Lumbard, Chief Judge, Clark, Associate Justice,*fn* and Kaufman, Circuit Judge.
At a representation election held on June 6, 1968 the employees of respondent Bayliss Fuel Oil Corporation*fn1 (Bayliss) decided to oust their then bargaining agent, Amalgamated Local Union 335 (Amalgamated), and elected to be represented by Teamsters Local 553*fn2 (Teamsters) in its stead. Amalgamated received five votes, the Teamsters seven; no employee voted to be represented by neither. Anxious to contest the resulting certification, Bayliss refused to bargain with the Teamsters. The petitioner National Labor Relations Board (Board) concluded that it had thereby violated sections 8(a)(1) and (5) of the National Labor Relations Act, 28 U.S.C. §§ 158(a) (1), (5), and on June 30, 1969 ordered it to bargain with the Teamsters. The Board now seeks enforcement of that order. Bayliss and Amalgamated attack its validity on several grounds. They urge that the designated group of employees constituted an inappropriate bargaining unit and that the election was barred by Amalgamated's bargaining agreements with Bayliss. Moreover, they argue that ballot irregularities rendered the outcome untrustworthy and that the Board refused to give the necessary review to the proceedings leading up to the election. We reject each contention and grant enforcement of the Board's order.
Bayliss sells fuel oil and installs and maintains oil burners in the vicinity of Ronkonkoma, New York. Its servicemen, varying in number from five to seven, depending upon the season of the year, install the burners and keep them in repair; the drivers, constituting three to six in number, deliver oil to customers' tanks, and assist the servicemen on occasion in the slow summer months. Both groups receive their assignments from the dispatcher, who, like the mechanic responsible for maintaining the service and delivery trucks, works full time on company premises. Since at least 1961, these employees were represented by Amalgamated as a single bargaining unit, and a three-year contract covering all of them had been signed by Amalgamated and Bayliss on July 20, 1965.
In June 1967, Bayliss took over the accounts of the Peninsula Petroleum Corporation, a small, noncompeting fuel oil company owned by Bayliss' Vice-President. Peninsula's one serviceman and one driver became Bayliss employees, and their respective trucks became part of the Bayliss fleet. Allegedly because of this operating merger, Amalgamated and Bayliss negotiated a new three-year contract on August 22, 1967, almost a year before the 1965 agreement was due to expire. Later that year, on November 15, Amalgamated again renegotiated its agreement, obtaining separate contracts for the drivers (and the mechanic) and for the servicemen (and the dispatcher). The terms were otherwise identical with the August 1967 agreement.
The following spring, on March 28, 1968, the Teamsters petitioned for a representation election in a unit comprising both the servicemen and the drivers. Under Board rules,*fn3 this petition was timely as to the 1965 contract, but barred by the 1967 contracts unless these were premature or inappropriate extensions of the former. The NLRB Regional Director decided on May 5, 1968 that the 1967 contracts were invalid. He also rejected Bayliss' and Amalgamated's contentions that a unit including both drivers and servicemen was inappropriate. The Board declined to review the Regional Director's decision and direction of an election, finding that no substantial issues warranted review.*fn4
At the preelection conference on May 15, Amalgamated drew its choice of ballot position, and opted for the left-hand side; the Teamsters chose the right side, leaving the center position for a "neither" vote. Amalgamated allegedly instructed its adherents to check off the left-hand box. The sample ballot issued two weeks later, however, showed that the Board had inadvertently switched the ballot positions so that the Teamsters, rather than Amalgamated, appeared on the left. The sample ballot was posted above the dispatcher's window for a week before the election, with instructions that it should be read and initialed. Seven or eight employees complied with the request.
The election itself was held on Bayliss premises between 5:00 and 6:00 p. m. on June 6. A Board agent explained the ballot, including the respective positions of the unions, in some detail before distributing them. The voting resulted in the tally already noted, and then only, and for the first time, Bayliss and Amalgamated complained of the transposed positions. The Regional Director, in certifying the Teamsters as bargaining representative, rejected the contention that the Board's printing error had rendered the election untrustworthy.
Despite the certification, Bayliss refused to bargain with the Teamsters. An unfair labor practice complaint was then filed by the Board's General Counsel, and sustained by a Trial Examiner, whose decision the Board in turn affirmed on June 30, 1969. In these postelection proceedings, however, only the ballot irregularity was considered; the Board's rule against relitigation*fn5 precluded consideration of the matters disputed before the election -- unit appropriateness and contract bar.
In reviewing the appropriateness of the plant-wide bargaining unit at Bayliss, we are mindful of the Supreme Court's cautionary instruction that this issue "involves of necessity a large measure of informed discretion and the decision of the Board, if not final, is rarely to be disturbed." Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 91 L. Ed. 1040, 67 S. Ct. 789 (1947). Not finding the Regional Director's determination "unreasonable and arbitrary," id., we must affirm his conclusion that the unit was appropriate.
Indeed, there was substantial support for the Regional Director's decision. Although the Bayliss servicemen were somewhat more skilled than the drivers, the two groups received comparable hourly wages -- $3.55 and $3.20 respectively.*fn6 Both were under common supervision by Bayliss' Vice-President, its office manager, and the dispatcher, and enjoyed identical nonwage benefits. And the substantial history of bargaining as a single unit had failed to demonstrate any conflict of interest, real or imaginary, between the servicemen and drivers. Bayliss' argument -- emphasizing the different training periods for service and delivery employees, the existence of a "leadman" among the servicemen, and an industry-wide pattern of separate representation -- at most shows that separate bargaining units might also have legitimately been found appropriate units; it hardly constitutes a convincing showing that the single unit was inappropriate or unreasonable.
From the foregoing it would appear to be a logical sequela that the 1965 single-unit contract between Bayliss and Amalgamated was not invalid because it embraced an inappropriate unit. The November 1967 negotiation of separate contracts accordingly had no justification and must be viewed as a premature and inappropriate extension of the 1965 agreement. It is equally clear that the accretion of the two Peninsula employees did not cause the 1965 agreement to lapse, and neither Bayliss nor Amalgamated presses this ...