National Heat and Power Corp.

National Labor Relations Board - Board Decisions

Feb 26, 1973

201 N.L.R.B. 1019 (N.L.R.B. 1973)

NATIONAL HEAT AND POWER CORP. 1019
National Heat and Power Corp . and Local 553,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 29-CA-2069
February 26, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On May 25, 1972, Administrative Law Judge 1
William J. Brown issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and both the General
Counsel and the Charging Party filed cross-excep-
tions with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The complaint alleges, in substance, that Respon-
dent National Heat was a successor to National Fuel
and that Respondent assumed National Fuel's
collective-bargaining agreements and subsequently
violated Section 8(a)(5) and (1) of the Act by refusing
to calculate vacation allowances based on total
length of service under both companies.
Briefly, the facts show that the Union in dealing
with National Fuel and the Respondent has repre-
sented three units of employees: fuel oil drivers since
1955, mechanics since 1961, and dispatchers since
1968. The collective bargaining producing these
agreements has generally been industrywide with the
employers represented by the New York Oil Heat
Association. Although National Fuel was never a
member of the employer association, it appears at all
material times to have agreed to be bound by the
contracts derived from the Association-Union bar-
gaining. On December 15, 1968, the industrywide
contracts expired for the three separate units, and a
citywide strike ensued until December 22, 1968,
when the Union and the Association reached
agreement on a new contract. Although National
Fuel did not formally sign the new agreements
reached between the Association and the Union, it
agreed to be bound and did in fact observe all the
terms and conditions of those agreements.
Sometime in December 1968 or January 1969
Respondent National Heat was incorporated, and it
thereafter acquired the office building, garages, and
most of the equipment formerly owned by National
Fuel. In mid-February 1969, and without any hiatus,
Respondent employed substantially all of National
Fuel's employees and began distributing fuel to most
of the former customers of National Fuel. In March
1969 National Fuel was entered into involuntary
bankruptcy. The Respondent continued to observe
all of the terms and conditions agreed to in the
industrywide contracts of December 1968, and in
May 1969, when those contracts became available in
printed form, Respondent formally signed copies.
The aforementioned contracts included a broad
arbitration clause and a clause referring to the
determination of accrued seniority under a succes-
sor.2 In addition, the signed May agreements
indicated that they were retroactively effective from
December 16, 1968, and that they would expire on
December 15, 1970.
In the fuel oil industry vacation pay for a calendar
year is customarily paid the following spring. Thus,
in April 1970, several of Respondent's employees
made their application for vacation pay for the
previous year. When the Respondent indicated that
it would figure vacations solely on the employees'
length of service with Respondent and would not
credit service previously earned under National Fuel,
the Union protested. The Respondent answered that
since it was not a successor to National Fuel, it was
not obligated to pay vacations based on seniority
accrued under that company. The Union claimed
that not only was Respondent a successor, but in
addition it had voluntarily assumed the contracts
that National Fuel had been enforcing, and those
contracts obligated Respondent to pay vacations
according to seniority accrued under both compa-
nies. The Respondent offered to arbitrate the issue;
however, the Union declined and filed unfair labor
practices involving Respondent's alleged unilateral
actions.
1. The Administrative Law Judge found, and we
agree, that Respondent is a successor to National
Fuel. As pointed out earlier, substantially all the
employees remained the same, the real estate and
most of the equipment were the same, most of the
customers remained the same, and there was an
overlapping of corporate officers. In addition, the
Administrative Law Judge credited testimony by
Union Business Agent Bernard Pelegrino that Mau-
rice Wolf, one of the overlapping corporate officers,
stated that everything would remain in status quo
I The title of "Trial Examiner" was changed to "Administrative Law Any successor, heir, or assign of the Employer concerned herein
Judge" effective August 19, 1972. shall assume full responsibility for the accrued vacation time and the
2 The three contracts contained the following clause Employees concerned shall be granted their vacations accordingly.
201 NLRB No. 150
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the men would get everything coming to them.
We therefore conclude that the employing industry
remained essentially the same despite the change in
ownership.3
2. The Administrative Law Judge also found that
the Respondent voluntarily assumed the contracts
that National Fuel had been enforcing when it
ceased to exist. We disagree, however, as the
evidence relied on by the Administrative Law Judge,
the affidavit of National Heat's chairman of the
board, Howard Ross, is in our view insufficient to
support such a finding. The only evidence of the
above affidavit in the record is the reading of several
sections of it by the General Counsel during the
examination of Ross. The General Counsel asked:
Q. Isn't it true also that when National Heat
took over in March 1969, it assumed and
continued to enforce the collective bargaining
agreements between Local 553, IBT and National
Fuel which covered the dispatchers, drivers and
mechanics?
A. That is not correct.
Although admitting that he did indeed make the
statements read by the General Counsel, Ross denied
their validity claiming that he had not comprehended
the implications of the words of art included in the
affidavit. We find the above evidence insufficient to
support the Administrative Law Judge' s finding of
an explicit assumption of the predecessor's unsigned
contracts.
