Central States Petroleum Union, Local 115

National Labor Relations Board - Board Decisions

Apr 15, 1960

127 N.L.R.B. 223 (N.L.R.B. 1960)

CENTRAL STATES PETROLEUM UNION, LOCAL 115 223
Central States Petroleum Union , Local 115 [Standard Oil Com-
pany] and Gruenberg & Schobel , Attorneys and Local 483,
International Brotherhood of Boilermakers , Iron Ship Build-
ers, Blacksmiths , Forgers , and Helpers of America , AFL-CIO
and Ralph Schoeneweis and E. C. Jones, Charging Parties
Standard Oil Company , an Indiana Corporation and Local 483,
International Brotherhood of Boilermakers , Iron Ship Build-
ers, Blacksmiths , Forgers and Helpers of America, AFL-CIO
and Gruenberg & Schobel , Attorneys and Ralph Schoeneweis
and E. C. Jones, Charging Parties. Cases Nos. 14-CB-515,
14-CB-5892, 14-CB-581, 14-CB-604, 14-CB-656, 14-CA-1712, 14-
CA-1737, 14-CA-1836, 14-CA-1837, 14-CA-1877, and 14-CA-
1938. April 15, 1960
DECISION AND ORDER
On March 3, 1959, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and supporting briefs.
On October 6, 1959, the parties participated in oral argument before
the Board in Washington, D.C.
The Board has considered the Intermediate Report, the exceptions
and briefs, the oral argument, and the entire record in these cases. We
find merit in the exceptions and accordingly adopt the findings and
conclusions of the Trial Examiner only insofar as they are consistent
with our Decision herein.
Background : The instant cases are an outgrowth of a representa-
tion proceeding commenced in October 1956 when Local 4831 filed a
petition with the Board to sever all boilermaker department employees
from an existing operating and maintenance unit at Standard's Wood
River, Illinois, refinery. (Severance petitions for other departments
were also filed, but these ultimately were either dismissed or with-
drawn.) When Local 483'ls petition was filed, and for a number of
years before, all employees in the operating and maintenance unit,
including the boilermakers, were represented by CSPU. CSPU had
previously given Standard notice to terminate, effective December 27,
1956, its current collective-bargaining agreement; and on the filing of
1 The Charging Party, Local 483, International Brotherhood of Boilermakers , Iron Ship
Builders , Blacksmiths , Forgers, and Helpers of America, AFL-CIO, is referred to herein as
Local 483 ; Respondent Standard Oil Company is referred to as Standard ; and Respondent
Central States Petroleum Union, Local 115 is referred to as CSPU.
127 NLRB No. 31.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the severance petitions , CSPU advised Standard that it was suspend-
ing bargaining with Standard respecting employees "involved" in the
representation proceedings . Following a period of negotiation,
CSPU and Standard entered into a new contract on May 3, 1957,
covering employees in the operating and maintenance unit, but specifi-
cally excluding those "involved " in the pending representation
proceedings.
Like the previous agreement , the new contract provided for the
accumulation of plant, divisional , and departmental seniority, and
specified how such seniority could be exercised . In essence, it was
provided that every employee began to acquire plant seniority from
his date of hire. On entrance into one of the divisions , an employee
would begin to acquire , in addition to his plant seniority , seniority
within that division . By moving into a department , he would begin
to acquire seniority within that department. An employee 's seniority
standing in his department , in his division , and in the plant governed
both his security in his job and his opportunity to advance within his
own division and department . If, in the event of a layoff within his
own division or department , an employee lacked sufficient seniority to
retain employment there, he could "bump back" to a "labor pool," and,
by exercising his plant seniority , displace employees within the pool
having less plant seniority . By exercising his plant seniority or di-
visional seniority , an employee could also "bid" for transfers to other
jobs in other departments or divisions . Once transferred , however,
an employee would lose all seniority accumulated in his former de-
partment or division, and would start anew to acquire seniority in his
new department or division.
As noted, the 1957 contract excluded from its coverage all em-
ployees involved in the then pending representation proceedings.
However, simultaneously with the signing of this contract , CSPU and
Standard orally agreed ( termed a "gentlemen 's agreement") that
pending disposition of the representation proceedings , the excluded
employees would be treated as though they had the same rights which
they had had under the expired contract in respect to "bumping back"
to the labor pool; but no agreement was made respecting any right to
"bid" into other departments . Shortly after the signing of the new
contract , Standard unilaterally extended to the excluded employees
the wage increases and other benefits given to the covered employees.
On August 20, 1957, the Board directed an election among the boiler-
maker department employees (Standard Oil Company, 118 NLRB
1099 ). The election was held on September 19, 1957, and of the 22
employees then working in the boilermaker department , 19 voted for
Local 483 and 3 voted for CSPU . Of the remaining 18 carried on
the boilermaker seniority list, none of whom was then working in the
boilermaker department , one (E. C. Jones ) did not attempt to vote,
CENTRAL STATES PETROLEUM UNION, LOCAL 115 225
another did not vote because he had retired, and the ballots of 16 were
challenged by Standard. Jones and the 16 challenged employees had
previously bumped back to the labor pool because of a slackening in
boilermaker department work.
On October 24, 1957, E. C. Jones attempted to bid into the labor
pool. CSPU advised Standard that Jones had no "bidding" rights
because he was not covered by their current contract, and that if
Standard honored any bid by anyone not covered by that contract,
CSPU would feel free to use "legal and economic remedies" to compel
compliance with the contract. Jones' bid was denied.
On November 5, 1957, the Regional Director concluded that the
challenges to the 16 ballots should be overruled. On November 12,
1957, Standard filed with the Board a motion for dismissal of the
representation petition, or, in the alternative, for a supplemental deci-
sion clarifying the Board's unit finding and defining the bargaining
rights of a certified labor organization. Standard's motion was de-
nied? In February 1958, while Standard's motion was pending before
the Board, Jones and other boilermakers then working in the labor
pool (Schoeneweis, Best, Miller, and Lankford) attempted to bid into
other promotional groups and departments in the operating and main-
tenance unit. All bids were denied.
In April 1958, the Board overruled the challenges to the 16 ballots
and ordered them to be counted. A revised tally of ballots showed 35
votes for Local 483 and 3 for CSPU. After the tally issued, CSPU
advised Standard that when the Board certified Local 483, all boiler-
makers working in the labor pool wouldhave to be replaced by operat-
ing and maintenance employees then in a layoff status; and if this
were not done, CSPU would strike the refinery.
On April 17, 1958, the Board certified Local 483 as representative of
the boilermaker unit. On that date each of the 17 boilermakers then
working in the labor pool (as the result of having been bumped back)
was laid off and replaced by a recalled operating and maintenance
employee. The group laid off included two employees who were
actually working in the boilermaker department at the time of the
election, but who had been bumped back to the labor pool subsequent
to that date.
