B. P. Oil, Inc.

National Labor Relations Board - Board Decisions

Jul 2, 1981

256 N.L.R.B. 1107 (N.L.R.B. 1981)

B P OIL. INC 107
B. P. Oil, Inc. and Oil, Chemical and Atomic Work-
ers International Union, Local 8-398. Case 4-
CA-11002
July 2, 1981
DECISION AND ORDER
On March 18, 1981, Administrative Law Judge
Charles M. Williamson issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a cross-exception and brief in
opposition to Respondent's exceptions.'
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
B. P. Oil, Inc., Philadelphia, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified:
1. Substitute the following as paragraph l(b):
"(b) Unilaterally changing the terms and condi-
tions of its employees in the appropriate unit with-
out first notifying and giving the Charging Party
an opportunity to request bargaining, provided,
however, that nothing in this Order shall be con-
strued as authorizing or requiring Respondent to
i The General Counsel has filed a cross-exception only to the Adminis-
trative Law Judge's failure to conform the notice with his recommended
Order by including an abjuration of future misconductl "i an% like or re-
lated manner." We shall include the requested language in the attached
substitute notice
2 In providing a remedy for Respondent's unlawful unilateral discon-
tinuance of unit employees' shift differential and Sunday premium pay,.
the the Administrative Law Judge incorrectly limited the pro ision for
backpay in the manner set forth in Transmarine avtgaion Corporation
and its Substdiary International Terminals. 170 NLRH 319 (1968), and
failed to direct Respondent to reinstate the differential and premium pay
immediately upon request by the Union. We shall herein modify the rec-
ommended Order to provide that Respondent will make whole unit em-
ployees. without reference to the Transmrine conditions subsequent, for
all pay lost as a result of the aforementioned unilateral changes. Backpay
owing as a result of these unlawful changes shall be computed in the
manner set forth in Ogle Proteclio, Service, Inc and Jmenu i. LOgle. an in-
dividual, 13 NLRBH h82, 683 1970). ith interest thereon computed ill
the manner set frth in Florida Steel Corporation. 231 NRI 117 (1977)
See, generally. Isis Plumnhing & leatlng C., 138 NRB 716 (192) In
addition. we hall order Respoindent to reinslte hc disconlinued hiit
differential and Sunday prenirim pa,. If the Unilol s, requests Member
Jenkins would compute intcrest on backpa: i the manner set frth his
partial dissent in Orpii V1dical Corporaton. 250 NI RB 14. (118()
256 NLRB No. 171
withdraw or eliminate any wage increase presently
enjoyed by Respondent's employees."
2. Substitute the following as paragraph 2(b):
"(b) Upon the Charging Party's request, reinstate
the shift differential and Sunday premium pay
which were unilaterally discontinued and make
whole all unit employees, with interest, for any
losses incurred by them as a result of these unilat-
eral changes."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPI OYEES
POSTED) BY ORDER OF HE
NATIONA.L LABOR REIATIONS BOARD
An Agency of the United States Government
WE WIll NOT refuse to recognize and bar-
gain in good faith with Oil, Chemical and
Atomic Workers International Union, Local 8-
398, as the exclusive representative of our em-
ployees in the following appropriate unit:
All dispatchers employed at the G Street
and Hunting Park Avenue, Philadelphia,
Pennsylvania, distribution terminal.
WE WIl.l NOT unlawfully effect unilateral
changes in the terms and conditions of our em-
ployees in the appropriate unit, without first
notifying and giving the Charging Party an
opportunity to request bargaining, provided,
however, that nothing herein shall be con-
strued as authorizing or requiring the Employ-
er to withdraw or eliminate any wage increase
presently enjoyed by the Employer's employ-
ees.
WE WILL NOT in any like or related manner
interefere with, restrain, or coerce employees
in the exercise of their rights guaranteed in
Section 7 of the Act.
Wt- wiI.l. pay you for any wages you lost
because we unilaterally discontinued paying
shift differential and Sunday premium pay, and
wt- wit.l, upon request of the aforesaid Union,
reinstate the shift differential and Sunday pre-
mium pay.
