Tide Water Associated Oil Co.

TIDE WATER ASSOCIATED OIL COMPANY 39 failure to read a contract a party signs in the mistaken belief as to its contents , the contract is not binding upon him if the mistake was induced by a misrepresentation , albeit innocent, of the other party to the contract, and was not due to want of care or diligence.8 Accordingly, I conclude that the Union did not in fact, bargain with the Respondent concerning the merit increases contained in the contract , and that the signing of the contract by the Union does not warrant a legal conclusion that it bargained as to these increases Although the Respondent's unilateral action was a clear technical violation of the Act, in the opinion of the undersigned no remedial order is required in the circumstances of this case. As noted, the parties eventually overcame the impasse which stalled negotiations on February 4, 1952 , and reached agreements which were embodied in a collective-bargaining contract signed on June 9, 1952 So far as this record shows, there are no indications of bad-faith bargaining during any phase of the negotiations leading to the ultimate agreement between the parties. There is, moreover, no contention in this case that the Respondent's conduct was motivated by union animus, or was in any way intended to undermine the Union or otherwise damage its status as representative of the Respondent 's employees. On the other hand , I accept at face value the Respondent's assertion that the merit increases were granted in the interests of prudent management in the honest belief that it could do so without first notifying or consulting the Union. Apart from the issue herein involved, the Union and the Respondent appear to enjoy stable and harmonious labor relations, and no danger appears that these relations will be disrupted by the Respondent 's isolated technical violation.9 Accordingly, it is found that it would not effectuate the policies of the Act to issue a remedial order based upon such conduct alone . 10 The undersigned therefore rec- ommends that the complaint herein be dismissed In its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following CONCLUSIONS OF LAW 1 Quaker State Oil Refining Corporation, Emlenton, Pennsylvania, is engaged in and at all times material herein has been engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Oil Workers International Union, Local 481, C. I.O., is a labor organization within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act, have not been sustained. [Recommendations omitted from publication] 8Amprican Jurisprudence, Vol. 12, Sec. 133, 137; Williston on Contracts, Rev. Ed. Vol. Five, Sec 1577. 9Thus, on June 28, 1952, Sam Beers, representative for the Oil Workers International Union and a member of the union committee which had negotiated the contract, wrote a letter to Respondent protesting the grant of the merit increases. This letter said in part, We are pleased to learn from Mr. Newton that the Quaker State Oil Refining Corporation has accepted the fact that Labor Unions are an important part of the industrial institu- tions of this nation, and that it is the intention of the Corporation to bargain with legally recognized unions in good faith to See Bob Morgan Motor Company, Inc., 106 NLRB 334; cf. Crown Zellerbach Corporation, 95 NLRB 753. TIDE WATER ASSOCIATED OIL COMPANY and EMPLOYEES ASSOCIATION OF BAYONNE, Petitioner . Case No. 2-RC- 5888 . November 12, 1953 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before I. L. Broadwin, 107 NLRB No. 15. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing officer . The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 1 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 ( c) (1) and Section 2 (6) and ( 7) of the Act. 4. The Petitioner seeks a unit of all operating and clerical employees employed at the Employer ' s Doremus Avenue terminal in Newark , New Jersey . The Intervenor contends that the appropriate unit should include , in addition to those employees sought by the Petitioner , all operating employees at the Employer ' s bulk plants located at Dunellen , Trenton, and Eatontown , New Jersey , and at Nyack, New York, and at the Employer 's TBA warehouse in Newark , New Jersey. The Employer contends that two separate units should be found appropriate : one, including all operating employees at the Doremus Avenue terminal and at the Dunellen and Nyack bulk plants ; the other , including all clerical employees at the Doremus Avenue terminal. The Employer' s Operations The Employer engages primarily in the production, distri- bution, and sale of gasoline, oil, and other petroleum products in a number of States throughout the United States. Its opera- tions are divided for administrative purposes into three divisions, which are subdivided into departments, which are in turn subdivided into sales districts. The several bulk plants whose employees are here involved and the Doremus Avenue terminal fall within sales districts in the Middle Atlantic department of the Eastern Division of the Employer's operations. There