Shell Oil Co.

National Labor Relations Board - Board Decisions

Aug 30, 1967

167 N.L.R.B. 243 (N.L.R.B. 1967)

SHELL OIL CO. 243
Shell Oil Company and Local 338, Laborers ' Inter-
national Union of North America, AFL-CIO and
Local Union No. 553, affiliated with the United
Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada , AFL-CIO. Cases
14-CA-3885 and 14-CA-4013
August 30, 1967
DECISION AND ORDER
BY CHARIMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On April 4, 1967, Trial Examiner William W.
Kapell issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Ex-
aminer 's Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, ' and tht
entire record in the case, and hereby adopts the
findings, 2 conslusions, and recommendations of the
Trial Examiner.
In affirming the Trial Examiner's dismissal of al-
legations that Respondent violated Section 8(a)(3)
and (1) by its conduct with respect to Reynolds'
grievance, we do not adopt his finding that the
Laborers' business agent, Pickerill, proposed to
Respondent' s manager of industrial relations,
Buffington, that the grievance would be dropped if
Reynolds were granted access to Respondent's
refinery. On the contrary, the record shows that
Buffington made the actual proposal on November
5, 1965, when he stated to Pickerill that Respond-
ent "would be willing to consider Calvin
[Reynolds], permitting Calvin to enter the refinery,
if this would provide 9 ,-mutually satisfactory basis
to resolve the grievance." Respondent's proposal
was a culmination of several earlier suggestions for
settlement initiated by the Union in which it in-
dicated an interest in obtaining removal of
Reynolds' name from the "Bar list." In this regard
167 NLRB No. 32
the Plant Committee initially proposed, on August
13, 1965, that Reynolds be permitted to return to
work as a probationary employee. At this same
meeting the committee also inquired whether
Reynolds could be permitted to enter the refinery
premises, if the discharge were to stand. Several
days later, while scheduling the next grievance
meeting, Pickerill indicated that a problem area in
the case from the Laborers' viewpoint existed in
Reynolds' (a union official and delegate to the coun-
cil which bargains with Respondent on behalf of 12
constituent locals) being on the list and commented
that ". . . even though a man might not be a good
employee for one employer he could be a good em-
ployee for another ...." On August 26, 1965, dur-
ing a meeting between Respondent's officials and
the Laborers' committee, the Laborers again
inquired if Respondent would admit Reynolds to
the premises. Respondent made no effort to inter-
fere with the processing of the grievance during the
settlement negotiations, but rather cooperated in
processing it to a final resolution. Moreover, these
attempts to settle the grievance were not directly
with Reynolds but were handled through negotia-
tions with the bargaining representative. In these
circumstances, we find that Buffington's offer to
remove Reynolds from the "Bar list" amounted to
nothing more than a good-faith attempt to settle the
grievance.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Shell Oil Company, Rox-
ana, Illinois, its officers, agents successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
' Respondent incorporated in its exceptions a motion to reopen the
record to take evidence on events subsequent to the hearing As the mo-
tion is lacking in merit, it is hereby denied
2 The Trial Examiner indicated that the Respondent operated two
refineries, one located at Roxana and the other at Wood River, Illinois
The record demonstrates that the Respondent , at all times material herein,
operated only one refinery located at Roxana , Illinois, which was also
known as the Wood River refinery
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner: This matter was
heard at St. Louis, Missouri, On December 12 and 13,
1966,' upon complaints of the General Counsel issued in
I All dates hereafter refer to the year 1966 unless otherwise noted
310-5410-70-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case 14-CA-38852 on September 30, and in Case
l4-CA-40133 on October 12, respectively. The cases
were consolidated for hearing by an order of the Regional
Director, dated October 12.
The complaint in Case 14-CA-3885 alleges, in sub-
stance; that Shell Oil Company, hereafter referred to as
Respondent, in violation of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, hereafter
referred to as the Act, denied access to its Wood River
refinery to Calvin Reynolds, an employee of Thomas
Fleming Piping Co., a contractor performing services at
said refinery, thereby causing him loss of employment
because he had refused to withdraw a grievance filed
against Respondent. Respondent in its answer admits
denying Reynolds access to its premises, but denies all al-
legations of violation.
The complaint in Case 14-CA-4013 alleges, in sub-
stance, that Respondent maintains a list of ex-employees
and other persons, who for some reason are barred from
entering its Roxana refinery at Roxana, Illinois, either to
work for Respondent or for an employer performing ser-
vices at said refinery, and that since January 24, Respond-
ent in violation of Section 8(a)(5) and (1) has refused the
request of Pipefitters, the recognized exclusive bargain-
ing representative of Respondents Pipefitters at the
refinery to bargain on the maintenance of the aforemen-
tioned list, the reasons for placing the names of em-
ployees on or removing them from said list, and the dura-
tion for which employees' names are kept on the list for
a specific offense, or to furnish information as to the
names on the list, the manner in which persons are put on
the list, and the reasons therefor. In its answer Respond-
ent admits maintaining the list, and that on at least one
occasion since January 24 Pipefitters requested it to bar-
gain concerning the subjects described in the complaint,
but denies (1) that Pipefitters is presently requesting bar-
gaining therein, although on at least one occasion Pipefit-
ters discussed such subjects, (2) that a proper request
therefor was made by it, or (3) that it violated Section
8(a)(5) and (1).'
