Tide Water Associated Oil Co.

National Labor Relations Board - Board Decisions

Mar 7, 1946

66 N.L.R.B. 380 (N.L.R.B. 1946)

In the Matter of TIDE WATER ASSOCIATED OIL COMPANY and
EMPLOYEES' ASSOCIATION, INC.
Case No. 2-R-5428.-Decided March 7, 1946
Messrs. C. A. McLain and Matthew F. McCue, of New York City,
for the Company.
Messrs. John F. X. Landrigan and Neal Walsh, of Bayonne, N. J.,
for the Union.
Mr. Donald B. Brady, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Employees' Association, Inc., herein
called the Union, alleging that a question affecting commerce had
arisen concerning the representation of employees of Tide Water
Associated Oil Company, Bayonne, New Jersey, herein called the
Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before John J. Cuneo, Trial
Examiner. The hearing was held at Jersey City, New Jersey, on
August 23, and October 19, 1945. The Company and the Union
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Company moved to
dismiss the petition on certain grounds discussed in Section III,
infra. The motion is hereby denied. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. All parties were afforded opportunity to file briefs with
the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE COMPANY
Tide Water Associated Oil Company is a Delaware corporation
engaged in the manufacturing, refining, distribution, and sale of
66 N. L. R. B., No. 50.
380
TIDE WATER ASSOCIATED OIL COMPANY 381
refined products of crude petroleum. The Company operates a re-
finery at Bayonne, New Jersey, which is the only operation involved
in the present proceeding. During the past year, the Company
purchased raw materials consisting of crude petroleum, valued at
approximately $7,000,000, all of which were delivered to the Bayonne
plant from points outside the State of New Jersey. During the
same period, the Company manufactured products at its Bayonne
refinery consisting of gasoline, kerosene, heating oils, fuel oils, and
lubricating oils valued in excess of $7,000,000, of which approximately
two-thirds was shipped to points outside the State.
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Employees' Association, Inc., is an unaffiliated labor organization,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of its employees.
During the hearing on August 23, 1945, counsel for the Company
and the Union stipulated that a particular bargaining unit was
appropriate and agreed that the question concerning representation
should be resolved by the procedure of a consent cross-check' to be
conducted by the Regional Director. The Trial Examiner then
adjourned the hearing subject to being reconvened if the agreement
were not carried out. On August 27, 1945, the parties executed a
cross-check agreement embodying the terms of the stipulation which
was approved by the Regional Director for the Second Region on
August 28. The agreement provided, among other things :
Upon the completion of the cross-check, if it appears that the
Union has not been designated by a majority of the employees
in the Unit, the Regional Director will forthwith issue a Report
on Cross-Check. If it appears that the Union has been desig-
nated by a majority of the employees in the Unit, copies of
this Agreement and of the attached notice will be posted by
the Employer for a period of five (5) consecutive days at usual
and conspicuous posting places easily accessible to employees
in the Unit. At the conclusion of the 5-day posting period, if
the Regional Director is of the opinion that no valid cause to
the contrary has been shown, he will issue a Cross-Check finding
1 See Ninth Annual Report, p. 7.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and determining that the Union has been designated and selected
as the exclusive bargaining representative of all employees in
the unit.
The cross-check was made on or about August 28 and the Regional
Director issued his preliminary notice indicating that the Union had
been designated by a majority of the employees in the unit. On
August 29, the Union, by telegram, informed the Regional Office
that it was withdrawing from the cross-check and had notified the
Company. The Union predicated its withdrawal on the contention
that three "shift supervisors' 12 had erroneously been excluded from
the bargaining unit used in connection with the cross-check, asserting
that its representative at the hearing held on August 23 had been
misinformed as to material facts bearing on the status of those
employees, and that the mistake had just been discovered. Thereafter,
the Regional Director did not issue his final report on the cross-
check, and the hearing was resumed on October 19, 1945.
The Company contends that the Board should dismiss the petition
and require the Regional Director to issue a final report on the cross-
check, treating the stipulation made on August 23 and the cross-
check thereafter conducted as dispositive of the issues in the case.
It argues that the Union's stipulation as to the appropriate unit
should be deemed "binding" in the absence of clear proof that the
Union was induced to enter into the stipulation by fraud or mistake.
We have denied the motion to dismiss the petition. As the Company
itself apparently realizes, the Board is not "bound" by the parties'
stipulation as to the appropriate unit and the issue is one of adminis-
trative policy. We are satisfied that the Union's representative in
agreeing to exclude shift supervisors from the unit, labored under
a mistake of fact, although we agree that no fraud has been estab-
lished. The Regional Director, by withholding his final report on
the results of the cross-check, in effect ruled that the Union should
