Big Three Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1974

214 N.L.R.B. 775 (N.L.R.B. 1974)

BIG THREE INDUSTRIES, INC.
Big Three Industries , Inc., formerly Big Three Indus-
trial Gas & Equipment Co. and International Asso-
ciation of Machinists & Aerospace Workers, AFL,
CIO. Case 23-CA-5102
November 7, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on May 14, 1974, by Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, and
duly served on Big Three Industries, Inc, formerly
Big Three Industrial Gas & Equipment Co., herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 23, issued a complaint on June 7,
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 be-
fore 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 April 16, 1974,
following a Board election in Case 23-RC-3954 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about May 2, 1974, and at all times thereaf-
ter, 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
June 11, 1974, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint, submitting certain affir-
mative defenses, and requesting that the complaint
be dismissed and such other and further relief and
orders as may be appropriate.
On July 18, 1974, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, requesting that the Board find that all is-
'Official notice is taken of the record in the representation proceeding,
Case 23-RC-3954, 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 (CA 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 Suppl 573 (D C Va , 1957),
Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec
9(d) of the NLRA
775
sues raised by Respondent were or could have been
litigated in the representation proceeding, and that
Respondent does not offer to adduce any newly dis-
covered or previously unavailable evidence or any
special circumstances which would require the Board
to change its decision in the representation proceed-
ing. The General Counsel further requests that, on
the basis of these findings, the Board take appropri-
ate action to remedy the Respondent's unlawful con-
duct. Subsequently, on July 30, 1974, the Board is-
sued 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. Respondent thereafter filed an answer to
the Motion for Summary Judgment and thereafter a
response to the notice to show cause in which it
adopted and incorporated its answer to the Motion
For Summary Judgment.
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
Respondent, in its answers to the complaint and
Motion for Summary Judgment, assigns error to the
proceedings in the underlying representation case. It
argues that (1) the unit found by the Board was inap-
propriate, as it is in derogation of the unit agreed
upon by the parties; (2) a majority of the eligible
voters did not vote in favor of the Union; (3) certain
of the determinations in the representation case were
based on perjured testimony and therefore are inval-
id; and (4) by denying it time to prepare a response
to an amendment to the petition in the representa-
tion case hearing, the Board acted arbitrarily. In ad-
dition, Respondent incorporates all its pleadings sub-
mitted in the representation case. With regard to the
instant proceeding, Respondent submits that an evi-
dentiary hearing is necessary.
Review of the representation case record, which
we have before us, indicates that Respondent raised
contentions (1), (3), and (4) in its numerous requests
for review of the determinations made in the repre-
sentation proceeding. In each instance, the Board,
upon due consideration, found these requests for re-
view did not raise substantial issues warranting re-
view. Respondent sets forth no reason in this pro-
ceeding why those rulings should be disturbed, be
they newly discovered or previously unavailable evi-
dence, special circumstances, or other reason. With
respect to (2), that a majority of the eligible voters
214 NLRB No. 104
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not vote in favor of the Union, it appears that
Respondent raised this contention in its objection to
the election, but did not raise it in its exceptions to
the Board of the Regional Director's resolution
thereof. That it did not do so, however, is not to say
that it could not have done so. Thus, having had the
opportunity for Board consideration of the issue, Re-
spondent is not now entitled to Board consideration
of this issue.
With respect to Respondent's contention that a
hearing is required on its objections to the election
and the unit issue it has raised throughout the pro-
ceedings, we note that this request was made in its
previous appeals to the Board, both in its request for
review of the Regional Director's Decision and
Direction of Election and his resolution of Re-
spondent's objections to the election. On those oc-
casions, we found, inter alia, that Respondent had
not raised substantial issues warranting review, and
thereby necessarily found that Respondent had not
raised issues warranting a hearing. Absent the pre-
sentation by Respondent of such substantial issues, it
is clear that a hearing is not required,' thus we find
no merit in its contention.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by the Respondent in this 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 de-
cision 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
Respondent, a Texas corporation maintaining its
2
N L R B v Golden Age Beverage Co, 415 F 2d 26 (C A 5, 1969), Amal-
gamated Clothing Workers of America v N L R B, 424 F.2d 818 (C A D C,
1970), N L R B v Tennessee Packers, Inc, 379 F 2d 172 (C A 6, 1967)
3 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)
principal office and place of business in Houston,
Texas, is engaged in the manufacture of oxygen,
acetylene, and nitrogen. During the past 12 months,
which period is representative at all times material
hereto, Respondent manufactured, sold, and shipped
products valued in excess of $50,000 from its Hous-
ton, Texas, facility, directly to States other than the
State of Texas.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists & Aero-
space Workers , AFL-CIO, is a labor organization
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 con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed at the Employer's 3602 West 11th
Street, Houston, Texas, location, including Ran-
some Company assemblers, electricians, fabrica-
tors, machinists, parts pullers and welders, all
inside salesmen, warehouse, shipping and receiv-
ing clerks, city truckdrivers, Ransome truckdri-
ver, Oxygen plant employees, laboratory em-
ployees, repair shop employees, Victor Compa-
ny employees and Ransome Company material
control clerk, excluding all other employees, en-
gineers, engineering draftsman and field ser-
vicemen, outside salesmen and gas salesmen, au-
tomatic welding employees, NOWSCO employ-
ees, Bowen Tool Company employees, Sanstorm
Division employees, Acetylene plant employees,
Bayport, Corpus Christi and Dallas employees,
Chauffeur, safety engineer, gas serviceman,
switchboard operator and Herbert D. Carlton,
Malcom A. Smith and Bruce Fuller, office cleri-
cal employees, Ransome Company office em-
ployees, temporary employees, professional em-
ployees, guards and supervisors within the
meaning of the Act.