All parties were afforded full opportunity to be heard,
to introduce relevant evidence, to present oral argument,
and to file briefs. The General Counsel and Respondent
filed briefs which have been duly considered. Upon the
entire record in the cases, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent, a corporation duly organized under and
existing by virtue of the laws of the State of Delaware,
2 Based upon a charge filed on February 3 by Local 338, Laborers' In-
ternational Union of North America, AFL-CIO, hereafter called
Laborers
S Based on a charge filed on June 24 by Local Union No 553, affiliated
with the United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO, hereafter called Pipefitters
4 At the conclusion of General Counsel's case - in-chief, and again at the
end of the hearing , rulings on Respondent ' s motions to dismiss this case
on the ground that General Counsel had failed to prove a cause of action
were reserved The motions are hereby disposed of in accordance with the
findings hereinafter set forth
has its principal office and place of business in New York
City, State of New York, and maintains other installa-
tions in other States, including Illinois. At all times
material herein, it has engaged in the manufacture, sale,
and distribution of gasoline, oil, petroleum derivatives,
petrochemicals, and related products at its refineries at
Roxana and Wood River, Illinois. During the year ending
December 31, 1965, which period is representative of its
operations during all times material herein, Respondent,
in the course of its business operations, manufactured,
sold, and distributed at each of the aforesaid refineries
products valued in excess of $1 million, of which
products valued in excess of $50,000 were shipped from
each of said refineries directly to points located outside of
the State of Illinois Respondent admits, and I find, that
at all times material herein, it was an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that at all times material
herein, Laborers and Pipefitters have been labor or-
ganizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issues arising herein stem from Respondent's
maintenance and implementation of a lists of persons who
were barred from entering its refineries. The list, which
has been in existence for over 30 years, contains the
names of (1) all of Respondent's employees who have
been discharged regardless of reason, (2) in its discretion,
those of its employees who quit if their overall work per-
formance while employed was submarginal, and (3) the
employees of contractors, who were working on its
premises and were discharged for breach of its rules ap-
plicable to such employees.6 From time to time the Bar
list is reviewed by Respondent and, in its discretion,
revised without applying any set criteria.
A. Case 14-CA-3885
As related above, the complaint in this case states that
Respondent violated Section 8(a)(1) and (3) by refusing
access to its Wood River, Illinois, refinery to Calvin
Reynolds, a former employee, thereafter employed by
one of its contractors, thereby causing him to lose his em-
ployment because he refused to withdraw a grievance
filed against Respondent. Calvin Reynolds began work-
ing at Respondent's refinery in 1952. After being a
steward for the Laborers for 3 or 4 years, he became
chairman of Laborers' committee, and a delegate to the
5 During the hearing the Unions referred to the list as a "blacklist", the
General Counsel expressed indifference as to its nomenclature, and
Respondent opposed calling it a "blacklist," claiming it was merely a list
of persons who were barred from entering its refineries Without ascribing
any significance to its name , the list, for purposes of convenience, will
hereafter be referred to as the "Bar" list
6 Respondent issues a handbook (G C Exh 4) containing its work
rules to all employees of contractors who are engaged in work on its
premises and perform about one -half of its construction work Respond-
ent also issues a similar handbook (G C Exh 3) to all of its own em-
ployees
SHELL OIL CO. 245
Oil Workers' Council, which consists of 12 unions, whose
members are employed by Respondent. The Council
negotiates collective-bargaining contracts and processes
grievances on behalf of its constituent unions with
Respondent. The evidence is not disputed that on August
4, 1965, Respondent discharged Reynolds because of ex-
cessive absenteeism and poor productivity, and automati-
cally placed him on the Bar list. At that time Reynolds
was informed in response to his specific request that he
was being placed on the Bar list and would not be per-
mitted to enter the refinery. Reynolds thereupon filed a
grievance pursuant to the provisions of Laborers' con-
tract with Respondent. Thereafter, the Plant Committee
consisting of seven representatives of the various unions
representing Respondent's employees, met on several oc-
casions with David Buffington, Respondent's manager of
personnel and industrial relations, to process Reynolds'
grievance. At some of these meetings and in telephone
conversations between Buffington and James W.
Pickerill, Laborers' business agent, the latter proposed
that the grievance would be dropped if Reynolds were
granted access to Respondent's refinery.' Respondent
was not receptive to the proposal but agreed to take it
under consideration. On November 5, however, at a
meeting between representatives of Respondent and
Laborers, Buffington stated that inasmuch as Laborers
had previously indicated that the listing of Reynolds'
name on the Bar list was a matter of concern to it,
Respondent was willing to consider permitting Reynolds
to enter the refinery if it would provide a mutually
satisfactory basis to resolve his grievance. Pickerill asked
for time to consult the Union's attorney and Reynolds.
