Chevron Oil Co.

National Labor Relations Board - Board Decisions

Nov 30, 1967

168 N.L.R.B. 574 (N.L.R.B. 1967)

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chevron Oil Company and Local 825, 825(A),
825(B), 825(C ) International Union of Operating
Engineers , AFL-CIO. Cases 22-CA-2737 and
22-CA-2922
November 30, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On May 26, 1967, Trial Examiner Max Rosen-
berg issued his Decision in the above-entitled con-
solidated proceeding, finding that Respondent had
engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, as set forth- in the attached Trial Ex-
aminer's Decision. However, for the reasons stated
below, the Trial Examiner did not recommend that
a positive remedial order be issued to cure these
violations. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended dismissal of these allegations. Thereafter,
the Respondent and the General Counsel filed ex-
ceptions to the Trial Examiner's Decision and sup-
porting briefs. I The Respondent also filed a brief in
answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as amplified and
hereinafter modified.
1. The Trial Examiner found that the Respond-
ent violated Section 8(a)(5) by refusing to fulfill its
agreement to arbitrate a "pegging" grievance. The
Respondent excepts and points out that the Board
has held that a refusal to arbitrate a grievance is not
per se a violation of Section 8(a)(5); e.g. Hortex
Manufacturing Company, 147 NLRB 1151, enfd.
343 F.2d 329 (C.A.D.C.). However, the Respond-
ent here did not merely refuse to arbitrate a
grievance. By refusing to fulfill its agreement for the
specific, but erroneous, reason that it was relieved
of its obligation to bargain because of the pendency
of the Independent's representation petition, the
Respondent, in effect, withdrew recognition from
the Union as the certified, statutory representative
of its employees before Respondent was legally en-
titled to do so. Therefore, we agree with the Trial
Examiner that Respondent violated Section 8(a)(5)
by such conduct.
2. The Trial Examiner found that the Respond-
ent violated Section 8(a)(5) by dealing directly
with employees in the unit about a temporary
transfer without prior consultation with their duly
designated bargaining representative. We agree. It
is clear that such transfer affected wages and terms
and conditions of employment about which the
Union had the right to be consulted. The fact that
the transfer was to be voluntary rather than manda-
tory is not controlling, since the Respondent uni-
laterally arrogated to itself the decision as to which
employees would be permitted to elect whether or
not they desired to transfer. The determination of
how the selection was to be made - whether on the
basis of seniority, merit, or some other criteria -
Was a matter of legitimate concern to the employees
and their statutory representative, and therefore
one about which the statutory representative should
have been consulted. Accordingly, we agree that
the Respondent violated Section 8(a)(5) by dealing
directly with the employees about the transfer and
without prior consultation with the Union and by
refusing to negotiate with the Union about the
transfer.
3. Although the Trial Examiner found that
Respondent violated Section 8(a)(5) of the Act by
certain conduct, he did not recommend the issuance
of a remedial order, finding that no useful purpose
would be served thereby. Prior to the filing of the
charges in this case, the Independent Oil Workers,
Local 394 (Independent), filed a petition in Case
22-RC-3355 seeking an election among the em-
ployees in the unit of Respondent's employees here
involved, then represented by the Union. The Re-
gional Director dismissed the petition because of
the pendency of the unfair labor practice charges.
The Petitioner appealed this dismissal to the Board.
The Board reinstated the petition and ordered a
hearing on the ground that the policies of the Act
would best be effectuated by deciding the question
of representation since the unfair labor practices al-
leged, occurring 6 to 11 months earlier, were
"technical in nature" and were no impediment to an
election.2 After a hearing on the petition, the Board
directed an election which was held on April 27,
1967. The tally of ballots showed that of 343 valid
ballots cast, 239 were for the Independent, 98 were
for the Union, and 6 were against the participating
labor organizations. At the time the Trial Examiner
issued his Decision, the Union had filed objections
1 As the record, exceptions, and briefs in our opinion adequately
present the issues and positions of the parties, the Respondent's request
for oral argument is hereby denied.
2 Chevron Oil Company, Case 22-RC-3355 (not published in NLRB
volumes).
168 NLRB No. 84
CHEVRON OIL COMPANY
which were pending before the Regional Director.
On June 6, 1967, subsequent to the Trial Ex-
aminer's Decision, the Regional Director overruled
all of the Union's objections and certified the Inde-
pendent as the bargaining representative of the unit
of Respondent's employees involved in this
proceeding. The Union did not file a request for
review with the Board.
The General Counsel excepts to the Trial Ex-
aminer's refusal to .issue a remedial order and con-
tends that since Respondent violated the Act, "the
intervening fortuitous event of a change in the bar-
gaining agent is not material." The General Counsel
contends further that "as the rights of the em-
ployees have been violated, any collective-bargain-
ing representative chosen by the employees in the
unit is entitled to a remedy which would protect it
from similar future violations."
