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National Labor Relations Board v. Pembeck Oil Corp.

decided: November 27, 1968.


Lumbard, Chief Judge, and Kaufman and Hays, Circuit Judges. Hays, C.j. (dissenting).

Author: Kaufman

KAUFMAN, Circuit Judge:

This case comes before us on petition of the National Labor Relations Board for enforcement of its order against The Pembeck Oil Corporation (hereinafter referred to as the Company).*fn1 The Trial Examiner found that the Company had violated § 8(a)(1), (3) and (5) of the National Labor Relations Act by 1) refusing to bargain with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677 (hereinafter referred to as the Union), 2) bargaining directly with its employees, 3) causing them to repudiate the Union, and 4) discriminatorily discharging Collins, one of its employees, for union activity. Accordingly, he recommended that the Company be ordered to cease and desist from further violations of § 8(a)(1) and (5), to reimburse Collins for the loss of wages he suffered as a result of the discrimination*fn2 and to bargain with the Union. The Board adopted the Trial Examiner's findings and recommendations in their entirety. Since we believe, upon review of the record, that there is substantial evidence to support these findings, we grant enforcement of the Board's order, except that, for reasons discussed below, we modify that portion of the order requiring the Company to bargain with the Union.


The Company is engaged in the business of selling fuel oil, and installing and servicing oil burners in homes and commercial establishments. In the operation of its business the Company employs servicemen who install, service, and repair industrial and domestic oil burners, truck drivers who deliver fuel oil to its customers, sootmen who clean oil burners and related equipment, and a maintenance man who works in the Company's warehouse keeping the shop clean and taking care of the stock.*fn3 At the time of the events in question, the Company employed 15 such workmen: eight servicemen, two drivers, four sootmen and one maintenance man. Two of the servicemen performed only domestic work, while the other six were engaged in both industrial and domestic work; additionally, two of these six also installed oil burners in buildings under construction, work which the Trial Examiner found occupied their time for only about six weeks out of a year. During the summer when few oil deliveries were made, the drivers were engaged primarily in assisting the servicemen, a task also performed on rare occasions by the sootmen. All these employees are hourly rated and carry timecards, and, except for the maintenance man, all wear the same uniform. In addition, all are covered by a Company insurance program, have the same vacation and sick leave privileges, and share the same shop facilities.

Prior to the events in question, no labor organization had represented all of the Company's employees. The two servicemen who install oil burners in buildings under construction were, however, covered by a collective bargaining contract between the Company and Local Union No. 21, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry (hereinafter referred to as the Plumbers Union). This contract applied only when these two employees were actually performing the special work of installing oil burners in buildings under construction. When they were engaged in their usual tasks as servicemen, it was not operative except that it permitted them to participate in a health, welfare, and pension program provided for in the agreement.

The company supervisors are its president, Fred J. Knell, secretary John W. Grant, dispatcher Robert J. Thuotte, and sales engineer Arthur Moskaluk. Knell oversees the entire operation. Moskaluk assigns work to all servicemen, assists them with technical problems, and occasionally directs the work of the sootmen, drivers and maintenance man, although these employees are normally supervised by Thuotte and Grant.

The events giving rise to the unfair labor practices here in question began on August 18, 1966, when the Company hired Carl Collins as a fuel delivery driver. According to Collins' testimony before the Trial Examiner, at the time he was hired he was told about the Company's "job training," in reference to which Thuotte said that Collins would "go out with another man for a while to learn the job and that (the Company) invested approximately a year in a man before he would become efficient like they like their employees to be." During this interview Collins was wearing a union button, and he informed his interviewers that he had been a union member.

Shortly after August 19, when Collins commenced his employment, other employees expressed to him dissatisfaction with their working conditions, and, knowing that he was a union member, requested that he contact someone to whom they could talk about joining a union. Collins called James Galullo, the Union's Business Agent, who sent authorization cards and literature to the employees and additional authorization cards to Collins. Collins distributed these cards among the employees and also discussed with them, individually and in groups, the benefits they might derive from representation by the Union.

By September 8, nine of the fifteen employees had signed authorization cards.*fn4 The following day, the Union sent a letter to the Company stating:

"Teamsters Local Union No. 677, hereby notifies you that a majority of your truck drivers, oil burner servicemen and installers, mechanics, and helpers have authorized our Union to act as their representative for the purpose of negotiating a labor contract covering their wages, rates of pay, hours of work, and other working conditions.

"I suggest that the first negotiating session be held during the week beginning Sunday, September 11, 1966, at a time which is convenient."

Knell received this letter the morning of September 12.*fn5 According to his testimony, he was taken by surprise and "overwhelmed" by its contents, and he immediately retained an attorney, who replied to the Union the following day, saying:

" . . . The Pembeck Oil Corporation disputes your claim that a majority of the truck drivers, oil burner servicemen and installers, mechanics, and helpers employed by that Company have authorized you to act as their bargaining representative.

"In addition, the Pembeck Oil Corporation disputes the appropriateness of the unit.

"The Pembeck Oil Corporation will recognize you only if you are certified as the bargaining agent as a result of an election conducted by the ...

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