Thereafter, on January 26 Reynolds was referred for em-
ployment by Laborers to Fleming Pipe Co., which was
engaged in performing work at the refinery. Reynolds ap-
plied at the refinery to sign in but was refused admittance
by Respondent's watchman because he was on the Bar
list. Meanwhile the parties continued to process the
grievance and a hearing was held in March before an ar-
bitrator who had been selected. On April 22, the arbitra-
tor issued a decision sustaining Reynolds' discharge. On
May 5 Reynolds received a letter from Respondent con-
firming their recent conversation to the effect that his
name had been removed from the Bar list, and that he
would be permitted to enter the refinery. A few days later
Reynolds succeeded in obtaining a job with Kelly, a con-
tractor working for Respondent at its refinery, and was
subsequently permitted to enter and work at the refinery.
The Position of the Parties
the Act, and Respondent's offer interfered with this right
in violation of Section 8(a)(1) and (3). He points out that
2 weeks after the arbitrator resolved the grievance (by
sustaining the discharge), Respondent notified Reynolds
that his name had been removed from the Bar list and he
no longer was excluded from entering its refinery. In-
asmuch as no explanation was offered by Respondent for
this action, General Counsel concludes that it must have
been because Reynolds' grievance no longer was pend-
ing, and since all other reasons for which he was placed on
the list continued to exist, it follows that his loss of em-
ployment by reason of having been barred from the
refinery was in retaliation for his refusal to withdraw the
grievance, and, therefore constituted discrimination
under Section 8(a)(3) and (1) of the Act. In support he
cites East Texas Pulp and Paper Company.8 In that case
grievances9 were filed by employees pursuant to the
provisions of their collective-bargaining contract when
they were refused reinstatement following a strike in
violation of a contract no-strike provision. The employer
thereupon attempted by threats and inducements to
prevail upon the discharges to withdraw both their
grievances and unfair labor practice charges. The Board
held that the employer interfered with the protective
rights of employees in violation of Section 8(a)(1) because
the right to file and process grievances under a collective-
bargaining contract was protected by Section 7.
Respondent takes the position that all its efforts to
resolve the grievance constituted nothing more than a
legitimate effort of settlement which in no way violated
Reynolds' rights under Section 7. Respondent also points
out indirectly that it did not place Reynolds on its Bar list
because of the filing of his grievance but rather declined
to remove him thereafter from that list while his grievance
remained unresolved. The East Texas Company case is
distinguished on the grounds that the employer there
dealt directly with the employees to compel the
withdrawal of their grievances and unfair labor practice
charges, and its threats and blackballing of the involved
employees for jobs elsewhere had no relationship to the
operation of its business, whereas in the instant case, the
Employer dealt only with the representatives of
Laborers, and the job involved affected its operations.
Unanue & Sons, Inc., 132 NLRB 572,10 is cited in sup-
port of its position. In that case the Board, in reversing
the Trial Examiner, found that the employer did not un-
lawfully condition an offer of reemployment upon the
withdrawal of unfair labor practice charges because the
union's president suggested the condition.
The General Counsel urges that Respondent's offer to
remove Reynolds from the Bar list constituted dis-
crimination against Reynolds because it was conditioned
upon his agreement to cease and desist from engaging
further in the protective activity of processing his
grievance. He contends that Reynolds unquestionably
had the right to file and process a grivance under the col-
lective-bargaining contract, which was protected under
' Although Pickerill testified that Respondent's representatives made
the proposal, I find, as related above and based on Buffington's testimony,
which impressed me as being positive and trustworthy, that the proposal
was made to Respondent Also, it appears that Pickerill admittedly had
suggested to Buffington that if Reynolds were permitted to enter the
refinery he might still be a good employee for a contractor working at the
refinery even if he could no longer work for Respondent Nor did he refute
Buffington's testimony that he asked for the rehiring of Reynolds as a
Conclusions
1. The alleged violation of Section 8(a)(3)
The available evidence indicates, and General Counsel
concedes, that the maintenance of the Bar list was neither
discriminatory in nature nor discriminatorily applied.
Furthermore, the General Counsel disavows any conten-
probationary employee This testimony indicates that Pipefitters took
some initiative in proposing settlement of the matter
s 143 NLRB 427, enfd. 346 F 2d 686 (C A 5)
Unfair labor practice charges were also filed subsequently based on
the grievances
10 Enforced sub nom N L R B v Goya Foods, Inc, 303 F 2d 442
(C A 2), cert denied 371 U S 911
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion that Reynolds' discharge, his placement on the Bar
list, or his subsequent removal therefrom constitutes an
unfair labor practice. He urges only that Respondent's
conditional offer violated Section 8(a)(3) and (1) of the
Act. I find, however, as related above that Laborers in-
itiated the conditional settlement, and that further the
record is barren of any union hostility on the part of
Respondent, which might color the alleged conduct of
Respondent. Furthermore, even assuming, arguendo, as
claimed that Respondent conditioned Reynolds' ad-
mittance to the refinery upon withdrawal of his grievance,
I find that there is no showing either that Respondent en-
gaged in any hostility to Laborers, or that such offer was
intended to or, in fact, had the effect of encouraging or
discouraging union membership. I, therefore, conclude
that Respondent's conduct did not violate Section 8(a)(3).
