New Jersey Esso Employees' Association

216. DECISIONS OF NATIONAL LABOR RELATIONS BOARD New Jersey Esso Employees' Association and Exxon Company, U.S.A. Case 22-CB-5064 25 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 20 November 1984 Administrative Law Judge Howard Edelman issued the attached deci- sion. The Respondent filed exceptions, and the Company filed a brief in opposition to the Re- spondent's exceptions and in support of the judge's decision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, I findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, New Jersey Esso Employees' Association, Jersey City, New Jersey, its officers, agents, and representatives, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law fudge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case`was tried before me on June 25 and 27 and July 16, 1984, in Newark, New Jersey. On March 19, 1984, Exxon Company, U.S.A (the Em- ployer or Company) filed charges against the New Jersey Esso Employees' Association (the Respondent or Union) alleging a violation of Section 8(b)(3) of the Act. On April 11 , 1984, a complaint issued alleging that the Union had refused to meet with, and bargain collectively with, the Employer in violation of Section 8(b)(3) of the Act. Briefs were filed by the General Counsel and by the Employer. Counsel for Respondent made an oral argu- ment at the conclusion of the hearing. On consideration of the entire record, and briefs, Respondent's oral argu- ment, and my observation of the demeanor of the wit- nesses, I make the following FINDINGS OF FACT The Employer, a division of Exxon Corporation, is a New Jersey corporation with facilities in Linden , Pauls- boro, and Bayonne , New Jersey, where it is engaged in the refining, distribution, and marketing of oil . Respond- ent annually, in the course and conduct of its business operations, sells and ships from its New Jersey facilities goods and materials valued in excess of. $50,000 directly to points located outside the State of New Jersey. Respondent admits, and I find , that the Employer is engaged in commerce within the-meaning of Section 2(6) and (7) of the Act. At all times material I find the Union is and has been a labor organization within the meaning of Section 2(5) of the Act. For about the past 40 years the Employer and the Union have been parties to a series of collective -bargain- ing agreements covering a unit of the Employer's sales agents, motor truck salesmen , delivery truck operators, loader and checker warehousemen , plant men, watch- men, janitors, senior mechanics, first class mechanics, second class mechanics, mechanics helpers, checkers, as- sistant-plant checkers, terminal specialist , plant clerks and clerical assistants-plant telephone operators . The last col- lective-bargaining agreement was effective beginning on April 1, 1982, and expiring on March 31, 1984. The 1982- 1984 agreement contained a clause (art. 19) which provided as follows: This Agreement will remain in full force and effect until midnight on the 31st -of March, 1984, and is subject to automatic renewal for two-year pe- riods thereafter unless written notice of termination or desired modification is given by either party to the other party on or before midnight on the 31st of January, 1984, or the 31st of January, preceding any subsequent two-year expiration date. . . . On January 13, 1984, 1 during an employer-union grievance meeting, Dominick Amato, union secretary, presented Dick Archer, employer operations manager, and Alec Myers, employer labor relations coordinator, with the following letter dated January 7: In accordance with the collective bargaining agreement, the New Jersey Esso Employees' Asso- ciation hereby gives notice that the agreement ex- pires on March 31, 1984. The New Jersey Esso Employees' Association further gives notice that we are prepared to meet with the Company at a time, place and date mutual- ly agreeable in order to negotiate a new contract. The New Jersey Esso Employees' Association table items are as follows: 1. Health and safety. 2. No retrogression. 3 Wage increase. 4 Improved benefit plans. 5. Improved working conditions. ' All dates herein are 1984 unless otherwise specified 275 NLRB No. 46 NEW JERSEY ESSO EMPLOYEES ASSN. (EXXON CO) 217 6. Improved medical and dental plans 7. Improved contract language. Amato additionally , handed Myers another letter also dated January 7 which contained, two grievances.2 Fol- lowing a discussion of the pending grievance, Myers dis- cussed with Amato and the other union representatives present which included Jim Donachy , president , Bill Ca- ballero, vice president, and Dick Humiston, treasurer, a company proposal that the _ cost of negotiation sites and refreshments be shared . No agreement was reached as to this proposal. It is admitted by the Union that in 1982 the following letter was sent by the Union to the Employer to give the Employer notice of the Union 's intention to terminate the 1980-1982 agreement: In accordance with ' the Collective Bargaining Agreement the N.J. Esso Employees' Assn. hereby gives notice that the agreement expires on -March 31, 1982. The N.J. E.E.A. further gives notice that we are prepared to meet with the company at a time and date mutually agreeable in order to negotiate a new contract. The N.J. E.E.A. table items are as follows: 1. Substantial wage increases 2. Improved Benefits During the last 2 weeks in January and first week in February, Employer Representative Myers spoke with Union Representatives Donachy and Humiston in a series of telephone conversations and arranged a sched- ule of dates and sites for contract negotiations beginning on March 5. On February 8, Myers and Employer Representative John Killian met with the Union's officers at the Shera- ton Hotel in Newark, in a customary "pre-bargaining conference." During this meeting the parties generally discussed the bargaining environment for 1984, the Com- pany's overall financial condition , and the general condi- tion of the oil industry. About February 23, Employer Representative Archer received a letter