We agree with the General Counsel that the poli-
cies of the Act will best be effectuated if we issue an
Order against Respondent to "cease and desist"
from violating Section 8(a)(5) of the Act, and affir-
matively direct Respondent to bargain collectively
with the statutory representative of its employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Chevron Oil Company, Newark, New Jersey,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Withdrawing recognition from any certified
representative of its employees except as provided
by law.
(b) Bargaining directly with employees in a
represented bargaining unit concerning changes in
their working conditions without consulting the
statutory representative of such employees.
2. Take the following affirmative action which
is necessary to effectuate the policies of the Act:
(a) Bargain collectively with the statutory
representative of its employees.
(b) Post at its plant in Newark, New Jersey, co-
pies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Re-
gional Director for Region 22, after being duly
signed by Respondent's representative, shall be
posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 22,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
575
IT IS FURTHER ORDERED that that portion of the
complaint as to which no violation has been found
be, and it hereby is, dismissed.
3 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT withdraw recognition from
any certified representative of our employees
except as provided by law.
WE WILL NOT bargain directly with our em-
ployees concerning changes in their working
conditions without consulting their statutory
representative.
WE WILL bargain collectively with the statu-
tory representative of our employees.
CHEVRON OIL COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 614 National Newark Building, 744 Broad
Street, Newark, New Jersey 07012, Telephone
645-3088.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Trial Examiner: With all parties
represented, this case came on to be heard before me in
Newark, New Jersey, on December 5 and 6, 1966, on
complaint of the General Counsel of the National Labor
Relations Board and answer of Chevron Oil Company,
herein called the Respondent.' The issues raised by the
pleadings are whether Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, by certain conduct to be detailed hereinafter.
The parties waived oral argument at the conclusion of the
' The complaint, which issued on November 10, 1966, is based upon
charges filed and served on April 26 and October 24, 1966, respectively.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing. Briefs have been received from the General
Counsel and the Respondent,2 which have been duly con-
sidered.
Upon the entire record made in this proceeding and my
observation of the witnesses, including their demeanor
while testifying on the stand, I hereby make the follow-
ing:
FINDINGS OF FACT AND CONCLUSIONS
1. THE RESPONDENT'S BUSINESS
Respondent, a California corporation, maintains an of-
fice and place of business in Perth Amboy, New Jersey,
where it is engaged in the refining, selling, and distributing
of petroleum products. During the annual period material
to this proceeding, and in the course of its business opera-
tions, Respondent caused to be manufactured, sold, and
distributed at said Perth Amboy refinery, products valued
in excess of $50,000, of which products valued in excess
of $50,000 were shipped from the State of New Jersey
directly to other States of the United States. The com-
plaint alleges, the answer admits, and I find that Respond-
ent is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 825, 825(A), 825(B), 825(C), International
Union of Operating Engineers, AFL-CIO, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions
The General Counsel contends that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by systematically
interrogating nine employees at its Perth Amboy refinery
to determine whether disciplinary action should be im-
posed upon them without acceding to their request that a
representative of the Union, their duly designated bar-
gaining agent, be present during said interrogations; by
suspending seven of the aforementioned employees
without pay, based upon their statements obtained in the
course of the interrogations; by declining to honor the
terms of a collective-bargaining agreement between
Respondent and the Union through its refusal to process
a grievance concerning the pegging of seniority; and, by
circumventing and undermining the Union through bar-
gaining directly with certain employees at the refinery
concerning their temporary assignments away from that
installation. The Respondent denies the commission of
any unfair labor practices.
B. The Evidence
For 20 years, the Union has represented Respondent's
hourly rated employees at its Perth Amboy refinery.3 The
latest contract between the parties, which was executed
on October 1, 1965, remained in effect until September
30, 1966.4 Among other provisions, this agreement con-
tained various grievance clauses which set forth the
procedures to be followed whenever a dispute arose,
beginning with the first step of consultation between the
aggrieved employee, the union steward, and the foreman
involved, and culminating in arbitration.
At approximately 7:15 a.m. on Friday, April 1, 1966,5
John Sabo, a foreman in the plant maintenance depart-
ment, observed employees Salvatore Carluccio,
Raymond Donnelly, Charles German, Joseph Hickey,
Frank Nudge, Frank Sabine, Alexander Seamanik, and
Charles Stek depart their work stations. Sabo confronted
the group and directed that they remain at their jobs until
7:30 a.m., their normal quitting time, or else he would
write out a rule-infraction notice regarding their conduct.
The men disregarded the foreman's order, in consequence
of which Sabo "wrote them up" and his report in this re-
gard was transmitted through channels until it reached the
2 The Charging Party filed a letter with me setting forth its legal position
in this matter.
