Tide Water Associated Oil Co.

National Labor Relations Board - Board Decisions

Sep 6, 1949

85 N.L.R.B. 1096 (N.L.R.B. 1949)

In the flatter of TIDE WATER ASSOCIATED OIL COMPANY and THE
EMPLOYEES ASSOCIATION, INC. (INDEPENDENT)
Case No. 2-C-6907.-Decided September 6, 1949
DECISION
AND
ORDER
On February 10, 1949, Trial Examiner John Lewis issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged 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 copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report, and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the modifications and
additions 1 sct forth below.
The Respondent's request for oral argument is hereby denied, as
the record and the Respondent's exceptions and brief, in our opinion,
adequately present the issues and the positions of the parties.
1. The Respondent excepts to the Trial Examiner's denial of a
motion to dismiss that portion of the complaint charging a refusal to
'The Respondent has excepted to certain findings in the Intermediate Report on the
ground that the findings are incomplete or misleading . We find these exceptions to be
without merit. Although the Intermediate Report contains a few omissions or inadvert-
ences, none of them affects the Trial Examiner 's ultimate conclusions , or our concurrence
therein. We note, for example , that (1) the Trial Examiner , when discussing the works
council meetings in 1942, failed to state that , prior to the meeting of June 11, 1942, the
trustee employee representatives had met with the Respondent ' s president , Humphrey,
concerning the retirement allowance plan; and ( 2) the Trial Examiner , when discussing
the stockholders' meeting of May 1, 1947, failed to state that, although the union repre-
sentatives were not invited to the meeting by Humphrey but were obliged to be stockholders
or obtain proxies in order to attend , nevertheless , the union president testified that he had
stated at the meeting that he was appearing as a representative of the employees.
85 N. L . R. B., No. 189.
1096
TIDE WATER ASSOCIATED OIL COMPANY 1097
bargain prior to February 6, 1948, i. e., 6 months prior to the filing of
the amended charge. This exception is based upon the limiting lan-
guage of Section 10 (b) of the amended Act, which provides that "no
complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom such
charge is made." We are of the opinion that the Trial Examiner's
denial of the motion to dismiss was proper, as the original charge
herein was filed on February 17, 1947, prior to the amendment of the
Act, and was served upon the Respondent on June 27, 1947. In any
event, we note, as did the Trial Examiner, that the refusal to bargain
on April 30, 1948, specified in the amended charge, is alone sufficient
to sustain our Order herein.
2. The Respondent, on frequent occasions during 1947 and 1948,
refused to bargain collectively with the Union as the representative
of the employees herein involved, with respect to its pension plan.
The Respondent maintained that pensions were not a subject upon
which it was required to bargain collectively, and, in conformance with
this opinion, it took unilateral action with respect to its Retirement
Allowance Plan. The Respondent did, on a few occasions, discuss the
Plan with the Union, and therefore contends in its exceptions that it
did, in fact, bargain with the Union in the only practical way it could
bargain with the representative of so small a minority of its employees
as work in the Bayonne refinery.
The Trial Examiner found that the Respondent, by rigidly main-
taining, on February 11, 1947, and thereafter in 1947, and again on
April 30, 1948, that its Retirement Allowance Plan and pension poli-
cies were not a subject of collective bargaining, and by acting unilater-
ally with regard to its Retirement Allowance Plan, has refused to
bargain collectively with the Union, in violation of Section 8 (a) (5)
of the Act.
We agree. As the Trial Examiner pointed out, we have recently
held,2 and our decisions have been affirmed by the Courts,' that prac-
tical difficulties encountered by an employer in negotiating about a
pension plan with the representative of a portion of his employees, all
of whom are covered by a company-wide pension plan, do not elimi-
nate his duty to bargain within an appropriate unit.
2 Matter of Inland Steel Company, 77 N. L. R. B. 1; Matter of W. W. Cross and Company,
77 N. L. R. B. 1162. Although dissenting in these cases, Board Member Gray considers
himself bound by the majority holdings therein.
i Inland Steel Company v. N. L. R . B., 165 F. (2d) 766 ( C. A. 7) ; cert. den . 326 U. S. 960
(April 25, 1949) ; W. W. Cross & Co., Inc. v. N. L. R. B., 174 F. 2d &75 (C. A. 1).
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Respondent also contends in its exceptions that, by the terms
of the "Management Functions" clause of the January 13, 1948, agree-
ment,4 the Union ceded to the Respondent exclusive jurisdiction over
the Retirement Allowance Plan and waived any requirement of law
that the Respondent bargain concerning the Plan or the retirement of
employees for the duration of the agreement.
The Trial Examiner found that the "Management Functions" clause
was at least ambiguous, and declined to interpret the clause as a waiver
of the Union's right to bargain on the Retirement Allowance Plan.
l re agree that the "Management Functions" clause should not be so
interpreted. Our agreement with the Trial Examiner is based pri-
marily upon the absence of a specific waiver of the Union's right to
bargain on the Retirement Allowance Plan. We are reluctant to de-
prive employees of any of the rights guaranteed them by the Act in the
absence of a clear and unmistakable showing of a waiver of such rights.5
We cannot, therefore, predicate a specific waiver of the right to bargain
collectively, concerning pension plans upon the January 13, 1948, agree-
ment, particularly in view of the vagueness of the "Management Func-
tions" clause and the omission from the contract of any of the terms
and conditions of the Retirement Allowance Plan.
Furthermore, as we have found above, the Respondent rigidly main-
tained, both before and after the execution of the January 13, 1948,
agreement, that its Retirement Allowance Plan and pension policies
were not a subject of collective bargaining," and at no time relied on
4 The "Management Functions " clause in the January 13, 1948, agreement is identical
with that in the previous agreement between the Union and the Respondent . The clause
reads as follows :
1. The management of the Refinery and the direction of the working forces and the
operations at the Refinery , including the hiring , promotion , demotion , transferring and
retiring of Employees , the suspending , discharging or other disciplining of Employees,
the laying off and calling to work of any Employees in connection with any reduction
or increase in the working forces, the establishment or elimination of jobs, the scheduling
of work and the control and regulation of the use of all equipment and other property
of the Company are the exclusive functions of the Management of the Company ;
provided , however, that in the exercise of such functions the Company shall not alter
any of the provisions of this Agreement.
2. This Agreement shall in no way affect the operation of, or the status of any
Employee with respect to, any welfare or benefit plan of the Company ( Eastern
Division ) that may be in effect during the term hereof . Such plans at the present
time are the Sickness and Accident Disability Benefits Plan , the Educational Plan, the
Group Life Insurance Plan , the Jury Duty Plan, the Military Policy, the Retirement
Allowance Plan, and the Suggestion Plan.
See, for example , Matter of Inland Steel Company, 77 N. L. R. B. 1 ; Matter of Dorsey
Trailers, Inc ., 80 N. L . R. B. 478.
°As set forth in the Intermediate Report, the Union , by letter dated April 14, 1948,
requested a meeting for the purpose of bargaining on the Retirement Allowance Plan. The
Respondent , in its reply on April 30, 1948, reiterated its position that it "had always
insisted that neither its Retirement Allowance Plan nor any proposed amendment thereto
was a proper subject of collective bargaining."
TIDE WATER ASSOCIATED OIL COMPANY 1099
any alleged contractual waiver as a basis for its position. The Re-
spondent's uncompromising adherence to this position is itself a viola-
tion of the Act, apart from any question of waiver by contract. In
Matter of Inland Steel Company, we held :
Even if we were to assume that, as the respondent contends,
the contract gave respondent the privilege of dealing unilaterally
with any aspect of its pension and retirement program during the
term thereof, we are nevertheless convinced and find that the
respondent's admitted rejection of the principle of collective bar-
gaining as to pensions on grounds other than the contract is
violative of the Act, in that it foreclosed bargaining for any
agreement with respect to its pension policy, irrespective of the
time at which such agreement might become effective .7
The respondent further contends that the amended Act expressly
does not require it to discuss any modification of the January 13, 1948,
agreement during the term of that agreement. This contention is based
on a portion of Section 8 (d) of the amended Act." We have recently
considered and rejected an identical contention applied to a similar set
of facts in Matter of Allied Mills, Inc.9 We there adopted the Trial
Examiner's statement that this portion of Section 8 (d)
refers to terms and conditions which have been integrated and
embodied into a writing. Conversely it does not have reference
to matters relating to "wages, hours and other terms and condi-
tions of employment," which have not been reduced to writing.
As to the written terms of the contract either party may refuse
to bargain further about them, under the limitations set forth in
the paragraph, without committing an unfair labor practice.
With respect to unwritten terms dealing with "wages, hours and
' 77 N . L. R. B. 1 , 15. In N. L. R . B. v. J. H. Allison & Company , 165 P . 2d 766
(C. A. 6), cert . denied 335 U. S. 814, the Court of Appeals , in an analogous situation , stated :
The constant position of respondent has been and now is that merit increases are not,
under the National Labor Relations Act, a proper subject for collective bargaining ; and
that the Company will not negotiate or bargain with the union upon the subject until
"ordered so to do by final authority ." This pat position of the Employer necessitates
the course pursued by the union to enforce the rights of its membership claimed under
the Act. Nor do we see logical justification in the view that in entering into a
collective bargaining agreement for a new year ,, even though the contract was silent
upon a controverted matter , the union should be held to have waived any rights secured
under the Act, including its right to have a say -so as to so-called merit increases. Such
interpretation would seem to be disruptive rather than fostering in its effect upon
collective bargaining , the national desideratum disclosed in the broad terms of the first
section of the National Labor Relations Act.
The pertinent portion of this Section reads : ". . . the duties so imposed [by Section
8 (d) (2), (3 ) and (4 )] shall not be construed as requiring either party to discuss or agree
to any modification of the terms and conditions contained in a contract for a fixed period, if
such modification is to become effective before such terms and conditions can be reopened
under the provisions of the contract."
9 82 N . L. R. B. 854.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other conditions of employment ," the obligation remains on both
parties to bargain continuously.
Accordingly, on these facts , we reject Respondent 's contention in
this respect.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Rela-
tions Board hereby orders that the Respondent , Tide Water Associated
Oil Company , New York, New York, and its officers , agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with respect to its Retirement
Allowance Plan and pension program with The Employees ' Associa-
tion, Inc., as the exclusive representative of the following groups of
employees at its Bayonne, New Jersey, plant ( excluding administra-
tive , professional, and confidential employees, and supervisors) : (a)
all office and clerical employees in the manufacturing , engineering,
and accounting departments ; ( b) all laboratory employees in the
manufacturing department ; and (c ) all employees in the research and
development department ;
(b) Making any unilateral changes in its Retirement Allowance
Plan and pension program affecting the employees in the aforesaid
appropriate units without prior consultation with The Employees
Association, Inc.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with respect to its Retire-
ment Allowance Plan and pension program with The Employees'
Association , Inc., as the exclusive representative of all employees in
the aforesaid appropriate units and, if an understanding is reached,
embody such understanding in a signed agreement if requested by
The Employees ' Association, Inc.;
(b) Consult with The Employees' Association , Inc., prior to taking
any action which would affect the employees in the aforesaid appro-
priate units with respect to the terms and provisions of its Retirement
Allowance Plan and its pension program;
(c) Post at its plant at Bayonne, New Jersey, copies of the notice
attached hereto, marked Appendix A.10 Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
11 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted before the words, "A DECISION AND ORDER ," the words , "A DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
TIDE WATER ASSOCIATED OIL COMPANY 1101
after being. duly signed by 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;
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, 1947, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with THE EM-
PLOYEES' ASSOCIATION, INC., as the exclusive representative of all
the employees in the bargaining units described herein with
respect to our Retirement Allowance Plan and pension program.
