Tide Water Associated Oil Co.

National Labor Relations Board - Board Decisions

Oct 14, 1947

75 N.L.R.B. 55 (N.L.R.B. 1947)

In the Matter of TIDE WATER ASSOCIATED OIL COMPANY and UNITED
PETROLEUM WORKERS (UNAFFILIATED)
Case No. 2-C-6701.-Decided October 14, 1947
M11r. Bertram Diamond, for the Board.
Cravath, Swaine cfi Moore, by Messrs. John H. Morse and Richard
F. Keresey, of New York, N. Y.; and Mr. Matthews F. McCue, of New
York, N. Y., for the respondent.
Brenner, Butler d McVeigh, by Mr. Edward J. Murphy, Jr., of New
York, N. Y.; and Mr. George Herrell, of Long Island, N. Y., for the
Union.
DECISION
AND
ORDER
On March 28, 1947, Trial Examiner Isadore Greenberg issued his
Intermediate Report in the above-entitled proceeding, finding that the
respondent had unlawfully refused to bargain with the Union as the
collective bargaining representative of a unit of its supervisory em-
ployees previously found appropriate by the Board," and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the respondent filed exceptions to the Intermediate
Report, a supporting brief, and a request for oral argument. In
view of our disposition of the case, the Board deems oral argument
unnecessary and hereby revokes its previous action granting the
respondent's request.
Since the issuance of the Intermediate Report herein, the National
Labor Relations Act has been amended so as to exclude "any indi-
vidual employed as a supervisor" from the definition of "employee"
contained in the Act.2 Supervisory employees are therefore now out-
side the coverage of the Act. We are therefore of the opinion, without
considering the merits of the case, that it would not effectuate the
policies of the Act, as amended, to require the respondent to take any
'Matter of Tide Water Associated Oil Company, 69 N L R B . 419 The Union w, ,n
the election and was certified by the Board on August 29, 1946.
R Section 2 (3) and ( 11) of the Act, as amended.
7.5N L R B, No 7
55
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedial action in this case, which involves nothing except a refusal
to bargain .3 Accordingly, we shall dismiss the complaint.
ORDER
IT IS HEREBY ORDERED that the complaint against the respondent,
Tide Water Associated Oil Company , New York, New York, be, and
it hereby is, dismissed.
INTERMEDIATE REPORT
Mr Bertram Diamond, for the Board.
Cravath, Swaine & Moore, by Messrs. John H. Morse and Richard E. Heresey,
of New York, N. Y.; and Mr. Matthew F. McCue, of New York, N. Y., for the
respondent.
Brenner, Butler & McVeigh, by Mr. Edward J. Murphy, Jr., of New York, N. Y.;
and Mr. George Hen ell, of Long Island, N. Y., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on October 11, 1946, by United Petroleum Workers
(Unaffiliated), herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Second Region (New
York, New York), issued its complaint dated December 16, 1946, against Tide
Water Associated Oil Company, of New York, New York, herein called the re-
spondent, alleging that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section 8 (1) and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein
called the Act. Copies of the complaint together with copies of the charge and
notices of hearing thereon were duly served upon the respondent and the Union
With respect to the unfair labor practices, the complaint alleged in substance
that: (1) All yard foremen and dispatchers employed by the respondent at its
Long Island City, Westbury-Roslyn, and Yonkers plants, excluding all other
employees ; and all chief clerks employed by the respondent at its Long Island
City, Westbury-Roslyn, and Yonkers plants, excluding all other employees, consti-
tute, respectively, units appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act; (2) since October 2, 1946, and
at all times thereafter, the respondent has refused to bargain collectively with
the Union as the exclusive representative of the respondent's employees in the
said units designated by the Board as appropriate for the purposes of collective
bargaining, although a majority of the employees in each of the aforesaid units,
by secret elections conducted on August 7, 1946, under the supervision of the
Regional Director for the Second Region of the Board , selected said Union as
their exclusive collective bargaining representative, and the Union on or about
September 6, 1946, and September 20, 1946, requested the respondent to bargain
collectively in respect to rates of pay, wages, hours of employment, and other
conditions of employment, with it as the exclusive representative of all the
employees of the respondent in the units described above.
