Tidewater Oil Co.

National Labor Relations Board - Board Decisions

Mar 30, 1965

151 N.L.R.B. 1288 (N.L.R.B. 1965)

1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tidewater Oil Company and Local 341, United Marine Division,
National Maritime Union , AFL-CIO. Case No. 2-CA-10238.
March 30, 1965
DECISION AND ORDER
Upon a charge filed on September 11, 1964, by Local 341, United
Marine Division, National Maritime Union, AFL-CIO, herein called
the Union, against Respondent, Tidewater Oil Company, and duly
served on Respondent on or about September 12, 1964, the General
Counsel for the National Labor Relations Board, by the Regional
Director for Region 2, on September 30, 1964, issued and served upon
the parties herein a complaint and notice of hearing. The com-
plaint alleges that Respondent had engaged in and was engaging
in certain unfair labor practices affecting commerce within the
meaning of Section 8(a) (1) and (5) and Section 2(6) and (7) of the
National Labor Relations Act, as amended.
With respect to the unfair labor practices, the complaint alleges
that on or about August 19, 1964, the Union was duly certified by
the Board 1 as the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropriate by the Board
and that since on or about August 26, 1964, Respondent has refused
to recognize or bargain with the Union as such exclusive bargaining
representative although it has been requested to do so.
On November 6, 1964, all parties to this proceeding entered into a
stipulation wherein they agreed as to the contents of the record in
this case 2 and to the submission of this case to the Board for Find-
ings of Fact, Conclusions of Law, and a Decision and Order. The
parties waived hearing before a Trial Examiner, the issuance of a
Trial Examiner's Decision, and the filing of briefs with the Board.
1 Case No. 2-RC-12996.
2 The record as stipulated to by the parties consists of the stipulation and the follow-
ing Charge, complaint and notice of hearing, respondent's answer and the formal record
in Case No. 2-RC-12996, including the petition filed October 4, 1963 ; stipulation for
certification upon consent election approved October 15, 1963 ; tally of ballots issued
November 8, 1963 ; report on challenges dated December 27, 1963 ; the affidavit of service
of said report verified December 27, 1963, with registered mail return receipts attached ;
letter dated January 2, 1964, from C J Head to Ogden W. Fields, Executive Secretary
of the Board, requesting an extension of time to file exceptions to the Regional Direc-
tor's report on challenges ; telegram from Howard W. Kleeb, Associate Executive Secre-
tary of the Board, to C. J Head extending time to January 17, 1964, for receipt of
exceptions ; exceptions of Tidewater Oil Company to the report on Challenges and Rec-
ommendations of the Regional Director ; Order of the Board directing hearing on the
challenges, dated February 4, 1964 ; notice of hearing dated February 13, 1964, issued by
the Regional Director ; affidavit of service of notice of hearing verified February 13,
1964, with registered mail return receipts attached ; order rescheduling hearing, dated
February 28, 4964; transcript of hearing held March 25 and 26 and April 7, 8, 14, and
15, 1964, and all exhibits introduced into evidence at said hearing; Hearing Officer's
report on challenged ballots and Recommendations, dated May 14, 1964; exceptions of
Local 341 to the Hearing Officer's report ; exceptions and brief of Tidewater Oil Company
in respect to the Hearing Officer's report, dated June 5, 1964 ; Decision and Certification
of Representative dated August 19, 1964 ; Affidavit of Service of Decision and Certifica-
tion of Representative with return receipts attached.
151 NLRB No. 128.
TIDEWATER OIL COMPANY 1289
On November 20, 1964, the Board issued an Order approving stipu-
lation and transferring case to the Board.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman
McCulloch and Members Brown and Jenkins].
Upon the basis of the foregoing stipulation and the entire record
in this case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The complaint alleges, the parties have stipulated, and we find that
Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act. We further find that Respondent is en-
gaged in the manufacture, sale, and distribution of petroleum and
related products in various States of the United States and that, dur-
ing the past year, it manufactured, sold, and distributed products
valued in excess of $50,000, which were shipped from its various
places of business directly to States of the United States other than
the State or States in which such places of business are located. We
therefore find that it will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 341, United Marine Division, National Maritime Union,
AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On October 4, 1963, the Union filed a petition in Case No. 2-RC-
12996, seeking certification as exclusive bargaining representative of
certain employees of Respondent at its Newburgh, New York, plant.
