Gulf International Trader, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1970

181 N.L.R.B. 834 (N.L.R.B. 1970)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulf International Trader , Inc. and South Atlantic
and Gulf Coast District , International
Longshoremen 's Association , AFL-CIO. Case
23-CA-3450
March 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed by South Atlantic and Gulf
Coast District, International Longshoremen's
Association , AFL-CIO, herein called the Union, the
General Counsel of the National Labor Relations
Board , by the Acting Regional Director for Region
23, issued a complaint and notice of hearing dated
November 14, 1969, against Gulf International
Trader, Inc , herein called the Respondent , alleging
that the Respondent has engaged in and is engaging
in unfair labor practices 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 of the complaint and
notice of hearing before a Trial Examiner were duly
served on the Respondent and the Union.
With respect to unfair labor practices, the
complaint alleges, in substance , that on August 27,
1969, the Regional Director certified the Union as
the exclusive collective-bargaining representative of
the Respondent ' s employees in an appropriate unit,'
and that , on or about August 27, 1969, and at all
times thereafter , the Respondent has refused and
continues to refuse to recognize and bargain with
the Union , although requested to do so by the
Union On November 24, 1969, the Respondent
filed its answer, admitting all factual allegations of
the complaint , and stating , in effect , that the
Respondent ' s refusal to bargain with the Union does
not constitute an unfair labor practice because
Respondent is not subject to the Board's
jurisdiction
On December 10, 1969, the General Counsel filed
a Motion to Transfer and Continue Case before the
Board and Motion for Summary Judgment with the
Regional Director . By Order of the same date, the
Regional Director referred the motion to the Board
in Washington , D. C., for ruling. The General
Counsel requested that the Board take notice of the
official record in the representation proceeding. He
submitted that there is no issue requiring a hearing
in the instant case because the sole issue attempted
to be raised by the Respondent with respect to the
Board ' s asserting jurisdiction over Respondent's
operations constitutes a matter which was fully
considered and disposed of by the Board in the prior
representation proceeding where the Respondent had
every opportunity to present and did present proof
to sustain its contention that it did not come within
'Case 23-RC-3178
the Board's jurisdictional standards He requested
that summary judgment be granted and that a
decision and order be issued finding the Respondent
in violation of Section 8(a)(1) and (5) of the Act as
alleged in the complaint, and directing appropriate
remedial action. On December 16, 1969, the Board
issued an Order Transferring Proceeding to the
Board and Notice to Show Cause on or before
January 5, 1970, why the General Counsel's motion
for summary judgment should not be granted. No
response to the notice to show cause or in
opposition to the motion for summary judgment was
filed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a
three-member panel. ,
RULING ON MOTION FOR SUMMARY JUDGMENT
The record before us establishes that after a
hearing upon a petition filed by the Union to
represent certain employees of West Gulf Maritime
Association, herein called the Association, the
Regional Director for Region 23 issued a Decision
and Direction of Election in Case 23-RC-3178 on
October 8, 1968, in which he found that the
Association was engaged in commerce within the
meaning of the Act, and directed an election among
all employees employed by the Association who
performed reporting of inbound and outbound sea
traffic at the Morgan's Point Station, Morgan's
Point, Texas, with certain exclusions.
Thereafter, the Association filed with the Board a
request for review of the Regional Director's
Decision and Direction of Election and the
Respondent filed with the Regional Director a
motion to reopen the record on the ground that it
had purchased the Morgan's Point Station operation
from the Association. Further hearing on the matter
was held and, on July 15, 1969, the Regional
Director issued a Supplemental Decision and
Direction of Election, finding that the Respondent's
operations came within the Board's jurisdictional
standards and directing an election among the
employees in an appropriate unit. On or about July
24, 1969, the Respondent filed with the Board a
request for review of the Regional Director's
Supplemental Decision and Direction of Election,
seeking to have the petition dismissed on the sole
ground that the Respondent did not meet the
Board's jurisdictional standards inasmuch as it was
a newspaper and its annual gross revenue amounted
to less than $200,000. By telegraphic Order dated
August 5, 1969, the Board denied the Respondent's
request for review on the ground that it raised no
substantial issues warranting review.
