Fuelgas Co., Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1980

250 N.L.R.B. 1312 (N.L.R.B. 1980)

DF. CISIONS OF NATIONAL LABOR RELATIONS BOARD
Fuelgas Company, Inc. and Local 486, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 7-CA-
17591
August 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.L.O
Upon a charge filed on March 31, 1980, by
Local 486, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union, and duly served on
Fuelgas Company, Inc., herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
7, issued a complaint on April 10, 1980, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge and complaint and notice of hearing before
an administrative law judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on November
30, 1979, following a Board election in Case 7-RC-
15531, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about March 19,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On May 7,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint, submitting certain defenses,
and requesting that the complaint be dismissed.
On June 9, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 13, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
I Official notice is taken of the record in the representation proceed-
ing, Case 7 RC-15531 as the term "record" is defined in Secs 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Eleciroystems. Inc, 166 NLRB 938 (1967), enrd 388 F.2d 683 (4th
Cir 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir 1969); Interrype Co. v. Penello, 269 F.Supp. 573
(D.CVa. 1967); Follett Corp. 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
250 NLRB No. 170
thereafter filed a response to Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent
denies, inter alia, that the unit found appropriate in
Case 7-RC-15531 constitutes a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act; and, thus, it
denies that the Union is the exclusive collective-
bargaining representative of the employees in the
unit. Respondent also contends that the decision of
the Regional Director overruling Respondent's ob-
jections to the election in Case 7-RC-15531 is con-
trary to Board precedent and the weight of evi-
dence in that proceeding; alternatively, it argues
that the Regional Director erred in not directing a
hearing to resolve the issues raised by its objec-
tions. Finally, Respondent pleads that the Regional
Director erred in denying Respondent's request
under the Freedom of Information Act for certain
information relevant to the Regional Director's
overruling of its objections, and that the Board
erred in denying Respondent's request for review
of the Regional Director's decision to overrule the
objections and Respondent's appeal of the Regional
Director's denial of Respondent's request for infor-
mation under the Freedom of Information Act.
The General Counsel contends, inter alia, that
the scope of the appropriate unit, and the merits of
Respondent's objections to the election, have been
fully litigated in representation proceedings in Case
7-RC-15531, and that Respondent has not averred
any newly discovered or previously unavailable
evidence or circumstances not previously consid-
ered in Case 7-RC-15531. Thus, the General
Counsel argues that all material issues have been
decided and that there are no litigable issues war-
ranting a hearing. We agree with the General
Counsel.
Review of the record herein, including the
record in the representation proceeding, Case 7-
RC-15531, establishes that pursuant to a Decision
and Direction of Election issued by the Regional
Director for Region 7 on September 4, 1979, an
election was directed to be conducted in a unit
comprised of all full-time and regular part-time em-
ployees, including bulk drivers, cylinder delivery
men, dockmen, service men, and installers, and util-
ity men employed by Respondent at its facilities in
1 1 2
FUELGAS COMPANY, INC.
West Branch and Rose City, Michigan, but exclud-
ing office clerical employees, guards and supervi-
sors as defined in the Act. Thereafter, Respondent
filed a request for review of the Regional Direc-
tor's Decision and Direction of Election, contesting
the two-branch office unit found appropriate by the
Regional Director. On October 3, 1979, the Board
denied Respondent's request for review of the Re-
gional Director's Decision and Direction of Elec-
tion on the grounds that Respondent's request for
review raised no substantial issues warranting
review.
The election was conducted on October 5, 1979.
The tally was nine votes for, and one vote against,
the Union, with two challenged ballots, an insuffi-
cient number to affect the results of the election.
Thereafter, Respondent timely filed objections to
conduct affecting the results of the election based
in substance on the allegation that the Union's elec-
tion observer, about 4 hours prior to the start of
the election, surreptitiously placed a red "X" in the
"Yes" box of the sample ballot appearing on the
notice of election posted on the employee bulletin
board at Respondent's Rose City facility. On No-
vember 30, 1979, the Regional Director issued his
Supplemental Decision and Certification of Repre-
sentative in which he found, inter alia, insufficient
evidence that the Union's election observer defaced
the sample ballot. Thereafter, Respondent in effect
filed a request for review of the Regional Direc-
tor's Supplemental Decision and Certification of
Representative. That request was denied by the
Board on February 15, 1980. Meanwhile, pursuant
to the Freedom of Information Act, 5 U.S.C. §
552, et seq., Respondent, on December 21, 1979, re-
quested that the Regional Director provide it with
the identity of the employee whom the Regional
Director indicated in his Supplemental Decision
defaced the sample ballot on the posted notice of
election in question, as well as the identity of the
witnesses who stated that the Union's election ob-
server was not the person who defaced the sample
ballot on the notice of election. In this regard, Re-
spondent also requested that the Regional Director
provide it with any affidavits or other writings re-
flecting the substance of the testimony provided by
employees to the Regional Director.
