Houston Natural Gas Corp.

National Labor Relations Board - Board Decisions

Aug 21, 1972

198 N.L.R.B. 1003 (N.L.R.B. 1972)

HOUSTON NATURAL GAS CORP. 1003
Houston Natural Gas Corporation and International
Union of Operating Engineers, Local No. 347,
AFL-CIO. Case 23-CA-4257
August 21, 1972
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on February 28, 1972, by
International Union of Operating Engineers, Local
No. 347, AFL-CIO, herein called the Union, and
duly served on Houston Natural Gas Corporation,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 23, issued a complaint
on March 20, 1972, against Respondent, alleging 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, 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 December 3,
1971, following a Board election in Case
23-RC-3666, the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about February 17,
1972, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On March 27, 1972,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On March 31, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on April 6, 1972,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent thereafter
filed a response to Notice To Show Cause.
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.
1 Official notice is taken of the record in the representation proceeding,
Case 23-RC-3666, 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);
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 opposition
to the General Counsel's Motion for Summary
Judgment, Respondent denies the appropriateness of
the unit, the validity of the election, the status of the
Union as exclusive bargaining representative, and
the commission of unfair labor practices. We find no
ment in the Respondent's position.
On October 22, 1971, the Acting Regional Director
for Region 23 issued his Decision and Direction of
Election finding: Employees classified as "Operators
A" are properly included in the unit; the Union is
qualified to represent the employees involved and
has a sufficient showing of interest to support its
petition; and lead operator Kitchens should be
permitted to vote subject to challenge. Thereafter,
the Respondent filed with the Board a request for
review of the Acting Regional Director's Decision.
By telegram dated November 11, 1971, the Board
denied the request on grounds that it raised no
substantial issues. In the election which followed, of
approximately 17 eligible voters, 9 cast ballots for the
Union, 3 against, and 5 were challenged, the latter
being insufficient to affect the results of the election.
Respondent thereafter filed timely objections to
conduct affecting results of the election. Although
requested to do so in a letter from the Regional
Director, Respondent did not submit any evidence in
support of its objections. Citing Mrs. Weaver's
Salads, A Division of Dean Foods Co., Inc., 181 NLRB
197, and cases cited therein, the Regional Director
found that the Respondent had failed ..o support its
objections, overruled them in their entirety, and
certified the Union as exclusive bargaining represent-
ative of the employees in the unit herein found to be
appropriate.
Respondent filed a request for review in which it
objected to the Regional Director's denial of a
hearing on its objections and the imposition of a
requirement that evidence in support of objections be
furnished within 5 working days of the Regional
Director's letter. The Board, in a telegraphic commu-
nication, denied Respondent's request for review on
the ground that it raised no substantial issues
warranting review.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances of a respondent in a proceed-
Golden Age Beverage Company, 167 NLRB 151, Intertype Co. v Penello, 269
F Supp 573 (D C Va , 1967), Follett Corporation, 164 NLRB 378, enfd 397
F 2d 92 (C A 7, 1968), Sec 9(d) of the NLRA
198 NLRB No. 35
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing 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. We shall, accordingly,
grant the Motion for Summary Judgment.3
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a public utility, is a Texas corporation
with its principal office in Houston, Texas, where it is
engaged in the transmission, distribution, and sale of
natural gas to residential, commercial, and industrial
customers. During the past year it had a gross
volume of business in excess of $250,000. During the
same period, Respondent purchased goods and
materials valued in excess of $50,000 from firms
located in states outside the State of Texas, which
goods and material were shipped directly to Respon-
dent at its Texas locations.
We find, on the basis of the foregoing, that
Respondent 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
International Union of Operating Engineers, Local
No. 347, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2 See Pittsburgh Plate Glass Company v N LR B, 313 U S 146, 162
(1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
3 On July 11, 1972, approximately 2-1/2 months after filing its
Opposition to the General Counsel's Motion for Summary Judgment,
Respondent filed a Supplemental Opposition stating that it is "now
possessed of substantial relevant evidence" which would require a dismissal
of the complaint Thereafter, the General Counsel moved to strike this
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 operators A, B and C and apprentice
operators, including maintenance operators and
maintenance operator apprentices, employed by
the Employer at its Houston Natural Gas Build-
ing, Houston, Texas, excluding all other employ-
ees, office clerical employees, guards, watchmen
and supervisors as defined in the Act.
2. The certification
On November 16, 1971, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 23, 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
December 3, 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 February 8, 1972, 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 February 17, 1972, 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 collective bargaining of
all employees in said unit.
Accordingly, we find that the Respondent has,
since February 17,1972, 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
Supplemental Opposition As the Respondent has made no showing that the
proffered evidence could not have been produced in the underlying
representation proceeding , or was previously unavailable to it, or that
special circumstances exist warranting reexamination of the Board's
determination in the representation proceeding, we grant the General
Counsel's Motion To Strike.
HOUSTON NATURAL GAS CORP. 1005
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 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. 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 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 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. Houston Natural Gas Corporation is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local No. 347, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All operators A, B, and C and apprentice
operators, including maintenance operators and
maintenance operator apprentices, employed by the
Employer at its Houston Natural Gas Building,
Houston, Texas, excluding all other employees,
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 December 3, 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 February 17, 1972, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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, 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,
Houston Natural Gas Corporation, 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
conditions of employment with International Union
of Operating Engineers, Local No. 347, AFL-CIO,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All operators A, B and C and apprentice
operators, including maintenance operators and
maintenance operator apprentices, employed by
the Employer at its Houston Natural Gas Build-
ing, Houston, Texas, excluding all other employ-
ees, office clerical employees, guards, watchmen
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
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Houston, Texas, facility copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director
for Region 23, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
terms and conditions of employment with Inter-
national Union of Operating Engineers, Local
No. 347, AFL-CIO , as the exclusive representa-
tive 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 operators A, B and C and apprentice
operators, including maintenance operators
and maintenance operator apprentices, em-
ployed by the Employer at its Houston
Natural Gas Building, Houston, Texas,
excluding all other employees, office clerical
employees, guards, watchmen and supervi-
sors as defined in the Act.
HOUSTON NATURAL GAS
CORPORATION
(Employer)
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, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone
713-226-4296.