Sinclair Refining Co.

National Labor Relations Board - Board Decisions

Dec 30, 1963

145 N.L.R.B. 732 (N.L.R.B. 1963)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES
OF ANOPOLSKY & SON, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby give notice that:
WE WILL NOT threaten, coerce, or restrain Motts Supermarket , or any other
customer of Anopolsky & Son, Inc., by picketing, or threatening to picket, where
an object thereof is to force or require any such customer of Anopolsky &
Son, Inc., to cease using, selling , handling, transporting, or otherwise dealing
in products sold by Anopolsky & Son, Inc., or to cease doing business with
Anopolsky & Son, Inc.
LOCAL 559, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------ - By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees or members may communicate directly with the Board' s Regional
Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston , Massa-
chusetts , Telephone No. 523-8100, if they have any questions concerning this notice
or compliance with its provisions.
Sinclair Refining Company and Oil , Chemical and Atomic Work.
ers International Union , AFL-CIO. Case No. 03-CA-1499.
December 30, 1963
DECISION AND ORDER
On July 2, 1963, Trial Examiner Ramey Donovan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Intermediate Report. There-
after the General Counsel and the Charging Party filed exceptions
to the Intermediate Report and supporting briefs, and the Respondent
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner 's findings, conclusions,
and recommendations to the extent consistent herewith.
145 NLRB No. 68.
SINCLAIR REFINING COMPANY 733
The Trial Examiner recommended dismissal of the complaint herein,
which alleges that the Respondent violated Section 8(a) (5) and (1)
of the Act by its refusal to furnish data sought by the Union in con-
nection with the processing of certain grievances under the contractual
grievance procedure. While we do not adopt all of the Trial Exam-
iner's reasoning, we shall adopt his recommendation that the complaint
be dismissed in view of the facts that the parties had agreed to arbi-
trate the grievances and had selected the arbitrator; that the Re-
spondent expressed its willingness to supply any data the arbitrator
ruled was necessary; that the Respondent did furnish data in accord
with the rulings of the arbitrator; and that the arbitration hearings
on the grievances in question were completed before the instant case
came on for hearing before the Trial Examiner.
The decision not to issue a remedial order does not mean that we are
affirming the Trial Examiner's opinion that, as the Respondent sought
to channel the bargaining process within the framework agreed upon
by the parties in their agreement, there has not been a violation of
Section 8(a) (5) and (1) in this case. The Trial Examiner relied on
Hercules Motor Corporation 1 as establishing the proposition that a
union is not entitled to information which it seeks in a dispute over
interpretation of a contract provision. This reads more into Hercules
than was intended. In The Timken Roller Bearing Company,2 in
which the refusal to furnish the requested data was held to be a viola-
tion, Chairman McCulloch and Member Brown pointed out, in foot-
note 4, that the basic issue in Hercules was whether the matter in
dispute was arbitrable, and that the issue of arbitrability should be
decided by the arbitrator, not the Board.' Although arbitrability is
a matter of contract interpretation, Hercules did not hold that every
request for information in the context of a dispute over the meaning
of a contract provision may only be disposed of under the grievance-
arbitration process established by the contract. The existence or util-
ization of a grievance-arbitration clause does not relieve an employer
of its duty to furnish a union with information needed to perform its
statutory functions. Indeed, Timken specifically distinguishes Her-
cules in pointing out that the respondent in Timken had not met its
bargaining obligation when it denied information which was relevant
to the union's responsibility "in policing or administering a contract,
or adjusting a grievance." In any event, however, we deem it un-
necessary to determine whether there has been a violation of Section
8(a) (5) and (1) of the Act as the special circumstances adverted to
above impel us to the conclusion that it would not effectuate the poli-
' 136 NLRB 1648.