3 The parties stipulated that all hourly rated employees at Respondent's
Perth Amboy refinery , excluding plant superintendents , supervisors, any
person having authority to recommend hiring or firing , experimental and
laboratory staff, clerical and professional employees, equipment inspec-
tors, draftsmen , and guards , constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
4 The original complaint in this proceeding contained allegations that
Respondent generally refused to bargain with the Union after September
30, 1966, concerning a new labor agreement . At the outset of this hearing
on December 5, 1966, the General Counsel moved to delete these allega-
tions on the ground that a real question concerning representation had
arisen concerning the Union 's representative status following expiration
of the contract . In support of this motion, the General Counsel related
that, on July 18, 1966 , a labor organization styled as Independent Oil
Workers , Local 394, herein called the Independent, filed a petition in
Case 22-RC-3355 with the Board 's Regional Office seeking an election
among the employees in the unit represented by the Union . Because of the
pendency of unfair labor practice charges lodged with the Board on April
26, 1966 (Cases 22-CA-2737 and 22-CA-2922 ), alleging that Respond-
ent unlawfully refused to bargain with the Union by denying its agent the
right to be present during a factfinding meeting between Respondent and
certain employees which was held to determine whether they should be
disciplined , the Regional Director dismissed the petition . Thereafter, the
Independent appealed the dismissal to the Board . In its appeal , the Inde-
pendent asserted that its petition was supported by a vast majority of the
employees in the unit and that the bulk of the union shop stewards had de-
fected to its side. On December 1, 1966, 4 days before the hearing in this
proceeding, the Board acted favorably on the appeal and directed that a
hearing be held to determine whether a question concerning representa-
tion existed inasmuch as the outstanding unfair labor practice charges in-
volved issues which were merely "technical in nature." Rounding out the
chronology, a hearing on the petition was held and an election was con-
ducted on April 27, 1967. The tally of ballots shows that there were 343
valid votes cast, of which 239 were for the Independent, 98 were for the
Union, and 6 were against collective representation. There were no chal-
lenged ballots Thereafter, the Union filed objections to the election which
are currently pending
Over the Union's objection, I granted the aforementioned motion by the
General Counsel because, under established Board policy, the pendency
of a real question concerning representation raised by the Independent's
petition suspended the Respondent's statutory obligation to bargain with
the Union after September 30 over a new collective-bargaining agreement
until that question was resolved See Durahte Co, Inc., 132 NLRB 425,
427 The Union thereafter appealed my ruling to the Board and, on
December 14, 1966, that tribunal denied the Union's request for special
permission to appeal, with leave to press the objection to my ruling follow-
ing issuance of the Trial Examiner's Decision in this case. In light of the
Board's Decision of March 29, 1967, finding that a real question concern-
ing representation existed following expiration of the contract between
Respondent and the Union which warranted a representation hearing, and
the subsequent direction of an election, I perceive no persuasive reason
for altering my previous ruling.
Unless otherwise indicated, all dates fall in 1966
CHEVRON OIL COMPANY 577
hands of William Jones, Respondent's superintendent of
maintenance and construction. The following day, April
2, Sabo again observed Stek, Carluccio, German,
Hickey, and John Wilson leave their work area at 7:15
a.m. and once more he warned them not to do so. When
the men repeated their disregard for Sabo's instructions,
the latter dispatched another rule-infraction report to
Jones. Upon receipt of these reports, Jones spoke to his
superior, Minor Fahrmann, Respondent's manager of
maintenance and construction, concerning this matter
and it was agreed that a disciplinary problem existed
which required further investigation.6 Jones then con-
tacted Armand Salerno, assistant manager in charge of
labor relations at the plant, and it was decided that in-
dividual factfinding meetings should be conducted with
each of the employees involved. Jones testified that,
based upon Sabo's version of the events, he and Fahr-
mann reached a tentative decision on April 2 to mete out
some form of punishment to the nine employees for in-
subordination.
Salerno testimonially explained Respondent's custo-
mary procedures regarding the preliminary investigation
of reported rule infractions at the plant, which Sabo and
Jones followed, and his testimony stands uncontradicted
on this record.7 According to Salerno, these procedures
are set in motion once a foreman becomes aware that an
employee under his supervision has engaged in conduct
which offends plant rules. The foreman then prepares a
memorandum setting forth the facts surrounding the in-
cident and discusses the episode with his immediate su-
perior. If the misconduct is deemed to be sufficiently seri-
ous, the matter is ultimately referred to the manager of
the department or division involved. The manager will
normally convene a meeting of his staff and review the
data as reported by the foreman. Occasionally, an addi-
tional investigation may be conducted among manage-
ment personnel. If an assessment of these facts convinces
the reviewing body that a prima facie case of misconduct
has been made out, a tentative determination regarding
punishment is made. Thereafter,- a factfinding session is
held at which the employee whose conduct is under scru-
tiny will be invited to present his side of the story so that
the management representatives may make a fair ap-
praisal of all the evidence to determine whether discipli-
nary action is in order. When the employee reports to the
meeting, he is advised that he may stand mute but is in-
formed that, if he does so, Respondent will take the facts
as reported by his foreman at face value and proceed on
the basis of them. The employee is also told that, because
the purpose of the meeting is essentially to gather basic
information and because management representatives at
a factfinding session are not authorized to dole out
punishment, the presence of a union representative is un-
necessary at this juncture and none is permitted to attend.
