Conoco, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1995

318 N.L.R.B. 60 (N.L.R.B. 1995)

60
318 NLRB No. 4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We deny the Union’s request to disregard the Respondent’s sec-
ond and third exceptions.
2 The Union separately represents a small unit of clericals at the
Ponca City facility. That unit is not in issue here.
3 Here and elsewhere in his decision, the judge also cited Tel-Plus
Long Island, 313 NLRB No. 47 (Nov. 26, 1993). This unpublished
decision is reported at 145 LRRM 1158.
4 Sec. 8(d) of the Act provides, inter alia, that ‘‘the duties so im-
posed shall not be construed as requiring either party to discuss or
agree to any modification of the terms and conditions contained in
a contract for a fixed period, if such modification is to become ef-
fective before such terms and conditions can be reopened under the
provision of the contract.’’
5 As the Board explained in Milwaukee Spring II, 268 NLRB 601,
602 (1984) (footnotes omitted):
Sections 8(a)(5) and 8(d) establish an employer’s obligation to
bargain in good faith with respect to ‘‘wages, hours, and other
terms and conditions of employment’’ . . . before reaching a
good-faith impasse in bargaining. Section 8(d) imposes an addi-
tional requirement when a collective-bargaining agreement is in
effect and an employer seeks to ‘‘modif[y] . . . the terms and
conditions contained in the contract: the employer must obtain
the union’s consent before implementing the change. If the em-
ployment conditions the employer seeks to change are not ‘‘con-
tained in’’ the contract, however, the employer’s obligation re-
mains the general one of bargaining in good faith to impasse
over the subject before instituting the proposed change.
6 Art. 20–1 states in relevant part that ‘‘As of April 1, 1993, the
Operations Technology and Support Department shall be divided
into the following progression units.’’ The provision then sets out
the three progression units that were effective April 1, 1993. The
definition of these progression units is set out by the judge in his
decision.
Conoco, Inc. and Oil, Chemical and Atomic Work-
ers International Union, and its Local 5-857,
AFL–CIO. Case 17–CA–17040
July 31, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On June 21, 1994, Administrative Law Judge Ste-
phen J. Gross issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions
with briefs in support and the Respondent filed cross-
exceptions with a brief in support and an answering
brief. Thereafter, the Charging Party filed an answer-
ing brief to the Respondent’s cross-exceptions and a
reply brief to the Respondent’s answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this De-
cision and Order.
The issue here is whether the Respondent violated
Section 8(a)(5) within the meaning of Section 8(d) of
the Act by expanding the number of progression units
set out in the collective-bargaining agreement between
the parties without first obtaining the consent of the
Union. For the reasons set out below, we reverse the
judge and find that the Respondent violated Section
8(a)(5) by so doing.
I. FACTUAL BACKGROUND
The judge has fully set out the facts. In brief, the
Respondent is an oil company with facilities world-
wide, including a facility at Ponca City, Oklahoma, the
only facility at issue here. The Union represents vir-
tually all the Ponca City facility employees in a bar-
gaining unit of some 600 employees that includes the
employees at issue here, the approximately 160 em-
ployees in the facility’s Operations Technology and
Support (OT&S) Department.2 OT&S employees are
divided into ‘‘progression units’’ for purposes of deter-
mining seniority. While the number of progression
units has varied, the present collective-bargaining
agreement, effective March 31, 1993, to March 31,
1996, provides for three such units. In July 1993,
shortly after the agreement went into effect, the Re-
spondent told the Union that it intended to replace the
three progression units provided for in the collective-
bargaining agreement with six different progression
units. After the Union objected, the parties met on sev-
eral occasions to discuss the matter. Although the
Union remained opposed to the Respondent’s plan, in
October 1993 the Respondent expanded the number of
progression units from three to six without the consent
of the Union.
II. THE JUDGE’S DECISION
Citing Chemical Workers v. Pittsburgh Plate Glass
Co., 404 U.S. 157 (1971),3 for the proposition that
Section 8(d) of the Act requires an employer to obtain
the union’s consent before it ‘‘seeks to proceed in a
manner inconsistent with the terms of a collective-bar-
gaining agreement that is then in effect . . . if the em-
ployer’s proposed action concerns a mandatory subject
of bargaining,’’4 the judge initially found, and we
agree, that the expansion of the number of progression
units from three to six concerned a mandatory subject
of bargaining because it affected seniority and there-
fore had a potential effect on employees’ hours, pay,
and risk of layoff. The judge went on to find no viola-
tion, however, because he found that the Respondent’s
obligation to retain the three progression units in force
was not ‘‘contained in’’ the contract as required under
Section 8(d).5
In reaching his conclusion, the judge first observed
that the words ‘‘As of April 1, 1993,’’ in article 20–
1 of the collective-bargaining agreement, the article
that the Respondent was alleged to have violated,6
could be interpreted in either of two ways, to define
‘‘a specific time’’ or to define ‘‘a starting point.’’ As
61CONOCO, INC.
7 Art. 26 is entitled ‘‘Staffing.’’ Arts. 26–5 and 26–6 read as fol-
lows:
26–5 When one or more progression units in whole or in part
are combined with one or more other progression units, employ-
ees shall be ranked in the surviving progression unit on the basis
of their regular, full-time employment date in the Operations
Technology and Support Department . . .
26–6 When the Company has determined that conditions exist
which necessitate the application of Article 26–5, they [sic] will
meet with the Union to explain the situation.
to the former, the judge opined that ‘‘as of April 1,
1993,’’ could mean, as the Respondent contended, that
the parties agreed only that the Respondent should
have the three progression units in place by that spe-
cific date, but that thereafter the Respondent was free
to use different progression units. As to the latter, the
judge observed that ‘‘as of April 1, 1993,’’ could
mean, as the General Counsel and the Union con-
tended, that the three progression units became effec-
tive April 1, 1993, and that the Respondent was not
free, absent the consent of the Union, to use a different
number of progression units after that date.
Finding that the meaning of the term ‘‘as of’’ was
not clear from the context, the judge observed that
‘‘the question to answer is what [meaning] Conoco and
the Union intended the term to have when they used
it in the agreement.’’ The judge reasoned that although
the term could have the meaning urged by the General
Counsel and the Union, such an interpretation was
‘‘improbable’’ and found instead that the words ‘‘as
of’’ meant, as the Respondent contended, that the Re-
spondent was obligated to have the three progression
units in place on April 1, 1993, but was not obligated
to maintain them thereafter. Having found that ‘‘as of’’
means on April 1, 1993, but not thereafter, the judge
opined that the reason the parties negotiated the provi-
sion to be effective for only 1 day was
as a way of effectuating Conoco’s interest [as set
out in Article 11 of the contract’s management-
rights clause] in being able to rearrange all facets
of OT&S whenever it cho[se] while, at the same
time, honoring what surely would be an interest
of the Union in specifying the progression units
the parties contemplated as being in effect as the
contract term got under way.
Accordingly, the judge found that the Respondent did
not violate the Act because there was no provision
‘‘contained in’’ the contract that forbade the Respond-
ent from changing the number of progression units
after April 1, 1993.
Relying on NCR Corp., 271 NLRB 1212, 1213
(1984), the judge went on to find no violation on the
additional ground that since there were two equally
plausible interpretations of article 20–1 and the Re-
spondent had a reasonable basis under its interpretation
to take the action alleged as unlawful, the Board would
‘‘not enter the dispute to serve the function of arbitra-
tor in determining which party’s interpretation [was]
correct.’’ Thus, for both these reasons the judge dis-
missed the complaint.
Finally, noting that his dismissal of the violation al-
leged hinged entirely on his interpretation of the words
‘‘as of April 1, 1993,’’ the judge considered whether
the Respondent would have violated Section 8(d) if
one assumed that, as the General Counsel and the
Union contended, article 20–1, standing alone, meant
that effective April 1, 1993, the Respondent was re-
quired to utilize the progression units set out in the
contract and was not free to change them absent the
consent of the Union. The judge concluded that under
this assumption the Respondent’s change in the num-
ber of progression units would have been contrary to
the Respondent’s obligations under the contract and
therefore a violation of Sections 8(a)(5) and 8(d). In
reaching this conclusion, the judge first found that al-
though the management-rights clause, standing alone,
did give the Respondent the ‘‘responsibility’’ to
‘‘[d]etermine and to redetermine the organization’’ of
OT&S, it did not give the Respondent the right to rear-
range the order of employee seniority as set out in the
progression units. In this regard, the judge observed
that it was the Respondent’s burden to show that the
parties intended the management-rights clause to over-
ride the requirements of article 20–1 of the collective-
bargaining agreement and found that the Respondent
had failed to carry that burden.
The judge also considered and rejected the Respond-
ent’s contention that articles 26–5 and 26–6 of the col-
lective-bargaining agreement must permit the Respond-
ent to divide progression units without the Union’s
consent.7 While observing that article 26 appeared to
allow the Respondent to combine progression units
without the Union’s consent, the judge found
‘‘unpersuasive’’ the Respondent’s argument that those
same provisions must allow the Respondent to divide
progression units without the Union’s consent. In this
regard, the judge observed that combining progression
units had very different effects from splitting them. He
also noted that the absence of any discussion of the
Respondent’s right to split progression units might
mean that the parties had previously considered and re-
jected that idea.
Finally, the judge also rejected the Respondent’s as-
sertion that its history of making midterm changes in
progression units proved that it had the right to make
such a change here. In finding this argument without
merit, the judge observed that on one occasion the Re-
spondent had combined progression units without the
consent of the Union, but that this was permitted under
article 26 of the collective-bargaining agreement. The
judge further observed that while on one prior occasion
the Respondent had split the number of progression
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The judge also considered and rejected the Respondent’s conten-
tion that it was not required to bargain over splitting the number of
progression units because its decision to divide them involved a
change in the scope and direction of the Respondent’s operations.
We agree with the judge that the Respondent’s decision to split the
number of progression units did not involve a change in the scope
and direction of the Respondent’s business. Therefore, the Respond-
ent may not rely on First National Maintenance Corp. v. NLRB, 452
U.S. 666 (1981), to escape liability here.
9 It is well settled that the Board has the authority to interpret col-
lective-bargaining agreements in the course of deciding unfair labor
practice cases. See Mining Specialists, 314 NLRB 268, 268 fn. 5
(1994), and cases there cited.
units, it had done so only after obtaining the consent
of the Union.8
III. CONTENTIONS OF THE PARTIES
The General Counsel and the Charging Party argue
that the judge erred in finding that the words ‘‘as of
April 1, 1993’’ contained in article 20–1 of the collec-
tive-bargaining agreement should be interpreted to
mean on April 1, but not necessarily thereafter. The
General Counsel and the Charging Party also except to
the judge’s finding that the term ‘‘as of’’ is capable of
two equally plausible interpretations and that therefore,
under the Board’s holding in NCR Corp., supra, the
Respondent’s splitting of the progression units without
the consent of the Union did not violate the Act. The
Respondent excepts to the judge’s finding that article
11 of the collective-bargaining agreement, the manage-
ment-rights clause, does not, standing alone, permit the
Respondent to split the number of progression units
without the Union’s consent.
IV. DISCUSSION
We find merit in the General Counsel’s and the
Charging Party’s exceptions and, for the reasons set
out below, reverse the judge and find that the Re-
spondent violated Section 8(a)(5) and 8(d) of the Act
by dividing the number of progression units in October
1993 without the consent of the Union.
To resolve the issue presented here, whether the Re-
spondent violated Section 8(a)(5) and 8(d) by splitting
the number of progression units set out in article 20–
1 of the current collective-bargaining agreement with-
out the consent of the Union, we must determine what
the Respondent and the Union intended the term ‘‘as
of April 1, 1993’’ to mean in article 20–1.9 As the
Board stated in Mining Specialists, 314 NLRB 268,
268–269 (1994):
In contract interpretation matters like this, the
parties’ actual intent underlying the contractual
language in question is always paramount, and is
given controlling weight. To determine the par-
ties’ intent, the Board normally looks to both the
contract language itself and relevant extrinsic evi-
dence, such as a past practice of the parties in re-
gard to the effectuation or implementation of the
contract provision in question, or the bargaining
history of the provision itself. [Footnotes omitted.]
In his own interpretation of article 20–1, the judge re-
lied on four reasons to find that it was ‘‘improbable’’
that the parties intended the term ‘‘as of’’ to mean ef-
fective April 1, 1993: (1) that the agreement was effec-
tive at noon on March 31, ‘‘a scant 12 hours before
the as-of date.’’; (2) that the progression units that
were in place when the agreement went into effect
were substantively identical to the progression units set
out in the agreement; (3) that the term ‘‘as of’’ was
used in the first collective-bargaining agreement be-
tween the parties and has been used in each collective-
bargaining agreement since then; and (4) that the two
places that the parties ‘‘unambiguously’’ intended to
communicate ‘‘becomes effective,’’ they used the term
‘‘effective.’’
In our view, the judge erred by finding it significant
that the date of article 20–1 was different from, and
only a ‘‘scant’’ 12 hours after, the effective date of the
contract and that the parties did not use the term ‘‘ef-
fective’’ in article 20–1 to clarify the use of the term
‘‘as of.’’ Contrary to the judge, we find that the only
plausible interpretation of the term ‘‘as of April 1,
1993’’ is that urged by the General Counsel and the
Union, that article 20–1 was effective as of April 1,
1993, and thereafter.
In reaching this conclusion, we observe that, as the
judge himself emphasized, in the first collective-bar-
gaining agreement between the parties, article 2, the
seniority provision equivalent to article 20–1 in the
1993 contract, provided that ‘‘[a]s of April 30, 1971,’’
the Research and Development Department would be
divided into four progression units. However, the col-
lective-bargaining agreement was effective the same
date, April 30, 1971—without the 12-hour or other dif-
ference in timing which the judge emphasized in the
1993 contract. By the judge’s own logic, then, the par-
ties must have intended the term ‘‘as of’’ in article 2
to mean ‘‘effective as of April 30, 1971,’’ the effective
date of the contract. Accordingly, we find that in the
initial contract the term ‘‘as of’’ in article 2 meant
‘‘effective as of April 30, 1971.’’ Thus, this factor
supports the General Counsel’s and the Union’s inter-
pretation of the term ‘‘as of’’ in article 20–1.
We must then decide whether the difference between
the date set out in article 20–1 of the 1993 agreement
(‘‘[a]s of April 1, 1993’’) and the effective date of that
agreement (Mar. 31, 1993) somehow alters the mean-
ing of the term ‘‘as of’’ from that which the parties
intended in 1971. We conclude that it does not. In
reaching this conclusion, we emphasize that the parties
have entered into 10 collective-bargaining agreements
after the 1971 agreement and that in none of those
agreements is the date set out in the relevant ‘‘Senior-
63CONOCO, INC.
10 In the three agreements that the parties entered into subsequent
to the 1971 agreement and whose effective dates were respectively
May 14, 1973, June 24, 1975, and March 7, 1977, article 2, the ‘‘se-
niority’’ provision, began ‘‘[a]s of April 30, 1971.’’ In the next con-
tract, effective March 5, 1979, art. 2 began ‘‘[a]s of March 1,
1979,’’ some four days before the effective date of the 1979 con-
tract. The March 1, 1979 date was repeated in art. 2 in the three
following contracts whose effective dates were respectively March 1,
1982, April 14, 1984, and March 10, 1986. The following contract
was effective January 13, 1989, but the ‘‘Seniority’’ provision of the
1989 contract, now art. 20, began ‘‘[a]s of June 9, 1987.’’ Art. 20
of the next contract, effective March 31, 1990, also began ‘‘[a]s of
June 9, 1987.’’ In the latest contract, the 1993 agreement at issue
here, art. 20 begins, as explained above, ‘‘[ a]s of April 1, 1993’’
while the effective date of the contract is March 31, 1993.
ity’’ provision the same as the effective date of the
contract in which it is contained.10 Yet until now nei-
ther the Respondent nor the Union has ever contended
that this disparity in dates evidences the parties’ intent
to change the meaning of the term ‘‘as of’’ from that
which the parties intented in the 1971 agreement.
Thus, the collective-bargaining agreements in evidence
convince us that by the term ‘‘as of’’ in article 20–1
of the 1993 agreement the parties intended that article
20–1 would be ‘‘effective as of April 1, 1993 and
thereafter.’’ Accordingly, since we conclude that the
Respondent’s obligation to maintain three progression
units is ‘‘contained in the contract,’’ we find that the
Respondent could not divide the number of progres-
sion units set out in article 20–1 during the term of the
contract without the Union’s consent.
In reaching this conclusion, we have also considered
and find without merit the judge’s alternative ground
for dismissing the complaint, that the term ‘‘as of’’ in
article 20–1 is capable of two equally plausible inter-
pretations and that the Board, for the reasons set out
in NCR Corp., supra, will not, in effect, act as an arbi-
trator in such circumstances. As set out above, we
have found that the parties intended the term ‘‘as of’’
to mean ‘‘effective as of’’ and that the judge’s analysis
that led to a different conclusion will not survive scru-
tiny. We also find that the judge’s explanation as to
why the Union would agree to have article 20–1 effec-
tive for only 1 day, April 1, 1993, but not thereafter,
further evidences the inherent implausibility of his in-
terpretation. In this regard, as explained above, the
judge opined that the parties intended ‘‘as of’’ to mean
‘‘on April 1, 1993 but not necessarily thereafter’’ to
allow the Respondent to arrange all facets of its OT&S
operation whenever it chose, while honoring the
Union’s interest in specifying the number of progres-
sion units in effect at the commencement of the con-
tract term. We find this rationale implausible. For if
the Union had an interest in specifying the number of
progression units at the commencement of the contract
term, and the progression units, as the judge himself
found, concern such fundamental matters of employ-
ment as seniority and layoffs, we fail to understand
why the Union, having taken the trouble to define the
number of progression units in the contract, would
cede to the Respondent total control over the number
of progression units, and thus over seniority and the
order of layoffs, after the first day of the contract term.
Such an interpretation would, in effect, render article
20–1 a nullity. Since it is axiomatic that parties to a
collective-bargaining agreement do not intend to agree
to a nullity, we find the judge’s interpretation of the
term ‘‘as of’’ inherently implausible.
Finally, we agree with the judge, for the reasons
stated by him, that the management-rights clause of the
contract, standing alone, and the parties’ bargaining
history do not support the Respondent’s argument that
it was free to expand the number of progression units
without the consent of the Union even if the term ‘‘as
of’’ had the meaning urged by the General Counsel
and the Union. For all these reasons, we find that the
Respondent was not free to expand the number of
progresssion units during the term of the current agree-
ment absent the consent of the Union and that it vio-
lated Section 8(a)(5) within the meaning of Section
8(d) by expanding the number of progression units
from three to six on October 1, 1993.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Oil, Chemical and Atomic Workers Inter-
national Union and Local 587 are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Union is the designated and recognized col-
lective-bargaining representative of certain of the Re-
spondent’s employees, including its OT&S Department
employees, at its Ponca City, Oklahoma facility and
those employees are included in a unit described in the
current collective-bargaining agreement between the
Respondent and the Union which was entered into in
1993.
4. The Respondent has violated Sections 8(a)(5) and
8(d) of the Act by expanding the number of progres-
sion units set out in the current collective-bargaining
agreement between the parties without the consent of
the Union.
5. The aforesaid violation of the Act is an unfair
labor practice within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) of the Act, we will require it to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
We shall order the Respondent to restore the three
progression units set out in the 1993 collective-bar-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 Conoco admits that it is an employer engaged in commerce and
that, accordingly, the Board has jurisdiction over this matter.
gaining agreement and that were in place prior to the
Respondent’s unlawful expansion of those progression
units on October 1, 1993. We shall also order the Re-
spondent to make its employees whole for any loss of
wages suffered by virtue of the Respondent’s unlawful
expansion of the number of progression units with in-
terest as described in New Horizons for the Retarded,
283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Conoco, Inc., Ponca City, Oklahoma, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing mandatory terms of collective bargain-
ing that are contained in the current collective-bargain-
ing agreement without the consent of the Union.
(b) In any like or related manner interfering with,
coercing, or restraining employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action deemed
necessary to effectuate the policies of the Act.
(a) Restore the progression units described in the
1993 collective-bargaining agreement and maintain
those progression units during the term of the contract
unless the Union consents to their expansion.
(b) Make whole the unit employees for any wages
lost as a result of its failure to comply with the terms
of the collective-bargaining agreement.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts due under
the terms of this Order.
(d) Post at its facility in Ponca City, Oklahoma, cop-
ies of the attached notice marked ‘‘Appendix.’’11 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 17, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT change mandatory terms of collective
bargaining that are contained in the current collective-
bargaining agreement without the consent of the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL restore the progression units set out in the
1993 collective-bargaining agreement and maintain
those progression units during the term of the agree-
ment unless the Union agrees to their expansion.
WE WILL make our employees whole for any loss of
wages as a result of our failure to comply with the
terms of the collective-bargaining agreement.
CONOCO, INC.
Mary Taves, Esq., for the General Counsel.
Terry S. Bickerton, Esq., of San Antonio, Texas, for the Re-
spondent.
Kathleen a. Hostetler, Esq., of Lakewood, Colorado, for the
Charging Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. Conoco,
Inc. is an oil company. It operates on a worldwide scale.1
We are here concerned with only one of Conoco’s facilities,
the one in Ponca City, Oklahoma. And of the Ponca City fa-
cility’s 610 or so employees, our focus is solely on the ap-
proximately 160 employees in the facility’s Operations Tech-
nology and Support Department (OT&S). Virtually all the
employees at the Ponca City facility (including the OT&S
employees) are represented by the Oil, Chemical and Atomic
65CONOCO, INC.
2 Conoco admits that OCAW and Local 5-857 are labor organiza-
tions within the meaning of Sec. 2(5) of the Act. The Union rep-
resents the employees in two bargaining units at the Ponca City fa-
cility. One of the units is a small group of clerical employees. The
other, with about 600 members (including the OT&S employees) is
made up of—
All operation and maintenance employees of the Refining De-
partment, production and maintenance employees of the Lubri-
cants Complex and the Surface Transportation Department (in-
cluding transport drivers), nonprofessional laboratory employees
of the Operations Technology and Support Department working
in its Petroleum Products R&D Division and Analytical Services
Section of the Research Services Division of the Respondent at
its Ponca City, Oklahoma, facilities. Excluded: All office clerical
employees, plant clerical employees in the Refinery, surveyors,
chemists, professional engineers, professional employees, em-
ployees of certain represented craft units (boilermaker-welders
and their helpers, electricians and their helpers, carpenters and
their helpers, and bricklayers and their helpers), laboratory as-
sistants assigned primarily to dish washing duties, guards, sub-
foremen, labor foremen, and all other supervisors as defined in
the Act.
3 I do not consider the details of the agreement’s description of the
progression units to be relevant to the issues herein. Nonetheless, be-
cause the progression units are so often referred to, the progression
units as described in the agreement are here set forth:
(a) One progression unit for Technician [sic] in
(1) Downstream Operations Support-Process Technology
(2) Downstream Product Support and Development
(3) Chemicals and Specialties Support-Process Develop-
ment, Fluorochemical Development
(b) One progression unit for Technicians in
(1) Downstream Operations Support-Analytical Testing
(2) Chemicals and Specialties Support-Analytical Support
(c) One progression unit for Research Craftsmen in
(1) General Services-Pilot Plant Support
(2) Chemicals and Specialties Support-Engineering Coordi-
nation and Pilot Plant Support
4 These are the new progression units put into place by Conoco
on October 1, 1993, although, again, the issues raised by this case
do not require the reader to focus on their precise description:
(A) Downstream products support and development/-
downstream operations support-process technology/general serv-
ices
(1) technician progression units
(2) crafts progression units
(B) downstream operations support
(1) technician progression units
Assigned groups [sic]
(C) process development center
(1) technician progression units
(2) crafts progression units
(D) Analytical support
(1) technician progression units
5 A witness for Conoco testified that the Company increased the
progression units from three to six on July 1, 1993. But considerable
evidence shows that testimony to be mistaken.
6 The complaint issued on December 17, 1993, on an unfair labor
practice charge filed on November 4, 1993. I heard the case in
Ponca City, Oklahoma, on March 24, 1994. The General Counsel,
the Respondent, and the Charging Parties have filed briefs.
7 Sec. 8(d) provides, in part, that the duty to bargain—
shall not be construed as requiring either party to discuss or
agree to any modification of the terms and conditions contained
in a contract for a fixed period, if such modification is to be-
come effective before such terms and conditions can be re-
opened under the provisions of the contract.
The agreement contains no midterm reopener provision.
Workers International Union (OCAW) and its Local 5-857,
AFL–CIO (the Union).2
Conoco and the Union are parties to a collective-bargain-
ing agreement that, by its terms, is effective for the period
March 31, 1993, to March 31, 1996 (the agreement). For
many years OT&S’ employees have been divided into ‘‘pro-
gression units’’ for purposes of determining seniority, with
the number of progression units varying from time to time.
Three progression units are spelled out in the agreement.3
In July 1993, 2-1/2 months after the agreement went into
effect, Conoco told the Union that the Company intended to
replace the three progression units to which the agreement
refers with six different ones.4 The Union objected, and rep-
resentatives of Conoco and the Union met on a number of
occasions to discuss the matter. The Union’s representatives
remained opposed to the Company’s plan. Nonetheless, in
October 1993 the Company did expand the number of OT&S
progression units to six, doing so without the consent of the
Union.5
The General Counsel and the Union contend that by
changing the progression units without first obtaining the
consent of the Union, Conoco violated Section 8(a)(1) and
(5) and Section 8(d) of the National Labor Relations Act (the
Act).6
The Effect of the Change on Terms and Conditions
of Employment
Under Section 8(d), where an employer seeks to proceed
in a manner inconsistent with the terms of a collective-bar-
gaining agreement that is then in effect, and if the employ-
er’s proposed action concerns a mandatory subject of bar-
gaining, the employer must obtain the union’s consent before
so acting. Chemical Workers v. Pittsburgh Plate Glass Co.,
404 U.S. 157 (1971); Tel Plus Long Island, 313 NLRB No.
47, slip op. at 15–16 (Nov. 26, 1993).7
Here Conoco’s use of six progression units rather than the
three referred to in the agreement alters the exposure of some
OT&S employees to lay off, changes some OT&S employ-
ees’ chances for daylight work (as opposed to shift work),
and changes some OT&S employees’ opportunities for ob-
taining increases in base pay if Conoco does assign them to
shift work. As of the date of the hearing, none of the OT&S
employees had been affected in any such matter. But, plain-
ly, seniority and its potential effect on employees’ hours,
pay, and risks of layoff are mandatory subjects of bargaining.
See, e.g., First National Maintenance Corp. v. NLRB, 452
U.S. 666, 677 (1981).
The Provision of the Contract that Conoco is Claimed
to have Violated
For the General Counsel to make out a violation of the
Act here, he must show that Conoco’s obligation to maintain
three progression units in force is ‘‘‘contained in’ the con-
tract.’’ Milwaukee Spring II, 268 NLRB 601, 602 (1984),
quoting Section 8(d). Accord: Tel Plus, supra. The contract
term that the General Counsel and the Charging Parties point
to is article 20–1. And as all of the parties agree, article 20–
1 does specify three progression units, not six. But the provi-
sion begins with the following language:
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 For references to ‘‘as of’’ in which the context shows that a par-
ticular date was being referred to, see U.S. v. Munro-Van Helms Co.,
243 F.2d 10, 12–13 (5th Cir. 1957) (involving a collective-bargain-
ing agreement that stated that ‘‘The employee’s right to a vacation
shall accrue as of July 1.’’); 13 U.S.C. § 141(a), the predecessor of
which is discussed in City of Twin Falls v. Koehler, 123 P.2d 715
(Sup.Ct. Idaho 1942) (‘‘The Secretary [of Commerce] shall, in the
year 1980 and every ten years thereafter, take a decennial census of
the population as of the first day of April of such year.’’) For an
example of a context that makes it clear that ‘‘as of’’ refers to a
starting date, see the usage example of ‘‘as of’’ in Webster’s Third
New International Dictionary (1981): ‘‘the rule takes effect as of
July 1.’’
9 The record does not contain a copy of the analogous provision
of the 1971 agreement.
As of April 1, 1993, the Operations Technology And
Support Department shall be divided into the following
progression units . . . .
Conoco argues that the words ‘‘As of April 1, 1993’’
are vitally significant. What they mean, Conoco con-
tends, is that all Conoco and the Union agreed to is that
Conoco was required to have the specified progression
units in place on April 1, 1993; the intent of those
words, Conoco urges, was to permit the Company to
use different progression units at any time thereafter.
Under that reading, of course, the agreement allowed
Conoco to divide OT&S into six progression units on
October 1, 1993 (the action that is the subject of this
proceeding).
There is no doubt that, under some circumstances, ‘‘as of’’
can have the meaning that Conoco contends it has here. That
is, ‘‘as of’’ can refer to a ‘‘specific time.’’ But it also can
be used ‘‘to define a starting point.’’ PQ Corp. v. U.S., 652
F.2d 724, 738 fn. 18 (CIT 1987). That is to say, ‘‘as of April
1, 1993’’ can mean ‘‘becomes effective on April 1, 1993.’’
The former definition (a specific time), of course, supports
Conoco; the latter, the General Counsel and the Union. Gen-
erally the words of the sentence in which ‘‘as of’’ is used
make it clear which definition is intended.8 But that is not
the case here. Thus, the question to answer is what Conoco
and the Union intended the term to have when they used it
in the agreement.
To begin with, it is worth noting that the term was not
used idly. ‘‘As of’’ shows up in the agreement only in con-
nection with progression units. (That use of ‘‘as of’’ else-
where than in article 20–1 will be discussed below.) In fact,
with the exception of the salary schedule (which also will be
discussed below), none of the other terms of the contract
refer to any date at all. That is natural enough, since all the
agreement’s terms become effective when the agreement
does, absent an indication to the contrary.
This truism itself presents a possible reason for the use of
‘‘as of’’ in article 20–1. That is, might the parties have used
it to indicate that the provision should go into effect on April
1 rather than at the moment the agreement went into effect?
(If so, ‘‘As of April 1’’ would have the meaning urged by
the General Counsel and the Union, not that urged by Con-
oco.) But for four reasons it is improbable that the parties
used ‘‘as of’’ for this purpose.
First, the agreement became effective at noon on March
31, a scant 12 hours before the as-of date. Second, the pro-
gression units that were in place at the time the agreement
went into effect were, while differently named, substantively
identical to the progression units specified in the agreement.
Third, the term ‘‘as of’’ was used in the progression unit
provision of the first collective-bargaining agreement be-
tween Conoco and the Union and has been used in each col-
lective-bargaining agreement since then. That suggests that
the parties’ intent in using the term in this agreement was
the same as it was in 1971. And in that first agreement, the
progression unit provision begins ‘‘As of April 30, 1971,’’
which is precisely the date that that first agreement went into
effect. And fourth, in the two places in the agreement where
the parties unambiguously intended to communicate ‘‘be-
comes effective,’’ they said so, using the word ‘‘effective.’’
That is so on the cover page of the agreement (‘‘effective
noon, March 31, 1993’’) and in the salary schedule (‘‘effec-
tive 04/01/93’’; ‘‘effective 04/01/94’’; and ‘‘effective
04/01/95).’’
That last consideration—the agreement’s use of the term
‘‘effective’’ where the parties wanted to indicate ‘‘becomes
effective’’—seems to me to be particularly significant. There
is always the possibility that the agreement’s use of both ‘‘as
of’’ and ‘‘effective’’ is merely a product of sloppy drafts-
manship and that both are intended to mean ‘‘becomes effec-
tive.’’ But the more reasonable assumption is that ‘‘as of’’
and ‘‘effective’ are not used as synonyms. And under that
assumption, ‘‘As of April 1, 1993’’ does not mean ‘‘Be-
comes effective on April 1, 1993.’’ That, in turn, suggests
that, as used in the agreement, ‘‘As of April 1, 1993’’ is in-
tended to mean something like ‘‘On April 1, 1993, but not
necessarily thereafter.’’
As touched on earlier, ‘‘as of’’ does show up elsewhere
in the agreement—in a provision under the heading ‘‘layoff
and recall.’’ The provision, article 8–4, reads, in pertinent
part:
Employees in the progression units listed in Article 20–
1 as of April 30, 1971, will be for demotion purposes,
ranked in a composite listing . . . .
As noted above, the first Conoco-Union collective-bargaining
agreement was effective April 30, 1971, and the progression
unit provision of that agreement begins ‘‘As of April 30,
1971.’’ Presumably, therefore, the ‘‘as of April 30, 1971’’
language in article 8–4 of the current agreement resulted
from the parties mindlessly copying and recopying the lan-
guage of the first agreement as the years rolled by. Thus, for
example, article 8–4 of the 1990–1993 Conoco-Union agree-
ment uses exactly the same language as that quoted from ar-
ticle 8–4 of the 1993–1996 agreement.9 In any case, the
quoted part of article 8–4 is gibberish because of the ref-
erence to the 1971 date and thus adds nothing to a deter-
mination of what ‘‘as of’’ means in article 20–1 of the agree-
ment. (The layoff and recall provisions of the 1993–1996
agreement refer a few additional times to the April 30, 1971
date; all such references appear to be mistakes; none is of
any use in helping to solve the meaning of ‘‘as of April 1,
1993.’’)
One remaining question is why the parties would negotiate
a seniority provision that was binding only on 1 day. In that
connection I turn to the agreement’s management’ rights pro-
vision, article 11. It reads, in part:
67CONOCO, INC.
10 The provision refers to the ‘‘Research Services Division’’ rather
than OT&S. But that division was the predecessor of OT&S. At
present there is no ‘‘Research Services Division.’’
11 If there were evidence that the Conoco actions at issue were a
product of animus, bad faith, or an intent to undermine the Union,
different considerations would apply. Atwood & Morrill Co., 289
NLRB 794, 795 (1988). But that is not the case.
12 See fn. 3, supra, for a more detailed description of the progres-
sion units.
It is . . . the responsibility of management to determine
and to redetermine the organization of the Petroleum
Products Division and/or the Analytical Research Sec-
tion of [OT&S] including but not limited to its location,
relocation, types of operation; and to determine the
methods, processes and materials to be employed; to
discontinue in whole or in part processes or operations
or to discontinue their performances by employees of
[OT&S] or of the Company; to transfer either within or
without the Company any work, technology, equipment
or process performed by employees covered by this
Agreement.10
For reasons I will discuss later in this decision it is my con-
clusion that, if one ignores the ‘‘as of’’ language of article
20–1, article 11 ought not to be read as permitting manage-
ment to alter the specified progression units. But the provi-
sion does show that Conoco has an abiding interest in being
able to ‘‘redetermine the organization’’ of OT&S without
first obtaining the Union’s consent. (Indeed, while the agree-
ment generally provides for the arbitration of grievances, the
agreement precludes grievances over the interpretation of ar-
ticle 11 from being submitted to arbitration.) In many cir-
cumstances, plainly, a reorganization of OT&S would be
cumbersome without a rearrangement of the OT&S progres-
sion units. Thus the ‘‘as of’’ language of article 20–1 can
be understood as a way of effectuating Conoco’s interest in
being able to rearrange all facets of OT&S whenever it
chooses while, at the same time, honoring what surely would
be an interest of the Union in specifying the progression
units the parties contemplated as being in effect as the con-
tract term got underway.
For the foregoing reasons, I conclude that, as used in the
agreement, ‘‘As of April 1, 1993,’’ does not mean ‘‘becomes
effective on April 1, 1993,’’ but instead was intended to indi-
cate that Conoco was not bound to maintain the specified
progression unit arrangement after April 1, 1993.
In NCR Corp., 271 NLRB 1212, 1213 (1984), the Board
considered the question of whether the Respondent violated
Section 8(d) when it moved certain kinds of jobs from one
location to another. The collective-bargaining contract could
be read as precluding the employer from doing that (unless
the company first obtained the union’s consent). But the con-
tract also could be read as granting the employer that leeway.
The Board concluded that
[W]e find that [the employer’s] implementation of the
work transfers was in accordance with its reasonable in-
terpretation of the parties’ contract. . . . The Board is
not compelled to endorse either of these two equally
plausible interpretations of the contract’s operation in
this case. The present dispute is solely one of contract
interpretation. As the Board has stated in Vickers, Inc.,
153 NLRB 561, 570 (1965), when ‘‘an employer has
a sound arguable basis for ascribing a particular mean-
ing to his contract and his action is in accordance with
the terms of the contract as he construes it,’’ the Board
will not enter the dispute to serve the function of arbi-
trator in determining which party’s interpretation is cor-
rect.
As discussed above, for the General Counsel to show that
Conoco violated Section 8(d) of the Act, he must show that
article 20–1 precluded Conoco from switching from three
progression units to six. I have concluded that in fact article
20–1 does not have the effect. In any case, in the very least
article 20–1 is susceptible to two readings, only one of which
supports the General Counsel and the Union. Accordingly, in
light of NCR Corp., supra, I further conclude that Conoco
has not been shown to have violated Section 8(d) of the
Act.11
The foregoing considerations do, on their face, raise an-
other issue: that of whether Conoco’s use of changed pro-
gression units violated Section 8(a)(5). If ‘‘As of April 1,
1993’’ means ‘‘on April 1, 1993,’’ that is, then the collec-
tive-bargaining agreement can be read as being silent about
what progression units can be put into place thereafter. And
if that reading applies, the Act requires Conoco to have bar-
gained in good faith either to agreement or to impasse. E.g.,
Tel Plus, supra.
But the General Counsel litigated this case entirely on the
basis that Conoco’s actions violated Section 8(d). Thus, for
example, while the parties did introduce evidence of bargain-
ing between Conoco and the Union about the change in pro-
gression units, no party sought to prove that Conoco and the
Union were, or were not, at an impasse when Conoco ef-
fected the change on October 1. Under these circumstances,
and because I have concluded that Conoco has not been
shown to have violated Section 8(d), I shall recommend that
the complaint be dismissed.
Other Considerations
My recommendation that the complaint be dismissed
hinges entirely on my reading of the one phrase, ‘‘as of
April 1, 1993.’’ As the Board’s reading of the phrase may
be different from mine, I am going to consider the parties’
other contentions about why Conoco’s change in progression
units did or did not violate Section 8(d). Thus, in this part
of this decision I shall proceed on the assumption that article
20–1, standing alone, means that from April 1, 1993, until
the expiration of the agreement in 1996 Conoco was required
to utilize the progression units specified in that article.
I turn first to matters pertaining to the agreement’s man-
agement-rights provision, article 11.
As described by a Conoco official, Francis Sage, Conoco’s
OT&S department is divided into managerial or operational
‘‘substructures.’’ These substructures are divisions (of the
OT&S department), sections (of the divisions), and groups
(of the sections). As already discussed, OT&S is also divided
into progression units. More specifically, the agreement re-
fers to two ‘‘technician progression units’’ and one ‘‘re-
search craftsman progression unit.’’12
The progression units are ‘‘basically a seniority system’’
for the employees in OT&S,’’ in the words of a long-time
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981).
14 269 NLRB 891 (1984).
OT&S employee. That description of the progression units is
supported by the collective-bargaining agreement itself,
which sets out the progression units in an article entitled
‘‘Seniority.’’
Unsurprisingly, the shape that the progression units have
taken over the years has been related to the work of the
OT&S department and to the organizational substructures
within that department. Thus (as Sage testified), the progres-
sion units have ‘‘generally [been] aligned with [OT&S’] di-
visions and/or sections.’’
All this brings us to the agreement’s management-rights
provision which, as already touched on, provides that it is
management’s ‘‘responsibility’’ to, among other things, ‘‘de-
termine and to redetermine the organization’’ of OT&S.
I will assume that by that provision Conoco may unilater-
ally rearrange OT&S’ divisions, sections, and groups, as the
Company sees fit, even if doing so affects the terms and con-
ditions of OT&S’ employees. See, e.g., United Technologies,
274 NLRB 609, 620–622 (1985). But it is one thing to rede-
termine the organization of OT&S; it is quite another to rear-
range the order of employee seniority. And, as just discussed,
the progression units are ‘‘basically a seniority system.’’
It was up to Conoco to prove that the agreement’s man-
agement-rights provision is intended to give Conoco the right
to alter the OT&S employees’ seniority system. See Johnson-
Bateman Co., 295 NLRB 180 (1989). Because the manage-
ment-rights provision does not specify that it applies to pro-
gression units, because there is a reasonable reading of the
provision by which it does not apply to progression units,
and because there no is evidence that in negotiating the
1993–1996 agreement the parties intended the provision to
apply to progression units, I conclude that the provision does
not override the requirements of article 20–1 of the Conoco-
union collective-bargaining agreement.
Conoco also points to articles 26-5 and 26-6 of the collec-
tive-bargaining agreement. (Art. 26 is entitled ‘‘Staffing.’’)
Those provisions read:
26-5 When one or more progression units in whole
or in part are combined with one or more other progres-
sion units, employees shall be ranked in the surviving
progression unit on the basis of their regular, full-time
employment date in the Operations Technology and
Support Department. . . .
26-6 When the Company has determined that condi-
tions exist which necessitate the application of Article
26-5, they [sic] will meet with the Union to explain the
situation.
Article 26 appears to entitle Conoco to combine progres-
sion units without the Union’s consent. But it says nothing
about splitting progression units, which is the action of con-
cern to us here. Conoco argues that if the Company has the
right to combine progression units, it surely must also have
the right to split them. But combining seniority lists has ef-
fects very different from splitting them. Thus, I consider
Conoco’s argument entirely unpersuasive. Indeed, the fact
that the agreement refers to combining progression units but
says nothing about splitting progression units might be con-
strued as an indication that the possibility of Conoco having
the right to split progression units was considered in the
course of negotiating the agreement (or one of its prede-
cessors) and rejected.
Each of the parties points to various other language of the
1993–1996 agreement as supporting the contention that Con-
oco did, or did not, have the right to change the progression
units without the Union’s consent. For example the General
Counsel points to articles 3 (entitled ‘‘exclusive agreement’’)
and 8-3 (relating to procedures in the event of a reduction
in force), while Conoco focuses on provisions relating to
transfers of employees, assignment of jobs, and the move-
ment of jobs from one division to another. But I do not con-
sider any of the cited language as indicating anything about
whether Conoco has the right to alter progression units with-
out the consent of the Union.
Finally, Conoco argues that its history of making midterm
changes in progression units proves that it has the right to
make such changes without the consent of the Union. And,
indeed, Conoco has made such midterm changes. But the his-
tory of those changes shows only that: (1) on one occasion
Conoco combined progression units without first obtaining
the Union’s consent (which, as just discussed, art. 26 specifi-
cally permits); and (2) on the one occasion (prior to 1993)
where the Company split progression units, the Union con-
sented to it.
In sum, I conclude that if one puts aside the ‘‘as of’’ lan-
guage of article 20–1, then Conoco’s action on October 1,
1993—that of altering the progression unit arrangement then
in effect—was contrary to the Company’s obligations under
the Company’s collective-bargaining agreement with the
Union.
The Change in the Scope and Direction of
Conoco’s Business
In the period 1992–1993 Conoco’s management undertook
a massive investigation into the direction the Company
should take in the future. Conoco contends that the study
caused Conoco’s management to change the scope and direc-
tion of the Company’s business and that the October 1, 1993
revamping of OT&S’ progression units was a result of this
change in scope and direction of Conoco’s business. (I pre-
cluded Conoco from introducing much evidence purportedly
going to prove this contention.) Additionally, this contention
continues, management’s decision to change the progression
units was unrelated to concerns about labor costs. Citing
First National Maintenance13 and Otis Elevator II,14 Conoco
goes on to argue that because a change in the scope and di-
rection of the business was the basis for the change in pro-
gression units, Conoco could properly make the change even
assuming that the change would otherwise violate the Act.
But First National Maintenance, Otis Elevator II, and their
progeny are about changes in business scope and direction
that result in the elimination of an operation (and the jobs
connected with that operation) or the transfer of work from
one location to another. Here, in contrast, technicians and
craftsmen employed at Conoco’s Ponca City facility prior to
the change continued to be employed as technicians and
craftsmen at the Ponca City facility after the change. And
what is at issue is a term of a collective-bargaining agree-
69CONOCO, INC.
ment covering seniority among such employees, including, in
the words of First National Maintenance, ‘‘the order of suc-
cession of layoffs.’’ 452 U.S. at 677. Under these cir-
cumstances nothing in either First National Maintenance or
Otis Elevator II permits Conoco to act contrary to the terms
of the Conoco-Union agreement.
[Recommended Order omitted from publication.]