On the basis of the foregoing, the Trial Examiner found that by
causing Standard to lay off 17 employees on April 17, 1958, and by
causing Standard to reject certain 3 bids of employees for transfer,
2 Standard 's motion ( in which CSPU subsequently joined in part) was denied on
March 26, 1958.
3 The Trial Examiner found no violation in the denial of Jones' bid of October 1957 in
that the labor pool was not a department or promotional group into or out of which any
employee could bid. The Trial Examiner also found that the denial of Miller 's bid was not
violative of the Act . It was conceded by the General Counsel that this employee lacked
sufficient seniority even if covered by CSPU's contract to be entitled to the transfer sought.
We adopt the Trial Examiner's findings here not only for the reasons given, but for
the additional reasons set forth in this Decision.
,560940-61-vol . 127-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CSPU violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act; and that,
by so laying off and denying the transfers, Standard violated Section
8(a) (1), (2), and (3) of the Act. We disagree with these findings.
1. In finding that the layoff of the 17 boilermakers violated the Act,
the Trial Examiner reasoned that because no layoffs would have been
made if the boilermakers as a group had not voted for Local 483, the
boilermakers were unlawfully laid off for that reason-i.e., for voting
for Local 483. In our view, the Trial Examiner has oversimplified
the matter and in so doing has failed to give proper recognition to the
nature of a craft severance proceeding. What the Trial Examiner has
interpreted as unlawful causation is, in our opinion, merely an effect
of the severance action. We find, in the circumstances of this case,
that severance having been effected, the craft employees had to look
to their chosen bargaining representative with respect to any benefits
sought to be obtained thereafter. The rejected representative con-
tinuing, however, to represent the employees in the unit who were not
severed, may at times be compelled to take action on behalf of the
employees it represents which may be detrimental to the severed em-
ployees no longer in its unit. Thus, in the instant case, CSPU had a
contract with Standard providing for the accumulation of seniority
(with attendant job security rights) by employees in the unit it repre-
sented on jobs within that unit. The provision was a valid one.'
We fail, therefore, to perceive how it may be held that CSPU violated
the Act by merely demanding that Standard give effect to the seniority
provisions of the contract.
We have, in reaching the conclusion that the layoffs did not violate
the Act, considered the various reasons advanced by the Trial Ex-
aminer in support of his finding to the contrary. We find those reasons
to be without merit. In the first place, Nye have, on the basis of the
considerations stated above, found that the 17 boilermakers who, after
the severance election, were working in the operating and mainte-
nance labor pool, neither had seniority status in, nor after the certifica-
tion of Local 483, were members of, the operating and maintenance
unit. We expressly reject the Trial Examiner's finding to the con-
trary. Secondly, and again with respect to seniority, the Trial Ex-
aminer indicated that the boilermakers had seniority status apart
from any collective bargaining agreement and that this seniority
status was "acquired by grant" of Standard. The record offers no
support for such a finding; but, to the contrary, establishes that such
seniority rights as were possessed by an employee at any time arose
out of contract between CSPU and Standard. We think it basic that
seniority rights are not inherent in an employer-employee relation-
4 Cf. Local Union No. 6281 , United Mine Workers of America ( Consolidation Coal
Company ), 100 NLRB 392 , 393, wherein the Board recognized that a union may strike
to compel an employer to abide by contract provisions giving employees seniority rights.
CENTRAL STATES PETROLEUM UNION, LOCAL 115 227
ship.' The fact that boilermakers once enjoyed such rights under
earlier contracts does not tend to establish that those rights continued
after their contractual coverage was extinguished. Thirdly, respect-
ing the unit status of the boilermakers, the Board did not, as indicated
by the Trial Examiner, at any stage in the severance proceeding find
that boilermakers would have a dual unit status, thus making them
members of both an operating and maintenance unit and it boiler-
maker unit at the same time. Nor did the Board find, as suggested
by the Trial Examiner, that "bumped back" boilermakers were eligi-
ble to vote in the severance election on a theory that they were "part-
time" or "transient" employees. On the contrary, in its Decision
(Standard Oil Company, 118 NLRB 1099), the Board recognized that
during slack periods a boilermaker might take an assignment to non-
boilermaker work, but the Board specifically noted that such assign-
ments were temporary and not such as would affect the status of boiler-
makers as true craftsmen. Thus, notwithstanding a boilermaker's
temporary engagement in nonboilermaker work, he remained at all
times and for all purposes a boilermaker.
We also reject the Trial Examiner's similar finding that the 17
boilermakers were in fact covered by the CSPU-Standard contract
because they were engaged in operating and maintenance work. In
this connection, we note that the contract specifically excluded all
employees involved in the representation proceeding which was pend-
ing when the contract was signed. Moreover, the presence of boiler-
makers in the labor pool at the time of the certification of Local 483
was not by virtue of the contract, but solely by reason of the oral or
"gentlemen's agreement" between CSPU and Standard to the effect
that pending disposition of the representation case boilermakers
would be treated as though they had the same rights which they had
under the expired contract in respect to bumping back to the labor
pool.
2. The Trial Examiner based his finding that Respondent violated
the Act by its bid denials upon the same reasoning that underlay his
finding with respect to the layoffs. For the reasons indicated, we also
reject the reasoning in connection with the bid denials. Moreover,
we think that the' Trial Examiner erred in considering the issue of
the legality of the bid denials by failing to give weight to the Board's
Midwest Piping rule.' Under that rule, an employer faced with rival
5 Ford Motor Company v . Huffman, 345 U.S 330 ; Aeronautical Industrial District
Lodge 727 v. Campbell et al, 337 U . S. 521, 526; Cardenas v. Wilson & Company, Inc.,
180 F. 2d 828 (CA. 10).
a Midwest Piping & Supply Co., Inc., 63 NLRB 1060; reaffirmed in Shea Chemical
Corporation, 121 NLRB 1027 . In Shea Chemical Corporation , the Board specifically held
"that upon presentation of a rival or conflicting claim which raises a real question con-
cerning representation , an employer may not go so far as to bargain collectively with the
incumbent ( or any other ) union unless and until the question concerning representation
has been settled by the Board ." [ Emphasis supplied.]'
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation claims must maintain a strictly neutral position, and
must not bargain with an incumbent or any other union unless and
until the question concerning representation has been settled by the
Board. Thus, Standard, faced with a real claim by Local 483 to repre-
sent the boilermakers, could not have bargained with CSPU for these
employees while Local 483's petition was pending before the Board.