In the event the employee produces evidence which
satisfactorily explains his asserted derelictions, the
matter is dropped. However, if no countervailing con-
siderations are advanced by the employee, the manage-
ment committee, following the factfinding meeting, as-
sembles to decide upon what disciplinary action should
be taken.
When a decision to discipline has been reached,
Respondent schedules a disciplinary meeting at which the
affected employee and his union representative are in-
vited to appear. It is Salerno's undisputed testimony that
"At a disciplinary meeting the facts again are presented
to the group present. Once more everyone present has the
opportunity to comment, to amend, alter, modify or what-
ever, including of course the union steward." If the em-
ployee or his union agent advances persuasive reasons to
forestall disciplinary action, the investigation is placed at
rest and this has occurred on several occasions in the
past. On the other hand, if, after full and complete discus-
sion, the employee or his union representative fails to
convince the management committee that discipline is un-
warranted, punishment is then meted out. In the event the
employee or the Union is dissatisfied with Respondent's
decision, either may grieve under the grievance
procedures contained in the contract between the parties.
Following receipt of Sabo's rule-infraction reports,
Jones conducted factfinding meetings on Monday, April
4. The employees involved were individually called into
Jones' office and informed that the sole purpose for the
interview was to consider all the circumstances relating
to their alleged misconduct the preceding week. Jones
testified that he informed each employee that no
discipline would be exacted at the interview and hence
the employee was not entitled to have a union agent
present." However, Jones assured the men that, if and
when disciplinary action was to be taken , a union
representative could be at their side. After the interviews
were concluded, Jones consulted with Sabo, Fahrmann,
and others in the personnel department. As a result of
these consultations, it was agreed that the charges against
Hickey and Donnelly should be dropped because they of-
fered a satisfactory explanation to rebut Sabo's com-
plaints. With respect to the remaining seven employees,
Jones and his colleagues decided that the employees had
offered no evidence in mitigation of their reported offen-
ses, and that they should be suspended for 3 days without
pay. Whereupon, it was determined that Jones should
hold a disciplinary meeting on the afternoon of April 4.
,,The nine employees normally worked on the day shift which ter-
minated at 4 p in., and it was the practice of the foreman on that shift to
permit the employees to leave the job at 3 45 p.m. in order to cleanse
themselves in the washroom. However, Sabo did not follow this practice
on the "temporary shift" to which he and the nine employees were as-
signed The men, with the exception of Hickey and Donnelly, decided to
walk off the Job 15 minutes early, in defiance of Sabo's orders, to bring the
issue to a head
7 It is undisputed and I find that Respondent 's established policy of
conducting a preliminary investigation of asserted employee misconduct
is not proscribed by any terms embodied in the contractual grievance
clause, and has never been challenged by the Union
8 Employees Frank Nudge and Charles German testified (and by stipu-
lation of the parties, the remaining seven employees would have testified
if called to the stand) that, when they were summoned into Jones' office
for a factfinding meeting on April 4 and were told of the purpose for their
presence, they requested that a union representative be called to assist
them , a request which Jones declined to fulfill because no disciplinary ac-
tion was contemplated at this meeting In his testimony, Jones denied that
he had received such a request from the men, but admitted that he would
have refused it if made In light of Jones' testimony that he advised the
employees that they were not entitled to have a union representative
present at this meeting , it appears more probable that this statement was
made in response to a plea for union representation by the employees. In
any event, it would have been futile for the men to demand the presence of
a union agent in view of Jones' assertion that the former would have been
barred from the meeting because of its preliminary, factfinding character.
