Lunday-Thagard Oil Co.

National Labor Relations Board - Board DecisionsApr 27, 1973

203 N.L.R.B. 261 (N.L.R.B. 1973)

LUNDAY-THAGARD OIL CO. Lunday-Thagard Oil Co. and Package & General Utili- ty Drivers Local 396, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America . Case 21-CA-11387 April 27, 1973 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY , AND PENELLO Upon a charge filed on November 13, 1972, by Package & General Utility Drivers Local 396, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Lunday-Thagard Oil Co., herein called the Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint on December 7, 1972, against Respondent , 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, 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 com- plaint alleges in substance that on September 27, 1972, following a Board election in Case 21-RC-12575 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate;' and that, commencing on or about October 30, 1972, and at all times thereafter, Respondent has re- fused, and continues to date to refuse , to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On December 12, 1972, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On December 21, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 4, 1973, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to Notice To Show Cause. ' Official notice is taken of the record in the representation proceeding, Case 21-RC-12575, as the term "record" is defined in Secs 102 68 and 102.69(f) of the Board 's Rules and Regulations , Series 8, as amended See LTV Electrosystemv, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A. 4. 1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5. 1969); Intertype Co. v Penello, 269 F.Supp 573 (D C Va., 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968). Sec 9(d) of the NLRA 261 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 and in its response to the Notice To Show Cause Respondent denies that the Union represents an uncoerced majority of its employees and asserts that the Acting Regional Director's report on objections and the Board's Deci- sion and Certification of Representative in Case 21-RC-12575 were improper and invalid. Respon- dent now contends it is entitled to an evidentiary hearing with respect to its objections. We do not agree. Pursuant to a Stipulation for Certification Upon Consent Election in Case 21-RC-1275, an election was conducted on May 5, 1972, among employees in the unit stipulated to be appropriate. The tally of ballots indicated that of approximately 130 eligible voters, 118 cast ballots, of which 62 were for, and 51 against, the Union while 3 ballots were void and 2 were challenged. Respondent filed timely objections to the election alleging that the Union distributed leaflets containing material misrepresentations of fact and otherwise threatened and coerced employees in their choice of a bargaining agent. Thereafter, the Acting Regional Director conducted an investigation of the objections and issued his report on objections and a later supplemental report on objections in which he recommended that the objections be over- ruled in their entirety and that the Union be certified. Respondent filed timely exceptions to the report on objections. The Board, on September 27, 1972, issued a Decision and Certification of Representative adopt- ing the Acting Regional Director's findings and rec- ommendations finding that the Employer's excep- tions raised no material or substantial issues of fact or law warranting reversal of the Acting Regional Director's findings or recommendations or which re- quired a hearing and certifying the Union as the ex- clusive bargaining representative of the employees in the stipulated unit. In its response to the Notice To Show Cause Re- spondent again urges that its objections to the election have merit and that the certification of the Union is invalid. Respondent further urges that it is entitled to an evidentiary hearing on its objections. We find no merit in these contentions. The Board has already determined that the objections raise no material issues warranting a hearing and it is well established that parties do not have an absolute right to a hearing on objections to an election. It is only when the moving 203 NLRB No. 12 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD party presents a prima facie showing of " substantial and material issues" which would warrant setting aside the election that he is entitled to an evidentiary hearing.2 It is clear that absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements.3 It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a respondent in a proceeding alleging 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." All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, 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 THE RESPONDENT Respondent corporation, which is engaged in the manufacture of asphalt and roofing materials at its facility located at 9301 South Garfield Avenue, South Gate, California, annually sells and ships goods val- ued in excess of $50,000 directly to customers located outside the State of California. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. If. THE LABOR ORGANIZATION INVOLVED Package & General Utility Drivers Local 396, In- ternational Brotherhood of Teamsters , Chauffeurs, 2Allied Foods, Inc, 189 NLRB 513, and cases cited in In. 6 ; Clarytona Manor, Inc, 192 NLRB 781, and cases cited in fn. 3 3 Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.] v. N.L R B, 424 F 2d 818, 828 (C.A.D C , 1970), N L R B v. Golden Age Beverage Company, supra In 1 4 See Pittsburgh Plate Glass Co v. N L R. B , 313 U.S. 146. 162(1941); Rules and Regulations of the Board , Sees. 102.67 (r) and 102 .69 (c). Warehousemen & Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees, warehousemen and truck drivers employed at Respondent's facility located at 9301 Garfield Avenue, South Gate, California, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On May 5, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Acting Re- gional Director for Region 21, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was cer- tified as the collective-bargaining representative of the employees in said unit on September 27, 1972, and the Union continues to be such exclusive representa- tive within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent 's Refusal Commencing on or about October 11, 1972, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit . Commencing on or about October 30 , 1972, and continuing at all times thereafter to date , the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly , we find that the Respondent has, since October 30, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit , and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es within the meaning of Section 8(a)(5) and ( 1) of the Act. LUNDAY-THAGARD OIL CO. 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a/ Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. The Lunday-Thagard Oil Co. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Package & General Utility Drivers Local 396, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, warehousemen and truck drivers employed at Respondent's facility located at 9301 Garfield Ave- nue, South Gate, California, excluding office clerical employees, professional employees, guards and super- visors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 27, 1972, the above-named or- 263 ganization has been and now is the certified and ex- clusive 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 October 30, 1972, and at all times thereafter , to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain , Respondent has interfered with, restrained, and coerced, and is interfering with, restraining , and coercing , employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 Rela- tions Board hereby orders that Respondent, Lunday- Thagard Oil Co., South Gate, California, 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 condi- tions of employment with Package & General Utility Drivers Local 396, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, warehousemen and truck drivers employed at Respondent's facility located at 9301 Garfield Avenue, South Gate, California, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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 under- standing is reached, embody such understanding in a signed agreement. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its facility in South Gate, California, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous 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 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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 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 WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Pack- age & General Utility Drivers Local 396, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the ex- clusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees 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 representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, warehousemen and truck drivers employed at Respondent's facility located at 9301 Garfield Avenue, South Gate, California, excluding of- fice clerical employees, professional employ- ees, guards and supervisors as defined in the Act. LUNDAY-THAGARD OIL CO (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200.