In its answer, duly filed herein, the respondent in substance admitted that
the Board had designated the units described in the complaint as being appro-
3 Matter of Westinghouse Electric Corporation , 75 N L R. B 1; L. A. Young Spring
Ware Corporation V. N. L. R. B., 163 F. (2d) 905 ( C. A.-D. C.).
TIDE WATER ASSOCIATED OIL COMPANY 57
priate for purposes of collective bargaining; that pursuant to elections among
the employees in said units, the Union had been chosen by the employees, and cer-
tified by the Board, as the exclusive collective bargaining representative of the
employees in said units; and that the respondent, although requested to do so by
the Union, has refused to bargain collectively with it as the representative of the
aforesaid employees. The answer denies, however, that the respondent has com-
mitted any unfair labor practices, and alleges that the employees comprising the
units described in the complaint are supervisory employees, hence not "employees"
as that term is used in the Act; that the aforesaid employees consequently "can-
not constitute units appropriate for the purposes of collective bargaining" ; and
that the respondent is not required to bargain collectively with the Union as the
representative of the aforesaid employees because such Union also represents
rank-and-file employees of the respondent, and is controlled by the rank-and-file
employees
Pursuant to notice, a hearing was held in New York, New York, on January
9, 1947, before the undersigned, the 't'rial Examiner duly designated by the Chief
Trial Examiner. The Board, the respondent, and the Union were represented by
counsel and participated in the hearing Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence pertinent to the
issues, was afforded all parties. At the opening of the hearing, counsel for the
respondent moved to dismiss the complaint on the general ground that the Board
does not have jurisdiction over the subject matter thereof, basing such general
contention of lack of jurisdiction on the same specific contentions which have
been above sunnnai ized from the respondent's answer This motion was denied.
At the close of the hearing, upon renewal of the same motion by counsel for the
respondent, the undersigned reserved ruling thereon The motion is hereby de-
nied Although afforded opportunity to do so, none of the parties presented oral
argument to the undersigned. not filed with the undersigned, briefs or proposed
findings of fact or conclusions of law.
On the basis of the foregoing, and on the entire record, after having heard and
observed all the proceedings and considered all the evidence, the undersigned
makes the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE P.ESPONDENr
The respondent, Tide Water Associated Oil Company, a Delawate corporation
with one of its principal offices at New York City, is engaged in producing, trans-
porting, refining, and marketing petroleum and petroleum products throughout
the United States and foreign countries It utilizes a fleet of ocean-going tankers
to transport crude petroleum and manufactured products to and from its re-
fineries and m li ine terminals, and from its suppliers to its customers located
in various States of the United States. The respondent also has producing op-
erations, bulk plants, and service stations located throughout the United States.
The respondent's plants involved in these proceedings are the bulk plants and
offices located in Long Island City, Westbury-Roslyn, and Yonkers, all in New
York, where the respondent stores and distributes petroleum products and ac-
cessories. During the calendar year ending November 30, 1946, approximately
98 percent of the petroleum products stored in and distributed from these three
bulk plants was shipped from the respondent's refinery in Bayonne, New Jersey.
During the same period, more than 99 9 percent of the respondent's sales from these
bulk plants, amounting respectively to in excess of $2,700,000, $800,000, and
$800,000, was confined within the State of New York, and petroleum products
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued at approximately $2 000, were shipped from these three plants to points
outside the State of New York.