be relieved of its mistake and that the question concerning repre-
sentation which has arisen should be resolved by a Board decision
and election. We perceive no necessity in the interest of orderly
and effective administration of the Act, for reversing our Regional
Director's discretionary action.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate.-3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
2 See Section IV, infra.
3 The Field Examiner reported that the Union submitted 1,102 cards. There are
approximately 1,220 employees in the appropriate unit.
TIDE WATER ASSOCIATED OIL COMPANY 383
IV. THE APPROPRIATE UNIT
The Union and the Company are in agreement that the appro-
priate unit should consist of all operating, mechanical, package and
shipping and service employees of the Company at its Bayonne
refinery, excluding the superintendent, assistant superintendent,
assistant to the superintendent, unit and shop foremen, assistant
foremen, shift foremen, administrative employees, professional and
technical employees, confidential employees, and all other supervisory
employees having authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action. They are in disagreement with respect to
the categories discussed below.
Shift Supervisors: The Company employs four shift supervisors,
three of whom are classified as such, whereas the one spends half of
his time as a shift supervisor and the remainder as a pusher. The
Union and the Company are agreed that the last-mentioned employees
should be included in the unit. The Union would include the other
three shift supervisors in the bargaining unit, whereas the Company
would exclude them. The three shift supervisors in question spend
approximately 80 percent of their time performing manual labor
consisting of making various tests and assisting the engineer in
changing pumps and maintaining fresh water pressure in different
sections of the refinery by making necessary adjustments. They
also assist the turbo-switchboard operator when needed. Their
remaining time is spent in observing dials and gauges in the power
plant. They report to the plant superintendent or his assistant,
rotate on three shifts and work the same hours and under the same
working conditions generally as do the operating and mechanical
employees. While on occasions they may direct the work of other
employees or order a boiler shut down, it is clear from the record
that they do not possess the indicia of supervisory authority within
our customary definition. The parties have agreed to include shift
engineers and shift working foremen. The similarity of duties and
working conditions of shift engineers, shift working foremen, and
shift supervisors is sufficient to warrant the inclusion of shift super-
visors. Accordingly, we shall include them.
Chauffeur: The Union would include this employee in the bar-
gaining unit, whereas the Company would exclude him on the grounds
that he is a confidential employee. His duties consist of driving a
car for the general superintendent and other executives of the Com-
pany; occasionally he delivers special messages or performs errands
of a similar nature. He is assigned to the general superintendent
and reports directly to him. The Company asserts that the chauffeur
is a confidential employee because he may overhear discussion by
384 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
the executives concerning labor relations and personnel policies. The
record does not support the contention that the chauffeur is a con-
fidential employee. However, since the functions of the chauffeur
are not integrated with those of the employees in the unit found
below to be appropriate and the parties are in controversy, we shall
exclude him .4
We find that all operating, mechanical, package and shipping and
service employees of the Company at its Bayonne refinery, including
shift engineers, shift working foremen and shift supervisors, but
excluding the chauffeur to the general superintendent, the superin-
tendent, assistant superintendent, assistant to the superintendent, unit
and shop foremen, assistant foremen, shift foremen, administrative
employees, confidential employees, executives, and all other super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among em-'
ployees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth
in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it
is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Tide Water
Associated Oil Company , Bayonne, New Jersey, an election by
secret ballot shall be conducted as ' early as possible , but not later
than thirty (30) days from the date of this Direction , under the
direction and supervision of the Regional Director for the ' Second
Region , acting in this matter as agent for the National Labor Re-
lations Board , and subject to Article III, Sections 10 and 11, of
( See Matter of Sam Boorstein & Harry Boorstean, trading as Blue Rrobbon Laundry,
64 N. L. R. B. 645; Matter of Wilson & Co., Inc., 5$ N. L. R. B. 666,
TIDE WATER ASSOCIATED OII. COMPANY 385
said Rules and Regulations among employees in the unit found
appropriate in Section IV, above, who were employed during the
pay-roll period immediately preceding the date of this Direction,
including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and
including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those em-
ployees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, to
determine whether or not they desire to be represented by Employees'
Association, Inc., for the purposes of collective bargaining.
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