WE WILL NOT in the future make any unilateral changes in our
Retirement Allowance Plan and pension program affecting any
employees in the bargaining units described herein without prior
consultation with the above-named Union.
The bargaining units consist of the following groups of em-
ployees, respectively, at this company's Bayonne, New Jersey,
plant, excluding supervisors and administrative, professional, and
confidential employees :
(1) all office and clerical employees in the manufacturing,
engineering, and accounting departments;
(2) all laboratory employees in the manufacturing depart-
ment ;
(3) all employees in the research and development depart-
ment.
TIDE WATER ASSOCIATED OIL COMPANY,
Employer.
By -----------------------------------------
(Representative ) ( Title)
Dated--=-----------------
This notice must remain posted for sixty (60) days from the date
hereof and must not be altered, defaced, or covered by any other
material.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Benjamin A. Theeman, for the General Counsel.
Cravath, Swaine & Moore, by Messrs. John H. Morse and Richard Keresy, of
New York, N. Y.; and Mr. Matthew F. McCue, of New York, N. Y., for the
Respondent.
Brenner, Butler & McVeigh, by Messrs. John F. Butler and John Corrigan, of
New York, N. Y., for the Union.
STATEMENT OF THE CASE
Upon charges filed by The Employees' Association, Inc. (Independent), herein
called the Union, on February 17, 1047, and August 6, 1948,1 the General Counsel
of the National Labor Relations Board,' by the Regional Director for the Second
Region (New York, New York) issued a complaint, dated August 10, 1948, against
Tide Water Associated Oil Company, herein called the Respondent, alleging that •
the Respondent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1) and (5) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act, and Section 8 (a) (1) and (5)
of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the
Amended Act, and Section 2 (6) and (7) of the Act and the Amended Act.
Copies of the complaint, the amended charge, and the notice of hearing were
duly served upon the Respondent and the Union on August 10, 1948.
With respect to the unfair labor practices the complaint alleges in substance
that on or about December 10, 1946, and at all times thereafter, and on or about
April 30, 1948, and at all times thereafter, the Respondent refused to bargain
collectively with th eUnion as the exclusive representative of a majority of the
employees of Respondent in certain specified appropriate units, concerning the
Pension Plan of Respondent affecting such employees. The Respondent in its
answer denies the commission of the unfair labor practices alleged in the com-
plaint and further alleges, as a "complete defense to said complaint," that
Respondent is not required under the Amended Act to bargain collectively with
the Union concerning the provisions of the Pension Plan of Respondent.
Pursuant to notice a hearing was held on September 22 and 23, 1948, at New
York, New York), before John Lewis, the undersigned Trial Examiner, duly des-
ignated by the Chief Trial Examiner. The General Counsel, the Respondent, and
the Union were represented by counsel and participated in the hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the conclusion of the
evidence the following motions were made by Respondent: ( 1) to sever and
dismiss the complaint, under Section 10 (b) of the Amended Act, insofar as it
relates to unfair labor practices which occurred prior to February 6, 1948; (2)
to sever and dismiss the complaint insofar as it relates to a refusal to bargain
with the Union with respect to persons retired from employment by Respondent;
'The parties stipulated that Respondent was advised by the Board , by letter dated
February 19, 1947 , of the filing of a charge against it and that Respondent received a copy
of such charge on June 27, 1947 . A copy of the charge filed August 6, 1948 , designated as
an "Amended Charge" and bearing the same case number as the original charge; was served
on Respondent on August 10, 1948.
'The General Counsel and the attorney representing him at the hearing are referred to
herein as the General Counsel. The National Labor Relations Board is referred to as the
Board.
TIDE WATER ASSOCIATED OIL COMPANY 1103
(3) to dismiss the complaint on the grounds that under the existing collective
bargaining agreement between the Union and the Respondent, the Union has
waived any requirement of law that Respondent bargain with it regarding the
Pension Plan, and that to require Respondent to bargain on this subject during
the term of the agreement would violate the policy of the Labor Management
Relations Act to prevent modification or termination of collective agreements
during their stated terms; (4) to dismiss the complaint on the ground that the
General Counsel had not established, by a preponderance of the evidence, a
refusal to bargain collectively; (5) to dismiss the complaint on the ground that
the Act does not require Respondent to bargain collectively with the Union con-
cerning the provisions of the Company's Retirement Plan. Ruling on said mo-
tions was reserved and such motions are hereinafter disposed of. The parties
did not avail themselves of an opportunity to argue orally but pursuant to leave
granted for the filing of briefs, the Respondent filed a brief and the General
Counsel filed a memorandum outlining his position in the case.
Upon the entire record and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, is engaged in the producing, trans-
porting, refining, and marketing of petroleum and petroleum products throughout
the United States and in certain foreign countries. It has reserves of crude
petroleum in the mid-continent and Gulf Coast areas, and in California, Illinois,
Indialia, and Pennsylvania, and crude oil refineries, natural gasoline plants, oil
and gasoline pipe lines, and wholesale and retail and marketing outlets through-
out the United States. The Respondent utilizes fleets of ocean-going tankers
and bay vessels, and numerous tank cars and automotive vehicles to transport
its products to and from its refineries and marine terminals and from its sup-
pliers and to its customers located in various States of the United States. To
man its far-flung operations Respondent employs approximately 11,700 employees
of whom approximately 6,700 are represented for purposes of collective bargaining
by labor organizations recognized by Respondent.' Frequest transfers of per-
sonnel occur between various bargaining units and between different locations
of Respondent's operations.'
During the times here material Respondent maintained one of its principal
offices in New York City and a branch office and refinery at Bayonne, New Jersey,
where it engaged in the production, transportation, and marketing of petroleum
and petroleum products -and accessories. During the year ending December 31,
1947, Respondent in the course and conduct of its business operations, purchased
and caused to be purchased, transported, and delivered to its Bayonne plant,
petroleum, petroleum products, and accessories of substantial value, of which a
substantial percentage was transferred to such plant in interstate commerce
3 Respondent bargains with 30 dfferent unions representing more than 60 different
bargaining units and has 55 separate contracts governing the terms and conditions of
employment with such units.
* The above findings are based on the stipulated testimony of B. I. Graves, a vice-
president of Respondent.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from other States of the United States and foreign countries. During the year
ending December 31, 1947, Respondent in the course and conduct of its business
operations, caused to be manufactured and processed at its Bayonne plant,
petroleum, petroleum products, and accessories of substantial value, of which a
substantial percentage was transported in interstate and foreign commerce to
other States of the United States and to foreign countries.5
Upon the basis of the foregoing, the undersigned finds that Respondent, at all
times material, was and is engaged in commerce at its Bayonne plant within
the meaning of the Act and the Amended Act.
II. TILE ORGANIZATION INVOLVED
The Employees' Association, Inc. (Independent), is a labor organization which
itclmits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES 6
A. The refusal to bargain in good faith
1. The appropriate unit and representation by the Union of a majority therein
The complaint alleges, the answer admits, and the undersigned finds that the
following groups of Respondent's employees, respectively, at its Bayonne plant
(exclusive of supervisors and administrative, professional, and confidential em-
ployees) constitute appropriate units for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act and the Amended Act: (a) all
office and clerical employees in the manufacturing, engineering , and accounting
departments; (b) all laboratory employees in the manufacturing department;
(c) all employees in the research and development department.
The complaint further alleges, the answer admits, and the undersigned further
finds that a majority of the employees in each of the units described in the pre-
ceding paragraph designated or selected the Union as their representative for
the purposes of collective bargaining with the Respondent, on or about August
8, 1945, June 14, 1945, and June 4, 1945, respectively ; that at all times since such
dates, the Union has been the representative for purposes of collective bargain-
ing of a majority of the employees in the respective units, above described; 7 and
that by virtue of Section 9 (a) of the Act and the Amended Act, the Union has
been since such respective dates, and now is, the exclusive representative of all of
the employees in each of said units for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, and -other conditions of
employment.
5 The above findings are based on the allegations of the complaint which were not denied
in the answer.
6 The findings in this section are based mainly on facts as to which there is no material
dispute . The General Counsel ' s case rests primarily on the testimony of George Tenety,
president of the Union, and certain documentary evidence introduced through him. Re-
spondent called no witnesses but relied mainly on evidence adduced through the cross-
examination of Tenety, and on certain documentary evidence and stipulations which were
introduced into the record . The difference between the parties is primarily one as to the
cone usions to be drawn from the facts rather than as to the basic facts themselves.
I The Respondent employs approximately 2,150 employees at the Bayonne refinery. The
Union is the recognized bargaining agent for approximately 1,700 of these employees
organized into 7 units , the 3 units here involved consisting of 166 employees.
TIDE WATER ASSOCIATED OIL COMPANY
2. The refusal to bargain
a. Background and antecedent events'
1105
The Company or its predecessors have had in effect some form of retirement
plan for the benefit of its employees since about 1908. On May 1, 1941, the
Company adopted a new "Retirement Allowance Plan" (sometimes referred to
herein as the Plan or as the Pension Plan) which, as amended, has continued
in effect to date. The Plan does not require any contributions by employees. All
employees of the Company eligible to receive its benefits are equally covered,
regardless of the unit in which they work, the Union through which they bar-
gain, or the location of their employment. The transfer of employees from
one unit to another does not affect their length of service credits under the Plan.
The Plan, as adopted in 1941, provided that each employee who had completed
at least 20 years of continuous service and who had attained the age of 65, would
be eligible to receive, after retirement, an amount per year which, together with
the primary benefits received by him under Government social security laws,
would equal 11/2 percent of the total cash compensation received by such employee,
provided that such aggregate amount should not be less than $50 per month.
Pursuant to rules and regulations adopted by the Company's board of directors
under the Plan, the term "total cash compensation," upon which employee benelits
were computed, was defined as excluding overtime compensation paid to employ-
ees. The Plan specifically provided that it was "not a contract and not an
inducement or condition of employment." It also reserved to the board of direc-
tors the absolute right to modify, change, discontinue, or terminate the Plan or
reduce or discontinue any retirement allowance granted thereunder.'
When the 1941 plan was adopted, there was no comprehensive written collective
bargaining agreement between the Respondent and the Union. Such bargaining
as existed was carried on in the form of meetings held at least quarterly between
representatives of management and of the Union at the Bayonne refinery.'0 At
these meetings, various matters which might be the subject of a grievance or of
employee interest were discussed. Among these were such matters as wage in-
creases, hospitalization, additional facilities for the convenience of employees,
and also the Retirement Allowance Plan. Minutes were kept of the meetings
and copies were printed by the Union, signed by the trustee employee representa-
8 The proof introduced by the General Counsel on the issue of refusal to bargain was
limited almost exclusively to the period beginning December 10, 1946. However, the
Respondent was permitted, over the objection of the General Counsel, to introduce evidence
of events occurring prior thereto for the purpose of showing the history of bargaining
between the parties with respect to Respondent's Pension Plan.
