Pittston Co.

National Labor Relations Board - Board Decisions

Jan 31, 1975

216 N.L.R.B. 404 (N.L.R.B. 1975)

404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metropolitan Petroleum Company of Massachusetts,
Div. of Pittston Company and Teamsters Local
Union No. 25, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America . Case l-CA-9986
January 31, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
Upon a charge and amended charge filed on July
16, 1974, and August 24, 1974, by Teamsters Local
Union No. 25, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, and duly served
on Metropolitan Petroleum Company of Massachu-
setts, Div. of Pittston Company, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 1, issued a complaint on August 28, 1974,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting commer-
ce 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 an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges that on or about February 1, 1974,
and July 1, 1974, Respondent granted unilateral
wage increases to employees in a unit found
appropriate by the Board in Case 1-RC-12767,
without prior notification to or discussion with the
Union, which had been certified as the exclusive
collective-bargaining representative of the unit em-
ployees in that proceeding. On September 10, 1974,
Respondent filed an answer to the complaint,
admitting the factual allegations of the complaint,
but denying the appropriateness of the unit and the
Union's representative status.
On September 18, 1974, the General Counsel, by
counsel, filed with the Board a Motion for Summary
Judgment, submitting in effect that Respondent in its
answer was attempting to relitigate issues which had
been raised and litigated in the representation case,
and in a s. bsequent unfair labor practice proceed-
ing' in which Respondent was ordered to bargain
with the Union. On October 1, 1974, the Board
issued an order transferring the proceedings before it
i Metropolitan Petroleum Company of Massachusetts, a Div. of Pittston
Company, 209 NLRB 837 (1974).
Y See Pittsburgh Plate Glass Co. v N L.R B, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs . 102 67(f) and 102.69(c).
216 NLRB No. 63
and a Notice To Show Cause why the General
Counsel's motion should not be granted. Respondent
filed a response to the 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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its response to the Notice To Show Cause,
Respondent opposes the Motion for Summary
Judgment on the grounds that the certification issued
the Union in the representation proceeding is invalid
due to the improper inclusion of dispatchers in the
unit. Respondent further submits that this issue was
litigated in the prior unfair labor practice proceeding,
which is currently pending on appeal to the United
States court of appeals; thus the court's decision on
the Board's ruling on this issue will be dispositive of
the issue in the instant case . Accordingly, Respond-
ent suggests that the Board deny the Motion for
Summary Judgment pending the court's decision.
Respondent, as it admits in its response to the
Notice To Show Cause, raised and litigated this issue
in the prior unfair labor practice proceeding. In that
matter, we reviewed the representation proceeding,
and, in the absence of any newly discovered or
previously unavailable evidence, found no cause to
disturb our ruling therein. By reasserting its unit
contention again, in this proceeding, Respondent is
seeking to relitigate this issue anew, and again offers
no newly discovered or previously unavailable
evidence in support of a different ruling. In accord-
ance with established precedent, relitigation of the
unit issue is properly barred.2
We find no merit in Respondent's contention that
we should defer our decision in this case until the
court issues its decision in the previous unfair labor
practice proceeding. It is well settled that collateral
litigation does not suspend the duty to bargain under
Section 8(a)(5),3 and it is likewise clear that a
unilateral wage increase by an employer, which
Respondent admittedly gave, while under a duty to
bargain with a certified labor organization, is a
violation of Section 8(a)(5).4
3 Great Dane Trailers, Inc, 191 NLRB 6 (1971); Porta•Kamp Manufactur-
ing Company, Inc., 189 NLRB 899 (1971 ) (Chairman Miller dissenting on
the basis of his dissent in the underlying 8(a)(3) case).
4 N L. R B v. Katz, 369 U.S. 736 (1962).
METROPOLITAN
Accordingly , we shall grant the General Counsel's
Motion for Summary Judgment.5
On the basis of the entire record , the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material herein , Respondent , Metro-
politan Petroleum Company of Massachusetts, a
division of the Pittston Company, a Massachusetts
corporation, has been engaged in the storage, sale,
and delivery of heavy and light fuel oil and related
petroleum products at its facility located at 11
Broadway , Chelsea, Massachusetts.
In the course and conduct of its business at the
facility, Respondent receives annually from points
located outside the Commonwealth of Massachusetts
petroleum products valued in excess of $50,000.
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
Teamsters Local Union No. 25, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representative Status of the Union
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 dispatchers and clerks at the Respondent's
plant in Chelsea, Massachusetts , but excluding all
other employees, guards, and supervisors as
defined in the Act.
2. The certification
At all times material herein , the Union has been
the exclusive representative of all employees in said
unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
s In view of our finding in the prior unfair labor practice proceeding that
the unit found in the representation proceeding was appropriate , Respond-
PETROLEUM CO. 405
B. The Refusal To Bargain
On or about February 1, 1974, and on or about
July 1, 1974, Respondent unilaterally granted wage
increases to employees included in said unit, without
prior notification to or discussion with the Union,
notwithstanding the Board's prior certification of the
Union and the Board's Order issued March 25, 1974,
wherein Respondent was ordered to recognize and
bargain with the Union as the collective-bargaining
representative of said employees.
Accordingly, we find that the Respondent has,
since February 1, 1974, 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, Respond-
ent 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 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 commer-
ce.
V. THE 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.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Metropolitan Petroleum Company of Massa-
chusetts, Div. of Pittston Company, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Local Union No. 25, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor
ent's denial of the appropriateness of the unit does not raise an issue which
may be litigated in this proceeding.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization within the meaning of Section 2(5) of
the Act.
3. All dispatchers and clerks at the Respondent's
plant in Chelsea , Massachusetts , but excluding all
other employees , guards , 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 17, 1973, 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 granting unilateral wage increases to
employees in the appropriate unit on or about
February 1, 1974, and July 1, 1974, Respondent has
refused to bargain collectively with the above-named
labor organization as the exclusive representative of
all the employees in the appropriate unit , and 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 , Respond-
ent has interfered with, restrained , and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed 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
(b) Granting unilaterally to the employees in the
aforesaid appropriate unit wage increases or other
economic benefits; provided, however, that nothing
herein is to be construed as requiring Respondent to
rescind, abandon, or vary any term or condition of
employment heretofore established , unless it be as a
result of collective bargaining.
(c) 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Chelsea, Massachusetts, facility
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by Respondent's representative , shall be
posted by 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 Respond-
ent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Metropolitan Petroleum Company of Massachusetts,
Div. of Pittston Company, Chelsea , Massachusetts,
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 Teamsters Local
Union No. 25, a/w International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All dispatchers and clerks at the Respondent's
plant in Chelsea, Massachusetts , but excluding all
other employees, guards, and supervisors as
defined in the Act.
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 Team-
sters Local Union No. 25, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the
exclusive representative of the employees in the
bargaining unit described below.
METROPOLITAN PETROLEUM CO. 407
WE WILL NOT grant unilateral wage increases or
other economic benefits to the employees in the
bargaining unit set forth 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 dispatchers and clerks at the Re-
spondent's plant in Chelsea, Massachusetts,
but excluding all other employees, guards,
and supervisors as defined in the Act.
METROPOLITAN
PETROLEUM COMPANY OF
MASSACHUSETTS, DIV. OF
PITTSTON COMPANY