Pyrofax Gas Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 258 (N.L.R.B. 1970)

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pyrofax Gas Corporation and Teamsters, Chauffeurs,
Warehousemen & Helpers, Local Union No. 59,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Case 1-CA-7028
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On June 11, 1970, Trial Examiner Charles W
Schneider issued r his Decision in the above-entitled
proceeding, granting General Counsel's Motion for
Summary Judgment; finding no merit in the various
contentions urged by Respondent in its response to
the Trial Examiner's Order To Show Cause why
the Motion for Summary Judgment should not be
granted; further finding on the pleadings that
Respondent had engaged in and was engaging in
certain unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the National Labor Relations
Act, as amended; and recommending that Respondent
cease and desist from such unfair labor practices
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
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 reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in
this 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 Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
' We have again examined the Board 's Decision and Certification
of Representative in Case 1-RC-10723 and made an independent review
of the record and conclude that the Board's findings were correct
Respondent, Pyrofax Gas Corporation, Hyannis, Mas-
sachusetts, 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 Issue
CHARLES W. SCHNEIDER, Trial Examiner: The case arises
on a Motion for Summary Judgment filed by counsel for
the General Counsel upon an admitted refusal by the
Respondent to bargain with the certified charging Union,
the Respondent contesting the validity of Board rulings
in the representation proceeding in which the Union was
certified
The Representation Proceeding'
Upon a petition filed in Case 1-RC-10, 723 under Section
9 of the National Labor Relations Act (29 U.S.C.A. 159)
on July 30, 1969, by Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local No. 59, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, herein called the Union,
the Union and Pyrofax Gas Corporation, herein called
the Respondent, entered into a Stipulation for Certification
Upon Consent Election, which was approved by the Acting
Regional Director of Region 1 of the Board on August
21, 1969
Pursuant to the stipulation, an election in an appropriate
bargaining unit, described hereinafter, was held on Septem-
ber 5, 1969, under the direction and supervision of the
Regional Director to determine the question of representa-
tion. Upon conclusion of the election, the parties were
furnished a tally of ballots, which showed that of approxi-
mately 6 eligible voters, 3 cast valid ballots for the Union,
2 cast valid ballots against the Union, and one ballot
was challenged The challenged ballot was sufficient to
affect the results of the election.
On September 10, 1969, the Respondent filed timely
objections to the conduct of the election, alleging in sub-
stance that the Board agent conducting the election improp-
erly permitted employees not designated as observers to
challenge the ballot of Harold W Perry and that a challenge
of Perry's ballot by the union business agent was untimely.
Administrative or official notice is taken of the record in the representa-
tion proceeding, Case 1-RC-10,723, as the term "record" is defined
in Sec 102 69(f) of the Board's rules (Rules and Regulations and State-
ments of Procedure, National Labor Relations Board, Series 8 as amended)
See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A
4, 1968), cert denied, 393 US 843; Golden Age Beverage Co, 167
NLRB No 24, enfd 415 F 2d 26 (C A 5, 1969), Intertype Co v
Penello, 269 F Supp 573 (D C Va 1967), Intertype Co v NLRB,
401 F 2d 41 (C A 4, 1968), cert denied, 393 U S 1049 (1969), Follett
Corp, et al., 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Section
9(d) of the National Labor Relations Act
185 NLRB No. 65
PYROFAX GAS CORPORATION
On September 16, 1969, the Regional Director issued
his Consolidated Report on Objections and Challenged
Ballots In the report, the Regional Director stated that
after investigation of the objection and the challenged ballot
he found that Perry's eligibility to vote was challenged
by the Board agent conducting the election, after discussion
of Perry's status with the Respondent's manager, and in
accordance with Board practice in situations where the
agent has reason to believe the voter ineligible and none
of the parties challenges him The Regional Director, there-
fore, recommended that the Respondent's objection be over-
ruled. After consideration and discussion of Perry's status
the Regional Director found him to be a student ineligible
to vote The Regional Director therefore recommended
that the challenge to Perry's ballot be sustained, and that
a Revised Tally of Ballots and a Certification of Representa-
tive be issued.
Thereafter, on September 29, 1969, the Respondent filed
timely Exceptions to the Regional Director's Report on
Objections and Challenged Ballot, and a brief in support
thereof, in which the Respondent requested that the Board
overrule the findings and recommendations of the Regional
Director and invalidate the challenge to Perry's ballot,
or in the alternative direct a hearing for the purpose of
resolving any dispute as to the facts
On January 29, 1970, the Board issued a Decision and
Certification of Representative in which the Board stated,
inter alia , that it, " has considered the Regional
Director's consolidated report and the Employer's
exceptions thereto, and hereby adopts the Regional
Director's findings and recommendations." The Board
further said that, " . the Employer's exceptions raise no
material or substantial issues of fact or law which would
require a hearing or warrant reversal of the Regional
Director's findings or recommendations " The Board
specifically found that Perry was a summer student and as
such ineligible to vote Accordingly, the Board certified the
Union as the collective-bargaining re esentative of the
employees in the appropriate unit.
The Unfair Labor Practice Case
On March 4, 1970, the Union filed the instant unfair
labor practice charge alleging that since the certification
the Respondent was engaging in unfair labor practices
by refusing to bargain with the Union
On March 24, 1970, the Regional Director issued a
complaint and notice of heanng alleging violations by the
Respondent of Sections 8(a)(1) and (5) and 2(6) and (7)
of the Act, by refusing since on or about February 24,
1970, March 2, 1970, and at all times thereafter, to bargain
collectively or meet with the certified Union
On April 8, 1970, Respondent filed its answer to com-
plaint, in which it denied the representative status of the
Union, and the commission of unfair labor practices, but
admitted most of the remaining factual allegations of the
complaint. The Respondent reiterated its objections to the
election and to the rulings of the Regional Director. Specifi-
cally, the Respondent denied that the Board agent challenged
Perry's ballot and contended that the ballot should be
259
counted and that there was substantial and material factual
dispute requiring hearing The Respondent attached to its
answer documents in support of its contentions
On April 20, 1970, counsel for the General Counsel
filed a Motion for Summary Judgment, dated April 17,
1970. On April 22, 1970, I issued an Order To Show
Cause on General Counsel's Motion for Summary Judgment,
returnable May 6, 1970, and subsequently extended, upon
request by counsel for the Respondent, to May 13, 1970.
Thereafter, the Respondent filed its Reply to Order To
Show Couse on General Counsel's Motion for Summary
Judgment No other responses have been received
Ruling on Motion for Summary Judgment
Respondent opposes granting of the Motion for Summary
Judgment In its Reply to Order To Show Cause the
Respondent reiterates its contentions made in the representa-
tion case, disputing the Regional Director's finding that
the challenge was made by the Board agent, and contending
that there being no proper challenge, Perry's ballot should
be counted. In addition the Respondent asserted that it
has newly discovered evidence, referred to hereafter In
conclusion, the Respondent prayed that the Motion for
Summary Judgment be overruled and the complaint dis-
missed in entirety or that a hearing be held
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence, or special
circumstances, not to permit litigation before a trial examiner
in an unfair labor practice case of issues which were or
could have been litigated in a prior related representation
proceeding 2 This policy is applicable even though no formal
hearing on objections has been provided by the Board
Such a hearing is not a matter of right unless substantial
and material issues are raised '
The Board has ruled that the Respondent's objections
to the election raised no substantial or material issues
Unless the Respondent's additional evidence is newly discov-
ered, the Board's holding is binding on the Trial Examiner
and may not be reviewed by him
To justify its reception, newly discovered evidence must
be "such evidence [as] will probably change the outcome
of the litigation ." Red-More Corp., d/b/a Disco Fair, 169
NLRB No 63 In addition, the evidence must be such
that it was not discoverable previously with the exercise
of due diligence. Schott Sheet Metal Products Co., 128
NLRB 415. The new evidence offered by the Respondent
does not meet either of these tests
' Krieger-Ragsdale & Co, Inc., 159 NLRB 490, enfd 379 F 2d 517
(C A 7), cert denied 389 US 1041 See Pittsburgh Plate Glass Co
v NL.R B, 313 U S 146, 162, NLRB Rules and Regulations, Sec
102 67(f) and 102 69(c)
' O K Van and Storage. Inc 127 NLRB 1537, enfd 297 F 2d 74 (C A 5)
See N L R B v Air Control Windoi, Products Inc 335 F 2d 245. 249 (C A
5) "If there is nothing to hear, then a hearing is a senseless and useless
formality " See also N L R B v Bata Shoe Co 377 F 2d 821, 826 (C A 4)
cert denied 389 U S 917 " there is no requirement, constitutional or
otherwise that there be a hearing in the absence of substantial and material
issues crucial to determination of whether NLRB election results are to be
accepted for purposes of certification "
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The new evidence is a letter dated} April 27, 1970 (a
copy of which is attached to the Respondent's Reply to
the Order To Show Cause) from Harold Perry to Bruce-
P Phinney, the Respondent's branch manager at the location
involved. In this letter Mr. Perry states his present recollec-
tion to be that his right to vote was not challenged until
after he had' cast his ballot. Mr. Perry's recollection in
this respect appears contrary to that of Mrs Gene A.
Raymond, the Respondent's observer at the election An
affidavit of Mrs. Raymond's dated September 22, 1969,
17 days after the election, attached to the Respondent's
brief to the Board in support of the Respondent's exceptions
to the Regional Director's Consolidated Report on Objec-
tions and Challenged Ballots,, indicates that Mr. Perry's
vote was challenged before he cast his ballot In any event,
this evidence is of such nature that it was discoverable
by due diligence during the pendency of the representation
proceeding. No explanation is offered for the failure to
present it at that time In such circumstances I do not
believe that it can be said that the evidence reflected in
Mr. Perry's affidavit would either probably change the out-
come of the litigation or was previously unavailable.
In the light of these considerations the decision of the
Board to the effect that the Respondent's objections raised
no substantial' or material issues affecting the validity of
the election is the law of the case at this stage of the
proceeding, and may be reviewed only by the Board or
a Court of Appeals.
There thus being no unresolved matters requiring an
evidentiary hearing the motion of counsel for the General
Counsel for Summary Judgment is granted'
Upon the basis of the record before me, I make the'
following further
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent, Pyrofax Gas Corporation, is and has been
at all times herein mentioned a corporation duly organized
under and existing by virtue of the laws of the State
of Delaware and a wholly owned subsidiary of Texas Eastern
Transmission Corporation
At all times herein mentioned, Respondent has maintamedr
its principal office and place of business at Houston, Texas,
and has maintained a place of business at Route #132 in
the Town of Hyannis, County of Barnstable, and Common-
wealth of Massachusetts (herein called the Hyannis plant),
and is now and continuously has been engaged at said,
plant in the retail sale and distribution of liquified petroleum
gas and retail sale and service of various gas appliances
and related products
Respondent in the course and conduct of its business
causes, and continuously has caused at all times herein
mentioned, large quantities of liquified petroleum gas and
various gas appliances used by it in the retail sale and
distribution of liquified petroleum gas and retail sale and
service of various gas appliances to be purchased and trans-
ported to interstate commerce from and through various
States of the United States other than the Commonwealth
of Massachusetts.
Respondent's gross-volume of sales of liquified petroleum
gas and various gas appliances exceeds $500,000 annually
Respondent receives liquified petroleum gas and, various
gas appliances valued in excess of $50,000 annually directly
from, points located outside the Commonwealth of Massa-
chusetts.
The Respondent is, and has been engaged in commerce
within the meaning of the Act.
ii THE LABOR ORGANIZATION, INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act
All driver-salesmen, delivery-servicemen, and truck
drivers employed by the Respondent' at its Hyannis
plant, exclusive of clerical workers, guards„ and all
supervisors as defined in the Act
At all times since January 29, 1970, the Union has
been the representative for the purposes of collective bargain-
ing of a majority of the employees in the appropriate
unit for purposes of collective bargaining
On or about February 2, 1970, and on or about February
25, 1970, and on or about March 2, 1970, the Union
requested' Respondent to bargain collectively with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment
On or about February 24, 1970, March 2, 1970, and
all times thereafter, Respondent did refuse and continues
to refuse to bargain collectively with the Union as, such
representative
By thus refusing to bargain collectively Respondent has
engaged in unfair labor practices within the meaning of
Sections 8(a)(1) and (5) and 2(6) and (7) of the Act
Upon the foregoing findings and conclusions, pursuant
to Section 10(c) of the Act, I recommend that the Board
issue the following
ORDER
A For the purpose of determining the duration. of'the
certification, the initial-year of certification shall, be deemed
to begin on the date the Respondent commences to. bargain
in good faith with the Union as the recognized exclusive
bargaining representative in the appropriate unit.4
B. Pyrofax Gas Corporation, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from
(a) Refusing to bargain collectively with Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
No 59, a/w International Brotherhood of Teamsters; Chauf-
' The purpose of this. provision is to insure that. the employees in
the appropriate unit will be accorded the services of their selected bargain-
ing agent for the period provided, by law See Mar-Jac Poultry Co,
136 NLRB 785, Commerce Co, d/b/a Lamar Hotel, 140 NLRB 226,
229, 328 F 2d 600 (C A (C A 5), cert denied 379 -U S 817, Burnett
Construction Co, 149 NLRB 1419, 1421, 350 F 2d 57 (C A 10)
PYROFAX GAS CORPORATION
feurs, Warehousemen and Helpers of America, as the exclu-
sive collective-bargaining representative of the employees
in the following appropriate bargaining unit
All driver-salesmen, delivery-servicemen, and truck driv-
ers employed by, the Respondent at its Hyannis plant,
exclusive of clerical workers, guards, and all supervisors
as defined in the Act
(b) Interfering with the efforts of said Union to negotiate
for or represent employees as exclusive collective-bargaining
representative
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act.
(a) Upon request bargain collectively with Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
No 59„a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the exclu-
sive representative of all 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 place of busmessnn Hyannis, Massachusetts,
copies of the notice attached hereto marked "Appendix."5
Copies of said notice on forms provided by the Regional
Director for Region 1, after being duly signed by an author-
ized representative of the Respondent, shall be posted by
the Respondent immediately upon receipt thereof and be
maintained by the Respondent for a period of 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able 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 1, in writing,
within 20 days from receipt of this Decision, what steps
the Respondent has taken to comply herewith 6
' In the event no exceptions are filed • as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's 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."
In the event these recommendations are adopted by the Board,
this provision shall be modified to read "Notify the Regional Director
for Region 1, in writing , within 10 days from receipt of this Order,
what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
261
WE WILL NOT refuse to bargain collectively with
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local No 59, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive collective-bargain-
ing representative of all our following employees
All driver-salesmen , delivery-servicemen, and
truck drivers employed at our Hyannis plant,
exclusive of clerical workers, guards, and all super-
visors as defined in the Act.
WE WILL NOT interfere with the efforts of the
Union to negotiate for or represent employees as exclu-
sive collective-bargaining representative.
WE WILL bargain collectively with the Union as
the exclusive collective-bargining representative of the
employees in the appropriate unit , and if an understand-
ing is reached we will sign a contract with the Union.
PYROFAX 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 compliance with
its provisions may, be directed to the Board's Office, 20th
Floor, John F. Kennedy Federal Building, Cambridge &
New Sudbury Streets, Boston, Massachusetts 02203, Tele-
phone 617-223-3300.