Murphy Oil Usa, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1987

286 N.L.R.B. 1039 (N.L.R.B. 1987)

MURPHY OIL USA 1039
Murphy Oil USA, Inc. and
America, Local 8363,
15-CA-10017
United Steelworkers of ing agreement gave it the contractual right to uni-
AFL-CIO-CLC. Case laterally implement new work rules and change the
20 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 7 January 1987 Administrative Law Judge
Benjamin Schlesinger issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge' s rulings, findings, I and
conclusions , to modify the remedy,2 and to adopt
the recommended Order.
We agree with the judge that promulgation of a
rule banning the use of all personal radios is not
within the realm of intrinsic management authority
so as to exempt it automatically from the category
of mandatory subjects of bargaining. See San Anto-
nio Portland Cement Co., 277 NLRB 309, 312, 315
(1985). Nor did the Respondent limit itself, in its
prohibition of radios and its other rule changes, to
the taking of specific measures tailored to newly
arising conditions or to fine-tuning existing rules in
order to enforce them more effectively. See Goren
Printing Co., 280 NLRB 1120 (1986). Instead, the
Respondent unilaterally made a broad and sweep-
ing withdrawal of work-related privileges its em-
ployees previously had enjoyed. Thus, the judge
was correct in finding that, except in those in-
stances where the changes were insubstantial or
were required by law, their imposition without bar-
gaining with the Union violated Section 8(a)(5)
and, based on the circumstances surrounding them,
the changes were all motivated by discriminatory
reasons in violation of Section 8(a)(3) and (1). See
Advertiser's Mfg. Co., 280 NLRB 1185 (1986), enfd.
823 F.2d 1086 (7th Cir. 1987).
We reject the Respondent's contention that the
"zipper clauses" in the parties' collective-bargain-
i No exceptions were filed to the judge 's recommended dismissal of
several allegations
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C § 621 Interest on amounts
accrued prior to 1 January 1987 (the effective date of the 1986 amend-
ment to 26 U.S C. § 621) shall be computed in accordance with Florida
Steel Corp., 231 NLRB 651 (1977)
method by which it computed overtime pay. The
"zipper clauses," discussed at length by the judge,
do not purport to affect either party's statutory
duty to bargain before making changes involving
terms and conditions of employment. As the Board
has recognized, the normal function of such clauses
is to maintain the status quo, not to facilitate unilat-
eral changes. GTE Automatic Electric, 261 NLRB
1491, 1492 (1982); Suffolk Child Development
Center, 277 NLRB 1345, 1350 (1985). Furthermore,
the evidence of bargaining history and of the
manner in which the parties have dealt with rule
changes during the contract term in the past is at
best equivocal and does not support the view that
the Union, through these clauses, clearly yielded its
right to notice and the opportunity to bargain over
changes in working conditions.
The Respondent argues, in effect, that the Union
also waived its right to bargain over changes in its
nonoccupational sickness and disability plan, thus
excusing its unilateral declaration that employees
whose disability arose during their lawful economic
strike were ineligible for benefits for their contin-
ued disability after the strike ended. We find no
merit in this contention. While the collective-bar-
gaining agreement gave the Respondent final au-
thority to "interpret, apply, amend, or revoke" the
plan, it also made employees entitled to the plan's
benefits "in accordance with the terms of the Plan
existing when [their] sickness or disability oc-
curred." We agree with the judge that the terms of
the plan, as they existed before the strike ended,
entitled the employees to the appropriate benefits if
they continued to be disabled when the strike was
over. The Respondent does not attempt to dispute
the judge's interpretation. Therefore, whatever
right the Respondent may have had to make pro-
spective changes is irrelevant here.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Murphy Oil
USA, Inc., Meraux, Louisiana, its officers, agents,
3 We also agree with the judge that the instant case is distinguishable
from Conoco, Inc, 265 NLRB 819 (1982), enfd 740 F2d 811 (10th Cir
1984), and other cases involving entitlement to disability benefits during a
strike However, to the extent that the issue presented here with regard
to eligibility after the strike ended is similar to that presented in Conoco,
we note that the Board 's Conoco rationale has been superseded in our de-
cision in Texaco, Inc, 285 NLRB 241 (1987) The Board's reasoning in
Texaco is consistent with that employed by the judge in the instant case,
particularly his use of the test set forth in NLRB v Great Dane Trailers,
388 U S 26 (1967) Here, however, as alleged in the complaint and as
found by the judge, the unilateral withdrawal of benefits from former
strikers violated Sec 8 (a)(5) as well as Sec 8 (a)(3) and (1) of the Act.
286 NLRB No. 104
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
successors, and assigns, shall take the action set
forth in the Order.
Charlotte N. White, Esq., for the General Counsel.
Walter W. Christy, Esq. and Keith D. Frazier, Esq. (Kull-
man, Inman, Bee & Downing), of New Orleans, Louisi-
ana, for the Respondent.
James A. Pepitone, of Chalmette, Louisiana, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge.
The complaint alleges that Respondent violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act,
29 U.S.C. § 151 et seq. by issuing disciplinary warnings
to employees because of their participation in an eco-
nomic strike and by instituting unilateral changes after
the strike.' Respondent denies that it violated the Act in
any manner.
Jurisdiction is conceded. I find, as Respondent admits,
that it is a Delaware corporation and has offices and a
refinery in Meraux, Louisiana, where it is engaged in re-
fining and processing petroleum and related products.
During the year preceding 28 July 1986, Respondent
purchased and received goods valued in excess of
$50,000 directly from points located outside Louisiana
and sold and shipped goods valued in excess of $50,000
directly to points located outside Louisiana. I conclude
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. I also conclude, as Respondent admits, that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
On 11 September 1974, in Case 15-RC-5517, a majori-
ty of Respondent's employees in the unit described
below, in a Board-conducted secret-ballot election, desig-
nated and selected and, on 19 September 1974, the Re-
gional Director certified the Union as the exclusive col-
lective-bargaining representative of said employees in the
following unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees em-
ployed by Respondent at its Meraux , Louisiana fa-
cility , including laboratory assistants and laboratory
technicians ; excluding all office clerical employees,
professional employees , temporary employees, as-
sistant chemists , marketing department employees,
guards , watchmen , and supervisors as defined in the
Act.
Since on or about 11 September 1974, the Union has
continued to be the employees' collective-bargaining rep-
resentative; and from on or before 15 April 1982 through
I The relevant docket entries are as follows - United Steelworkers of
America, Local 8363 , AFL-CIO-CLC (the Union) filed its unfair labor
practice charge on 30 June 1986 and amended it on 21 July 1986, the
complaint issued on 28 July 1986, and the hearing was held on 10 and 11
September 1986 in New Orleans, Louisiana
7 January 1986, Respondent and the Union have been
parties to successive collective-bargaining agreements,
the most recent of which was effective by its terms from
8 January 1984 through 7 January 1986. On or about 15
January 19862 Respondent's employees ceased work con-
certedly and went on strike. The strike terminated on 13
March when Respondent and the Union agreed on the
terms of a new agreement, dated 12 March and effective
1 March. The events that ensued on the employees'
return to work from their strike on 17 March are the
subjects of this proceeding.
What must have surprised most of the employees who
returned to their work stations in Respondent's three
control rooms was that their chairs, with arm rests and
backs, had been removed3 and replaced with benches
12-15 inches deep and 10-12 feet long. Thus, about five
to eight employees in each control room were deprived
of their more comfortable chairs and forced to sit on
hard benches.