2138 NLRB 15.
1 See also Perkins Machine Company, 141 NLRB 98 (IR)
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cies of the Act to issue a remedial order in this case. Accordingly, we
shall dismiss the complaint.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Oil, Chemical and Atomic Workers International Union, AFL-CIO , herein called
the Union, filed a charge against Sinclair Refining Company, herein called the Com-
pany or Respondent, on September 26, 1962. The charge alleged a refusal to bar-
gain since on or about April 11, 1962, in violation of Section 8 (a) (1) and (5) of
the Act. Under date of February 20, 1962, the General Counsel of the Board, acting
through the Regional Director of the Twenty-third Region of the Board, issued a
complaint against Respondent . In substance , the complaint alleges that, since
April 11, 1962, Respondent has refused to produce, in response to requests by the
Union, plant and personnel records reflecting Respondent's past practices pertaining
to deductions from vacation allowances of employees in the bargaining unit. It is
further alleged that the aforementioned information is sought by the Union for the
purpose of processing and evaluating various grievances and that Respondent's re-
fusal to make such information available is violative of Section 8(a)(1) and (5)
of the Act. In its answer and in other pleadings, Respondent, in substance, denies
the commission of unfair labor practices.
A hearing was held before Trial Examiner Ramey Donovan at Houston, Texas, on
April 3, 24, and 25, 1963, with all parties represented and participating.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT COMPANY
Respondent is a corporation organized under the laws of the State of Maine, with
its principal offices located in New York, New York. Respondent refines and
markets crude oil and derivative petroleum products. In its business, Respondent
operates and maintains refineries in various States including , among others, re-
fineries at East Chicago , Illinois; Marcus Hook , Pennsylvania ; and Houston , Texas.
Respondent also operated and maintained a refinery at Corpus Christi, Texas, until
about May 31 , 1962 , at which time it ceased that operation.
In the 12-month period preceding the complaint, a representative period , Respond-
ent refined petroleum products valued in excess of $1,000,000 at its refineries in East
Chicago, Marcus Hook, and Houston. During this same period, Respondent sold
and shipped from each of said refineries , to points located outside the respective
States in which the refineries are located, products valued in excess of $100,000.
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1. The events up to and including March 23, 1962
Respondent and the Union have had a bargaining and contractual relationship for
over 20 years. A strike occurred in the summer of 1961 and an aftermath thereof
was a national agreement, effective July 27, 1961, between Respondent and the
Union. This is the contract that is pertinent to the issues in the instant case.
Article IX of the contract is captioned "Vacations" and it deals with that subject
in seven numbered paragraphs or sections. Section 6 thereof reads as follows:
Time lost through absences during which an employee is not in receipt of
wages shall be accumulated, and, if in the aggregate such absences equal or ex-
ceed twenty-two (22) scheduled work days, an employee's vacation allowance
or wages shall be reduced one-twelfth (M2th) for each twenty-two (22) work
days of absence. This provision, however, shall not apply to:
(a) Processing and handling of employees grievances and arbitration,
or
(b) Attending annual union convention, Employer national or supple-
mental contract negotiations or
(c) Leave of absence .
(d) [Waiting period of sickness and accident benefits plan).
SINCLAIR REFINING COMPANY 735
Article XXVI is entitled "Grievance and Arbitration Procedure" and under
"Definition" it is stated that "a grievance is defined to be any difference regarding
wages, hours, or working conditions between the parties hereto or between the Em-
ployer and an employee covered by this working agreement which might arise within
any plant or within any region of operations." The grievance procedure sets forth
the following steps: 1 (1) Employee aggrieved, either alone or with union commit-
teeman, takes up matter with his foreman; foreman must reply within 3 days; (2) if
matter remains unsettled employee submits grievance in writing to union employee
committee and latter group, if it believes the grievance is meritorious, may take up
the grievance with the local company superintendent or his representative who have
10 days to reply; (3) in event that the superintendent's reply is not satisfactory, the
president of the International Union or his designee may take up the grievance with
the Company's director of industrial relations or his designee, who shall render a de-
cision within 20 days; (4) if the last-mentioned decision is not acceptable, a local
arbitration board will be set up upon request of the president or district director of
the Union ; the local board consists of a person designated by the Union and a person
designated by the Company; and (5) in the event the two-man local arbitration board
cannot agree on a decision or agree upon an impartial third arbitrator, the Federal
Mediation Service is contacted and the third or impartial arbitrator is selected from
a panel submitted by the Federal Mediation Service; the decision of the impartial
arbitrator is binding
After the 1961 strike and following the execution of the contract, Respondent
applied article IX, section 6, of the contract, aforedescribed, to time lost during the
strike. On August 23 , 1961 , a grievance was filed in writing by an employee at the
East Chicago, Illinois, refinery. The grievance stated that because of the employee's
absence during the strike his vacation pay had been reduced one-twelfth (article IX,
section 6). The gravamen of the grievance was that the Company had denied the
employee's request to work the time equal to the reduction of his vacation allowance
Under step 2, as above described, the Company's East Chicago superintendent re-
plied to the local union representatives in writing The reply was in detail and gave
the reasons for the Company's position and denied the grievance.