It follows that Standard and CSPU properly excluded the boiler-
makers from the coverage of their contract. Having thus been spe-
cifically excluded from the contract in accordance with a legal ob-
ligation, it would be inconsistent to assert that the boilermakers had
rights (e.g., to bid into other departments) based on that contract.
3. There is another reason compelling the dismissal of the com-
plaints. This is that there is missing here proof of an element es-
sential to an 8 (b) (2) and 8 (a) (3) finding : intent to encourage or
discourage membership in a labor organization.
Specific evidence of intent is, of course, not always essential to a
showing of a violation. Thus, as the Supreme Court held in Radio
Officers',' where the employer's disparate treatment of its employees is
based on union membership or lack thereof, the unlawful intent may
be presumed. The governing principle in such cases as stated by the
Court in that case is that "specific proof of intent is unnecessary where
employer conduct inherently encourages or discourages union mem-
bership...." 8 On the other hand, where the employer's conduct
does not inherently so encourage or discourage union membership, it
is clear that the presumption does not obtain and "the necessity for
independent evidence of discriminatory motivation is not obviated." s
In the Radio Officers' case the Supreme Court did not have before
it any issue respecting disparate treatment in a situation where, as in
the instant case, the union was not the exclusive bargaining agent of
all employees concerned. Indeed the Court expressly stated that it
was not passing upon the legality of disparate treatment in such cir-
cumstances.10 This limitation upon the scope of Radio Officers' was
recognized by the Board in Anheuser-Busch, Inc., 112 NLRB 686,
and again in Speidel Corporation, 120 NLRB 733. In the latter case,
the Board specifically held that where the union is not the exclusive
bargaining agent of all the employees, the Board may not, without
reference to the employer's actual motivation, properly infer dis-
criminatory intent solely from the disparate conduct itself. The
Board further held that in such circumstances, if it is to be inferred
that the employer was discriminatorily motivated, this must be done
on the basis of evidence other than the disparate treatment of its
employees.
'Radio Officers' Union of the Commercial Telegraphers Union, AFL ( A. H. Bull Steam-
ship Company ) v. N.L.R.B., 347 D.S. 17.
8 Ibid., at p. 45.
0 Anheuser-Busch, Inc , 112 NLRB 686, 690.
10 347 U.S. 17, 47.
CENTRAL STATES PETROLEUM UNION, LOCAL 115 229
In the Anheuser-Busch case the employer had extended an economic
benefit to the employees in one bargaining unit, represented by its own
bargaining representative, without according the same treatment to
the employees in another separate bargaining unit, represented by an-
other bargaining representative. The Board held that "the statutory
scheme did not contemplate that disparate treatment among employees
in different separate units along unit lines would, by itself, give rise
to a finding of discrimination." Rather, the Board said, the infer-
ence of unlawful motivation must be predicated on other independent
evidence.
Applying these principles to the instant cases, it is clear that the
facts do not warrant a finding that there was inherent in Standard's
conduct an unlawful intent to encourage or discourage membership
in any labor organization. While there was differentiation in treat-
ment between the boilermakers and the operating and maintenance
employees, this differentiation in treatment was not based on "mem-
bership" in a union. Rather, it is clear, the differentiation in treat-
ment was based on membership in a, unit. Nor is there here independ-
ent evidence showing that the Respondent's action was motivated by
discriminatory intent. Thus there is nothing in the record tending to
prove that Standard was motivated by any unlawful animus toward
Local 483 or by any purpose other than its avowed purpose-i.e., to
comply with what it considered the law required and with the terms
of its bargaining agreement with CSPU.
For the foregoing reasons, we shall dismiss the complaints.
[The Board dismissed the complaints.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly designated
Trial Examiner in St. Louis , Missouri , on November 18 through 21, 1958, on con-
solidated complaints of the General Counsel and answers of Central States Petro-
leum Union, Local 115, herein called Local 115, CSPU, and the Respondent
Union, and of Standard Oil Company , an Indiana corporation , herein variously
called Standard , the Company , or the Respondent Company. The principal issue
litigated was whether the Respondent Union had violated Section 8(b)(1)-(A) and
8(b)(2) of the Act and whether the Respondent Company had violated Section
8(a)(2), (3), and (1). Briefs were received by the Trial Examiner from the
General Counsel and both Respondents.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS 1
I. THE BUSINESS OF THE COMPANY RESPONDENT
Standard Oil Company , an Indiana corporation , has its principal office and place
of business in Chicago , Illinois. It is engaged in the business of refining , transport-
1 The General Counsel and counsel for the Charging Parties filed motions to correct a
number of minor inaccuracies In the transcript ; no objections were made thereto. The
motions are granted , the motion papers are hereby made part of the record , and the
record is corrected accordingly.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and marketing petroleum and petroleum products ; among other things, it oper-
ates a refinery at Wood River , Illinois. Standard annually ships products valued in
excess of $50,000 across State lines.
The parties agree, and I find, that the Respondent Company is engaged in com-
merce within the meaning of the Act , and that it will effectuate the purposes of the
statute to exercise jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Central States Petroleum Union , Local 115, and Local 483, International Brother-
hood of Boilermakers , Iron Ship Builders , Blacksmiths , Forgers, and Helpers of
America, AFL-CIO, are labor organizations within the meaning of Section 2(3)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The events giving rise to this case arose in the Company's Wood River refinery,
where for many years CSPU has been the bargaining agent for a comprehensive
unit of operations and maintenance employees . There came a time in 1956 when
the employees in the boilermaker department , a mechanical or maintenance division
group, chose to be represented separately as a craft unit . Over repeated and vigor-
ous protests by the Company and CSSPU, the Board ruled such a unit to be appro-
priate, held the severance election requested by the boilermakers, and eventually in
1958 certified Local 483, International Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths , Forgers, and Helpers of America, AFL-CIO, herein called
Local 483, as bargaining agent for the boilermaker department? In keeping with
a complex plantwide system of seniority in existence for over 20 years, a number
of boilermakers were "temporarily" at work in departments which remained a part
of the old operations and maintenance unit. In direct consequence of the boiler-
makers' decision to be separately represented by Local 483 in the boilermaker
department, and pursuant to a previously announced plan , CSPU, on threat of strike,
caused the Company to lay off 17 boilermakers on April 17, 1958, when the Board
certificate issued. The complaint alleges that: (1) Such layoffs constituted dis-
crimination by the Company in violation of Section 8(a) (3) and ( 1) of the statutes;
(2) they also constituted unlawful assistance to CSPU within the meaning of
Section 8(a)(2); and (3) CSPU violated Section 8(b)(2) and (1) (A) in causing
the Company to take such action.
