Williams Energy Co.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1080 (N.L.R.B. 1975)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams ' Energy Company and Teamsters Local
Union No. 104, an affiliate of International
Brotherhood of Teamsters, Chauffeurs,, Ware-
housemen and Helpers of America . Case 28-CA-
3381
June 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on December 10, 1974, by
Teamsters Local Union No. 104, an affiliate of
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on Williams
Energy Company, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 28,
issued a complaint on December 20, 1974, and an
amended complaint on December 27, 1974, 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
complaint alleges in substance that on September 10,
1974, following a Board election the Union was duly
certified as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit
found appropriate; I and that, commencing on or
about November 26, 1974, and at all times thereafter,
Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
January 6, 1975, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
i Official notice is taken of the record in the representation proceeding,
Case 28-RC-2642, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F .2d 683 (C.A 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), 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 (1967), enfd. 397 F.2d 91 (CA. 7, 1968); Sec.
9(d) of the NLRA.
2 The Board, without objection by the Respondent , also granted the
petition of the Board 's Executive Secretary to reyoke subpenas directed to
him
3 In its "Motion to Postpone Show Cause Order Indefinitely ," Respon-
dent seeks to postpone the matters before the Board in this case pending the
Regional Director's investigation of 8(a)(I) and (3) charges filed against the
Respondent on January 31, 1975, by the Union. The prospect of a
complaint being issued based upon the, new charge is purely speculative as
218 NLRB No. 165
allegations in the complaint and asserting affirmative
defenses.
On January 22, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 12,
1975, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted.2 On
March 20, 1975, Respondent filed a "Motion to
Postpone Show Cause Order Indefinitely." On
March 24, 1975, Respondent filed, its "Reply to
Motion for Summary Judgment." Thereafter, the
General Counsel on April 2, 1975, filed an opposition
to Respondent's motion to postpone the show cause
order.3
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 reply to the
Motion for Summary Judgment, Respondent attacks
the Union's certification on the basis of its objections
to the election and the failure to hold a hearing
thereon in violation of due process. In addition,
Respondent alleges that it was denied due process
because its requests for review were denied by a
panel of Board Members who did not meet and
confer together. Despite the certification, Respon-
dent argues that a refusal-to-bargain finding cannot
be made because since the election certain events
have occurred which constitute unusual circum-
stances.4
Our review of the record, including that in Case
28-RC-2642, shows that following a hearing on the
Union's representation petition the Regional Direc-
tor issued a Decision and Direction of Election. On
February 2, 1974, the Board granted the Respon-
dent's request for review and remanded the case to
the Regional Director, after investigation , may find no merit in the new
charges and therefore not issue a complaint thereon. Further, there would
be unnecessary delay in the processing of this initial proceeding . In these
circumstances, we deny the Respondent's motion to postpone.
4 In its answer to the complaint, Respondent admits requests to bargain
on September 25 and November 21, 1974 , and its refusal to bargain on
November 26, 1974 . However, Respondent alleges in the answer that since
November 21, 1974, no requests for collective bargaining have been made
by the Union and that, at no time after November 26, 1974, has Respondent
failed and refused to meet with the Union . Respondent's uncontroyerted
letter of November 26, 1974, refusing to bargain "in order to test validity of
certifications in the courts," is appended to the Motion for Summary
Judgment and warrants a finding that the Respondent is continuing to
refuse to bargain and that further requests to bargain would be futile and
therefore unnecessary . Sewanee Coal Operators Association, et al., 167 NLRB
172(1967).
WILLIAMS ENERGY COMPANY
the Regional Director for further hearings to permit
the Respondent , to elicit testimony as to whether the
Union , if certified; intended to represent all unit
employees. After the hearing before a Hearing
Officer , the Regional Director issued a Supplemental
Decision and Direction of Election , finding no basis
to disqualify the Union and reaffirming , in sub-
stance, his prior decision . Respondent 's request for
review of the Regional Director 's Supplemental
Decision dated May 21, 1974, was denied by the
Board on June 3 , 1974, on the ground that it raised
no substantial issues , warranting review.
