Howell Refining Co.

National Labor Relations Board - Board Decisions

May 10, 1967

164 N.L.R.B. 512 (N.L.R.B. 1967)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howell Refining Company and Oil , Chemical
and Atomic Workers International Union,
AFL-CIO. Case 23-CA-2568.
May 10, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On March 22, 1967, Trial Examiner
Charles W. Schneider issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Decision and a supporting
brief.
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 case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Howell Refining
Company, San Antonio and Corpus Christi, Texas,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE REPRESENTATION PROCEEDING[
CHARLES W. SCHNEIDER, Trial Examiner: Upon
petition for certification as collective-bargaining
representative under Section 9 of the National Labor
Relations Act filed by Oil, Chemical and Atomic Workers
International Union, AFL-CIO (the Union) and following
hearing, the Regional Director for Region 23 on May 18,
1966, directed an election among the employees of
Respondent, Howell Refining Company. In his Decision
the Regional Director held, contrary to the contentions of
the Respondent, that the Respondent's two refineries
' Official notice is taken of the representation proceeding,
Howell Refining Co., Case 23-RC-2666 This includes such of the
exhibits identified in Respondent 's opposition to General
located in San Antonio, Texas, and Corpus Christi, Texas,
constituted a single multiplant bargaining unit, and
further, that all clerical employees should be excluded
from the unit.
On May 27, 1966, the Respondent filed with the
National Labor Relations Board in Washington, D.C., an
Employer's request for review of Regional Director's
Decision and Direction of Election, excepting to the
Regional Director's determinations that the two refineries
constituted one appropriate unit, and that all clerical
employees be excluded from the bargaining unit. On
June 8, 1966, the Board denied Employer's request for
review on the ground that it "raise [d] no substantial
issues warranting review except as to the unit placement
of yield clerks." As to these the Board amended the
Regional Director's Decision to permit yield clerks to vote
subject to challenge.
On June 15, 1966, an election by secret ballot was
conducted in the appropriate unit under the supervision of
the Regional Director. The Union received a majority of
the valid ballots cast. On June 22, 1966, the Respondent
filed timely objections to the election, asserting conduct by
or attributed to the Union affecting the results of the
election. On August 19, 1966, after investigation, the
Regional Director issued a Supplemental Decision, Order
and Certification of Representative in which he found
Respondent's objections without merit, overruled the
objections, and certified the Union as exclusive
representative of all employees in the appropriate unit. On
September 9, 1966, the Respondent filed with the Board
timely objections to the Regional Director's Supplemental
Decision, Order and Certification of Representative. On
November 3, 1966, the Board denied Respondent's
request for review on the ground that it "raise [d] no
substantial issues warranting review "
The Complaint Case
On December 1, 1966, the Union filed the unfair labor
practice charge involved in the instant case, in which it
alleged that since the certification the Respondent has
refused to bargain with the Union.
On December 15, 1966, the General Counsel, by the
Regional Director, issued a complaint alleging that
Respondent had committed unfair labor practices in
violation of Section 8(a)(1) and (5) of the Act by refusing to
bargain with the Union upon request. In due course the
Respondent filed its answer to the complaint in which
certain allegations of the complaint were admitted and
others denied.
In its answer, filed on December 23, 1966, the
Respondent admitted the jurisdictional allegations of the
complaint, the fact of the election and the certification of
the Union, and request of the Union to bargain thereafter.
However, the Respondent, reiterating the position taken
by it in the representation proceeding, denied the
appropriateness of the bargaining unit and the validity of
the certification. The Respondent further denied refusing
to bargain, and denied the commission of unfair labor
practices.
On January 26, 1967, the General Counsel filed a motion
for summary judgment, supported by accompanying
documents, contending that Respondent's answer to the
Counsel' s motion for summary judgment as were presented to the
Regional Director or the Board in connection with the disposition
of the representation case See Sec 9(d) of the Act
164 NLRB No. 88
HOWELL REFINING CO. 513
complaint raised no triable issue of fact and that therefore
there was no necessity of a hearing.