See Unanue & Sons, Inc., supra. Accordingly, I shall
recommend that the complaint be dismissed insofar as it
alleges violation of Section 8(a)(3).
2. The alleged Section 8(a)(1) violation
I find that the East Texas case is materially distin-
guishable in that there the Employer reacted to the filing
of the grievances and charges by threatening to interfere,
and actually interfering, with the protected employment
opportunities of the employees involved unless the
grievances and charges were withdrawn, whereas in the
instant case Reynolds was barred from the refinery be-
fore his grievance was filed. Respondent did not resort to
any threats or inducements to bring pressure to bear upon
Reynolds with respect to his grievance. It maintained the
status quo existing prior to the filing of the grievance. In
fact, Respondent made no effort to interfere with the
processing of the grievance and, as far as the record goes,
cooperated in processing it to a final resolution.
Moreover, it was Laborers who attempted to forestall
going forward with the grievance by offering to withdraw
it conditionally. In the context of all the circumstances,
especially the absence of any proven employer hostility
to Laborers, I find that Respondent's conduct was not
proscribed within the meaning of Section 8(a)(1). See
Unanue & Sons, supra. 1, accordingly, shall recommend
the dismissal of the complaint in its entirety.
B. Case 14-CA-4013
As related, supra, the complaint in this case alleges that
Respondent in violation of Section 8(a)(5) and (1) of the
Act refused to bargain with Pipefitters about the Bar list
or to furnish certain information concerning the list." It
is undisputed that Pipefitters, as the exclusive bargaining
representative of Respondent's pipefitters, had a collec-
tive-bargaining contract with Respondent, which expired
at the end of 1965. Negotiations to succeed the existing
contract were started about the middle of 1965 by Pipefit-
ters in concert with the other craft unions. All the unions
except Pipefitters and Operating Engineers concluded
agreements with Respondent towards the end of 1965.
Pipefitters then began negotiating separately with
Respondent. The evidence is in conflict as to the date of
their first such bargaining session ; Respondent claims
that it was held on November 24, 1965,12 while Pipefit-
ters contends it was on December 22, 1965. The parties,
however, are in accord that meetings were held on
December 22, 1965, January 10, 24, February 16,
March 8, and September 20.
At the meeting of December 22, Respondent in ex-
planation of its rule13 barring people from its premises
stated that the purpose of the list was to exclude people
whom it felt were detrimental to its construction efforts,
and that it had the right to do so. Pipefitters testified that
Respondent took the position that maintaining and imple-
menting the iist was a prerogative of management
because the listed people were out of the bargaining unit
and there was no reason to discuss it.14 Also, at this meet-
ing, Pipefitters inquired whether 10 pipefitters who had
been suspended in July 1965, for a violation of a no-strike
clause, had been placed on the list. Respondent explained
that they had not been placed on the list, and were barred
from entering the refinery only during and solely because
of their suspension. The meeting on January 10 was held
under the auspicies of a Federal mediator, at which
Pipefitters' proposals were reexamined and the positions
of the parties restated for his benefit. Respondent also
stated at this session that reasons for placing people on
the list included smoking, intoxication, low productivity,
and stealing . Pipefitters argued that the listing of people
should be for a definite period commensurate with the of-
At the hearing, Respondent contended, in support of its motion to
quash a subpoena duces tecum served upon it by Pipefitters, calling for
the production of the Bar list, that the information sought was irrelevant
and unnecessary for the disposition of the issues raised in the complaint.
Ruling was reserved, the parties were invited to brief the point, and it was
provided that in the event the motion to quash was thereafter denied, the
hearing would be reopened for the purpose of proceeding with respect to
the subpena In the event the motion was granted a ruling quashing the
subpena would appear in the Decision herein I find that there is no issue
concerning the existence of the list or its purpose The disclosure of the
identities of the employees on the list (the identities of 59 pipefitters
discharged by Respondent and/or its contractors appearing on the list was
actually furnished prior to or during the hearing) would in no way affect
the disposition of the issue as to whether the Bar list is a mandatory sub-
ject of bargaining, and is neither relevant, material nor necessary for the
resolution of the issues raised in the complaint The motion to quash is
hereby granted See N L R B v L T Wilson, 335 F 2d 449, 452 (C A
5), Goodyear Tire & Rubber Company v N L R B, 122 F 2d 450 (C A
6)
12 Respondent also testified that a second meeting occurred on
December 10, 1965, at which Pipefitters submitted 13 proposals for con-
sideration of which proposal 9 entitled "Black listing and interference with
employment" was as follows
The Company shall not prevent, preclude or interfere with any em-
ployee or former employee in connection with their right to make ap-
plication, to obtain employment or to continue in employment with
any other employer whether or not such employer is engaged by con-
tract or otherwise in performing work on the property of the Com-
pany Blacklisting by the Company, or interference by the Company
with the employment of or tenure of an employee or former employee
by another employer shall obligate the Company to make the em-
ployee whole for all losses including wage losses incurred as con-
sequence thereof, without diminution
Pipefitters claim that the 13 proposals were submitted to Respondent on
December 22, 1965
13 Pipefitters' contention that at several of their meetings Respondent
denied the existence of a list is technically correct Respondent denied
maintaining a list referred to by Pipefitters as a blacklist, but admitted it
maintained a barred list
14 Respondent denied using the term "prerogative of management" dur-
ing their discussions
SHELL OIL CO.
