American Oil Co.

National Labor Relations Board - Board Decisions

Aug 16, 1966

160 N.L.R.B. 541 (N.L.R.B. 1966)

AMERICAN OIL COMPANY 541
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 327
Logan Building, 500 Union Street, Seattle, Washington, Telephone 583-7473.
American Oil Company and Local 7-776, Oil, Chemical and
Atomic Workers International Union , AFL-CIO. Gases 14-
CA-3886, 3919, mad 3919-s. August 16, 1966
DECISION AND ORDER
On May 31, 1966, Trial Examiner Thomas A. Ricci issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices alleged
in the complaint and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed exceptions to the
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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
Trial Examiner's Decision, the exceptions, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
nlendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in the above-entitled proceeding was held before Trial Examiner
Thomas A. Ricci on April 18, 19, and 20, 1966, at St. Louis, Missouri, on amended
complaint of the General Counsel against American Oil Company, herein called
the Respondent or the Company. The issue litigated is whether the Respondent vio-
lated Section 8(a)(5) of the Act.' A brief was filed after the close of the hearing
by the Respondent.
'The hearing started as a consolidated proceeding, with a complaint in Case 14-CA,-
3541, also against the Respondent , joined with this one for a single hearing During the
hearing the Ceneral Counsel announced that a settlement had been arranged in Case 14-
CA-3541, and moved for severance The motion is granted , and the hearing in Case
14-CA-3541 was continued indefinitely pending compliance with the settlement a gicemeut
160 NLRB No. 46.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire
following:
record, and from my observation of the witnesses, I make the
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, a Maryland corporation, has its principal office and place of
business in Chicago, Illinois, is engaged, among other things, in the manufacture
and nonretail sale of gasoline and other oil products, and operates in many loca-
tions, one of which is its Wood River, Illinois, refinery, the only location involved
in this proceeding. In the normal course of operations the Respondent annually
sells and ships from this one refinery materials valued in excess of $50,000 directly
to out-of-State points. I find that the Respondent is engaged in commerce within
the meaning of the Act and that it will effectuate the policies of the Act to exercise
jurisdiction herein.
If. THE LABOR ORGANIZATION INVOLVED
The evidence shows, and I find , that Oil, Chemical and Atomic Workers Inter-
national Union , AFL-CIO, and its Local 7-776, are labor organizations within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint in this case, alleging an illegal refusal to bargain, was issued
after, and essentially rests upon, a fully litigated representation proceeding (Cases
14-RC-4888, 4889) which terminated in the certification of the International Union
on January 28, 1966, as the statutory exclusive representative of the Respondent's
employees in a certain appropriate bargaining unit.2 After certification of the Union,
on January 31 the Union demanded that the Respondent recognize it and bargain;
by letter dated February 2, 1966, the Respondent replied that because it deemed
the Board's certification invalid "in law and in fact" it refused to bargain. The Com-
pany held firm to this adamant position at the hearing on complaint. More pre-
cisely, the Respondent contends that the certificate is invalid because the bargaining
unit includes a category of employees called process supervisors, whom it argues
should be excluded as supervisors within the meaning of the Act.
In Case 14-RC-4888, pursuant to petition duly filed, a regular hearing was held
during which testimony was received for 17 hearing days, and the principal question
litigated was the very one concerning the alleged supervisory status of this category
of employees. In its Decision and Direction of Election, issued on August 10, 1965,
the Board discussed the question and the related evidence at length, and found con-
trary to the Respondent's contention .3 An election was held on September 2, 1965,
where a majority of the valid votes cast was in favor of the Union. The Respondent
thereafter filed objections to the election, reasserting its earlier argument respecting
the process supervisors, and alleging that the results should be set aside because
those employees were permitted to vote. The objections were duly investigated by
the Regional Director, who on November 4 issued his report in which he recom-
mended that the objections be overruled. The Respondent then filed exceptions to
the Regional Director's Report, with supporting affidavits and other documents. On
January 28, 1966, the Board issued a Supplemental Decision and Certification of
Representatives (unpublished), overruling the objections and certifying the Union as
statutory majority representative in the unit originally found appropriate and again
including the process supervisors. In again considering the merits of the Respond-
ent's fundamental position, the Board evaluated the Regional Director's Report and
the documentary material submitted by the Respondent, including factual statements
assertedly reflecting changed fact and circumstances up to September 1965. Upon
analysis of the total evidence then before it, the Board reaffirmed its previous con-
clusion that the process supervisors are not supervisors as defined in the Act and
therefore appropriately included in the bargaining unit.
