Nightingale Oil Co.

National Labor Relations Board - Board Decisions

Jul 17, 1989

295 N.L.R.B. 1005 (N.L.R.B. 1989)

NIGHTINGALE OIL CO. 1005
Nightingale Oil Company and Teamsters Local
Union 25 , affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO. Case 1-
CA-25980
July 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On January 17, 1989, the General Counsel of the
National Labor Relations Board issued a complaint
alleging that the Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act
by refusing the Union 's request to bargain follow-
ing the Union's certification in Case 1 -RC-18875.
(Official notice is taken of the "record" in the rep-
resentation proceeding as defined in the Board's
Rules and Regulations , Secs . 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Re-
spondent filed its answer admitting in part and de-
nying in part the allegations in the complaint.
On May 8, 1989 , the General Counsel filed a
Motion for Summary Judgment . On May 10, 1989,
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 delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
recognize and bargain with the Union , but attacks
the validity of the certification on the basis of its
objections to the conduct of the election and to the
Board 's unit determination in the representation
proceeding.
All representation issues raised by the Respond-
ent were or could have been litigated in the prior
representation proceeding .' The Respondent does
' The Respondent contends , as it did in the representation proceeding,
that the voting procedure employed by the Regional Office was imper-
missible because it could have misled the employees regarding the identi-
ty of the unit . We disagree, as we did in the representation case, and we
reiterate that the decisions relied on by the Respondent-Hamilton Test
Systems Y. NLRB, 743 F .2d 136 (2d Cir . 1984), NLRB v. Lorimar Produc-
tions, 771 F.2d 1294 (9th Cir. 1985), and NLRB Y. New School for Social
Research, 793 F.2d 503 (2d Cir . 1986)-are clearly distinguishable from
this case . In this case , unlike those cited by the Respondent, the unit
found appropriate by the Regional Director and ultimately by the Board,
and the unit in which the Union has been certified , is identical to the one
in which the election was directed and held That employees other than
those in the unit were allowed to vote under challenge pending resolu-
tion of the request for review filed by the Employer is immaterial in
these circumstances.
not offer to adduce at a hearing any newly discov-
ered and previously unavailable evidence , nor does
it allege any special circumstances that would re-
quire the Board to reexamine the decision made in
the representation proceeding . We therefore find
that the Respondent has not raised any representa-
tion issue that is properly litigable in this unfair
labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Ac-
cordingly , we grant the Motion for Summary
Judgment.
On the entire record , the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent , a corporation , is engaged in the
installation , maintenance , and repair of oil burner
service equipment and in the retail sale of heating
oil at its facility in Braintree , Massachusetts, where
it annually purchases and receives products , goods,
and materials valued in excess of $50,000 directly
from points outside Massachusetts . We find that the
Respondent 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 July 1, 1987, the
Union was certified on July 8 , 1988, as the collec-
tive-bargaining representative of the employees in
the following appropriate unit:
All full time and regular part time oil burner
servicemen employed by the Employer at its
Braintree , Massachusetts location , but exclud-
ing all other employees , oil drivers, dispatch-
ers, clerical 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 about July 25, 1988, the Union has request-
ed the Respondent to bargain and, since about that
same date, the Respondent has refused . We find
that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the
Act.
295 NLRB No. 110
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
By refusing on and after July 25 , 1988, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appro-
priate unit, the Respondent has engaged in unfair
labor practices 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 bargain on request with the
Union, 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 ini-
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 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 , Nightingale Oil Company , Brain-
tree, Massachusetts , its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local
Union 25, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO as the exclusive
bargaining representative of the employees in the
bargaining unit.
(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:
All full time and regular part time oil burner
servicemen employed by the Employer at its
Braintree , Massachusetts location , but exclud-
ing all other employees , oil drivers , dispatch-
ers, clerical employees , guards and supervisors
as defined in the Act.
(b) Post at its facility in Braintree , Massachusetts,
copies of the attached notice marked "Appendix."2
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by
the Respondent 's authorized representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able 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.
P If this Order is enforced by a judgment of a United States court of
appeals , the words mlf 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
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 Teamsters
Local Union 25, affiliated with International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO as the exclu-
sive representative of the employees in the bargain-
ing unit.
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 full time and regular part time oil burner
servicemen employed by us at our Braintree,
Massachusetts location , but excluding all other
employees , oil drivers, dispatchers, clerical
employees , guards and supervisors as defined
in the Act.
NIGHTINGALE OIL COMPANY