Champlin Petroleum Co.

National Labor Relations Board - Board Decisions

Jan 8, 1973

201 N.L.R.B. 83 (N.L.R.B. 1973)

CHAMPLIN PETROLEUM CO.
Champlin Petroleum Company and Oil, Chemical &
Atomic Workers International Union , AFL-CIO;
and Oil , Chemical & Atomic Workers International
Union, Local No. 1-128, AFL-CIO. Case
21-CA-10551
January 8, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On June 20, 1972, Administrative Law Judge'
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order, dismissing the complaint without prejudice.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed; provided,
however, that:
The Board shall retain jurisdiction of this proceed-
ing for the purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this
Decision and Order, either been resolved by amica-
ble settlement in the grievance procedure or submit-
ted promptly to arbitration, or (b) the grievance or
arbitration procedures have not been fair and regular
or have reached a result which is repugnant to the
Act.
MEMBER JENKINS , dissenting:
For the reasons set forth in my and Member
Fanning's dissents in Collyer Insulated Wire, a Gulf
and Western Systems Co., 192 NLRB No. 150,
National Radio Company, Inc., 198 NLRB No. 1,
Joseph T. Ryerson & Sons, Inc., 199 NLRB No. 44,
and similar cases , I think the Board neither can nor
should require that the issue of a violation of Section
8(a)(3) of the Act be determined by an arbitrator
instead of the Board.
83
Moreover, I would proceed to the merits of the
case and find, contrary to the Administrative Law
Judge, that the Respondent's actions in admittedly
transferring the two individuals here involved to
lower paying and less attractive jobs because of their
union affiliation and a pending grievance was
violative of Section 8(a)(3) of the Act.3 This is true,
notwithstanding the Respondent's contention and
the Administrative Law Judge's finding that the
aforementioned transfers were motivated by nondis-
criminatory considerations, i.e., a desire to end the
conflict with the Union with respect to contract
coverage of the warehouse jobs in question. For it is
the effect rather than the motive which established
the violation.4 Accordingly, inasmuch as the Respon-
dent's actions in transferring the two employees to
less desirable jobs because of the pending grievances
and their union affiliation could be expected to
discourage both the individuals involved as well as
other union members from continuing their union
membership or allegiance, such actions were viola-
tive of Section 8(a)(3) and (1) of the Act, and I would
so find.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge' effective August 19, 1972.
2 As we agree with the Administrative Law Judge that we should defer to
the contractual arbitration procedure herein, we do not pass on his
alternative conclusion that the complaint warrants dismissal on the merits.
3 Fiasco Manufacturing Co., 162 NLRB 611, 616.
4 N.LR B. v. Erie Resistor Corp ., 373 U.S 221, 228-230.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IRVING RoGOSIN, Trial Examiner: The complaint, issued
February 25, 1972, alleges that Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(l)
and (3) and Section 2(6) and (7) of the Act.
Specifically, the complaint alleges (1) that about Novem-
ber 1971, Respondent transferred employees James Bean
and Roger Seeley from warehouse to field positions, and
has since failed and refused to reassign said employees to
warehouse positions, because of their membership in or
their union or protected concerted activities, thereby
discriminating in regard to their hire and tenure of
employment in violation of Section 8(aX3); and (2) during
said period, stated to said employees that they were being
transferred from warehouse to field positions because
Respondent did not want employees who supported the
Union working in warehouse positions, thereby interfering
with , restraining , and coercing employees in the exercise of
rights guaranteed in Section 7, in violation of Section
8(a)(1) of the Act.'
Respondent 's answer admits the procedural and jurisdic-
tional allegations of the complaint but denies the remain-
ing allegations and the commission of any unfair labor
practices; and alleges as its affirmative defense that the
I Designations herein are as follows: the General Counsel, unless
otherwise noted , his representative at the hearing ; Champlin Petroleum
(Continued)
201 NLRB No. 9
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board should defer this matter to arbitration, pursuant to III . THE UNFAIR LABOR PRACTICES
its policy enunciated in the Collyer case.2
Hearing was held before the duly designated Trial
Examiner, on March 28, 1972, at Los Angeles, California.
All parties appeared and were represented by counsel or
union representatives; were afforded full opportunity to be
heard, to examine and cross-examine witnesses , to intro-
duce oral and documentary evidence relevant and material
to the issues, to argue orally and file briefs and proposed
findings of fact and conclusions of law. The General
Counsel and Respondent filed briefs on April 24, 1972.3
No proposed findings of fact or conclusions of law have
been filed by any of the parties.
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found, that, at all times material herein,
Champlin Petroleum Company, Respondent herein, has
been engaged throughout the United States in the
production, refining, and marketing of petroleum and
petroleum products originating in oilfields owned, operat-
ed, or managed by it.
As part of its operations, Respondent manages an
oilfield located at Wilmington, California, owned by the
Union Pacific Railroad Company. In connection with this
operation, Respondent sells and ships annually directly to
customers located outside the State of California, goods,
products, and services valued in excess of $50,000.
The complaint further alleges, Respondent's answer
admits, and it is hereby found, that, at all times material
herein, Respondent has been an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Oil, Chemical & Atomic Workers International Union,
AFL-CIO, and Oil, Chemical & Atomic Workers Interna-
tional Union, Local No. 1-128, AFL-CIO, herein jointly
called the Union, are labor organizations within the
meaning of Section 2(5) of the Act.