fense charged and not for life, and gave as an example an
individual placed on the list for smoking, who thereafter
discontinued the habit. Respondent denied that people
were kept on the list for life, alleged that the list was
reviewed and revised periodically, and assertedly
discussed all requests for information.
At the meeting on January 24, Respondent requested
and Pipefitters declined to limit its demands in an effort
to reach an agreement. At the meeting of February 16,
the parties were again unable to agree on terms. At the
end of the session Pipefitters requested the reasons for
placing people on the Bar list. Respondent replied that the
list was confidential and it was not prepared to furnish
any information but agreed to review the list for possible
deletions. At the next meeting, held on March 8, the
evidence is in conflict as to whether or not Respondent
requested bargaining in connection with the composition
and revision of the list. Pipefitters testified that its request
to negoitate these matters was refused by Respondent on
the grounds that they were not negotiable matters, did not
affect Pipefitters bargaining unit, and were management
prerogatives. Respondent's testimony is somewhat am-
biguous, and also conflicting. At one point it admitted
discussing proposal 9 while at another, it denied that any
reference was made thereto. Pipefitters also contended
that Respondent had agreed to review and revise the list
at a prior meeting and to submit a list of names which had
been removed from the list. Respondent denied such an
understanding, declined to reveal the names of persons
deleted from the list, and stated that those individuals
would be made aware of it if they presented themselves
at the refinery gate. Respondent then suggested narrow-
ing discussions in an attempt to reach agreement and
Pipefitters presented six items, including severance pay,
work schedules, work assignments, and vacation schedul-
ing, but not proposal 9. The next meeting took place on
September 20, at which the parties agreed on the terms of
a supplemental agreement, including the six items
presented by Pipefitters at their last bargaining session.
The agreement in its preamble stated in part as follows:
In full settlement of all issues raised by the wage
reopening notice dated July 29, 1965, and the con-
tract cancellation notice dated October 22, 1965, it
is hereby agreed ... that the Agreement effective as
of August 31, 1964, shall be reinstated as of the date
of the acceptance of this agreement subject to the fol-
lowing revisions.
At this meeting the testimony is also in conflict as to
whether or not proposal 9 was discussed again. Respond-
ent claims that no reference was made to it while Pipefit-
ters contend that it was touched on.
Meanwhile on November 23, Pipefitters' counsel
wrote to Respondent alleging that (1) Pipefitters in its
bargaining negotiations with Respondent had requested
itemized information concerning the barred list, and that
a copy of the list be made available to it, (2) Respondent
had declined to furnish a copy of the list or to bargain con-
cerning it because it was a matter "exclusively within the
prerogative of management," and (3) Pipefitters had at all
times maintained its demands that Respondent bargain
with it concerning the list , and incorporate these matters
in a collective-bargaining contract. On December 5
Pipefitters submitted a newly proposed contract, which
included the substance of its old proposal 9, now renum-
bered " III." By letter of December 8 Respondent denied
Pipefitters' claim that it declined to bargain, asserted that
247
it bargained in good faith on all matters upon which it was
requested to bargain, and listed the names of nine of its
former pipefitters in response to Pipefitters' demand for
a list of former pipefitters who are prohibited from enter-
ing its Wood River refinery. During the hearing the
parties stipulated the admission in evidence of a list (Joint
Exhibit 1) containing the names of former pipefitters and
helpers of contractors, who have been placed on the Bar
list and are therefore barred from entering Respondent's
premises.
The Positions of the Parties
General Counsel contends that Respondent is
obligated both to bargain about the list and to furnish the
requested information because these matters are directly
connected with Pipefitters' responsibilities as bargaining
representative and are essential in order to properly po-
lice its contract with Respondent. He submits that the
discharge of an employee by Respondent or his resigna-
tion not only terminated his current employment status
but also, upon being placed on the Bar list, automatically
or in the discretion of Respondent, precluded his future
potential employment by Respondent or its contractors
engaged in construction on its premises. Consequently,
the factors during his employment, which caused the
name of an employee to be placed on the list, materially
affected the prospects of his reemployment and fall within
the area of mandatory bargaining. Therefore, in order to
properly represent the employee bargaining unit and its
members and to intelligently and adequately police its
collective-bargaining contracts, it is necessary that
Respondent be required to bargain as to the criteria used
in appraising and evaluating the work performance or
conduct of an employee during his employment, which
thereafter may cause his name to be placed on the Bar
list. General Counsel contends further that Respondent
should also be required to furnish the requested informa-
tion concerning the list, including a copy of the list, in
order to enable Pipefitters to bargain intelligently and ef-
fectively, and that the availability of the list is the only
way Pipefitters can accurately ascertain the identity of its
members who are on it. Pipefitters asserts that the Bar list
is, in effect, deferred discipline.