On January 8, 1980, the Regional Director
denied Respondent's request for the above-specified
information, claiming exemption from disclosure of
the requested information under several provisions
of the Freedom of Information Act. Thereafter,
Respondent appealed the Regional Director's
denial of its request for information to the Board.
On February 27, 1980, the Board denied Respond-
ent's appeal of the Regional Director's denial of
Respondent's request for information on substan-
tially the same grounds upon which the Regional
Director based his denial of Respondent's request
for information.
In its response to the General Counsel's Motion
for Summary Judgment, Respondent renews, and
incorporates by reference, the contentions it earlier
put forth in its request for review of the Regional
Director's Decision and Direction of Election, its
objections to the election, its request for review of
the Regional Director's Supplemental Decision and
Certification of Representative, and its appeal of
the Regional Director's denial of information re-
quested under the Freedom of Information Act.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence,3 nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. 4 Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is now, and has been at all times ma-
terial herein, a Michigan corporation engaged in
the sale and distribution of propane gas and related
products, and at all times material herein has main-
tained offices and places of business at 3971 N. M-
33, Rose City, Michigan, and at 2147 1-75 Business
Loop, West Branch, Michigan, and other stores in
the State of Michigan. During the calendar year
ending December 31, 1979, which period is repre-
2 See Pittsburgh Plate Glass Co. v. NL.R.B., 313 U.S. 146. 162 (1941):
Rules and Regulations of the Board, Secs 102.67(f) and 102 b9(c)
3 The information sought by Respondent under the Freedom of Infor-
mation Act has been determined to be exempt from disclosure thereun-
der. and thus remains properly unavailable to Respondent
4 In its answer to the complaint Respondent denies that the Union is a
labor organization within the meaning of Sec 2(5) of the Act Ho'never.
at the hearing in the underlying representation matter, Respondent stipu-
lated to such status for the Union, and, consequently, Respondent ma}
not relitigate this issue herein Teledyne, Landis Machine, 212 NL RB 73
(1974).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of its operations during all times material
hereto, Respondent, in the course and conduct of
its business operations, derived gross revenues in
excess of $500,000. During this same period of
time, Respondent, during the course of its business
operations, purchased and received at its Michigan
stores, goods and materials valued in excess of
$50,000 directly from points located outside the
State of Michigan.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
Ii. THE LABOR ORGANIZATION INVOLVED
Local 486, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees,
including bulk drivers, cylinder delivery men,
dockmen, service men, and installers and util-
ity men employed by Respondent at its Rose
City and West Branch, Michigan, facilities, but
excluding office clerical employees, guards and
supervisors as defined in the Act.
2. The certification
On October 5, 1979, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 7, designated the Union
as their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on November 30, 1979,
and the Union continues to be such exclusive rep-
resentative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 6, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about March 19, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
March 19, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
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FUELGAS COMPANY, INC.
CONCLUSIONS OF LAW
1. Fuelgas Company, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 486, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time employees,
including bulk drivers, cylinder delivery men,
dockmen, service men, and installers and utility
men employed by Respondent at its Rose City and
West Branch, Michigan, facilities; but excluding
office clerical employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since November 30, 1979, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about March 19, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Fuelgas Company, Inc., Rose City and West
Branch, Michigan, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Local 486, Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, as the exclu-
sive bargaining representative of its employees in
the following appropriate unit:
All full-time and regular part-time employees,
including bulk drivers, cylinder delivery men,
dockmen, service men, and installers and util-
ity men employed by Respondent at its Rose
City and West Branch, Michigan, facilities; but
excluding office clerical employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Rose City and West Branch,
Michigan, facilities copies of the attached notice
marked "Appendix. " 5 Copies of said notice, on
forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
s In the event that 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 Pursu-
ant 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Local 486, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time employ-
ees, including bulk drivers, cylinder delivery
men, dockmen, service men, and installers
and utility men employed by us at our Rose
City and West Branch, Michigan, facilities;
but excluding office clerical employees,
guards and supervisors as defined in the Act.
FUELGAS COMPANY, INC.
1316