Company, Respondent, Champlin, the Company or the Emploxer; Oil,
Chemical & Atomic Workers International Union, AFL-CIO and Oil,
Chemical & Atomic Workers International Union, Local No 1-128,
AFL-CIO, jointly the Union or the Charging Party; the National Labor
Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S C. Sec. 151, et
seq.), the Act, the National Labor Relations Board , the Board The charge
was filed and served on January 19, 1972
2 Collyer Insulated Wire Corp, 192 NLRB No. 150.
3 The decision of Trial Examiner Stanley N. Ohlbaum in The Newspaper
Guild of Brockton, AFL-CIO (Enterprise Publishing Company), Case 1-CB-
1765, issued April 25, 1972, subsequent to the filing of briefs in this matter,
and cited by Respondent's counsel in his letter , dated May 2, 1972, copies of
which were served on the other parties, has been considered for such weight
A. The Issues
1. Whether Respondent discriminatorily transferred
employees Bean and Seeley from warehouse to field jobs
because of their union affiliation , and stated to them that
they were being transferred because of a disagreement
between Respondent and the Union concerning warehouse
jobs and because Respondent did not want union members
working in the warehouse.
2. Whether the Board should defer to the arbitral
procedure provided for in the collective -bargaining agree-
ment between the parties under the policy of the Collyer
case.
B. Background
The Union Pacific Railroad Company, herein called the
Railroad , has for many years owned an oilfield located in
Wilmington , California . At least since 1943 , E. B. Hall &
Co., herein called Hall , had operated and managed the
oilfield for the Railroad . On May 24, 1943, the Union4 was
certified as collective-bargaining representative for a unit
of production and maintenance employees of Hall.5 Since
then Hall and the Union entered into successive collective-
bargaining agreements , including the last agreement,
executed August 21, 1969, effective January 1, 1969,
amended on March 9, 1971, covering employees in
enumerated job classifications.
By letter dated April 29, 1971, Hall notified the Union
that, pursuant to the applicable provisions of the contract,
Hall had transferred its rights and obligations thereunder
to Champlin , effective May 1, 1971. The specific language
of the assignment , and assumption of the agreement by
Champlin, were included in this communication . On June
9, 1971, by letter addressed to the Union, Champlin
confirmed the assignment of the collective-bargaining
agreement and assumption of obligations . Since then,
Respondent has operated and managed the oilfield in
Wilmington for the Railroad.
In conjunction with the operation of the oilfield, Hall
and, since May 1971, Champlin, have maintained a
warehouse or "store ," as it was referred to at the hearing,
containing equipment and replacement parts for use in the
oilfield in Wilmington , and, while the operation was
conducted by the Railroad, in Wyoming and Colorado.
Prior to May 1970, the warehouse employees were covered
by a collective-bargaining agreement between the Railroad
and the Brotherhood of Railroad Clerks, herein called the
Brotherhood. When the warehouse operation was reorgan-
as may be accorded it.
4 Then known as Oil Workers International Union , Local 128 , CIO. E B.
Hall & Co., Case R-5145 , 49 NLRB 63.
5 The description of the unit in the certification of representatives reads
as follows "All production and maintenance employees of E. B. Hall &
Co., Los Angeles, California, employed at the Wilmington field , including
truck drivers, ,janitors, carpenters, clerical workers, PBX operators, and gas
testers in the laboratory , but excluding those engaged in a supervisory
capacity with the right to hire and discharge , petroleum engineers, and
draftsmen ." There is no mention of any warehouse job classifications, these
employees presumably having been represented prior to 1970, as will
presently appear , by the Brotherhood of Railroad Clerks.
CHAMPLIN PETROLEUM CO.
ized by the Railroad in May 1970, the warehouse operation
was utilized to service the Wilmington oilfield exclusively.
The Railroad thereupon dispensed with the warehouse
jobs, which had been occupied by members of the
Brotherhood, and resorted to the use of an independent
contractor , augmented , as necessary , by the assignment on
a casual or intermittent basis of roustabouts from the field,
represented by the Union.
When Champlin took over the operation of the Wilming-
ton oil field from Hall, in May 1971, the Railroad
simultaneously turned over the warehouse operation to
Champlin as well. In assuming Hall's rights and obliga-
tions under the existing collective -bargaining agreement
with the Union, Champlin retained virtually all of Hall's
employees , including Paul M . Hamann , who had been in
Hall's employ since about 1954, initially as production
petroleum engineer , then production superintendent (in
about early 1960), and finally as division production
superintendent, the position he has held with Champlin
since May 1971. As production superintendent under Hall,
and in his present capacity with Champlin, Hamann has
participated , at least since early 1960, in collective-bargain-
ing negotiations which have resulted in successive 2-year
agreements and, as part of his responsibilities, has handled
grievances and arbitration with the Union. Since 1960, he
has represented management in some four or five arbitra-
tions . It may be noted that there have been no strikes or
work stoppages during Hamann's tenure.
Hamann participated in the negotiations for the 1969
contract and the amendment of March 9, 1971. By the
terms of the amendment to the collective -bargaining
agreement , a series of modifications were reached , includ-
ing the one dealing with seniority discussed hereinafter.