2 The bargaining unit set out in the Board's certification, and which I find is now ap-
propriate for purposes of collective bargaining is
All operating and maintenance employees of the Respondent at its Wood River, Illinois,
oil refinery, including process supervisors, but excluding office and clerical employees,
professional employees, watchmen, guards, and supervisors as defined in the Act.
3 154 NL1i13 393
AMERICAN OIL COMPANY 543
It is clear that the Respondent 's purpose in refusing to bargain on request after
issuance of the certification is to test the correctness of the Board's unit determina-
tion respecting the process supervisors by court review . In justification of his deter-
mination to relitigate the entire issue at the hearing before me, counsel for the
Respondent stated : . . representation cases are nonadversary in character and
are investigatory in character. As we understand it, being nonadversary, you don't
litigate in an investigation as you do in a complaint case . it hasn 't been litigated
as we see it." There was no assertion of newly discovered evidence on the main
question or of changed conditions following the Board's certification.
The Respondent 's offer, once again , to prove the alleged supervisory status of the
disputed employees and to relitigate the entire question, was rejected by me. The
law is clear . In a complaint proceeding , a Respondent may not raise issues that have
been considered, litigated, and decided in the representation proceeding. In the
interests of finality of adjudication the Board has consistently refused to reconsider,
in subsequent unfair labor practice cases alleging a refusal to bargain , questions
which have been disposed of in a prior representation proceeding .4
The Board having certified the Union on January 28, 1966, as the exclusive repre-
sentative of the employees , the validity of the certification shortly thereafter, as a
matter of law, is conclusively presumed.5 I find that at all times material herein,
and more particularly since January 28, 1966, the Union has been the representa-
tive for the purposes of collective bargaining of a majority of the employees in the
appropriate unit, and, the virtue of Section 9(a) of the Act, has been and is now
the exclusive representative of all the employees in the said unit for the purposes
of collective bargaining in respect to rates of pay, wages , hours of employment, and
other conditions of employment.
Accordingly, I find that by refusing to bargain with the Union on February 1,
1966, and continuously thereafter, the Respondent has violated Section 8(a)(5) and
(1) of the Act. The appropriate remedial order will require that on request the
Respondent bargain with the Union, as to all the employees included in the bar-
gaining unit, with respect to all of their conditions of employment, an obligation as
broad as the full scope of the statutory duty.
There is a further paragraph in the complaint, alleging that at the end of Feb-
ruary, the very month when the Respondent in the broadest and most unequivocal
terms possible rejected all claim to recognition by the Union, it also violated Sec-
tion 8(a)(5) of the Act when, without consulting the Union in advance, it changed
work assignments in a very minor respect, from certain pipefitters to certain barge
loaders. Whereas for a long time the work of connecting and disconnecting hoses,
and of operating hoists, all in the loading of barges with refinery products, had
been performed by pipefitters as an incidental and very minor aspect of their regu-
lar maintenance duties, early in March , for reasons of safety to personnel and pro-
tection of equipment, the Company assigned this work on occasion to the regular
barge loaders . Both groups of employees are included in the single bargaining unit.
An assertion by the General Counsel at the hearing that some of this work was also
assigned to employees of a company other than the Respondent is totally unsup-
ported by any probative evidence.
The Respondent's indifference to any possible union interest in this matter is not
denied , and obviously reflects no more than adherence to the consistent position
that it was not obligated to deal with the Union at all. No doubt there were other
instances, in its total continuing operations of the refinery with over 500 operating
and maintenance employees, where the Company took unilateral action affecting
the terms and conditions of employment of other individual workmen. The Respond-
ent standing firm in the refusal to extend any recognition to the Union, despite the
present duty imposed by the statute, it follows that any act in which a term or con-
dition of employment was altered unilaterally was equally violative of the Act. No
employees were discharged because of this matter and it was not shown any earned
less in wages as a result.
I think no useful purpose would be served by reporting in detail here the precise
instances where changes of such assignments occurred, the conversations between the
pipefitters and management representatives on the subject at the time, and the Com-
pany's refusal to permit certain employees to grieve over the question as official repre-
sentatives of the Union. At the close of the Government's case-in-chief, the General
'Mountain State Telephone and Telegraph Company, 136 NLRB 1612; Emple Knitting
Mills, 151 NLRB 759.