On January 30, 1967, I issued an Order to Show Cause
on General Counsel's motion for summary judgment. The
parties were directed to show cause on or before
February 15, 1967, as to whether or not the motion should
be granted, with an additional direction to Respondent to
specifically state whether or not it denied the authenticity
of certain correspondence between the Union and the
Respondent (copies of which were among documents
attached to the motion for summary judgment), which
indicated that the Respondent, following the certification,
had refused requests of the Union to meet for the purpose
of negotiating a labor agreement. On February 13, 1967,
the Respondent filed an answer and opposition to the
General Counsel's motion for summary judgment,
supported by a brief and other documents, including
copies of evidence which the Respondent had evidently
submitted to the Regional Director in connection with the
Respondent's objections to the election. In addition the
Respondent in its opposition stated that it had advised the
Union on December 14, 1966, by letter, that it was
prepared to proceed to bargain with the Union in good
faith, without waiving its objections to the election. While
admitting the authenticity of the other correspondence
above referred to, in which it declined to meet with the
Union for bargaining purposes, the Respondent also stated
that beginning January 16, 1967,2 the Union and the
Respondent have been meeting and conferring for the
purpose of negotiating a collective-bargaining agreement.
On February 15, 1967, the General Counsel filed a
response to the Order to Show Cause.
Because of the representations made by Respondent
concerning the negotiations in its answer and opposition to
the motion for summary judgment, I issued a request for
statement of position on February 17, 1967, seeking advice
from the parties as to whether the motion for summary
judgment should be disposed of on its merits, or whether
disposition should be suspended pending outcome of the
negotiations. All parties have filed statements: the
Respondent in favor of suspension, the General Counsel
and the Union in opposition. The ground stated for the
General Counsel's opposition is that occurrences since
December 14, 1966, are irrelevant and immaterial to the
issues presented by the complaint. The Union represents
that although it met with the Respondent on December 16,
1967 (sic), January 24, and February 8, the Respondent
has refused to recognize the Union as certified. In view of
these varying positions and representations, the motion for
summary judgment will be disposed of on its merits at this
time. If, as the Respondent contends, it is now bargaining
in good faith, this does not make the case moot. Mexia
Textile Mills, Inc., 339 U.S. 563, 567; Pennsylvania
Greyhound Lines, 303 U.S. 261, 271.
The Respondent opposes the General Counsel's motion
for summary judgment. The Respondent contends, as it
did throughout the representation proceeding, that the
bargaining unit determined by the Regional Director is
inappropriate, and that the Regional Director erroneously
and without formal hearing overruled Respondent's
objections to the election.
Those contentions involve questions of fact and law
which were decided by the Regional Director in the
representation case, and which the Board affirmed by
declining to review them for lack of a substantial issue. In
the absence of newly discovered or previously unavailable
evidence the Board will not permit litigation in a complaint
case of issues which were decided or could have been
litigated in a prior related representation proceeding.3 No
newly discovered or previously unavailable evidence is
offered by the Respondent.
The determinations by the Regional Director, affirmed
by the Board, as to the appropriateness of the bargaining
unit, the merit of the Respondent's objections to the
election, and the representative status of the Union, are
thus the law of the case and binding on the Trial Examiner.
The Respondent may, in exceptions to this decision,
request the Board to reconsider the previous
determinations, and if unsuccessful, have them reviewed
by the appropriate court of appeals. The Trial Examiner,
however, is without such authority.
The admitted facts establish that following the
certification the Union requested the Respondent to
bargain and that the Respondent refused to do so. There
are thus no material unresolved factual issues litigable
before a Trial Examiner, and no matters requiring an
evidential hearing. The record as made establishes the
violations alleged in the complaint, summary judgment is
appropriate, the General Counsel's motion therefore is
granted, and I hereby make the following further findings:
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation with its principal
office and place of business in the city of San Antonio,
Texas, and is engaged in the refining of petroleum and
related products at two refineries located in San Antonio
and Corpus Christi, Texas. During the past 12 months, a
representative period, Respondent in the course of its
business operations manufactured, sold, and distributed
products valued in excess of $50,000, which were shipped
from Respondent's Texas refineries directly to points in
States other than Texas. The Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
2 There is conflict as to this date The January 16, 1967, date is
given by the Respondent in its opposition However, the Union, in
a statement of position subsequently filed, gives a date of
"December 16, 1967 " It is thus not clear which is the correct
month
3 Pittsburgh Plate Glass Company v N L R.B., 313 U S 146,
162, Union Brothers, Inc., 162 NLRB 1505 And see Rules and
Regulations of the National Labor Relations Board, Series 8, as
revised January 1,1965, Sec 102 67(f)
Denial of a request for review [of a decision by a Regional
Director in a representation case] shall constitute an
affirmance of the Regional Director's action which shall also
preclude relitigating any such issues in any related
subsequent unfair labor practice proceeding.