Although the complaint has been couched in terms of the
alleged discrimination in the transfer and demotion of the
two aggrieved employees because of their union member-
ship , or in reprisal for the filing of the grievance by the
Union, this controversy involves basically the issue of
whether , by transferring bargaining unit employees to
nonunit jobs, Respondent must be deemed to have
acknowledged that the collective-bargaining agreement,
including the seniority provisions , was applicable to
warehouse employees. The General Counsel's case, how-
ever, is based on the theory that the transfer of these
employees was motivated by Respondent 's general opposi-
tion to employing union members in warehouse jobs, as
manifested by statements of management representatives
to these employees , and that this evidence is sufficient to
establish discriminatory motivation based on union consid-
erations . Apart from this evidence , there is no basis for
finding that Respondent evinced a purpose to encourage or
discourage membership in the Union by discrimination. As
Respondent concedes , however , no specific proof of intent
is necessary where employer conduct inherently encour-
ages or discourages union membership .6
While determination of the allegations of the complaint
fi The Radio Officers' Union of the Commercial Telegraphers Union, A F L
v. N.L.R.B., 347 U.S. 17,44-45.
r Crandall, who had held the same position , as an employee of the
Railroad, testified that there had been ten clerks, lab, and material handlers
to service the Wilmington , Wyoming, and Colorado fields of the Railroad,
represented by the Brotherhood . In June 1970 , the store operation was
85
may be dispositive of the immediate controversy, such a
determination leaves wholly unsettled the more basic
problem of whether warehouse employees are subject to
the collective-bargaining agreement affecting the bargain-
ing unit employees. The Union takes this for granted,
based on the assumption that, by transferring unit
employees to warehouse jobs , Respondent has recognized
that the contract applies to these nonunit jobs , a conten-
tion which Respondent has consistently resisted. Thus, it is
evident that the dispute has its origin in the matter of
application and interpretation of the contract , as well as, as
will later be seen , in the construction of the seniority
provisions . It is for these reasons believed that the interests
of the parties and the purposes of the Act would be best
served by deferring to the arbitral procedure provided for
in that contract.
Recognizing , however, that the Board may disagree with
this view, and to obviate the possibility of a remand, the
allegations of the complaint will be considered on the basis
of the evidence adduced at the hearing.
C. Discrimination in Regard to Hire and Tenure of
Employment
The allegations of discriminatory treatment relate exclu-
sively to Roger Seeley and James Bean.
Seeley had been hired by Hall in January 1971 as a
roustabout in the oilfield, working at that job some 3 or 4
weeks. After Champlin took over the operation, it decided
to assign a Wellman to perform the duties of the warehouse
or store employee. The field foreman was directed to
dispatch a Wellman from the field to the warehouse.
Instead, he sent Seeley, whose wage rate as a roustabout
was $3.96 an hour.
Seeley first began working in the warehouse on a
temporary basis early in February, assisting Speck, an
employee of the contractor who was then operating the
warehouse for Champlin. Seeley worked in the store 4 or 5
weeks, when he was reassigned to work in the field.
According to him, he had been told by his foreman, Keller,
that Respondent had a practice of working roustabouts in
the store for a month at a time, and then returning them to
the field. Seeley then worked in the field as a roustabout
until about the first week in April, when he was again
assigned to work in the store, working with Speck until the
latter was terminated not long afterward. On May 3, 1971,
Seeley was granted the Wellman rate of $4.30 an hour, and
reclassified as Wellman. According to Seeley, Purchasing
Agent Richard Crandall told him then that he would work
under him at the store as a permanent employee.?
While Seeley was employed full time at the store,
Respondent continued to assign roustabouts to the store
on a casual basis. Toward the end of May, when the
arrangement with the contract laborer who handled the
store was terminated, James Bean (the other alleged
discriminatee), a roustabout, was assigned to help Seeley at
reorganized , and Hall ceased servicing the Railroad 's Wyoming and
Colorado oilfields . Thereafter, according to Crandall, Hall occasionally
utilized roustabouts covered by the collective-bargaining agreement in
operating the store . It was in this manner that Seeley came to work in the
store.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the store on a regular basis. Seeley and Bean continued to
work in the store until early November 1971. Although
both men performed substantially the same duties, Bean
continued to be classified as a roustabout, at the $3.96
wage scale.
About mid-1971, employees covered by the collective-
bargaining agreement with the Union protested to Thomas
W. (Tom) Smoot, chief wellman and shop chairman, that
Respondent was utilizing unit employees in warehouse
jobs, specifically Seeley and Bean , without having posted
the jobs for bid as required, in their view, by the contract.
On about October 29, 1971, Smoot notified John Schmidt,
staff representative of the Local Union, of the unit
employees' complaints. Smoot, as well as other unit
employees, discussed these complaints with Plaint Superin-
tendent Hamann. According to Hamann, he had assumed
that these complaints related merely to the efficiency of the
store operation.
A meeting was held shortly afterward, at which Hamann
spoke for the Company and Schmidt, Smoot, and members
of the shop committee for the unit employees. Asked what
the Company proposed to do in regard to staffing the store,
Hamann stated that the Company had not yet reached a
decision. The Union argued that the warehouse jobs
should be posted for bids, and persisted in this position.
Schmidt telephoned Hamann, reiterating the Union's
position that the warehouse jobs were subject to the
collective -bargaining agreement , and asserted that, since
more than 180 days had elapsed since the unit employees
had first been transferred, the Company was obligated to
post the jobs. Hamann disagreed, insisting that the
warehouse jobs were not within the bargaining unit, and
stated that the jobs would not be posted.