Pursuant to the Supplemental Decision and
Direction of Election, an election by secret mail
ballot was conducted among the employees in the
181 NLRB No 131
GULF INTL. TRADER, INC.
unit hereinafter found appropriate, and, on August
19, 1969, the ballots were opened and counted and a
tally of ballots was furnished the parties which
showed that 4 ballots were cast, all of which were
cast for the Petitioner. As neither party filed timely
objections to conduct affecting the results of the
election, the Regional Director, on August 27, 1969,
certified the Union as the exclusive representative of
the Respondent's employees in the appropriate unit
In the instant proceeding, the Respondent, in its
answer, admits the following factual allegations: (1)
that it is an employer engaged in commerce within
the meaning of the Act; (2) that the Union is a
labor organization within the meaning of the Act,
(3) that in Case 23-RC-3178, a secret-ballot election
was conducted in an appropriate unit; (4) that the
Union was certified by the Board as the exclusive
collective-bargaining representative in the
appropriate unit; and (5) that the Union, following
its certification, requested commencement of
negotiations, and that the Respondent thereafter
refused to recognize and/or bargain with the Union
and failed and refused to meet with the Union and
to confer with it in good faith. However, the
Respondent asserts that, inasmuch as it is a
newspaper company with an annual gross revenue
less than $200,000 it is not subject to the Board's
jurisdiction and, therefore, its refusal to negotiate
with the Union does not constitute an unfair labor
practice.
It is apparent, in the light of its answer, that the
Respondent is seeking to relitigate in the instant
proceeding the same issues that were disposed of by
the Board in the representation proceeding. It is well
established that, in the absence of newly discovered
or previously unavailable evidence, a respondent is
not entitled to relitigate in a Section 8(a)(5)
proceeding, issues which were, or could have been,
raised in the prior representation proceeding 2
As all material issues have been previously
decided by the Board, are admitted by the
Respondent in its answer to the complaint, or stand
admitted by the failure of the Respondent to
respond to the notice to show cause, there are no
matters requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's Motion for
Summary Judgment is granted. On the basis of the
record before it, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation with its
office and principal place of business in Houston,
Texas.
The Respondent is engaged in the business of
publishing and distributing the Gulf International
Trader, a trade newspaper reporting events,
'Pittsburgh Plate Glass Company v N L R B, 313 U S. 146
835
containing advertisements and listing ship arrivals
and sailing schedules, all of which primarily relate
to the Gulf of Mexico shipping industry, and which
is distributed to subscribers located in various
States, including Texas
The Respondent is also engaged in the business of
providing an inbound ship reporting service of ships
in interstate and foreign commerce passing
Morgan's Point, Texas.
During the past 12 months, which period is
representative of all times material herein, the
Respondent, in the course and 'conduct of its
business operations, received revenue valued in
excess of $18,500 for the sale of subscriptions to and
advertising in the Gulf International Trader from
subscribers and advertisers located outside the State
of Texas.
During the past 12 months, which period is
representative of all times material herein, the
Respondent, in the course and conduct of its
business operations, received revenue valued in
excess of $13,200 for the sale of subscriptions to and
advertising in the Gulf International Trader from
nonretail enterprises located in Texas, each of which
is engaged directly in commerce and meets the
jurisdictional standards of the Board by virtue of
annually shipping and selling goods valued in excess
of $50,000 directly outside the State of Texas
and/or performing or furnishing services valued in
excess of $50,000 outside the State of Texas.
During the past 12 months, which period is
representative of all times material herein, the
Respondent, in the course and conduct of its
business operations, received revenue valued in
excess of $6,600 for performing the inbound ship
reporting service from nonretail enterprises located
in Texas, each of which is engaged directly in
commerce and meets the Board's jurisdictional
standards by virtue of annually shipping and selling
goods valued in excess of $50,000 directly outside
the State of Texas and/or performing or furnishing
services valued in excess of $50,000 outside the State
of Texas.
During the past 12 months, which period is
representative of all times material herein, the
Respondent, in the course and conduct of its
business operations, received revenue valued in
excess of $18,000 for performing the inbound ship
reporting services from employer-members of the
West Gulf Maritime Association, a multiemployer
association which, on behalf of its members,
bargains collectively and enters into
collective-bargaining agreements with labor
organizations.
Lykes Brothers Steamship Company and
Strachan Steamship Company, employer-members
of the West Gulf Maritime Association, are each
directly engaged in commerce and have each
individually received in excess of $50,000 for
services performed outside the State of Texas.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the past 12 months, which period is
representative of all times material herein, the
Respondent, in the course and conduct of its
business operations, derived gross revenues of
$110,000.
We find that the Respondent is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate
the purposes of the Act to assert jurisdiction herein '
II. THE LABOR ORGANIZATION INVOLVED
South Atlantic and Gulf Coast District,
International Longshoremen ' s Association,
AFL-CIO, 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 purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees employed by the Respondent who
perform reporting of inbound and outbound sea
traffic at the Morgan's Point Station, Morgan's
Point, Texas, excluding office clerical employees,
guards, watchmen, and supervisors as defined in
the Act.
2. The certification
On August 19, 1969, in Case 23-RC-3178, a
majority of the Respondent's employees in the
appropriate unit described above, by secret-ballot
election conducted under the supervision of the
Regional Director of the Board's Region 23,
designated and selected the Union as their
representative for the purposes of collective
bargaining with the Respondent. On August 27,
1969, the Regional Director certified the Union as
the exclusive collective-bargaining representative of
the employees in said unit, and the Union continues
to be such representative.
