Cato Oil & Grease Co.

National Labor Relations Board - Board Decisions

May 22, 1979

242 N.L.R.B. 431 (N.L.R.B. 1979)

CATO OIL AND GREASE COMPANY
Cato Oil and Grease Company and Oil, Chemcial and
Atomic Workers International Union, Local 5-232,
AFL-CIO. Case 16-CA-8248
May 22, 1979
DECISION AND ORDER
By MEMBERS JENKINS, MURPHY, AND TRUESDALE
Upon a charge filed on December 18, 1978, by Oil,
Chemical and Atomic Workers International Union.
Local 5-232, AFL-CIO, herein called the Union, and
duly served on Cato Oil and Grease Company, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Acting Regional
Director for Region 16, issued a complaint on Janu-
ary 5, 1978, against Respondent, alleging that Re-
spondent 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 hear-
ing before 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 November 17,
1978, following a Board election in Case 16-RC-
7568, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about December 8, 1978, and at
all times thereafter, Respondent has refused and con-
tinues 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 12, 1979, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On February 2, 1979, counsel for the General
Counsel filed directly with the Board a motion to
transfer and continue proceeding before the Board
and a Motion for Summary Judgment. On February
13, 1979, Respondent filed an opposition to the Gen-
eral Counsel's motion. On March 1, 1979, 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
Official notice is taken of the record in the representation proceeding.
Case 16-RC-7568, as the term "record" is defined in Sec. 102.68 and Sec.
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 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.va., 1967);
Follett Corp. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
be granted. Respondent thereafter filed an opposition
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 it author-
ity 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 various
opposition papers to the General Counsel's respective
motions, Respondent admits that the Union has de-
manded bargaining and that it has refused to bargain.
but Respondent denies the validity of the Board's cer-
tification of the Union in the underlying representa-
tive case. It asserts that the Board erred in its Supple-
mental Decision and Certification of Representative 2
by finding that five individuals were supervisors and
that the challenges to their ballots be sustained. The
General Counsel contends that Respondent raises no
defenses relating to the certification by the Board of
the Union in the present case that were not already
litigated in the representation proceeding. We agree.
Review of the record herein, including that in Case
16-RC-7568, discloses that pursuant to a Stipulation
for Certification Upon Consent Election an election
was conducted among the employees in the stipulated
unit on September 16, 1977, and that the tally of bal-
lots furnished the parties after the election showed 38
votes for and 30 against the Union, and 14 challenged
ballots, a sufficient number to affect the result. The
Union filed timely objections to conduct affecting the
results of the election; however, it subsequently re-
quested the withdrawal of all the objections with ex-
ception to that part of Objection 4 which alleged that
Respondent engaged in conduct violative of Section
8(a)(1) of the Act. The withdrawal was subsequently
approved. After investigation, the Regional Director,
on December 16, 1977, issued his report on chal-
lenged ballots and objection and notice of hearing, in
which he concluded that substantial and material fac-
tual issues exist with respect to the 14 challenged bal-
lots and to that part of Objection 4 alleging that Re-
spondent enaged in conduct violative of Section
8(a)(1) of the Act,3 and that these issues could be
more appropriately resolved after a hearing. On Janu-
ary 4, 1978, Respondent filed exceptions to the Re-
gional Director's report, and on February 13, 1978,
the Board issued its Decision and Order directing a
hearing on the issues raised by the Union's challenges
2Not reported in hound volumes.
3 The Board does not, of course, make unfair labor practice findings in a
representation proceeding. E.g.. Times Square Stores Corporatin, 79 NlRB
361. 365 (1948).
242 NLRB No. 70
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a portion of its Objection 4. A hearing was held
on April 26, 27, and 28, 1978. On July 19, 1978, the
Hearing Officer issued his report on objection and
challenges recommending that the Union's objection
be overruled in its entirety, that the challenges to five
ballots be sustained, that the challenges to nine bal-
lots be overruled, and that the ballots counted. Both
Respondent and the Union filed timely exceptions to
the Hearing Officer's report.
On November 17, 1978, the Board issued its Sup-
plemental Decision and Certification of Representa-
tive wherein the Board, having reviewed the record in
light of the parties' exceptions, found that Respon-
dent's exceptions raised no material issues of law or
fact. However, the Board found, contrary to the
Hearing Officer, that the challenges to two additional
ballots be sustained. Since the remaining uncounted
ballots were not sufficient in number to affect the
election results, and the tally of ballots showed that
the Union received a majority of votes cast, the Board
certifies the Union as the collective-bargaining repre-
sentative of the employees in the appropriate unit.4
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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.5
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reeaxamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, an Oklahoma corporation with an office and
place of business in Oklahoma City, Oklahoma,
4 In light of the record findings in the underlying representation proceed-
ing, Respondent's denials of complaint allegations to the effect that an elec-
tion was conducted and that a majority of the unit employees have selected
the Union as their bargaining representative are without substance or ment.
5See Pittsburgh Plate Glass Co. v. N.L.R.B. 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sec. 102.67(f) and Sec. 102.69(c).
where it is engaged in the manufacture and sale of
grease and petroleum. During the past 12 months, a
representative period, Respondent, in the course and
conduct of its business operations, purchased and re-
ceived goods valued in excess of $50,000 directly from
suppliers located outside the State of Oklahoma.
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
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International
Union, Local 5-232, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production, maintenance, laboratory, local
trucking, laborers, janitoral and warehouse em-
ployees of the Employer at its Oklahoma City,
Oklahoma plant but excluding all other employ-
ees and guards, watchmen and supervisors as de-
fined in the Act.
2. The certification
On September 16, 1977, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 16, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on November 17, 1978, and the Union con-
tinues 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 December 4, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
432
CATO OIL AND GREASE COMPANY
or about December 8, 1978, and continuing at all
times thereafter to date, 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 Respondent has, since
December 8, 1978, 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 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 lend 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 commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company d/bla Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Cato Oil and Grease Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers Interna-
tional Union Local 5-232, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. All production, maintenance, laboratory, local
trucking, laborers, janitoral, and warehouse employ-
ees of the Employer at its Oklahoma City, Oklahoma,
plant, but excluding all other employees and guards,
watchmen, and supervisors as defined in the Act con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
4. Since November 17, 1978, the above-named la-
bor 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 with the meaning of Section 9(a) of
the Act.
5. By refusing on or about December 8, 1978, 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 them in Sec-
tion 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(l) 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 the Respondent, Cato
Oil and Grease Company, Oklahoma City, Okla-
homa, 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 Oil, Chemical and
Atomic Workers International Union, Local 5-232,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All products, maintenance, laboratory. local
trucking, laborers, janitorial and warehouse em-
ployees of the Employer at its Oklahoma City,
Oklahoma, plant but excluding all other employ-
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees and guards, watchmen and supervisors as de-
fined 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 understand-
ing is reached, embody such understanding in signed
agreement.
(b) Post at its office and place of business in Okla-
homa City, Oklahoma, copies of the attached notice
marked "Appendix." 6 Copies of said notice, on forms
provided by the Regional Director for Region 16, af-
ter being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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 Oil,
Chemical and Atomic Workers International
Union, Local 5-232, AFL-CIO, 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 de-
scribed 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
agreement. The bargaining unit is:
All productions, maintenance, laboratory,
local trucking, laborers, janitorial and ware-
house employees at our Oklahoma City, Okla-
homa, plant but excluding all other employees
and guards, watchmen and supervisors as de-
fined in the Act.
CATO OIL AND GREASE COMPANY
434