Accordingly, I find that the employees were denied union representation
at the factfinding meeting
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Present at this meeting were the seven employees in-
volved and Steven Kosmyna, the Union's chief shop
steward in the maintenance department, together with
Jones, Sabo, and a representative from Respondent's per-
sonnel department. When the meeting commenced, Jones
explained to Kosmyna and the employees the purpose for
the gathering and, after reviewing the events which trans-
pired on April 1 and 2, stated that his major concern
revolved around the disregard for a foreman's order
rather than their early departure from work. Jones went
on to state that the employees' complaint about the lack
of washup time could have been resolved under the con-
tractual grievance procedure rather than by spontane-
ously walking off the job, and he remarked that Respond-
ent viewed their action as a serious breach of discipline
which warranted the penalty of suspension for 3 days
without pay.9 At this juncture, Kosmyna advanced vari-
ous objections to the proposed suspensions, complaining
that the punishment was too severe and that he had not
been previously consulted concerning the alleged insub-
ordination. However, Kosmyna did not argue with the
factual considerations underlying the suspensions. He
then turned to the seven employees and remarked, "All
right, if Jones says to take three days off, take three days
off." It is undisputed and I find that, at no time following
the disciplinary meeting on April 4, did the Union press
the matter of the suspensions under any of the grievance
steps provided therefor in the contract between the
parties.
The General Counsel takes the position that an em-
ployer violates Section 8(a)(5) of the Act when he fails to
consult with the duly designated bargaining agent of his
employees during the course of a preliminary investiga-
tion to ascertain whether an employee has engaged in
conduct in contravention of plant rules which justifies the
invocation of disciplinary measures affecting job tenure.
He further contends that it is a violation of Section 8(a)(1)
for an employer to deprive employees of the advice and
counsel of a union representative whenever the
possibility of disciplinary action may be visited upon
them. Translating these theses into their applicability to
the instant proceeding, the General Counsel argues that
the employees here involved possessed the right to union
representation at the April 4 factfinding meetings
because an "inchoate" grievance was in the making. By
this, he maintains that the lack of union presence at these
meetings offended the statute, although he makes no
claim that the Respondent's deportment at the sub-
sequent disciplinary meeting or thereafter possessed any
taint of illegality. He therefore prays that Respondent be
enjoined from engaging in such asserted misconduct in
the future, and that it be required to reimburse the seven
affected employees for any loss of pay they may have suf-
fered as a result of their suspensions.
To be sure, Section 7 of the Act guarantees to em-
ployees the right to be represented by their collective-bar-
gaining representative in all areas pertaining to their
terms and conditions of employment, and the penalty of
suspension from work for alleged insubordination most
assuredly is encompassed within those terms and condi-
tions. Moreover, Sections 9(a) and 8(a)(5) obligate an em-
ployer to deal with a duly designated labor organization
concerning all matters which affect the employment
tenure of the represented employees. But this is not to say
that a bargaining agent must be privy to management
councils, or that represented employees must be shielded
by that agent from company inquiries, on each and every
occasion when management embarks upon an investiga-
tion to ascertain whether plant discipline has been
breached. 10 In the instant case, Respondent had receivedi7`
a report from Foreman Sabo that nine employees had
walked off the job 15 minutes early on April 1 and 2 in
defiance of his orders to remain until the end of their work
shift. Rather than rely solely upon Sabo's version of the
facts surrounding the incidents, Respondent took the
eminently fair and reasonable step of hearing both sides
of the issue by interviewing the employees prior to arriv-
ing at a decision as to whether disciplinary action was
warranted, and, if discipline was in order, to so advise the
employee and his collective representative of that deci-
sion. In light of my findings heretofore made that Jones,
Respondent's superintendent of maintenance and con-
struction, lacked authority to discipline the employees at
the factfinding meetings on April 4, 1 fail to perceive how
the exclusion of Union Steward Kosmyna from those
meetings intruded upon the rights of the employees or af-
fected the Union's representative status. If my un-
derstanding of the law is correct, a grievance in the statu-
tory sense does not arise unless and until a management
decision has been formulated to affect adversely an em-
ployee's wages, hours, or other terms and conditions of
employment, and the decision is on the brink of imple-
mentation. I am hard pressed to understand how, as the
General Counsel suggests, Respondent evaded any statu-
tory obligation by refusing to entertain the presence of a
union representative during the discussion of an alleged
rule infraction when no definite adverse action has as yet
been decided upon by Respondent. i i
I am fortified in this conclusion by a further considera-
tion of what transpired at the factfinding meetings and the
ensuing disciplinary meeting on April 4. As a result of the
interviews at the former meetings, the insubordination
charges against Hickey and Donnelly were dropped upon
presentation of evidence that they did not prematurely
leave their jobs in disregard of Sabo's instructions. The
remaining seven employees were unable to produce
evidence to excuse their charged and admitted acts of in-
subordination. Following the factfinding sessions,
N While the General Counsel approached this issue with guarded
detachment, it seems clear on the basis of the testimony of his own wit-
nesses that the seven employees deliberately and insubordinately ignored
Sabo's instructions to fulfill their workday commitments before they
proceeded to the washroom. In this connection, I would note that the
General Counsel neither alleges nor suggests that Respondent singled out
these employees for disciplinary action in order,to inhibit the exercise of
their rights under Section 7 of the Act.