B. The request to bargain and the Respondent's
refusal
Commencing on or about August 27, 1969, and at
all times thereafter to date, including, but not
limited to, September 19, 1969, the Union requested
and is continuing to request the Respondent to meet
and bargain collectively with it as the exclusive
bargaining representative of all employees of
'We note that the Board asserted jurisdiction over the Respondent in the
underlying representation proceeding
Respondent in the unit described above with respect
to rates of pay, wages, hours of employment and
other terms and conditions of employment.
Commencing on or about August 27, 1969, and at
all times thereafter to date, Respondent has refused
and continues to refuse to recognize and/or bargain
with the Union in that the Respondent has failed
and refused to meet with the Union and to confer
with it in good faith with respect to wages, rates of
pay, hours of employment and other terms and
conditions of employment of the Respondent's
employees in the said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondent
in the appropriate unit described above and that the
Union, at all times since August 27, 1969, has been
and now is the exclusive bargaining representative of
all employees in the aforesaid unit within the
meaning of Section 9(a) of the Act. We further find
that the Respondent has since August 27 and
including, but not limited to, September 19, 1969,
refused to recognize and/or to meet and bargain
collectively with the Union as the exclusive
bargaining representative of all employees in the
appropriate unit, and that, by such refusal, the
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 acts of the Respondent set forth in section
III, above, occurring in connection with its
operations described in section I, above, have a
close, intimate, and substantial relation 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 the Respondent has engaged 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 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
appropriate unit will be accorded the services of
their selected bargaining agent for the period
provided by law, we shall construe the initial year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative in the appropriate unit. See. Mar-Jac
Poultry Company, Inc, 136 NLRB 785; Commerce
GULF INTL. TRADER, INC. 837
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).
CONCLUSIONS OF LAW
1. Gulf International Trader, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2 South Atlantic and Gulf Coast District,
International Longshoremen's Association,
AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees employed by the Respondent
who perform reporting of inbound and outbound sea
traffic at the Morgan's Point Station, Morgan's
Point, Texas, excluding office clerical employees,
guards, watchmen 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 August 27, 1969, 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 purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about August 27, 1969, and
at all times thereafter, to recognize and bargain with
the Union, by failing and refusing to meet with the
Union and to confer with it in good faith with
respect to wages, rates of pay, hours of employment
and other terms and conditions of employment of
the employees of Respondent in the aforesaid
appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6 The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
(b) Refusing to meet with the Union and to
confer with it in good faith with respect to wages,
rates of pay, hours of employment and other terms
and conditions of employment of its employees in
the appropriate unit.
(c) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action which the
National Labor Relations Board finds will effectuate
the policies of the National Labor Relations Act, as
amended:
(a) Upon request, bargain collectively with South
Atlantic and Gulf Coast District, International
Longshoremen's Association, AFL-CIO, as the
exclusive representative of all employees in the
appropriate unit described above with respect to
rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement
(b) Post at the Morgan's Point Station, Morgan's
Point, Texas, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 23,
shall, after being duly signed by the Respondent's
representative, be posted by the Respondent
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 the 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 10 days from the date of this
Decision and Order, what steps the Respondent has
taken to comply herewith.
41n the event this Order is enforced by a judgment of the 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 "
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Gulf International Trader, Inc , its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with the
Union as the exclusive bargaining representative of
its employees in the following appropriate unit:
All employees employed by the Respondent who
perform reporting of inbound and outbound sea
traffic at the Morgan's Point Station, Morgan's
Point, Texas, excluding office clerical employees,
guards, watchmen, 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 recognize and bargain with
South Atlantic and Gulf Coast District, International
Longshoremen's Association, AFL-CIO, as the
exclusive bargaining representative of our employees in
the following appropriate unit.
All employees employed by Gulf International
Trader, Inc., who perform reporting of inbound and
outbound sea traffic at the Morgan's Point Station,
Morgan's Point, Texas, excluding office clerical
employees, guards, watchmen, and supervisors as
defined in the National Labor Relations Act
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT fail and refuse to meet with said
Union and to confer with it in good faith with respect
to wages , rates of pay , hours of employment and other
terms and conditions of employment of our employees
in the appropriate unit.
understanding is reached , embody such understanding
in a signed agreement.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL, upon request , bargain with the
above- named Union as the exclusive representative of
our employees in the appropriate unit with respect to
rates of pay, wages, hours of employment , and other
terms and conditions of employment and, if an
Dated By
GULF INTERNATIONAL
TRADER, INC.
(Employer)
(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 compliance
with its provisions , may be directed to the Board 's Office,
6617 Federal Office Building , 515 Rusk Avenue, Houston,
Texas 77002, Telephone 713-226-4296.