Continental Oil Co.

National Labor Relations Board - Board Decisions

Nov 10, 1971

194 N.L.R.B. 126 (N.L.R.B. 1971)

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Oil Company and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Independent, Local No. 663.
Case 15-CA-3554
November 10, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 7, 1970 Trial Examiner Josephine H. Klein
issued the attached Decision in this proceeding.
Thereafter, the General Counsel and the Charging
Party filed exceptions and supporting briefs, and the
Respondent filed cross-exceptions and a supporting
brief. A brief was also filed by Respondent in answer
to the General Counsel's and Charging Party's
exceptions and briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt her
recommended Order.
We agree with the Trial Examiner that, basically,
the alleged unilateral changes in the method used by
Respondent to allocate overtime were effectuated
more than 6 months prior to the date on which the
charge was filed in this proceeding. To this extent the
complaint is barred by Section 10(b) of the Act. To
the extent that any of the actions taken by Respon-
dent within 6 months of the filing of the charge could
be construed as a new or independent act there has
not been shown such a departure from the established
method of allocating overtime as would constitute
unilateral action which violates Section 8(a)(5).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the recommended
Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
194 NLRB No. 16
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner: Upon a charge
filed against Continental Oil Company, Respondent, by
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Independent, Local
663, the Union, on May 19, 1969, a complaint was issued by
the Regional Director on March 2, 1970.1 Pursuant to due
notice, a hearing was conducted on the complaint 2 on April
28 and 29, 1970, in Lake Charles, Louisiana. All parties
were represented by counsel and were given opportunity to
present evidence and to examine and cross examine
witnesses. The parties waived oral argument and thereafter
briefs were filed by the General Counsel and Respondent.
Upon the entire record, observation of the witnesses, and
consideration of the briefs, the Trial Examiner makes the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a Delaware corporation with its
principal office and place of business in Houston, Texas, is
engaged in the processing and distribution of petroleum
products at various locations, including its petrochemical
plant and marine docks at Westlake, Louisiana, the only
facilities involved in this case. During the calendar year
1968, a representative period, Respondent purchased and
received goods and materials valued in excess of $50,000
which were shipped directly to its Westlake facilities from
points outside Louisiana.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.3
B. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that Respondent has violated
Section 8(a)(5) of the Act by (1) unilaterally changing the
method of distributing overtime work among the employees
despite the terms of an existing collective bargaining
agreement prescribing the method of allocating overtime
work and (2) by questioning the employees individually
concerning their preferences as to the method of allocating
overtime work.
As to the first allegation, Respondent maintains,
substantively, that its methods of distributing overtime
work are in conformity with the collective-bargaining
agreement. Preliminarily, however, Respondent maintains
r In its brief Respondent requests that the Examiner take official notice
of - the fact that the Regional Director originally refused to issue a
complaint pursuant to the charge but the Union's appeal to -the General
Counsel eventuated in the issuance of the present complaint.
2 As amplified by a more definite statement filed pursuant to a Trial
Examiner's Order granting in part Respondent's motion therefor.
3 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519,
29 U.S C. Sec. 151 et seq)
CONTINENTAL OIL CO. 127
that the allegation is time-barred under Section 10(b) of the
Act and, additionally, that the Union should be left to
resort to the grievance and arbitration provisions of the
parties' collective-bargaining agreement. As to the second,
Respondent denies that its poll of employee preference
contravened the Act.
B. The Alleged Changes in Allocation of Overtime
1. The facts
Respondent's production employees are grouped in
"progression units." Each progression unit is composed of
the employees who operate specific equipment on a 24-
hour-per-day, 7-day-per-week basis. In order to maintain
this schedule with employees working the standard 8-hour-
per-day, 5-day week, 4.2 employees are required for each
specific job. Because of this need for "fractional"
employees, some employees, referred to as "breakers,"
regularly divide their working time between two different
jobs. Within most progression units there are several
classifications of employees. The classifications within each
group, with the hourly wage for each classification, are
spelled out in the collective-bargaining agreement.