Respondent contends that ( 1) the Bar list does not con-
stitute a mandatory bargaining subject, (2) even assuming
it to be a mandatory bargaining matter, it discussed the
list to the extent properly requested, and (3) it was not
obligated to disclose certain information concerning the
list because no proper request for such information was
made.
In support of its position that the Bar list does not con-
stitute a mandatory bargaining subject, Respondent
claims that it is not obligated to bargain on behalf of its
former pipefitter employees who are employed by other
employers because they are outside its bargaining unit.
Nor is it required to bargain with respect to its present or
future pipefitter employees because the Bar list has no ap-
plication to current employees and their conditions of em-
ployment , and the bargaining demands relate to a condi-
tion which may arise only following the termination of the
employment relationship . Respondent also asserts that
the Bar list has no relation whatsoever to discipline dur-
ing the employees ' period of employment, and is nothing
more than a list of ex-employees. In short, it maintains
that there is no way in which a present or a future em-
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee can appear on the list while he continues to be a
present or future employee . Respondent , however, ad-
mits that the Bar list affects the beginning of a subsequent
employment relationship , since its effect is to prevent em-
ployment by its contractors , but asserts that inasmuch as
it is the contractor who is concerned with the employ-
ment relationship with his employees , the involvement of
his employees with the Bar list might be a subject which
that employer is required to bargain about, but not
Respondent . Furthermore , in an effort to distinguish the
instant bargaining subject from others which have been
held to be mandatorily bargainable , Respondent refers to
pension plans , which have been held to be a condition of
employment (citing Inland Steel Company v. N.L.R.B.,
170 F.2d 247 (C.A. 7), and submits that pension plans,
which cause the termination of employees , not only in-
volve them once they have become ex -employees, but
also deals with them in their relationship to their em-
ployer before the employment is over , whereas the Bar
list herein has no relation to the employees until after
their employment is over.
Conclusions
It is admitted that Respondent's employees who quit
may be placed on the Bar list solely in Respondent's dis-
cretion, based upon the employee's overall work record.
Accordingly, his future employment opportunities to a
large extent would depend upon what occurred during his
employment relationship and how it was appraised by
Respondent. Thus, Respondent's criteria and its applica-
tion in evaluating the employee's work performance are
determinative as to whether he will be placed on the Bar
list. The relationship between the cause and effect is such
that Respondent may not realistically or correctly con-
tend that the considerations affecting the Bar list come
into play only after the employee's termination, and
therefore are not related to the conditions of his prior em-
ployment. It is only the consequences of the Bar list,
which manifest themselves after the employment rela-
tionship terminates. In fact, the relation of the employee's
term of employment to the Bar list is comparable in many
respects to that between an employee's term of employ-
ment and his pension plan, which Respondent concedes
to be a condition of employment. The considerations ap-
plicable to employees, who quit and are placed on the Bar
list, apply equally to employees who are discharged for
violating company work rules. In either case the future
employment of members of the bargaining unit is
jeopardized. Thus, in Houston Chapter, Associated
General Contractors,15 the Board, in discussing hiring
halls for future employment as a mandatory subject of
bargaining, stated:
. employees who have been laid off by one em-
ployer are customarily desirous of employment with
others in the industry, and are still employees within
the meaning of the Act as they seek employment
with such other employers. Their obtaining of
further like employment will necessarily be regulated
by the operation of the hiring hall. Thus, those em-
ployees who are working in the industry and who
have a deep concern not only about the length of
their present jobs, but also about the opportunities
for continued employment elsewhere when they are
laid off, are clearly and directly affected by the job
priority standards established by the hiring hall."'
[Emphasis supplied.]
10 We do not mean to intimate, as the dissent implies, that the build-
ing and construction industry should receive special consideration in
this area Rather, we have only sought :o illustrate, by means of the
particular situation presented in this case, the involvement of all em-
ployees (those who are seeking employment as well as those who are
currently employed) with the hiring hall
I find, as explicated in the Houston Chapter case, that
in the instant case such members who are now working in
the industry have a deep concern not only about the
length of their present jobs but also about the opportuni-
ties for continued employment elsewhere when they are
laid off or quit. The obtainment of further like employ-
ment of such employees will necessarily be affected
and/or regulated by the operation of the Bar list. I, there-
fore, conclude that the Bar list is a mandatory subject of
bargaining on which Respondent is obligated to bargain
and its failure to do so violated Section 8(a)(1) and (5) of
the Act.