BIG THREE INDUSTRIES, INC 777
2. The certification
On October 2, 1973, a majority of the employees
of Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 23, 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 April 16, 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 April 18, 1974, 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 May 2, 1974, 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 May 2, 1974, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, Respondent 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, inti-
mate, 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 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 ap-
propriate 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 se-
lected bargaining 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 (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 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 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. Big Three Industries , Inc., formerly Big Three
Industrial Gas & Equipment Co., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Association of Machinists &
Aerospace Workers , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed at the Employer 's 3602 West 11th Street,
Houston , Texas, location , including Ransome Com-
pany assemblers , electricians , fabricators , machinists,
parts pullers and welders , all inside salesmen, ware-
house , shipping and receiving clerks, city truckdri-
vers, Ransome truckdriver, Oxygen plant employees,
laboratory employees , repair shop employees , Victor
Company employees and Ransome Company mate-
rial control clerk , excluding all other employees, en-
gineers , engineering draftsman and field servicemen,
outside salesmen and gas salesmen , automatic weld-
ing employees , NOWSCO employees, Bowen Tool
Company employees , Sanstorm Division employees,
Acetylene plant employees , Bayport , Corpus Christi
and Dallas employees , Chauffeur, safety engineer,
gas serviceman, switchboard operator and Herbert
D. Carlton, Malcom A . Smith and Bruce Fuller, of-
fice clerical employees , Ransome Company office
employees, temporary employees , professional em-
ployees , guards and supervisors within the meaning
of the Act , constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section _ 9(b) of the Act.
4. Since April 16, 1974, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By refusing on or about May 2, 1974, 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 Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 Re-
lations Board hereby orders that Respondent, Big
Three Industries , Inc., formerly Big Three Industrial
Gas & Equipment Co., Houston , Texas, 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 con-
ditions of employment with International Associa-
tion of Machinists & Aerospace Workers, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees
employed at the Employer's 3602 West 11th
Street , Houston , Texas, location, including Ran-
some Company assemblers , electricians , fabrica-
tors, machinists , parts pullers and welders, all
inside salesmen , warehouse , shipping and receiv-
ing clerks , city truckdrivers , Ransome truckdri-
ver, Oxygen plant employees, laboratory em-
ployees, repair shop employees , Victor Compa-
ny employees and Ransome Company material
control clerk, excluding all other employees, en-
gineers, engineering draftsman and field ser-
vicemen , outside salesmen and gas salesmen, au-
tomatic welding employees , NOWSCO employ-
ees, Bowen Tool Company employees , Sanstorm
Division employees , Acetylene plant employees,
Bayport , Corpus Christi and Dallas employees,
Chauffeur, safety engineer , gas serviceman,
switchboard operator and Herbert D. Carlton,
Malcom A . Smith and Bruce Fuller, office cleri-
cal employees , Ransome Company office em-
ployees, temporary employees , professional em-
ployees, guards and supervisors within the
meaning of 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 Houston, Texas, facility copies of
the attached notice marked "Appendix." ° Copies of
said notice, on forms provided by the Regional Di-
rector for Region 23 after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4In 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 Inter-
national Association of Machinists & Aerospace
Workers, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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
BIG THREE INDUSTRIES, INC.
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees
employed at the Employer's 3602 West 1 l th
Street, Houston, Texas, location, including
Ransome Company assemblers, electricians,
fabricators, machinists, parts pullers and
welders, all inside salesmen, warehouse, ship-
ping and receiving clerks, city truckdrivers,
Ransome truckdriver, Oxygen plant employ-
ees, laboratory employees, repair shop em-
ployees, Victor Company employees and
Ransome Company material control clerk, ex-
779
cluding all other employees, engineers, engi-
neering draftsman and field servicemen, out-
side salesmen and gas salesmen, automatic
welding employees, NOWSCO employees,
Bowen Tool Company employees, Sanstorm
Division employees, Acetylene plant employ-
ees, Bayport, Corpus Christi and Dallas em-
ployees, Chauffeur, safety engineer, gas ser-
viceman, switchboard operator and Herbert
D. Carlton, Malcom A. Smith and Bruce Full-
er, office clerical employees, Ransome Com-
pany office employees, temporary employees,
professional employees, guards and supervi-
sors within the meaning of the Act.
BIG THREE INDUSTRIES,
INC., FORMERLY BIG
THREE INDUSTRIAL GAS &
EQUIPMENT CO.