Sometime in 1964,4 the present Union, having won an
election, was certified as the collective-bargaining agent of
Respondent's production employees, replacing an inde-
pendent union which had previously represented the
employees for a considerable time.
In negotiating its initial contract with the Union in 1964,
Respondent insisted on various provisions which would
assure it "flexibility" in its operations. These demands were
a major stumbling block in the negotiations, being the
primary cause of a strike which lasted about 3 months. In
the 3-year contract which eventually was signed in
September 1964 the Company apparently prevailed on the
major aspects of its "flexibility" provisions. Included in
such provisions was section 8-1(e)(3), reading, in part:
Operating and non-craft progression units, classifica-
tions therein, and/or duties of either, may be altered or
combined as indicated in the interest of efficiency ....
Typical examples are: (a) A detailed study of a
progression unit might reveal that the work load
could be handled by four (4) men per shift instead
of five (5). The shifts would be reduced according-
ly. (b) A study of the transfer group and the docks
might show the work could be handled more
efficiently by combining the duties of the two (2)
units, maintaining only one (1) man per shift at
the dock and using personnel from the pumping
group when required to handle incoming or
outgoing shipments.
The collective-bargaining agreement between the inde-
pendent union and Respondent contained a specific
provision for the allocation of overtime. That same
provision was then included in the 1964 agreement between
Respondent and the Union and again, with a minor
4 The complaint alleges that the Union was certified on "August 24,
1967." Although this allegation was admitted in Respondent's answer, the
evidence clearly establishes that the Union was originally certified in 1964,
in or before June.
5 There was evidence that in some progression units and at some times
each employee was required to know and be able to perform all jobs within
grammatical correction, in the 4-year agreement executed
in 1967. So far as here relevant, that provision reads:
5-7 (a) For operations only:
The Company shall equalize overture among
employees of the same job classification insofar as it
may be practical. When overtime is anticipated in the
Operating Divisions, the following procedure shall be
followed:
(1) First choice shall be to split the shift between
the preceding and following shifts;
(2) Second choice shall be the man on his day off;
(3) Third choice shall be the bottom breaker;
(4) Fourth choice shall be given to the top breaker.
After this procedure has been followed, overtime
may be covered by qualified employees outside of the
classification... .
Prior to the certification of the present Union in 1964,
with certain exceptions not here involved, each progression
unit included only one job in a particular classification, i.e.,
all the employees working at any one time in a progression
unit were in different classifications.
Shortly after the end of the strike and the execution of the
collective-bargaining agreement in September 1964 Res-
pondent commenced exercising its rights under section 8-
1(e)(3) by combining certain progression units . On April 27,
1966, in a memorandum to all employees, and with a copy
to the Union, Respondent listed the combinations which
had theretofore been made pursuant to section 8-l(e)(3) of
the collective-bargaining agreement. In that memorandum,
Respondent said:
Within each refinery operating progression unit all
jobs which receive the same base rate of pay have for
some time now been combined into one classification.
The Union does not contend, and has never contended,
that Respondent acted improperly or beyond its contractu-
al authority in effectuating any combinations or restructur-
ing progression units.
It is unnecessary for present purposes to detail the
specific combinations and restructurings effectuated.
Suffice it to say that, as a result, in several progression units
there are more than one employee in a particular
classification. In such cases, the employees within the same
classification perform separate, different jobs .5 It is this
situation which early gave rise to the major substantive
dispute between the Union and Respondent which
underlies the present proceeding. Summarized, the parties'
major disagreement centers around whether, in combined
progression units, the contractually provided steps should
be based on specific jobs or upon job classifications. The
Union's position is that the contractual provision should be
construed as applying to specific jobs, whereas the
Company construes it as referring the job classifications.
The first step in the contractually prescribed procedure
calls for splitting the shift. The parties agree that this means
that if job X is to be filled the evening shift, the person
performing job X on the day shift should be offered the first
his classification in his progression unit and at least in some progression
units employees were rotated among the jobs within their classifications.