B. The pertinent facts
1. Testimony and exhibits
The General Counsel and the two Respondents stipulated upon a 60-page "agreed
statement of facts," and offered it into evidence , in place of sworn testimony , together
with 52 stipulated exhibits . Counsel for the Charging Parties refused to sign the
stipulation and objected to admission of both the statement and the exhibits on the
grounds that much of it is immaterial , and some of its contents inaccurate The
General Counsel , without specifying , agreed that many of the exhibits and many
of the "facts" so stated are irrelevant to the issue of this case , and explained that he
proceeded in this manner because the exhibits did establish those facts which be
believed necessary to support the complaint . He did not, either on the record or
in his brief, single out which facts, or what "evidence ," should be considered perti-
nent. The Charging Parties and the Respondents were permitted to and did intro-
duce evidence pertinent to the complaint.3
Because of the manner in which the General Counsel chose to proceed, the record
contains much evidence which is argumentative or immaterial in this proceeding,
and which in substance is only an attempt to relitigate and reargue the merits of the
representation case issue decided by the Board in the earlier proceeding . The Board
having finally decided , after full consideration of the arguments and facts, that a
"boilermaker department" unit is appropriate for bargaining purposes in this refinery,
I deem that question no longer open for consideration or litigation here. Accord-
ingly, I will set out only those facts, as to which there is practically no dispute,
which bear a relationship to the issue of this case : whether the 2 Respondents acted
2 Standard Oil Co , 118 NLRB 1099 ; order denying motions, dated march 26, 1958,
unpublished.
B Borg-Warner Corporation, 113 NLRB 152 , enfd. 231 F . 2d 237 (CA. 7).
CENTRAL STATES PETROLEUM UNION, LOCAL 115 231
unlawfully in bringing about the discrimination in the employment of 17 employees
named in the complaint.
2. The Company's method of operations
The bulk of the refinery's 1,300 operation and maintenance employees work in
5 divisions: heavy oil, chemicals, utilities, and mechanical divisions. Of these
only the mechanical division is divided into departments: carpenters, storehouse,
tinners, insulators, masons, welders, pipe-gang, boilermakers, painters, riggers, elec-
tricians, and transportation. In addition, there is a labor pool into which employees
from the various divisions or departments are transferred from time to time, and
from which they are resassigned to other departments or divisions as needed.
All employees, except any that may work in the labor pool, carry a divisional
designation; those who work in the mechanical division also carry a departmental
designation. In some of the departments regular apprenticeship programs are
earned on; in consequence, employees in such departments are also classified jour-
neymen or apprentices.
It is a normal incident of operations of this refinery that the workload, and the
consequent need for workmen, keeps changing in each division and department.
To adjust to this shifting need, employees are regularly transferred among divisions
and departments. This transfer is accomplished by sending employees out of their
regular designated divisions or departments into the labor pool, whence they are
in turn assigned out into other groups as needed. The selection of particular em-
ployees in or out of the varioiks groups-transfer of unneeded boilermakers, for
example, out of the boilermaker department; assignment of surplus employees out of
the labor pool to groups in need of more workmen; or actual layoff of employees from
the labor pool when the overall needs of all five divisions are below the total man-
power available-is predetermined on the basis of a long-established seniority system.
Every employee has plant seniority, which starts mounting from his first day of
hire. As soon as he enters one of the divisions he begins to accumulate a second
prerogative---divisional seniority. If he either simultaneously or later goes into a
department, he acquires and keeps adding still a third-departmental seniority 4
Employees who have only worked in the labor pool, or who choose to divest them-
selves by "bidding out" of any department or division, acquire no seniority except
the ever-present plant seniority.
In accordance with these established seniority rights, excess employees "bump"
out of a division, or a department, into the labor pool in inverse order to their
divisional or departmental seniority. From there they are entitled to assignment
out of the labor pool-back into their own department or division, or into other
departments or divisions where needed-in direct ratio with their acquired divisional,
departmental, or plant seniority. And finally, in the event of layoff because of too
many employees accumulated in the labor pool, those with the least plant seniority
go home first, and are recalled when needed in reverse order.
This system of transfer and assignment is called bumping. In addition, the same
seniority measurements govern the matter of "bidding" rights which all employees
enjoy. Whenever a permanent opening is posted for any division or department,
again all employees who desire to enter into such department or division bid, and
the seniority accumulations of each fixes the successful bidder. When an employee
so bids into another group, he loses all previously accumulated lesser seniorities,
and starts over again in his new department or divisional seniority. Plant seniority
never changes.
3. The status of the 17 employees and the discrimination against them
On April 17, 1958, 17 employees who carried boilermaker department seniority,
and therefore also divisional and plant seniority , were working in the labor pool,
or on temporary assignment in other departments or divisions .5 They had bumped,
4 The record indicates, with little clarification, there is also a fourth type : promo-
tional group seniority This concept is sometimes interchangeable with departmental
seniority and sometimes distinguishable. Its precise nature is immaterial to the issue
here involved
5 The hourly rate in the labor pool itself-on strictly laborer work-seems to be the
lowest in the refinery. When employees are sent out of the labor pool to other depart-
ments or divisions, 1 e, other than the department in which they hold their own regular
seniority status, they are paid the lowest rate for that department, usually the helper
rate This hourly pay is higher than the common laborer rate and therefore assignments
out of the labor pool are called premium jobs
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on various dates, out of the boilermaker department for lack of boilermaker works
Of the 17, 3 carried 13 years of boilermaker seniority, 1 over 12 years, 4 for 10
years, I for 9 years, and the others a lesser amount. One of them had been bumped
out of the boilermaker department 31 months earlier, 2 of them 2 years before,
3 of them over 11/2 years, and the rest for lesser periods. On that same day, April
17, there were other employees-not of the boilermaker department-in laid-off
status because they had less plant seniority than the 17 boilermakers. On that critical
date, April 17, the Company laid off the 17 boilermakers and recalled in their place
17 nonboilermaker workmen from laid-off status
Five of the seventeen boilermakers laid off were also denied the previously enjoyed
seniority rights to bid into other departments of the plant while they were working
in the labor pool. On November 25, 1957, E. C. Jones attempted to bid out of the
boilermaker group into another promotional group of the five divisions constituting
the general operating and maintenance unit. In February 1958, Schoeneweis, Best,
Miller, and Lankford attempted to bid into the transportation department of the
mechanical division. All of these bids were denied by the Company. If the Com-
pany had continued to accord to Jones, Schoeneweis, Best, and Lankford the
seniority prerogatives previously enjoyed, all four of these persons would have been
granted the requested permanent transfer into the other departments because their
respective relative seniority sufficed?