Early in November, in a conversation with Smoot on the
subject, Crandall asked him whether he, Crandall, might
utilize unit employees without resorting to the bidding
procedure under the contract. Smoot rejected the request,
stating that the warehouse jobs would have to be put up for
bid. Crandall demurred, and said that this might result in
his getting someone he didn't want in the job.
On November 12, the Union filed a grievance with
Hamann, alleging that Respondent had violated article IV,
paragraph 8, as amended, by utilizing two unit employees
in the warehouse for a period of more than 180 days
without posting the jobs for bids .8
Evidently, Hamann understood the grievance to be over
the fact that when Seeley was first transferred to the
warehouse, a wellman's job had been left vacant; and that
the Union was protesting the Company's failure to post the
wellman's job which, the Union assumed, Seeley had
vacated, after the expiration of 180 days. Hamann
thereupon decided to relieve Seeley and Bean of their
warehouse jobs, and to return them to their field jobs as
roustabouts.
While Seeley and Bean were still working at the
warehouse, Hamann discovered that Seeley had actually
8 The text of the grievance reads as follows-
Article IV - "Seniority", and any other Articles of this
Agreement that may be found to have been violated upon
further processing of this grievance.
There has been two employees on the Warehousemen's job for at
least 220 days with a Wellman and Roustabout classification rate,
been employed as a roustabout rather than as a Wellman,
at the time of his transfer to the warehouse, and
consequently no wellman 's position had been vacated by
reason of Seeley's transfer . When the grievance was filed,
Hamann assumed that the Union was protesting Respon-
dent's failure to post the job that Seeley had vacated, which
Hamann had understood to have been the wellman's job.
In any event, because of "rumblings in the field" over
Seeley's transfer to the warehouse job, while ostensibly a
Wellman, Hamann decided to return Seeley to his former
job, in a purported attempt to satisfy the Union's
grievance , and the same afternoon returned Seeley to the
field as a roustabout.
Seeley testified that Crandall told him at the time that he
was being returned to the field because of a "disagreement
between the company and the union " and asked him to
notify Bean, who had been absent that day due to illness,
that he, too, was being returned to his former job in the
oilfield. Although Crandall could not recall precisely what
he told Seeley at the time , or whether he told him that he
was being returned to the field because a grievance had
been filed, Crandall testified that he later learned that the
Union had filed a grievance over the matter.
Seeley and Bean worked as roustabouts in the field for
several days after leaving the warehouse when on Monday,
November 15 , they were returned to the warehouse on a
casual basis under the Company's former practice. They
remained there until November 19, working at the
roustabout rate . On the last day, Crandall summoned them
to his office , told them that there had been a disagreement
between the Company and the Union regarding their
employment in the store, and that they would both have to
return to the field. According to these men, Crandall told
them that the Company did not want any unionmen
working in the store.
After working as a roustabout in the field for about a
week , Bean was again instructed to report to the store.
When he did so, Crandall's assistant told him, according to
Bean, that he would work in the store as long as they could
keep him there . Bean continued in his job in the store until
about mid-December (while Seeley continued to work as
roustabout in the field), when Crandall notified Bean that
he could no longer keep him in the store. Asked for the
reason , Crandall told him that it was because of the same
disagreement between Respondent and the Union. Bean
was returned to the field and continued to receive the
roustabout scale. He was replaced in the store by a
permanent warehouse employee.
On November 15, Hamann formally replied in writing to
the Union's grievance stating that, about April 30, 1971,
when the Company discontinued the use of a contractor in
the store, it decided to use a Wellman who had been
assigned to salvage , and any additional field labor , to work
in the warehouse whenever needed. Effective Saturday
November 13, the reply continued, the Company had
authorized the position to be permanently assigned to the
which is in violation of the contract - Article IV - "Seniority".
Remedy : We request that the Company put this job up for bid.
In the punted form , the "subject" of the grievance is stated as "By-Passing
Contract," and the complainant 's name is stated as "Workmen 's Commit-
tee " The gnevance was actually signed by Smoot and six committee
members.
CHAMPLIN PETROLEUM CO.
warehouse as a monthly salaried position and discontinued
the use of a wellman in the store. The letter added, "The
Purchasing Agent has, however, been authorized to utilize,
as required, roustabout labor to perform as directed in the
Warehouse operations."
After quoting article IV, paragraph 8, as amended,
Hamann went on,
The language as above is interpretted [sic] to state that
the wellman position in the case in point, which was
utilized in the Warehouse instead of Salvage, created a
temporary vacancy in Salvage. In effect, the individual
who was utilized in the Warehouse was not a bid
wellman but was elevated to the classification of
wellman during this period, in accordance with
management 's request . In effect, no temporary vacancy
was created since no bid wellman was utilized on a new
position.
Disclaiming any violation of this article, the Company,
in effect, rejected the grievance.
On November 23, Business Representative Schmidt, in
turn, rejected Respondent's reply to the grievance as
unsatisfactory, and requested that the parties proceed to
the second step of the grievance procedure.
Under date of December 9, Hamann wrote Unit
Chairman Smoot that, following a meeting held on Friday,
December 3, 1971, pursuant to the grievance procedure,
the Company had evaluated the Union's request for
"staffing the Champlin Store with Union personnel."
