Nassau Utilities Fuel Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1948

80 N.L.R.B. 1691 (N.L.R.B. 1948)

In the Matter of NASSAU UTILrrnEs FUEL CORPORATION , EMPLOYER and
FUEL OIL TRANSPORTATION & MAINTENANCE EMPLOYEES AssoCIA-
TION , PETITIONER
Case No. 2-RC-651.Decided December 31, 1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members. *
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations named below claim to represent em-
ployees of the Employer.
3. The Employer and Intervenor have maintained contractual rela-
tions since 1944 as manifested by successive yearly contracts,' of which
the last, but one, was executed on August 20, 1946, effective as of
August 1, 1946, and by its terms expired on July 31, 1947. On July
31, 1947, the Intervenor and Employer executed a further collective
bargaining agreement, which failed to include any provision with
respect to its duration or termination. The Employer contends that
the parties intended the contract to remain in effect for a period of 1
year, and that the omission of a termination date was pure oversight.
*Reynolds , Murdock , and Gray
1 One agreement , executed in June 1945, was negotiated by an association of fuel oil
dealers on behalf of the Employer , and though without termination date, did provide appro-
priate language and space for the insertion of a termination date . This agreement was,
in fact, succeeded by a new individual agreement after a period of approximately 1 year.
80 N. L. R. B., No. 250.
1691
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 2, 1948, the Intervenor, by registered mail, forwarded to
the Employer a letter which stated that "the contract now existing
with Nassau Utilities Fuel Corporation expires July 31, 1948," and
asked for a meeting with the Employer to discuss the terms of a new
contract. The Intervenor enclosed with its letter a proposed contract
which by its terms was to become effective as of August 1, 1948, and
to remain in effect until July 31, 1949. The record shows that the
Employer neither replied to this letter nor entered thereafter into
negotiations with the Intervenor. The petition herein was filed
August 23, 1948.
At the hearing the Intervenor, appearing by its attorney, sought
and was granted intervention in the proceeding on the basis of a
"recently expired contract"; however, after the contract in question
had been introduced in evidence, the Intervenor's attorney noted the
absence of a termination provision and consequently took the position
that the contract in question had not expired and was effective until
renegotiated. The Intervenor therefore asserted that the contract was
a bar to this proceeding. The Employer and Petitioner contend that
the contract was intended to and did, in fact, terminate on July 31,
1948, and therefore is no bar. The Employer argues further that even
though the contract did not terminate by the force of its own provision,
it was, nevertheless, terminated as of August 1, 1948, by the Inter-
venor's letter of July 2, 1948:
An examination of the contract leaves a reasonable doubt as to the
intent of the parties with respect to its duration 2 It contains neither
provision for termination nor for change or modification of its terms,
nor is there any manifest expression of intent that the contract shall
be of indefinite duration. Furthermore, the evidence in the record
tends to support the contention of the Petitioner and Employer that
the contract was intended to be a 1-year contract. Under the circum-
stances it was incumbent upon the Intervenor, relying on the contract
as a bar, to offer some evidence to substantiate its contention that the
contract had not in fact expired in accordance with the intent of the
parties, and was effective as a bar to this proceeding. In the absence
of such proof, and in view of the Intervenor's letter of July 2, 1948,
2 For example , Article VII of the contract provides , without reference to any measured
or measurable period of time, that employees are entitled to 3 days sick leave which if
not used shall be compensated by 3 days additional vacation or 3 days additional pay
at the termination of this agreement . This provision would have little meaning, if not
related to some definite or ascertainable period of time during which the benefits were
to accrue or be enjoyed . Since similar provisions were contained in the 1946 contract
and in the proposed 1948 contract , both being contracts for 1 year only, it is difficult to
avoid the conclusion that the parties intended the contract in question to, be effective
for 1 year only. A similar observation can be made with respect to the provision dealing
with vacations.
NASSAU UTILITIES FUEL CORPORATION 1693
to the Employer, admitting that its then current contract terminated
on July 31, 1948, and the testimony of the Petitioner that the contract
was so understood by the Intervenor,3 we are of the opinion that the
Intervenor has not established its contention that the contract in
question remains in effect at the present time.4 We find, therefore, that
the contract of July 31, 1947, expired in accordance with the intent of
the parties and therefore, is not a bar to this proceeding.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a single unit of chauffeurs, repairmen,
maintenance men, leadmen, dispatchers, and repair shop employees,
employed by the Employer at its two distribution plants at Rosslyn
and Oceanside, Long Island, New York, and its repair shop also lo-
cated at Rosslyn, excluding clerical, executive, administrative, pro-
fessional, and office employees, watchmen, guards, and supervisors as
defined in the Act. The Intervenor agrees with the categories of em-
ployees to be included and excluded, but contends for separate units at
each of the Employer's three plants. The Employer takes the position
that the single unit requested by the Petitioner and established by col-
lective bargaining is appropriate.
The distribution plants of the Employer service separate but con-
tiguous areas in Long Island. The line of demarcation is one of con-
venience only in making deliveries. Drivers attached to one distribu-
tion plant will frequently deliver in the contiguous area served by the
other distribution plant. Interchange of drivers between the two
distribution plants is frequent and during the summer months drivers
are transferred to the repair shop to work as helpers. The repair shop
services all trucks. Conditions of employment, as set forth in all
previous contracts, are the same for all employees. Although each
plant is separately supervised, general and active supervision is exer-
cised by the Employer's president who has sole authority to hire,
discharge, and discipline.
The contracts hereinabove referred to, including the one signed by
the Intervenor and Employer in 1947, covered the specified categories
of employees on a three-plant basis. In view of the integration of
activities at these plants and the collective bargaining history on a
A representative of the Petitioner testified that while still a member of the Intervenor,
a responsible officer of the Intervenor told the members at a meeting held in June 1948,
that its current contracts with various firms, including the Employer , terminated on July
31, 1948, and that the Intervenor was so advising the employers by registered mail pre-
paratory to negotiating new contracts with them.
4 Cf. Matter of C F. Sutherlin Timber Products , 51 N. L. R. B. 297.
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
multi-plant basis, we are of the opinion that a single three-plant unit
is appropriate for collective bargaining purposes.5
We find that all chauffeurs, yardmen, repairmen, maintenance men,
leadmen, dispatchers, and repair shop employees employed by the
Employer at the Employer's three plants at Rosslyn and Oceanside,
Long Island, New York, excluding clerical, executive, administrative,
professional, and office employees, watchmen, guards, and supervisors
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.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30 days
from the date of this Direction, under the direction and supervision of
the Regional Director for the Second Region, and subject to Sections
203.61 and 203.62 of National Labor Relations Board Rules and Regu-
lations-Series 5, as amended, among the employees in the unit found
appropriate in paragraph numbered 4, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction of Election, including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, but excluding those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior to
the date of the election, and also excluding employees on strike who
are not entitled to reinstatement, to determine whether they desire to
be represented, for purposes of collective bargaining, by Fuel Oil
Transportation & Maintenance Employees Association, or by the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. L., Local Union No. 806, or by neither.
See Matter of Scheniey Di8tilier8 Corp ., 80 N. L . R. B. 124.