Pittston Co.

National Labor Relations Board - Board DecisionsMar 25, 1974

209 N.L.R.B. 837 (N.L.R.B. 1974)

METROPOLITAN PETROLEUM COMPANY 837 Metropolitan Petroleum Company of Massachusetts, Div. of Pittston Company and Teamsters Local 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 1-CA-9345 March 25, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on October 1, 1973, by Teamsters Local 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, herein called the Union, and duly served on Metropolitan Petroleum Company of Massachusetts, Div. of Pittston Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on October 24, 1973, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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 complaint alleges in substance that on August 17, 1973, following a Board election in Case 1-RC-12767 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate; I and that, commencing on or about September 20, 1973, and at all times thereafter, Respondent has refused, 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 November 2, 1973, Respondent filed its answer to the complaint admitting in par,, and denying in part, the allegations in the complaint. On November 15, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 21, 1973, the Board issued an order transferring the proceeding to le Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent 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 National Labor Relations Board has delegated its authority 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 the validity of the certification and the Union's status as collective-bargaining representative on the grounds that dispatchers, whom it contends are supervisors, were improperly included in the unit. Upon the record before us, including the record in Case 1-RC-12767, we find no merit in Respondent's position. Pursuant to a petition duly filed under Section 9(c) of the Act, a hearing was held before a hearing officer and on July 10, 1973, the Acting Regional Director for Region 1 issued his Decision and Direction of Election finding that "all dispatch- ers and clerks" at the Respondent's Chelsea, Massa- chusetts, plant constituted an appropriate residual unit. In his decision, the Acting Regional Director discussed at length the duties, functions, and authori- ty of dispatchers and concluded that the dispatchers, are not supervisors within the meaning of the Act. On July 23, 1973, the Respondent filed a Request for Review with the Board contending that, contrary to the Acting Regional Director's finding, the dispatch- ers are supervisors within the meaning of the Act. The Board, by telegraphic order dated August 6, 1973, denied the Request for Review on the ground that it raised no substantial issue warranting review. On August 9, 1973, the employees of Respondent in the unit found appropriate, in a secret ballot election conducted under the supervision of the Regional Director for Region 1, selected the Union (by a 5 to 4 vote) as their representative for purposes of collective bargaining. There were no challenged ballots. As the Union had received a majority of the votes and there were no objections to the election, the Acting Regional Director, on August 17, 1973, certified the Union. It thus appears that Respondent's denial of the validity of the certification on the ground that dispatchers are supervisors is an attempt to relitigate an issue litigated in the underlying representation case. It is well settled that in the absence of newly i Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C A 5, 1969), Case 1-RC-12767 , as the term "record" is defined in Secs. 102.68 and Intertype Co v. Penello, 269 F.Supp 573 (D.C. Va, 1967), Follett Corp., 164 102.69(f) of the Board's Rules and Regulations , Series 8 , as amended. See NLRB 378, enfd 397 F.2d 91 (C.A. 7, 1968), Sec 9(d) of the NLRA. LTV Electrosysiems, In., 166 NLRB 938. enfd. 388 F 2d 683 (C A. 4, 1968). 209 NLRB No. 120 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discovered or previously unavailable evidence or special circumstances 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.2 All issues raised by the Respondent in this proceeding 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 1. THE BUSINESS OF THE RESPONDENT At all times material herein, Respondent, Metro- politan Petroleum Company of Massachusetts, a division of the Pittston Company, a Massachusetts corporation, has been engaged in the storage, sale, and delivery of heavy and light fuel oil and related petroleum products at its facility located at II Broadway, Chelsea, Massachusetts. In the course and conduct of its business at the facility, Respondent receives annually from points located outside the Commonwealth of Massachusetts petroleum products valued in excess of $50,000. We find, on the basis of the foregoing, that Respondent 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. H. THE LABOR ORGANIZATION INVOLVED Teamsters Local 25, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All dispatchers and clerks at the Respondent's plant in Chelsea, Massachusetts, but excluding all other employees, guards, and supervisors as defined in the Act. 2. The certification On August 9, 1973, a majority of the employees of Respondent in said unit , in a secret ballot election conducted under the supervision of the Regional Director for Region I designated the Union as their representative for the purpose of collective bargain- ing with the Respondent . The Union was certified as the collective -bargaining representative of the em- ployees in said unit on August 17, 1973 , and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 13, 1973, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 20, 1973, 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 collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since September 20, 1973, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices 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 opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and 2 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) METROPOLITAN PETROLEUM COMPANY obstructing 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 appropriate unit will be accorded the services of their selected bargairing agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit . See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce 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. Metropolitan Petroleum Company of Massa- chusetts, a division of the Pittston Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 25, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All dispatchers and clerks at the Respondent's plant in Chelsea, Massachusetts, but excluding all other 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 August 17, 1973, 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 September 20, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the 3 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 839 exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has engaged in and is engaging in unfair labor practices within the mer ping of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with restraining, and coercing, employ- ees 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 meaning 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 Relations Board hereby orders that Respondent, Metropolitan Petroleum Company of Massachusetts, Div. of Pittston Company, Chelsea, Massachusetts, 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 Teamsters Local 25, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. as the exclusive bargaining representative of its employees in the following appropriate unit: All dispatchers and clerks at the Respondent's plant in Chelsea, Massachusetts, but excluding all other 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. (b) Post at its Chelsea, Massachusetts, plant copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region I after being duly signed by Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent 's representative shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted . Reason- able 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 1, in writing , within 20 days from the date of this Order, what steps have been taken of comply herewith. 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 with Team- sters Local 25 , a/w International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help- ers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere 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 described below , with respect to rates of pay, wages , hours , and other terms and conditions of employment , and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All dispatchers and clerks at the Respon- dent's plant in Chelsea , Massachusetts, but excluding all other employees , guards, and supervisors as defined in the Act. METROPOLITAN PETROLEUM COMPANY OF MASSACHUSETTS, Div. OF PITTSTON COMPANY (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 the 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 , Bulfinch Building, 15 New Chardon Street , Boston , Massachusetts 02114, Telephone 617-223-3300.