It is perhaps helpful if the two positions regarding this grievance be summarized
at this point. Assuming for the purposes of illustration that the employee grievant
was entitled to a 3-week vacation, the Company said that the time he did not work
during the strike should be considered as "time lost through absences during which
an employee is not in receipt of wages" under section 6 and article IX. Under the
same section the one-twelfth reduction formula was applicable. Let us assume that
the formula in the particular case covered or wiped out 2 weeks of the 3-week vaca-
tion. The grievant said, in effect, that he should then receive 1-week vacation with
pay instead of 3 weeks and after his 1-week vacation he should be allowed to return
to work. The Company took the position that under the terms of the contract it
had the option to deduct from the employee either vacation time or pay. The Com-
pany had decided that it would deduct pay and not deduct time. Therefore, the
Company said to the employee, you must take your scheduled and normal 3 weeks'
vacation but you will receive pay for only 1 of the 3 weeks. As explained in its
letter to the Union on the above grievance, the Company stated that the matter of
reduction of vacation allowances or pay involved not only the particular grievant
but a substantial number of other employees at the East Chicago refinery; ". . .
were we to permit a large number of employees to take shortened vacations-
involving parts of workweeks-the resulting scheduling problems and other related
difficulties would be extremely, severe, and would unnecessarily burden the Company
with substantial added costs and operating inefficiencies."
By letter of September 25, 1961 , the Union , under step 3 of the grievance pro-
cedure, aforedescribed , appealed the grievance to the Company 's director of indus-
trial relations.2 The latter replied on October 13 and affirmed the prior detailed
exposition of the Company's position . The grievance was again denied.
On September 25, 1961, the union committee at the Marcus Hook refinery filed
a grievance regarding the Company's application of article IX, section 6, of the
contract to vacation pay of employees. Another employee filed a grievance at East
Chicago on September 27. Grievances were filed at the Corpus Christi refinery
on October 2 and 6. All these grievances dealt with the question of vacation allow-
ances as previously described.
i The numbering of the steps is my own and is not the exact format in the contract.
However , it is believed that the numbering corresponds to and reflects the various steps
2 The letter reads as follows : "We are this day appealing the above -mentioned complaint
to your office for further consideration . Enclosed you will find the necessary pertinent
data concerning the complaint."
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 4 and 5, 1961, according to the credible testimony of Macauley, a
member of the industrial relations staff in the Company's principal office in New
York, a meeting was held in Chicago. Present for the Union were Schafer, a vice
president of the International Union who operated out of the International's head-
quarters, one or more other representatives of the International Union, and approxi-
mately 15 local union committeemen from the East Chicago refinery. The Company
was represented by D'Alessandro, the director of industrial relations, and by about
four management people from the East Chicago refinery, as well as Macauley. One
of the matters discussed was the meaning and intent of article IX, section 6, of the
contract. Apparently there was some reference made as to what the transcript of
the 1949 contract negotiations showed, when the provision in question first appeared
in the contract. Macauley testified that both parties had received copies of the
aforementioned transcript. In any event, there was no demand for or refusal of
records or matters of that nature nor does issue appear to have been drawn between
the parties in Chicago on any item or items other than the basic fact that the Union
did not agree with the Company's position on article IX, section 6.