The employees who returned to the maintenance shops
must have been equally shocked because many of their
personal possessions were stacked up in the middle of the
bay area-calendars, pictures, picture frames, radios, re-
frigerators, coffeepots, convection ovens, hot plates, and
microwaves.4 The employees were advised by their su-
pervisors that, under Respondent's new rules, these items
were to be taken home and that, if the employees did not
comply, they would be disciplined. Written rules, dated
14 March, were distributed to the maintenance depart-
ment personnel and were effective that morning, 17
March, for the maintenance shops and bay area. Warning
that failure to comply would constitute insubordination
and subject maintenance employees to disciplinary
action, the rules stated:
(1) All reading materials , other than trade maga-
zines and catalogs pertaining to maintenance or in-
struction manuals for equipment, will not be al-
lowed in the refinery.
(2) Playing cards and other materials of this
nature will not be permitted in the maintenance
shops and bay area, but may be played in the lunch
room only. This is no way allows gambling within
the refinery.
(3) Radios or other sound equipment will not be
allowed in the maintenance shops and bay area.
(4) Maintenance employees will not eat or drink
any food or beverages in the maintenance shops or
bay area. The lunch room is provided for this pur-
pose.
(5) Refrigerators, ovens, hot plates, coffee pots
and microwaves will not be allowed in the mainte-
nance shops or bay area.
2 Hereafter all dates refer to the year 1986, unless otherwise stated.
9 Each control room had a boardman , who must remain in the control
room at all times The boardmen's chairs were not removed Another
chair was left in one of the control rooms, but a maintenance employee
was ordered to make sure that it was removed
4 The complaint alleges that personal calculators were also in the
stack , but the record does not support this allegation
MURPHY OIL USA 1041
(6) Posters, photos, charts and excess calendars
are not allowed on the walls and equipment in the
maintenace building.
(7) Maintenance employees shall be allowed suffi-
cient time to clean and check their tools before
quitting time if such action is required, and all em-
ployees will return and remain in their respective
shops until quitting time.
(8) Any work done at the refinery that does not
pertain to maintenance and construction of this re-
finery will be considered "Government Work". A
form will be instituted that will require signatures
before the activity commences, and the work will
not be performed during work hours. The employee
doing the work will hold the approved form in his
possession during any and all government work ac-
tivities.
(9) All material (even trash wood, boxes etc.) will
require written approval from your foreman and the
Maintenance Superintendent before removing from
refinery.
(10) All tools taken out for personal use will re-
quire an approval by your foreman and the tool
room man. All tools must be inspected by the tool
room man, upon returning said tools. The use of
tools checked out for activities in construction or
maintenance field that is intended to make a profit is
not allowed.
(11) All outgoing telephone calls will be made
during breaks or lunch periods only, except for
emergencies. Incoming emergency calls will be re-
layed to each person as soon as possible. Messages
from all other incoming calls will be given to you
prior to 3:30 PM each day.
(12) Bumper stickers, decals, slogans, etc. will not
be allowed on employees' hats or any equipment in
Maintenance. Only approved decals for safety hats
will be allowed.
(13) Employees will not be allowed outside of
their assigned work areas without permission from
their supervisor.
Many of these rules were new, not "merely restate-
ments (or `clarifications') of rules and regulations in
effect for years," as contended in Respondent's brief; and
none had been discussed in the negotiations that had just
been successfully concluded. John Chutz, Respondent's
maintenance superintendent, admitted that he ordered
that the employees' personal belongings be taken from
the employees' work areas and stacked in the bay area;
so there is no question that the employees formerly had
use of these items at their work areas and that the effect
of some of the rule changes was to prohibit their contin-
ued use at the employees' work areas and to have them
removed from Respondent's premises (rules 3 and 5).
Chutz admitted that, prior to the strike, employees were
permitted to read newspapers during their break and that
the new rule prohibited such reading material (rule 1).
He admitted that employees had been allowed to play
cards in the maintenance shops and bay area and that the
new rule permitted such activity only in the lunchroom
(rule 2). He admitted that rules 3, 4, and 5 were new and
represented complete changes. He admitted that rule 6
represented a modification of Respondent's practice,
which previously permitted posting of charts and calen-
dars (but not with pictures of naked women) in the work
areas and photographs and posters (even "obscene mate-
rials") in the employees' locker room. He admitted that
rule 7 changed the location where the employees would
wait prior to quitting time. He admitted that rule 8 pro-
vided a different method for obtaining approval for an
employee to perform personal work in Respondent's
shop. He admitted that, before the strike, employees
were required only to obtain a pass from their foremen
before taking tools out of Respondent's shop (rule 10).
He admitted that, before the strike, employees could use
the telephone anytime so long as there was no interfer-
ence with work (rule 11). He admitted that rule 12 was
new only as it prohibited bumper stickers to be worn on
hats.5
The Board's general rule is that an employer violates
Section 8(a)(5) of the Act if it avoids bargaining with its
employees' representative and unilaterally changes terms
and conditions of employment. However, as Respond-
ent's brief correctly states, not every unilateral change in
work rules constitutes a violation of Section 8(a)(5); the
change must be "material, substantial, and .. . signifi-
cant." Peerless Food Products, 236 NLRB 161 (1978).
There, the Board found no violation where an employer
limited access of a union business representative to pro-
duction areas, except when he was engaged in investigat-
ing or processing grievances. It found that the removal
of his "right" to engage in conversations unrelated to
contractual matters did not minimize the value of em-
ployees' access to their representative. Accord: Rust
Craft Broadcasting, 225 NLRB 327 (1976) (no violation in
an employer's unilateral installation of timeclocks and its
requirement that employees clock in, rather than enter
their working time manually on printed cards); La
Mousse, Inc., 259 NLRB 37 (1981) (an employer's in-
crease of morning and afternoon breaks from 10 to 15
minutes was not material, substantial, or significant); San
Antonio Portland Cement Co., 277 NLRB 1031 (1985);
United Technologies Corp., 278 NLRB 306 (1986); Goren
Printing Co., 280 NLRB 1120 (1986).
Several unilateral changes here are neither material,
substantial, nor significant. That employees are no longer
permitted to play cards in the maintenance shops and
bay area, but are permitted to play in the lunchroom, is
of little consequence. So, too, is the rule requiring em-
ployees to wait at their work stations prior to quitting
time rather than roam around. The increased paperwork
required to borrow tools from Respondent or to perform
personal work in Respondent's facility appears to be so
minimal that the employees ought to be barely inconven-
ienced. The ban on bumper stickers on the employees'
hats is similarly lacking in substance. The only other rule
S Many of these changes were corroborated by Camille Trahan, Re-
spondent's instrument supervisor Earl Smith, Respondent 's manager of
administrative services, stated that Respondent had earlier banned the
performance of any personal work I do not credit him, noting that his
testimony was contradicted by both Chutz and Trahan and that Smith
did not produce the letter that allegedly prohibited such work
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
change that is arguably subject to the rule of Peerless
Food is Respondent's ban against posters, pictures, and
calendars . I find, however, that permission to have them
constitutes a meaningful and material condition of em-
ployment. Whatever their content, be they prints of
works of art or, in one example in this proceeding, a
schedule of the football games of the New Orleans
Saints, they add some allure to the employees' workplace
and bring some degree of pleasure to the employees.
Having them provides something extra to their place of
work and makes it at least somewhat more personal and
homey and comfortable. I find that that rule change and,
except as found above, all the other rule changes were
"material , substantial, and . . . significant."