are at least a dozen other sales districts in the Middle Atlantic department, each presumably containing at least one bulk plant, some of which are located at Philadelphia; Harrisburg, Hazelton, and Scranton, in Pennsylvania, at Baltimore, Maryland, and at Washington, D. C. The record does not indicate whether any of the other sales districts in the Middle Atlantic department, not involved in this proceed- ing, are located in the State of New Jersey . Of the plants involved, the Nyack and Dunellen bulk plants and the Doremus 1United Petroleum Workers intervened at the hearing on the basis of a current contractual interest. TIDE WATER ASSOCIATED OIL COMPANY 41 Avenue terminal each falls within a different sales district; 2 Trenton and Eatontown are both in another, separate sales district. Each sales district is supervised by a district sales supervisor, who is directly under the Middle Atlantic depart- ment manager. There is no intermediate administrative grouping of sales districts within the Middle Atlantic depart- ment for any purpose. Each bulk plant is a distribution center at which bulk gasoline and fuel oil and packaged petroleum products are stored and from which they are delivered to various consumers in the surrounding area. The Doremus Avenue terminal differs from a bulk plant only in that it has dock facilities and can receive deliveries directly from sea going tankers. It is larger than the other bulk plants here involved, but is other- wise the same as the others. The Newark TBA warehouse is a storage and distribution center for tires, batteries, and accessories, which the Em- ployer also distributes and sells. These products are not carried by the bulk plants or the Doremus Avenue terminal. The Newark TBA warehouse services an area falling within the territorial jurisdiction of both the Middle Atlantic and New York departments of the Eastern Division, and for this reason it is directly under the Eastern Division operating manager and is not assigned to any department within the Eastern Division. The Doremus Avenue terminal commenced operations in the fall of 1951. It was opened by the Employer for the purpose of consolidating a number of smaller bulk plants in northern New Jersey into one central distribution center. At the time of its opening, the Employer closed down its bulk plant at Passaic, New Jersey, and transferred its employees' and operations to the Doremus Avenue terminal. Thereafter, it closed down its bulk plants at Morristown, and Bayonne, and the gasoline phase of its bulk plant operations at Dunellen, all in New Jersey, and transferred these operations and the employees affected thereby to the Doremus Avenue terminal. 4 At the time of the hearing, the Employer had planned for the immediate transfer to the Doremus Avenue terminal of that part of its operations and employees at Nyack, New York, which serve northern New Jersey. It contemplated closing the Nyack bulk plant and transferring the remainder of its opera- 2 Prior to the opening of the Doremus Avenue terminal, the Dunellen and Morristown bulk plants were in the same sales district, the Nyack and Passaic bulk plants were both in another, and the Bayonne bulk plant was in a separate sales district by itself. 3Twenty employees were transferred from Passaic to Doremus Avenue. The record does not indicate whether any employees at the Doremus Avenue terminal were hired from outside the Company or whether all of its employees came to Doremus Avenue as a result of transfers from discontinued operations. There are a total of 91 employees employed at the Doremus Avenue terminal. 4 Three employees from Morristown, 34 from Bayonne, and 5 from Dunellen were trans- ferred to Doremus Avenue. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions and employees to the Doremus Avenue terminal within several months after the date of the hearing . There is also a possibility that the remainder of the Dunellen operation will be transferred to Doremus Avenue, although no plans had been made for this at the time of the hearing. Bargaining History In 1945 the Petitioner was certified as the exclusive bar- gaining representative of all operating employees at the Bayonne bulk plant . Since then the Employer and the Petitioner have entered into continuous collective -bargaining agreements covering these employees . In 1948 the unit was enlarged to include all clerical employees at the bulk plant as well as the operating employees , after the Petitioner satisfied the Em- ployer that it also represented these employees . In their most recent contract , the Employer and the Petitioner agreed that after the closing of the Bayonne bulk plant and the transfer of its employees to the Doremus Avenue terminal, the contract would continue to apply to those members of the Petitioner who were transferred to the Doremus Avenue terminal and that the Petitioner would continue to represent such employees on a members - only basis until the employees at the Doremus Avenue operation have the opportunity to choose an exclusive bargaining representative. The Intervenor