Having received the Union's appeal on September 25, 1961, from the super-
intendent's decision on the original East Chicago grievance, the director of industrial
relations, as we have seen, by letter of October 13, 1961, advised the Union that he
agreed with the position and the reasons set forth by the superintendent regarding
the grievance and he denied the grievance. On November 28, the Union advised
the Company that "we wish to place the above-mentioned complaint in arbitration
and that Mr. N. F. Schilling has been named union arbitrator." On December 1,
the Company replied -and said that the Company was designating Musser as company
arbitrator.
Macauley testified regarding a meeting at Philadelphia on October 19 and 20,
which had been called with respect to certain problems at the Marcus Hook refinery.
The Company was represented by D'Alessandro, local management people, and
Macauley. Schafer and 10 or 12 local union committeemen were present for the
Union. One of the items at the meeting was the Marcus Hook grievance. The parties
presented and argued their respective positions. Finally, Schafer suggested that the
parties expedite the arbitration of the case and the Company agreed.3 By letter
to Reed, acting chairman of the union committee at Marcus Hook, dated November
22, 1961, Macauley confirmed the mutual agreement to waive the appeal and pre-
arbitration steps of the grievance procedure "in order that the arbitration of said
complaint, as provided in article XXVI, section 7 of the agreement, may be expedited.4
This will confirm your advice that Mr. John R. Bullard will serve as the union
arbitrator and my advice to you that Mr. C. D. Musser is appointed the company
arbitrator." Reed acknowledged receipt of the above letter on November 22, 1961.
By letter of November 22, to the Federal Mediation Service, signed by Musser and
Bullard, the service was advised that the two arbitrators "have met and have been
unable to resolve the above mentioned grievance which has arisen under the terms
of the contract." The letter asked that steps be taken to designate a third arbitrator
as provided in the contract. The director of the Federal Mediation Service advised the
parties by letter of January 10, 1962, that Loucks was appointed arbitrator "to hear
and decide the matter [the Marcus Hook grievance] in dispute." 5
Loucks wrote to Musser and Bullard on January 13, 1962, regarding time and
place of hearing. On January 15, the Union notified D'Alessandro that it had selected
Young to replace Bullard as union arbitrator. Musser wrote Loucks on January 19,
with copy to Bullard and Young, discussing time and place of hearing, and advising
receipt of information that Young had been substituted, for Bullard. On January 31,
1962, Young wrote to Loucks, copy to Musser, that the Union did not wish to proceed
to hearing on the date previously discussed, the reason for this was because the Union
said that it wished to give serious consideration to a company suggestion that, since
the same issue was involved in other grievances, "time and money could be saved if
all these grievances could be disposed of in one single arbitration."
8 Schafer did not testify at the instant hearing.
4 Section 7 provides for the designation of a union arbitrator and a company arbitrator
by the respective parties.
5 Although the third arbitrator was In terms one of three arbitrators or the third arbi-
trator, he was in effect the arbitrator. The company and the union arbitrators were ad-
mittedly partisans. When they could not agree on the resolution of the grievance, the
matter went before the impartial arbitrator for decision. In the proceeding before the
impartial arbitrator, the two partisan arbitrators represented respectively, the Company
and the Union, and they were, in practice, at that stage, representatives or advocates for
those whom they represented.
SINCLAIR REFINING COMPANY 737
Having described the status of the original East Chicago grievance and the
Marcus Hook grievance, some reference is appropriate to the other grievances. The
second East Chicago grievance of September 27, 1961, was processed up to and
including the Company's director of industrial relations who denied the grievance
on December 21, 1961. The same is true of the October 2, 1961, Corpus Christi
grievance which was denied by the said director on December 15, 1961. On
December 15 the Union advised the Company that it wished "to proceed to arbitra-
tion" on the Corpus Christi grievance and named Fansler as union arbitrator. The
Company named the company arbitrator on December 27. Letters were thereafter ex-
changed regarding times and dates for the two arbitrators to meet . Substantially
the same description applies to the October 6 Corpus Christi grievance and the
Houston grievance of October 19, 1961.6 On February 27, 1962, the Union again
advised the Company that it wished to proceed to arbitration on the Houston grievance
and asked the Company to designate the company arbitrator.