Respondent also contends that there was substantial
business justification for most of its new rules, but the
Board's longstanding principles reject the notion that
such justification permits a party to avoid its obligation
to bargain collectively. Granite City Steel Co., 167 NLRB
310 (1967); Peerless Food, supra. Respondent, relying on
J. R. Simplot Co., 238 NLRB 374 (1978), further con-
tends that it had the inherent right to ban radios and
other sound equipment in the interest of efficiency and
increased productivity. In that case, the Board affirmed
the finding of the administrative law judge, at 375, that:
Given uncontradicted testimony that the long-exist-
ing practice of enjoying personal radios during the
workday had been increasingly abused to the point
one individual installed stereo apparatus, the subject
may be clearly focused upon in terms of whether
even cognizable for statutory purposes or a mere
cultural sidelight. The great variety of purposes and
practice concerning the use of personally carried or
controlled radios is such that an employer has in-
trinsic authority to regulate in a manufacturing
complex. This, coupled with the broad manage-
ment-rights clause of the collective-bargaining
agreement here, leaves inadequate basis to say the
prohibition was unlawful. Cf. Irvington Motors, Inc.,
147 NLRB 565, 570 (1964).
There is in Respondent's collective-bargaining agree-
ment no broad management-rights clause, nor is there a
history of increasing abuse. It is true that there was some
evidence of large stereo equipment, and one witness tes-
tified that the noise level was so high that supervisors
complained that they could not be heard when attempt-
ing to give employees job-related instructions. On the
other hand, that testimony not only was vague and un-
supported by dates, times, and places, but also was bla-
tant hearsay, unsupported by the supervisors who alleg-
edly were having the difficulties. Furthermore, I am not
clear what "abuse" was being referred to in Simplot.
Here, there is no indication that any employees were
cautioned that they were playing their radios too loud
and that they disregarded their supervisors' instructions
to reduce the volume of their sound equipment. There-
fore, under the facts, I am unpersuaded that there was
such abuse by the employees that corrective action had
to be taken. More troubling to me is that, if I were to
find that there was abuse, I would be holding that Re-
spondent was justified by valid business considerations in
making the rule change, a holding completely at odds
with Granite City, supra. I would respectfully suggest
that Simplot, which has never been cited in any other
Board decision, rests on principles rejected in Granite
City, which requires bargaining before Respondent makes
any change.
Respondent next claims that it was required by Feder-
al law to ban reading materials, posters, charts, and cal-
endars, much of which were of a "pornographic nature."
The facts do not support its position. There are only
vague references in the record to "tear-outs out of maga-
zines and stuff' and "boisterous posters." But, as I under-
stood Respondent's rules, photographs of nudes had
always been prohibited, and the only testimony that spe-
cifically described an "offensive" publication was a cal-
endar with a pinup dressed in a bikini and holding a
wrench. Although that may be offensive to some people,
surely Respondent's justification for its complete ban on
newspapers and New Orleans Saints schedules on the
basis of rules against sexual harassment barred by Title
VII of the Civil Rights Law of 1964, 42 U.S.C. § 200e et
seq. is unreal.
More troubling, however, is Respondent's claim that
food and drink in its maintenance area had to be prohib-
ited because of the requirements of the Occupational
Health and Safety Act. Respondent specifically relies on
29 CFR § 1910.141, par. 3(g), which states:
Consumption of food and beverages on the prem-
ises-(l) Application. This paragraph shall apply
only where employees are permitted to consume
food or beverages, or both, on the premises.
(2) Eating and drinking areas. No employee shall
be allowed to consume food or beverages in a toilet
room nor in any area exposed to a toxic material.
The unrebutted testimony shows that the maintenance
shops and bay area were exposed to "toxic materials," as
defined by OSHA, under 29 CFR § 1910.1200, par. (d),
to wit, mercury, solvents, cleaning fluids, and pine oil. If
Federal law required that employees could not consume
food or beverages in an area exposed to a toxic material,
I conclude that Respondent was not only within its
rights, but also legally bound to adopt a rule that com-
plied with Federal law. I, therefore, find no violation of
Section 8(a)(5) by its unilateral imposition of this rule.
Mead Packaging, 273 NLRB 1451 (1985).
Concerning the other rules (other than those found not
to be violations under Peerless Food) which were unilat-
erally imposed by Respondent, without notice to the
Union and without affording the Union an opportunity
to bargain about them, I conclude that Respondent has
violated Section 8(a)(5) of the Act. The removal of the
chairs from the control rooms was also accomplished
without notice to and negotiations with the Union in vio-
lation of the Act. This proceeding, however, involves
not only the violation of Section 8(aX5) of the Act be-
cause the new rules were imposed unilaterally , but also
that the rules violated Section 8(a)(3) and (1) of the Act
because they were imposed as a consequence of the
strike that had just terminated. Clearly, the withdrawal
MURPHY OIL USA 1043
of various previously enjoyed privileges, such as the
chairs in the control room, the playing of radios, and the
eating of food was timed to take effect at the moment of
the employees' return to work on 17 March. A logical
inference is that the timing of the new rules was directly
related to the employees' immediately preceding activi-
ties, to wit, the strike.
The timing of the changes is also disturbing because so
many of the employees' activities sought to be altered
were not new, but were longstanding. For years, radios
had been played, newspapers had been read, and tele-
phone calls had been made. The alleged offensive posters
and calendars were questioned as early as the spring of
1984.6 According to Respondent's testimony, the identifi-
cation of hazardous materials was required by the Office
of Federal Contract Compliance Program under OSHA's
hazardous communications standards by no later than
November 1985. Even if only then Respondent ascer-
tained that it used certain solvents, cleaning fluids, and
pine oil, which were determined to be toxic, surely Re-
spondent must have been aware of the toxicity of mercu-
ry well before 1985,7 and OSHA's rule prohibiting con-
sumption of food in areas exposed to toxic materials had
been in effect for more than a dozen years.
Respondent gave no cogent or credible explanation
why it did not ban food and drink until 17 March or
why it permitted Mike Sperber, a nonunion employee, to
carry coffee through the maintenance area and why that
was any less a hazard to him than it was to those union
supporters who were disciplined for similar actions, as
discussed below. No matter how minor certain of the
changes were for the purpose of my analysis of Respond-
ent's alleged violations of Section 8(a)(5), even those
small and often picayune changes that Respondent en-
acted were intended to make life a little more difficult
and unpleasant for the employees who were union activ-
ists-the banning of radios and all reading material, the
requirements that forms be filled out and permission be
granted, and the changing of locations where various ac-
tivities were to be performed. The new rules and condi-
tions, I conclude, were intended as reprisals against the
union supporters for their participation in the strike, a
union and concerted and protected activity. I find that
all Respondent's new rules violated Section 8(a)(3) and
(1) of the Act.
Respondent changed some other rules, too, but before
discussing those, I turn to some disciplinary warnings,
three of which stemmed from its newly adopted rule
against eating or drinking. Although it was not shown
that anyone was in literal violation of that rule, that is,
that they "consumed" food or beverages, employees
were criticized for even carrying something that could
be consumed. Eugene Dupre was holding a cup of coffee
in his hand when he clocked in prior to working hours
on 19 March. Trahan admitted that he warned Dupre
6 Apparently , the rule change was based on the personal opinion of a
Government investigator from the Office of Federal Contract Compli-
ance Program No formal charge of any violation was issued
7 Trahan testified that certain radios were not allowed in various parts
of Respondent's plant prior to the strike because of "hazardous condi-
tions" and that radios "could very well" not be allowed in the mainte-
nance shops because of the presence of "a lot of toxic materials "
about having coffee after the whistle blew, but he denied
that he told Dupre that a letter was going in his personal
file for insubordination and harassment. Dupre testified
otherwise, that when he was clocking in, Trahan ran out
of his office, demanded that Dupre tell him what he was
doing, and accused him of blatantly violating the rules.
Dupre explained that he was doing what he had done for
8 years, he apologized and denied that he intended to
violate the rules, and he offered to leave, not punch in,
and discard the coffee.
At this point, Sperber, a nonunion employee, walked
out of his office into the bay area. He was carrying not
only a cup of coffee but also a newspaper (forbidden to
the production and maintenance employees by Respond-
ent's new rules).8 Someone asked why Sperber was al-
lowed to drink coffee and carry a newspaper. Ronald
Reeves, the Union's vice president, agreed that he did
not think that was right that Dupre was disciplined and
Sperber was not. Trahan immediately showed his dis-
pleasure, telling Dupre "That's your behind" and order-
ing Dupre to go to Trahan's office, where Trahan told
him that a letter for insubordination was going into his
file for breaking the rules and harassing Sperber.