4. The cause of the discrimination
This complex system of seniority classifications and accumulations by individual
employees, and the consequent bumping, assignmelft, bidding, and layoff rights and
safeguards, have been spelled out in detail in the successive contracts which Standard
has had with CSPU. Their 1955 contract expired on December 27, 1956. While
they bargained towards a new agreement thereafter, there was no contract in effect
until May 3, 1957, when a new one was signed effective until 1959. Because of the
pending craft severance representation proceeding involving the boilermaker depart-
ment, the 1957 contract expressly excluded from its coverage any employees affected
by that proceeding. The Company and CSPU agreed thereafter, however, by letter
from Standard accepted by letter from CSPU, that boilermaker employees would
enjoy "the same wage increases and other working condition changes" they would
have received had they been covered by the new contract. With execution of the
new agreement, the parties also agreed orally that until the representation case was
finally decided by the Board, the boilermakers would continue to be accorded all
previously enjoyed seniority privileges to bump in and out of the labor pool as in
the past. They made no separate agreement respecting any bidding-or permanent
transfer-out of the boilermaker department.
It is clear that CSPU caused Standard to lay off the 17 boilermakers on April 17,
1958, and to deny the bid requests of 5 of them shortly before that date. On
September 12, 1957, a week before the boilermaker department election, CSPU
advised each of the boilermakers by individual letter that they would no longer be
permitted to perform any work pursuant to seniority outside the boilermaker de-
partment if they voted for Local 483. CSPU also informed Standard of this position
repeatedly throughout the representation proceeding, and on Aped 10, 1958, when
issuance of the Board's April 16 certification in favor of Local 483 appeared a cer-
tainty, it wrote to the Company, saying that if the 17 employees from the boiler-
maker department then working in or out of the labor pool were not laid off and
replaced with employees of the operation and maintenance unit, "CSPU 115 would
shut down the entire refinery by strike action."
As to the denial of the bids for permanent transfer by certain boilermakers, CSPU
wrote the Company first on November 1, 1957, "vigorously opposing" Jones' initial
bid for transfer, with the statement it "would feel free to use any . economic
action . . ." if the bid were granted Moreover, both Respondents admit, in the
"agreed statement of facts," that "Standard denied the aforesaid bid by Jones,
Schoeneweis, Best, Miller and Lankford because of CSPU 115's insistence. . . .
C. Analysis and conclusion
The General Counsel carefully limited his arguments to the precise scope of the
issue raised by the complaint as worded. He contends no more than that deprivation
('At that time 33 employees carried "boilermaker" seniority, and therefore constituted
the "boilermaker department" ; the other 16 were at work on regular boilermaker duties
in their department.
7 As to Miller, the General Counsel stated on the record that his seniority rating was
not sufficient to win the requested transfer in any event
CENTRAL STATES PETROLEUM UNION, LOCAL 115 233
of work and bidding rights to the employees named in the complaint was a discrimi-
nation against them within the intendment of Section 8(a)(3) of the Act, and that
the Respondent Union's conduct in causing such discrimination was also unlawful.
The Respondents insist that this proceeding also requires resolution of many more
questions that, they assert, inferentially are raised by the specific complaint allega-
tions. They call for exact pronouncements as to (1) the areas of bargaining au-
thority in CSPU and Local 483; (2) the legal effect of future contracts which
Standard might execute with these Unions; and (3) the legality of a diversity of
later actions which Standard might choose to take in the regular operation of the
refinery when two instead of a single union represent its employees in separate
bargaining units. Asked on the record to take a firm position on these legal ques-
tions, counsel for the General Counsel refused. As a result, none of them were
litigated at all. Indeed, the General Counsel also opposed the Charging Parties'
attempt to enlarge the unfair labor practice allegations of the complaint .8
I fully appreciate, as the Respondents have repeatedly hinted throughout this and
the earlier representation proceeding, that the ultimate decision in this case may
inexorably lead to, indeed logically compel, further significant rulings as to the
meaning of other sections of the statute. Some of the questions which the Re-
spondents seek to explore touch upon the fundamental nature of the collective-
bargaining process and of union contracts made on behalf of employees. I shall
nevertheless limit my consideration of this case to the issues expressly calling for
resolution by the complaint and answers. It is beyond the regular function of a
Trial Examiner in these proceedings to pass judgment on questions not put in issue
by the pleadings, on hypothetical problems, or on important matters not litigated by
the parties. Declaratory judgments, or advisory opinions, are best left for the
Board itself to enunciate, when it sees fit, as the body primarily responsible for
interpretation of the statute as a whole.
The facts of this case literally spell out a violation of the statute by both Re-
spondents. The 17 men named in the complaint were at work on April 17. CSPU
wanted them removed from the work they were doing; it threatened to strike if
the Company did not oblige. The Company yielded and laid them off. CSPU did
this because the boilermakers as a group-including the 17-had voted for Local
483 in the severance election. Without question, had the boilermakers not voted
for Local 483, CSPU would not have caused their layoff. No matter how varied
or ingenious the descriptive words that may be used by the Respondents to explain
their actions, nothing can alter these basic facts. No plainer violation of Section
8(a)(3) and 8(b)(2) can be stated9
The Respondents' defense is phrased in ambiguous and confusing words, and I
do not clearly understand it. The sum total of its variously worded arguments,
however, seems to be that all this necessarily flowed or was the legal consequence
of the Board's determination that the boilermakers at work in the labor pool at the
time of the certificate were eligible to vote in the "boilermaker department" election.
From this fact it follows-they argue-that the 17 employees removed themselves
from the coverage of the CSPU contract, or from any right to be represented by
CSPU, and surrendered any seniority right to perform any work outside the boiler-
maker department. The Respondents add to these contentions the unequivocal
assertion that seniority rights stem only from a collective-bargaining contract; that
no such employment rights exist absent such an agreement. Ergo, the defense
concludes, the boilermakers having relinquished any rights to employment in the
labor pool, they had nothing the Respondents could take away from them and there
was no discrimination at all.
As the foregoing rationale proceeds, it falls into successive errors, any one of
which is fatal to the entire line of reasoning.
To start with, the very use of the word "right," in speaking of the boilermakers'
employment in the labor pool and the Respondents' conduct in depriving them of
their earnings there, is used by the Respondents in misconception of the issue of
'The Trial Examiner sustained the General Counsel's objection to an offer of proof
intended to show independent violations of Section 8(a) (1) by the Respondent Company.
e In pertinent part, Section 8(b) (2) reads :
It shall be an unfair labor practice for a labor organization or its agents . . . to
cause or attempt to cause an employer to discriminate against an employee in viola-
tion of subsection (a) (3) . . .
In pertinent part, Section 8(a) (3) reads :
It shall be an unfair labor practice for an employer . . . by discrimination in regard
to hire or tenure of employment or any term or condition of employment to encourage
or discourage membership in any labor organization. . . .
