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 the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO as the exclusive collective-bargaining repre- sentative of the employees in the bargaining 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, bargain with the Union as the exclusive collective-bargaining representative of the fol- lowing group of employees as part of the recognized unit of maintenance, production, operating, and hourly safety employees, and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the following bargaining unit: Included: All storeroom attendants. Excluded: All supervisory employees as defined in the Act, technical, clerical, safety, plant protection and se- curity, marketing terminal, loading rack and its em- ployees and professional employees. DELEK REFINING, LTD. The Board’s decision can be found at www.nlrb.gov/case/16-CA-158842 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.