Hamann stated that, after reviewing the contract, including
the entire seniority clause, the Company maintained that
the contract did not cover the store operations, which had
not been included in the bargaining unit in the past.
Adding that the Company did not consider the store
operations suitable for staffing under the contract, and
based on the history of the store operations, had concluded
that for the time being and in the "forseeable future" the
permanent store personnel would be comprised of monthly
rated employees selected on the basis of specific require-
ments, Hamann maintained that there had been no
violation of the contract, and denied the grievance.
On February 4, 1972, Hamann again wrote Schmidt,
expressing a desire to proceed as diligently as practicable
toward a resolution of the grievance. Adverting to previous
discussions with Schmidt, Hamann confirmed an agree-
ment, reached on December 23, at a meeting attended by
Smoot and Verlin McKendree, International Union
representative, to extend indefinitely the time limit for
reaching a decision regarding the grievance, due to the
intervening holidays and the unusual nature of the
grievance itself. Hamann invited further discussion of any
areas not covered in their previous meetings and closed by
stating that, if the parties could not reach a mutually
agreeable solution, the letter was to be regarded as a
request to submit the grievance to the American Arbitra-
tion Association, pursuant to the grievance procedure.
On February 22, 1972, Unit Chairman Smoot notified
Respondent that the Union did not wish to pursue the
grievance under the grievance and arbitration procedure,
and that, effective upon receipt of the letter, the Company
could consider the grievance withdrawn, without prejudice
87
to the Union's position, in any like or similar situation in
the future.
On February 25, Personnel Manager Herbert J. Sweeney
replied that the Company did not recognize Smoot's letter
as official notification from the Union since , under the
terms of the collective-bargaining agreement, Schmidt and
Hamann had been designated as representatives of the
respective parties, and the Company could only recognize
correspondence from Schmidt as official representative of
the Union. Consequently, on February 28, Schmidt
notified Respondent, in identical terms, of the Union's
intention not to pursue the grievance.
On February 29, Sweeney acknowledged Schmidt's
letter, withdrawing the grievance, notified the Union that
the Company regarded the Union's action as prejudicial to
the Union's position, and asserted that this action
constituted an admission of the correctness of the
Company's position, i.e., "that the Union does not have
jurisdiction over the Warehouse in the Wilmington field."
The letter concluded, "If you disagree, the Company is
ready and willing to submit this issue to an arbitrator
under the terms of our Collective Bargaining Agreement
for final resolution."
Hamann conceded in his testimony that at the grievance
meeting on December 23, when the subject of arbitration
and the "ramifications of the case" were discussed,
although Respondent agreed to submit the matter to
arbitration, he had reservations whether an arbitrator
would be able to make a determination of the issues,
inasmuch as the contract did not cover the store . "[S]ince it
was a jurisdictional thing," he testified, "we discussed that
an arbitrator probably couldn't or wouldn't rule on it."
Nevertheless, the Company at no time thereafter refused or
declined to proceed to arbitration.
Based upon this evidence, the General Counsel main-
tains that Respondent discriminatorily transferred Seeley
and Bean from the warehouse jobs to which they had been
assigned from their previous jobs in the oilfield because of
their union affiliation or union or protected concerted
activities . Although their union membership is not in issue,
there is no evidence of union or concerted activities
beyond passive membership.
The complaint does not specifically allege that these
employees were transferred or reassigned from their
warehouse jobs to field jobs because of the filing of the
union grievance, but if this allegation can be regarded as
encompassed by the term "concerted activities," it should
be noted that the formal grievance filed by the Union and
the subsequent exchange of correspondence between the
parties designate "By-Passing Contract" as the subject of
the grievance. Although the grievance, signed by the
members of the grievance committee, makes mention that
"two employees on the Warehousemen's job" were
affected by the Company's action, the basis for the
grievance is stated as an alleged violation of article
IV-"Seniority"-and the bypassing of the contract, and
the remedy sought, that the Company put the job up for
bid.
In support of his contention that the transfers of these
two men were discriminatorily motivated, the General
Counsel relies on Seeley's testimony that when Crandall
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notified him in November that he and Bean were being
reassigned to the field , Crandall gave as the reason the
disagreement between the Company and the Union
relative to the use of unit employees in the warehouse.
Although testifying that he could not recall whether he told
Seeley at the time that the decision had been made because
of the filing of the grievance, Crandall acknowledged that
he had been told by Pinell, his superior, that that was the
reason for the transfer . Crandall's statements , however, as
well as the one in which he said that the Company did not
want unionmen working in the store , are consistent with
Respondent's position that warehouse jobs were not
included in the bargaining unit , and that in reassigning the
employees to their former field jobs, it was motivated by a
purpose to preserve its position as to the integrity of the
unit rather than to discriminate against the employees on
the basis of their union affiliation.
It should be noted that the grievance was filed on
November 12; that Respondent replied to the grievance on
November 15; that discussions regarding the grievance
were held on December 3 and December 23, with further
exchanges of correspondence between the parties , termi-
nating on February 28, 1972, when the Union notified the
Company that it was withdrawing the grievance, and the
Company responded that it regarded the Union' s action as
"prejudicial" to the Union's position and an admission that
the Company was correct in its position, closing with the
offer to proceed to final and binding arbitration if the
Union disagreed with the Company's position.