On 18 June, Supervisor Donald DeBouchel told em-
ployee Charles Gettys, a union employee who participat-
ed in the strike, that Trahan had seen him with food and
drink in the bay area earlier that day, that employees
were not permitted to eat or drink any food or drink in
the maintenance shops and bay area, and that he had
been ordered to write a "report-of-incident" against
Gettys for breaking the rule. (No such "report" was
found in Gettys' personnel file.) Gettys denied that he
broke the rule, complaining that he was returning a tool
and was taking the same route to the toolroom as
Sperber took when he brought coffee there.
Respondent cannot use an illegal , unilaterally imposed
rule to discipline employees. Hedison Mfg. Co., 249
NLRB 791, 810, 823 (1980), enfd. 643 F.2d 32 (1st Cir.
1981). The rule is a nullity; the discipline cannot stand.
But the illegality here has a second basis. There was no
testimony that anyone drank coffee or ate food in viola-
tion of the rule, and Respondent's motivation for assess-
ing the discipline is questioned by its disparate treatment
of Sperber, who was not a union member and not em-
ployed in the Union's bargaining unit. On the other
hand, Dupre was an outspoken adherent of the Union
who engaged in some indelicacies on the picket line and
who was so disliked by Respondent that Trahan was
given a trophy, the "Eugene Dupre Award," by Re-
spondent's assistant plant manager shortly after the strike
ended. Other than Dupre's and Gettys' support for the
Union, and Sperber's not being in the unit, there was no
other cogent or credible justification for Respondent's
permission to Sperber to carry his coffee (and a newspa-
per) across the bay area and its denial of permission to,
indeed its discipline of, union employees who carried
6 Sperber was also allowed to post calendars and pictures and listen to
a radio in the toolroom in which he worked and had unrestricted access
to a telephone
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
food into the bay area.9 I find that the discipline resulted
from an illegally adopted rule and was applied disparate-
ly, in violation of Section 8(a)(1). I am persuaded that,
but for Dupre's and Gettys' support of the Union and
the adoption of the rule as a reprisal against the strikers,
Respondent would not have issued these two warnings
and reject Respondent's Wright Line defense.'0
Another event complained of arose out of the 19
March warning to Dupre. Shortly after Trahan warned
Dupre, Reeves told Sperber that he was not to have
coffee in the bay area. About 10 a.m., Chutz told Reeves,
in the presence of the Union's chief steward, that there
had been a misunderstanding about the new rule con-
cerning the possession of food in the work area and that
Sperber had been permitted to walk from the coffee-
maker located in the maintenance foreman's office
through the bay area to the toolroom. When Reeves still
complained that the rules prohibited Sperber from carry-
ing his coffee, Chutz "warned" Reeves not to correct
Sperber. Respondent's caution to Reeves not to criticize
the conduct of another employee was not discipline. It
was merely a statement that management was to apply
rules of conduct and that it was not the prerogative of an
employee to act as Respondent's representative or agent
and criticize other employees. I credit Respondent's ex-
planation that no discipline was intended and that Chutz
was merely attempting to clarify to the Union's repre-
sentatives the application of its new, albeit illegally im-
posed, rule. The General Counsel has cited no authority
that would support a Board order requiring an employer
to cease and desist from directing its employees not to
act as management's representatives and not to criticize
the activities of other employees.
Several other warnings are the subject of the com-
plaint. One occurred on 25 March. As Dupre was ap-
proaching a partitioned telephone booth to make a tele-
phone call, he took off his hardhat and safety glasses and
threw them into the booth. Trahan informed him that he
was writing up a "green card" because Dupre acted in
an unsafe manner because the hat and glasses were to be
worn at all times in the area. If he had removed them in
the booth, if it could be shown that he could not talk on
the phone with both on, and if there were no rule about
the wearing of the glasses and hat, there might be a vio-
lation. But there is evidence that there was such a rule
applicable to maintenance employees prior to the strike,
and Dupre admitted that he broke the rule (as he had a
number of times before) and deserved being counseled.
Despite the fact that Respondent did not enforce the rule
when two nonunit employees entered the maintenance
area to collect certain business records, Respondent's
rule apparently did not apply to them There may be
some unfairness evidenced here; but I find that Dupre
knew the rule, which had been called to his attention
before, and knew that he carelessly disregarded it. I con-
9 Another employee, Acklin Dufrene, ate a banana in the maintenance
department Chutz told him "Now, you know the rules and I don't have
to tell you that you made a mistake " No threat was made or warning
given to Dufrene, who worked behind the Union's picket line
10 Wright Line, 251 NLRB 1083 (1980), enfd 622 F 2d 899 (1st Cir
1981), cert denied 455 U S 989 (1982), approved in NLRB Y. Transporta-
tion Management Corp, 462 U S 393 (1983)
clude that Respondent has not violated the Act, as al-
leged.
The other warnings involved conduct of Earl Dauter-
ive and Anthony Maiaro. Both were accused on 3 April
of having confronted Dufrene on several occasions,
holding their noses , and saying "I smell a rat." Dufrene,
as stated above, had worked behind the Union's picket
line. Both denied Dufrene's allegations and accused
Chutz of too easily accepting Dufrene's narration of the
events, without considering their denials, and charged
Chutz with conducting a "kangaroo court." If Chutz
viewed the participants as I did at the hearing, I would
find his warnings of the two employees justified. I found
Maiaro, in particular, angry and bitter about Dufrene's
failure to support the Union; and I did not believe the
denials of either Maiaro or Dauterive, both of whom I
found to be belligerent, hostile, and sometimes evasive.', '
I found Dufrene, an older employee, meek and afraid of
physical harm, and with nothing to gain from his accusa-
tions against those who had disparaged him. I believed
Dufrene and find that Chutz could have easily believed
him, too, and did believe him, despite the denials of the
two younger, stronger, and angry employees. I find no
violation.
These two employees were also "warned" for their
use of profane language . In March, Dauterive and an-
other employee were sweeping in front of the warehouse
and safety office and some dirt got into Dauterive's eyes.
He asked the other employee to be careful, but a few
minutes later, dirt was again swept into Dauterive's eyes,
prompting him to say: "[W]atch what you're doing you
stupid asshole." Chutz was present, and cautioned Dau-
terive to do himself a favor and not use that word again,
that if a supervisor overheard him use that word and
thought he was directing that word to the supervisor,
Dauterive could be fired. In early April, Maiaro was told
by Chutz that he was going to be given a verbal warning
for calling Acting Safety Supervisor Richard Savadra
"stupid" and that he had better straighten out his act or
disciplinary action would be taken against him. In
answer to Maiaro's question, Chutz said that no letter
was going to be placed in his personnel file.
There was no testimony that the use of profanity was
the norm in Respondent's shop, and nothing to intimate
that employees had the right to verbally abuse their su-
pervisors with profanity or otherwise. The General
Counsel cites no authority to support her contention that
criticism of or even warning an employee for the use of
profanity or for disparaging supervisors is protected
under the Act. I conclude that Respondent has not vio-
lated the Act in these respects.
The final violations alleged in the complaint concern
two additional changes made by Respondent without
bargaining with the Union . Earl Smith admitted chang-
ing the method of computing overtime. Before the strike,
depending on the type of overtime worked, employees
were paid one-half or one-quarter of an hour of overtime
or even limited in their pay to the nearest one-quarter
i i Dauterive, for example, initially denied that Maiaro had received a
warning for this incident , yet he later conceded that he and Maiaro filed
a point grievance complaining of the warning
MURPHY OIL USA 1045
hour of overtime (for example, if an employee worked
until 4:37 p.m., he would be credited with working until
4:30 p.m., if he worked until 4:38 p.m., he would be
credited with working to 4:45 p.m.). After the strike, em-
ployees were paid only to the nearest one-tenth hour, a
fraction never before used to determine overtime pay.