The respondent does not deny, and the undersigned finds, that it is engaged in
commerce within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
United Petroleum Workers (Unaffiliated) is a labor organization admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate units ; representation by the Union of a majority therein
On July 11, 1946, after the usual proceedings, the Board issued a Decision and
Direction of Elections,' in which it found that: (a) All yard foremen and dis-
patchers at the respondent's Long Island City, Westbury-Roslyn, and Yonkers
plants, excluding all other employees, and (b) all chief clerks at the respondent's
Long Island City, Westbury-Roslyn, and Yonkers plants, excluding all other em-
ployees, constitute, respectively, •units appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
On August 7, 1946, pursuant to said Direction of Elections, elections by secret
ballot were conducted under the supervision of the Regional Director of the
Board for the Second Region, among the employees in the above-described bar-
gaining units. The Tallies of Ballots showed that of the approximately nine eli-
gible voters in the first of the said units, nine cast valid votes, of which seven
were for the Union, and two against, and that of the approximately three eli-
gible voters in the second of the said units, three cast valid votes, all of which
were for the Union. No objections were filed by any of the parties within the
time provided therefor, and, on August 29, 1946, the Board certified the Union
as the exclusive representative for the purposes of collective bargaining, of the
employees in the two units hereinabove described.
The respondent contests the appropriateness of the units found by the Board.
In substance, the respondent's position herein is, as it was in the representation
proceeding leading to the Board's Direction of Elections and Certification of
Representatives, that :
1. The employees comprising both of the two units herein involved are super-
visory personnel, and hence are not "employees" as that term is used in the Act ;
2. That the said employees therefore cannot constitute units appropriate for
purposes of collective bargaining;
3. That because the Board in finding that the aforesaid units were appropriate
for said purposes, "failed to consider the public welfare and interest as a
material factor in selecting" the units, its Direction of Elections and Certification
of Representatives are void;
4. That the Union represents, and is controlled by, the respondent's rank-and-
file employees ; and
5. That, consequently, the respondent is not by law required to bargain collec-
tively with the Union as a representative of the employees herein involved
Identical contentions were urged by the respondent and fully considered by
the Board in the representation proceeding, and there ruled upon adversely to
1 Matter of Tide Water Associated Oil Company, Case Nos 2-R-5736 and 2-R-5737, 69
N L R B 419
1
TIDE WATER ASSOCIATED OIL COMPANY 59
the respondent? In the instant complaint proceeding, the respondent adduced
no further evidence, and in substance relied upon the same arguments. The
undersigned therefore feels that the Board's determination as to the appropriate
units in the representation proceeding is fully dispositive of the contentions with
respect thereto advanced by the respondent. The undersigned is not persuaded
by anything in the record herein that he should not adhere to the findings of the
Board in the representation case.
The undersigned therefore finds that the following groups of employees con-
stitute units appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act:
1. All yard foremen and dispatchers at the respondent's Long Island City,
Westbury-Roslyn, and Yonkers plants, excluding all other employees.
2 All chief clerks at the respondent's Long Island City, Westbury-Roslyn, and
Yonkers plants, excluding all other employees.
The undersigned further finds that on and at all times after August 7, 1946,
the Union was the duly designated bargaining representative of a majority of
the employees in the aforesaid bargaining units, and that, pursuant to the provi-
sions of Section 9 (a) of the Act, the Union was on August 7, 1946, and at all
times thereafter has been and is now the exclusive representative of all employees
in the aforesaid units for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other conditions of employment.
2. The refusal to bargain
It is undisputed that on September 6, 1946; and again on September 20, 1946,
the Union requested the respondent to bargain collectively with it as the exclusive
representative of all the employees in the above-described appropriate units and
that on October 2, 1946, as well as at all times thereafter, the respondent refused
to do so.
The undersigned finds that the respondent on October 2, 1946, and at all
times thereafter, has refused to bargain collectively with the Union as the exclu-
sive representative of its employees in appropriate units and has thereby inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 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 the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Because of the basis of the respondent's refusal to bargain as indicated by
the facts found, and because of the absence of any evidence that danger of other
2 Since the Board's decision in the representation proceeding, its position that super-
visory employees are "employees" within the meaning of the Act, and may properly be
found to constitute units appropriate for the purposes of collective bargaining, has been
sustained by the Supreme Court. Packard Motor Car Co v. N. L. R. B., decided 330 U. S.
