Bray Oil Co., Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1972

198 N.L.R.B. 226 (N.L.R.B. 1972)

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bray Oil Company, Inc. and Local 232, Petroleum
Drivers, Helpers & Allied Employees , Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
3-CA-4797
July 17, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on February 16, 1972, by
Local 232, Petroleum Drivers, Helpers & Allied
Employees, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Bray Oil
Company, Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 3, issued
a complaint on March 15, 1972, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 a Trial
Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 28, 1971,
following a Board election in Case 3-RC-5147 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; i and that, commenc-
ing on or about September 24, 1971, 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 March 20, 1972, and March 31, 1972, Respon-
dent filed its answer and amended answer, respec-
tively, to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On April 28, 1972, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 10, 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. Respondent thereafter filed a response to
Notice To Show Cause, called Opposition to Motion
for Summary Judgment.
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, the Respondent con-
tends, in effect, that the General Counsel's Motion
for Summary Judgment be denied because the
Board's disenfranchisement of two-thirds of the
voters eligible to vote voided the representation
election. It is the General Counsel's basic position
that all issues raised by the Respondent have been
decided by the Board. Accordingly, he contends that
they may not be relitigated here and that he is
entitled to summaryjudgment as a matter of law. We
agree.
The record in Case 3-RC-5147 shows that pur-
suant to a Stipulation for Certification Upon
Consent Election, the Regional Director, on May 25,
1971, conducted an election by secret ballot among
the employees of the Respondent in the stipulated
unit. The tally of ballots furnished the parties showed
that of approximately eight eligible voters, seven
ballots were cast, of which three were for, and two
against, the Union. There were two ballots chal-
lenged by the Respondent which were sufficient to
affect the results of the election and which the
Regional Director investigated. Thereafter, on June
8, the Respondent submitted to the Regional
Director a letter objecting to the disenfranchisement
of a large number of employees who were not
included on the list of eligible voters and contending
that the failure to include these eligible voters
invalidated the election and required that it be set
aside. On July 1, 1971, the Regional Director issued
his Report on Challenges (1) concluding that the
objection raising the disenfranchisement question
was filed too late and thus should not be considered
on the merits because of untimeliness and (2)
recommending that the challenges be sustained and
the Union be certified as the exclusive collective-
bargaining representative of the employees in the
stipulated unit. Thereafter, the Respondent filed with
the Board a timely "appeal" from the Regional
Director's report raising again the disenfranchise-
ment issue. On July 28, 1971, the Board issued its
i Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151, Inlertype Co v Penello, 269
Case 3-RC-5147, as the term "record" is defined in Secs 102 68 and F Supp 573 (D.C V A. 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d
102.69(f) of the Board's Rules and Regulations , Series 8 , as amended See 91 (C A 7, 1968), Sec 9(d) of the NLRA
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
198 NLRB No. 34
BRAY OIL COMPANY, INC. 227
Decision and Certification of Representative in
which, after considering the challenges, the Regional
Director's report, and the Respondent's "appeal," it
adopted the Regional Director's findings, conclu-
sions, and recommendations and it specifically
agreed that the Respondent's objections were not
timely filed and that the Regional Director properly
refused to consider them on their merits. According-
ly, it certified the Union.
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.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.3 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 New York Corporation, with its
principal office and place of business at 259 Warren
Street, Glen Falls, New York, and terminal at
Whitehall Road, Fort Ann, New York, herein called
Fort Ann Terminal, is, and has been at all times
material herein, engaged in the sale and distribution
of petroleum and related products. During the past
12 months the Respondent, in the course and
conduct of its business operations, purchased, trans-
ferred, and delivered to its plants goods and
materials valued in excess of $50,000, of which goods
and materials valued in excess of $50,000 were
transported to said plants directly from States other
than the State of New York.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
2 See Pittsburgh Plate Glass Co v. N L R B, 313 US 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67(f) and 102.69(c)
3 In its answer and amended answer, the Respondent denies having
knowledge sufficient to form a belief as to the filing and service of the
charge herein The Board has taken official notice of the record herein
which establishes the filing with the Board and service on the Respondent of
the unfair labor practice charge Further, the Respondent 's answer does not
treat with the allegations of the complaint relating to the Respondent's
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.
11. THE LABOR ORGANIZATION INVOLVED
Local 232, Petroleum Drivers, Helpers & Allied
Employees, International Brotherhood 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 full-time and regular part-time employees
of the Respondent employed at its town of Fort
Ann, New York, terminal, excluding all office
clerical employees and all guards, professional
employees and supervisors as defined in the Act.
2. The certification
On May 25, 1971, 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 3, 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 July 28, 1971, 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 22, 1971, 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 24, 1971, and
continuing at all times thereafter to date, the
commerce operations, its status as an employer , the Union's status as a
labor organization , the status of Dana S Bray as an agent of the
Respondent, the appropriate unit, and the allegations of the request and
refusal to bargain As the Respondent has not denied, explained, or stated
that it was without knowledge as to these allegations , and absent any
showing of good cause to the contrary, we shall deem these allegations to be
admitted and found to be true See Sec 102 20 of the Board's Rules and
Regulations, Series 8, as amended
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 24, 1971, 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 the 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 thereform, 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 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. Bray Oil Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 232, Petroleum Drivers, Helpers & Allied
Employees, 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 full-time and regular part-time employees
of the Respondent employed at its town of Fort Ann,
New York, terminal, excluding all office clerical
employees and all 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 July 28, 1971, 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 24, 1971,
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,
Bray Oil Company, Inc., its officers, agents, succes-
sors, 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 Local 232, Petrole-
um Drivers, Helpers & Allied Employees, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time employees
of the Respondent employed at its Town of Fort
Ann, New York, terminal, excluding all office
BRAY OIL COMPANY, INC. 229
clerical employees and all guards, professional
employees 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 Fort Ann, New York, terminal copies
of the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional
Director for Region 3, 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 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 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
terms and conditions of employment with Local
232, Petroleum Drivers, Helpers & Allied Em-
ployees, International Brotherhood of Teamsters,
Chauffeurs, 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 full-time and regular part- time em-
ployees of the Respondent employed at its
town of Fort Ann, New York, terminal,
excluding all office clerical employees and
all guards, professional employees and su-
pervisors as defined in the Act.
BRAY OIL COMPANY,
INC.
(Employer)
4 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 be changed to 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
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, Ninth Floor, Federal Building, 111
West Huron Street, Buffalo, New York 14202,
Telephone 716-842-3100.