American Oil Co.

National Labor Relations Board - Board Decisions

Apr 18, 1967

164 N.L.R.B. 36 (N.L.R.B. 1967)

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Oil Company and Research and
Engineering Professional Employees
Association . Case 13-CA-7292.
April 18,1967
DECISION AND ORDER
On June 6, 1966, Trial Examiner John H. Eadie
issued his Decision in the above-entitled proceeding,
find that the Respondent had not engaged in unfair
labor practices as alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed a brief in support of the Trial Examiner's
Decision.
The Board has reviewed the rulings of the Trial
Examininer made 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 briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN H. EADIE, Trial Examiner: This proceeding was
held before me in Chicago, Illinois, on April 19, 1966, on
the complaint of the General Counsel and the answer of
American Oil Company, herein called the Respondent.'
The issues litigated were whether the Respondent violated
Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended. At the conclusion of the General Counsel's
case the Respondent moved to dismiss the complaint.
Ruling on the motion was reserved by me. The
Respondent then without adducing further evidence
rested its case. The motion to dismiss is disposed of as
hereinafter indicated. After the conclusion of the hearing
the General Counsel and the Respondent filed briefs with
me.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Maryland corporation. It maintains,
a plant and refinery at Whiting, Indiana, at which it is
' Charges were filed by Research and Engineering Professional
Employees Association , herein called the Association, on
engaged in the manufacture and sale of petroleum and
petroleum products.
During 1965 the Respondent manufactured and sold
petroleum and petroleum products valued in excess of $10
million, which were shipped from its Whiting plant and
refinery to States of the United States other than the State
of Indiana.
The complaint alleges, the answer admits, and I find
that the Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and I find, that the
Association is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Association, certified by the Board, has
represented the Respondent's professional employees
since March 1, 1944; and the Respondent has recognized
and bargained with it since that time. The last collective-
bargaining agreement between the parties was executed in
1963. Article VII of the contract provided:
The Company shall make paycheck deductions
monthly from the salary of any employee for the
amount of the employee's membership dues to the
Association, upon written authorization signed by said
employee. Dues so collected by the Company shall be
paid to the Treasurer of the Association within ten
(10) days following the deduction. An employee may
revoke the authorization to deduct Association dues
at any time by individual written notification to the
Company.
Article XVII of the contract provided that if written notice
of termination were given at least 75 days before the
termination, April 30, 1964, "the entire Agreement shall
terminate on the termination date...."
The above agreement was terminated by notice from the
Association to the Respondent, dated February 10, 1964.
This notice requested negotiations for a new agreement.
Starting on February 12, 1964, the parties met to negotiate
a new agreement. Prior to this there had been meetings
between the Respondent and the Association concerning
the designation by Respondent of certain employees as
supervisors. Agreement was reached on salary and other
economic matters on October 20, 1964; but, because of the
dispute as to the scope of the bargaining unit, negotiations
on a complete agreement were postponed until the
National Labor Relations Board issued its ruling in Case
13-RC-2035. There had been no discussion of dues
checkoff during the negotiations prior to October 20, 1964.
At the meeting held on October 20, Grace Marsh,
negotiator for the Association, wanted to continue
negotiations until agreement was reached so that the
employees would be protected. John Strange, who
represented the Respondent at the meeting, assured the
Association "need not worry about having a contract
because working conditions ... could not be changed
unilaterally under the law."
On October 21, 1964, the Respondent sent the
Association the following letter:
This is to confirm our understanding that our-
remaining negotiations are to be postponed until the
December 29, 1965, and February 16, 1966 The complaint issued
on February 18, 1966.
164 NLRB No. 11
AMERICAN OIL COMPANY
National Labor Relations Board issues its ruling in
Case No. 13-R-2035.
As we have discussed, the Company will place into
effect the economic improvements contained in the
Memoranda of Agreements dated October 20, 1964,
even though collective bargaining is not yet concluded
and there is not a complete agreement on all items
included in your proposal dated February 21, 1964,
and any other open items.