On June 7, 1974, a secret ballot election was
conducted among the employees in the unit found
appropriate . A -majority of the votes were cast 'for the
Union . Respondent filed timely objections alleging
in substance that the totality of circumstances during
the election campaign destroyed necessary laborato-
ry conditions, and that the Union improperly, under
the Supreme Court decision in N.L.R.B. v. Savair
Manufacturing Co., 414 U .S. 270 (1973), demanded
payment of initiation fees while soliciting authoriza-
tion cards, which fees the Union threatened to refuse
to refund if it were 'unsuccessful in the election.
Respondent renewed its objection previously consid-
ered that the Union is constitutionally and jurisdic-
tionally incapable of representing the unit and does
not have the requisite intent to represent all the unit
employees . Respondent also alleged that its request
for review of the Regional Director's Supplemental
Decision, concerning the Union's ability to represent
the employees, was denied by less than a quorum of
the Board panel.
On September 10, 1974 , the Regional Director
issued a Second Supplemental Decision on Objec-
tions to Conduct Affecting the Results of Election
and Certification of Representative in which he
overruled all the objections , found that the objec-
tions concerning the Union 's ability to represent the
employees was relitigation' of a matter previously
decided by the Board, and that, on the quorum issue,
he was bound by the Board's decision in the request
for review . The Respondent filed with the Board a
request for review in which it renewed , in effect, all
its objections . The request was denied by telegraphic
order as raising no substantial issues warranting
review . In addition, the BQard expressly noted the
personal participation of and approval by the Board
Members ' who denied review of the Regional
Director's Supplemental Decision and Direction of
Election.
5 Heavenly Valley Ski Areq= A California, Corporation, and Heavenly
valey, A Partnership, 215 NLRB No. 129 (1974); Big Three Industries, Inc.,
Formerly Big Three Industrial Gas & Equipment Co., 214 NLRB No. 104
(1974).
6 KFC National Management Company, 204 NLRB 630 (1973); T S. C.
1081
As to Respondent's contentions concerning the
denial of due process in the representation proceed-
ing, a,hearing was held concerning the Union's intent
and ability to represent the employees in the unit and
those issues, Were determined in the Regional
Director's Supplemental Decision and Direction of
Election. With respect to the denial of review of that
decision and, the Regional Director's Second Supple-
mental Decision and Certification of Representative,
both of which were denied because Respondent did
not raise substantial issues warranting review, we
necessarily found in those denials that Respondent
had not raised issues warranting a hearing and,
therefore, absent such substantial issues, a hearing is
not required.5 Further, with respect to Respondent's
contention that it was denied due process in the
failure of the Board Members to meet and confer on
the decision to deny review,, it is clear that such
Board action must derive from the Members'
personal consideration and not necessarily be the
result of a meeting to confer over the issues raised by
one of the parties .6 It appears from the foregoing
review that issues raised by Respondent concerning
the validity of the election and subsequent certifica-
tion of the Union were raised and considered or
could have been raised and considered in' the
representation proceeding.
It is well settled that in the absence of newly
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.?
All issues raised by the Respondent in this
proceeding with respect to the representation pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered 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.
Respondent now raises the contention that unusual
circumstances have occurred since the election
arising out of employee turnover, a petition signed by
13 out of 19 unit employees stating they no longer
wish to be represented by the Union, and an alleged
statement by a' union representative that the Union
Motor Freight Lines, Inc., et al. v. United States, 186 F.Supp. 777, 786 (D.C.
Tex_ 1960), aft sub nom. Herrin Transportation Co. v. United States, 366
U.S. 419 (1961).
4 See Pittsburgh Plate Glass Co. v. N.L.R B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs . 102.67(t) and 102.69(c).