10 The General Counsel's brief is singularly devoid of any Board or
court support for his contrary assertion. In this connection, I take passing
note of an Administrative Decision of the General Counsel in Case
SR-2382, dated December 7, 1962, 1962 CCH NLRB ¶11,991 In that
decision, the facts disclosed that the employer's supervisor refused to
allow a union steward to be present at an interview to determine whether
an employee had actually been absent from work due to illness, as the em-
ployee claimed. In refusing to issue a complaint, the General Counsel
ruled that, "since the meeting between the supervisor and the employee
had occurred before any disciplinary action hrl been taken and hence be-
fore a grievance had arisen, insufficient basis existed for a finding that the
company had violated the Act in refusing to permit the union steward to
attend."
" See fn. 10, supra
CHEVRON OIL COMPANY
Respondent then decided that the circumstances war-
ranted that the seven errant employees be disciplined by
suspension from work without pay for 3 days. Thereafter,
a disciplinary meeting was conducted and the seven, as
well as Union Steward Kosmyna, met with representa-
tives of Respondent. During this meeting, Jones again un-
folded the charges filed against the employees, discussed
the facts uncovered during the preceding investigation,
and announced that he had decided to suspend the men.
Kosmyna registered his objections, advanced alterna-
tives, and argued his constituents' cause. As this record
stands, neither Kosmyna nor the employees were
foreclosed in any manner from offering new evidence in
mitigation of their acknowledged offenses, nor from rear-
guing the old. In short, I find that, under Respondent's
established procedures for the conduct of disciplinary
meetings, both the Union and the employees were al-
lowed and received a de novo hearing on the charges at
the disciplinary session before their suspension was im-
posed.
Respondent was under no statutory or contractual duty
to conduct preliminary factfinding meetings with the em-
ployees prior to the imposition of discipline for the infrac-
tion of plant rules. Nor was it prohibited from doing so
either by law or contract. This was a reasonable accom-
modation afforded to employees at the Perth Amboy
refinery, which was not extended to other plants in the
area,12 and which was patently designed to avoid the
possible invocation of the time-consuming grievance
procedures set forth in the contract. Indeed, if Respond-
ent had eliminated the factfinding step and had relied
solely on Sabo's word concerning the admitted insubor-
dination of the seven employees, it would not have been
summoned to this bar to account for its actions under the
General Counsel's theory of the case, because it had
discharged its obligation of union consultation and
presence at the disciplinary meeting. In sum, the General
Counsel would damn Respondent for doing too much
rather than too little. After a careful review of the entire
record and the contentions of the parties on this issue, I
am convinced and conclude that Respondent did not vio-
late Section 8(a)(5) or (1) of the Act by declining to permit
a union representative to be present at the factfinding
meetings while Respondent's officials were investigating
supervisory reports of insubordination by nine employees
in the unit which the Union represented. I also conclude
that the seven employees who were suspended for their
admitted insubordination by leaving their jobs in defiance
of instructions from their foreman are not entitled to
backpay during the period of their suspensions. Ac-
cordingly, I shall dismiss the complaint insofar as it al-
leges that Respondent engaged in unfair labor practices
in violation of Section 8(a)(5) and (1) of the Act by the
foregoing conduct.
Sometime prior to May 9, a grievance was filed by the
Union over Respondent's refusal to peg the classification
12 It is uncontroverted and I find that preliminary factfinding meetings
were not utilized at other refineries in the area and that disciplinary action
against offending employees was first proposed to them and their bargain-
ing representative at a disciplinary meeting.
13 "Pegging" connotes the freezing of an employee's job within his work
classification. When pegged, an employer may not transfer an employee
to another job.
14 Respondent advances the argument that it had merely "offered" to
arbitrate rather than "agreed" to do so, and that it was therefore legally
privileged to refuse to participate in any arbitration proceeding . It seems
579
of Gerard Haynes, an employee in the bargaining unit. 13
It is undisputed and I find that, on May 9, after the
parties had failed satisfactorily to dispose of the dispute,
the Union demanded that Respondent arbitrate the
grievance pursuant to the procedures outlined in the con-
tract between Respondent and the Union. On June 20,
the parties agreed upon the issue to be arbitrated and the
selection of an arbitrator. On July 5, the parties con-
curred in an arrangement to conduct the arbitration hear-
ing during mid-August. While the negotiations concerning
Haynes' grievance were under consideration, and as
heretofore chronicled, a representation petition was filed
in Case 22-RC-3355 by the Independent on July 18,
seeking an election among the employees represented by
the Union. Motivated by this petition and by knowledge
acquired prior to its filing of the Independent's organiza-
tional drive among the employees, the Respondent
dispatched a letter to the Union on August 11 which
recited:
Under the National Labor Relations Board's
"Midwest Piping doctrine," an employer must
remain strictly neutral when a real question of
representation ... has been raised. Thus an employer
is precluded from bargaining with either of the two
unions; to bargain with either would constitute un-
lawful assistance to that union.