In the absence of any union or concerted activities on the
part of Seeley and Bean or of Respondent's opposition to
the Union or to unionism in general , the basis for a finding
of discrimination must be sought in the filing of the
grievance or in Respondent 's objection to utilizing union
members in warehouse positions. Under prevailing policy,
the Company had been utilizing roustabouts, who were
field employees, included in the unit of production and
maintenance employees under the early Board certifica-
tion, and as covered by the collective-bargaining agree-
ment , on a casual or temporary basis . Indeed, as Respon-
dent maintains , it was entitled , under the management
prerogative clause of the contract , to transfer and assign
employees subject to certain qualifications .9 Nowhere in
the agreement , or in the schedule of classification and wage
rates listed in the agreement , is there any classification and
wage rates for warehouse , shipping, or receiving employees
or material handlers. The amendment to the agreement on
March 9, 1971, which contained the amendment to article
IV-seniority, as well as amended classifications and wage
rates , makes no mention in those classifications of
warehouse employees. Warehouse employees who had
previously been members of the Railroad Clerks had been
terminated in May 1970, and since then, roustabouts had
been utilized in the warehouse intermittently, without
union protest, until the situation arose with regard to
Seeley and Bean.
9 This clause states:
ARTICLE I
Management's Prerogative
The Company has and will retain the unquestionable and exclusive
right and power to manage its business and direct the working forces,
including, but not limited to the right to hire , classify, test, rate, grade,
It was not until mid-1971, when unit employees began
complaining to Unit Chairman Smoot that the Company
was utilizing unit employees covered by the labor contract
in warehouse jobs , that the Union contended, in effect,
that if the warehouse employees were not actually a part of
the bargaining unit, by utilizing unit employees in staffing
warehouse jobs, Respondent had acknowledged that the
warehouse employees constituted part of the bargaining
unit and that those jobs should be posted for bids-a
position which Respondent consistently resisted.
Thus, it is evident that in transferring or reassigning
Seeley and Bean from their jobs in the warehouse to their
former jobs in the field, Respondent was not motivated by
a purpose to discriminate in regard to their hire and tenure
of employment to discourage membership in the Union, or
because of the Union's filing of the grievance, but out of a
determination to preserve its position that warehouse jobs
were outside the bargaining unit . The fact that the ultimate
transfers were made after the filing of the formal grievance
does not justify a conclusion that the transfers were made
in reprisal for such filing. Such a holding would depend on
a post hoc propter hoc kind of logic.
Moreover, Respondent's conduct in adhering to the
grievance procedure and its willingness to pursue the
matter to arbitration and to be bound by the outcome, in
contrast to the Union's action in withdrawing the griev-
ance at the threshold of the terminal step of arbitration,
furnishes persuasive evidence that Respondent did not act
out of discriminatory motives in effecting the reassignment
of the two employees.
It is therefore found that by transferring or reassigning
Seeley and Bean from their warehouse jobs to their former
jobs as roustabouts in the field, Respondent has not
discriminated in regard to the hire and tenure of employees
to encourage or discourage membership in a labor
organization.
Although this finding is dispositive of the issues framed
by the complaint, it must be apparent that it does not
resolve the underlying issue of whether warehouse employ-
ees constitute a part of the bargaining unit , and are hence
subject to the provisions of the labor contract, as amended.
Since this issue is outside the scope of the complaint, no
resolution of that issue has been made. Respondent has,
however, pleaded as an affirmative defense that the Board
should defer to the arbitration procedure under the
principles of the Collyer case.
While Respondent recognizes that the Board has not yet
established the parameters of its policies in deferral to
arbitration, though it has indicated that they would not
ordinarily apply to run-of-the-mill 8(aX3) cases , Respon-
dent argues, with considerable merit, that this case does
not fall within that class of cases; that basic to any
determination of the issues here is the question of contract
interpretation, coupled with the issue of whether the
warehouse employees constitute an accretion to the
bargaining unit or are to be included on some other theory.
promote, transfer and assign to designated jobs, demote , lay-off,
suspend , or discharge its employees except as expressly limited herein.
This paragraph shall not prevent any individual from filing a grievance
in accordance with Article VIII in instances where management has
acted unreasonably
CHAMPLIN PETROLEUM CO.
This issue cannot , of course , be determined within the
framework of the complaint , although the Union may have
believed that a determination of the issue of alleged
discrimination would have served to establish its position
with regard to the inclusion of warehouse employees in the
bargaining unit.
It would , therefore , appear feasible to relegate the parties
to the grievance and arbitration procedure provided for
under the contract . It is obvious that the Union itself
viewed the issue as a matter of contract interpretation,
designating the grievance as a "by -passing of the contract."
This was the issue which was dealt with throughout the
grievance proceedings up to the threshold of arbitration,
when it withdrew the grievance . Although Seeley and Bean
might have been the immediate beneficiaries of a favorable
outcome , the Union 's purpose was to establish the
application of the seniority provisions of the labor contract
to warehouse jobs . This necessarily entailed an interpreta-
tion of the contract provisions . Moreover , it is evident that
the parties themselves were in disagreement as to the
meaning of the seniority provisions.
The terminology of the provision in question, as
amended by the supplemental agreement, reads:
1. ARTICLE IV - Seniority.
A) Paragraph 8. of Article IV is supplemented by the
addition of "a.", as follows:
a. Temporary vacancies created by promotion
of any employee to a new job position which
extends beyond one hundred eighty ( 180) calen-
dar days shall , at the expiration of said one
hundred eighty ( 180) days , be bid and filled in a
manner provided under the provisions of Para-
graph 4 . of Article IV for the balance of the time
the temporary classification exists.