If we now retrace events for a few weeks, we find that the Sinclair Nationwide Coun-
cil of the Union met in Houston on January 27, 1962.7 The matter of the vacation
deductions of employees, that was taking place, was important and the delegates
of the council considered the problem. At the time of the council meeting the
Marcus Hook grievance had been processed to the stage where Loucks, an im-
partial arbitrator, had been selected and where dates for the hearing before Loucks
were under consideration. The delegates from the various refineries considered the
matter of vacation deductions of such importance that they were dissatisfied with the
fact that the Marcus Hook grievance, a potential or actual precedent making
grievances, was proceeding to final arbitration with less than a highly skilled man
representing the Union. In short, the union arbitrator, who was scheduled to rep-
resent the union position before Loucks, was a rank-and-file employee from the
Marcus Hook refinery and not a skilled advocate. After discussion, representatives
of the council contacted Attorney James Wolf on January 29 and asked him to act
as the union arbitrator.8
Jenkins, an International representative of the Union, testified credibly that when
Wolf was contacted and retained pursuant to the aforementioned events, Wolf asked
the delegates present about the past history of vacations under article IX, section 6,
of the contract. The delegates said that to the best of their knowledge no employee
had previously been placed on vacation without pay. Thereafter, in order to secure
more precise information along the lines of past history, Jenkins, quite evidently
at Wolf's request, sent letters to the union committee chairmen at all the refineries
"asking them if they could develop facts in reference to incidents where employees
suffered vacation penalty." The net response from the chairmen was that it was
impossible for them to contact the several thousand of individual employees and thus
develop a thorough record. It also appears that the Union had no records of its own
that would give the type of information desired.
On February 2, 1962, a conversation took place between D'Alessandro and
Schafer.9 The nature of this conversation and developments therefrom is revealed
by a letter of February 5, 1962, from D'Alessandro to Schafer. The letter confirmed
the February 2 conversation involving article IX of the contract and the Marcus
Hook grievance and the other grievances relating to the same situation. The writer
then went on to recall the Philadelphia discussion on October 19 and 20, 1961,
about the Marcus Hook grievance, "at which time and at the Union's request, the
parties agreed to expedite arbitration of said complaint in light of the disagreement
with respect thereto. Accordingly . . . the Master Agreement's appeal step was
waived." Then follows a recounting of the selection of Loucks as impartial arbi-
trator and the continuing efforts to arrange a time and place of hearing. The letter
refers to the fact that since the other grievances arise in the same circumstances,
9 The Union advised the Company on December 26, 1961, that it had designated Attorney
Wolf as union arbitrator 'for the Houston grievance and that "the Union desires to proceed
to arbitration with the above grievance "
7 The council is composed of employee representatives of 23 local unions covered under
the master contract between the Company and the Union.
8 The council delegates had also decided to recommend consolidation of the cases and to
pay the cost of arbitration . These matters were subsequently adopted and ratified.
e Although neither D 'Alessandro , the Company ' s director of industrial relations, with
his office in New York, nor Schafer, vice president of the International Union, with his
office at union headquarters in Denver , were the highest officers in their respective organi-
zations, they were, on the type of matters involved herein, for all practical purposes the
two top men with which the Union , on the one hand, and the Company, on the other , dealt.
734-070-64-vol . 145-48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"we advised you during our conversation of our willingness to consolidate with the
aforesaid Marcus Hook case . . . before Mr. Loucks, all vacation application com-
plaints now outstanding ...." There is then enumerated the other grievances that
would be consolidated (two from East Chicago; one from Houston; three from
Corpus Christi). "Since union desires to expedite this matter and since article XXVI
has already been employed to select the arbitrator for the Marcus Hook case, we
believe the procedure outlined herein will permit prompt resolution of the outstanding
complaints." Reference is then made to the fact that this proposal is consistent with
prior situations in which related grievances were consolidated before one arbitrator
and it is stated that "under our Master Agreement relationship the determination by
arbitration of an issue under said agreement at one operation or location has applica-
tion to the same issue at other covered locations." The penultimate paragraph and
the last on the basic subject of the letter is "will you please promptly advise us
of the Union's position on the procedure outlined herein and the presentation of
the issue."