B. P. Ol-, INC.
DECISION
SIlAt MtE-NI1 OFI i1. -CASE
CIHARI S M. WtIl IIAMSON, Administrative Law Judge:
This case was heard at Philadelphia. Pennsylvania, on
December 1 and 2, 1980. The charge was filed by the
B P. OIL, IN 1107
1108 DECISIONS O()F NATIONAL. LAB()OR RELATIONS BO()ARI)
Oil, Chemical and Atomic Workers International Union,
Local 8-398, hereafter designated as the Charging Party,
on April 9, 1980. The complaint issued on May 23, 1980,
and alleged that B. P. Oil, Inc., hereafter designated as
Respondent, violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, as amended, herein after
called the Act. Respondent, by counsel, filed its answer
on May 29, 1980, denying the commission of any unfair
labor practices. The single issue in the case revolves
around the employee status of Respondent's dispatchers
at its G Street and Hunting Park Avenue, Philadelphia,
Pennsylvania, distribution terminal. These dispatchers
comprise the entirety of a bargaining unit at Respond-
ent's Philadelphia distribution terminal represented by
the Charging Party. Respondent, on or about April 8,
1980, close upon the expiration date of a previous collec-
tive-bargaining contract with the Charging Party, ad-
vised the Charging Party that it would not negotiate
with it for a new agreement. Respondent bottoms this
position on the sole contention that the affected dispatch-
ers are supervisors as defined in Section 2(11) of the
Act.'
Upon the entire record, including my observation of
the demeanor of the witnesses and due consideration of
the briefs filed by counsel for the General Counsel and
Respondent, I make the following:
FINDINGS 01 FACT
1. IURISl)IClION
Respondent is a corporation organized under the laws
of the State of Ohio. It is engaged in the refining, distri-
bution, and marketing of petroleum products. Respond-
ent operates a distribution terminal located at G Street
and Hunting Park Avenue, Philadelphia, Pennsylvania,
which facility is the only one involved in this proceed-
ing. During the past year, Respondent received gross
revenues in excess of $500,000 and purchased and re-
ceived goods valued in excess of $50,000 at its G Street
and Hunting Park Avenue, Philadelphia, Pennsylvania,
terminal directly from points outside the Commonwealth
of Pennsylvania. Respondent admits, and I find, that it
has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
11. I.ABOR OR(iANIZATION
Respondent admits, and I find, that the Charging
Party is, and has been, at all times material herein a labor
organization within the meaning of Section 2(5) of the
Act.
I Counsel for the General Counsel amended the conlplainl at e Ihe ar-
ing to allege the iollowing unilateral changes in working cdlitiln fol-
lowing Respondent's withdrawal of recognition: (1) On or about April
28, I9810, Respondent increased the wages of eniploces in Ithe halrgaiulig
unit by $1 per hour (2) on or about April 2. 19I0). Respondent ceased
paying a shift differential to employecs in he bargaining utliti {)I Ol or
about April 28, 180,). Respondent ceased paying a prenium for Sunda 5
work t, employees in the hargailinig unit; and (4) on, or abholl N,c emher
1, 1980, Respondent changed from a hiweekly to a scmimonllhll panlicnlI
system for employees in the bargaining unit. Respondent admitted by
stipulatioi at the hearing that it made these changes without prior Inolifi-
cation to, or bargaining ith, the Charging Party.