3. At the hearing and in its brief to the Adminis-
trative Law Judge the Respondent argued that the
Administrative Law Judge should withhold the
Board's adjudicatory power and defer the dispute to
arbitration under the Collyer4 doctrine. The Admin-
istrative Law Judge found that Collyer was not
controlling because that case involved special skills
and expertise needed to administer the agreement,
whereas the instant case involved the mere applica-
tion of a mechanical formula respecting vacation
allowance. Respondent excepted to this finding. We
find, in agreement with Respondent, that this
involves essentially a dispute over the terms and
meanings of the contracts between the Union and
Respondent. The parties signed contracts for each of
the three units in May 1969, and those contracts
contained identical provisions pertaining to the
computation of vacation pay. The contracts also
contained provisions which provided that any differ-
ence or dispute arising during the life of the
agreement or regarding any other grievance between
the parties which cannot be adjusted by the Union
and the concerned employer were to be submitted to
binding arbitration. Therefore when a dispute arose
over the meaning of the vacation pay provision, the
contract provided a remedy. Accordingly, for the
reasons set forth in Collyer, we conclude that the
policy of promoting industrial peace and stability
through collective bargaining warrants our requiring
the parties to honor the contractual grievance and
arbitration obligation that they themselves have
voluntarily established under binding commitment,
and we shall issue an order to that effect.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
herein be , and it hereby is, dismissed ; provided,
however, that:
Jurisdiction of this proceeding is hereby retained
for the limited purpose of entertaining an appropri-
ate and timely motion for further consideration upon
a proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this
Decision , either been resolved by amicable settle-
ment in the grievance procedure or been submitted
promptly to arbitration , or (b) the grievance or
arbitration procedures have not been fair and regular
or have reached a result which is repugnant to the
Act.
MEMBER JENKINS , dissenting: -
For the reasons expressed in the Administrative
Law Judge's Decision and in my dissents in Collyer
and its progeny, I would not defer this case to
arbitration , but would determine this case on the
merits.
3 See, e .g., Cruse Motors, Inc., 105 NLRB 242, 247.
4 Collyer Insulated Wire, a Gulf and Western Systems Company, 192
NLRB No. 150.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM J . BROWN, Trial Examiner : This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended , hereinafter sometimes referred to as the Act,
came on to be heard at Brooklyn, New York , on March 6,
1972. The original charge of unfair labor practices was
filed July 17, 1970, by the above- indicated Charging Party,
hereinafter sometimes referred to as the Union; the
complaint herein was issued May 26, 1971, by the General
Counsel of the National Labor Relations Board, acting
through the Board 's Regional Director for Region 29. It
alleged , in addition to jurisdictional matter , that the above-
captioned Respondent , hereinafter sometimes referred to
as the Company, engaged in unfair labor practices
affecting commerce within the purview of Sections 8(aX5)
and (1) and 2(6) and (7) of the Act. The Company's duly
filed answer admits the jurisdictional allegations of the
complaint , but denies the commission of the unfair labor
practices therein alleged.
At the hearing the parties appeared and participated, as
NATIONAL HEAT AND POWER CORP. 1021
noted above, with full opportunity to present evidence and
argument on the issues. Subsequent to the close of the
hearing the General Counsel, the Respondent Company,
and the Charging Party filed written briefs which have
been fully considered. On the entire record herein and on
the basis of my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
The pleadings and evidence establish that the Company,
a corporation organized and existing under and by virtue
of the laws of the State of New York, maintains its
principal office and place of business at Maspeth in the
Borough of Queens in the City and State of New York,
where it is engaged in the retail sale and distribution of fuel
oils and related products. During the calendar year
immediately preceding issuance of the complaint herein,
admittedly a representative period, the Company's gross
operating revenues exceeded $500,000 and its direct
interstate purchases of fuel oils and other goods exceeded
$50,000. I find, as the Company concedes, that it is an
employer engaged in commerce within the purview of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish and the Company
concedes that the Union is a labor organization within the
purview of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The General Counsel alleges in this case, and the
Company denies, that the Company was a successor to a
corporation known as National Fuel Terminals, Inc.,
following that Company's involuntary bankruptcy in
March 1969, assumed and signed the three bargaining
agreements covering units of drivers, mechanics, and
shippers respectively, but from and after April 15, 1970,
unlawfully refused to pay vacation pay based on total
seniority including that with the predecessor, hereinafter
National Fuel, and the Company. The Company denies the
commission of unfair labor practices and, alternatively,
urges that the question presented is one which should be
left for resolution under the grievance and arbitration
clauses of the agreement between the parties.