On March 23, 1962, Schafer sent the following telegram to D'Alessandro:
I am now prepared and willing to consolidate the arbitration cases mentioned
by number in your letter of February 5, dealing with the matter of vacation
penalties from your Marcus Hook, East Chicago, Houston, and Corpus Christi
refineries. We are agreeable that this case be heard before Mr. William Loucks
at the agreed-to place of Kansas City, Missouri. Further understood that each
party will plead its own case and contentions. We are now substituting Mr.
James P. Wolf [address] as Union's arbitrator to replace Mr. James L. Young.
I suggest your arbitrator contact Mr. Wolf so they may work out final
arrangements with Mr. Loucks.
2. The events subsequent to March 23, 1962
On April 11, 1962, Wolf made the first union demand on the Company for the
production of records. In a letter of that date to Musser, the company arbitrator,
Wolf replied to a letter from Musser. Because of other engagements, Wolf stated
that he could not "undertake arbitration of the above captioned grievances [all the
vacation grievances previously described]" in May. Wolf said that he understood
that all the grievances "have been consolidated into one arbitration case." He sug-
gested that he and Musser meet to work out some of the problems that could arise
in submitting the cases to the arbitrator at a point removed from the various plant
locations. "In addition . . . I feel that we, as the local arbitration Board, should
meet to explore all of these cases to see if there is any possibility of a mutually
agreeable decision. Here again, I am not fully informed as to what has occurred
in the past."
Before meeting, however, it is my opinion that we must both have certain
information before us which I regard as material and essential to the determina-
tion of these grievances. I refer in general, to the past practice in cases where
employees did not receive their full vacation allowance due to loss of time in
excess of twenty-two scheduled work days . . . . The key question as to any
case where a loss in vacation allowance or pay occurred because of the penalty
provision in section 6, is how the cases were handled. Specifically, I refer to
when the employee started his vacation and when he came back to work by dates
to be compared with the exact vacation allowance he would have been entitled
to if no penalty had been assessed. This material is in your personnel and plant
records and wholly within your control; however, it is essential that we both
have access to it to evaluate the grievance ... and for the further reason that
the records on this point may warrant a determination that the grievance should
be settled or withdrawn.
The letter went on to suggest that the union committee at each plant be given access
to the records for copying or that a joint union and management committee make
an abstract of all pertinent cases. It was stated that the Union would bear the
expense of copying records. "Once these facts are developed, I suggest that we meet
and consider them together with the consolidated grievances with a view to disposal
of them by mutual agreement, if at all possible. In the event we are unable to agree,
we can then proceed to work out our procedure on the consolidated cases."
Musser answered Wolf on May 2, 1962. He stated that it was his impression
"that the Union had already evaluated the cases in terms of its desire and readiness
to proceed to immediate arbitration ...... Musser then referred to D'Alessandro's
letter of February 5 and Schafer's telegram of March 23, as reflecting "the parties'
SINCLAIR REFINING COMPANY 739
agreement to proceed to arbitration and to consolidate the seven listed comp-
laints . . . for hearing before Mr. Loucks ." and stated, "I believe this covers
your question as to consolidation . .-. . I believe it also covers the matter of prior
adjustment efforts and of the submission." The letter then stated:
The contract vacation application made in connection with the 1952 strike
is a matter of record, which as I understand it, is within the knowledge and
possession of the locals and the international union. The application made in
connection with the 1961 strike is set forth in the answers to the complaints
[grievances] and the facts . are also within the Union's knowledge and
possession. Further, the matter of the application of vacation policy procedure
in general was discussed in a letter to International Union Representative Jen-
kins under date of September 20, 1961, and, I think, answers your inquiry with
respect thereto . review of the record of each individual employee having
such a deduction is not necessarily to the determination of the issue.io
The letter then repeats that as a result of discussions with Schafer and Jenkins the
Company believed that the Union had "determined to seek review of its position in
formal arbitration and against withdrawal of the complaints [grievances]." Musser
said, however, that if the Union, on the basis of information referred to, wished to,
it could withdraw the grievances. "In the light of the foregoing, I see no need for
our review of such records at the plants or for conferences between local manage-
ment and union representatives as you suggest." Musser said that he was prepared
to meet with Wolf at a prearbitration conference, however.