Ill. THE APPROPRIA IT UNIT
All dispatchers employed at Respondent's G Street
and Hunting Park Avenue, Philadelphia, Pennsylvania,
distribution terminal constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
IV. I Hl Al.lEG.t() UtNlAIR I ABOR PRACTICIS
The record and attendant stipulations show that Re-
spondent has owned and operated the petroleum distribu-
tion terminal at G Street and Hunting Park Avenue,
Philadelphia, Pennsylvania, since on or about January
1970. Oil Workers International Union, CIO, a predeces-
sor of the Charging Party, was certified as collective-
bargaining representative for units at that location, in-
cluding a unit of dispatchers, on April 20, 1953, as a
result of a stipulation for a consent election in Case 4
RC-1910 entered into by it and the then owner of the
facility, Sinclair Refining Company. Since January 1970,
Respondent and the Charging Party have entered into a
series of collective-bargaining agreements covering the
dispatchers at this facility. The most recent of these
agreements ran from April 15, 1977, to April 14, 1980.2
On or about April 8, 1980, Respondent withdrew recog-
nition of the Charging Party as representative of the dis-
patchers and since that time has refused to enter negotia-
tions for a new agreement. As hitherto stated, Respond-
ent contends only that it is not obligated to bargain with
the Charging Party on behalf of the dispatchers because
the latter are supervisors within the meaning of Section
2(11) of the Act. For the reasons set forth below, I am
unable to agree with Respondent's contention. I there-
fore find that it has violated Section 8(a)(1) and (5) of
the Act by its failure and refusal on and after April 8,
1980, to bargain collectively with the Charging Party
concerning the dispatchers and by unilaterally changing
the terms and conditions of employment of the dispatch-
ers as set forth by General Counsel in his amended com-
plaint.
The Philadelphia distribution center operates as a cen-
tral distribution point for petroluem products and certain
related services in the Philadelphia area and neighboring
portions of Pennsylvania, Delaware, and New Jersey.
The area covered extends from the Delaware-Maryland
border on the south to Glassboro, New Jersey, on the
east and to Allentown and Bethlehem, Pennsylvania, and
Trenton, New Jersey, on the west and north. The deliv-
ery drivers from this facility deliver home heating oil to
retail customers, gas and oil to some 76 "Gas & Go"
service stations, and distillate products to between 200
and 250 commercial accounts. Burner service mechanics
based at this facility provide burner service to Respond-
ent's retail heating oil customers. At the time of the hear-
ing, Respondent employed six dispatchers. The dispatch-
ers work with Respondent's 23 regular drivers and 7
burner service mechanics together with as many as 20
- Ih is co lecttive-hargaining agrcC lCnl Ii s 1II e C I idC eC as Jt lF h I
13. P O11., INC 1109
temporary drivers during peak demand seasons.:' Ac-
knowledged supervisors at the Philadelphia facility are:
(1) Joe Touchton, Distribution Center Supervisor; (2)
John Duvack, plant foreman; (3) Daniel McWilliams, as-
sistant plant foreman, (4) Joe Habinas, Burner service de-
partment foreman; and (5) Mike Hertz, assistant foreman
Touchton has additional responsibilities involving Re-
spondent's facilities at Marcus Hook and Mechanicsburg,
Pennsylvania, and a motor vehicle repair shop at the
Philadelphia location. The latter employs eight unorga-
nized mechanics. A terminal department under the super-
vision of Art Russell receives and stores distillate prod-
ucts at the Philadelphia location. 4
The dispatchers at the Philadelphia location are hourly
paid. They punch a timeclock. Unlike drivers, they wear
no uniforms. Their worktime is spent at the terminal. Re-
spondent, while conceding that certain of these "second-
ary criteria" (Resp. br., p. 21) tend to negative the exist-
ence of supervisory authority, nevertheless, contends that
the actual job functions of the dispatchers reflect such
status. Respondent first argues that Section 2(11) of the
Act.5 is to be read in the disjunctive, i.e., that the posses-
sion of any one of the statutory criteria is sufficient to
confer supervisory status. Ohio Power Company v.