is currently certified as exclusive bargaining representative for, and has a single collective - bargaining agreement covering , a number of units at various plants of the Employer , including some not mentioned above, which are in the Middle Atlantic and New York departments of the Employer's Eastern Division . All of its certifications have followed consent elections in the various units . The original contract between the Intervenor and the Employer , executed in 1946, covered by its terms three separate units : (a) All operating employees at the Employer ' s Long Island City, Westbury - Roslyn, and Port Jefferson , Long Island, New York, lants ; 5 (b) all clerical employees at the same plants; and (c) All operating employees at its Yonkers, New York, plant . Successive contracts covered the same units through 1951, but during 1950 a separate agreement was executed covering the following bargaining units : ( 1) All operating employees at the Employer ' s Passaic bulk plant ; ( 2) all operating employees at its Nyack bulk plant; ( 3) all operating employees at its Newark TBA warehouse ; (4) all operating employees at its Dunellen bulk plant ; ( 5) all operating em- ployees at its Morristown bulk plant ; ( 6) all clerical employees at its Newark TBA warehouse ; and (7 ) all clerical employees at its Dunellen bulk plant . The Intervenor had been certified 5 There is no explanation of the difference , if any, between those operations described in the contracts as plants, and those described as bulk plants TIDE WATER ASSOCIATED OIL COMPANY 43 pursuant to consent elections in each of the units set forth in the contracts . In 1951 a single agreement was executed covering the employees who were previously covered by the two separate agreements , with certain changes . Added to its coverage were the following units : ( a) All operating employees at the Employer ' s Rensselaer , New York , plant; (b) all em- ployees at its Rensselaer plant ; ( c) all operating employees at its Newburgh and Peekskill , New York , plants; (d) all clerical employees at its Newburgh and Peekskill plants; (e) all clerical employees at its Yonkers plant . The unit of operating employees at the Passaic bulk plant was not covered as such by this contract because this operation had already been moved to the Doremus Avenue terminal. However, provision was made to cover those employees at the Doremus Avenue terminal who were members of the Intervenor and were transferred to it from the Passaic bulk plant or might be transferred to it from other units covered by this agreement. In 1953 a new agreement , which is currently in effect, was executed with substantially the same coverage . 6_ In an amend- ment to the 1953 agreement , its terms were extended to cover an additional unit for which the Intervenor was certified consisting of all operating employees at the Employer's Trenton and Eatontown bulk plants. While there is no testimony as to the manner in which the contracts between the Intervenor and the Employer were negotiated , each is a complete agreement providing for wages, hours, and conditions of employment . Most of the benefits conferred in each agreement are uniform for the employees in each of the bargaining units set forth therein . However, the bargaining units are divided among several different geographical areas which receive slightly different wages for similar classifications . The units are also similarly grouped for seniority purposes , seniority in any classification for purposes of layoffs and rehiring extending over all the plants in a given area .T There are also minor variations in hours for employees at the different locations . Otherwise all contract terms are equally applicable to all employees regardless of location. ' 6 The unit of operating employees at Morristown was dropped from this contract because the Morristown operations had been transferred to the Doremus Avenue terminal . Employees transferred from Morristown to Doremus Avenue who were members of the Union are covered by this agreement. 7 The various areas established under the contract are: (a ) Long Island City, Westbury- Roslyn, and Port Jefferson plants; (c) Yonkers plant; ( d) Rensselaer and Newburgh plants; (e) Newark TBA Warehouse, Nyack and Dunellen plants (ex) Newark Terminal (Doremus Avenue) and Newark TBA and Dunellen clerical employees (members only in this area); (f) Trenton and Eatontown plants. It will be noted that neither of the units which the Inter- venor and Employer contend are appropriate correspond to any single seniority area. Intervenor would join in its units areas e, f, and part of e. Employer's unit would include parts of areas e and ex. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Other Factors Pertaining to Operations The record indicates that the operations and the work of the employees in the various job classifications at the Nyack, Dunellen, Trenton, and Eatontown bulk plants and at the Doremus Avenue terminal are substantially similar. There is no evidence as to the operations or type of work performed at the other plants covered by the Intervenor's contract with the Employer, although the contracts indicate that the job classifications of the employees at these plants bear similar titles. There is likewise no evidence in the record as to the operations or work performed by the employees at other plants in the Middle Atlantic department, nor does the record indicate whether the employees at such other plants are currently represented for purposes of collective bargaining. The record also contains no evidence as to whether labor relations are centrally controlled or are left to the individual discretion of the district sales managers. Apart from the permanent transfer of employees to the Doremus Avenue terminal from those plants which have been closed either in their entirety or in part, there is evidence only of infrequent transfer or interchange of employees among the plants in- volved. While 1 witness for the Intervenor testified to the effect that deliveries were made from the Doremus Avenue terminal to a customer in the area normally serviced by the Eatontown bulk plant, it appears that a maximum of 2 such deliveries were made. There is no other evidence of other instances in which drivers or other employees from 2 dif- ferent bulk plants work in the same area, nor is there any evidence of contact between the employees of different bulk plants in the course of their duties. However, drivers from the Newark TBA warehouse do make deliveries in the same areas as do the drivers from the bulk plants here involved and on some occasions made deliveries to those bulk'plants. Conclusions as to Scope of Unit The Intervenor and the Employer do not contend that the Doremus Avenue terminal should be added to the entire group of plants for which there has been multiplant bargaining, but would each join it with a segment of that multiplant group. Each contends that the Doremus Avenue terminal with that segment of the multiplant group constitutes an appropriate multiplant unit. The Intervenor's unit position is apparently based upon its expectation that the Employer will eventually transfer all of its bulk operations at Dunellen, Nyack, and possibly at Trenton and Eatontown to the Doremus Avenue terminal. It desires to keep all of these plants in the same unit to protect the seniority rights of the employees at these plants estab- TIDE WATER ASSOCIATED OIL COMPANY 45 lished by its contracts with the Employer ' I It would include the Newark TBA warehouse in this unit because it has been grouped with some of the other plants for seniority purposes in the past , because of its geographical proximity to the Doremus Avenue terminal, and because Doremus serves part of the area served by the warehouse. The Employer would group together the Doremus Avenue terminal and the Dunellen and Nyack bulk plants , principally because it anticipates the eventual merger of these three operations . It would not include the Trenton and Eatontown bulk plants or the Newark TBA warehouse in the unit , because it does not anticipate the transfer of these operations to the Doremus Avenue terminal. The Petitioner contends that there is no basis for establish- ing any multiplant unit in this case . The Petitioner , like the Intervenor , is concerned primarily with the seniority rights of the former employees of the Bayonne distribution operation whom it currently represents at the Doremus Avenue termi- nal, and seeks a single plant unit to avoid the dilution of the seniority rights of these employees. We agree with the Petitioner that there is no basis for establishing either of the multiplant units proposed in this case . Such a unit would group together , in either case, several plants which do not correspond with any administrative sub- division of the Employer . While the plants sought are all either in or near the border of New Jersey , other plants in the Middle Atlantic department are not substantially farther from plants within the proposed units than plants within the units are from each other . There is no history of bargaining on the basis of either of the multiplant units proposed . Apart from the transfer of employees from discontinued operations, there is evidence only of infrequent transfer or interchange of em- ployees. The only common supervision of these plants is at the departmental and divisional levels . While it is true that each of the plants has common functions , working conditions and policies, this is apparently true of all of the Employer's plants within each department . The only possible reason advanced for treating these plants as a separate group is the possibility that their operations will be consolidated at the Doremus Avenue terminal . While it is true that the Employer indicated that it anticipated the immediate transfer of a part of the Nyack operation, there appears to be no certainty as to when the remainder of that operation will be transferred or as to whether the Dunellen operation will be transferred at all. There is no indication in the record that the operations at Trenton , Eatontown , or the Newark TBA warehouse will be transferred . In the absence of any other factors indicating the appropriateness of either unit urged by the Intervenor and Employer , we find that the proposed multiplant units are SSee footnote 7, supra. 