Respondent contends that the Union clearly and un-
mistakably waived its right to bargain about Respond-
ent's unilateral recomputation of overtime pay,12 relying
on the collective-bargaining agreement's "zipper clause,"
which was carried over from the parties' preceding
agreement and which states:
The parties acknowledge that during the negotia-
tions which resulted in this Agreement, each had
the unlimited right to make demands and proposals
with respect to any subject or matter not removed
by law from the area of collective bargaining. They,
therefore, each voluntarily and unqualifiedly waive
the right for the life of this Agreement to bargain
collectively with respect to any matter referred to
or covered in this Agreement.
This contract represents the entire Agreement be-
tween the parties and no other agreements or prac-
tices are binding upon either party hereto with re-
spect to wages, hours, or working conditions of the
employees covered hereby. Nothing herein con-
tained shall be construed as depriving the Union of
the right to avail itself of the grievance procedure
with respect to any change made by the Company
in working conditions.
Respondent's contention is that the first paragraph
waives the Union's right to bargain during the life of the
agreement over any matter covered by it. Because the
agreement provides for the payment of time and a half
for certain overtime and double time for other overtime,
Respondent argues that it fully provides for the "when"
and "under what situations" overtime will be paid. Its
principal authority is Columbus Electric Co., 270 NLRB
686 (1984), enfd. sub nom. Electrical Workers IBEW
Local 1466 v. NLRB, 795 F.2d 150 (D.C. Cir. 1986), in
which the Board found no violation when an employer
unilaterally stopped paying Christmas bonuses that it had
paid, with the exception of 1 year, for 40 years. There,
the parties agreed to a zipper clause and the contract
was silent about the continuation of the bonus. Here, to
the contrary, the contract is not silent; it provides when
overtime will be paid and in what percentage amount of
wages, but it does not provide how the amount will be
computed. Whereas Columbus Electric concluded that a
union could not insist on a benefit that it had implicitly
waived because the benefit was not included in the
agreement, here, overtime is included; it is a benefit and
it continues to be. The only question is whether, without
bargaining, Respondent may unilaterally alter its method
of computing the amount of overtime to be paid.
The zipper clause in Columbus Electric read:
12 Respondent makes no similar contention with respect to its other
unilateral changes
It is the intent of the parties that the provisions
of this Agreement will supersede all prior agree-
ments and understandings, oral or written, ex-
pressed or implied, between such parties and shall
govern their entire relationship and shall be the sole
source of any and all rights or claims which may be
asserted in arbitration hereunder or otherwise.
The Union for the life of this Agreement hereby
waives any rights to request to negotiate or to bar-
gain with respect to any matters contained in this
Agreement. 13
In Columbus Electric, the Board relied on the parties'
bargaining over the meaning of that zipper clause and
the union's total awareness of its intent. The union had
requested the employer to provide a list of all agree-
ments that would be terminated by the zipper clause, and
the employer countered that it maintained no list but
wanted to eliminate "all" agreements. The union filed an
unfair labor practice charge contending that under Sec-
tion 8(a)(5) it was entitled to such a list and, in its appeal
from the refusal to issue a complaint, stated that the em-
ployer's proposal intended to encompass all agreements
and practices of whatever nature and however perpetuat-
ed into the written agreement. Thus, the union demon-
strated its understanding of the employer's proposal,
which the Board found was embodied in the first sen-
tence, to wit, the new agreement "will `supersede all
prior agreements and understandings' and . . . would
govern the parties' `entire relationship' and be the `sole
source of any and all rights or claims which may be as-
serted in arbitration hereunder or otherwise."' 270 NLRB
at 687; emphasis in original. Finding that that sentence
"wipe[d] the slate clean," the Board concluded that the
zipper clause constituted a "clear and unmistakable
waiver of the Union's right to bargain over the elimina-
tion of the Christmas bonus." (Ibid.)
The record lacks any evidence of the zipper clause's
bargaining history or the Union's awareness that it was
bargaining away all rights to negotiate about any unilat-
eral change that Respondent might choose to make.
Indeed, Smith admitted that in the past Respondent had
given copies of proposed rule changes in advance of
their effective dates-an average of 1 week, but some-
times only a day-and had requested the Union's advice
of any problems that it had with the proposals. Howev-
er, Smith also claimed, with some contradiction, 14 that
advance notice was not given of rules that pertained
only to the maintenance department. Even if that be
true, Respondent felt obliged to provide the Union with
the opportunity to negotiate about some rule changes;
and, therefore, the record does not conclusively demon-
13 This quotation may be inaccurate It differs in various respects from
the quotations contained in the decisions of the administrative law fudge,
the Board, and the court of appeals, each of which quotes the clause dif-
ferently My quotation follows basically the quotation contained in the
Board's decision, with the exception that I have pluralized "provision" in
the first line, which not only makes grammatical sense but also appears in
the two other decisions
14 Smith contradicted himself Earlier in his testimony, he stated that
the Union had been given at least a day's notice of rule changes in the
maintenance department
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
strate Respondent's understanding or the Union's aware-
ness that the Union was relinquishing all its 8(a)(5) rights
or that the zipper clause was intended to waive the
Union's right to notice and to negotiations prior to any
changes of rules. 15 In any event, the Union's waiver of
the right to bargain collectively for the life of the agree-
ment applies only to "any matter referred to or covered
in this Agreement." Here, Respondent's brief admits that
the agreement provides only for "when" and "under
what situations" overtime will be paid. It does not "refer
to" or "cover" how the amount of overtime will be cal-
culated, the subject of Respondent's rule change.
The Board, however, in Columbus Electric, glossed
over the "waiver" clause and placed its emphasis on the
clause limiting the contents of the parties' agreement to
the stated provisions of that agreement. Thus, what be-
comes important here is the first sentence of the second
paragraph, which provides that the agreement is the
entire agreement and that no other agreements or prac-
tices are binding "upon either party . . . with respect to
wages, hours, or working conditions of the employees
covered hereby." If that were all that the zipper clause
stated, it would arguably follow that Respondent's prac-
tice of granting one-quarter or one-half of an hour of
overtime to employees who worked less than that
amount is no longer contained in the agreement and is
not binding on Respondent. However, that sentence is
qualified by the next sentence , which permits the Union
the right to grieve "any change" by Respondent in
working conditions, a right which, if unstated, seems im-
plicit in the rest of the agreement. The grievance proce-
dure provides that the parties attempt to resolve the
grievance (which is "a dispute . . . with respect to the
alleged violation of a specific provision of this Agree-
ment") through discussions at three steps and, failing res-
olution, an arbitrator is authorized to resolve the dispute.
The arbitrator's jurisdiction and authority is limited: the
arbitrator has "jurisdiction and authority only to inter-
pret, apply or determine compliance with the provisions
of this Agreement . . . [and] shall not have jurisdiction
or authority to add to, detract from or alter in any way
the provisions of this Agreement."
All this language-the first sentence of the second
paragraph of the zipper clause , the definition of a griev-
ance , the limitations on the arbitrator's jurisdiction and
authority-seemingly results in the conclusion that what
is in the parties' agreement constitutes their entire agree-
ment . Furthermore, only if Respondent were not to
comply and thus change any term of the agreement
would there be an "alleged violation," and only then
could the arbitrator look to the agreement to determine
whether it has been complied with. What troubles me is
why the parties believed it was necessary in the zipper
clause to preserve the Union's right to grieve any change
of working conditions, a right that the Union had in any
event, and why the Union's right to grieve any change
was not of any provision of the agreement, but only of
15 The Union 's past failure to file unfair labor practice charges alleging
unilateral changes without bargaining does not constitute a clear and un-
mistakable waiver of its right to do so Rather, the Union may merely
have had no objection to the proposed changes and chose to do nothing
working conditions. I find equally troubling the fact that
Respondent's brief does not rely on the zipper clause in
defending against all the other alleged unilateral changes,
which one would think would be susceptible to the same
defense as the change made to the calculation of over-
time pay. I conclude that, even to Respondent, the
clause is not clear and unmistakable. Instead, I find that
the clause permits an interpretation that the Union may
grieve over any change of any working condition, re-
ferred to in the agreement or not. For if the working
conditions refer only to those conditions that are con-
tained in the agreement, the exception to the zipper
clause would be mere surplusage and meaningless, giving
the Union a right to grieve that which it already had
been given in the grievance procedure. On the other
hand, if the exception is interpreted as creating a new
and independent right to grieve "any change" in work-
ing conditions, that would authorize the arbitrator to
look beyond the literal terms of the agreement to decide
on the propriety of the change. Furthermore, because
the exception applies to changes only of working condi-
tions, and not to wages and hours, 16 I find it at least ar-
guable that the parties were referring to certain working
conditions not included in the agreement.