N.L.R.B., 176 F.2d 385 (6th Cir. 1949), cert. denied 338
U.S. 899 (1949). Respondent's statement of the law is
correct. I do not, however, find, on the basis of the evi-
dence presented at the hearing, that these dispatchers
possess or exercise any of the enumerated powers in
ways that are "not of a merely routine or clerical
nature." The dispatchers' contacts with other employees
fall into four categories: (1) delivery of fuel oil to retail
customers for home heating, (2) service station gasoline
deliveries, (3) burner service mechanics, and (4) commer-
cial deliveries. With regard to heating oil, the record
shows that Plant Foreman Duvack and Assistant Plant
Foreman McWilliams determine the priority of deliveries
by means of a computer system. They determine how
many delivery tickets to set out each day and lay them
in bins designated by zip code in order of priority. 6 The
dispatchers take the tickets from the bins and distribute
them among the delivery drivers. The drivers determine
their own routes. The dispatchers inform drivers of
emergency situations such as a customer who is out of
fuel. The dispatchers' functions in the areas of commer-
cial gas, service stations, and burner service are similar
but less complex. Commercial gas is distributed on a call
(by the customer) basis or at calendar intervals. Service
3 The drivers are represented h a Teanisters local See G C Exh 10)
Burner service mechanics are represented by a Pipefitters local See G C
Exh. II.
4 There are four employees in this department represented by Oil.
Chemical and Atomic Workers Local. See J. Exh 1.
5 Sec. 2(11) of the Act states as follows: "The term 'supervisor' means
any individual having authority:. in the interest of the employer, to hire.
transfer, suspend, lay off, recall promote. discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in collnnec-
tion with the foregoing the exercise of such authority is not of a merel
routine or clerical nature, but requires the use of independent judgment
,8 The priority assigned a particular order for heating oil is deternllied
by a degree-da- system the details of which are not here releant
stations call in their "stick readings"7 daily. These read-
ings are recorded by the dispatchers who then calculate
the vacant gallon capacity of the stations' tanks and their
gas "on hand." A standard conversion chart is used for
this purpose. The dispatcher schedules gas deliveries
(based on tank capacity and daily usage) to ensure a con-
tinuous supply of fuel for the service stations. Customers
telephone their requests for burner service to Respond-
ent's Cleveland, Ohio, offices. The latter transmits these
requests to the Philadelphia terminal by means of a com-
puter printout. The printout has a code symbol imprinted
by the Cleveland office giving the priority assigned par-
ticular requests for service. The dispatchers schedule the
burner service mechanics to meet the listed priorities.
During any given workday, dispatchers may contact
drivers at the request of Supervisor McWilliams or a
service station to inform them of emergency situations
(out of oil or gas) and request expedited deliveries. De-
pending on the season and attendant workload, dispatch-
ers may request employees to work overtime or, in event
of driver illness, transfer an employee from one function
to another. Both the overtime requests and the transfers
are made on the basis of driver seniority. The decision to
request overtime or transfer is based on preexisting prior-
ities-a customer out of distillate-or commonsense con-
siderations-a sick driver must be replaced. Dispatchers
do not evaluate drivers' fitness for work and have no au-
thority to prevent a driver from working. Dispatchers do
not determine the number of drivers needed on a given
day. That function is performed by admitted Supervisors
Touchton and Duvack.R
Counsel for the General Counsel argues, and I find,
that the duties and authority of the dispatchers in the in-
stant case lie well within the parameters set out by the
Board in Spector Freight System. Inc., 216 NLRB 551
(1975). I note that in Spector the Board rejected the con-
tentions that dispatchers who delayed obviously unfit
drivers from going on duty and who were alone at the
terminal for significant periods of time were supervi-
sors.' See also St. Petersburg Limoustne Service, Inc., 223
NLRB 209 (1978); International Motor Freight S.ystem.