337593 0 - 55 - 5 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inappropriate. We find on the basis of this record that a single-plant unit of employees at the Doremus Avenue termi- nal is appropriate. Clerical Employees There remains to be considered the composition of the unit at the Doremus Avenue terminal. The parties are in agreement that all operating employees, with the usual exclu- sions, should be included in the unit. However, while the Petitioner and Intervenor 10 would include the clerical em- ployees in the unit as plant clericals, the Employer contends that they are office clericals and would establish a separate unit for them. There are three classifications of clerical employees employed at the Doremus Avenue terminal: senior , inter- mediate, and junior, clerks. These clerks are under the supervision of a chief clerk, who is inturn directly supervised by the district sales supervisor in charge of the Doremus Avenue terminal. All but three of the employees classified as clerks work in the main office building, which is a separate building within the gates of the terminal. The clerks in the main office building prepare invoices, receipts, and delivery lists, maintain sales, stock control, truck performance and other records, prepare the weekly payroll, take telephone orders, and prepare sales, inventory, and other reports to be forwarded to the department and division office where general corporate bookkeeping functions are performed. There is no evidence that these clerks have any contact with the operating employees in the course of their duties. All of them typewrite and several take dictation in the course of their duties. One clerk operates a switchboard full time and several others operate it as relief. While they enjoy many of the benefits which the operating employees receive and have been included in units with operating employees at other plants, it is clear that these employees are office clerical employees whom the Board customarily will not place in a unit with manual workers. u Accordingly, we find that the clerks in the main office building constitute a separate appropriate unit. 12 There are also two clerks who work in the yard office building and a single clerk in the dispatching and loading building who serves as a cashier . These clerks are also supervised by the chief clerk. While they do have some con- tact with operating employees, we find their interests are 9Schaffer Stores Co., Inc., 88 NLRB 1446; Kroger Company, 88 NLRB 194. 10 The Intervenor took no position as to the clerical employees in the event that a single- plant unit was found appropriate. However, as it contended that these employees were plant clericals and would have included them in a multiplant unit of operating employees, we will assume that they would likewise include them in the single-plant unit. 110 Z. Hall Motors, Inc , 94 NLRB 1180. l2Everlast Process Printing Co., 98 NLRB 1313. NEW MEXICO TRANSPORTATION COMPANY, INC. 47 closer to those of the other clerks than to those of the operating employees . Accordingly , we will include them in the unit of clerical employees. We find that the following units of employees of the Em- ployer at its Doremus Avenue terminal are appropriate within the meaning of Section 9 (b) of the Act: (1) All operating employees , including tank truck salesmen, rack truckdrivers , truck mechanics , pump mechanics, ware- housemen, yardmen , and truck and car washers , but excluding office clerical employees , salesmen, junior salesmen, real estate representatives , professional employees , guards, 11 and supervisors as defined in the Act. (2) All office clerical employees , including senior clerks, intermediate clerks, and junior clerks , but excluding confi- dential employees , 14 guards , and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] 13 There is one employee classified by the Employer as a watchman. As he spends part of his time watching for intruders, we find that he is a guard within the meaning of the Act. Walterboro Manufacturing Corporation, 106 NLRB 1383. 14 The parties stipulated that K. E. Albert, A. T. Dougher, and A. Christiansen are con- fidential employees and agreed that they should be excluded from the unit. We will, therefore, exclude them. NEW MEXICO TRANSPORTATION COMPANY, INC. and DI- VISION 1483, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL. Case No. 33-CA-213. November 13, 1953 DECISION AND ORDER On July 10, 1953, Trial Examiner Wallace E. Royster issued his Intermediate 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 Intermediate Report attached hereto . The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dis- missal of those allegations . Thereafter , the Respondent filed exceptions to the Intermediate Report. 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 Intermediate Report , the exceptions, and 107 NLRB No. 8.