Mobil Oil Co.

National Labor Relations Board - Board Decisions

Jun 5, 1964

147 N.L.R.B. 337 (N.L.R.B. 1964)

MOBIL OIL COMPANY 337
WE WILL' NOT promulgate or enforce any rule which prohibits our employees,
during nonworking time, from engaging in solicitation on behalf of International
Union, United Automobile , Aerospace and Agricultural Implement Workers of
America, UAW, AFL-CIO, or any other labor organization. .
WE WILL NOT promulgate , maintain , or enforce any rule which prohibits our
employees , during nonworking time, from distributing handbills or literature on
behalf of International Union , United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, AFL-CIO, or any other labor organiza-
tion , in nonworking areas of our plant properties.
WE WILL NOT threaten economic retaliation if any employee engages in or-
ganizational activities.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights to self-organization , to join or assist
the aforementioned or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection , or to refrain from any and all such activities.
WE WILL offer to R. E. Beck , Eugene Blackburn , Lynndal L. Donica , Fred E.
Haley, Jr., Paul Helton , Larry Knight, Johnie Lakes, Robert K . Mobley, Charles
Pettypiece, James E. Plymate, and R. L. Ramsey immediate and full reinstate-
ment to their former or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , and make them -whole for any loss
of salary or pay suffered as a result of the discrimination against them.
WE WILL make whole John Sweet , Harold R . Holliday, Donald R. Smith,
James R. Hoskins, Ray S . Edwards, Raymond Pemberton , Wiley R. Johnston,
Jr., and Billy M. Cloyd for any loss of pay each may have suffered by reason
of the discrimination against them.
All our employees are free to become, to remain ,.or to refrain from becoming or
remaining, members of a labor organization of their own choosing.
ERTEL MANUFACTURING CORP.,
Employer.
Dated------------------- By------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their -right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge , from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. Melrose
3-8921 , if they have any ,questions concerning this notice of compliance with its
provisions.
Mobil Oil Company ,and Oil , Chemical and Atomic Workers
International Union , Local Union No . 7 ..644, AFL-CIO.- Case
No. 44-CA-3013. June 5, 1964
DECISION AND ORDER
Upon charges duly filed by the Oil, Chemical and Atomic Workers
International Union, Local Union No. 7-644, AFL-CIO (herein
called OCAW), the General Counsel of the National Labor Relations
Board, by the Regional Director for the Fourteenth Region, issued a
complaint, dated May 14, 1963, against Mobil Oil Company (herein
.called the Respondent), alleging that the Respondent had engaged in
and was engaging in unfair labor practices within the meaning of
147, NLRB No. 43.
756-236-65-vol. 147-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (1) and '(5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the charge, complaint,
and notice of hearing before a Trial Examiner were duly served upon
the Respondent and the Charging Party.
With respect to the unfair labor practices, the complaint alleges in
substance that OCAW was, and is, the exclusive representative of
all production and maintenance employees of the Respondent em-
ployed at its East St., Louis refinery, excluding office clerical em-
ployees, guards, professional employees, and supervisors as defined
in the Act, and that on September 8, 1962, and at all times thereafter,
Respondent unlawfully refused to bargain collectively with OCAW
by insisting, as a condition of'executing a collective-bargaining agree-
ment with OCAW, that the contract ultimately agreed upon by the
parties contain the following clause :
If an employee covered by this Agreement or any previous agree-
ment is or has been promoted to a Management position, he will
retain all position seniority in the department which he left and
will accumulate plant seniority during the period he holds a
Management position.
On July 8, 1963, the Respondent, OCAW, and the General Counsel
of the National Labor Relations Board entered into a stipulation of
the record in this proceeding, in which they agreed that the charges,
the complaint, the answer, the stipulation, and the exhibits attached
thereto constitute the entire record in the case, and submitted the case
to the Board for findings of fact, conclusions of law, and order di-
rectly-by the Board. They waived a hearing before a Trial Examiner,
the making of findings of facts and conclusions of law by a Trial Ex-
aminer, and the issuance of a Trial Examiner's Decision, but reserved
the right to file a motion to dismiss complaint, or proposed findings
of fact or conclusions of law, and briefs in support thereof.
On July 16, 1963, the Board issued an order approving stipulation
and transferring case to the Board. Thereafter, the General Counsel
filed a brief and proposed conclusions of law. The Respondent filed
a brief and a request for oral argument.' Thereafter, on October 3,
1963, the parties entered into a stipulation to correct the record, which
is hereby accepted. On the basis of the stipulation as corrected, the
briefs, and the entire record in the case, the Board makes the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, is engaged in the proc-
essing, sale, and distribution of petroleum and allied products at its
1 As the record adequately presents the positions of the parties, the Respondent' s request
for oral argument is hereby denied.
MOBIL OIL COMPANY 339
East St. Louis, Illinois, plant. Annually, Respondent ships goods
valued in excess of $50,000 to points outside the State of Illinois. The
Respondent admits, and we find, that it is engaged in commerce
within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union, Local
Union No. 7-644, AFL-CIO, is ,a labor organization as defined in Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On April 1, 1962, the Respondent and OCAW began negotiations
for a new contract? On April 19, 1962, OCAW proposed a change
in article IV, section 26, of the contract, quoted above, which, in
varying forms had been included in each of the prior 12 contracts.
To that clause, OCAW sought to add a new paragraph providing
that any management employee who had retained seniority under
the prior contract would forfeit seniority if during a strike he per-
formed work normally assigned to an employee in the bargaining
unit. This demand, including the proviso that the strike be legal,
was repeated in the negotiation sessions of May 15 and July 9, 1962.
The Respondent's position was that these persons had earned their
