Continental Oil Co.

National Labor Relations Board - Board Decisions

Oct 27, 1967

167 N.L.R.B. 1074 (N.L.R.B. 1967)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monroe Manufacturing Company, Division of Con-
tinental Oil Company and General Drivers,
Salesmen and Warehousemen 's Local Union No.
984, an affiliate of the International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case 26-CA-2778
October 27, 1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On August 15, 1967, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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
Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 Respondent's exceptions and brief,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner. t
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Monroe Manufacturing Company, Division of Con-
tinental Oil Company, Aberdeen, Mississippi, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as so modified:
Delete from paragraph 2(b) that part thereof
which reads "to be furnished" and substitute
therefor "on forms to be provided."
I The Respondent contends that the Trial Examiner's finding that over-
the-road truckdrivers constitute an appropriate unit is incorrect, and
requests that the Board reconsider the determination in Case
26-RC-2797, on which the Trial Examiner relied , that such unit is ap-
propriate However, we find, in agreement with the Trial Examiner, that
this issue , as well as all issues raised by the Respondent , have been previ-
ously considered by the Board in Case 26-RC-2797, and as no newly
discovered or previously unavailable evidence has been presented, the
Respondent 's request for reconsideration is hereby denied. We find no
merit in the Respondent 's contention that the election in Case
26-RC-2797 should be set aside, or a hearing held. Assuming , as Respond-
ent contends , that employee Odom , on the day of the election , pointed
his finger at employee House and said "You had better vote for the
Union ," such conduct would neither be attributable to the Union, nor
create an atmosphere of fear, and would not , therefore , be grounds for
setting aside the election
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE REPRESENTATION PROCEEDING'
CHARLES W. SCHNEIDER , Trial Examiner: On Febru-
ary 23, 1967, an election was conducted at the Aberdeen,
Mississippi, plant of Monroe Manufacturing Company,
Division of Continental Oil Company, herein called
Respondent, pursuant to a Decision and Direction of
Election by the Regional Director for Region 26 in Case
26-RC-2797. At that time, of a unit of approximately 13
eligible voters, 7 votes were cast in favor of and 5 votes
were cast against General Drivers, Salesmen and
Warehousemen's Local Union No. 984, an affiliate of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Union; no ballots were challenged.
Pursuant to timely objections to conduct affecting the
results of the election filed by Respondent on March 3,
1967, an investigation was conducted in accordance with
Section 102.69 of the Board's Rules and Regulations, Se-
ries 8, as amended. As a result of such investigation, a
Supplemental Decision and Certification of Representa-
tive was issued by the Regional Director on March 31,
1967, in which he overruled Respondent's objections in
their entirety and certified the Union as bargaining
representative of the employees in the above-mentioned
unit.
Respondent subsequently requested review of the Re-
gional Director's Decision and Certification, and on April
18 and 28, 1967, the Board denied Respondent's request
for review.
The Complaint Case
On May 18, 1967, L. A. Pankey, an individual, filed
the unfair labor practice charge2 involved in the instant
case in which he alleged that since on or about May 17,
1967, Respondent refused to bargain with the Union. An
amended charge to the same effect was filed by the Union
on May 22, 1967.
On May 24, 1967, the General Counsel, by the Re-
gional Director of Region 26, issued a complaint alleging
that since on or about May 17, 1967, Respondent had
committed unfair labor practices in violation of Sections
8(a)(1) and (5) and 2(6) and (7) of the Act by refusing to
bargain with the Union upon request. In due course
Respondent filed its answer to the complaint in which
certain allegations of the complaint were admitted and
others denied.
In its answer Respondent admitted the following al-
legations of the complaint: (1) jurisdictional, (2) that
' Official notice is taken of the representation proceeding, Case
26-RC-2797. See Sec . 9(d) of the Act.
I Respondent's answer denies the "legal authority " of L. A. Pankey, an
individual and secretary - treasurer of Local 914, to file a charge against
Respondent A charge may be filed by any person . National Labor Rela-
tions Board Rules and Regulations, Series 8, as amended , January 1,
1965, Sec . 102.9, Kansas Milling Company v, N.L.R. B., 185 F .2d 413,
415 (C.A. 10).
167 NLRB No. 157
MONROE MFG. CO. 1075
Respondent is a corporation and an employer engaged in
commerce , (3) that the Union is a labor organization, (4)
that on or about February 23, 1967, a majority of em-
ployees of Respondent in the above -mentioned unit
selected the Union as their collective -bargaining
representative , (5) that Respondent did refuse and has
continued to refuse since on or about May 17, 1967, to
bargain with the Union . Respondent denied the following
allegations of the complaint - ( 1) that the unit involved is
appropriate , (2) that the Union is the exclusive bargaining
agent of the employees in said unit , (3) that Respondent
violated Sections 8 (a)(1) and 2(6) and (7) of the Act. The
Respondent further contends that a unit determined in a
prior Board proceeding is the appropriate unit,3 that the
election is invalid as coercion was exercised by the Union
on the employees , and that the Union is not the repre-
sentative of the employees.