5 Ray Brooks v N L It B., 348 U.S 96.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel stated that the sole remedy sought in consequence of this particular viola-
tion of Section 8(a)(5) is that the Company be ordered to bargain with the Union
about its desire to change such assignments in the future. He said "the General Coun-
sel does not request that the Company be ordered to reinstate its prior practices .
it is not apparent that indeed any pipefitters have suffered financial loss . That
is a matter, we hope, as to which the Company ultimately will bargain." When the
order recommended below is enforced, the Company will bargain about changes in
work assignments of this kind, as well as all others.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations as described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it be ordered to cease and desist theiefrom and take certain
affirmative action designed to effectuate the policies of the Act. Accordingly, the
Respondent will be oidered to bargain collectively with the Union in the unit found
appropriate, and, if an understanding is reached, embody such understanding in a
signed agreement.
Upon the basis of the foregoing findings of fact, and upon the record in its
entirety, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All operating and maintenance employees of the Respondent at its Wood River,
Illinois, oil refinery, including process supervisors, but excluding office and clerical
employees, professional employees, watchmen, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Oil, Chemical and Atomic Workers International Union, AFL-CIO, was certi-
fied on January 28, 1966, and at all times thereafter has been the duly certified
collective-bargaining representative of Respondent's employees in the appropriate
unit, within the meaning of Section 9(a) of the Act.
5. By refusing on and after February 1, 1966, to meet with the above-named labor
organization for purposes of collective-bargaining, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(5) and' (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that American Oil Company, Wood River, Illinois,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Oil, Chemical and Atomic Workers
International Union, AFL-CIO, as the exclusive representative of all employees in
the bargaining unit.
(b) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of the rights to self-organization, to form, join, or assist
any labor organization, to bargain collectively through representatives of their own
choosing and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and all such activi-
ties, except to the extent that such right to be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized in
AMERICAN OIL COMPANY:' 545.
Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affiimative action which I.find will effectuate the policies of
the Act:
(a) Upon request bargain collectively with Oil, Chemical and Atomic Workers
International Union, AFL-CIO, , as the executive bargaining representative of all
employees in the appropriate unit described above, 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.6
(b) Post at its place of business in Wood River, Illinois, copies of the attached
notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional
Director for Region 14, shall, after being signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to 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, in writing, within 20 days from date of
receipt of this Decision, what steps it has taken to comply herewith .8
6 The complaint also names as a bargaining agent Local 7-776, OCAW, chartered by
the International Union in November of 1965, after the election, as bargaining agent of
the employees involved. Whether, in its blanket refusal to recognize the certified Union,
the Respondent in this instance also violated the statute in its refusal to deal with the
chartered local, is beside the true issue of the case It is only the validity of the certificate,
naming only the International as the employees' choice, that is in litigation The Respond-
ent will, of course, bargain with the chosen spokesmen of the certified Union.
71n. the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
8In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our ,employees that:
. WE WILL NOT refuse to bargain collectively with Oil, Chemical and Atomic
Workers International Union , AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below:
All operating and maintenance employees of our Wood River , Illinois,
oil refinery , including process supervisors , but excluding office and clerical
employees , professional employees , watchmen , guards, and supervisors as
defined in the Act.
WE WILL NOT in any like or related manner interfere with , restrain, or
coerce our employees in the exercise of their right to self-organization, to
form, join, or assist any labor organization , to bargain collectively through
representatives of their own choosing and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities , except to the extent that such
rights may be affected by an agreement requiring membership in a labor orga-
nization as a condition of employment as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and Disclosure Act of
1959.
257-551-67-vol. 160-36
546 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively , upon request , with the Union as the exclusive
representative of all our 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.
AMERICAN 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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 1040
Boatmen's Bank Building , 314 North Broadway, St. Louis, Missouri 63102, Tele-
phone 622-4156.
Morris Weiss d/b/a Mook Weiss Meat Packing Company and
Terry Weiss d/b/a Crown Meat Company and Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, Local 515
Morris Weiss d/b/a Mook Weiss Meat Packing Company and
Terry Weiss d/b/a Crown Meat Company and James C. Prewitt.
Cases 26-CA-2154, 26-RC-2420, and 26-CA-2245. August 18,
1966
DECISION AND ORDER
On April 20, 1966, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that the Respondents had not
engaged in certain other unfair labor practices alleged in the consoli-
dated complaint and recommended dismissal of such allegations. In
addition, the Trial Examiner sustained the challenge to the ballot of
Seymour Levinson, overruled the challenges to the ballots of Quinton
Spruille, Freddie McFerren, and John Cole, Jr., and recommended
that the latter ballots be opened and counted. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed cross-exceptions and
a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
160 NLRB No. 43.