Because of the Examiner's ultimate recommended disposition of the
present complaint, it is unnecessary to determine the extent of interchange
or rotation of employees among different jobs within classifications, and
no specific findings in this connection are being made.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 hours of the vacant shift and the person scheduled to do
job X on the night (graveyard) shift should be offered the
last 4 hours of the vacant shift. But it is after this that the
disputants part company. The Union maintains that if
either of the people specified above does not take the work,
then the second step should be used, i.e., the work should be
offered to the person assigned to job X who is then on a day
off. Respondent, however, maintains that before a man on
his day off is called, the work should be offered to persons
on the preceding and following shifts who are assigned to
other jobs in the same classification. Thus, under the
Union's view, step 1 in the contractually prescribed
procedure calls for offering the overtime first to only one
person in the preceding shift and one person in the
succeeding shift, whereas Respondent believes that the
work may be offered to as many employees in the preceding
and succeeding shifts as there are in the classification in
which the overtime is to be performed. The same
disagreement arises in applying the second step in the
contractual procedure, i.e., whether the work is to be
offered only to the off-duty man assigned to the particular
job or is to be offered to all off-duty employees in the same
classification before proceeding to the third and fourth
steps, which call for offering the work to "breakers."
From the beginning, the overtime provision of the
contract was the source of frequent disagreements between
Respondent and Union, with numerous grievances being
filed, some as early as 1964. On May 10, 1966, L. E. Adee,
Process Superintendent, issued a memorandum to all
employees concerning "Equalization of Overtime." The
prefatory paragraph read:
Since the refinery has a number of classifications in
which more than one man is on shift at a time it
becomes necessary to clarify the application of
paragraph 5-7(a) of the union contract to these
classifications . Since specific job assignments within
these classifications will be exchanged from time to
time , perhaps in some cases for periods of less than a
full shift, job assignment does not appear to be a
satisfactory basis for overtime assignment. In the
interest of fairness and impartiality shift schedule
number assignment will be the basis for overtime
assignment ; that is, the shift schedule will be used to
determine who precedes and follows the shift requiring
overtime... .
Attached to the memorandum was a description of the
precise procedure to be followed. As spelled out, the
procedure had eight numbered "steps", as distinguished
from the four numbered "steps" in the contract. The
additional four "steps" specified in the memorandum arose
from listing a first, second, and third choice in splitting the
shift (No. 1 in the contract) and in calling off-duty
employees (No. 2 in the contract).
6 For example, it was set forth in a general memorandum issued June
13, 1967. On December 8, 1967, the procedure for allocating overtime in
the Ethylene progression unit was published Although the procedure there
set forth took the form of six numbered "steps," it was essentially the same
as the general "eight-step" procedure previously set forth for the operating
divisions of plant as a whole.
7 The grievance stated that - "Mr. Broussard is not requesting pay for
this violation, but he does feel that he should have worked this extra time
rather than Mr. Sandrock," who had been given the work because he was
It appears that, except for the Treaters' progression unit,
which is discussed below, so far as is here relevant, overtime
has been consistently distributed according to Respon-
dent's construction of the agreement . From time to time the
procedure has been reissued in writing and orally.6
The Treaters' unit is not a "combined" unit. It has only
one man per shift. It thus does not, and could not, present
the specific question of contract interpretation primarily
presented by this case. On or about October 17, 1967, a
standing order was issued that overtime within that unit
was to be equalized, i.e., that first choice should be given to
the member of the 4.2-man unit having the least overtime to
his credit. A complete running record of overtime work was
to be kept for the purpose of assigning overtime. There is no
dispute that this procedure was thereafter followed in that
unit and that it did not conform to the terms of the
collective-bargaining agreement. However, no objection
was raised until March 1969, when employee Simeon Rex
Broussard objected to having been deprived of overtime
due him under the contract. A grievance was filed on his
behalf.? In response to the grievance, Foreman E. E.