The Company's Certificate of Incorporation contains the following provision relating
lo the establishment and amendment of pension plans
The Board of Directors is expressly authorized
o a o a a a o
From time to time, with the affirmative vote or written consent of the holders of at
least a majority of the common stock of the corporation then issued and outstanding,
to provide and carry out and to recall, abolish, revise, amend, alter or change, a plan
or plans for . . . the furnishing to said employees and persons or any of them, at the
corporation's expense, of . . . pensions during old age, disability or unemployment
in such manner and upon such terms and conditions as may be determined by
the Board of Directors.
to The employee representatives were called "trustee employee representatives," one repre-
sentative being elected from each division at the refinery. The meetings were commonly
referred to as "works council meetings."
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives, and distributed by the Union to employees at the refinery." Where agree-
ment was reached between the parties on any matter discussed, it was recorded
in the minutes and was considered to constitute a condition of employment.
Likewise, the personnel department of the Company kept a record of such matters
upon which agreement had been reached.
The minutes of the various works council meetings between union and man-
agement representatives from July 1941 to July 1943 " disclose that the Retire-
ment Allowance Plan was a regular subject of discussion at these meetings.
The employee representatives voiced various objections to the Plan. Among
the features of the Plan which they criticized were: (1) the deduction of the
employee's share of social security benefits from the retirement allowance to
which he would be entitled under the Plan ; (2) the exclusion of overtime earn-
ings from "total cash compensation" upon which the retirement allowance was
computed; (3) the requirement for computing the allowance on "continuous
service" rather than "total service"; (4) the lack of any contractual obligation
on the Company's part in the Plan.
Management representatives at the meetings endeavored to answer the objec-
tions of employees and to explain the reasons why the provisions objected to were
included in the Plan. They also pointed out at several meetings that the Plan
had been adopted by the stockholders and that any basic changes in the Plan
would have to be submitted for approval to the board of directors and to the
stockholders. The minutes disclose that at various times the Company's repre-
sentatives agreed to convey the "requests" of the employees to top management
officials in New York, from whom any recommendation as to change in the Plan
would have to come. They would then report back at a subsequent meeting the
action taken on such requests. The company officials during this period were
unwilling to recommend any basic change in the Plan, except that they agreed
to recommend to the board of directors a change in the rules and regulations
governing the Plan so as to include the straight-time portion of overtime earn-
ings (exclusive of the overtime premium) as part of "total cash compensation"
under the Plan."
Late in 1942, bargaining began on the Union's demand for a comprehensive
written collective bargaining agreement. The parties were unable to reach an
agreement, and in 1943 the Union instituted a proceeding before the National
War Labor Board. The question of the Retirement Allowance Plan does not
appear to have been raised by the Union as one of the basic issues in this pro-
ceeding. However, brief reference to it was made in both the Union's and the
Company's proposed contracts as submitted to the War Labor Board. Both
]'The so-called minutes were not actual stenographic minutes of the meeting , but were
a summary made from notes, of the highlights of what had occurred at the meetings. At
one time the minutes were prepared by the Company , but when the Union objected that they
did not contain an accurate account of what had occurred, it was agreed that the Union
should prepare and print the minutes itself.
12 The practice of printing "minutes" of the quarterly meetings was discontinued subse-
quent to the July 1943 meeting because of disagreement between the parties as to whether
the minutes accurately reflected what had transpired at the meetings.
13 The decision to include overtime compensation at the basic rate in "total cash compen-
sation" was revealed to employees at the works council meeting held June 11, 1942. A labor
relations official of the Company read to the meeting a draft of a recommendation to this
effect which management intended to make the board of directors . The rules governing the
plan were subsequently amended by the board of directors to accomplish this change.
TIDE WATER ASSOCIATED OIL COMPANY 1107
proposed agreements contained a clause headed "Employees' Privileges and
Benefits" which provided that:
This agreement shall in no wise affect the status of employees on whose
behalf it is made, with respect to benefits derived from, or participation in,
any welfare plan of the Company (Eastern Division) that may be in effect
for employees generally during the term of this agreement.
Both agreements then specifically list a number of plans or benefits covering
the employees, among which the Retirement Allowance flan is included. The
only difference between the two proposed agreements in this respect is that in
the Union's proposed contract after the listing of "Retirement Allowance Plan"
there appear the words, "reference to arbitration." No such language appears
in the Company's proposed contract which, however, after listing all of the plans
then in effect, contains a clause reading: "Before any change is made in any of
these plans, the Union shall be notified."
The issues between the parties under the proposed contracts were not disposed
of until 1945 when agreement was reached and contracts, dated December 28,
1945, were signed covering various groups of employees at the Bayonne refinery,
including the three units involved in this proceeding.14 The only reference to
the Retirement Allowance Plan in the 1945 agreements appears in a clause entitled
"Management Functions," which provides as follows :
1. The management of the Refinery and the direction of the working forces
and the operations at the Refinery, including the hiring, promotion, demotion,
transferring and retiring of employees . . . are the exclusive functions
of the Management of the Company . . .
2. This Agreement shall in no way affect the operation of, or the status of
any Employee with respect to, any welfare or benefit plan of the Company
(Eastern Division) that may be in effect during the terms hereof. Such
plans at the present time are . . . the Retirement Allowance Plan.
b. The Union's requests to bargain beginning on December 10, 1911616
In December 1946, negotiations began on a new agreement to take the place
of the 1945 agreement which was about to expire. The proposed agreement sub-
mitted by the Union 16 contained a "Management Functions clause identical in
wording with a similar clause in the 1945 agreement, except for the addition of a
third paragraph which stated : "This Agreement shall be a point for arbitration
between Management and Union." As a supplement to its proposed contract, the
Union submitted a list of "Additional Recommendations," among which was a
14 The agreement covering the employees in the charging units was one of three separate
agreements simultaneously executed.
15 The General Counsel ' s case was based on the events which occurred between December
10, 1946 , and April 30, 1948 . The evidence introduced by him was limited to that period.
15 The bargaining procedure between the parties involved discussion of a proposed contract
for the so-called "big unit," consisting mainly of the operating and mechanical employees
at the Bayonne refinery . Separate agreements were not submitted for the remaining units,
including the three here involved, but the provisions of the main agreement were applied
to them where applicable , and additional clauses were worked out where necessary to take
care of particular situations in these other units.
857829-50-vol. 85-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request for "the same benefits as `Esso Thrift Benefit Plan.' "' In addition to
submitting a proposed contract, the union representatives '8 advised management
representatives at the commencement of bargaining negotiations on December 10,
1946. that the Union desired to include, as part of the contract, "a pension plan
which would be acceptable to both management and the men." a The union
representatives were advised by George C. Caine, superintendent of the Bayonne
refinery,20 that the Pension Plan was a matter which he was not authorized to
discuss with them, and he suggested that the Union's pension committee com-
lttunicate with Mr. Humphrey, president of the Company, on any matter pertain-
ing to the Retirement Plan.
The next contact between the Union and the Respondent regarding the Pension
Plan, which appears from the record, is a letter from the Union to Humphrey,
dated February 3, 1947, in which the Union requested him to obtain permission
from the board of directors "to divulge information pertaining to the proposed
new Pension Plan," 21 and also requesting that he "meet with our Pension Com-
mittee as soon as possible so that they may bring these facts back to our member-
ship." Humphrey replied to the Union by letter, dated February 10, 1947, advis-
ing that the "proposed amended Retirement Allowance Plan" would be presented
to the board of directors at a meeting to be held on February 27, 1947, in San
Francisco. He further stated :
Meanwhile, application for qualification of the proposed amended plan
under the regulations of the Treasury Department will be made. If the pro-
posed amended plan is so qualified, it will be submitted to the Board of
Directors at the above scheduled meeting and, if approved, it is anticipated
that the Board will then direct that the employees of the Company be in-
formed of its terms and conditions. However, the proposed plan will not
be effective until the approval of the Directors is ratified by the Stockholders
and it is expected that the proposed plan will be presented to the Stock-
holders for ratification at their meeting on May 1, 1947.
The letter concludes by stating that while Humphrey could not "advise" the
Union "of the details of the proposed plan," he would be glad to meet with the
members of its pension committee at his office on February 11, 1947.
11 The "Esso Thrift Plan " is a group annuity and employees ' savings plan covering
employees of the Standard Oil Company of New Jersey . The Union was particularly inter.
ested in the "Thrift Provisions" of the Esso plan under which employees who were
participants in the annuity feature of the plan might contribute, by pay-roll deductions,
amounts varying from 2 percent to 10 percent of their monthly salaries and the Company
added to such amounts its own contribution of 1 percent to 3 percent, depending on the
percentage saved by the employee.
is The Union ' s spokesman was its president , George Tenety , who was accompanied by 15
elected representatives from the Union.
19 According to the uncontradicted and credited testimony of Tenety , the Union had
several types of pension plans prepared which it proposed to discuss with Respondent.
20 In addition to Caine, there were present at the meeting , on behalf of management,
Frank Keebler, assistant to Caine; H. G. Fillhower, supervisor of industrial relations at
the Bayonne refinery ; and Charles Murray , Richard Wilson , and William Nicholas, all
assistants to Fillhower.
21 A letter from the chairman of the union pension committee to Humphrey, dated
November 16, 1946 , indicates that the latter had informed the committee at a meeting in
June that actuarial studies were being made in connection with possible revision of the
Plan. This letter requests information in that regard and is critical of the Company for
"lagging in pension policy."
TIDE WATER ASSOCIATED OIL COMPANY 1109
Pursuant to Humphrey's letter, a meeting was held in his office in New York
City on February 11, 1947. In addition to Humphrey, there were present on
behalf of the Company, B. I. Craves and Herbert Chase, vice presidents of the
Company, and Seth Candee, in charge of industrial relations for the Company..
The Union was represented by its president, Tenety, and by four members of its:
pension committee. A summary of what transpired at this meeting is containedl
in the testimony of Tenety, as follows :
The meeting was opened up by Mr. Humphrey with an acknowledgment
of our presence, and telling us that he was glad to see us, that he was aware
of the content of our visit.
He then informed us that the management had contemplated amending
the then in effect pension plan, but he wasn't permitted at that time to
divulge its contents as it had not been approved by people who are required
to approve it.
Repeatedly we asked for it, and we were denied the full content of the
pension plan.
Mr. Humphrey, in answer to a statement as to whether or not he considered
it a condition of employment, and a negotiable matter, said that he did not
consider the pension plan to be a condition of employment, nor did he con-
sider it to be a negotiable matter.
The meeting adjourned shortly thereafter.