I conclude, therefore, that it is not clear and unmistak-
able that the zipper clause "wipe[d] the slate clean," as it
did in Columbus Electric. And I infer that Respondent
was well aware that it did not, because, as stated above,
its brief relies on the zipper clause only in defending
against the change it made in computing overtime pay
and not to all the other rule changes it made on 17
March. At best, the parties' agreement demonstrates a
lack of clarity of the "working conditions" exception in
the zipper clause. Admittedly, the exception arguably ap-
plies only to the Union's right to grieve any change of
any working conditions, and nothing is stated about the
Union's right to complain to the Board about any unilat-
eral change of conditions of employment; but if the
Union has the right to appeal to an arbitrator to declare
a newly imposed working condition invalid, surely the
Union has not clearly and unmistakably waived its right
to be notified of any change of working conditions in ad-
vance and its right to negotiate the change before it be-
comes effective. Accordingly, I conclude that Respond-
ent's unilateral change of its method of computing over-
time pay violated Section 8(a)(5) and (1) of the Act. 17
There is one final unilateral change alleged in the com-
plaint : it was stipulated that, during the term of the
strike, employees Cynthia Babin, Samuel Shahline,
Ernest Dison, and Douglas Whittington, who participat-
ed in the strike, became sick or were injured. When the
strike ended, their illnesses and disabilities continued and
they could not immediately report to work. They did
later. Their claims under Respondent's nonoccupational
is The parties' collective-bargaining agreement contains separate arti-
cles covering "Wage Rates and Classifications" (art V) and "Hours of
Work" (art II) There is a separate article (III) entitled "Overtime,"
which is the subject of the instant alleged violation
17 Par 14 of the complaint does not allege that this change, unlike all
the others referred to above and below, was engaged in because the em-
ployees engaged in the strike
MURPHY OIL USA 1047
sickness and disability benefits plan (Plan) for the period
commencing with the termination of the strike were
denied.
The purpose of the Plan, which is unilaterally adminis-
tered by Respondent, is to "continue an employee's
salary or wages" while it is necessary for the employee
to be absent from work because of nonoccupational sick-
ness or disability, including absences because of pregnan-
cy." To be eligible for benefits, an employee must have
completed 6 months of employment by Respondent; and
benefits, computed at maximums of full pay and half pay,
are based on the employee's years of credited service.
The more years an employee has worked, the longer
benefits the employee is entitled to each year. For exam-
ple, an employee who has worked for 4 to 5 years may
receive in a year a maximum of 6 weeks' full pay or 16
weeks ' half pay. An employee who has worked for 10
years or more is entitled each year to a maximum of 12
weeks ' full pay or 40 weeks' half pay.
The Plan specifies certain circumstances in which ben-
efits are not given, setting forth examples that are "illus-
trated" of the "circumstances where to give them would
be inconsistent with the spirit and intent" of the Plan.
One series of the Plan. One series of examples of such
circumstances is: "during a period of vacation, leave of
absence , layoff or suspension, or beyond the effective
date of a resignation , discharge or retirement." These cir-
cumstances are directly related to three other paragraphs
of the Plan which provide:
In the case of a sickness or disability which com-
mences during the employee's vacation, leave of ab-
sence, layoff or suspension, the period of sickness or
disability following the conclusion of such vacation,
leave of absence, layoff or suspension will be con-
sidered, for the purpose of this Plan, as a separate
sickness or disability, and benefits therefore will be
subject to all the limitations of this Plan.
If an employee is receiving benefits under this
Plan and his period of sickness or disability contin-
ues into a penod of leave of absence, layoff or sus-
pension , benefits under this Plan will be suspended
during the period of such leave of absence, layoff or
suspension , and may be resumed at the expiration of
such period, if the employee is still sick or disabled
and if he has not already received the maximum
benefits.
Payment of benefits for a period of sickness or
disability may be suspended in order to permit an
employee to take a vacation to which he is entitled.
At the conclusion of such vacation period, payment
of sickness and disability benefits may be resumed.
In no event will sickness and disability benefits and
vacation pay be given for the same period.
Had the four employees been employed and not on
strike when their illnesses and disabilities occurred, they
would have been eligible for benefits. Had their illnesses
and disabilities occurred prior to the strike, Respondent
would have been obligated to pay them benefits until the
beginning of the strike, might lawfully'$ have discontin-
ued payments during the strike, and then would have
been obligated to resume paying benefits after the strike.
But that situation has never happened before, nor has the
instant situation, where the illnesses or disabilities oc-
curred when the employees were on strike. Nor, accord-
ing to Smith, who administered the Plan, did he ever
have occasion to consider an employee's eligibility for
benefits pursuant to the above-quoted provisions. Rather,
Smith denied the instant claim because the employees
"were not regularly paid, active, hourly employees of"
Respondent. (Emphasis added.)
Respondent contends that Smith was allowed to make
this interpretation, which differs from the Plan's defini-
tion of an employee ("any regular, hourly-paid employee
employed full-time by" Respondent), because Respond-
ent has the unqualified right to make any decisions it de-
sires under the Plan's provision, which states:
The decision of the company as to any matter con-
cerning administration of this plan as a whole or as
applied to any specific case shall be final; and the
company reserves the right to interpret, apply,
amend, or revoke this plan and these rules and reg-
ulations at any time.
In addition, Respondent contends that these employees
participated in the strike and withdrew their services
from Respondent and that Respondent had no obligation
under the Act to pay them wages or give them any ben-
efits, present or accrued, for doing nothing but partici-
pating in a strike. Towne Chevrolet, 230 NLRB 479
(1977); General Electric Co., 80 NLRB 510 (1948).
Counsel for the General Counsel, on the other hand,
contends that the disability benefits were a term of em-
ployment and cannot be discontinued by Respondent
before the Union has been given notice and an opportu-
nity to bargain. In addition, she relies on Conoco, Inc.,
265 NLRB 819 (1982), enfd. 740 F.2d 811 (10th Cir.
1984), which involved an employer's termination of dis-
ability benefits of an employee who was hospitalized
when a strike began and who could not have worked
even if there had been no strike. The Board found a vio-
lation of the Act, modified the remedy recommended by
the administrative law judge,' 9 and held that: "where an
employer because of a strike unlawfully terminates ac-
crued benefits it has previously provided disabled em-
ployees, we shall order that employer to provide to such
employees the amount of the disability payments, plus in-
terest, that the employee otherwise would have received
after the date the employer terminated the disability ben-
efits." (265 NLRB at 821.)