Thereafter, the parties entered into a stipulation for certification
upon consent election, pursuant to which an election by secret ballot
was held on November 8, 1963, under the direction and supervision
of the Regional Director for Region 2, among the employees in the
unit described below. The tally of ballots showed that three ballots
were cast for, and two against, the Union, and that two ballots were
challenged by the Union, which challenges were sufficient in number
to affect the results of the election.
The Regional Director, acting pursuant to the Board's Rules and
Regulations, Series 8, as amended, investigated the challenges and
on December 27, 1963, issued his report thereon in which he recom-
mended that the challenges to the two ballots be sustained, and that
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the petitioning Union be certified as the representative of the em-
ployees in the unit. The Respondent filed timely exceptions to the
report.
On February 4, 1964, the Board issued an order directing that a
hearing be held before a Hearing Officer, to be designated by the
Regional Director, to resolve the issues raised by the Regional
Director's report and recommendations with respect to the challenges
and Respondent's exceptions thereto. Pursuant thereto, a hearing
was held at Newburgh, New York, before Hearing Officer, Milton
Pravitz on March 25 and 26 and April 7, 8, 14, and 15, 1964. All
parties appeared and participated at the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to adduce
evidence bearing upon the issues, was afforded all parties, with the
right to file briefs .3
On May 14, 1964, the Hearing Officer issued and served upon all
parties his report on challenged ballots and recommendations in
which he recommended that the challenge to the ballot of H. Cornell
be sustained but that the challenge to the ballot of Joe White be
overruled. The Union and Respondent filed timely exceptions to
the Hearing Officer's report.
Thereafter, the Board, after due consideration of the entire record
in Case No. 2-RC-12996, including the transcript of the hearing, the
exceptions, and briefs, issued its Decision on August 19, 1964, in
which it adopted the recommendation of the Hearing Officer with
respect to the ballot of H. Cornell, but, contrary to the Hearing
Officer, sustained the challenge to the ballot of Joe White.4 Accord-
ingly, as the Union had received a majority of the ballots of the
eligible employees , the Board certified the Union as the exclusive
collective-bargaining representative of Respondent 's employees in the
unit set forth below.
On August 25, 1964, the Union requested Respondent to bargain
with it as the exclusive bargaining representative of the employees
in the certified unit. On August 26, 1964, Respondent refused to bar-
8 Cf N.L.R.B. v The Joclsn Manufacturing Company , 314 F . 2d 627 ( CA. 2), setting
aside , vacating , and remanding 137 NLRB 216 , where the Board had not ordered a
hearing to resolve the issues raised by the challenged ballots
4 The unit to which the parties hereto had stipulated , In Case No . 2-RC-12996, in-
cluded " all operating employees , including maintenance mechanics . . at the Employ-
er's Newburgh, N.Y., plant" [Emphasis supplied ] Despite discussions between the
parties as to whether certain named employees , White among them, should be included
in the unit, the stipulation reflected no agreement as to any named individual employee
who might he included in the c,itegoiy quoted fiam the stipulation the pirties (after
describing a category which they agreed had the requisite community of interest) impliedly
committed to the Board the determination of whether White fitted that category by being
employed in such a position at that plant Accordingly, the Boaid has found that
White, who performed the great majority of his work away from Newburgh, had no
"community of Interest with the operating employees at the Newburgh plant " and ex-
cluded him from the unit . Cf. N.L R.B. v. The Joclin Manufacturing Company , supra,
a similar factual situation but In which the stipulated unit contained no geographical
limitation to a particular plant or area.
TIDEWATER OIL COMPANY 1291
gain with the Union, contending, as set forth in a letter of that date,
that the certification was invalid in that the Board was in error in
sustaining the challenge to the ballot of White.
The appropriate unit
The parties stipulated, and the Board found, in Case No. 2-RC-
12996, which finding we adopt herein, that the following employees
of Respondent constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act :
All operating employees, including maintenance mechanics,
truckdrivers, and warehouse-yardmen at Respondent's New-
burgh, New York, plant, excluding all nonoperating employees,
including confidential field stenographers, office clericals, guards,
watchmen, professional, and supervisory employees, as defined in
the Act.
Conclusion
We find that the Respondent has refused to bargain, upon request,
with the Union which has been duly certified as the bargaining repre-
sentative of its employees in an appropriate unit. Accordingly, we
find that the respondent has violated Section 8(a) (1) and (5) of
the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts of Respondent described in section III, above, occurring
in connection with its operations, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof, and thus constitute unfair labor
practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a) (1) and (5) of the Act, we
shall order the Respondent to cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
purposes of the Act.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, we make the following :
CONCLUSIONS OF LAW
1. Tidewater Oil Company is an Employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 341, United Marine Division, National Maritime Union,
AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. All operating employees, including maintenance mechanics,
truckdrivers, and warehouse-yardmen at Respondent's Newburgh,
New York, plant, excluding all nonoperating employees, including
confidential field stenographers, office clericals, guards, watchmen,
professsional, and supervisory employees, as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 2 (5) of the Act.