Thereafter, on February 17, 1947, the Union filed a charge against Respondent
with the Board's Regional Office in New York. On March 7, 1947, a meeting
between Union and Company representatives took place under the Board's
auspices at its New York Regional Office. The Company was represented by
Caine and Filihower from the Bayonne refinery, Candee from its New York
office and Matthew F. McCue of its legal staff. Tenety, several representatives
of the union pension committee and John F. Butler, the Union's attorney, appeared
on the Union's behalf. Tenety's uncontradicted and credited testimony as to the
discussion of the Pension Plan at this meeting is as follows :
Well, the Examiner 22 opened the discussion, and there seemed to be some
discussion on the merits of the Inland Steel case.
. Now if I remember correctly iJr. Butler, asking permission of the Exami-
ner to address a few remarks to management, said he thought he could
expedite matters.
Mr. Butler addressed his remarks to management, and asked two questions,
one, if they considered it a condition of employment, and the other if they
considered it a negotiable matter.
Mr. McCue spoke for the company, and he said that the company did not
consider it a condition of employment, nor did they consider it a negotiable
matter.
In April 1947, the union representatives were called to a meeting in I-lumph-
rey's offsc-e and were given copies of a Notice of Annual Meeting of Stockholders
for May 1, 1947, attached to which was a copy of the proposed amended Retire-
ment Allowance Plan.23 This was the first notice that the employees had of the
full amended Retirement Plan which the board of directors was recommending
^ This reference is to John A. Penello , former Field Examiner of the Board.
za The notice, which is dated April 4, 1947, recites as one of the purposes of the meeting,
"to consent to the amendment of the Retirement Allowance Plan for Employees of the
Corporation and certain Subsidiaries."
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the stockholders. The employee representatives objected because the Plan
did not include provisions which they thought necessary, whereupon Humphrey
reminded them that it was not a negotiable matter, but was in the sole discretion
of the stockholders to be acted on at the meeting on May 1.n
The annual meeting of stockholders on May 1, 1947, was attended by Tenety
and several other members of the union pension committee who were themselves
stockholders or holders of proxies. When the proposed Amended Pension Plan
cause up for discussion, the union representatives took the floor and asked that
the stockholders not approve the Plan since it was inequitable to the employees.
Humphrey, who was chairman of the meeting, stated that in the opinion of man-
a gement, the Plan was not a negotiable matter nor was it a condition of employ-
ment. Upon a vote taken, the proposed Amended Pension Plan was adopted
and put into effect.25
The subject of the Pension Plan was again brought up at the next works coun-
cil meeting at the Bayonne refinery on May 8, 1947. Under the heading of "old
business," the employee representatives inquired as to the status of the Pension
Plan, and were informed by Superintendent Caine, according to Tenety's uncon-
tradicted and credited testimony, that "the status of the pension plan was the
same as it was at the conclusion of the May 1st stockholders' meeting and that
the matter was entirely out of his hands." No effort was made to discuss further
the revision of the Plan at this meeting because, as Tenety testified, "We had
been told that it was in the hands of Mr. Humphrey several times before that
and that it was useless to make an attempt for further discussion at these meet-
ings because we knew nothing could be accomplished."
The Union arranged a meeting in June 1947 with Humphrey in New York to
discuss further amendment of the Plan. At this meeting, Humphrey declined to
discuss any changes in the Plan, stating that the employees had not given
the Amended Plan a fair trial and also reminding the employee representatives
that the Plan was not a negotiable matter nor was it a condition of employment.
A further meeting between the union pension committee and Humphrey took
place on December 16, 1947. At, this time the union representatives handed him
a memorandum indicating the Union's wishes with respect to amendment of the
Plan.°° On the day following this meeting, John Sabo, chairman of the union
pension committee, addressed a letter to Humphrey supplementing the memo-
randum handed to him the previous day in which it inquired whether the Company
was "receptive to a contributory Pension Plan R4 to supplement our present Plan
24 The foregoing is based on the uncontradicted testimony of Tenety , who together with
other members of the union pension committee, attended the meeting, Chase, Graves. and
Candee were present on behalf of the Company , in addition to Humphrey . Candee was in
attendance at the hearing in this case but was not called by Respondent as a witness.
'S As explained in the Notice of Meeting, the Amended Plan (which was made retroactive
to January 1, 1947) changed the 1941 plan in two main respects: (1) whereas the 1941
Plan provided for payments, which together with social security benefits would equal 11
percent of the employee's total cash compensation, the Amended Plan called for payments
equal to 1 percent of the first $3,000 of compensation in each year plus 11/2 percent of such
compensation over $3,000, but without deducting anything for whatever the retiring
employee might be entitled to under social security laws; ( 2) the Amended Plan provided
for the establishment of a reserve fund by the Company out of which the retirement benefits
would be paid to the employees , a provision which was not present in the 1941 Plan.
2 This memorandum was not made part of the record , but its contents may be inferred
from the succeeding correspondence between the parties in which it was discussed.
2' This apparently has reference to a provision similar to the "Thrift Provision" of the
Esso Plan.
TIDE WATER ASSOCIATED OIL COMPANY 1111
when amended as requested." On January 16, 1948, the Union addressed another
letter to Humphrey, supplementing its letter of December 17, 1947. In this letter
it-listed its demands regarding the Plan "in order to be sure we are in accord
as to the points that were stressed at our last meeting." 28 Among the demands
set out were : (1) funding of the Plan by setting up an irrevocable trust fund ;
(2) benefit payments to be 11/ percent of total earnings, exclusive of social
security payments; (3) total earnings to be based on the average of earnings
for 5 years preceding the date of retirement.
On February 13, 1948, Humphrey advised the Union's pension committee by
letter that after studying its proposals" and the reports of independent actuaries,
it had been concluded that it was "not practicable for the Company to adopt any
of the proposals submitted by your Committee due to the resulting excessive
increase in cost to the Company." Humphrey pointed out that the Plan in its
amended form had been in effect for less than 1 year and that management
believed "such limited period is insufficient to justify the conclusion, that the
Plan is inadequate." The letter further states :
It is also believed that the Company's stockholders will not favor any amend-
ments at this time designed to extend the benefits granted by the Plan in its
present form, although after another year's experience, probably they would
give more favorable consideration to any meritorious amendments.
The various proposals submitted by the Union are then discussed in detail and
reasons given why the Company cannot accept them. However, reference is made
to the fact that management officials expected to recommend to the board of
directors at its meeting on February 26, 1948, the adoption of a provision under
.which no retirant would receive less than $40 a month.3°
On February 26, 1948, the board of directors, in accordance with the recom-
mendation of management officials, as mentioned in Humphrey's letter of Febru-
ary 13, 1948, to the Union's pension committee, authorized the payment of "special
temporary allowances in an amount sufficient to bring the monthly payment
received by an employee retired under the Plan to at least $40 a month." It
does not appear that any formal amendment to the Plan itself was made, the
payment of the "special temporary allowances" having apparently been author-
ized on the board of directors' own responsibility without approval by the stock-
holders."
In the meantime, on January 13, 1948, Respondent and the Union had entered
into a new collective bargaining agreement for a period of 1 year, thus con-
cluding the negotiations which had commenced on December 10, 1946. This
agreement contained a "Management Functions" clause identical in wording with
that in the December 1945 agreement. Outside of this clause, the agreement
made no other reference to the Retirement Allowance Plan.
The Union's request for a further meeting with Humphrey to discuss the
Pension Plan resulted in a conference at the Bayonne refinery on March 8, 1948,
28 The meeting referred to is the meeting of December 16, 1947, with Humphrey.
p Humphrey's letter refers to proposals contained in the memorandum handed to him by
the Union on December 16, 1947, and to the letters of December 17, 1947, and January
16, 1948.
"The Amended Plan contained no provision for minimum benefits, as did the Plan in Its
1941 form.
91 Tenety testified that this action by the board of directors had caused the Union to
doubt the "sincerity" of management officials, in view of their repeated statements that no
amendment to the Plan could be made without authorization of the stockholders.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attended by Chase and Candee on behalf of the Company and by Tenety and
the Union 's pension committee on behalf of the Union.' At this meeting the
Union requested that its pension demands be submitted to arbitration . It' also
renewed its request for supplementing the Plan with an employee contributory
provision . Chase took all the data and stated that he would convey the informa-
tion to Humphrey . Shortly thereafter , a meeting was held in Fillhower ' s office at
the refinery in which Candee reported to the union representatives on the results
of the requests made at the March 8 meeting . He advised them that the Com-
pany was unwilling to arbitrate the Union 's pension demands. The proposal
for inclusion of an employee contributory provision in the Plan was likewise
unacceptable , except that the Company was willing to take the money out of
the employees ' envelopes and turn it over to the Union to invest as it saw fit.
The employee representatives were also advised by Candee at this meeting of
the action previously taken by the board of directors in authorizing payment of
.a minimum pension of $40 per month.
The next and final communication between the Union and the Company with
Tespect to the Pension Plan took place after the Board ' s decision in the Inland
.Steel case 33 On April 14, 1948, the Union, by its president , Tenety , addressed a
letter to Humphrey , as president of the Company , to the following effect:
In view of the decision that has just been made by the National Labor
Relations Board in the Inland Steel case, the undersigned , as collective bar-
gaining representative of the employees at the Bayonne refinery of Tide
Water Associated Oil Company , hereby requests that a meeting be arranged
between the Company and the Union for the purpose of bargaining on the
Pension Plan affecting the Employees.
Please communicate with the undersigned in order that the time and
place for such meeting may be arranged without delay.
Humphrey , by letter dated April 23, 1948, replied that he was submitting the
Union 's letter to the Company 's board of directors at its meeting on April 29, 1948,
and would communicate with the Union within a reasonable time thereafter.
After conferring with the board of directors, Humphrey wrote a letter to the
Union on April 30, 1948, as follows :
In my letter of April 23, 1948, 1 acknowledged receipt of your letter of
April 14, 194S, requesting a meeting for the purpose of bargaining concerning
"the Pension Plan affecting the employees " and advised you that I deemed it
proper to submit your request to the Board of Directors.
At yesterday's meeting of the Board of Directors , this subject was dis-
cussed. During the discussion it was pointed out that this Company had
always insisted that neither its Retirement Allowance Plan nor any proposed
amendment thereto was a proper subject of collective bargaining . However,
as you know, it has always welcomed suggestions from its employees con-
cerning the plan and its operation , and on many occasions executives have
met with employees and their representatives including the Pension Commit-
tee of the Employees Association Inc. for the purpose of discussing such
suggestions.
It is apparent that the decision of the National Labor Relations Board is
not a final determination of the question whether an employer is required
32 Tenety testified that a meeting had been requested with Humphrey, but that Chase was
appointed in his place due to Humphrey's absence in California.
33 Matter of Inland Steel Company, 77 N. L. R. B. 1.
TIDE WATER ASSOCIATED OIL COMPANY 1113
by law to negotiate with a union representing a group of its employees con-
cerning the terms or conditions of such a plan. The directive order of the
National Labor Relations board is not enforceable, even against the Inland
Steel Company, until confirmed by the courts.
As a practical matter, the negotiation of a retirement allowance plan with
a union presents grave difficulties where the union represents only one group
of employees and the greater number of the employees are represented by
other unions or, have no union affiliations, particularly as any material
change in this company's Retirement Allowance Plan would not be effective
until approved by the shareholders of this Company.