227 NLRB 1167 (1977); and Central Cartage Inc.. 236
NI.RB 1246 (1978). 1 find that Pacific Intermountain Ex-
press Co. v. N.L.R.B., 412 F.2d I (10th Cir. 1969) (dis-
patchers paid on monthly basis, did not punch timeclock,
attended supervisory meetings, approved drivers' pay
claims, granted time off and suspended unfit drivers) and
A "si.k reading" involves putting a stick ith linear measuremtents
on it similar to a yardstick into the stations' tanks The stick is calihbrated
Io hos empt) gallons olunme in the tank obserse to the ay a dipstick
shovs the oil remnlaiig in a car engine
l 'otluhtolln credibly testified, "I am charged lth the respnsihilil i for
seeing that itnl the drivers are on the payroll that are needed" See
Resp Exh. 6
9 Respondent puts weight on the argument that dispatchers on the
night shift are there presently ithout admitted supervision I note that
there are fewer drivers on the road at this time and that the duties of the
night dispatchers tend more toward the clerical because of this fact Ad-
ditionall', as counsel fr the General Counsel argues. two of the inldivid
itals n the night shift are the most luntor dispatchers Steskal and
Pegg and it is difficult to see shvy, if he night shift involved greater
responshiliies. Respondent nwould train junior dispatchers fr this func-
(i101
1110 DIECISIONS ()F NATIONAL LAIB()R RELAI()NS H()ARD
N.L.R.B. v. Metropolitan Petroleum Company of Massa-
chusetts, Division of Pittstonr Co., 506 F.2d 616 (Ist Cir.
1974) (dispatchers determined numerical driver require-
ments) relied on by Respondent are factually distinguish-
able from the instant case.
Respondent contends that the dispatchers adjust griev-
ances of employees. While admitting that the dispatchers
played no formal role in the resolution of disputes under
the expired contract, Respondent cites Warner Company
v. .L.R.B., 365 F.2d 435 (3d Cir. 1966), for the proposi-
tion that the adjustment of so-called "minor complaints"
is sufficient to confer supervisory status. Granting, ar-
guendo, the validity of the Warner doctrine,' 0 I do not
find that the evidence demonstrates that dispatchers exer-
cise independent judgment in handling employees' minor
complaints. Dispatcher Dawson credibly testified, for in-
stance, that equipment is assigned to drivers on the basis
of seniority and that a current seniority list is available to
dispatchers and drivers. Dawson then testified that, from
time to time, drivers make inquiry to him as to why
someone else has equipment to which they feel entitled.
Dawson, on cross-examination, was then asked:
Q. And what typically would the reaction of the
dispatchers be?
A. Well, if the shop steward is there we resolve
the issue immediately.
Q. By we-
A. The dispatcher, the driver and the shop ste-
ward.
Q. By the shop steward you would mean the
Teamster, yourself and the drivers?
A. Yes.
Q. If you are able to resolve the dispute is any
further-anything further done?
A. Not to my knowledge, no.
The above-quoted testimony does not make clear what
occurs during the "resolution" of drivers' questions.
There is only the conclusionary statement that "we re-
solve the issue immediately." Dispatcher Dreeman testi-
fied more fully:
A. Well, like if a driver has a grievance of' some
kind which would be a violation of his contract
with the union-the union contract-that would be
strictly handled by Mr. Duvack. I wouldn't adjust a
grievance like that. Now, if he had a grievance--the
only other kind of grievance he might have was his
truck assignment or his oil or gasoline assignment;
that he felt he should be on oil or gasoline. I've usu-
ally done my homework pretty good by that point.
I know that the particular drivers should be on oil
"" The court in Warner stated: "Those so-called 'minor complaints' are
such disputes as fairly fall under the provisions of the drivers' contract,
and which would amount to 'grievances' if reduced to writing What
we are concerned about here is the fact that the shippers do resolve dis-
putes over working conditions on behalf of their employer, exercising in-
dependent judgment, and thus 'adjust grievances' for the purposes of the
Act." Warner, supra at 438 (emphasis supplied). I note that the drisers'
contract in evidence as G.C. Exh. 10 does not involve dispatchers in its
grievance provisions. See the Board's discussion in Eastern Greyhound
Lines (a Division of the Greyhound Corporation), 138 NLRB 8, 10 (19621,
on the significance of this fact.
or should be on gasoline; he is going to be assigned
to this particular truck and I know the reasons for
that. I can usually handle that. There's never any
problem. I would simply explain to them that you
don't have the seniority for this particular truck, so
and so has it and that's as far as it goes. If he wants
to pursue it further, it will go to Mr. Duvack.