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case . We are not concerned here with any "right " of employees to employment,
in the sense that such a right might or might not be enforcible against an employer in
a court of law. Such a right might arise from an employer's oral promise to give
certain benefits to his employees in return for their work ; it might rest upon a
written individual employment contract with him ; or it might be spelled out in detail
in a collective-bargaining agreement with the union as the agent of the employees.
A better word for such employment rights might be "claims " against an employer for
failure to fulfill his obligation-whether set out by contract or made orally. But
enforcement of such "rights" or "claims" are purely contractual matters, express or
implied, that are irrelevant to the concern of this statute . If an employer breaches
his contract of employment , whether with the individual or through his union, he
does not thereby commit an unfair labor practice . The only "right" with which this
statute is concerned , and therefore the only "right " that can be said to be involved
in this case , is the "right to self organization . . . [or] to refrain . . . from .
such activities ." 10 This statutory right ought not be confused with, and is not
equatable to, any right to work. In administering the statute , the Board , through
proceedings like this, protects this right of employees , and through the appellate
court, enforces such rights . It does not concern itself with any claims employees
may assert against employers for failure to live up to promises to accord privileges
in return for work performed . Therefore , whether the 17 boilermakers had a
"contractual right" to continue working in the labor pool, or whether that right to
employment existed as a just claim of theirs against Standard apart from the
contract , has nothing to do with this case . That right is not guaranteed in the
statute.
In implementation of the Section 7 right to engage in union activities , Section
8(a)(3) and 8 (b)(2) impose proscriptions upon employers and unions prohibiting
them from engaging in certain conduct which impinges upon that statutory right of
the employees . These sections make it unlawful to discriminate against employees
in their "tenure of employment or any term or condition of employment ." It is not
deprivation of work, in itself, that is prohibited, but any such deprivation as results,
or is related to union activity . ii Because in these sections it is a hurt to the person's
employment that is outlawed , Board and court cases say they give employees a
"right to work" free from unlawful discrimination . However, descriptive language
in decided cases do not create rights in themselves . Such language does no more
than restate the basic statutory right to form unions and to do so freely, without
unlawful interference through work curtailment . If Standard in this case had
deviated from the established seniority practice for economic reasons-because, for
example, the type of work being performed in the labor pool and other departments
had changed and the skill of the boilermakers was inadequate-the layoffs might
have been in violation of the CSPU contract , or of an implied promise to the boiler-
makers, but they would not have constituted unfair labor practices under the
statutory prohibitions underlying this case . Redress for layoffs in such a case
would not rest with the Board , but with the regular courts of law. No economic
justification is urged in this case . Admittedly , the discrimination , the layoff, and
the departure from the established seniority system were imposed upon the boiler-
makers because of the way they had voted in the election.
Elsewhere in their briefs the Respondents rephrase their main argument by saying
that apart from a collective -bargaining contract an employee cannot consider sen-
iority, with its usual attendant preferences against layoffs , as a condition of his
employment.12 The reported decisions on which they rely support only one-half
of their broad statement. The courts have indicated that seniority rights are not
inherent characteristics of employment as such . 13 This does not mean to say, how-
10 Section 7 of the Act reads
Employees shall have the right to self-organization , to form, join , or assist labor
organizations , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to refrain from any
or all of such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment as authorized in section 8(a) (3).
U The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H Bull
Steamship Company) v. N.L R B., 347 U S. 17.
U Thus , CSPU's attorney stated at oral argument : "In the absence of seniority provi-
sions the employee has no job rights whatever "
13 Trailmobile Co v. Whirls , 331 U.S. 40; Ryan v. New York Central Railroad, 267
Michigan 202; Gavigan's Bookbinders Union, Pa. Sup . Ct., 43 LRRM 2348. These cases,
CENTRAL STATES PETROLEUM UNION, LOCAL 115 235
ever, that when an employer sees fit, for business or moral reasons sufficient to itself,
to grant and make seniority prerogatives a condition of employment or an element
of compensation for faithful work performed, the resultant seniority rights relate
any the less to "tenure of employment" as the phrase is used in Section 8(a)(3) of
the Act. No case need be cited for the proposition that an employer violates
Section 8(a)(3) when, contrary to his past seniority practices, he lays off an
employee out of term because of his union activities; and most of the decisions in
which the Board found such unfair labor practices were situations where there had
been no union in the picture at all. Indeed, a seniority status, acquired by grant of
an employer by virtue of long employment, is literally a "tenure of employment" and
therefore an area in which the statute prohibits discrimination by an employer.
Compare: Pacific Intermountain Express Company, 107 NLRB 837. The fact of
discrimination against the 17 boilermakers is the clearest matter established by this
record.
Still another contention is made in defense, one which is phrased in different
words but which I view as another attempt to urge the same basic argument dis-
cussed above. The Respondents advance the theory that when the boilermakers
voted for Local 483, or when the Board held all boilermakers-including the 17-
eligible to vote for that union, all of these employees could only thereafter be repre-
sented by Local 483, could not be covered by the CSPU contract, and could not
legally look to CSPU's assistance in continuing to enjoy their employment tenure,
or seniority prerogatives, in the operating and maintenance unit. Precisely by
what reasoning these blanket statements-not supported by any decisional authority
or express statutory language-serve to excuse the otherwise clearly unlawful acts
committed by the Respondents, is nowhere explained.
The Respondents appear to misconceive the purport of the Board's unit determi-
nation in a representation case. The Board does not include in the bargaining unit
particular individual employees, but joins instead particular jobs. The common
denominator which serves to unite a group for bargaining purposes-called com-
munity of interest by the Board-is found in the various aspects of the work which
job classifications or descriptions call for. The unit is not determined by common
characteristics found in the individual employees who chance, at any given mo-
ment, to occupy these jobs. Where, for example, the Board examines among
other things the skill or perhaps journeyman status which the employees possess, it
does so only because in this manner is revealed the skills required to do the work
in the jobs involved. And again, it is the job which is of concern in the unit ar-
rangement; not the named individuals at work.14
It is for this reason that a union selected by the majority of employees at work
on election day remains the bargaining agent of employees who enter the unit in
normal turnover later. Indeed, the same single job can be held successively by
any number of employees over a given period and the union always bargains for
the job, regardless of change in incumbent. Similarly, the Board holds elections
even knowing of anticipated expansions of the employee complement in the unit.
The reason here is because the jobs which additional employees will hold are of
the same kind as those included in the unit found appropriate. Restated: the jobs
are included-not the individual employees.