Under the National Labor Relations Act, arbitra-
tion is a form of collective bargaining. For Chevron
to arbitrate with [the Union], therefore, would con-
stitute unlawful assistance to it and would result in
Chevron's committing an unfair labor practice. Thus,
Chevron must decline to arbitrate the "pegging"
grievance with [the Union] until the question of
representation has been resolved by the National
Labor Relations Board.
On August 26, Respondent reiterated its stand and no
hearing on Haynes' grievance has been held.
The General Counsel contends that Respondent's
abrogation of its agreement to arbitrate the grievance was
violative of Section 8(a)(5) of the Act because it con-
stituted a rejection of the representative status of the
Union, a status to which the Union was entitled under
Section 9(a) until the expiration of the existing collective-
bargaining contract on September 30.14 For its part,
Respondent argues that it was under no obligation to ar-
bitrate with the Union during the pendency of a real
question concerning representation raised by the Inde-
pendent's petition because arbitration constitutes "collec-
tive bargaining" and because dealing with the Union on
this issue would violate the legal mandate of "neutrality"
with respect to the competing unions.15
In Duralite Co., Inc-16 the Board held that an em-
ployer is obligated to recognize and bargain with the col-
lective-bargaining representative of his employees over
the administration of an existing labor agreement during
the entire term of that contract, despite the fact that a
clear on this record that, by its response of July 5 to an earlier letter from
the Union , Respondent bound itself by agreement to arbitrate the matter
15 In this connection , Respondent takes the dichotomous position that
it was perfectly amendable to bargain with the Union after the petition
was filed by its willingness to "process grievances , post notices, etc.," but
would not engage in arbitration . I find it difficult to understand how
Respondent can contend that the former conduct was privileged while the
latter was proscribed because, in either event, Respondent of necessity
would be engaging in collective bargaining with the Union
16132 NLRB 425.
336-845 a - 70 - 38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation petition has been filed by a rival union.
The reason for this ruling seems clear. Stability in labor
relations, a prime objective of the legislation which con-
trols this proceeding, is enhanced by the fulfillment of
compacts hammered out in good faith at the bargaining ta-
ble. Employees are not only entitled to the fruits of their
"bargain," but are also entitled to the assistance of their
collective agent in securing the flow of those benefits as
long as the instrument which provides them is viable.
Were it otherwise, an employer could, with impunity,
withhold these benefits at his pleasure or whim any time
a rival labor organization utilizes the processes of the
Board to seek an election which, until conducted, is
neither dispositive of the incumbent's lack of representa-
tive support among the employees nor probative of the
rival's supremacy. Industrial peace can hardly find a
predicate in this circumstance. Accordingly, following the
teachings of Duralite, I conclude that Respondent vio-
lated Section 8(a)(5) by refusing to fulfill its agreement
with the Union to arbitrate the grievance of Haynes over
"pegging," thereby rejecting the representative status of
the Union to which it was entitled during the term of the
existing collective-bargaining contract.17
It is uncontroverted and I find that, in late July or early
August, Minor Fahrmann, Respondent's manager of
maintenance and construction, was informed that certain
skilled mechanics were needed to perform temporary
work at an affiliated, unrepresented refinery in Pascagou-
la, Mississippi. Whereupon, Fahrmann selected the
names of approximately 30 men in the bargaining unit
whom he considered competent and held a meeting with
them on August 18. At the meeting, he advised the em-
ployees of the need for their skills at the Mississippi in-
stallation, and explained in detail that, if they voluntarily
chose to work at this location, their wages and other
terms and conditions of employment would be governed
by those which prevailed in Pascagoula, which differed
considerably from those which obtained in Perth Amboy.18
Some of the men inquired about the availability of
"smoke breaks" and other working conditions at the
southern refinery, and Fahrmann replied that he was una-
ble to alter any of the terms of employment at that loca-
tion. He then informed the employees that they would be
carried on the Pascagoula payroll for the 2-week period
from October 2 to 16, and that their decision must be
made by August 22. Twenty-six employees volunteered
for the assignment as a result of Fahrmann's solicita-
tion.19 It is undenied on this record that no union repre-
sentative attended or was invited to attend the meetings,
and none was consulted about the job transfer.
On August 19, after learning of the proposed shift of
men from the Perth Amboy unit to Mississippi, Union
General President George Haluska telephoned Fahr-
17 Of course , Respondent was not required and could refuse to bargain
with the Union over a new agreement during the pendency of the In-
dependent's petition See Duralite Co supra at 427
18 For example , the prevailing wage rate in Pascagoula was 19 cents per
hour less than they presently were receiving at Perth Amboy.