The Union interpreted this article to mean that, since
Seeley and Bean (bargaining unit employees ) had been
employed in the warehouse for more than 180 days, the
warehouse jobs automatically became subject to the
bidding requirements of the seniority provisions . This was
the ground stated in the formal grievance.
The Company, through Hamann , construed the griev-
ance as a request by the Union to post for bid the vacancy
in the field, created by the transfer of a field employee to a
warehouse job. Whatever may be said for the reasonable-
ness of their respective views , it is obvious that a resolution
of the issue required an interpretation of the pertinent
provisions . Both parties were content to resort to the
grievance and arbitration procedures and met on several
occasions in an effort to resolve the issue until the Union
withdrew the grievance after it learned that the General
Counsel was disposed to issue a complaint alleging the
transfer of the two employees directly involved to be
discriminatory within the meaning of Section 8 (a)(3) of the
Act. Respondent protested the withdrawal of the griev-
ance , maintaining that this action amounted to a conces-
sion that Respondent 's position was well-taken, but,
nevertheless , stated that it was "ready and willing to
submit this issue to an arbitrator under the terms of our
Collective Bargaining Agreement for final resolution."
(Emphasis supplied .) Although Hamann expressed misgiv-
ings at the December 23 grievance meeting as to whether
89
the issue could be resolved by an arbitrator , Respondent at
no time contended that the issue was not arbitrable or that
it was unwilling to proceed to arbitration and be bound by
any award.
The General Counsel resists any deferral to arbitration
by the Board on several grounds . ( 1) While willing to
assume , arguendo, that he may be , in effect, litigating, as
Respondent contends , an alleged violation of Section
8(a)(5) under the guise of an 8 (aX3) complaint, the General
Counsel maintains that since the grievance was withdrawn,
there is nothing pending to be arbitrated, and no
proceeding to which the Board can defer. (2) Still
assuming, arguendo, that even if the grievance were
pending, and the issue were essentially one of contract
interpretation, Collyer would be inapplicable because
Respondent did not manifest its willingness to arbitrate
until after the unfair labor practice charge was filed. This,
according to the General Counsel , indicates that Respon-
dent either was not relying on the grievance and arbitration
provisions of the contract , and that the dispute was
therefore not contractual or that Respondent failed to
assert its claim that the grievance was arbitrable to avoid
recourse to that procedure . Here, the General Counsel
relies for his alternative positions on the evidence that at
the December 23 grievance meeting, Hamann expressed
the view that an arbitrator might not be able to decide the
grievance because the issue involved the question of
whether warehouse jobs were covered by the contract. (3)
Since Respondent's position that the issue is essentially
whether the warehouse employees may be considered an
accretion to the bargaining unit , the matter is one to be
determined in a representation proceeding , and the Board,
in Collyer, expressed reservations about relegating unit
determinations to private parties . (4) The collective-bar-
gaining agreement does not provide that all disputes
arising under the contract "shall be settled and determined
solely and exclusively by the conciliation and arbitration
procedures provided" in the agreement, and there is no
showing that the "parties intended to make the contract
grievance procedure the exclusive forum for resolving
contract disputes ," as appeared in Collyer. (5) Unlike the
situation in Collyer, the labor contract here does not
provide that the results of the arbitration shall be "final
and binding." (6) There is no history of collective
bargaining between the parties justifying a deferral to
arbitration.
The General Counsel 's arguments against deferral, while
having superficial appeal , do not appear wholly persuasive.
(1) The contention that the Union's withdrawal of the
grievance leaves nothing to be arbitrated overlooks the
more basic issue of whether , since the parties themselves
have provided machinery for the arbitration of disputes
arising out of interpretation of the contract, they should
not be relegated to that machinery, irrespective of whether
either of the parties has filed a grievance. Conceivably,
Respondent could itself file a grievance to test the
applicability of the seniority provisions to the warehouse
employees, and Respondent has given every indication of
willingness to resolve this issue by arbitration.
(2) The contention that Respondent manifested its
willingness to arbitrate only after the filing of the unfair
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice charge is not wholly borne out by the facts.
Respondent acceded promptly to the grievance procedure,
culminating in terminal arbitration, and the fact that it
expressed its willingness to proceed to arbitration in precise
language after the filing of the charge was merely
coincidental, and no indication that Respondent had until
then sought to avoid arbitration. Obviously the issue was
not ripe for arbitration until the antecedent steps in the
procedure had been met. The fact that Respondent's
production superintendent may have expressed misgivings
as to whether an arbitrator could decide the issue is
insufficient to justify the conclusion that Respondent
conceded that the issue was not arbitrable under the
contract. Moreover, the fact that Respondent subsequently
offered to proceed to final and binding arbitration, without
qualification, removes any doubt as to its intentions.
(3) The argument that since Respondent maintains that
the issue is primarily whether the warehouse employees
may be considered an accretion to the bargaining unit, a
determination which the Board seeks to reserve to itself,
may pose somewhat of a problem. The Board, however,
has given no indication that it would not honor a unit
determination arrived at by means of application or
interpretation of the contract if such determination were
consistent with Board law or policy. It cannot be assumed
in advance that any such determination by an arbitrator in
interpreting the contract would be in conflict with
prevailing Board standards.