Maddox replied, in part:
I was aware that the first choice of the procedure for
working overtime was being passed over; but, I was not
aware that anyone would object; certainly not when it
was at the treating operators request that this method
was being used to equalize their overtime. If you object
to this method of equalizing overtime among employees
of the same job classification, then we could certainly
discontinue using it and could follow the procedure
exactly as specified in Section 5-7(a)... .
I understand that the Operator Overtime Procedures
and Section 5-7(a) are a subject currently being
discussed between yourself and top refinery manage-
ment. Therefore, I have suggested that the treater
overtime procedure be included in those talks; and,
until such time as those discussions result in something
conclusive, I believe that we should continue with the
procedure that the treaters themselves requested several
years ago and has been operating to their satisfaction up
to now... .
Charles W. Clower, Director of Personnel at the Westlake
facility, and Harold L. Hereford, Treater and Loader
foreman, credibly testified that when George Baukman,
union president, refused to accept Maddox's suggestion, the
method of allocating overtime within the progression unit
was changed and they now start with splitting the shift.8
2. Respondent's preliminary defenses
a. Section 10(b)
There is no dispute that Respondent originally adopted
its interpretation of the overtime provision shortly after the
lowest in overtime.
B In answer to a second grievance filed on behalf of Broussard on July
to, 1969, Respondent stated that specific instructions had been given and
placed in the unit's order book to the effect that the vacancy involved was
to be filled by splitting the shift . According to Respondent , Broussard's
failure to get the work was caused by the employees ' disregard of Company
orders. The Union has not appealed for arbitration of the denial of that
grievance . The Examiner makes no finding as to the merits of that
grievance.
CONTINENTAL OIL CO.
1964 contract was signed. Employee William L. Forsythe,
who is a Union officer, steward, and member of the
negotiating and grievance committees, testified unequivo-
cally that, so far as his progression unit was concerned,
Respondent "changed the method of handling overtime
assignments" in "Plate 1964 or early 1965," after classifica-
tions were combined.9 He proceeded to state that the
method of allocating overtime had been "[f ]airly close to
the same operation since then." As previously noted,
Respondent's method of allocating overtime was generally
announced in writing at least as early as April of 1966 and
again on June 13, 1967.
It thus appears that any "change" in the method of
distributing overtime work was made in 1964 or 1965 and
that the method then adopted has been followed, where
applicable,10 ever since, under both the 1964 and 1967
agreements.
The General Counsel contends that the complaint does
not fall under Section 10(b) because Respondent applied its
interpretation of the contract during the 6 months prior to
the filing of the charge. But the application of the
Company's view is not in itself a "change". In order to
establish a "change", the General Counsel would have to go
back to 1964, long before the period permissible under
Section 10(b). Whether or not Respondent's method of
allocating overtime violates the terms of the contract, it is
clear that Respondent has not changed its method of doing
so since November 20, 1968, the beginning of the Section
10(b) period."
The only recent "change" involves the Treaters' unit, in
which Respondent, in response to a grievance filed in
March 1969, abandoned a method of allocation to which
the Union objected as being in conflict with the collective-
bargaining agreement. But neither the General Counsel nor
the Union objects to any change made with respect to the
Treaters' unit in 1969. Indeed, the General Counsel denies
that any such change was made. That the General Counsel
is objecting to a "change" made, or modus operandi
adopted, long before the Section 10(b) period is shown in
his brief, where he says:
On or about October 17, 1967, Respondent unilater-
9 At one point Forsythe volunteered: "The classifications were
combined and it was obvious that you would need a different procedure, so
the nine-step procedure was introduced by the company for overtime
opportunity " (The ninth step was going outside the classification, a matter
beyond the terms of Section 5-7(a).) He thereafter stated that he personally
did not believe a new procedure was necessary. "If the language that is in
the present contract which specifies job classifications still meant and was
interpreted as one job consisting of [4.2] men, and overtime opportunities
were awarded on that basis, we would have no problems."
10 The Examiner makes no finding, and expresses no opinion, as to
whether there actually ever has been a "change" in the method of
allocating overtime. Before the 1964 contract , the overtime provision was
apparently never applied to "combined" progression units, i.e., progression
units in which there were more than one employee in the same
"classification ." In units where several employees performed smular
functions (such as the Alfol laboratory and the Dock unit), the Union
agreed to, or at least acquiesced in, methods of allocating overtime not in
conformity with the contractual procedure.
11 The complaint does not allege and the General Counsel does not
contend that the "unilateral" application of its principle in individual
instances constituted a refusal to bargain. Certainly it could not be
seriously suggested that Respondent was required to bargain with the
Union each time it assigned overtime work. Although the General Counsel
emphasizes the fact that Respondent did not bargain with the Union
before originally adopting its construction of the contract provision, the
129
ally changed the procedure for allocating overtime in
the Treaters' progression unit by unilaterally adopting a
procedure that administered all overtime opportunities
in the unit on the basis of equalization of overtime
notwithstanding the specific provisions of 5-7(a) of the
then newly executed labor agreement .. .
Simeon Rex Broussard testified credibly that the
equalization procedure for allocating overtime was
followed at all times after October 17, 1967, up to the
filing of his first grievance during March 1969... and
further that the same procedure was followed after the
first grievance and precipitated the filing of a second
grievance during July 1969... .
The General Counsel also makes specific reference to the
Ethylene progression unit. Basically, overtime covered by
Section 5-7(a) of the collective-bargaining agreement has
always been distributed according to Respondent's con-
struction of the agreement as set forth above. See fn. 6,
supra. The General Counsel maintains, however, that in
1969, within the Section 10(b) period, Respondent unilater-
ally instituted two new methods of allocating overtime
within the Ethylene progression unit. One such action was
in the form of a memorandum by the foreman dated June
30, 1969,12 which sets forth the method to be used in
"unusual circumstances . . . when insufficient preference
men are available to fill all progression unit vacancies." It
provides, generally, that if the needs for overtime workers
are not met by pursuing the four contractually provided
steps within the classification (`job group") in which the
vacancy appears, the work will be offered to employees in
other classifications in the order stated in the memoran-
dum. The memorandum specifically states that within each
classification the work shall be offered according to the
preference order set forth in the contract. While this
memorandum may have set up a "new" procedure, there is
no evidence that it constituted a "change". Nor does it
appear to represent a possible deviation from Section 5-
7(a) of the contract, the only matter in issue. 13 If there was
any possible conflict with that provision of the agreement,
gravamen of the complaint is that Respondent "modified" the contract in
contravention of Section 8(d) of the Act. But, as said by Trial Examiner
Boyls in Jos. Schlitz Brewing Company, 175 NLRB No. 23, TXD. "If, as the
Union then contended and still contends, Respondent's conduct constituted
a modification of the contract, without the Union's consent, within the
meaning of Section 8(d) of the Act, Respondent violated Section 8(a)(5)
regardless of whether it sought to bargain about the matter with the Union
prior to effectuating the change" The Board's reversal of the Examiner's
ultimate conclusion in Schhtz was unrelated to the statement here quoted.
12 This was after the present charge had been filed.
13 In his more definite statement , filed pursuant to a Trial Examiner's
preheanng order, the General Counsel had specifically limited the relevant
allegation to procedures claimed to be violative of Section 5-7(a). When he
offered into evidence the Ethylene unit memorandum of June 30, 1969,
Respondent objected on the ground that it went beyond the scope of the
complaint as limited by the more definite statement . The memorandum
was admitted on the General Counsel's statement that he contended the
memorandum did reflect a violation of that contractual provision and his
reference to a portion of his more definite statement in which he had listed
June 30, 1969 , as one of the specific dates on which Respondent had
allegedly "implemented" its allegedly unlawful "changes" in overtime
allocation procedures. The Examiner here reaffirms the prior ruling
admitting the document , but finds that it does not support the General
Counsel's contention.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it would have been in the method of offering work to
employees within each classification,14 and that procedure,
as heretofore stated, had been adopted before November
20, 1968, and consistently followed. Finally, General
Counsel refers to testimony concerning a procedure orally
announced sometime during the summer of 1969 for
allocating overtime in emergency situations within the
Ethylene unit. It is to be observed that Section 5-7(a) of the
agreement provides for equalizing overtime among employ-
ees within the same classification "insofar as it may be
practical" and limits the specific four-step procedure to
times "[w]hen overtime is anticipated." Presumptively,
therefore, the detailed procedure would not apply to
"emergency" situations, particularly when more employees
are needed than could be supplied from within one
classification, which appears to the type of situation to
which the oral procedure appears to be primarily directed.
In any event, the General Counsel's evidence in this
connection was so sketchy that it totally failed to establish
any "change" in overtime allocation apparently inconsis-
tent with Section 5-7(a) of the contract.15
On all the evidence, the Examiner recommends that the
portion of the complaint alleging unlawful "changes" in the
method of allocating overtime be dismissed as barred under
Section 10(b) of the Act.
b. Grievance-arbitration procedure
The collective-bargaining agreement contains grievance
and arbitration provisions. Over the years, since execution
of the 1964 contract, the Union has filed numerous
grievances concerning Respondent's administration of the
overtime provision and a related provision governing the
filling of vacancies. Several such grievances are still
pending and some have been appealed to arbitration.
Respondent maintains that the substantive issue involved
in the present complaint is essentially one of contract
interpretation and administration, which properly should
be resolved through the contractually provided
machinery.16 In opposition, the General Counsel contends
that arbitration is inadequate because it "deals with claims
of right which have already accrued" and is not "equipped
to deal with the acquisition of future rights or the resolution
of future problems." At the hearing, Union counsel stated
his position on the question as follows:
... the union felt there was really no answer to be
gained from an arbitration hearing, on a particular
grievance.
It was the union's decision to file the subject charge so
that the matter could be, one of the reasons being so
that the matter could be handled in its entirety, rather
than piecemeal, as would have been the case by
handling these arbitration cases singly.
14 Section 5-7(a), it is recalled, provides basically for equalizing overtime
"among employees of the same job classification" and specifies the four-
step procedure only for allocation within a job classification.
15 It is perhaps ironical that the General Counsel appears to object to
this oral procedure because it does not adopt the basic principles which he
finds objectionable in other situations. In his brief, referring to this oral
procedure, he says. "Overtime is allocated on a rotating basis by work
schedule unit number [i.e., specific job] as contrasted to the job
classifications basis required by Section 5-7(a). This assignment of overtime
is made notwithstanding the relative `equality' or unequality' [sic] of the
But it is not the purpose of the National Labor Relations
Act to provide a forum for consolidation of individual
grievances concerning contract interpretation or for
collective bargaining. The issue of contract interpretation
underlying the present proceeding appears clearly to fall
within the terms of the arbitration provision of the
agreement and there has been no suggestion that Respon-
dent has ever maintained or will contend that the issue is
not arbitrable. Nor is there any reason to predict that
Respondent would in future cases refuse to accept as a
precedent and abide by a final arbitrational decision of the
issue in one case.
The record discloses that the overtime provision has been
the subject of bargaining between the parties. As previously
noted, it appeared in substantially its present form both in
the prior contract between Respondent and the independ-
ent union and in the 1964 contract with the present Union.
In negotiating for the 1967 contract, the Union sought a
change in Section 5-7(a) but eventually dropped that
demand. Union president Baukman's recollection of the
precise negotiations on this question in 1967 was somewhat
vague. But he did indicate that he sought a change "for the
sole purpose of expressing and strengthening [the Union's ]
position and intent" and that "it was reiterated and
expressed by the union that that job classification meant
the same in the present contract, that it meant in the 1962
contract when it was negotiated." 17 The Examiner refrains
from deciding what relevance, if any, this bit of bargaining
history may have to the contract interpretation. However, it
does tend to show that even the Union has treated the
question as one to be resolved by arbitration/or collective
bargaining, rather than in a proceeding before the Board.
Respondent has in the past indicated its willingness to try
to bargain a solution. In December 1968, Respondent
proposed to the Union a new overtime procedure for the
mechanical division (not involved in the instant case). The
Union agreed to consider that proposal and thereafter, on
or about March 4, 1969, a meeting was held to discuss it. At
that meeting the Union stated its desire for a change in the
existing methods of administering Section 5-7(a), governing
the operations division. The parties agreed to give
consideration to each other's proposals. In July 1969 a
bipartite committee was set up to consider procedures for
filling vacancies. It was agreed that that joint committee
would also study the overtime problem. No solutions to the
various problems seem to have been worked out as yet, but
there is no reason to believe that any bad faith or other
misconduct on the part of Respondent has been responsible
for the absence of any agreement to date. While
Respondent's willingness to bargain about the issue does
not as a matter of law satisfy the requirement Section 8(d)
(C & S Industries, Inc., 158 NLRB 454, 457), it is a material
factor, along with other considerations, in determining
overtime status of the individual on any work schedule numbers called out
to work overtime." " This description sounds like a fairly accurate summary
of what the Union apparently claims is the proper construction of the
contractual provision for allocating overtime.
16 The contract provides for arbitration of grievances "based upon
differences between the parties as to meaning, application, interpretation or
performance of the provisions of [the] contract."
17 Baukman had previously been associated with the independent union
which preceded the Teamsters as representative of the employees here
involved.
CONTINENTAL OIL CO. 131
whether it would effectuate the policies of the Act for the
Board to assume jurisdiction to decide a dispute as to
contract interpretation.
The General Counsel contends that Respondent's
conduct with respect to allocation of overtime has had the
(presumably intended) effect of undermining the Union.
He says:
On or about October 17, 1967, Respondent unilater-
ally changed the procedure for allocating overtime in
the treaters' progression unit ... (The degree to which
Respondent had, with respect to the allocation of
overtime in the operations division, aS of that time
impaired the Union's status as a collective-bargaining
representative is demonstrated by the fact that no
employee saw fit to inform the Union of this change
until March 1969... .
This argument is repeated, in differing words, several times
in the General Counsel's brief. But it is totally without
factual support. There is no evidence that the employees
generally had become reticent about making their com-
plaints known and the substantial number of grievances
filed by the Union indicates the contrary. The evidence as a
whole tends to establish that the absence of earlier
complaints and specific grievances stems from the fact that
many employees apparently preferred Respondent's me-
thod over that sought by the Union. Indeed, Baukman
inferentially acknowledged this possibility when he testified
as follows:
... Mr. Conrad [supervisor of the Treaters' unit]
in particular stated that they were following the
procedure that was satisfactory to the men, the
employees in the unit... .
And I reminded him that he did have a contract, and
that they should live up to it regardless of whether the
men were satisfied with it or not... .
There is no evidenced union animus on Respondent's
part.
Even if the alleged "changes" in overtime distribution
had been made within the period permitted under Section
10(b) of the Act, on the record in this case the Examiner
would recommend that the Board decline jurisdiction, as it
recently did in Jos. Schlitz Brewing Company, 175 NLRB
No. 23, involving a complaint alleging that an employer
had unlawfully modified a collective bargaining agreement
by changing certain working conditions without meeting
the conditions specified in Section 8(d). The Board there
stated the presently controlling principle as follows:
[w]here, as here, the contract clearly provides for
grievance and arbitration machinery, where the unilat-
eral action taken is not designed to undermine the
Union and is not patently erroneous but rather is based
on a substantial claim of contractual privilege, and it
appears that the arbitral interpretation of the contract
18 The complaint did not allege that the poll was coercive or otherwise
independently violative of Section 8(a)(1). Indeed, the General Counsel
objected, on the basis of relevancy, to any evidence concerning the absence
of coercion or intimidation.
19 The only possible suggestion in this regard was the following
testimony by employee Thomas A. Cain:
[Foreman Charles Stolhand] asked me which way I would
prefer the overtone, according to job, or according to classification.
And I asked him wasn't he doing a little negotiating with the men on
the side; he said no, he had orders from Bob Gibson to do this, and he
will resolve both the unfair labor practice issue and the
contract interpretation issue in a manner compatible
with the purposes of the Act, then the Board should
defer to the arbitration clause conceived by the parties.
C. Alleged Direct Dealing
There is no dispute that sometime in March 1969
Respondent, through its foremen , informally polled all
employees in the operations division as to their preference
concerning the method of allocating overtime work. The
evidence is clear that the employees were simply asked,
orally, whether they were satisfied with the existing method
of overtime allocation or would prefer some other method.
It is equally clear that, in asking the questions, the foremen
did not expressly or impliedly suggest either that the
employees' answers would have any effect on their status 18
or that Respondent's future conduct would be governed by
such replies. One of the foremen, George R. Stoddard,
testified, without contradiction, that when he questioned
them he expressly told them that he was not bargaining
about the matter. He credibly explained this conduct as
follows:
I put myself in their position. If my boss come up to
me and asked me if I liked it or didn't, I'd think maybe
he would do something about it if I told him I didn't
Referring to foreman Stoddard, employee Lewis C.
Rougeot, Jr., testified: "I didn't get the impression he was
trying to reach an agreement, he was just trying to get my
opinion to see if I was satisfied." Employee P. A. Griffin
testified that foreman Stohlman had "said he was running a
little survey." Griffin, who personally prefers not to work
overtime, could not recall how he had answered Stohlman's
question. No employee witness for the General Counsel
indicated that he had been given the impression that his
foreman was attempting to "bargain" with him concerning
the issue.19
The poll was conducted on instructions by Robert
Seagraves, then Respondent's Process Superintendent, right
after the March 4, 1969, meeting at which representatives of
both sides had agreed to consider both the Company's
proposal for a new overtime procedure in the mechanical
division and the Union's demand for a change in the
methods then being followed for allocating overtime in the
operations division. Robert L. Gibson, who was at the time
Operations Superintendent at the Westlake facility, credi-
bly testified that Seagraves had wanted information
concerning employee sentiment on the issue as one of
several factors to be taken into account in formulating
Respondent's position with respect to the Union's demand.
The poll thus was conducted in furtherance of bargaining
with the Union rather than as a means of bypassing or
said George Stoddard and Paul Nabors had the same orders.
Q. Was there any further conversation Did you tell him how you
felt about the procedure?
A. Right, I told him I thought he ought to go through the union,
and that I thought to go according to the contract would be best
Q. How did the conversation end, sir?
A. Well, he asked me which way I'd rather have it, and I told him
according to the contract , and that's all there was to it.
Clearly this testimony does not establish any attempt by Stohlman to
"bargain" with Cain.
132 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
undermining the Union. The Examiner certainly "cannot
assert that the questioning of the employees was anymore
consonant with a desire to undermine the Union than it was
to respect the interests of the employees themselves." F. W.
Woolworth Co., 109 NLRB 196, 198.
The Act as a whole and Section 8(a)(5) in particular have
never been construed as prohibiting any and all communi-
cation between employer and employee concerning wages
and working conditions. See Hoffman Beverage Co., 163
NLRB 981 , 982, where, in dismissing an allegation of
unlawful "direct dealing ," the Board said:
Respondent was not trying to bargain individual-
ly with employees about substituting an incentive pay
plan for the existing pay system, but was seeking to
enlist the aid of employees in bunging Local 282 to the
bargaining table so that the Union might consider and
accept Respondent 's proposal... .
In the present case Respondent was not even "seeking to
enlist the aid of employees"; it made no attempt to
influence the employees ' views, but simply sought informa-
tion as to their general feeling on a matter which it hoped to
resolve with the Union.
On all the evidence , the Examiner concludes that the
General Counsel has failed to establish that Respondent
attempted to bargain directly with employees in derogation
of the Union 's status as certified collective bargaining
agent.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. It has not been shown that Respondent has engaged
in any unfair labor practices within the meaning of Section
8(a)(5) of the Act since November 20, 1968.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case, it
is recommended that the complaint herein be dismissed in
its entirety.