If this letter does not correctly record our
understanding, please let us know.
The Respondent sent a letter, dated July 6, 1965, to the
Association as follows:
Effective July 15, 1965, the Company intends to
discontinue dues checkoff as set forth in Article VII,
Section 1 of our expired collective bargaining
agreement. The Company is prepared to meet and
discuss this matter if you desire.
Dues checkoff has been continued on a month to
month basis without a contract while the parties were
awaiting the National Labor Relations Board decision
in Case No. 13-R-2035. At no time did the parties
contemplate that so much time would elapse before
receiving the NLRB decision. The Company does not
want to render any monetary assistance or support to
your union by means of dues checkoff. For this
reason, subject to our offer to meet, dues checkoff is
being discontinued.
On the same date the Respondent sent the following letter
to its "R & D Professional Staff":
As you are probably aware, REPEA terminated its
contract with the company at the end of April 1964,
and there has not been a contract since then. In such
noncontract situations the company is legally
expected not to make unilateral changes in conditions
of employment, and the company has not done so. In
addition, we have continued to provide REPEA with
salary data and other information on represented
employees and to deduct REPEA dues from
employees' paychecks.
The company has been concerned that these
actions-particularly the continuation of dues
deductions-may be taken as indication that the
company favors REPEA. Actually this is not
so-REPEA is a recognized labor union which is in no
way sponsored or maintained by the company. To
avoid any possible misunderstanding on this point,
the company has notified REPEA of its intention to
discontinue dues checkoff, effective July 15.
The company recognizes that any group of
employees is free to decide whether it will be
represented by a union, without any interference by
the company. When a group has chosen to have a
union, the company respects this decision and
bargains with the union in good faith. It is the
company's view, however, that unionism is
inconsistent with the professional aspirations of
engineers and scientists. The fact that over 95% of the
nation's engineers and scientists have chosen not to
be represented by unions attests to the point that this
view is widely held among professional men.
We know that most of you hold your own personal
convictions regarding the justification for union
representation. We hope you also understand the
company's position and the fact that we are simply
trying to make our actions entirely consistent with our
beliefs.
At the Association's request, the parties met on July 14.
37
On that date and thereafter they bargained not only on the
Respondent's proposed discontinuance of dues checkoff,
but also generally on a new collective- bargaining
agreement. At a meeting held on July 29 the Respondent
and the Association each presented its proposed contract.
There were various differences in the proposals, one of
which was that the Association's proposal included
checkoff and the Respondent's did not.
During the year of 1965, there were about 25 meetings
between the Respondent and the Association. The
meetings were held "at least every two weeks, sometimes
as often as twice a day." The parties bargained on dues
checkoff and other proposals. At a meeting in August and
in later meetings , when the Association asked the
Respondent if it had reconsidered its position on checkoff,
the Respondent answered that it did not want dues
checkoff included in a new contract as this would be
"doing a favor for the Union" and it did not want "to do
anything to aid the Union."
On September 13, 1965, the Respondent distributed a
letter to its "R & D Professional Supervisors." This letter
states in part:
It is the Company's view that unionism is
incompatible with the professional aspirations of
engineers and scientists . A dues checkoff, we believe,
is inconsistent with this view.
At a meeting held on September 14, the Association
proposed that it would bear the cost to Respondent of
checking off dues if the cost was reasonable. The
Respondent took this proposal "under advisement." At a
meeting held on September 23 the Respondent answered
that the cost of dues checkoff was not an issue, and that it
did not want dues checkoff in the new agreement. At a
later meeting the Association proposed that dues be
checked off on an annual or a semiannual basis so as not to
inconvenience the Respondent, or to have "a letter of
agreement outside the working agreement" which would
provide for dues checkoff. The Respondent rejected both
proposals.
On October 19, 1965, the Respondent distributed the
following letters to its "R & D Professional Staff":
Last Monday, October 11, the Company offered a
4-1/2% general increase to REPEA. This increase
would be effective the first day of the pay period in
which it was accepted. (In this case , acceptance
means acceptance by the union negotiating
committee with a recommendation that the
membership ratify the agreement. Ratification by the
membership could occur after expiration of the pay
period.)