I find from Dreeman's and Dawson's testimony that
dispatchers use seniority for the allocation of equipment;
if a driver questions an assignment, the dispatcher makes
answer by reference to the seniority roster. Anything
else requires action by an admitted supervisor. The dis-
patcher's informational role does not comprehend the use
of independent judgment. That a driver pursues the
matter no further than the dispatcher does not demon-
strate that the latter has employed independent judg-
ment. The dispatcher has, in this situation, functioned
only as a conduit for information. Similar considerations
apply in those instances where dispatchers have spoken
with union representatives about the contents of the se-
niority list. The question is the content of the list, a fac-
tual matter, and not one of a dispatcher's exercise of in-
dependent judgment. Dawson testified, on rebuttal, that
his contacts with union steward Salemno about the se-
niority list involved only the factual issue of where the
list started." Dawson specifically stated that he had
never personally resolved a situation with a union repre-
sentative involving the seniority list. Any substantive
matters were referred to admitted Supervisors Hertz and
Habina. Again, such referral would render the dispatch-
ers conduits, at best, to relay grievance to management.
Fisher Foods, Inc., 245 NLRB 685 (1979).
Joseph Gruber, one of Respondent's drivers, summed
up his conception of the dispatchers' functions as fol-
lows:
Q. [By the Court] Mr. Gruber. do you regard the
dispatchers such as Mr. Dawson as being your su-
pervisor on the job as you understood the term su-
pervisor?
A. He tells me what to do, but I don't think he's
my boss really.
Q. [By Counsel for the General Counsel] Who do
you consider to be your boss?
A. Mr. Duvack and Mr. Touchton.
Such employee testimony has traditionally been ac-
cepted by the Board in determining supervisory status
and accorded due weight. I do so here. Eastern Grey-
hound Lines, supra, 138 NLRB 8, 14.
As I have found that dispatchers are employees, Re-
spondent's withdrawal of recognition on or about April
8, 1980, on the sole ground that dispatchers are supervi-
sors within the meaning of Section 2(11) of the Act must
perforce constitute a violation of Section 8(a)(1) and (5)
of the Act. I so find. The unilateral acts of Respondent
affecting the terms and conditions of employment of the
dispatchers as set forth supra, in footnote I of this Deci-
"t I)awson had been out of the terminal for several weeks and was
unfamiliar with recent changes in the seniority list
B t. )11- INC t11.
sion, constitute further violations of Section 8(a)(l) and
(5).
CON I USIONS oF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All dispatchers employed at Respondent's G
Street and Hunting Park Avenue, Philadelphia,
Pennsylvania, distribution terminal.
4. At all times since January 1970, the Charging Party,
by virtue of Section 9(a) of the Act, has been, and is, the
exclusive representative of the employees in the unit de-
scribed above, for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
5. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(l) and (5) of the Act by its
withdrawal of recognition from, and refusal to negotiate
with, the Charging Party on or after April 8., 1980, and
by its subsequent conduct in unilaterally increasing
wages, ceasing to pay a shift differential and premium
pay for Sunday work, and changing from a biweekly to
semimonthly payment system for employees in the bar-
gaining unit.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THt RM II)Y
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent has refused to bargain
collectively in good faith with the Charging Party as the
exclusive representative of its employees in an appropri-
ate unit, I will recommend that, upon request, Respond-
ent bargain collectively with the Charging Party con-
cerning 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.
It is clear that two of Respondent's 8(a)(1) and (5) vio-
lations (discontinuance of shift differential and Sunday
premium) have had an adverse impact on employees in
the bargaining unit. I shall therefore order that the af-
fected employees be made whole for any losses suffered
as a result of these unilateral changes by requiring Re-
spondent to pay the discontinued shift differential and
Sunday premium pay to its employees in a manner analo-
gous that required in Transmnarine Navigation Corporation
and its Subsidiary International Terminals, 170 NLRB 389
(1968). Thus, Respondent shall pay employees shift dif-
ferential and Sunday premium pay, at the previous rates,
from April 28, 1980, the date of the unilateral discontin-
uation of such payments until the date of the occurrence
of the earliest of the following conditions: (1) the date
Respondent bargains to agreement with the Union on
those subjects; (2) a bona fide impasse in bargaining; (3)
the failure of the Union to request bargaining within 5
days of this Decision, or to commence negotiations
within 5 days of Respondent's notice of its desire to bar-
gain with the Union: or (4) the subsequent failure of the
Union to bargain in good faith.