11 Respondent obtained the services of 20 employees at this meeting on
August 18 Another meeting was conducted thereafter and, after making
similar representations to the assembled employees, an additional six
volunteered for the new assignment.
20 See fn 16, supra.
21 See N L.R B v. Katz, Williamsburg Steel Products Co., 369 U S
736.
22 SeeJ I. Case Company v. N.L.R.B., 321 U.S 332.
mann to inquire whether the transfer was actually being
contemplated, and received an affirmative reply. On Au-
gust 21, Haluska again telephoned Fahrmann in search
of additional information concerning the move, and
requested that a meeting be scheduled so that the Union
could bargain over the proposed transfer and the con-
comitant change in wages and working conditions. While
Fahrmann refused to acquiesce in Haluska's request for
a formal meeting, he proceeded to furnish the desired in-
formation over the telephone.
Respondent seemingly does not quarrel with the
General Counsel's assertion that the former bargained
directly with the employees in obtaining their transfer to
Mississippi. Rather, Respondent defends against this
charged misconduct on the grounds that it was not
obligated to deal with the Union because of the pendency
of the Independent's petition and that no change in work-
ing conditions occurred as a result of the assignment.
With respect to the latter contention, the record is clear
that the employees who elected to transfer to Pascagoula
suffered a reduction in pay amounting to 19 cents per
hour, as well as the potential loss of smoking and other
privileges. I find that these changes most certainly af-
fected their terms and conditions of employment and I
conclude that Respondent has offered no meritorious
defense to the charges in this regard. With respect to the
former contention, I have heretofore concluded, based
upon the Duralite case '20 that Respondent was under a
duty to bargain with the Union during the entire term of
the contract between the parties regarding wages, hours,
and other conditions of employment. The transfer of em-
ployees out of the bargaining unit, and the consequent
reduction in their wages and other changes in working
conditions, most certainly constituted mandatory sub-
jects of bargaining under the Act 21 over which Respond-
ent' could not bargain directly with its employees in
disregard of the collective agent.22 Accordingly, I con-
clude that Respondent, by dealing directly with its em-
ployees concerning changes in their working conditions,
without prior consultation with their duly designated bar-
gaining representative, thereby violated Section 8(a)(5) of
the Act.23
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with Respondent's
operations described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
23 Respondent further defends its conduct on the ground that it was not
required to bargain with the Union over the transfer because the Union
represented only the Perth Amboy and not the Pascagoula employees,
and because the reassignment was solicited on a voluntary basis With
respect to the former defense, it should be noted that the gravamen of the
complaint is that Respondent violated its duty of consultation with the
Union concerning the unit of employees at Perth Amboy which it
represented, not the unrepresented employees at Pascagoula. With regard
to the latter, the alleged offense is not that Respondent permitted the unit
employees to remain in status quo, but that it circumvented the Union in
offering an assignment outside of the Union to the employees even though
the employees were free to reject the offer I therefore find no merit in
these additional defenses
CHEVRON OIL COMPANY 581
V. THE REMEDY
I have heretofore found that Respondent violated Sec-
tion 8 (a)(5) of the Act by refusing to bargain with the
Union concerning the arbitration of Gerard Haynes'
grievance under the collective -bargaining agreement then
in effect between the parties. I have also found that
Respondent violated that section by dealing directly with
unit employees concerning changes in their wages , hours,
and other conditions of employment in derogation of their
duly designated bargaining agent. Under normal circum-
stances, a remedial order to correct these statutory trans-
gressions would be warranted . However, as indicated
heretofore , the Union was unsuccessful in the election
conducted on April 27, and the Independent emerged
victorious by a substantial margin as set forth in the offi-
cial tally of ballots. While the Union has filed timely ob-
jections to that election , and the election might con-
ceivably be overturned by the Board , it seems to me that
no useful remedial purpose would be served at this time
to recommend that Respondent bargain with the Union
concerning Haynes' grievance or bargain with it over the
temporary reassignment of unit employees to other instal-
lations. Accordingly , I shall make no positive remedial
recommendations to the Board concerning these viola-
tions at this time. However , in the event the election al-
ready conducted is overturned and a second election is
held, and in the further event that the Union is successful
in the latter election , the Board may see fit, under its con-
tinuing powers to monitor and perfect remedial measures
in cases pending before it, to fashion an appropriate
remedy at some future date.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to bargain with the Union through
declining to arbitrate the grievance of Gerard Haynes,
and by dealing directly with employees in the unit con-
cerning changes in their working conditions without con-
sulting the Union, occurring at a time when the Union
was the duly designated bargaining representative of the
employees involved, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8 (a)(5) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
5. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(5) by refusing to per-
mit a union representative to be present at factfinding
meetings with employees to determine whether discipli-
nary action should be taken against them.