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would abandon the employees if 100 percent of the
employees signed -the petition. Respondent asserts
that such circumstances cannot support a finding of
a refusal to bargain despite the outstanding certifica-
tion. We disagree. It is well established that following
an election and certification the employees have
committed themselves to the Union as their repre-
sentative for a reasonable period which, as approved
in Ray Brooks v. N.LR.B., 348 U.S. 96 (1954), has
been determined by the Board to be 1 year absent
unusual circumstances. The 1-year rule lends certain-
ty to the results of the election and certification
process and provides stability in the administration
of the Act. An employee petition which repudiates
the results of an election is not an unusual circum-
stance which would require invalidating the certifica-
tion of the union for 1 year.8 Likewise, employee
turnover is not an unusual circumstance .9 Respon-
dent's allegation that the Union's threat to abandon
the unit if all employees stated they no longer wished
to be represented by it, even if made, does not alone
or collectively with the petition and turnover conten-
tions remove the obligation to bargain with the
Union. There is nothing to indicate the Union is
defunct.'° Nor-has it disclaimed representation of the
unit employees. A union's threat to unit employees
that it might do so if they do not adequately support
it does not justify an employer's refusal to bargain
during the certification, year." Accordingly, we shall
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
Williams Energy Company, a Delaware corpora-
tion, at all times material herein has distributed and
sold propane gas and appliances on a wholesale and
retail basis in the State of Arizona. The principal
office and place of business of Williams Energy
Company is at 9 East Fourth Street, Tulsa, Oklaho-
ma. Its Southwest Division, involved in this proceed-
ing, has an office in Phoenix, Arizona. During the
past 12 months, Respondent derived revenues in
excess of $500,000 from sales of which $50,000 was
derived from the sale of products to customers
located outside the State of Arizona. During the
same period, Respondent purchased goods and
materials valued in excess of $50,000 which were
delivered directly to Respondent's places of business
in the State of Arizona from firms located outside the
State of Arizona.
8 Cocker Saw Company, Inc., 186 NLRB 893 (1970).
9 Georgetown Dress Corporation, 217 NLRB No. 8 (1975).
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.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 104, an affiliate of
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
Ill. 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 transport drivers and terminal operators
employed by the Respondent in New Mexico,
Arizona and Utah; excluding all other employees,
including mechanics, driver-salesmen, terminal
managers, dispatchers, watchmen, janitors, office
clerical employees and guards, professional em-
ployees and supervisors as defined in the Act.
2. The certification
- On June 7, 1974, 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 28 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 September 10, 1974, 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 25, 1974, 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 November 26, 1974, and
continuing at all times thereafter to date, the
10 Cocker Saw Company, Inc., supra. Ray Brooks v. N.LRB., supra.
11 Member Kennedy does not adopt this generalized rule. -
WILLIAMS ENERGY COMPANY
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 November 26, 1974, 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
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 bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(19'64); Burnett Construction Company, 149 NLRB
14119, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Williams Energy Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
1083
2. Teamsters Local Union No. 104, an affiliate of
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 transport drivers and terminal operators
employed by the Respondent, in New Mexico,
Arizona and Utah; excluding all other employees,
including mechanics, driver-salesmen, terminal man-
agers, dispatchers, watchmen, janitors, office clerical
employees and guards, professional employees 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 September 10, 1974, 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 November 26, 1974,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
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 meaning 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,
Williams Energy Company, Tulsa, Oklahoma, 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
Union No. 104, an affiliate of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All transport drivers and terminal operators
employed by the Respondent in New Mexico,
Arizona and Utah; excluding all other employees,
including mechanics, driver-salesmen, terminal
managers, dispatchers, watchmen, janitors, office
clerical employees and guards, professional em-
ployees 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 Phoenix, Arizona, facility copies of
the attached notice marked "Appendix." 12 Copies of
said notice, on forms provided by the Regional
Director for Region 28, 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 there-
after, 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 28, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
12 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Team-
sters Local Union No. 104, an affiliate of
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers 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 transport drivers and terminal operators
employed by the Respondent in New Mexico,
Arizona and Utah; excluding all other employees,
including mechanics, driver-salesmen, terminal
managers, dispatchers, watchmen, janitors, office
clerical employees and guards, professional em-
ployees and supervisors as defined in the Act.
WILLIAMS ENERGY
COMPANY