As you know, REPEA cancelled its contract early
in 1964. Therefore, a part of the Company's offer is
signing of suitable new agreements. REPEA is
insistent that the new working agreement contain a
provision that the Company will make pay-check
deductions of REPEA dues. Unlike other unions,
REPEA represents professional employees. The
Company intends to deal with the union representing
its employees as required by law. However, as you all
know, the Company believes that unionism and
professionalism are incompatible. Therefore the
Company's position is that it should not take any
action which could be construed as an act in favor of
unionism for its professional employees. Thus it is our
position that the contract should not include a
provision for pay-check deductions of union dues
since that is a service for the convenience of the union
which the law does not require.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company met with REPEA fifteen times
during the period July 14-October 15 to discuss the
check-off and other wage and contract items. The
most recent meeting lasted until midnight , Friday,
October 15. At that meeting the union failed to accept
the Company ' s offer. This means that the general
increase will not be effective October 1 . If the union
accepts by October 31 , the increase will be effective
October 16 , and I hope that this will be the case. Each
pay period that is passed by the union means a loss of
over $6,000 in salary increases for the people its
represents.
At meetings held during October and November the
Association proposed that it collect its own dues "on
company time"; that the issue of checkoff be submitted to
arbitration ; and that the dues be paid to "professional
societies" or used for "paying expenses to outside -of-town
technical meetings annually ." The Respondent refused to
agree to any of these proposals.
A meeting between the parties was held on or about
October 28 . Concerning this meeting, Robert Lyons
testified credibly as follows:
We asked the Company if [we] took a poll of our
members on the question of whether or not they
would accept a contract which did not include dues
checkoff would be accepted . We asked the Company
if we did this, would it make any difference.
As I recall , their answer was, "Well , it might . It would
depend on the poll."
We said , "Well, may we recess and reconvene in the
afternoon."
. we took a poll , and the results were something
like, as I recall , 115 not to accept the contract without
dues checkoff and 75 would.
The meeting time for reconvening had been
established when we broke up, and we reconvened at
a time like 3:30 and we presented the results of our
poll and asked again-"Now, you see, these results.
Will you give us dues checkoff?"
Their answer was a little vague at first to the extent
that we were told how about the people that didn't
vote, and we said most of the ones that didn 't vote in
this poll weren 't members and the Company asked us
why didn 't we consider their wishes, and , of course,
the answer was obvious . If they wanted to join the
Association , they were entitled to a voice in it and
we'd be glad to have them join . If they didn't want
them to join, we really felt they were not entitled to a
vote in it , and, consequently , their wishes were
irrelevant.
Now, the upshot of the meeting was that they would
not include dues checkoff in a contract.
The Association made oral and written proposals to
accept economic benefits, such as an "extra holiday," as a
substitute for a checkoff clause. The Respondent refused
to agree to such proposals . On one occasion Robert Steel,
the Respondent ' s representative , stated that the
Association could not trade "something for something" it
did not have , as "the dues checkoff was going" and did not
"exist anymore."
By November 30, 1965, each side had made various
concessions and had reached agreement on all issues, with
the only exception being checkoff. However, the
Respondent agreed to settle economic matters and to put
the negotiated wage increases into effect while leaving
other contract matters, including the issue of checkoff,
open. On December 10 the parties executed a
"Memorandum of Agreement" on salaries , and a letter of
understanding on general contract matters. The salary
agreement provided , among other things, for a 2-1/2
percent increase effective November 16, 1965.
The Respondent and the Association held bargaining
sessions after December 10. The last session was in
March. At these meetings they bargained on checkoff and
other issues raised by the Association, such as life
insurance and pension plans. The Respondent 's position
on checkoff did not change.
CONCLUSIONS
The General Counsel contends that the evidence
establishes violations of Section 8(a)(5) of the Act in that
the Respondent unilaterally discontinued checkoff of dues
and thereafter refused to bargain in good faith with the
Association concerning reinstitution of dues checkoff as a
provision of a new agreement . I disagree.
