Boatel, Inc.

National Labor Relations Board - Board Decisions

Jul 10, 1973

204 N.L.R.B. 896 (N.L.R.B. 1973)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boatel, Incorporated and National Maritime Union of
America, AFL-CIO . Case 15-CA-4727
July 10, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Upon a charge filed on January 10, 1973, by Na-
tional Maritime Union of America, AFL-CIO, herein
called the Union, and duly served on Boatel, Incorpo-
rated, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 15, issued a com-
plaint on January 31, 1973, against Respondent, alleg-
ing 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 and complaint
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on January 3, 1973,
following a Board election in Case 15-RC-4981 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commencing
on or about January 9, 1973, 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
February 20, 1973, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. The Respondent admits
all of the factual allegations of the complaint, except
those paragraphs which relate to the appropriateness
of the unit and the resulting certification in the under-
lying representation proceeding, Case 15-RC-4981.
On March 2, 1973, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, with exhibits attached, submitting, in ef-
fect, that the Respondent, in its answer raises no is-
sues which were not, or which could have been,
previously considered and decided in the underlying
representation proceeding, Case 15-RC-4981, and
prays that summary judgment be issued on the basis
of the pleadings.
i Official notice is taken of the record in the representation proceeding,
Case 15-RC-4981 , 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
Electrosystems, 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.
On March 5, 1973, the Respondent filed Opposition
to Motion for Summary Judgment and Transfer of
Case to the National Labor Relations Board, attach-
ing thereto a typical contract between the Respondent
and its customers, and an affidavit in support thereof.
Subsequently, on March 12, 1973, 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 grant-
ed. Respondent thereafter filed a response to Notice
To Show Cause entitled "Answer To Rule To Show
Cause And Opposition To Motion For Summary
Judgment," and memorandum in support thereof.
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
As reflected above, the Respondent's answer ad-
mits all of the factual allegations of the complaint,
including its refusal to recognize and bargain with the
Union which has been the certified bargaining repre-
sentative of the employees described in the complaint.
The Respondent's sole defense relates to the appropri-
ateness and scope of the unit as found by the Regional
Director in his Decision and Direction of Election to
which the Respondent filed a timely request for re-
view. The Board denied such request on November
20, 1972, stating it raised no substantial issues war-
ranting review.
In its opposition to motion for summary judgment,
accompanied by an affidavit and a typical contract
between the Respondent and its customers, as well as
its response to notice to show cause, with memoran-
dum in support thereof, the Respondent admits that
it appeared at a hearing directed by the Regional
Director on September 12, 1972, at which time the
Respondent and Union offered evidence concerning
the composition and appropriateness of the unit as
well as the duties and obligations of the unit employ-
ees. The Respondent now attacks the Regional
Director's conclusion that these obligations are "es-
tablished by the contracts between [the Respondent]
and its customers." By this assertion, and more specif-
ically by its denials, in whole or in part, of the allega-
tions of the complaint, the affirmative defenses
alleged in its answer and the arguments propounded
in its opposition to motion for summary judgment
and response to notice to show cause, the Respondent
is attempting to relitigate the same issues which it
raised in the representation proceeding in Case 15-
BOATEL, INCORPORATED
RC-4981.
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
any such special circumstances 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 pro-
ceeding . 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 is a Delaware corporation with a prin-
cipal office in Belle Chasse, Louisiana, from which it
is engaged in furnishing food catering and housekeep-
ing services to corporations with offshore oil drilling
rigs in the territorial waters of the States of Mississippi
and Louisiana, and beyond in the Gulf of Mexico.
During the past 12 months, the Respondent has re-
ceived approximately $5 million for services per-
formed for these corporations; and, during the same
period, Respondent has received goods and supplies
valued in excess of $50,000 directly from points locat-
ed outside the State of Louisiana.
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.
II. THE LABOR ORGANIZATION INVOLVED
National Maritime Union of America , AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
2 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(f) and 102 69(c).
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
897
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 employees of Employer employed in the off-
shore oil industry through its Belle Chasse, Loui-
siana, offices, including utility men, night cooks
and bakers, stewards and relief stewards; exclud-
ing all other employees, office clerical employees,
guards and supervisors as defined in the Act.
2. The certification
On December 21, 1972, 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 15, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on January 3, 1973, and the Union contin-
ues 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 January 4, 1973, 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 January 9, 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 collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since January 9, 1973, and at all times thereafter, re-
fused 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.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Boatel, Incorporated, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. National Maritime Union of America, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees of Employer employed in the off-
shore oil industry through its Belle Chasse, Louisiana,
offices including utility men, night cooks and bakers,
stewards and relief stewards; excluding all other em-
ployees, office clerical employees, guards and supervi-
sors 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 January 3, 1973, the above-named labor
organization has been and now is the certified and
exclusive 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.
5. By refusing on or about January 9, 1973, 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 righrs 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, Boatel,
Incorporated, its officers, agents, successors, and as-
signs, 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 National Maritime Union
of America, AFL-CIO, as the exclusive bargaining
representative of its employees in the following appro-
priate unit:
All employees of Employer employed in the off-
shore oil industry through its Belle Chasse, Loui-
siana, offices, including utility men, night cooks
and bakers, stewards and relief stewards; exclud-
ing all other employees, office clerical 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 Belle Chasse, Louisiana, office copies
of the attached notice marked "Appendix."' Copies
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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
BOATEL, INCORPORATED 899
of said notice, on forms provided by the Regional
Director for Region 15, 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 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 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative 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 un-
derstanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All employees of Employer employed in the
offshore oil industry through its Belle Chasse,
Louisiana, offices, including utility men, night
cooks and bakers, stewards and relief stew-
ards; excluding all other employees, office
clerical employees, guards and supervisors as
defined in the Act.
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 concern-
ing rates of pay, wages , hours, and other terms and
conditions of employment with National Maritime
Union of America , AFL-CIO, as the exclusive repre-
sentative 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.
Labor Relations Board "
BOATEL, INCORPORATED
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutuve
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, Plaza Tower, Suite 2700, 1001 How-
ard Avenue, New Orleans, Louisiana 70113, Tele-
phone 504-527-6361.