See also Sec. 102 69(c)
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees, including
truckdrivers, mechanics, and laboratory technicians
employed at the Employer's two refineries in San Antonio,
Texas, and Corpus Christi, Texas, excluding all office
clerical employees, chemists, temporary construction
workers, guards, watchmen and supervisors as defined in
the Act.
On June 15, 1966, a majority of employees of
Respondent in the above-described unit selected the
Union as their collective-bargaining representative in a
secret-ballot election conducted under the supervision of
the Regional Director for Region 23 of the Board in Case
23-RC-2666.
On August 19, 1966, the Regional Director on behalf of
the Board, after consideration of Respondent's objections
to the above-described election, certified the Union as the
exclusive collective-bargaining agent of the employees in
the above-described unit
At all times since August 19, 1966, and continuing to
date the Union has been the representative for the purpose
of collective bargaining of the employees in the above-
described unit and by virtue of Section 9(a) of the Act, has
been, and is now, the exclusive bargaining representative
of all of the employees in said unit for the purpose of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of
employment.
On or about August 22, 1966, and November 7, 1966,
the Union requested the Respondent to bargain with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment as the exclusive
bargaining representative of all of the employees in the
appropriate unit. On or about August 25, 1966,
Respondent refused, and since continues to refuse, to
recognize and bargain with the Union as such
representative.
By thus refusing to recognize and bargain with the
Union the Respondent has refused to bargain collectively
in violation of Section 8(a)(5) of the Act and has interfered
with, restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I recommend that the Board issue the
following:
workers, guards, watchmen and supervisors as defined in
the Act.
(b) Interfering with the efforts of said Union to negotiate
or bargain for or represent the employees in said
appropriate unit as the exclusive bargaining
representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively, with Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, as the exclusive representative of the
employees in the appropriate unit, with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and embody in a signed
agreement any understanding reached.
(b) Post at its San Antonio and Corpus Christi
refineries copies of the attached notice marked
"Appendix."5 Copies of said notice, to be furnished by the
Regional Director for Region 23, after being duly signed by
an authorized representative, shall 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 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.6
Mar-Jac Poultry Company, Inc, 136 NLRB 785; N.L R B v
Commerce Co., 328 F 2d 600 (C A. 5), N L R.B. v. Burnett
Construction Co , 350 F 2d 57 (C A 10)
5 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
6 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify the
Regional Director for Region 23, in writing , within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
ORDER
A. The certification period is extended to begin on the
date the Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative.4
B. Howell Refining Company, San Antonio, Texas, its
officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Refusing to bargain collectively with Oil, Chemical
and Atomic Workers International Union, AFL-CIO, as
the exclusive bargaining representative of the employees
in the following appropriate unit:
All production and maintenance employees, including
truckdrivers, machanics, and laboratory technicians
employed at the Employer's two refineries in San Antonio,
Texas, and Corpus Christi, Texas, excluding all office
clerical employees, chemists, temporary construction
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Oil, Chemical and Atomic Workers International
Union , AFL-CIO , as the exclusive bargaining
representative of all the following employees:
All production and maintenance employees,
including truckdrivers , mechanics, and
laboratory technicians employed at the
Employer's two refineries in San Antonio, Texas,
and Corpus Christi, Texas, excluding all office
clerical employees , chemists, temporary
construction workers, guards, watchmen and
supervisors as defined in the Act.
HOWELL REFINING CO.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of their rights under the Act.
WE WILL bargain collectively with the Union as the
exclusive bargaining representative of these
employees and, if an understanding is reached, we
will sign a contract with the Union.
HOWELL REFINING
COMPANY
(Employer)
Dated By
515.
(Representative ) (Title)
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
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston , Texas 77002,
Telephone 228-0611.
298-668 0-69-34