Emro Marketing Co.

National Labor Relations Board - Board Decisions

Sep 24, 1984

272 N.L.R.B. 282 (N.L.R.B. 1984)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Speedway Petroleum, Division of Emro Marketing
Company and Local 35, United Food and Com-
mercial Workers International Union, AFL-
CIO, CLC. Case 14-CA-17435
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
Upon a charge filed by the Union 18 May 1984,
the General Counsel of the National Labor Rela-
tions Board issued a complaint 5 June 1984 against
the Company, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act
The complaint alleges that on 10 March 1984,
following a Board election in Case 14-RC-9740,
the Union was certified as the exclusive collective-
bargaining representative of the Company's em-
ployees in the unit found appropriate (Official
notice is taken of the "record" in the representation
proceeding as defined in the Board's Rules and
Regulations, Secs 102 68 and 102 69(g), amended
Sept 9, 1981, 46 Fed Reg 45922 (1981), Frontier
Hotel, 265 NLRB 343 (1982) ) The complaint fur-
ther alleges that since 10 May 1984, the Company
has refused to bargain with the Union and since 9
May 1984, the Company has refused to furnish in-
formation the Union requested On 18 June 1984
the Company filed its answer admitting in part and
denying in part the allegations in the complaint,
and raising affirmative defenses
On 9 July 1984 the General Counsel filed a
Motion for Summary Judgment On 12 July the
Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the
motion should not be granted The Company filed
a response
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
The Company's answer admits its refusal to bar-
gain and to furnish the Union with requested infor-
mation, but attacks the validity of the certification
on the basis of its objections to the election, and its
position that the Union's determinative challenges
to two ballots should have been overruled in the
representation proceeding 1 The General Counsel
' In its answer to the complaint and response to the Notice to Show
Cause, the Respondent contends that the Board s Decision and Certifica
tion of Representative was invalid because the copy it received was not
signed or sealed
The Board s long established procedure in both representation and
unfair labor practice cases is that the only signed decision remains in the
argues that all material issues have previously been
decided We agree with the General Counsel
The record, including the record in Case 14-
RC-9740, reveals that an election was held 29 July
1983 pursuant to a Stipulated Election Agreement
The tally of ballots shows that of approximately
eight eligible voters, four cast valid ballots for and
two against the Union, there were two determina-
tive challenged ballots The Company filed objec-
tions to the election On 19 August 1983 the Re-
gional Director issued his report recommending
that the challenges to the ballots of James Smith
and Kelly Corrigan be sustained and that the Com-
pany's objections be overruled The Company filed
exceptions to the recommendations On 10 March
the Board adopted the Regional Director's report
and certified the Union as the exclusive bargaining
representative of the employees in the stipulated
unit (Chairman Dotson dissented concerning the
challenge to Smith's ballot )
On 24 April 1984 the Union requested in writing
that the Company bargain and, on 9 May 1984,
that the Company furnish the names, addresses,
telephone numbers, dates of hire, and rates of pay
for all unit employees Since 10 May 1984 the
Company has refused to bargain with the Union
and, since 9 May, has refused to provide the re-
quested information
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding See
Pittsburgh Glass Co v NLRB, 313 US 146, 162
(1941), Secs 102 67(f) and 102 69(c) of the Board's
Rules and Regulations
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding There are no factual issues regarding
the Union's request for information because the
Company, in its answer filed 18 June 1984, admit-
ted that it refused to furnish the information We
therefore find that the Company has not raised any
formal case file All other copies of the Board s decisions, including those
served on the parties and those sent to the Board s Regional Offices, are
unsigned This procedure, of course, is dictated by practicality, and the
obvious desire to free Board Members from the time consuming task of
personally signing each and every copy of decisions the National Labor
Relations Board Issues In this respect, the practice of the NLRB is the
same as that of the Federal district and circuit courts of appeals
Therefore, we find no merit in the Respondent s contention
272 NLRB No 46
EMRO MARKETING CO 283
issue that is properly litigable in this unfair labor
practice proceeding Accordingly, we grant the
Motion for Summary Judgment
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Company is a corporation authorized to do
business in Illinois, selling and distributing gasoline,
food, and related products at its convenience store
facility in Bethalto, Illinois, where it annually de-
rives gross revenues in excess of $500,000 and pur-
chases goods and materials valued over $50,000 di-
rectly from outside the State We find that the
Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A The Certification
Following the election held 29 July 1983, the
Union was certified 10 March 1984 as the collec-
tive-bargaining representative of the employees in
the following appropriate unit
All employees employed by the Employer at
its Bethalto, Illinois facility, EXCLUDING
station managers, office clerical and profes-
sional employees, guards, and supervisors as
defined in the Act
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act
B Refusal to Bargain
Since 24 April 1984 the Union has requested that
the Company bargain, and, since 9 May 1984, that
the Company furnish the names, addresses, tele-
phone numbers, dates of hire and rates of pay for
all unit employees Since 10 May the Company has
refused to bargain, and since 9 May has refused to
furnish the requested information We find that this
refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act
CONCLUSIONS OF LAW
By refusing on and after 10 May 1984 to bargain
with the Union, and by refusing on and after 9
May 1984 to provide the Union requested informa-
tion necessary and relevant to its function as the
exclusive collective-bargaining representative of
employees in the appropriate unit, the Company
has engaged in unfair labor practices affecting corn-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement,
and to provide the Union, on request, with the nec-
essary and relevant information requested 9 May
1984
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the int-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union Mar-Jac Poultry Co, 136 NLRB
785 (1962), Lamar Hotel, 140 NLRB 226, 229
(1962), enfd 328 F 2d 600 (5th Or 1964), cert
denied 379 U S 817 (1964), Burnett Construction
Co, 149 NLRB 1419, 1421 (1964), enfd 350 F 2d
57 (10th Cir 1965)
ORDER
The National Labor Relations Board orders that
the Respondent, Speedway Petroleum, Division of
Emro Marketing Company, Bethalto, Illinois, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with Local No 35,
United Food and Commercial Workers Internation-
al Union, AFL-CIO, CLC as the exclusive bar-
gaining representative of the employees in the bar-
gaining unit and refusing to provide the Union
with information necessary for and relevant to the
Union's performance as the exclusive collective-
bargaining representative
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement,
and provide the Union with the information it re-
quested 9 May 1984, including the names, address-
es, telephone numbers, dates of hire, and rates of
pay for all unit employees
All employees employed by the Employer at
its Bethalto, Illinois facility, EXCLUDING
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
station managers, office clerical and profes-
sional employees, guards, and supervisors as
defined in the Act
(b) Post at its facility in Bethalto, Illinois, copies
of the attached notice marked "Appendix "2
Copies of the notice, on forms provided by the Re-
gional Director for Region 14, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
2 If 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 Na
tional Labor Relations Board" shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Local No
35, United Food and Commercial Workers Interna-
tional Union, AFL-CIO, CLC, as the exclusive
representative of the employees in the bargaining
unit and WE WILL NOT refuse to provide the Union
with information necessary and relevant to the
Union's performance as the exclusive collective-
bargaining representative
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit
All employees employed by us at our Bethalto,
Illinois facility, EXCLUDING station manag-
ers, office clerical and professional employees,
guards, and supervisors as defined in the Act
WE WILL, on request, furnish the Union the in-
formation it requested 9 May 1984, including the
names, addresses, telephone numbers, dates of hire,
and rates of pay for all unit employees
SPEEDWAY PETROLEUM, DIVISION OF
EMRO MARKETING COMPANY