The evidence shows that on July 6, 1965, the
Respondent gave the Association notice of its intention to
discontinue checkoff of dues effective July 15. In the
notice the Respondent offered to meet and discuss the
matter. The evidence further shows that the Association
accepted the Respondent 's offer, and that starting on
July 14 the parties met and bargained on this and other
issues. As pointed out in the Respondent 's brief, "the
record is notably silent as to the content and outcome of
that bargaining on the proposed discontinuance of
checkoff (as opposed to the issue of whether a new
contract should contain a checkoff provision), or as to
when and under what circumstances in relation to that
bargaining the Respondent in fact ceased to check off
dues following its offer to bargain . In short , there is no
showing whatever that the Respondent did not discharge
whatever bargaining obligations were imposed on it by the
Act as a condition precedent to unilateral action ." Further,
there is nothing in the record to show that the Respondent
discontinued checkoff under circumstances which either
directly evidenced bad faith or from which a necessary
inference of bad faith may be derived . The undisputed
facts are in accord with the Board's requirements with
respect to contemplated changes in conditions of
employment .2 Accordingly, I find that the General
Counsel failed to sustain the burden of proof as to this
allegation of the complaint.
With respect to the alleged unilateral discontinuance of
checkoff, both the General Counsel and the Respondent
cite in their briefs Bethlehem Steel Company, 136 NLRB
1500 , and Standard Oil Company of California, Western
Operations , Inc., 144 NLRB 520. The General Counsel
argues that under these cases the Respondent did not have
the right to unilaterally discontinue checkoff since "the
dues checkoff provision herein considered is in no way
tied to the term of the Agreement ." The Respondent
argues otherwise . In view of the above finding, I find it
unnecessary to resolve this issue of law. However, under
the facts in this case , I do agree with the Respondent's
argument in the matter.
2 Town & Country Manufacturing Company, 136 NLRB 1022,
Fibreboard Paper Products Corporation, 138 NLRB 550
AMERICAN OIL COMPANY 39
This leaves the question of whether the Respondent
failed and refused to bargain in good faith concerning the
matter of dues checkoff on and after July 14, 1965. The
Respondent made known to its employees its view that it
did not favor "unionism" for "engineers and scientists."
This expression of policy directly related to the question of
dues checkoff. On a number of occasions the Respondent
stated that it would not grant checkoff because it did not
want to render any assistance to the Association. This is
the only evidence in the case that might tend to support
the General Counsel's claim of bad-faith bargaining.
The Respondent had a right to make known its view to
its employees. In its letter of July 6, 1965, it made clear
that it wanted to remove any erroneous impression of its
employees that the Association was "sponsored and
maintained" or favored by the Respondent. The
Respondent stated that ,to avoid any possible
misunderstanding on this point" it intended to discontinue
checkoff. However, it further stated, in substance, that it
respected the employees' right to choose the Association
as their bargaining representative, and that it intended to
bargain with the Association "in good faith." The above
provides the Respondent's motive for its later position on
checkoff, and is consistent with its statements at
bargaining sessions to the effect that it would not agree to
checkoff because it did not want to aid the Association.
This was a legitimate reason for its stand; and I find
nothing in the record to justify an inference that the
Respondent's position on checkoff was taken solely for the
purpose of frustrating agreement with the Union.
The evidence discloses that the Respondent met and
bargained with the Association whenever requested and
made concessions to the Association, apparently in an
attempt to reach that agreement. In fact, the only issue
standing in the way of a contract by November 30, 1965,
was a checkoff provision. Even then the Respondent
agreed to put the negotiated salary increases into effect
retroactively without insisting on complete agreement on a
contract. From this it does not appear that the Respondent
was acting in derogation of the Association's status as the
colllective-bargaining representative of the employees.
From all of the evidence I conclude and find that the
General Counsel also failed to sustain the burden of
providing this allegation of the complaint.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in
its entirety.