The Directors, therefore, have requested me to advise you that the Com-
pany may not, at this time, meet with you for the purpose of bargaining
concerning changes in its Retirement Allowance Plan.
We will, as in the past, welcome any constructive suggestions you or any
other employee of this Company may wish to submit with respect to the
Retirement Allowance Plan, to meet and to discuss such suggestions with
you at such times as may be mutually agreeable and in appropriate cases to
make recommendations with regard thereto to the Board of Directors.
The record discloses no further correspondence or meetings between the Union
or the Company with regard to the Pension Plan.
3. Contentions and Conclusions
a. Was Respondent required to bargain?
Respondent contends that it was not legally required to bargain with respect
to its Pension Plan for the reason that such matters are not bargainable issues
under either the National Labor Relations Act or the Labor Management Rela-
tions Act. In support of its contention Respondent cites from the legislative
history of both Acts, as well as from authorities in the pension field,' to show
that Congress could not have intended to include retirement and pension benefits
and plans as "wages" or "other conditions of employment" within the meaning
of Section 9 (a) of the Act and the Amended Act.
The Board has already decided in the Inlantid Steel case, supra, that pension
and retirement plans are bargainable issues and that an employer is obligated
to bargain collectively with respect to such plans. Its ruling in this respect was
confirmed by the Court of Appeals for the Seventh Circuit 35 No useful purpose
would be served by outlining here Respondent's arguments in support of a contrary
view. Suffice it to say that it has not raised any material matters not already
urged in the Inland Steel case, and considered by both the Board and the Court
34 The parties entered into a stipulation , which was made part of the record , that they
were to be free to include in their respective briefs direct quotations from Government and
other publications , and that such quotations should be part of the record to the same extent
as if duly authenticated copies thereof had been received in evidence at the hearing , except
that each of the parties reserved the right to object to any such quotation on the ground
that it was not a true and correct copy of what it purported to be or on the ground of
irrelevance or immateriality . Respondent included in its brief , quotations from a number
of publications dealing with the subject of pensions. No objections to such quotations
was made by the General Counsel or by the Union , and the undersigned has given consider-
ation to such material.
11 Inland Steel Company v . N. L. R. B., 165 F . 2d 766 (C. A. 7).
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Appeals in that case3' Under the circumstances, the undersigned concludes,
in accordance with the established and well considered precedent,"' that at the
times here material the Respondent's Retirement Allowance Plan was a bargain-
able matter and that Respondent was legally obligated to bargain collectively
with the Union in respect to such Plan.
b. Did Respondent bargain collectively?
Respondent contends in its brief that despite its opinion that "it was not under
any statutory obligation to bargain concerning the Plan, . . . which it some-
times stated to the Union, the Respondent regularly and continuously en-
gaged in collective bargaining with the Union concerning the Plan since its
institution in 1941." In support of its contention ,, refers to the numerous meet-
ings between the Union and management officials, and the negotiations which
took place for the 1945 and 1948 agreements. It acknowledges that the authority
of its representatives at such conferences "was not unlimited," but points out
that this was necessarily so due to the requirement in its certificate of incorpora-
tion that the board of directors and stockholders approve changes in the Plan.
It also claims that while the conferences between its representatives and those of
the Union "seldom resulted in agreement, they nevertheless yielded results,"
citing the amendment of the rules to include part of the overtime compensation
in total cash compensation, the elimination of the deduction of social security
benefits from payments made under the Plan, the setting up of a reserve fund
under the Plan, and the establishment of a temporary minimum allowance of
$40 per month. All of these changes, states Respondent, were made in response
to the Union's demands, were first discussed with the Union, and its affirmative
approval sought.
While some of the facts referred to by Respondent may suggest, at least
superficially, that it was going through some of the motions of collective bar-
gaining, consideration of the record as a whole leads to the inescapable conclusion
that such bargaining was more apparent than real. Respondent's fixed position
that the Plan was not a bargainable matter so colored its attitude as to deprive
any dealings which it had with its employees regarding the Plan, of the essential
qualities of good faith bargaining which characterize negotiations between parties
who recognize a basic obligation to bargain.
The essential nature of Respondent's dealings with its employees as to the
Retirement Plan may be gleaned as far back as the 1941-1943 period covered by,
the minutes of the works council meetings, which were put in evidence by Respond-.
ent for the ostensible purpose of showing a history of good faith bargaining. The
minutes of the first meeting after the adoption of the Plan, June 15, 1941, dis-
36 Respondent attacks the "suggestion " in the court ' s opinion in the Inland Steel case
that the language used in the original Act was not intended to remain "static" and that-
the general language used in the statute was "designed to meet the increasing problems
arising from the employer -employee relationship ." Respondent argues that while general
language in constitutional provisions admittedly is not intended to remain static in meaning,
such a proposition is of doubtful validity in the construction of statutory provisions. It
may be noted that in the case of Weems v. United States , 217 U. S. 349, 373 ( cited in the
Inland Steel case in support of principle objected to by Respondent ) the Supreme Court
includes "statutory " as well as "constitutional " provisions as falling within the orbit of the
principle enunciated . Respondent cites no authority to support the distinction which It
urges. In any event , it.is clear that the court 's holding in the Inland Steel case does not
rest solely or primarily on the language to which Respondent objects.
1 1 See also Matter of W. W. Cross and Company , 77 N. L. R. B. 1162.
TIDE WATER ASSOCIATED OIL COMPANY 1115
close that the employee representatives immediately voiced their objections to
the Plan. In connection with their objection over the deduction of social security
payments from the Plan's benefits, one of the management representatives
informed the employees that they "had been advised that sooner or later the
C nlp„ny wouid adopt a retirement plan which would take into consideration the
social sect! ity pc:yinents." The meeting was closed with the statement by the
Company representative that the "request" of the men "would be conveyed to
the officials of the Company." At tl_e meeting of October 21, 1941, after the
employees had voiced additional objections to the Plan such as its failure to
include overtime in total.cash compensation, tl:e omission of a thrift feature, and
the computation of pensions on continuous rather than total service, a manage-
ment representative called their attention to the fact that the Plan had been
adopted by the stockholders and that any basic change would have to be submitted
to them. The employees were likewise informed that neither "the Direc-
• tor., . . . nor the stockholders . . . will at this time consider a change in the
Retirement Allowance Plan." However, he stated that "the requests of the
employees would be submitted to the Management."
The minutes of the other meetings likewise disclose a similar pattern of unwil-
linguess or lack of authority on the part of management representatives at these
meetings to engage in genuine collective bargaining on terms of equality with
the employees. Thus, in the meeting of January 27, 1942, we find a management
.-representative reporting that the employees' requests for change had been sub-
mitted to the proper management officials and that "the decision of the Company
is that there will be no change in the Retirement Plan, as it is now constituted."
,We also find the union president, Tenety, recorded as remarking that "when a
change is requested in some Company Plan, the Trustee Employee Representatives
are given the opportunity to sit iii with the Management to discuss the matter,
but in the case of the Pension Plan, they were not extended the courtesy." At
the meeting of June 11, 1942, Candee informed the employees that management
officials in New York had decided to recommend- to the board of directors that
the straight-time portion of overtime earnings be included in total cash compen-
sation, but not the overtime premium. itself as requested by the employees. They
were also informed that management did not feel justified in recommending to
the board of directors any change with respect to social security deductions.
One of the employee representatives stated that they "did not expect any change
and they are still not satisfied with the Retirement Allowance Plan."
At the August 25, 1942, meeting an employee representative stated, referring
to the Retirement Allowance Plan, "that the Management presented the plan
to the Trustee Employee Representatives, but that it was- never accepted." The
minutes of the November 2, 1942, meeting disclose an objection voiced by Tenety
,that the Plan contained no contractual obligation and that, therefore, the men
had no protection. The minutes of the January 19, 1943, meeting disclose that
the employees were informed that their "request" on social security deductions
had been submitted to the New York management and to the legal division, but
that it had been decided nothing could be done without amending the Plan. The
employees objected to the procedure of submitting their requests to the board
of directors which was "entirely different from that which is taking place
33 The management representatives at these meetings consisted for the most part of
supervisory personnel from the Bayonne refinery. The "officials" to whom the requests of
the men were submitted (sometimes referred to as "management") were the top officials
at the Company's office in New York, including Humphrey.
] 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
today." 3e At the meeting of April 22, 1943, the employees were again informed
that top management did not feel they should make any recommendations to the
stockholders on changing the Plan with respect to social security deductions.
An employee representative thought the matter should be brought to the attention
of the stockholders and is recorded as having asked "if the Management does not
believe in the word bargaining and stated that there is something wrong some-
where." The employees also requested a meeting with the board of directors.
The minutes of the meeting of July 27, 1943,40 disclose that the employees were
informed the board of directors declined to meet with the employees since "it
does not appear that anything would be accomplished by such a meeting as the
Directors have given this subject full consideration." One of the employees
expressed his inability to understand why the Company did not want the board
of directors to sit down with the employee representatives and intimated that
some day the employees might go on strike to force some action on their demands.
Since the complaint is not based on any refusal to bargain during the period
for which these minutes were kept, it is unnecessary to make any findings based
on this evidence. However, since the events of this period were made part of
the record by Respondent as supposedly establishing a history of good faith bar-
gaining between the parties, it is not amiss to comment briefly thereon. It is
clear to the undersigned that during the period covered by the minutes of the
works council meetings, the Respondent did not regard the Retirement Plan as a
bargainable issue and did not in fact bargain with respect thereto. The officials
at the plant, although they had authority to bargain on other grievances of the
employees, were lacking in authority to make any commitments with respect to
the Retirement Plan. Their procedure was to listen to the men's grievances on
this subject and to try to dissuade them from their position. Where it was
apparent that the men were not satisfied with the explanation given and wished
to pursue the matter further, the only authority the management representatives
had was to inform the employees that their "request" would be submitted to the
Company's officials in New York" The attitude of Respondent's responsible
officials appears to have been that the Plan was something which had been
granted to the employees as a matter of grace, While they were willing to
receive "requests" and "suggestions" from the employees and even on occasion
to try to accommodate them, this was done as a matter of suffrance. There was
no willingness to negotiate with the employees as a matter of right on a basis
of mutual give and take.'
39 This evidently referred to the normal bargaining which took place with regard to other
grievances at the refinery.
19 This was the last meeting for which minutes were kept.
41 Respondent cites the testimony of the union president to the effect the employee repre-
sentatives at the meetings had no right "without the sanction of the Union, to speak on
matters of a general nature," as showing that the union representatives were likewise not
authorized to bargain on the Pension Plan. The undersigned does not agree with this
interpretation of the testimony. At the very least these representatives could arrive at
a tentative agreement which could be submitted to the membership for approval. Manage-
ment representatives lacked authority to make any commitment on the Plan, even one
which would be subject to approval by the appropriate officials.
