Skelly Oil Co.

National Labor Relations Board - Board Decisions

Aug 18, 1971

192 N.L.R.B. 741 (N.L.R.B. 1971)

SKELLY OIL CO.
Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct
Marketing Branch) and Automotive, Petroleum and
Allied -Industries, -Local No.- 552, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 177-CA-4564
August 18, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BRowN, AND JENKINS
Upon a charge and an amended charge filed on
February 1, 1971, and March 24, 1971, respectively,
by Automotive, Petroleum and Allied Industries,
Local No. 552, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the Union,
and duly served on Skelly Oil Co. (Kansas City,
Missouri, Skelgas Direct Marketing Branch), herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by _ the Regional
Director for Region 17, issued a complaint on April
20, 1971, against Respondent, alleging that Respon-
dent 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 May 18, 1970,1
following a Board election in Case 17-RC-6216 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 2 and that, commencing
on or about December 15, 1970, 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 April 29, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On June 1, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 8, 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
r On May 25, 1970 , the Board issued an order correcting its, May 18,
1970,. Decision and Certification of Representative by striking from the
second line on page 3 thereof the words "Section 9(d)" and substituting
therefor the words "Section 9(a)."
2 Official notice is taken of the record in the representation proceeding,
Case 17-RC-6216, as the term "record" is defined in Sees. 102.68 and
741
not be granted. Respondent thereafter filed- a re-
sponse 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
powers in connection with this proceeding to a three-
member panel. -
Upon the entire record in this proceeding, the Board
makes the following:
Ruling on the Motion for
Judgment
Summary,
The record in Case 17-RC-6216 establishes ^ that,
pursuant -to a Stipulation for Certification Upon
Consent Election, an election was,, conducted on
November 12, 1969, among' the employees in the
stipulated unit. The tally of 'ballots shows that- of
approximately, 23 eligible voters, 12 cast ballots for
and 9 cast ballots -against the the Union, and 1 ballot
was challenged. After the -election, the Respondent
filed timely Objections -to Conduct Affecting the
Results of the Election. The Respondent argued
therein that alleged misrepresentations by a -union
agent with respect to wages, occurring just prior to the
election, -at a *time when no effective reply could be
made, necessitated an investigation' and a second
election. The Regional Director - investigated these
objections, and- found them to be without merit
because the misrepresentations- did not "constitute
grounds to set aside the election under either the
Board's customary test or `the Court's-test concerning
employees' subjective reactions." Accordingly, he
recommended that the objections be overruled by the
Board and that the Union be certified as the exclusive
collective-bargaining representative for the employ-
ees in the stipulated unit. Thereafter, the Respondent
filed timely exceptions with the-Boar`d to the Regional
Director's Report, again arguing that the alleged
misrepresentations dictated anew election or, alterna-
tively, a hearing to resolve credibility issues not
determined by the Regional Director.- On May 18,
1970, after full consideration of the record, the Board:
issued its Decision and ' Certification 'of Representa-
tive, in which it adopted the Regional -Director's
recommendations and certified the Union, finding
that the Respondent's exceptions, raised no material
or substantial issue 'of fact or law warrantingnreversal
of the Regional Director's findings or recommenda-
tions, or requiring a hearing.
The basic position of the Respondent in both its
102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystenti, Inc, 166 NLRB 938, enfd . 388 F.2d483 (CA. 4,
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.
192 NLRB No. 106
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer to the complaint andits response to, the Notice
To Show Cause is that,the Board's certification of the
Union, was improper in the face of the Respondent's
objections, ,and that the Respondent was denied a,due
process, hearing on its objections to the conduct of the
election . These -contentions have no merit in the
unfair labor practice proceeding now before us. In the
representation proceeding the Respondent had the
opportunity to and did litigate the issues which it
seeks to raise now. The fact that no evidentiary
hearing was held with respect to the Respondent's
objections to the election does not detract from this
conclusion, for, as has been consistently held, an
evidentiary, hearing is not required where, as is the
case here, there are no substantial and material issues
of fact to be determined.3
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
relitigate issues which were or could have been
litigated in a prior representation proceeding.4
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 inmthis unfair labor practice
proceeding.5 We shall, accordingly, grant the Motion
for Summary-
.Judgment.-On the basis of the entire -record, the Board makes
the following:
FINDINGS OF FACT
1. THE ,BUSINESS OF-,THE RESPONDENT
The Respondent, a -Delaware corporation, is en-
gaged in the manufacture, distribution, and wholesale
and retail, sales of petroleum and petroleum products
from installations in several States of the United
States . In the course and conduct of its business
operations , the Respondent maintains. and operates a
division,known as the Kansas-City, Missouri ,. Skelgas
Direct Marketing Branch (the- only one of its
3 Lipman Motor., Inc., 187 NLRB No. 36, and cases cited therein. -