The essence of the violations found in Wiegand and
Conoco flow from the Supreme Court's holding in NLRB
v. Great Dane Trailers, 388 U.S. 26 (1967), that an em-
ployer's refusal to pay accrued vacation benefits to those
18 But, see discussion below
19 The judge had utilized the remedy adopted by the Board in E L
W,egand Division, 246 NLRB 1143 (1979) The Board modified that
remedy, in accordance with the views expressed in part by the Third Cir-
cuit, which enforced Wiegand, but modified the remedy, 650 F 2d 463
(1981), cert denied 455 US 939 (1982)
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
participating in an economic strike was an unfair labor
practice, even absent proof of illegal motivation. The
Court at 34, found two principles controlling:
First, if it can reasonably be concluded that the em-
ployer's discriminatory conduct was "inherently de-
structive" of important employee rights, no proof of
an anti-union motivation is needed and the Board
can find an unfair labor practice even if the employ-
er introduces evidence that the conduct was moti-
vated by business considerations. Second, if the ad-
verse effect of the discriminatory conduct on em-
ployee rights is "comparatively slight," an anti-
union motivation must be proved to sustain the
charge if the employer has come forward with evi-
dence of legitimate and substantial business justifica-
tions for the conduct. Thus, in either situation, once
it has been proved that the employer engaged in
discriminatory conduct which could have adversely
affected employee rights to some extent, the burden
is upon the employer to establish that he was moti-
vated by legitimate objectives since proof of moti-
vation is most accessible to him.
The Board, in Conoco, relied on a finding that the ben-
efits taken away were "accrued"; and, according to the
Third Circuit, the test of whether such benefits are ac-
crued is "whether they are due and payable on the date
on which the employer denied them," 650 F.2d at 469.
Clearly, the benefits here have the distinguishing charac-
teristics of accrued benefits. The length of the period of
payment is directly linked with the length of the employ-
ee's service . The benefits do not depend on any return to
work or on any future employment with Respondent,
but arise out of the existence of the past employment re-
lationship itself.20
Unlike Conoco, there is no provision in the Plan that
expressly provides that no benefits will be paid during
the time that an employee is on strike, but the provisions
are similar for an employee on layoff.2 i It is clear, how-
ever, that the contemplation of the Plan was that those
who were not on the job at the time of their disabilities,
either because they were on vacation or suspended, or
on layoff or leave of absence, would not receive benefits;
and those who were disabled prior to their period of ab-
sence would have their benefits suspended during the
period of such absence.
On the other hand, they would receive benefits once
their period of absence from work concluded; and,
unlike Conoco, where the issue was the termination of
benefits while the strike continued (and, nonetheless, a
ao Excluded from coverage are employees who become employed else-
where, and a sickness or disability results, or where an employee moves
to another locality, without Respondent's prior approval The latter ex-
ception appears to be prompted by Respondent's concern that the em-
ployee should be under the regular care of a physician approved by it
Benefits may also be denied, at Respondent's discretion, for sicknesses
and disabilities due to alcohol, drugs, or narcotics, "unlawful acts," fight-
ing (unless in self-defense), and willfully inflicted injuries
21 The plan in Conoco provided "If benefits are being paid prior to a
strike or layoff, such benefits will cease for the duration of such strike or
layoff. No benefits will be paid during the time you are on strike or
layoff"
violation was found), here the complaint is directed at
Respondent's failure to pay the employees commencing
on 17 March, the date the strike terminated, in the same
manner as Respondent would have had these employees
been on layoff or on vacation, on leave of absence, or
suspended up to 16 March.
Respondent's argument for not paying benefits com-
mencing on 17 March is that the employees were not
"actively" employed full time when their disabilities
commenced. However, they were not "actively" em-
ployed because they were exercising a right guaranteed
by Section 7 of the Act, and under Section 2(3) of the
Act they continue to be Respondent's employees. Fur-
thermore, not to pay them benefits for the period they
were otherwise entitled to them is contrary to the pur-
pose and "spirit and intent" of the Plan-"[t]o continue
an employee's salary or wages while it is necessary for
the employee to be absent from work because of nonoc-
cupational sickness or disability." Respondent's denial of
benefits allegedly resulted from the fact that the employ-
ees were not on the payroll at the time that their disabil-
ities occurred, but benefits are granted to those who are
otherwise not "actively" employed because they are on
layoff or suspension or leave of absence. 2 2 I conclude
that Respondent's denial was intended solely to discrimi-
nate against the employees' union and concerted and
protected activities of engaging in a strike and is, there-
fore, inherently destructive of its employees' right to
engage in those activities, under the first test of Great
Dane.
Even under the second test, Respondent has not rea-
sonably interpreted and in good faith relied on the provi-
sions of the Plan, the intent of which is to reimburse em-
ployees for their disabilities when they would otherwise
be able to earn their wages. Respondent's brief argues
that, because the Plan is unilaterally administered, Re-
spondent may make any decision and rule changes it de-
sires with impunity, including the additional requirement
that an employee had to be an "active" employee in
order to receive benefits and that additional exceptions
from the Plan's coverage of all those employees whose
injuries and disabilities arise when the employees are on
strike. Those additions are unilateral changes to the Plan
and are not reasonable:23 they have no basis in anything
in the Plan or the Plan's "spirit or intent." It is true that
Respondent has no obligation to support the strike, but
nothing is being requested in this proceeding that would
support these four employees during the period of the
strike. Relief is being asked for the period only after the
strike's termination, when the employees would have
been expected to return to work had they been healthy.
Indeed, Smith admitted that the four employees were
"employees" at the end of the strike and that, if they re-
ported for work on 17 March, they were once again con-
22 A leave of absence is, under the Plan, the same as a strike In either
instance , as Smith partially conceded, the employee leaves employment at
his or her request for a period of time, without the expectation of being
paid
23 I found that Smith was quite unaware of the Plan 's provisions. He
professed that he did not understand certain of the above-quoted para-
graphs and appeared to interpret the Plan with the sole intent of finding
some excuse to exclude the sinkers from eligibility for any benefits
MURPHY OIL USA 1049
sidered "active" employees. Of course, it is commencing
17 March that they applied for benefits; commencing 17
March, they would have worked but for their disabilities;
and commencing 17 March, they should have been con-
sidered "active" employees.
Granting benefits for the period after the strike termi-
nated does not impose on Respondent an obligation to
support the strike, any more than it did in Great Dane, in
which the employer violated the Act by withholding ac-
crued vacation benefits that had been earned by the em-
ployees through their service prior to the strike. Here,
Respondent's employees earned the right to receive dis-
ability benefits through their long service with Respond-
ent. They are entitled to those benefits, just as they
would be had their employment not been interrupted by
similar pauses, such as vacations, layoffs, suspensions, or
leaves of absence. I conclude that, by not paying the
benefits and by imposing a new requirement that benefits
may be granted only if employees were "actively" em-
ployed when their illnesses and disabilities occurred, Re-
spondent violated Section 8(a)(1), (3), and (5) of the Act.
The unfair labor practices found above, occurring in
connection with Respondent's business, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent unlawfully engaged in
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action.
Specifically, I shall order Respondent, on request, to bar-
gain collectively with the Union regarding Respondent's
changes of terms and conditions of employment; to re-
scind , on the Union's request , the new rules and condi-
tions of employment, including, but not limited to, the
new method of computing overtime; and to restore and
put into effect forthwith such terms and conditions of
employment as were unilaterally changed after the strike.
Because the rules were imposed as a result of the em-
ployees ' union and protected and concerted activities,
the rescission of those rules shall remain in effect for the
60-day period of the posting of the "Notice to Employ-
ees" attached hereto. Thereafter, Respondent is free to
reinstate those rules as to which I have concluded it has
no 8(a)(5) duty to bargain. Respondent may make other
rule changes only after bargaining in good faith with the
Union to impasse, and only after the notice-posting
period. I shall also order Respondent to make whole
those employees who worked overtime for any loss of
overtime pay they were entitled to under Respondent's
practices prior to the commencement of the strike, in ac-
cordance with Ogle Protection Service, 183 NLRB 682
(1970), with interest as prescribed in Florida Steel Corp.,
231 NLRB 651 (1977).24 Finally, I shall also order Re-
24 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
spondent to pay to Cynthia Babin, Samuel Shahine,
Ernest Dison, and Douglas Whittington the disability
benefits due them for the period commencing 17 March
1986 until their respective disabilities ceased, with inter-
est as provided above.2 s
There is one exception to the foregoing relief, and that
concerns Respondent's rule against drinking and eating
in Respondent's premises in the presence of toxic materi-
als. As found above, in the absence of any contradictory
evidence, the essence of the rule, being required by Fed-
eral law, is appropriate for institution and ought to be
enforced immediately for the protection of the employ-
ees themselves. On the other hand, I found no evidence
that either Dupre or Gettys actually consumed beverages
or food in violation of the rule. Yet they were warned,
but Dufrene, an employee obviously friendly to Re-
spondent, actually violated the terms and was told only
that his eating of a banana was a "mistake"; and Sperber,
who carried coffee in the same premises as Dupre and
Gettys, was not warned at all. Although I have found
that Respondent violated Section 8(a)(3) in the establish-
ment and application of the rule, I will limit my relief to
recommend only that Respondent cease and desist from
applying the rule unless enforced against all employees
equally and order Respondent to bargain with the Union
about the rule as long as Respondent enforces the rule
disparately and utilizes the rule not only against con-
sumption of food but also against the carrying of food.