Respondent contends further that, assuming the Bar
list to be a mandatory subject of bargaining, it fulfilled its
bargaining obligations therein when properly
requested and to the extent requested. Thus, Respondent
maintains that it did discuss the Bar list by explaining its
purpose and stating some of the ground for placing an em-
ployee on it. Even assuming the adequacy of such infor-
mation, which was by no means complete for bargaining
purposes, it would not constitute bargaining within the
meaning of the requirements of the Act. At most, it would
constitute the presentation of incomplete information
about the list. With respect to this information Respond-
ent also asserts that it was Mr. Douglas, its administra-
tive superintendent, who was responsible for bringing up
the subject of the reasons for placing employees on the
list, and that Pipefitters never requested an exhaustive list
of the reasons. Either party during bargaining negotia-
tions may initiate bargaining over a specific subject, but
once the subject is raised voluntarily or otherwise, it is an
issue which must be bargainined over if insisted upon by
the other party unless it is a nonmandatory subject. I find
also that Pipefitters during the bargaining sessions at one
time or another raised the subject of the Bar list, its com-
position, maintenance, and revision, and conflicting
evidence on these matters is resolved and credited to that
effect.16 Furthermore, in addition to the testimony at the
hearing, the following documentary evidence is also in-
dicative of Pipefitters' requests for bargaining on the mat-
ter covered by the Bar list: the 13 contract proposals, par-
ticularly proposal 9, submitted to Respondent; the charge
filed and served on Respondent on June 24 setting forth
Pipefitters bargaining demand; Pipefitters' letter of
November 23 to Respondent reiterating and renewing its
bargaining demands; and the proposed new contract sub-
mitted by Pipefitters to Respondent on December 9 con-
taining a provision similar to its previous proposal 9. I
find further that Pipefitters' letter of November 23 and
15 143 NLRB 409 ,411-412
16 In fact, Respondent admitted that on one occasion Pipefitters
requested information pertaining to the reasons for placing employees on
the list The evidence also shows, and I find, that Pipefitters inquired as to
how long a name was retained on the list, and advanced reasons for
removing names
SHELL OIL CO.
the submission of its proposed contract on December 9
refute Respondent's argument that the supplemental con-
tract signed on September 20 constituted an abandon-
ment of its bargaining demands with respect to the Bar
list. The September 20 contract, despite its preamble set-
tlement language, was no more than a short-term com-
promise on what the parties could agree upon from all the
issues raised until they began negotiations on a new con-
tract. I, therefore, conclude that there is no merit to
Respondent's contention that it bargained to the extent
requested by Pipefitters.
Respondent also asserts that requests for information
relative to names and reasons involving persons outside
the bargaining unit were improperly made because its
relevancy was not demonstrated. It is settled law that a
union is charged with the statutory duty of representing
the employees in the bargaining unit and in the exercise
of that duty, it has a right to information as to wages, job
descriptions, and similar matters which are relevant to or
reasonably necessary in the discharge of its bargaining
obligation. Thus, wage and related information pertaining
to employees in the bargaining unit are presumptively
relevant and a union is not required to show its precise
relevance unless effective employer rebuttal is presented.
However, as to other requested data, a union must by
reference to the circumstances of the case, as an initial
matter, demonstrate more precisely the relevance of the
data it desires. 17
The information requested by Pipefitters relative to the
names of all individuals appearing on the list necessarily
includes the names of nonpipefitters and those pipefitters
formerly employed and discharged by Respondent's con-
tractors. These individuals were not members of Respond-
ent's pipefitters bargaining unit. Consequently, there is
no presumption of relevancy to such information. Ac-
cordingly, it was incumbent upon the General Counsel to
demonstrate the relevancy of the information sought to
the discharge of Pipefitters' duties as bargaining repre-
sentative of that bargaining unit. The only evidence
presented in support of Pipefitters' right to see the Bar list
was a statement by Business Agent Harrelson that he
knew of 20 pipefitters in addition to the 9 ex-employees
named by Respondent, who were on the list, and that,
therefore, Pipefitters was unable to verify who was on the
list without seeing it. However, when Respondent
thereafter submitted an additional list containing the
names of 57 ex-pipefitter employees of Respondent's
contractors, who were on the Bar list, Harrelson did not
reassert any other inaccuracies in the listing. Moreover,
I find that General Counsel did not carry the burden of
demonstrating the relevancy of the demand to see the Bar
list to Pipefitters' bargaining obligation. No evidence was
offered to show that Respondent's refusal to exhibit the
Bar list would have any impact on the working conditions
or terms of employment of the members of its bargaining
unit sufficiently relevant to establish that it was
reasonably necessary to Pipefitters' role as bargaining
agent in the administration of its collective-bargaining
contract with Respondent. Nor is Respondent's limited
control over the employees of its contractors of sufficient
import to establish such impact. Obviously, the informa-
tion concerning the names of employees of crafts other
than Pipefitters would have even less impact. I, therefore,
249
conclude that Respondent's bargaining obligation did not
include the disclosure of the names of employees other
than its own ex-employee pipefitters or the need to ex-
hibit the Bar list to Pipefitters.18 Accordingly, I shall
recommend that the allegations of the complaint be
dismissed insofar as they require Respondent to reveal all
the names appearing on its Bar list or to exhibit the Bar
list to Pipefitters.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operation of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and constitute unfair
labor practices to the extent indicated therein, which tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Upon the above findings of fact and upon the entire
record in the cases, I make the following:
CONCLUSIONS OF LAW
1. At all times material herein, Laborers and Pipefit-
ters have been labor organizations within the meaning of
Section 2(5) of the Act.