Pursuant to these basic principles of Board law in the field of representation cases,
on April 16, 1958, when the Board certified Local 483 as the bargaining agent for
the "boilermaker department," it meant that thereafter that union would
bargain with the Company concerning "rates of pay, wages, hours of employment
and other conditions of employment" applicable to work, or jobs in the boiler-
maker department. By like reasoning, CSPU remained the bargaining representa-
tive for all jobs still falling in the existing operations and maintenance unit, including
all labor pool jobs and all premium jobs in areas outside the boilermaker depart-
and others cited by the Respondents (Ford Motor Co. v Huffman, 345 U S. 330; Aero-
nautical Industrial District Lodge 727 v. Campbell et al., 337 U.S. 521), relate to other
statutes. They are all inapposite here for the further reason that none involved collective-
bargaining agreements which attempted to discriminate against particular employees
embraced within the bargaining unit on the basis of their union activities. Cf. Gaynor
News Company, Inc. v N L R B., 347 U.S. 17.
Ii H. P. Wasson and Company, 105 NLRB 373 ". . . the Board's unit delineations
are based on functionally related work categories, and all employees performing like work
are necessarily included in the unit regardless of their tenure of employment." See, also,
Sixteenth Annual Report of the National Labor Relations Board, page 120 • "Our unit
finding is based upon functionally related occupational categories, and all employees
working at jobs within the unit are necessarily included and entitled to representation,
irrespective of the tenure of their employment." [Emphasis supplied.]
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. And as the 17 boilermakers at issue were then working in jobs for which
CSPU was bargaining agent, they were, to the extent that they had a vested employ-
ment in those jobs, entitled to be represented by CSPU.
Nor is the foregoing fundamental principle inconsistent with the fact that a union
represents employees. It speaks to the employer on behalf of the individual work-
men who occupy the jobs inside the unit at the time of negotiations. As collective
bargaining essentially concerns itself with the employee-employer relationship-or
the conditions of employment-necessarily the union becomes the spokesman of
employees. But while the unit must have a stability in terms of job or departmental
setup, it need not be and rarely is static in terms of employee complement. And
so the selection of the union-what the Board calls resolution of the question
concerning representation-must also be determined by reference to the existing
complement of employees at a given moment. Eligibility therefor merely means-as
the standard Board formula reads-that a person in fact occupies an included job
at that time, or works in it with sufficient frequency or for sufficient periods of
time to have enough interest in the question of whether or not bargaining for that
job should be collective or by individuals.
A regular part-time employee votes-and is said, loosely, to be included in the
unit-even though he spends the major portion of his time working elsewhere-15
Another person, who occupies one of the individual jobs only sporadically or cas-
ually, does not vote.16 But both the casual and part-time worker, like the regular
full-time man, are included in the unit in the sense that when they do find them-
selves occupying an included job, they are represented by the union for such em-
ployment within the unit.
And, finally, the Board has expressly applied these same principles to those
instances, like the situation here presented, where the part-tune, or transient
employee-so to speak-spends all of his time with a single employer although part
,of such time is in the bargaining unit in question 17 That all this adds up to a
conclusion that the 17 boilermakers were properly included in both the boilermaker
department unit of Local 483, and in the operations and maintenance unit of CSPU,
is conclusively shown by direct analogy to the Board's decision in Kennecott Copper
Corporation, Roy Mines Division, 106 NLRB 390, where the Board held a named
employee eligible to vote in each of two severance craft voting groups.is
A last contention of the Respondent is that the 17 boilermakers had been excluded
from the current CSPU contract, and that because this was done pursuant to Board
law, there were no seniority privileges remaining to them.19 This argument is
wedded to the same fallacy underlying the earlier contentions. It is not directly
named individuals, personally identifiable at a given moment, who are covered by
a collective-bargaining agreement, but jobs or employee classifications. What the
parties excluded therefore from their contract coverage was boilermaker work, or
jobs, and, in consequence, all employees engaged in such work. They did not, and
could not, exclude the labor pool jobs, or the premium jobs then held by the 17
employees named in the complaint. And with the jobs always go the people who are
at work.
In any event, however phrased-as an exclusion of 17 employees from the CSPU
contract coverage, as a disparate treatment of a class of employees included in the
unit represented by CSPU, or as a sheer denial of employment-it is clear that
CSPU caused the Company to remove the 17 employees from their jobs solely
15 Evening News Publishing Company, 93 NLRB 1355.
'O P. B Siiverwood, a corporation d/b/a Silverwood's, 92 NLRB 1114.
17 The Ocala Star Banner, 97 NLRB 384.
18 To the same effect, Huntley-Van Buren Company, 122 NLRB 957, where a temporary
guard was permitted to vote in the production and maintenance unit The Board
said ". . . Akin, so long as he performs any guard duties, will not be in the production
and maintenance unit and, during that period, the Petitioner, if certified as a result of
this election, may not bargain for him. It is only at such time as he is relieved of his
guard duties and returns to his regular job within the unit that the Petitioner, if
certified, may represent his interest "
19 In accordance with the rule of Midwest Piping & Supply Co., Inc., 63 NLRB 1060,
reaffirmed recently,in Shea Chemical Corporation, 121 NLRB 1027, Standard and CSPU
suspended their practice of bargaining for boilermakers during the pendency of the craft
severance representation proceeding Therefore, the recognition clause of their 1957
contract, in effect when the 17 were laid off, reads ". . . exclusive of all employees in-
volved in the representation cases Nos. 14-RC-3118 fBoilermakers] and 14-RC-3120
pending before the National Labor Relations Board."
CENTRAL STATES PETROLEUM UNION, LOCAL 115 237
because they had elected to be represented by Local 483 in their boilermaker work
assignments instead of by CSPU. This was a discrimination against them in their
"tenure of employment" which the statute forbids.
All of the foregoing reasoning applies equally to the Respondents' rejection of
bids by four of these employees (Jones, Schoeneweis , Best, and Lankford ) for per-
manent transfer into departments other than boilermaker ?° In November 1957 and
February 1958, when they bid for job openings posted by the Company, they were
at work on jobs included in the operations and maintenance unit represented by
CSPU. It was an incident of their employment-a benefit accorded by the Com-
pany, and codified in the CSPU contract which related to their labor pool jobs-21
that they were compensated in part by the privileges of bidding into other jobs
inside the bargaining unit, in addition to the relative protection against layoff as-
sured by their iplant seniority . All the employees were aware of CSPU's announced
intention to force the Company to lay off a number of labor pool employees carry-
ing boilermaker seniority , and it may well be that these four were seeking only to
avoid the economic hurt which eventally hit them. The material value of particular
benefits received in return for employment are not for me to assess . It suffices, for
purposes of resolving ,the issue raised in the complaint , that these employees had
long enjoyed such bidding or transfer privileges in their employment , that such
established benefits were taken from them, and that the reason was one proscribed
by the statute.