485.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices is to be anticipated from the respondent's conduct in
the past, the undersigned will not recommend that the respondent cease and
desist from the commission of any other unfair labor practices. Nevertheless,
in order to effectuate the policies of the Act, the undersigned will recommend
that the respondent cease and desist from the unfair labor practices found
and from any other acts in any manner interfering with the efforts of the Union
to negotiate for or represent the employees as exclusive bargaining agent in the
units herein found appropriate.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Petroleum Workers (Unaffiliated), is a labor organization within
the meaning of Section 2 (5) of the Act.
2. The following groups of employees constitute units appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the
Act :
(a) All yard foremen and dispatchers at the respondent's Long Island City,
Westbury-Roslyn, and Yonkers plants, excluding all other employees ;
(b) All chief clerks at the respondent's Long Island City, Westbury-Roslyn,
and Yonkers plants, excluding all other employees.
3 United Petroleum Workers (Unaffiliated), was on August 7, 1946, and at
all times thereafter has been, the exclusive representative of all employees in
the aforesaid units for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act
4 By refusing on October 2, 1946, and at all times thereafter, to bargain
collectively with United Petroleum Workers (Unaffiliated), as the exclusive rep-
resentative of all its employees in the aforesaid units, the respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
5 By said acts, the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondent,
Tide Water Associated Oil Company, of New York, New York, and its officers,
agents, successors, and assigns shall:
1. Cease and desist from
(a) Refusing to bargain with United Petroleum Workers (Unaffiliated),
as the exclusive representative of all yard foremen and dispatchers employed at
its Long Island City, Westbury-Roslyn, and Yonkers plants, excluding all other
employees ; and of all chief clerks employed at its Long Island City, Westbury-
Roslyn, and Yonkers plants, excluding all other employees;
TIDE WATER ASSOCIATED OIL COMPANY 61
(b) Engaging in any other acts in any manner interfering with the efforts
of United States Petroleum Woikers (Unaffiliated), to negotiate for or represent
the employees in the aforesaid units as exclusive bargaining agent.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with United Petroleum Workers (Un-
affiliated), as the exclusive,bargaining representative of all employees in the
bargaining units described herein, with respect to wages, rates of pay, hours of
employment, or other conditions of eimplol went, and if an understanding is
reached embody such understanding in a signed agreement;
(b) Post at its Long Island City, Westbury-Roslyn, and Yonkers plants, copies
of the notice attached to the Intermediate Repoit herein, iuaiked `.Appendix A."
Copies of said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt. thereof and maintained by it for
sixty (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 altered, defaced, or
covered by any other material;
(c) File with the Regional Director for the Second Region, on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondent has
complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of the Intermediate Report the respondent notifies said Regional Director
in writing that it has complied with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.3S of
said Rules and Regulations, file with the Board, Iloehambeau Building, Wash-
ington 25, D. C, an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof, and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203 65. As further provided in said Sec-
tion 20339, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days
from the date of service of the order transferring the case to the Board.
ISADORE GREENRERG,
Trial Examiner.
Dated March 28, 1947.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not engage in any acts in any manner interfering with the efforts
of United Petroleum Workers (Unaffiliated) to negotiate for or represent
the employees in the bargaining units described below.
We will bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining units
described below with respect to wages, rates of pay, hours of employment
or other conditions of employment, and if an understanding is reached, em-
body such understanding in a signed agreement . The bargaining units
are:
1. All yard foremen and dispatchers at our Long Island City, Westbury-
Roslyn, and Yonkers plants, excluding all other employees.
2. All chief clerks at our Long Island City, Westbury-Roslyn, and Yonk-
ers plants, excluding all other employees.
TIDE WATER ASSOCIATED OIL COMPANY,
By ------------------------ -------------
(Representative ) (Title)
Dated-------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
A