2. At all times material herein, Respondent has been
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. Respondent has not engaged in any of the violations
alleged in the complaint in Case 14-CA-3885.
4. The Bar list in Case 14-CA-4013 to the extent in-
dicated herein is a mandatory subject of bargaining.
5. By refusing to bargain with Pipefitters concerning
said Bar list or to provide certain requested information
concerning said list, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5).
6. By the foregoing conduct, Respondent has inter-
fered with, restrained, and coerced its employees in the
excerise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in unfair labor practices within
the meaning of Section 8(a)(1).
Respondent has not engaged in any other violations al-
leged in the compalint in Case 14-CA-4013, except as
specifically found herein.
THE REMEDY
In view of the findings and conclusions set forth above,
that Respondent has engaged in unfair labor practices
within the menaing of Section 8(a)(1) and (5) of the Act,'
I shall recommend that Respondent be required to cease
and desist therefrom, and take certain affirmative action
as provided in the Recommended Order below, which I
find necessary and appropriate to effectuate the policies
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the cases
herein, I shall recommend that Shell Oil Company, its of-
ficers, agents, successors, and assigns, shall:
17 See Curtiss-Wright Corp v N L R B , 347 F 2d 61 (C A 3)
18 Nor are the names on the list essential for bargaining purposes See
fn 1 1, supra
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Refusing to bargain collectively with Local Union
No. 553, affiliated with the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO, as the exclusive bargaining representative of
Respondent's pipefitters and pipefitter helpers employed
at its refinery at Roxana, Illinois, with respect to the com-
position, maintenance, and revision of a list maintained
by it containing the names of certain of its ex-employees,
referred to herein as the Bar list, which precludes the
listed ex-employees from admittance to and working at its
refinery.
(b) Refusing to furnish information relative to the
reasons for which ex-employees are placed on or
removed from the Bar list , the length of time their names
are retained on the list, and the identity of the ex-
pipefitter employees of Respondent who are placed on
the list.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to join, form, or assist the
aforementioned labor orgainzation or any other labor or-
ganization, to bargain collectively through representa-
tives of their choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection or to refrain form any and all
such activities.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act:
(a) Bargain , upon request, with Local Union No. 553,
affiliated with United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO, concerning
the composition, maintenance, and revision of the Bar list
and, if an understanding is reached, embody such un-
derstanding in a signed agreement; and, upon request,
furnish information relative to the reasons for which ex-
employees are placed on or removed from the Bar list, the
length of time their names are retained on that list, and the
identity of the ex-pipefitter employees of Respondent
who are placed on the list.
(b) Post at its refinery at Roxana, Illinois, copies of the
attached notice marked "Appendix."19 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 14, after being duly signed by Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by it to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.20
IT IS FURTHER RECOMMENDED that the complaint in
Case 14-CA-3885 be dismissed in its entirety; and that
the allegations in the complaint in Case 14-CA-4013 be
dismissed in so far as violations therein have not been
found.
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
20 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT refuse to bargain with Local Union
No. 553, affiliated with the United Association of
Journeymen and Appprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, AFL-CIO, as the exclusive bargaining
representative of our pipefitters and pipefitter help-
ers with respect to the composition, maintenance,
and revision of the list maintained by us containing
the names of certain of our ex-employees who are
precluded from entering and working at our refinery.
WE WILL NOT refuse to furnish information to the
above-named Union relative to the reasons for which
ex-employees are placed on or removed from the
aforementioned list, the length of time their names
are retained on said list, and the identity of our ex-
pipefitter employees who are placed on the list.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of their rights to self-organization, to join,
form, or assist the above-named labor organization
or any other labor organization, to bargain collective-
ly through representatives of their choosing, and to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion or to refrain from any and all such activities.
WE WILL bargain, upon request, with the above-
named labor organization as the exclusive bargaining
representative of our pipefitters and pipefitter help-
ers, concerning the composition, maintenance, and
revision of the aforementioned list and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
WE WILL, upon request, furnish the above-named
Union information relative to the reasons for which
our ex-employees are placed on or removed from the
aforementioned list, the length of time their names
are retained on that list, and the identity of our ex-
pipefitter employees who are placed on that list.
11 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
SHELL OIL CO. 251
All our employees are free to become or refrain from This notice must remain posted for 60 consecutive
becoming members of the above-named labor organiza- days from the date of posting and must not be altered,
tion , or any other labor organization. defaced, or covered by any other material.
SHELL OIL COMPANY
If employees have any question concerning this notice
(Employer)
or compliance with its provisions, they may communicate
directly with the Board 's Regional Office, 1040 Boat-
Dated By men's Bank Building , 314 North Broadway, St. Louis,
(Representative) (Title) Missouri 63102, Telephone 622-4167.