from Howard Goldberger, the Union's attorney, dated February 23 which set forth: Please be advised that I represent the New Jersey Esso Employees' Association, the Collective Bar- gaining representatives for your employees. The Collective Bargaining Agreement dated April 1, 1982 provides in its Article XIX that absent a "written notice of termination or desired modifi- cation" by either party on or before January 31, 1984, the said agreement will automatically renew for an additional two year period. Please be advised that it is our position that said Collective Bargaining Agreement, by virtue of the failure of such notice to be served , will renew for the period of April 1, 1984 through March 31, 1986: 2 These grievances were entirely unrelated to the issue of the termina- tion of the present collective-bargaining agreement and to a demand for negotiations for a new agreement - On February 29, the Employer's attorney, B. F. Fla- herty, by letter advised Union Attorney Goldberger that the Union's letter of January 7 operated to terminate the parties' 1984 collective-bargaining agreement and that the Employer was prepared to meet with the Union on the dates agreed on to negotiate a new agreement. By a letter dated March 13, Union Attorney Gold- berger responded to Employer Attorney Flaherty's letter as follows: - As you know, I have been on vaction and, ac- cordingly, could not respond to your letter of Feb- ruary 29, 1984 before today. . It is our contention , as previously stated, that the current labor agreement has been renewed by the failure of either party to give the necessary notice of termination. The so-called Amato letter did not provide such notification by its terms and this is especially so in view of the fact that the said letter was recalled by the union-an act in which the company voluntarily participated. Subsequent to the withdrawal (consented to by the action of the company) there was no attempt by the company to take any affirmative action towards the termination of the agreement. Under the circumstances, we are confident as to the correctness of our position. However, without prejudice to that position, we would have no objection to meeting with the com- pany to discuss proposed modifications of our exist- ing agreement . It is understood, of course, that if an agreement cannot be reached on such modifications then the contract would remain as it is for the entire renewal period. If this procedure is satisfactory, to the company, please advise and we will arrange to meet. Employer representatives were present at the agreed- upon locations on the agreed-upon dates set aside for ne- gotiations ready to negotiate , but the union representa- tives failed to appear Union Representative Amato testified that about Janu- ary 20, during a telephone conversation with Employer Representative Myers concerning the grievances filed with Myers during-the January 13 meeting described above, Myers took the position that the grievances were filed late and the dates set forth in the grievance letter were false. Amato was enraged at Myers' accusation. Amato testified that as a result of his conversation with Myers he went to Archer's office. He told Archer he had been accused of falsifying the dates on his griev- ance letter and then told Archer that he wanted "back the letter of the contract-the reopener," an alleged ref- erence to the Union's January 7 letter terminating the contract and demanding negotiations. Archer denied that Amato or any union representative ever asked him to return or told him the Union was withdrawing its January 7 letter terminating the contract. Amato then testified he left Archer's office, stopped at Archer's secretary's office, adjacent to Archer's office, and told Archer's secretary, Jayne Zahorbenski, to 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return the Union's January 7 letter. Accordingly to Amato she gave him the letter. Zahorbenski, who at the time of the hearing was no longer employed by the Employer, denied that Amato ever asked her for the January 7 letter, or that she ever gave it to him.3 Amato then testified that he went to see Union Repre- sentative Humiston at his work place.4 During this visit he told Humiston about his confrontation with Myers and Archer, and his withdrawal of the January 7 letter. At this time he produced the letter and ripped it up. Hu- miston testified Amato told him he had withdrawn the January 7 letter and had it with him. However, Humis- ton did not actually see the letter nor see Amato tear it up. The Union, at no time prior to Attorney Goldberger's letter dated February 23, advised the Employer in writ- ing of its intention to withdraw its January 7 letter. Fur- ther, Union President Donachy admits that, at all times prior to the confrontation between Amato and Archer at which time the January 7 letter was allegedly with- drawn, it was the Union's intention by its January 7 letter to terminate the parties' 1984 collective-bargaining agreement and to commence negotiations for a new agreement. Donachy further admits that the Union did not authorize Amato or any other union representative to withdraw the January 7 letter. For the reasons set forth below I do not credit the tes- timony of Amato that he withdrew the January 7 letter. There was no logical reason for Amato to withdraw the notice of termination letter. The dispute with Myers and Archer concerning the dates of the grievance filed on January 13 in no way related to the January 7 termi- nation of agreement letter. I further find the alleged withdrawal inconsistent with the uncontradicted testimony that, following the date of the alleged withdrawal, union representatives negotiated with employer representatives and agreed on a schedule of March negotiation dates and thereafter met with em- ployer representatives on February 8 in a "prebargaining conference." Further, I find it unbelievable that Amato, acting with- out prior union approval, would attempt to withdraw such document, having such significant legal conse- quences. Additionally, Amato's testimony that he notified Archer of the Union's withdrawal of the January 7 letter and his testimony that he obtained physical possession of the letter was contradicted by the testimony of Archer and Zahorbenski whom I found to be credible witnesses. In this connection, Zahorbenski was no longer employed by the Employer at the time of the hearing. Finally, if Amato had withdrawn the January 7 letter and the Union had subsequently ratified his previously unauthorized action, it is inconceivable they would not have confirmed such withdrawal in writing prior to Jan- uary 31, the last day a notice of termination of with- drawal thereof could have been effective. 