Thereafter , the General Counsel filed a motion for
judgment on the pleadings wherein he contends that
Respondent 's answer fails to constitute a valid defense to
the allegations of the complaint , and that the facts of the
official record with respect to Case 26-RC-2797 and the
admissions contained in Respondent ' s answer establish
the violations contained in the complaint as a matter of
law, and that therefore no hearing is necessary.
On June 20 , 1967, 1 issued an order to show cause on
the motion for judgment on the pleadings , in which the
parties were directed to show cause on or before July 6,
1967, as to whether or not the motion should be granted.
On June 29 , 1967, counsel for Respondent filed a motion
for additional time within which to respond . Such motion
was granted and the parties were directed to respond on
or before July 31, 1967.
On July 28, 1967 , Respondent filed a reply to the order
to show cause Said reply contains no newly discovered
or previously unavailable evidence. Respondent sets out
an apparent excerpt from a statement by employee John-
nie House to the effect that a fellow employee threatened
House if he did not vote in favor of the Union , and due to
said threat House changed his vote from "No" to "Yes"
in the union election of February 23, 1967.
In his Supplemental Decision and Certification of
Representative in Case 26-RC-2797, the Regional
Director fully considered the House incident which was
raised by Respondent in its objections to the election, and
concluded that it had no merit.
answer to the complaint raises substantial and material is-
sues of fact which cannot be resolved without a hearing.
The questions as to the appropriateness of the unit, the
validity of the election , the merit of Respondent ' s objec-
tions with respect to it, and whether the Union should be
certified were raised by Respondent in its request to
review the Decision and Direction of Election , in its Ob-
jections to Conduct Affecting the Election , and in its ex-
ceptions to the Regional Director 's Supplemental Deci-
sion and Certification , and were decided by the Board in
the representation proceeding It is thus clear that
Respondent seeks to relitigate those issues here. This the
Respondent may not do before the Trial Examiner.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence, not to
permit litigation before a Trial Examiner , in a complaint
case, of issues which were or could have been litigated in
a prior related representation proceeding . 4 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, and that there are not such issues here has been
effectively decided by the Board.
The Trial Examiner has no authority to review the
Board ' s final disposition of the representation'issues or to
question its conclusions based on the existing record. The
Respondent is free, in exceptions to this Decision, to
request the Board to reconsider the determinations in the
representation case, and , in the event of an unfavorable
final order by the Board , Respondent may request review
of those determinations in an appropriate court of ap-
peals. At this stage of the proceedings , however, absent
newly discovered or previously unavailable evidence, or
special circumstances , the Board ' s disposition of the
representation matters is the law of the case and binding
on the Trial Examiner . No newly discovered or previ-
ously unavailable evidence is offered by the Respondent,
or special circumstances alleged.
The refusal to bargain being conceded there are no is-
sues litigable before a Trial Examiner, and therefore no
matter requiring hearing. Accordingly the General Coun-
sel's motion for judgment on the pleadings is granted, and
I hereby make the following further:
FINDINGS
1. THE BUSINESS OF THE RESPONDENT
Ruling on Motion for Judgment on the Pleadings
The Respondent opposes the General Counsel's mo-
tion for judgment on the pleadings. The Respondent con-
tends that the unit is inappropriate , that the February 23,
1967, election should be set aside on the basis of Respon-
dent's objections and that the certification is con-
sequently invalid Additionally , the Respondent contends
that it was improperly deprived of a hearing on its objec-
tions to the February 23, 1967, election and urges that its
1 Monroe Manufacturing Company, Employer , and United Rubber,
Cork, Linoleum and Plastic Workers of America , AFL-CIO, Petitioner,
Case 26-RC-2425, in which over- the-road truckdrivers were appropriate-
ly part of a production and maintenance unit sought by the Rubber Work-
ers Union No certification or bargaining resulted from that determina-
tion In Case 26-RC-2797 the Board denied Respondent 's request for
review of the Regional Director ' s Decision and Direction of Election find-
ing the over -the-road drivers to constitute a separate appropriate unit
4 Macomb Pottery Company, etc , et ail v N L R B , 376 F 2d 450
(C A 7, 1967), Howard Johnson Company, 164 NLRB 801, Metro-
politan Life Insurance, 163 NLRB 579 See Pittsburgh Plate Glass
Respondent is a Mississippi corporation with its office
and place of business at Aberdeen , Mississippi , where it
is engaged in the manufacture of plastic and related
products. During the past 12 months , Respondent, in the
course and conduct of its business operations , purchased
and received materials and products valued in excess of
$50,000 directly from points located outside the State of
Mississippi, and during the same period sold and shipped
products valued in excess of $50,000 directly to points
outside the State of Mississippi
Company v N L R B , 313 U S 146 , 162 (1941) National Labor Rela-
tions Board Rules and Regulations , Sec 102 67 (f)
5 O K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74
(C A 5, 1961 ) And see N L R B v Air Control Products ofSt Peters-
burg, Inc , 335 F 2d 245, 249 (C A 5, 1964) "If there is nothing to hear,
then a hearing is a senseless and useless formality " N L R B v Bata
Shoe Company , Inc , 377 F 2d 821 (C A 4, 1967 ), N L R B v Laurence
Typographical Union No 570, afflu' International Typographical Union,
AFL-CIO (Kansas Color Press), 376 F 2d 643 (C A 10, 1967) Cf
United States Rubber Company, 373 F 2d 602 (C A 5, 1967)
310-5410-70-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 constitute a unit appropriate
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
All over-the-road truckdrivers at Respondent's
Aberdeen , Mississippi , plant , excluding all other em-
ployees, guards and supervisors as defined in the Act.