Counsel for the General Counsel also requests that my
recommended Order include a visitatorial clause author-
izing the Board to engage in discovery under the Federal
Rules of Civil Procedure so that it will be able to moni-
tor compliance with the Board's order, if enforced by a
court of appeals. This is a request that has been uniform-
ly made in all unfair labor practice proceedings for many
months, and the matter was recently orally argued
before the Board and is now awaiting decision. Until
then, and on the basis of this record, I am unpersuaded
that existing procedures are inadequate to ensure compli-
ance , which appears to be easy to confirm.26
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed27
ORDER
The Respondent, Murphy Oil USA, Inc., Meraux,
Louisiana, its officers, agents , successors , and assigns,
shall
20 The parties stipulated that the employees were able to return to
work on the following dates Babin, 23 April, Shahme, 12 May, Dison, 21
April, and Whittington, 12 May
2e In addition, counsel for the General Counsel has requested that the
warnings to Dupre and Gettys for eating and drinking be expunged from
their personnel files As stated above, their files revealed nothing to ex-
punge, and so the proposed remedy is not warranted However, this deci-
sion will serve as notice to Respondent that the incidents for which they
were illegally warned will not be used against them in any disciplinary
proceeding in the future
27 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith
concerning rates of pay, wages, hours, and other terms
and conditions of employment with United Steelworkers
of America, Local 8363, AFL-CIO-CLC as the exclu-
sive representative of its employees in the following unit
appropriate for the purposes of collective bargaining:
All production and maintenance employees em-
ployed by it at its Meraux, Louisiana facility, in-
cluding laboratory assistants and laboratory techni-
cians; excluding all office clerical employees, pro-
fessional employees, temporary employees, assistant
chemists, marketing department employees, guards,
watchmen, and supervisors as defined in the Act.
(b) Unilaterally and without bargaining with the Union
changing its employees' terms and conditions of employ-
ment.
(c) Changing its employees' terms and conditions of
employment because they engaged, and in order to dis-
courage them from engaging, in protected and concerted
and union activities.
(d) Threatening its employees with discipline because
they allegedly violated a rule imposed by it because they
engaged in union and protected and concerted activities.
(e) Withholding payments of disability benefits provid-
ed by its nonoccupational sickness and disability benefits
plan from, or otherwise discriminating against, employ-
ees because of their exercise of their right to engage in
or refrain from engaging in union and protected and con-
certed activities, including the right to strike, thereby
discouraging membership in the Union, or any other
labor organization.
(f) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following action necessary to effectuate
the policies of the Act.
(a) On request of the Union, rescind the unilateral
changes it made in the calculation of overtime compensa-
tion and in prohibiting its employees the right to hang
posters, photographs, charts, and calendars; to possess
and use radios; to possess and read reading materials and
to play cards in its maintenance shops and bay area; to
eat and drink and maintain refrigerators, convection
ovens, hot plates, coffee pots, and microwave ovens in
its maintenance shops and bay area, so long as it fails to
apply its rules equally to all its employees; and to use
telephones; and requiring its employees to obtain addi-
tional written approval to perform personal work and to
remove tools from its premises.
(b) Restore and put into effect immediately all condi-
tions of employment in existence prior to the commence-
ment of the January 1986 strike, including the replace-
ment of the chairs in the control room, except as such
conditions may have been revised in the collective-bar-
gaining agreement between it and the Union, dated 12
March 1986.
(c) Make whole its employees who worked overtime
since 17 March 1986 for any loss of overtime pay caused
by its failure to adhere to its practices of computing
overtime pay in effect prior to the commencement of the
January 1986 strike, with interest, in the manner set forth
in the remedy section of this decision.
(d) Make whole its employees Cynthia Babin, Samuel
Shahine, Ernest Dison, and Douglas Whittington by
paying them, with interest, the disability benefits pursu-
ant to its nonoccupational sickness and disability benefits
plan that were due to them for the period commencing
17 March 1986.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its Meraux, Louisiana facilities copies of the
attached notice marked "Appendix."28 Copies of the
notice, on forms provided by the Regional Director for
Region 15, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that, with the exception
of the violations found here, the complaint is dismissed.
28 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 Nation-
al 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 "
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.
WE WILL NOT refuse to bargain collectively and in
good faith concerning rates of pay, wages , hours, and
other terms and conditions of employment with United
Steelworkers of America, Local 8363, AFL-CIO-CLC,
as the exclusive representative of our employees in the
following unit appropriate for the purposes of collective
bargaining:
All production and maintenance employees em-
ployed by Murphy Oil USA, Inc. at its Meraux,
Louisiana facility , including laboratory assistants
and laboratory technicians ; excluding all office cler-
ical employees , professional employees , temporary
employees, assistant chemists, marketing department
MURPHY OIL USA 1051
employees , guards , watchmen , and supervisors as
defined in the Act.
WE WILL NOT unilaterally and without bargaining
with the Union change our employees ' terms and condi-
tions of employment.
WE WILL NOT change our employees ' terms and con-
ditions of employment because they engaged, and in
order to discourage them from engaging , in protected
and concerted and union activities.
WE WILL NOT threaten our employees with discipline
because they allegedly violated a rule imposed by us be-
cause they engaged in union and protected and concert-
ed activities.
WE WILL NOT withhold payments of disability benefits
provided by the nonoccupational sickness and disability
benefits plan from or otherwise discriminate against, our
employees because of their exercise of their right to
engage in or refrain from engaging in union and protect-
ed and concerted activities , including the right to strike,
thereby discouraging membership in the Union, or any
other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL on request of the Union, rescind the unilat-
eral changes we made in the calculation of overtime
compensation and in prohibiting our employees the right
to hang posters , photographs , charts, and calendars; to
possess and use radios ; to possess and read reading mate-
rials and play cards in our maintenance shops and bay
area; to eat and drink and maintain refrigerators , convec-
tion ovens , hot plates , coffee pots, and microwave ovens
in our maintenance shops and bay area , so long as we fail
to apply our rules equally to all our employees; and to
use telephones ; and requiring our employees to obtain
additional written approval to perform personal work
and to remove tools from our premises.
WE WILL restore and put into effect immediately all
conditions of employment in existence prior to the com-
mencement of the January 1986 strike , including the re-
placement of the chairs in the control room , except as
such conditions may have been revised in the collective-
bargaining agreement between us and the Union, dated
12 March 1986.
WE WILL make whole our employees who worked
overtime since 17 March 1986 for any loss of overtime
pay caused by our failure to adhere to our practices of
computing overtime pay in effect prior to the com-
mencement of the January 1986 strike , with interest.
WE WILL make whole our emplyees Cynthia Babin,
Samuel Shahine , Ernest Dison, and Douglas Whittington
by paying to them, with interest , the disability benefits
pursuant to the nonoccupational sickness and disability
benefits plan that were due to them for the period com-
mencing 17 March 1986.
MURPHY OIL USA, INC.