I shall not order Respondent to return to a biweekly as
opposed to a semi-monthly payment system pending ne-
gotiation with the Charging Party. In my judgment, the
clerical and/or computer costs to Respondent that might
be associated with such a change far outweigh any reme-
dial value such an order would possess. In any event, I
find that a recommended order directing Respondent to
cease and desist from unilaterally changing pay intervals
for its employees without prior consultation and bargain-
ing with the Charging Party will constitute an adequate
remedy for this violation.
Payments to employees of shift differential and Sunday
premium pay shall be computed in the manner set forth
in 1 W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon to be computed by the method set out in
I7orida Steel Corporatrion, 231 NLRB 117 (1977).
As Respondent's violations in this case arise solely
from its position vis-a-vis the status of its dispatchers, I do
not find a broad cease-and-desist order appropriate.
There is no evidence that this Respondent is a repeat
violator or an egregious offender. Pyromatic.s, Inc., 251
NLRB 284 (1980).
Upon the foregoing findings of fact and conclusions of
law ad the entire record herein and pursuant to Section
10(c) of the National l.abor Relations Act, as amended. I
hereby issue the followsing recommended:
ORDER 1 2
The Respondent B P. Oil. Inc., Philadelphia, Pennsl-
vania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to bargain in good faith
with Oil. Chemical and Atomic Workers International
Union, Local 8-398, regarding rates of pay, hours of em-
ployment, or other terms and conditions of employnment
of all employees in the appropriate unit described below.
(b) Unilaterally changing the term and conditions of its
employees in the appropriate unit without first notifying
and giving the Charging Party an opportunity to request
bargaining.
(c) In any like or related manner interfering with, re-
straining, and coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
I II the ('it'tlII 1i1 -1,t pllTl , arc filed a'is prx dId L x Set 112 4h (of
Ohe Rules lnli t] R cgul.lll i l I l ti N.iti[t I .ah Reiltito, titard, the
fillnding,, t-c l. llls n. .ld rcinmtmelled ()rter hcrcii hall, is proisldicd
I1 Sec 1(12 4 1 the Rule, indt R gul.tiions he idtloplcd h the I oard iand
he. llc its f cltilllgs tl lllso :lll ()rlc'. c i lmd ia;ll olbhJet' lls thereto
shall bc dctrliwdt .l Ut 1 , ll prpOs"
It P. OIL, INC ill
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, bargain in good faith with the
Charging Party regarding rates of pay, hours of employ-
ment, and other terms and conditions of employment for
the employees in the appropriate unit, and, if an agree-
ment is reached, reduce said agreement to writing and
sign it. The appropriate unit is:
All dispatchers employed at Respondent's G Street
and Hunting Park Avenue, Philadelphia, Pennsylva-
nia, distribution terminal.
(b) Make whole those employees in the appropriate
unit adversely affected by the unilateral discontinuance
of shift differential and Sunday premium pay in the
manner set forth in this section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Notify and afford the Charging Party prior oppor-
tunity to negotiate and bargain regarding any contem-
plated changes in the terms and conditions of employ-
ment of employees in the appropriate unit.
(e) Post at its G Street and Hunting Park Avenue,
Philadelphia, Pennsylvania, distribution terminal copies
of the attached notice marked "Appendix A."13 Copies
of said notice, on forms provided by the Regional Direc-
tor for Region 4, after being duly signed by Respond-
ent's representative, shall be posted by Respondent im-
mediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
1:. 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 abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.labor Relations Board."