3 Zahorbenski testified that, some time during the first week in Febru- ary, Archer asked her for a copy of the January 7 letter but she was unable to find it in her file 4 The union officials are employed by the Employer Accordingly, I conclude that the January 7 notice of termination letter was never withdrawn. Analysis and Conclusions Counsel for Respondent takes the position that the January 7 letter was not a letter notifying the Employer of the Union's intention to terminate the 1984 collective- bargaining agreement and commence negotiations con- cerning a new agreement, within the meaning of article 19 of the present agreement. Respondent further con- tends that, if the January 7 letter were a notice of termi- nation, then such letter was effectively withdrawn and the agreement renewed. The contents of the January 7 letter clearly and un- equivocally refute Respondent's contention. Thus, the January 7 letter starts off, "In accordance with the col- lective bargaining agreement the New Jersey Esso Em- ployees' Association hereby gives notice that the agree- ment expires on March 31, 1984." I find this language to constitute a clear and unequivocal notice of termination. The letter then goes on to state that the Union "further gives notice that we are prepared to meet with the Com- pany . . . in order to negotiate a new contract." Such language in the most clear and precise terms imaginable gives notice that the Union intends to terminate the present contract "in order to negotiate a new contract." Moreover, the 1982 letter set forth above and admitted by the Union to constitute a notice of intention to termi- nate and negotiate a new contract contains the identical language as the January 7 letter in dispute. Additionally, Union President Donachy, contrary to the Union's contention, admitted during the hearing that the purpose of the January 7 letter was to notify the Em- ployer, pursuant to the terms of the agreement, of the Union's intention to terminate the 1984 agreement and negotiate a new agreement. Accordingly, I conclude that the Union's January 7 letter was a notice, pursuant to the agreement, of the Union's intention to terminate the 1984 agreement and negotiate a new agreement. In view of my credibility resolution, discussed in the findings of fact section of this decision, I further conclude that the January 7 letter was not withdrawn by the Union.5 Therefore, I conclude that by taking the position as set forth in Respondent counsel's February 23 letter that the 1984 agreement had renewed for a 2-year period, and by failing to attend and participate in the March negotiation sessions agreed upon, Respondent violated Section 8(b)(3) of the Act. Counsel for Respondent contends that the Union is willing to bargain with the Employer presently without prejudice to its position that the contract has been re- newed. This position was set forth in Respondent's March 13 letter. However, in view of my finding that the agreement has not renewed and the Union's failure to meet with the Employer on the March dates agreed upon, I conclude that a bargaining order is warranted 5 In view of my credibility resolution I need not consider whether a withdrawal of a notice of termination, to be effective , must be in writing NEW JERSEY ESSO EMPLOYEES ASSN (EXXON CO) 219 CONCLUSIONS OF LAW 1. The Employer is an employer within the meaning of Section 2(2) of the Act and engaged in commerce within the meaning Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By insisting after January 31, 1984, that the 1984 collective-bargaining agreement had renewed itself and thereafter refusing to bargain with the Employer as to terms and conditions of a new agreement, Respondent engaged in and is engaging in an unfair labor practice within the meaning of Section 8(b)(3) of the Act.i 4. The aforesaid unfair practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found Respondent has engaged in the unfair labor practices described above, it will be recommended that it cease and desist therefrom, and bargain in good faith, upon demand, with the Employer for a new collec- tive-bargaining agreement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, New Jersey Esso Employees' Asso- ciation, Jersey City, New Jersey, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to bargain collectively with Exxon Com- pany, U.S.A. for a new collective-bargaining agreement. (b) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Upon the request of Exxon Company, U.S A., bar- gain in good faith for a new collective-bargaining agree- ment. 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (b) Post at its business office and all meetings halls copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 22 the number of copies of the notice requested by the Regional Director for posting by Exxon Company, U.S.A., said employer being willing, in places where notices to its employees are customarily posted. Copies of the notices, to be furnished by the Regional Director after being duly signed by an authorized representative, shall be forthwith returned to the Regional Director. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 7 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Exxon, U.S.A. for a new collective-bargaining agree- ment. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act. WE WILL, on the request of Exxon Company, U.S.A., bargain in good faith for a new collective-bargaining agreement. NEW JERSEY Esso EMPLOYEES' ASSOCIA- TION