(4) This argument proceeds on the assumption that the
collective-bargaining agreement does not make the "con-
tract grievance procedure the exclusive forum for resolving
contract disputes," as existed in Collyer, and (5) does not
provide that the results reached under the arbitration shall
be "final and binding." The grievance procedure, provid-
ing for arbitration as the terminal point, reads:
The parties agree to arbitration by the American
Arbitration Association and its rules.
While there is no specific language to the effect that the
results of arbitration shall be final and binding, it is
reasonable to infer that this was the intention of the
parties. Otherwise, the arbitral procedure would be
illusory; and resort thereto, an exercise in futility.10
Additionally, the applicable language of the labor
contract provides:
The arbitrators shall have no power to add to or
subtract from or modify any of the terms of this
Agreement , or any agreements made supplementary
hereto ; nor to establish or to change any wage scale or
classification, but shall refer any such case back to the
parties without decision. Any decision of the arbitra-
tors in conflict with the foregoing sentence shall not be
binding on the parties. Article VIII , sec. 10.
It is a reasonable construction of this article that all other
decisions shall be final and binding on the parties.
10 It may be noted that the published rules of the American Arbitration
Association do not in specific terms provide that the results of the
arbitration shall be final and binding on the parties Voluntary Labor
Arbitration Rules of the American Arbitration Association, as amended and in
effect January 1, 1970 Yet no one would seriously contend that an
arbitration award under these rules would not be final and binding.
11 Which read as follows.
§12874 Judgment Confirming Award-If an award is confirmed,
Moreover, as Respondent points out, not only has the
Union never claimed that such decision was not final or
binding on the parties , but such a result has been enacted
by state statute , rendering an arbitral award , in the absence
of fraud, corruption, or similar circumstances , binding
upon the parties. California Code of Civil Procedure, sec.
1287.4, 1287.6.11
The record leaves no doubt that if the matter is
submitted to arbitration , Respondent is willing to be fully
bound by the decision.
Finally, (6) the General Counsel's contention that there
is no extensive history of collective bargaining between
Respondent and the Union , as was present in Collyer,
while perhaps literally true, does not sufficiently take into
account the long history of collective bargaining between
Respondent's predecessor (nearly 30 years), and the fact
that when Respondent took over the operation in 1971, it
promptly assumed the obligations of its predecessor under
the existing collective-bargaining agreement with the
Union, as amended. Hamann, who had been employed by
Respondent's predecessor since 1954, and became by
successive stages production superintendent , and partici-
pated in labor negotiations culminating in the execution of
collective-bargaining agreements , including the supple-
mental agreement on March 9 , 1971. He had himself
engaged in four or five arbitrations with the Union since
1960. There was no showing of any change in Respon-
dent's labor relations policies after it took over the
operation , nor was there any showing that it had
manifested unwillingness to resolve disputes through the
grievance procedure. Moreover, the record is devoid of any
evidence of union animus or opposition to unionism by
Respondent.
The grounds advanced by the General Counsel do not
afford sufficient justification for refusal to defer to the
arbitration procedure provided for in the collective-bar-
gaining agreement . The facts of this case provide ample
grounds for deferral to arbitration, and it will be recom-
mended that the Board relegate the parties to the
procedures provided for in the contract to resolve the basic
and underlying dispute. In the event, however, the Board
should disagree, and refuse to make such deferral , it will be
recommended that the complaint be dismissed.
On the basis of the foregoing findings of fact , and upon
the entire record , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Champlin Petroleum Company, Respondent herein,
is, and at all times material herein has been, an employer
engaged in commerce and in a business affecting com-
merce , within the meaning of Section 2(6) and (7) of the
Act.
2. Oil, Chemical & Atomic Workers International
Union, AFL-CIO; and Oil, Chemical & Atomic Workers
judgment shall be entered in conformity therewith . The judgment so
entered has the same force , and is subject to all the provisions of law
relating to. a judgment in a civil action; and it may be enforced like any
other judgment of the court in which it is entered.
11287.6 Effect of Unconfirmed or Unvacated A ward -An award that
has not been confirmed or vacated has the same force and effect as a
contract in writing between the parties to the arbitration.
CHAMPLIN PETROLEUM CO.
International Union, Local No. 1-128, AFL-CIO, the
Unions herein, jointly referred to as the Union, are, and at
all times material herein have been, labor organizations
within the meaning of Section 2(5) of the Act.
3. By transferring Roger Seeley and James Bean from
warehouse tofield positions, in about November 1971, and
by informing them that they were being transferred
because it did not want union members working in
warehouse positions , Respondent has not engaged in
unfair labor practices within the meaning of Section 8(aX3)
and (1) of the Act.
4. The alleged unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
12 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as provided in
91
of the Act, the Trial Examiner makes the following
recommended: 12
ORDER
It is hereby recommended that the Board defer to the
arbitral procedure contained in the collective-bargaining
agreement between Respondent and the Union, dated
August 21, 1969, effective January 1, 1969, as amended
March 9, 1971, and dismiss the complaint, without
prejudice, retaining jurisdiction, however, under the poli-
cies enunciated in Collyer.
Alternatively, in the event that the Board should decline
to defer to the arbitral process provided for in the
collective-bargaining agreement, it is recommended that
the complaint be dismissed on the merits.
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes