Samson Tug and Barge Co., Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1971

194 N.L.R.B. 317 (N.L.R.B. 1971)

SAMSON TUG AND BARGE CO. 317
Samson Tug and Barge Company, Inc. and Inland
Boatmen 's Union of the Pacific, Puget Sound
Division, affiliated with Seafarers International
Union of North America, AFL-CIO. Case
19-CA-5348
November 24, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on July 1, 1971, by Inland
Boatmen's Union of the Pacific Puget Sound Divi-
sion, affiliated with Seafarers International Union of
North America, AFL-CIO, herein called the Union,
and duly served on Samson Tug and Barge Company,
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 19, issued a
complaint on September 9, 1971, 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 June 23, 1971,
following a Board election in Case 19-RM-877 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; i and that, commencing
on or about July 1, 1971, and at all times thereafter,
Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
September 17, 1971, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On September 22, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 29,
1971, the Board issued an order transferring the
proceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent did not
file a response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
1 Official notice is taken of the record in the representation proceeding,
Case l9-RM-877, 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 (CA 4,
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 answer to the complaint, Respondent denies
the validity of the Union's certification on the ground
that in the underlying representation proceeding,
Case 19-RM-877, the Board failed to accord it due
process with respect to Respondent's Objection 2 to
the election by failing to follow the Board's own
instructions and precedents and by denying Respon-
dent's motion for reconsideration of Objection 2; its
motion to vacate its prior Decision and Certification
of Representative; and motion either to direct a
second election or a hearing on, or additional
investigation of, Respondent's Objection 2. We find
no merit in Respondent's position.
The record in Case 19-RM-877 indicates that, in a
mail ballot election conducted pursuant to a Stipula-
tion for Certification Upon Consent Election, 10
ballots were cast for, and 9 against, the Union.
Respondent thereafter filed timely objections to
conduct affecting the results of the election which
alleged, in substance, that after the employees had
received their mail ballots, union representatives held
two meetings of employees while the latter were in a
pay status and that employees were informed by the
Union that another election could not be held for 2
years if the Union lost the present election. After an
investigation, the Regional Director issued a Report
on Objections to Election in which he recommended
that the objections be overruled in their entirety and
the Union certified. The Respondent filed timely
exceptions to the Regional Director's report.
On June 23, 1971, the Board issued a Decision and
Certification of Representative in which it adopted
the findings and recommendations of the Regional
Director and certified the Union. Thereafter, on July
19, 1971, the Respondent filed a motion for reconsid-
eration of Decision and Certification of Representa-
tive and Other Relief in which it requested a second
election, or, alternatively, a hearing or additional
investigation. The Board, in an Order of August 26,
1971, denied the motion as containing nothing not
previously considered by the Board.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled to
1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v. Penello,
269 F Supp 573 (D.C Va., 1967); Follett Corp, 164 NLRB 378, enfd. 397
F.2d 91 (C.A 7, 1968); Sec 9(d) of the NLRA
194 NLRB No. 46
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this proceed-
ing 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.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is an Alaska corporation engaged in the
towing of barges in the State of Alaska and elsewhere.
During the most recent calendar year income from
sales and services to customers outside the State of
Alaska exceeded $50,000 and the dollar volume of its
sales and services to firms which, in turn, made sales
to customers, outside Alaska exceeded $50,000. The
total dollar volume of all its sales and services
exceeded $500,000.
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.
company owners, officers, shore employees and
guards and supervisors as defined in the Act.
2. The certification
On March 12, 1971, a majority of the employees of
Respondent in said unit, in a mail ballot election
conducted under the supervision of the Regional
Director-for Region 19 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 June 23, 1971, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 1, 1971, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about July 1, 1971, 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
July 1, 1971, 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, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Inland Boatmen's Union of the Pacific, Puget
Sound Division, affiliated with Seafarers Internation-
al Union of North America, 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 consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All regular tug and barge employees; excluding
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 operations
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 com-
merce and the free flow of commerce.
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
2 See Pittsburgh Plate Glass Co v. N L.RB, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs 102.67 (f) and 102.69(c)
SAMSON TUG AND BARGE CO.
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate 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. Samson Tug and Barge Company, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Inland Boatmen's Union of the Pacific, Puget
Sound Division, affiliated with Seafarers Internation-
al Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All regular tug and barge employees; excluding
company owners, officers, shore employees and
guards and supervisors, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since June 23, 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 July 1, 1971, 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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
319
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Samson Tug and Barge Company, Inc., 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 Inland Boatmen's Union of the
Pacific, Puget Sound Division, affiliated with Seafar-
ers International Union of North America,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All regular tug and barge employees; excluding
company owners, officers, shore employees and
guards 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
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its office in Sitka, Alaska, and aboard
each of its boats copies of the attached notice marked
"Appendix." 3 Copies of said notice, on forms
provided by the Regional Director for Region 19 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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."
320 DECISIONS OF 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 Inland
Boatmen's Union of the Pacific, Puget Sound
Division, affiliated with Seafarers International
Union of North America, AFL-CIO, as the
exclusive representative 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 representative 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 under-
standing in a signed agreement. The bargaining
unit is:
Alh:regular tug and barge employees; exclud-
ing.company owners, officers, shore employ-
ees-'and guards and supervisors as defined in
the Act.
Dated By
SAMSON TUG AND
BARGE COMPANY, 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, 10th Floor, Republic Building, 1511 Third
Avenue, Seattle, - Washington 98101, Telephone
206-442-4532.