On the issue raised by these rejected bids, I cannot escape the conclusion which
logically ' flows from the reasoning and descisions discussed above. In effect, the
Respondents urge a contrary conclusion because, in their view , by like reasoning the
Board would be compelled to rule that boilermakers who never proviously had been
assigned out of boilermaker work could also bid out of their department to per-
manent positions in the operations and maintenance unit, and to displace employees
with greater seniority there. And they may be correct . Indeed , the record also
shows that "boilermakers ," while working in the labor pool, retain the established
right to do a proportionate share of any overtime work that may be needed from
time to time in the boilermaker department . The Respondents ask whether their
past practice must continue despite the change in the collective -bargaining situation
now with two separate units in place of the old single one. These last questions, and
others of like kind, are not in issue in this case and need not be answered by me.
The Board has recognized that the entire principle .of craft severance gives rise to
problems; it did not deem that fact sufficient to deny elections in such cases 22 It is
to be expected that in some cases the resulting problems will be few and minor,
and in others they may be multiple and aggravated . The wisdom of the Board's
rulings, and of its case to case application of overriding basic principles , are not for
me to criticize.
Accordingly, in view of the foregoing , I find that by causing Standard Oil Com-
pany to lay off the employees named in the complaint , and in causing the Company
to reject the bids of four of them for permanent transfer , the Respondent Union
violated Section 8(b)(2) and (1)(A) of the Act, and that by so laying off those
20 It was not shown that Miller had sufficient seniority in February 1958 to be entitled
to the transfer he bid for, and the General Counsel conceded he had too little. I therefore
find no support for the complaint allegation that denial of Miller's request was an unfair
labor practice
The complaint also alleges the commission of a separate unfair labor practice in the
denial of E. C. Jones' request, in November 1957, to be transferred out of the boiler-
maker department into the labor pool, which is not a department or promotional group
at all. There is no proof in the record that such mere relinquishment of seniority or
departmental classification was provided for in the established system, or that the
Company had ever accorded such privilege to its employees. Asked by the Trial Examiner
at the hearing to explicate his theory o'f the complaint on this point, the General Counsel
deferred a reply for his brief , the brief does not touch upon it. I find this allegation of
the complaint also unsupported by the proof.
21 J. I. Case Company v. N L.R.B , 321 U.S 332.
22 See American Potash & Chemical Corporation , 107 NLRB 1418, 1422
. . . we have given grave consideration to the argument of employer and union
groups that fragmentation of bargaining units in highly integrated industries which
are characteristic of our modern industrial system can result in loss of maximum
efficiency and sometimes afford an opportunity for jurisdictional disputes as to work
assignments . We are cognizant of the disruptive economic and social conditions that
can and sometimes do occur as the result of craft existence in industrial plants, . . . .
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and denying transfers to four of them, the Respondent Company violated
Section 8(a)(1), (2), and (3) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Company set forth 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 commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, I will recommend that they cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
I will recommend that the Respondent Union cease and desist from causing or
attempting to cause Standard Oil Company to lay off or to deny employment or
transfer to its employees because they choose to be represented, in any aspect of
their work, by a union other than the Respondent Union.
I will also recommend that the Respondent Company cease and desist from lay-
ing off its employees, or otherwise discriminating against them in their employment
because they choose to be represented, in any aspect of their work, by a union other
than the Respondent Union.
I will also recommend that the Respondent Company be ordered to offer to the
employees listed on Appendix A attached hereto immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other right or privileges.
I will further recommend that the Respondents jointly and severally make whole
the employees listed on Appendix A for any loss of pay they may have suffered by
reason of the discrimination against them, by payment of a sum of money equal to
the amount they normally would have earned as wages from the date of their layoff
to the date of the offer of reinstatement, less their net earnings during said period,
with backpay computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, 291-294. 1 will also recommend
that the Respondent Company make available to the Board, upon request, payroll
and other records to facilitate- the determination of the amounts due under this
recommended remedy. Respondent Union shall not be liable for backpay accruing
5 days after it shall have notified the Respondent Company in writing that all ob-
jections to the employment-with full seniority rights-of these employees have been
withdrawn and that it formally requests their reinstatement.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondents be ordered to cease and desist from in
any manner infringing upon the rights guaranteed to employees under the provisions
of the Act and from further discrimination against employees.
Upon the basis of the foregoing findings of fact, and upon the entire record of
the case, I make the following:
CONCLUSIONS OF LAW
1. Central States Petroleum Union, Local 115, is a labor organization within the
meaning of Section 2(5) of the Act.
2. Standard Oil Company, an Indiana Corporation, is an employer within the
meaning of Section 2(2) of the Act.
3. By causing the Company to discriminate against the employees named on
Appendix A attached hereto, in violation of Section 8(a) (3) of the Act, Respondent
Union has engaged in unfair labor practices within the meaning of Section 8(b) (2)
of the Act, and has restrained and coerced those employees in the exercise of their
rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor
practices within the meaning of Section 8(b) (1) (A) of the Act.
4. By laying off the employees named on Appendix A on April 17, 1958, and by
denying transfers to some of its employees, at the request of the Respondent Union,
the Respondent Company has encouraged membership in the Respondent Union in
violation of Section 8(a) (2) of the Act, and has discriminated against them in viola-
tion of Section 8(a) (3) thereof.
5. By such discrimination, Respondent Company has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,
ULRICH MANUFACTURING COMPANY 239
and has thereby engaged in unfair labor practices violative of Section 8(a)(1) of
the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
Kenneth Best Marion Hooper Ralph L. Miller
George A. Clayton E. C. Jones Ralph Ramsier
Victor Couch John Kladar Ralph Schoeneweis
J. D. Evans J. A. Lankford George Stimac
Floyd Friedline Jack Lavite Charley Towey
Samuel R . Guarino Fred G. March
Ulrich Manufacturing Company and International Association
of Machinists, AFL-CIO, Petitioner. Case No. 13-RC-6899.
April 15, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William D. Boetticher, hear-
ing officer . The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer is engaged in the manufacture of pumps, earth
moving components, construction components, hydraulic equipment,
and other products. It operates in two separate locations, an office
building and the plant. The parties are in general agreement that
the production and maintenance unit requested by the Petitioner is
appropriate . They also agree that all employees located at the office
building should be excluded as clerical employees.' They disagree,
however, with respect to certain classifications which the Petitioner
would include and the Employer would exclude.
1 The parties further stipulated that the tool designer, the senior methods engineer,
draftsmen , and the secretary to the plant manager should be excluded.
127 NLRB No. 29.