4. The Union is, and at all times since August 19, 1964, has been,
the exclusive, certified representative of all employees in the afore-
said unit, for purposes of collective bargaining with respect to wages
and other terms and conditions of employment, within the meaning
of Section 9 (b) of the Act.
5. Commencing on August 25, 1964, and continuing to date, the
Union has requested and is requesting that Respondent bargain col-
lectively with it with respect to wages and other terms and conditions
of employment of all of the employees of Respondent in the appro-
priate unit.
6. By refusing on or about August 26, 1964, and at all times there-
after, to bargain collectively with the Union as the exclusive
collective-bargaining representative of all employees of Respondent
in the appropriate unit, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act.
7. By the aforesaid refusal to bargain, Respondent has interfered
with, restrained, and coerced, and is interfering with, restraining, and
coercing, its employees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and thereby did engage in, and is
engaging in, unfair labor practices within the meaning of Section
8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
the Respondent, Tidewater Oil Company, Newburgh, New York, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to recognize or to bargain collectively in good faith
with Local 341, United Marine Division, National Maritime Union,
AFL-CIO, as the exclusive and duly certified representative of all
employees in the following appropriate unit :
TIDEWATER OIL COMPANY 1293
All operating employees, including maintenance mechanics, truck-
drivers, and warehouse-yardmen at Respondent's Newburgh, New
York, plant, excluding all nonoperating employees, including confi-
dential field stenographers, office clericals, guards, watchmen, and
professional and supervisory employees, as defined in the Act.
(b) In any like or related manner interfering with, restraining, or
coercing employees in exercising rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action which it is found will
effectuate the purposes of the Act :
(a) Upon request, bargain collectively with the above-named
Union as the exclusive representative of all employees in the af ore-
said appropriate unit with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and if an understanding
is reached, embody such understanding in a signed agreement.
(b) Post at its plant in Newburgh, New York, copies of the
attached notice marked "Appendix." 5 Copies of said notice, to be
furnished by the Regional Director for Region 2, shall, after being
duly signed by Respondent's representative, be posted by Respondent
immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicous places, including all places
where notices to its employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify said Regional Director for Region 2, in writing, within
10 days from the date of this Decision and Order, what steps Re-
spondent has taken to comply herewith.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with Local 341,
United Marine Division, National Maritime Union, AFL-CIO,
as the exclusive representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain with the above-named Union
as the exclusive representative of all employees in the bargaining
unit described below with respect to rates of pay, wages, hours
of employment , and other terms and conditions of employment,
and, if an understanding is reached, embody such understanding
in a signed agreement.
The bargaining unit is :
All operating employees, including maintenance me-
chanics, truckdrivers, and warehouse-yardmen at our New-
burgh, New York, plant, excluding all nonoperating employ-
ees, including confidential field stenographers, office clericals,
guards, watchmen, and professional and supervisory employ-
ees, as defined in the Act.
TIDEWATER OIL COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced , or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 745 5th Avenue, New York, N. Y., Telephone No. Plaza 1-
5500, if they have any questions concerning this notice or compliance
with its provisions.
Indiana Rayon Corporation and Kentuckiana Joint Board, Amal-
gamated Clothing Workers of America , AFL-CIO. Case No.
25-CA-1688. March 30, 1965
SUPPLEMENTAL DECISION AND ORDER
On February 17, 1965, the Board issued its Decision and Order 1 in
the above-entitled proceeding, finding, inter alia, that Respondent
violated Section 8(a) (5) of the Act, which finding was based, in
part, upon the conclusion that the Union represented a majority of
the employees in the unit found to be appropriate for purposes of
collective bargaining. In so concluding, the Board did not pass upon
the authenticity of certain authorization cards submitted by the
General Counsel as part of his proof of the Union's majority status.'
1151 NLRB 130. Pursuant to the provisions of Section 3(b) of the Act, the Board
delegated its powers in connection with this case to a three-member panel, which delega-
tion is still in effect [Chairman McCulloch and Members Fanning and Brown].
2 The issues involved were fully litigated and briefed by the parties.
151 NLRB No. 132.