+ 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).
S In its answer to the complaint, the Respondent denied-that it is, or has
been, an employer engaged in commerce within the meaning of the Act,
and stated that,it was without knowledge as to whether the Union is, or has
been, a-labor organization within the-meaning of the Act. However, these
issues have been raised and determined in the underlying representation
case and are not litigable herein . For its final affirmative defense, the
installations, directly involved herein) which is en-
gaged in, inter alia, wholesaling and distributing-liquid
propane gas from a store maintained-and operated by
it in Independence, Missouri. The Respondent's gross
volume of sales of products exceeds $500,000 annual-
ly. From its store in Independence, Missouri, the
Respondent annually ships products valued in excess
of $50,000 directly to customers located outside the
State of Missouri.
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.
U. THE LABOR ORGANIZATION INVOLVED
Automotive, Petroleum and Allied Industries, Local
No. 552, affiliated with the international Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
M. 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 truckdrivers and maintenance employees of
Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct
Marketing Branch), Kansas City, Missouri, and
vicinity, excluding all office clerical employees,
salesmen, professional employees, guards'and' super-
visors as defined in the Act.
2. The certification
On November 12,1969, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 17, 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 May 18, 1970, and the Union continues
Respondent argues that the complaint should be dismissed on the bases of
)aches and equitable estoppel, asserting that the Unions) delay in
requesting bargaining and in filing its charges resulted in prejudice to the
Respondent and the possibility that, if the Union mean a lost its
majority, the Respondent might be forced to bargain with minority
representative . As the Union's request and its subsequent arges all
occurred during the 1-year certification period , which carries, an almost
irrebuttable presumption of majority representation, we find , o merit in
the Respondent's position.
SKELLY OIL CO. 743
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 November 20, 1970, 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 December 15, 1970, 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 employ-
ees in said unit.
Accordingly, we find that the Respondent has, since
December 15, 1970, 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
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 the 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(aX5) 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
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 (CA. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Skelly Oil Co. (Kansas City, Missouri, Skelgas
Direct Marketing Branch) is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Automotive, Petroleum and Allied Industries,
Local No. 552, affiliated with the 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.
3. All truckdrivers and maintenance employees of
Skelly Oil Co. (Kansas City, Missouri, Skelgas Direct
Marketing Branch), Kansas City, Missouri, and
vicinity, excluding all office clerical employees,
salesmen, professional employees, guards and super-
visors 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 May 18, '1970, 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 December 15,1970, 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
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Skelly OR Co. (Kansas City, Missouri, Skelgas Direct
Marketing Branch), its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
744 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
(a) Refusing to bargain collectively concerning, rates
of pay, wages, hours, and other terms and conditions
of employment with Automotive , Petroleum and
Allied Industries, Local No. 552, affiliated with the
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of 'America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All truckdrivers and maintenance employees of
Skelly Oil Co . (Kansas City, Missouri, Skelgas
Direct Marketing Branch), Kansas City, Missouri,
and vicinity, excluding all office clerical employ-
ees, salesmen, professional employees , guards and
supervisor 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 Kansas City, Missouri , Skelgas Direct
Marketing Branch copies of the attached notice
marked "Appendix." &Copies of said notice,on forms
provided by the Regional Director for ' Region 17,
after being duly signed by Respondent's representa-
tive, 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 17, in
writing, within 20 days from the date of , this ;Order,
what steps have been taken to.comply herewith.
a 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."
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 Auto-
motive, Petroleum and Allied Industries, Local
No. 552, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and- Helpers of America, as the exclusive repre-
sentative 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 wir L, 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:
All truckdrivers and maintenance employees
of Skelly Oil Co. (Kansas City, Missouri,
Skelgas Direct Marketing Branch), Kansas
City, Missouri, and vicinity,, excluding all
office clerical , employees, salesmen, profes-
sional employees, guards and supervisors as
defined in the Act.
SKELLY OIL Co.
(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 byany other material.
Any ^questio`ns concerning this -notice or compliance
with its provisions may be directed to -the Board's
Office, 610 Federal Building , ' 601 East 12th Street;
Kansas City, Kansas 64106 , Tel. 816-374-5181.