42 Respondent's attitude is epitomized by the remarks made by Humphrey when the em-
ployees objected that the amendment of the rules to include the straight-time portion of
overtime earnings did not meet their request for inclusion of full overtime. According
to the uncontradicted and credited testimony of Tenety, Humphrey replied that the Plan
was not a negotiable matter but "more of a gratuity that was being handed down from
management to the men."
TIDE WATER ASSOCIATED OIL COMPANY 1117
'W'hatever may be said of the earlier period, it is clear that during the period
covered by the complaint, Respondent was clearly guilty of a breach of its obliga-
tion to engage in good faith bargaining with the Union on the issue of the Retire-
]nent Plan. The Union's express request to bargain concerning the Retirement
Plan, made at the inception of the negotiations for a new contract on December
10, 1946, met with the response that Respondent's representatives at the meeting
had no authority to negotiate on this issue and the suggestion that the Union
communicate with President Humphrey. At a meeting arranged by the Union
with Humphrey on February 11, 1947, the employees were informed that manage-
ment contemplated amending the Plan but that the contents could not be divulged
"as it had ndt been approved by the people who are required to approve it."
After repeated efforts at this meeting by the Union to secure information as to
the contents of the Plan, Humphrey informed its representatives, in response to
their specific inquiry, that he did not consider the Pension Plan a negotiable
matter nor a condition of employment. A clearer case of refusal to bargain can
hardly be imagined.
Later events serve only to reinforce the conclusion that Respondent was unwill-
ing to and refused to bargain with its employees on the issue of the Pension Plan.
Early in April 1947, the union representatives were called to Humphrey's office
and presented with a fait accompli, a copy of the proposed Amended Retirement
Plan which had been approved by the board of directors and was to be submitted
to the stockholders for approval on May 1, 1947. Their objections that the pro-
posed Plan did not include provisions which the Union thought necessary was
met with the response from Humphrey that the Plan was not a negotiable matter
but was in the sole discretion of the stockholders to be acted upon at the May 1st
i Meeting. The efforts of the union representatives who appeared at the stock-
holders' meeting on May 1st 93 to influence the decision of the stockholders resulted
in a statement by Humphrey, as chairman of the meeting, that management did
not regard the Plan as a negotiable matter or a condition of employment.
Any doubt which may exist as to the position of Respondent with respect to
the bargainability of the Plan may be dispelled by reference to the provisions
of the amended Plan, as approved by the stockholders. The Plan specifically pro-
vides that it "is not a contract and not an inducement or a condition of employ-
ment . . . " It further provides that the "Corporation retains and reserves the
right in its absolute discretion, by action of its Board of Directors, at any
time to modify, change, discontinue or terminate in its entirety, the plan, if
and when, in the sole judgment of the Board of Directors, such action shall be
deemed desirable or necessary . . .
The events subsequent to the amendment of the Plan indicate no weakening
in the Respondent's resolve not to bargain collectively with its employees on the
Plan. The efforts of the employees to bring up the discussion of the Plan at the
nest works council meeting met with a reply from the superintendent of the
refinery that the matter was entirely out of his hands. The Union's efforts to
discuss the matter with Humphrey in June 1947 met with a reminder that it was
not a negotiable matter nor a condition of employment. The Union's persever-
ance finally won for it a reply from management on February 13, 1948, which at
least had the merit of setting forth an apparently rational basis for manage-
ment's refusal to accede to some of the Union's requests. The Union was advised
13 It may be noted that they appeared at the meeting not at the invitation of Humphrey
to make their views known to the stockholders, but as stockholders themselves or as
holders of proxies.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Humphrey that he had submitted its proposal to independent actuaries for
study and informed the Union why, on the basis of these studies and those of the
Company's executives, it was not considered practicable to adopt any of the
proposals. It was further indicated that the Plan in its amended form had been
in effect for less than a year and that the stockholders would not favor any
amendment, "although after another year's experience probably they would give
more favorable consideration to any meritorious amendments." This letter does
not disclose any present willingness to bargain on the Plan or to recede from the
position that it was not a bargainable matter. In the light of the events which
preceded, and those which succeeded, this interchange it is hardly possible to
characterize this as an effort at good faith bargaining"
Whatever semblance of doubt may exist as to Respondent's willingness to bar-
gain on the Pension Plan is dissipated by the correspondence between the Union
and Humphrey in April 1.948. The Union's request, after the Board's decision
in the Inland Steel case, that Respondent meet with it for the specific purpose "of
bargaining on the Pension flan affecting the Employees," met with the response
that "this Company had always insisted that neither its Retirement Allowance
Plan nor any proposed amendment thereto was a proper subject of collective
bargaining." This is reinforced by Humphrey's further statement that the
directors "have requested me to advise you that the Company may not, at this
time, meet with you for the purpose of bargaining concerning changes in its
-Retirement Allowance Plan." Although the letter indicates that the Company
"will, as in the past, welcome any constructive suggestions you or any other
of the Company's employees may wish to submit" regarding the Plan and to meet
and discuss such suggestions," it is clear that this was not intended by the
Company as an offer to bargain in good faith concerning the Plan, and that it
cannot be considered as such.
The duty to bargain was defined by the court in the case of Globe Cotton
Mills, v. Al. L. B,. B., 103 F. 2d 91, 94 (C. A. 5) as follows : 49
. . . there is a duty on both sides . . . to enter into discussion with an
open and fair mind, in a sincere purpose to find a basis of agreement touch-
ing wages and hours and conditions of labor, and if found, to embody it in
a contract as specific as possible, which shall stand as a mutual guaranty
of conduct, and as a guide for the adjustment of grievances.
A willingness to receive "constructive suggestions" from the Union and even to
discuss them is not good faith bargaining where, as here, the employer reserves
the right to act unilaterally concerning the subject matter of the discussion and
44 As previously mentioned , in Humphrey ' s letter informing the Union of these facts, he
indicated that the board of directors had under consideration authorizing payment of a
minimum allowance of $40 per month under the Plan. This was not presented to the
Union as a matter for discussion but as a unilateral proposal which the board of directors
would put into effect . Moreover, in view of the past protestations by Respondent 's repre-
sentatives that changes in the Plan had to be approved by the stockholders, the Union
might properly question Respondent ' s sincerity in setting up a $40 minimum pension
without approval of the stockholders.
45 It may be noted that this offer was not limited to the recognized bargaining agents of
its employees . See Medo Photo Supply Corp . v. N. L. R . B., 321 U. S . 678, 684.
40 Section 8 (d) of the Amended Act defining collective bargaining does not substan-
tially change the concepts established by the Board and the courts under the original Act.
See Matter of National Maritime Union of America , 78 N. L. R. B. 971.
TIDE WATER ASSOCIATED OIL COMPANY 1119
is unwilling to make any binding commitment with respect thereto.47 As pre-
viously suggested , Respondent's attitude toward its employees' requests was
more akin to that of a dispenser of largesse considering the supplications
of the recipients of his bounty, than to bargaining between parties who recognize
a firm obligation to meet and to discuss matters of mutual interest and, if pos-
sible, to reach a binding agreement thereon. Respondent's basic unwilling-
ness to recognize the Pension Plan as a negotiable matter deprived such meet-
ings or discussions as it had with its employees of the mutual give and take
characteristic of genuine collective bargaining .49 Even where it was willing,
to make a concession in the direction of meeting a union request, it did so on a.
unilateral basis , without attempting to secure the Union' s agreement to the.
contemplated change.40
Respondent seeks to ascribe its failure to reach agreement with the Union on
most of its proposals not to any lack of willingness to bargain, but to the limita-
tions imposed on Respondent's representatives by its certificate of incorporation,
and by the fact that the Pension Plan covered many employees not members
of the Union and involved large and long-term financial commitments. The fact
that any agreement which might be reached would be subject to approval by
Respondent's board of directors or stockholders does not, in the opinion of the
unde:signed, excuse Respondent from recognizing its obligation to bargain with
the Union and attempting to reach an agreement, and if such approval were neces-
sary, to submit the question of executing the contract to the board of directors
and stockholders.60 The undersigned finds it unnecessary to determine whether
action of the stockholders and/or the board of directors was required on all of
the various changes proposed by the Union. It is clear, however,-that this was
not the factor which prevented the parties from reaching an agreement, but
rather the unwillingness on the part of the Respondent's representatives to
recognize any obligation to bargain, and a lack of willingness to bind itself in
any positive way where the Pension flan was concerned.51
The fact that the Plan may have been complicated and involved large and long-
term obligations to varying groups of the Company's employees is likewise no
excuse for a refusal to recognize an obligation to bargain and from attempting,
97 Singer Manufacturing Company v. N. L. R. B., 119 F. 2d 131 (C. A. 7) ; Aluminum
Ore Company v. N. L. R. B., 13.1 F. 2d 485 (C. A. 7) ; N. L. R. B. V. Montgomery Ward,
133 F. 2d 676 (C. A. 9).
"$ Aluminum Ore Company v. N. L. R. B., supra.
19 Although the Union had been requesting Respondent not to deduct social security
payments from the benefits received under the Plan, when Respondent decided to make
some concession in that direction in the proposed Amended Plan, it was unwilling to
reveal the facts to the Union until notices had gone out to the stockholders , or to ascertain
whether the change was mutually agreeable. A letter to its employees, accompanying
the Amended Plan makes no reference to the Union 's part in securing any changes and
makes it clear that the amendments were adopted by the unilateral action of management.
(See Matter of The E. Biglow Company, 52 N. L. R. B. 999, 1002.) The same was true of
its action in establishing the $40 minimum. The employees were advised that it was
being contemplated, but no effort was made to negotiate any such change as a bargainable
matter.
50 Matter of Producers Produce Company, 23 N. L. R. B. 876, 902 ; Matter of Hirsch Mer-
cantite Company , 45 N. L. R. B. 377, 396.
--,'As previously mentioned, when the union representatives, being unable to secure
recognition of any bargaining obligation from Respondent's top officials, finally resorted
to an appeal to the stockholders, the president of the company informed the stockholders
that the company recognized no obligation to bargain on the Pension Plan and that it was
not it condition of employment.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in good faith, to reach an agreement. As stated by the Board in the Inland Steel
case:
There is no question that the bargaining task is a more difficult one where,
as is the case with Respondent, the actual negotiations may revolve around
an operating pension insurance scheme covering employees variously repre-
sented in many units. But . . . the difficulties in such case go to the
question of what terms may be agreed upon practically in the course of
bargaining, rather than to the question of whether any bargaining at all
.can take place.
'The Respondent, in support of its position that it did in fact bargain with the
Union cites various changes effected in the Plan as the result of the requests of
the Union. The short answer to this argument is that such changes as were
actually adopted resulted from the unilateral action on the part of the Respond-
ent, as a dispenser of largesse, and not as a result of good faith bargaining with
the Union. It may also not be amiss to point out that the Union did not, as
claimed by Respondent, "in large part gain its initial objectives with regard to
the plan." The changes in the rules and regulations by the board of directors
to include the straight-time portion of overtime compensation did not meet the
Union's request for inclusion of the overtime premium as well63 The inclusion
in the Amended Plan of a provision for a reserve fund did not meet the Union's
demand that an irrevocable trust be set up so that the employees would be
assured of their retirement benefits" The dropping of the provision for deduc-
tion of social security payments from the benefits received from the Plan was
accompanied by a dropping of the pension rate for employees earning under $3,000
from 11/2 percent to 1 percent. Similarly, although the board of directors author-
ized a $40 minimum monthly pension, it should not be overlooked that the Plan,
as amended in May 1947, had excluded a provision previously contained in the
1941 Plan which established $50 as the minimum monthly amount. Likewise,
no action was ever taken on the Union's request for a thrift feature similar to
the Esso Thrift Plan.
Finally, the Respondent points to the agreements which it signed with the
Union in December 1945 and January 1948 as showing that "Respondent was
willing to put into writing any agreement reached concerning the retirement of
employees or the Retirement Allowance Plan." The undersigned is unable to
find any basis in these agreements for the inference which Respondent seeks to
draw. The record discloses that subsequent to the expiration of the 1945 agree-
ment, the Union requested and Respondent refused to enter into bargaining
negotiations concerning the Plan, and discloses further that the Union renewed
its request in April 1948, which was again turned down by Respondent. Such
changes as were made in the Plan were undertaken unilaterally and Respondent
showed no disposition to enter into any agreement with respect to such changes.
13 See also the decision of the court of appeals in Inland Steel Company v. N. L. R. B.,
supra, where the court stated :
It is, therefore , our view that the Company 's retirement and pension plan, com-
plicated as it is asserted to be, must be treated and considered the same as any other
such plan.
Tenety testified that the Union was still objecting to the failure to include full over-
time compensation.
54 The provision setting up the reserve fund specifically permits the board of directors
to reduce or discontinue the reserve fund and to use any part thereof for general cor-
porate purposes.
TIDE WATER ASSOCIATED OIL COMPANY 1121
The only -provision in the 1945 and 1948 agreements referring to the Plan was
the so-called "Management Functions" clause. This clause does not purport to
recognize the Union's right to bargain with respect to the Plan and makes no
effort to meet any of the Union's demands. Respondent cites this clause in con-
nection with another of its arguments that the Union thereby waived its right
to bargain with Respondent concerning the Plan during the term of the 1948
agreement. If the clause has any efficacy at all, it is as a waiver of the Union's
bargaining rights, and as such, is discussed in the succeeding subsection where
that question is considered.
c. Has the Union waived its right to bargain?
Respondent argues that the "Management Functions" clause in the agreement
with the Union, signed on January 13, 1948, makes the retirement of employees
and the operation of the Plan exclusive functions of management and that,
accordingly, the Union has waived any requirement of law that Respondent
bargain with it during the term of this agreement concerning the retirement of
employees and the Plan.
The undersigned finds himself unable to agree that the "Management Func-
tions" clause has the effect ascribed to it by Respondent. With respect to the
Retirement Allowance Plan, the agreement provides merely that it "shall in no
way affect the operation of, or the status of any Employee with respect [thereto]."
A statement that the operation of the Plan and the status of employees with
respect to it should not be affected by the agreement can hardly be said to be a
recognition of management's exclusive jurisdiction over this subject and a
waiver of the right to bargain concerning it.
In support of its argument that such an effect was intended, Respondent calls
attention to the fact that this clause is headed "Management Functions" and
that the preceding section of this clause includes the "retiring of employees,"
among other things, as an exclusive function of management. In the opinion
of the undersigned, the fact that the clause is headed "Management Functions"
is inconclusive of an intent to waive bargaining rights with respect to the Plan
and to make it the sole prerogative of management. The reference to the
"retiring of employees" as an exclusive management function likewise does
not add any support to Respondent's position. This merely gives management
the right to determine when an employee's services shall be terminated because
of age. It does not necessarily follow that it was intended thereby to give
it exclusive control over the Plan which governs the benefits to be paid to such
an employee on retirement. Since the Plan contains no compulsory retirement
age provision,55 there is nothing necessarily inconsistent between the Union's
willingness to concede to Respondent, under the contract, exclusive control over
determining when an employee should be retired, while at the same time claiming
a right to bargain over the benefits payable upon retirement.
Respondent also calls attention to the fact that the agreement as signed
omitted the provision contained in the proposed contract submitted by the
Union in December 1946, that the Retirement Allowance Plan was to be a
matter for arbitration between the parties. Respondent argues that this is
indicative of an intent to make the matter one for the exclusive control of
' The Plan specifically provides that, "Retirement at age 65 is not compulsory." It
further provides for pensions in lesser amounts for employees with at least 20 years of
service who retire between ages 55 and 65.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
management. The undersigned does not find this a convincing argument. On
the contrary, the fact that the Union included a provision for arbitration in 'a
clause headed "Management Functions" indicates that it did not consider that
it was waiving any bargaining rights as to the matters for which arbitration
was requested, since the concept of arbitration is inconsistent with that of
exclusive management control. What this provision suggests is that the Union,
having been unable to get Respondent to agree to bargain on the Pension Plan,
at least wanted to be able to submit any differences concerning the Plan to
arbitration, but that Respondent was unwilling to do even this and so finally
the Union had to accept a clause similar to that in the 1945 agreement, which
provided merely that existing rights under the Plan would not be affected by
the agreement. At best, the management functions clause is ambiguous and
before so important a. matter as an intent to waive bargaining rights could
oe based upon it, much more convincing proof than exists in the record would
have to be forthcoming.66
In any event, even if the "Management Functions" clause specifically authorized
Respondent to act unilaterally with respect to the Plan, this would not excuse
Respondent's refusal to bargain under the circumstances here present, since it is
clear from the record that such refusal was not based on the contract but on
Respondent's fixed view that the establishment and operation of such a plan is
an exclusive management prerogative. The Board in the Inland Steel case held
that the question of whether a contract permits an employer to refuse to bargain
about a Pension Plan "is largely academic" where such refusal arises not from
the contract but from the employer's "fixed view that the establishment and
operation of such a program is a management function outside the scope of
collective bargaining rights granted employees under the, Act." n
Respondent indicates its awareness of this principle, but argues that its letters
of February 13 and April 30, 1948, make it clear that any refusal to bargain
on its part was intended to be limited to the period covered by the 1948 agree-
ment. The undersigned finds no basis in the correspondence for the construction
placed upon it by Respondent. The letter of February 13, 1948. refers to the fact
that the Plan in its amended form "has been in effect for less than one year"
and states that "Management believes that such limited period is insufficient to
justify the conclusion that the plan is inadequate." It further states that the
stockholders "will not favor any amendments at this time designed to extend
the' benefits rendered by the Plan in its present form, although after another
year's experience, they probably would give more favorable consideration to any
meritorious amendments." Respondent seeks to interpret the expression "after
another year's experience" as meaning another year's trial under the 1948 agree-
ment. Such an interpretation, in the opinion of the undersigned, represents an
obvious distortion of the meaning of the language used. When read in the
context, the year referred to is obviously the period since the Amended Plan was
adopted by the stockholders on May 1, 1947. The 1948 agreement and the 1-
year term thereof are not even remotely referred to in this letter.
66 It is significant that when the Union wrote to Respondent on April 14 , 1948 , request-
ing it to bargain on the Pension Plan , Respondent , in its reply of April 30, 1948, made
no reference to any claim that the Union had waived its bargaining rights with respect to
the Plan for that contract year.
6-, See also Matter of J. A. Allison & Company , 70 N. L . R. B. 377 , enforced 165 F. 2d
766 (C. A. 6), cert. den. 335 U. S. 814 , where the employer's refusal to bargain on merit'
increases was not limited to the period of an existing agreement.
TIDE WATER ASSOCIATED OIL COMPANY 1123
Respondent makes a similar argument based on the use of the expression "at
this time" in Respondent's subsequent letter of April 30, 1948. It argues that
the refusal to meet with the Union "at this time" was limited to the period of
the 1948 agreement. A reading of the expression referred to, in full contexti
makes it apparent that Respondent's refusal to bargain was based on a principle
which it believed to be correct, i. e, the nonbargainability of its Pension Plan,
as well as the fact that the contrary Board holding in the Inland Steel case
required final adjudication by the courts. The 1948 agreement is nowhere men-
tioned in this letter nor is there any suggestion that it even remotely played any
part in Respondent's refusal to bargain.
Aside from all other considerations, it is clear that Respondent had already
breached its obligation to bargain collectively prior to the adoption of the 1948
agreement." Since this breach involved a matter of the public interest, the Union
could not thereafter bargain away the violation merely by entering into the 1948
agreement.u9 While such an agreement might conceivably have excused a refusal
In bargain based on an express provision making the Plan an exclusive manage-
ment prerogative, and limited to the term of such agreement, it could not excuse
preexisting refusal to bargain.
d. The dismissal of complaint as to an.fai,r labor practices occurring prior to
February 6, 1948
Respondent claims that any unfair labor practices which occurred more than
(4 months prior to the (late of the serving and filing of the amended charge a,
cannot, under Section 10 (b) of the Amended Act, serve as the basis for the issu-
ance of a complaint. He therefore moves that the allegations of the complaint
charging refusal to bargain on December 10, 1946, and at various times thereafter
up to February 6, 1948, be dismissed. The General Counsel contends, on the
other hand, that the amended charge is merely a refinement of the original
charge, relating the refusal to bargain more specifically to the Retirement Allow-
ance Plan and bringing the charge up to date by adding the refusal to bargain
on April 30, 1948. Since the original charge was timely served and filed," the
General Counsel contends that the complaint could properly issue based on the
unfair labor practices occurring as early as December 10, 1946.
Prior to the amendment of Section 10 (b), it was recognized that a charge was
not a pleading but that its primary purpose was to set in motion the machinery
of inquiry by the Board.02 It was also well settled that every single element
in a complaint issued by the Board need not be covered by the charge as filed .63
ca As has already been found, the Respondent refused to bargain on the Pension Plan
at the meeting held February 11, 1947, in Humphrey's office. This refusal was repeated
Oil several occasions thereafter in 1947, both expressly and by implication in the adoption
of unilateral changes in the Plan.
11 Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678, 687.
80 As previously mentioned, the amended charge was filed on August 6, 1948, and a, copy
thereof served on Respondent, on August 10, 1948.
-" The original charge, as mentioned above, was filed on February 17, 1947, and a copy
thereof served on Respondent on or about June 27, 1947. The Board has previously held
that the limiting language in Section 10 (b) does not prohibit the issuance of a complaint
in any case in which the charge was filed and served before or within 6 months after
August 22, 1947. Matter of Vanette Hosiery Mills, 80 N. L. R. B. 1116 ; Matter of Hillsboro
Cotton Mills, 80 N. L. R. B. 1107; Matter of Itasca Cotton Manufacturing Company, 79
N. L. R. B. 1442.
e2 N. L. R. B. v. Indiana and Michigan Electric Company, 318 U. S. 9.
National Licorice Company v. N. L. R. B., 309 U. S . 350 ; Consumers Power Company
v. N. L. R. B., 113 F. 2d 38 (C. A. 6).
857829-50-vol. 85 72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence in the language or legislative history.of the amended Section
10 (b) which discloses a Congressional intent to establish stricter requirements
as to the contents of a charge. The recognized purpose of this amendment was
to outlaw "stale" charges by providing that no complaint should be issued where
the charge was not filed and served within 6 months after the unfair labor prac-
tices occurred. All that is required under that section, in the opinion of the
undersigned, is a sufficient identification in the charge of. the subject matter of
the claimed unfair labor practice so that it can be said that the cause of action
alleged in the complaint bears a recognizable relationship to the matters set forth
in the charge. The Board in several decisions recently issued has indicated that
it will construe Section 10 (b) liberally in the direction of finding a relationship
between the acts identified generally in the charge and those more precisely
spelled out in the complaint.64
Respondent, here, disputes the General Counsel's contention that the amended
charge is merely a refinement of the original charge.s' Ile claims that it is clear
from the original charge that the refusal to bargain grew out of negotiations
over the contract submitted on behalf of the so-called "big unit" and involved a
refusal to bargain on January 3 and 8, 1947, based on Respondent's alleged
insistence that negotiations be restricted to its counterproposal, whereas the
amended charge was based on the refusal to bargain with three other units on
December 10, 1946, and thereafter with respect to the Pension Plan. Respondent,
therefore, contends that the original charge did not sufficiently put it on notice
as to what the Union was claiming.
In support of its position, Respondent relies, in part, upon the testimony in
the record. In the opinion of the undersigned, the question of the sufficiency
of the original charge as the basis for the issuance of the complaint is a question
to be decided dehors the testimony , upon an examination of the charge and the
complaint. However, if reference may properly be made to the testimony, its
effect is to support a conclusion that Respondent had definite knowledge before
the effective date of the Amended Act that the refusal to bargain referred to
in the original charge included, among other things, a refusal to bargain on
the Pension Plan. The testimony discloses that in the meeting held at the
Board's Regional Office shortly after the filing of the original charge, the
question of the Respondent's refusal to bargain on the Pension Plan was
specifically raised, and McCue, attorney for Respondent, replied in answer to
a question propounded by the Union's attorney that the Company did not regard
it as a bargainable matter. -
a' In Matter of Morristown Knitting Mills, 80 N. L . R. B. 731, a charge alleging a dis-
criminatory discharge was held sufficient to support a complaint based on such discharge
and containing also additional allegations of acts of interference, restraint, and coercion
not referred to in the charge . To the same effect see Matter of Biggs Antique Company,
Ine., 80 N. L. R. B. 345 ; and Matter of S. TV. Evans & Sons, 81 N. L. R. B. 161.
0-5 Respondent also contends that even if the amended charge may be regarded as a mere
refinement of the original charge , the complaint should be dismissed because of the un-
reasonable delay in issuing a complaint . Respondent indicates its awareness of the fact
that prior to the enactment of the Labor Management Relations Act the doctrine of
lathes was uniformly held to be inapplicable to Board proceedings , but claims that the
legislative history of the Amended Act evinces a contrary intention, citing a portion of the
House Conference Report which explains why the requirement for issuance of a complaint
within 6 months was dropped from the final bill. The undersigned finds no support, in the
language cited or in any other portion of the legislative history, for the position urged by
Respondent.
TIDE WATER ASSOCIATED OIL COMPANY 1125
In any event , the undersigned is of the opinion from an examination of the
complaint and the charges that the original charge sufficiently identifies the
subject matter of the unfair labor practices charged against Respondent to
justify the issuance of the complaint in this case, and the fact that the Union
filed an amended charge, more specifically identifying the subject matter of
the original charge and including a more recent refusal to bargain, is no basis
for concluding that there is any substantial difference between the charges.
The original charge refers to December 10, 1946, as the date of one of the
bargaining meetings between the Union and Respondent. It likewise contains
a broad allegation of refusal to engage in collective bargaining with the Union,
including a statement that "it [Respondent] has refused since-January 8, 1947
to agree to a meeting with the Union representatives for the purpose of discussing
the terms of a collective bargaining contract." This, in the opinion of the under-
signed, is sufficient to cover a possible refusal to bargain with respect to the
Pension Plan on December 10, 1946, as well as thereafter on February 11, 1947.°°
To require greater specificity in the charge would be to require that it serve a
function that it was not intended to have. Respondent's motion is, therefore,
denied 87
Summary
The undersigned finds that the Respondent by its persistent attitude, ex-
pressed to the Union on February 11, 1947, and at various times thereafter in
1947 and again on April 30, 1948, that its Retirement Allowance Plan and
pension policies were not.bargainable matters; by its refusal to negotiate and
bargain with the Union on its Retirement Allowance Plan or any amendments
or changes therein on February 11, 1947, and at various times thereafter in 1947
and again on April 30, 1948; by its unilateral action in amending the Retirement
Allowance Plan on or about May 1, 194-7; and by its unilateral action in estab-
lishing a special temporary minimum allowance of $40 per month under the
Plan on or about February 26, 194S, has failed and refused to bargain collec-
tively, and has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act and the Amended
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.
It has been found that the Respondent by rigidly maintaining that its Retire-
ment Allowance Plan and pension policies are not the subject of collective
sa The latter is the date that the Union met with Humphrey and was informed that he
did not consider the Plan a negotiable matter.
67 It may be noted that the refusal to bargain on April 30 , 1948 , mentioned in the amended
charge, is alone sufficient to sustain a finding of refusal to bargain.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining, and by acting unilaterally with regard to its Retirement Plan and
without consulting with the Union on this subject, has refused to bargain
collectively. In order to effectuate the policies of the Act it will be recom-
mended that the Respondent be required, upon request, to bargain collectively
with the Union, as the exclusive representative of its employees in the appro-
priate units, with respect to its Retirement Allowance Plan and pension program
and to refrain from making any unilateral changes with respect to its Retire-
ment Allowance Plan and pension program which affect any of the employees in
the' units here represented by the Union, without prior consultation with the
Union.G6
Because of the. basis of Respondent's refusal to bargain, as indicated in the
facts found, and because of the absence of any evidence that danger of other
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. However, it will be
recommended that the Respondent cease and desist from the unfair labor prac-
tices found and from in any manner interfering with the efforts of the Union to
bargain collectively with it.°B
Upon the basis of the above findings of fact and upon the entire record in this
case, the undersigned makes the following :
CONCLUSIONS of LAW
1. The Employees' Association, Inc. (Independent), is a labor organization
within the meaning of Section 2 (5) of the Act and the Amended Act.
2. The following groups of employees, respectively, at Respondent's Bayonne
p'.ant (exclusive of supervisors and administrative, professional, and confiden-
tial employees) constitute appropriate units for the purpose of collective bar-
gaining within the meaning of Section 9 (b) of the Act and the Amended Act:
(a) all office and clerical employees in the manufacturing, engineering, and ac-
counting departments; (b) all laboratory employees in the manufacturing de-
partment; (c) all employees in the research and development department.
3. The Employees' Association, Inc., is now, and during all times material
herein has been, the exclusive representative of all of the employees of the
Respondent in all the units hereinabove found to be appropriate, within the
meaning of Section 9 (a) of the Act and the Amended Act.
4. By refusing to bargain collectively with The Employees' Association, Inc.,
as exclusive bargaining representative of all of its employees in the aforesaid
appropriate units, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (5) of the Act and Section 8 (a) (5) of
the Amended Act.
"At the conclusion of the hearing Respondent moved to sever and dismiss the com-
plaint insofar as it relates to a refusal to bargain with the Union with respect to persons
retired from employment by Respondent . In its brief Respondent requests that it be not
ordered to bargain with the Union in respect to such retired employees. The undersigned
finds it unnecessary to rule upon this request since the refusal to bargain alleged in the
complaint is a refusal to bargain with the Union as the exclusive representative of employees
in the specific units described above, in respect to the Pension Plan of Respondent affect-
ing such employees. The complaint does not allege nor does the testimony disclose that
the refusal to bargain charged is one with respect to employees already on the retirement
rolls. It is therefore unnecessary to pass upon the question of whether Respondent is
required to bargain with respect to such employees.
69 Cf . N. L. R. B . v. Express Publishing Company , 312 U . S. 426.
TIDE WATER ASSOCIATED OIL COMPANY 1127
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
Amended Act and thereby has engaged in and is engaging in unfair labor practices
.with the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the
Amended 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 and Amended
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, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with respect to its Retirement Allow-
ance Plan and pension program with The Employees' Association, Inc., as the
exclusive representative of all its employees in the units hereinabove found to
be appropriate;
(b) Making any unilateral changes in its Retirement Allowance Plan and
pension program affecting the employees in the above-described appropriate
units without prior consultation with The Employees' Association, Inc.;
(c) In any manner interfering with the efforts of The Employees' Association,
Inc. to bargain collectively with it.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with respect to its Retirement Allow-
ance Plan and pension program with The Employees' Association, Inc., as the
exclusive representative of all employees in the aforesaid appropriate units and,
if an understanding is reached, embody such understanding in a signed agree-
ment if requested by The Employees' Association, Inc.;
(b) Consult with The Employees' Association, Inc. prior to taking any action
which would affect the employees in the aforesaid appropriate units with respect
to the terms and provisions of its Retirement Allowance Plan and its pension
program ;
(c) Post at its plant at Bayonne, New Jersey copies of the notice hereto
attached and marked Appendix A. Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being duly signed
by 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 em-
ployees 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 ;
(d) Notify the Regional Director for the Second Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report
-of the steps the Respondent has taken to comply therewith.
It is further recommended that, unless the Respondent shall within twenty
''(20) clays from the receipt of this Intermediate Report notify said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring
the case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building, Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report and Recommended Order 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 six copies of a brief in support
thereof; and any party may, within the same period, file an original and six
copies of a brief in support of the Intermediate Report and Recommended Order.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Statements of exceptions and briefs shall designate by precise citation the
portions of the record relied upon and shall be legibly printed or mimeographed,
and if mimeographed shall be double spaced. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46 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.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and rec-
ommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 10th day of February 1949.
JOHN LEwis,
Trial Examiner.
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 Labor
Management Relations Act, 1947, we hereby notify our employees that:
WE wui bargain collectively, upon request, with The Employees' Asso-
ciation, Inc., as the exclusive representative of all the employees in the
bargaining units described herein with respect to our. Retirement Allowance
Plan and pension program.
WE WILL NOT in the future make any unilateral changes in our Retirement
Allowance Plan and pension program affecting any employees in the bar-
gaining units described herein without prior consultation with the above-
named Union.
WE WILL NOT in any manner interfere with the efforts of the above-
named .Union to bargain with us.
The bargaining units consist of the following groups of employees , respec-
tively, at this company's Bayonne plant, excluding supervisors and admin-
istrative, professional, and confidential employees :
(1) all office and clerical employees in the manufacturing, engineering,
and accounting departments ;
TIDE WATER ASSOCIATED OIL COMPANY 1129
(2) all laboratory employees in the manufacturing department ;
(3) all employees in the research and development department.
TIDE WATER ASSOCIATED OIL COMPANY,
Employer.
By ------------------------------------------
(Representative ) (Title)
Dated ----=--------------
This notice must remain posted for sixty (60) days from the date hereof and
must not be altered, defaced, or covered by any other material.