seniority under the terms of .the contract and if at any time they
were no longer qualified for management positions, or if there were
no management position available, they should be able to return to.
jobs in the bargaining unit.
On August 27, 1962, OCAW took the new position that any agree-
ment reached in negotiations must exclude'any reference to super-
visory seniority, and adhered to it at the September 13 meeting. On.
November 1 OCAW stated that if the Respondent insisted on retain-
ing supervisory seniority, OCAW would file an unfair labor prac-
tice charge. However, both parties agreed that this issue should not
hold up the signing of a contract. During the bargaining session
of December 5 and 6, OCAW proposed two alternatives to the Re-
spondent. The first would have eliminated the disputed, clause from:
the contract and the second would have allowed present employees
to retain their seniority for a 60-day probationary period following-
their promotion to management positions and would give 30 days.
to those presently in management positions to decide whether they
would return to the bargaining unit with their accumulated seniority
failure to do so would result in forfeiture of all previously accumu-
2 Prior to this time the parties had signed 12 collective -bargaining contracts , the first
in 1944.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated and/or retained seniority. On January 12, 1963; a revised ver-
sion of this plan was submitted by OCAW to the Respondent for its
consideration.'
Between January 12 and February 1, 1963, OCAW agreed to sign
the contract under protest with the understanding that it would file
an unfair labor practice charge. The parties agreed orally that the
disputed clause would be deleted from the contract if declared a
nonmandatory subject of bargaining by the Board, but if the Board
held it to be a mandatory subject of bargaining, it would remain in
the contract. On February 1 the Respondent wrote OCAW acknowl-
,edging that OCAW signed the contract under protest with the under-
standing that it would file an unfair labor practice charge. The new
contract became effective February 5, 1963, for a term extending to
March 10, 1964. On March 8, 1963, OCAW filed a charge alleging
'violation of Section 8(a) (5) based on the Respondent 's insistence
upon inclusion of the supervisory seniority clause in the contract .4
Section 8(d) of the Act requires the employer and the employees'
representative to bargain with each other in good faith with respect
to "wages, hours, and other terms and conditions of employment."
Seniority for present and future employees in the bargaining unit is
a mandatory subject of collective bargaining.' How seniority shall
be determined is, a detail of bargaining. There is no statutory or
other requirement that in computing seniority only time actually
spent working as an employee in the unit shall be taken into account .6
Many collective-bargaining contracts provide, as does the one involved
in this case, for the retention of seniority earned before the promo-
tion of an employee to a supervisory position and for the continued
accumulation of seniority while in such supervisory position? Such
provision is applicable only if the supervisor is demoted to a position
within the rank-and-file bargaining unit; it does not determine condi-
tions of employment for supervisors qua supervisors. We hold that
in insisting upon a contract clause providing for the retention and
accumulation of seniority by employees promoted to supervisory po-
sitions, Respondent did not violate Section 8(a) (5) and (1) of the
Act. Accordingly, we shall dismiss the complaint.
8 The only substantial change was to allow a 90-day instead of 60-day retention period
to new supervisory appointees.
a The Respondent contends that OCAW waived its right to object to the inclusion of the
clause by signing the contract . OCAW signed under protest . Such action negates any
belief that OCAW clearly and unmistakably waived any statutory rights. Beacon Piece
Dyeing and Finishing Co., Inc., 121 NLRB 953. The Respondent also argues that if the
Board decides that supervisory seniority is a permissive subject of bargaining, it would be
issuing a declaratory judgment , an action the Respondent deems beyond the Board's
powers. In view of our disposition of the case, we do not reach this issue.
5 Houston Chapter, Associated General Contractors of America , Inc., 143 NLRB 409 ;
Bethlehem Steel Company ( Shipbuilding Division ), 136 NLRB 1500.
e Ford Motor Co . v. Huffman, 345 U.S. 330.
See Bureau of National Affairs, Collective Bargaining and Contracts , par. 75: 10.
THE LUFKIN RULE COMPANY
CONCLUSIONS OF LAW
341
1. Respondent Mobil is an Employer within the meaning of the
Act.
2. The Union is a labor organization within the meaning of the
Act.
3. By insistence upon the inclusion of the supervisory seniority
clause in the agreement with the Union, Respondent Mobil has not
engaged in an unfair labor practice within the meaning of Section
8(a) (5) and (1) and Section 2(6) and (7) of the Act.
[The Board dismissed the complaint.]
The Lufkin Rule Company and International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America, UAW (AFL-CIO), Petitioner. Cases Nos. 7-RC-
5750 and 7-RC-5784. June 5, 1964
SUPPLEMENTAL DECISION AND DIRECTION
On April 29, 1964, the Board issued a Decision, Order, and Direc-
tion of Second Election finding that certain preelection conduct of
the Employer interfered with the exercise of free choice of the em-
ployees and warranted setting aside elections conducted on June 25,
1963.1 Thereafter, the Petitioner filed with the Board a motion to
amend the Board's decision to direct the Regional Director to include
appropriate language in the election notices to insure that the eligible
voters are fully informed that a new election is being conducted be-
cause of Employer conduct which improperly affected the results of the
first election. The Petitioner also requested that the Employer be
required to post copies' of the Board's Decision, Order, and Direction
of Second Election on its bulletin boards for a reasonable period.
The Employer submitted a memorandum in opposition to the Peti-
tioner's motion.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
1 Not published in NLRB volumes. The Board ( a panel of Chairman McCulloch and
Members Leedom and Brown ) held that the Employer 's announcement shortly before the
election of changes in the procedure for automatic salary reviews and annual merit re-
views, and the Employer's guarantee in a posted salary program that no employee would
be held below the minimum for his salary grade, were beneficial changes of a substantial
nature.
147 NLRB No. 46.