Since 1955 the Union had a collective-bargaining
relationship with National Fuel covering a unit of fuel oil
drivers; bargaining with respect to National Fuel's me-
chanics dates from 1961 and agreements covering the unit
of dispatchers date from 1968. The collective bargaining
producing these agreements has generally been industry-
wide with employers represented by the New York Oil
Heat Association. Although National Fuel was not a
member of the employer association, it appears, at all
material times, to have agreed to be bound by the
Association-Union bargaining. In accord with this estab-
lished policy of National Fuel's observing the association-
wide contracts, that company regarded itself as bound by
and observed the provisions of the three industrywide
agreements in evidence as General Counsel 's Exhibits 2A,
B, and C. On the expiration of these agreements National
Fuel agreed to be bound by such agreements as might
result from the associationwide bargaining and when
agreement between the Association and the Union was
reached on December 22, 1968, National Fuel observed all
terms and conditions of the agreement , although it never
signed the Association agreement and was not a member
of the Association.
Sometime in December 1968 or January 1969, National
Heat was incorporated and thereafter engaged in the retail
sale and distribution of fuel oil, having previously acquired
the office building and garages formerly owned and used
by National Fuel. National Heat also acquired most of
National Fuel's trucks . An affidavit of Howard Ross, the
Company's board chairman , establishes that the Company
assumed and enforced the existing agreements covering the
three established units of servicemen , drivers, and mechan-
ics from and after March 1969.1
In April 1970 the Company advised employees that they
would receive vacation pay based solely on the basis of
their length of service with the Company and without
credit for service previously earned with National Fuel. In
response to union protests, the Company's bargaining
representative , Hyaman Isaacs , stated that the Company
was not a successor of National Fuel. It should be noted
that the collective-bargaining agreement at all material
times contained a provision to the effect that , with respect
to the annual vacation allowance,
Any successor, heir or assign of the Employer
concerned herein shall assume full responsibility for the
accrued vacation time and the Employees concerned
shall be granted their vacations accordingly.
In the instant case the General Counsel alleges the
commission of unfair labor practices within the scope of
Section 8(a)(5) and (1) of the Act in National Heat's
refusal, from and after April 15, 1970, to comply with the
provisions of the agreement requiring the Company to pay
vacation pay on the basis of total length of service with
both National Fuel and National Heat.
It seems clear that the Company is a successor to
National Fuel both in a legal and in a realistic sense. The
Company was organized with an overlapping of corporate
officers from National Fuel. In addition, as appears from
the credited testimony of Union Business Agent Pelegrino,
Maurice Wolf, an officer of both companies , informed the
Union that the new incorporation amounted to no more
than a change in name, that everything else would remain
in status quo, and the men would get everything coming to
them. Furthermore, National Heat took over National
Fuel's real estate and trucks and continued to serve the
same customers.
The evidence appears quite clearly to preponderate in
favor of the conclusion that National Heat is a successor to
the bargaining relationship formerly existing between the
Union and National Fuel within the rule of William J.
' The express assumption of the agreement distinguishes the instant case
from the factual pattern involved in N LR B. v. Burns International Security
Services, 406 U.S. 272.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burns International Detective Agency, 182 NLRB 348.
National Heat's refusal to abide by the terms and
conditions of the agreement relating to the computation of
vacation time constituted a refusal to recognize its errors
and implied obligations as a successor to National Fuel's
commitments respecting computation of vacation pay and
amounted to a refusal to bargain within the rule of William
J. Burns, supra.
There remains the question as to whether the Board
should withhold its adjudicatory hand in view of the
availability of the grievance and arbitration procedures of
the existing agreement . In this regard the Company points
to the Board's decision in Collyer Insulated Wire, 192
NLRB No. 150 , as requiring defense to arbitration of the
issue relating to computation of the vacation allowance. It
clearly appears , however , from the Board's Decision in
Collyer that the Board regarded the issues in that case as
involving, inter alia, special skill and expertise in adminis-
tration of the agreement rather than , as here , the issue of
the obligation of a successor to recognize the Union and
apply the mechanical formula respecting vacation allow-
ances . I conclude that the case is not one where the Board
should defer to arbitration.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor practices,
occurring in connection with the business operations of the
Company as set forth 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 thereof.
V. THE REMEDY
In view of the findings set forth above to the effect that
the Company has engaged in unfair labor practices
affecting commerce , it will be recommended that it be
required to cease and desist therefrom and from like or
related unfair labor practices and take such affirmative
action as appears necessary and appropriate to effectuate
the policies of the Act , including the payment of vacation
allowances due from and after April 15, 1970, in amounts
reflecting length of service with both National Heat and
National Fuel, with annual interest on such supplemental
vacation allowances at the rate of 6 percent per annum
from April of each vacation year from 1970 to the date of
payment.
On the basis of the foregoing findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the purview of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the purview
of Section 2(5) of the Act.
3. By refusing from and after April 15, 1970, to make
vacation allowance payments on the basis of total length of
service with both National Fuel and National Heat, the
Company has refused to bargain with the Union and has
engaged in unfair labor practices defined within the scope
of Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]