On February 23, 1967, a majority of Respondent's em-
ployees in the appropriate unit selected the Union as their
collective-bargaining representative in a secret -ballot
election conducted under the supervision of the Regional
Director for Region 26 of the National Labor Relations
Board.
At all times since February 23, 1967, and continuing to
date, the Union has been representative for the purposes
of collective bargaining of the employees in the said unit,
and by virtue of Section 9(a) of the Act , has been and is
now, the exclusive representative of all the employees in
said unit for the purposes of collective bargaining with
respect to rates of pay, wages , hours of employment, and
other terms and conditions of employment.
Since on or about May 9, 1967, and continuing to date,
the Union requested and continues to request Respon-
dent to bargain collectively with respect to rates of pay,
wages, hours of employment , and other terms and condi-
tions of employment.
On or about May 17, 1967, and at all times thereafter
Respondent did refuse, and continues to refuse , to bar-
gain collectively with the Union.
By such action 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 and conclusions and the
entire record in the case , pursuant to Section 10(c) of the
Act, I recommend that the Board issue the following:
ORDER
A. For purposes of determining the effective period of
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 bargaining representative in the appropriate
unit.6
B. Monroe Manufacturing Company, Division of
Continental Oil Company , Aberdeen , Mississippi , its of-
ficers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 984,
General Drivers , Salesmen and Warehousemen, an af-
filiate of the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, as
the exclusive collective -bargaining representative of the
employees in the following appropriate unit:
All over -the-road truckdrivers employed by Respon-
dent at the Aberdeen , Mississippi , plant, excluding
all other employees , guards and supervisors as
defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said ap-
propriate 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 Local 984,
General Drivers , Salesmen and Warehousemen, an af-
filiate of the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, as
the exclusive representative of the employees in the ap-
propriate unit with respect to rates of pay, wages, hours
of work , and other terms and conditions of employment,
and embody in a signed agreement any understanding
reached
(b) Post at i ts Aberdeen, Mississippi , plant, copies of
the attached notice marked " Appendix ."7 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 26, after being duly signed by Respondent's
authorized representative , shall be posted by the Respon-
dent 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 al-
tered , defaced , or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.8
The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the statutorily prescribed services of
their selected bargaining agent for the period provided by law See Mar-
Jac Poultry Company, Inc, 136 NLRB 785, Commerce Company dlbla
Lamar Hotel, 140 NLRB 226 , 229, enfd 328 F 2d 600 (C A 5, 1964),
Burnett Construction Co , 149 NLRB 1419, 1421 , enfd 350 F 2d 57
(CA 10, 1965)
l 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
8 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 26 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT refuse to bargain collectively with
Local 984 , General Drivers , Salesmen and
Warehousemen, an affiliate of the International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , as the ex-
clusive bargaining representative of all the following
employees:
MONROE MFG. CO
All over-the-road truckdrivers at our
Aberdeen, Mississippi , plant, excluding all other
employees , guards and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce employees in the exer-
cise of their rights under the Act.
WE WILL bargain collectively with the Union as
exclusive bargaining representative of the employees
in the bargaining unit , and if an understanding is
reached we will sign a contract with the Union.
MONROE MANUFACTURING
COMPANY, DIVISION OF
Dated By
1077
CONTINENTAL OIL COM-
PANY
(Employer)
(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, Room 746,
Federal Office Building , 167 North Main Street, Mem-
phis, Tennessee 38103, Telephone 534-3161.