On May 24, 1962, Rentfro, general counsel of the Union, wrote to Musser. He
stated:
.. . it is our position that neither the contract language nor many years of
past practice supports the Company's unilateral determination in this case to
force an employee to take a longer vacation than that for which he is being
paid. . Previous application of section 6 to time lost without pay is crucial
information needed by the Union.
It was then stated that the information requested by Wolf was material and essential
and that it was in the possession of the Company and not in the Union's possession.
The information was again requested. "It would greatly facilitate the handling of
this matter and is essential information to be evaluated by the Union Arbitrator
prior to his meeting with you as company arbitrator to explore a possible agreement
or decision."
Musser answered Rentfro, with copy to Wolf, in an extended letter of June 12,
1962. It was stated:
It would clearly appear that the information possessed by Messrs. Schafer and
Jenkins, reflected in part by your reference to "many years of past practice,"
local union officers, and complaints in the Union's files . . . the matter of vaca-
tion policies and applications as discussed in prior negotiations and the two
Sinclair Master Agreement Vacation case awards (Klamon and Quinlan), the
union arbitrator has or has available to him through these sources the relevant
and necessary information for his evaluation and for trial of these complaints.il
11
Musser's reference, above, is to a letter written on September 20, 1961, from
D'Alessandro to Jenkins in response to a letter from the latter regarding article IX, sec-
tion 6. In his letter, D'Alessandro referred to Treasury Department Instruction 14, first
issued by the Company to its own staff in 1949, with a copy to the Union. The instruc-
tion dealt with the manner in which various sections of the contract were to be applied.
In the section dealing with "Vacations" it is stated that if an employee lost in the
aggregate 22 working days "the employee's vacation time or wages is to be reduced one-
twelfth . . . " Also, in his letter to Jenkins on September 20, in addition to the refer-
ence to the Treasury Department instruction, D'Alessandro said that "Company has the
option to make the appropriate deduction from an employee's vacation allowance . . . or
his vacation pay . . . "
11 The Klamon award referred to by Musser was a decision by an arbitrator of that name
in 1949. Briefly stated, there was involved therein a grievance regarding the Company's
right to require an employee's vacation to start on a Monday and the Company's right to
require an employee substituting for another to work the same hours as the latter.
Apparently, the portion of the decision that Musser considered relevant (although he did
not point this out) was the following portion of the decision: "The Company does have
every right unilaterally to schedule vacations in such a manner as to comply with the
terms of the contract . . . and . . . to minimize the necessary financial burden. In the
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Among other things, Musser discussed a prior case involving the parties which
Rentfro had cited in his letter. He then stated:
Here, as in the above-referenced Corpus Christi case, Company is ready and
willing to submit this matter of contract interpretation and the production of
relevant and necessary information which may be available to the Impartial
Arbitrator. We have been so willing to proceed to arbitration promptly since
shortly after the meeting with Mr. Shafer and union on October 20th at Marcus
Hook when the Union advised, in light of a basic disagreement on contract
interpretation, that it desired to so pursue the matter expeditiously. The Com-
pany has never to my knowledge . . . declined at the hearing to furnish or make
available any relevant and necessary information when requested by an Im-
partial Arbitrator, nor will it do so in this case . I suggest that if Mr. Wolf
finds a "pre-arbitration" meeting necessary and desirable to clarify this or other
aspects of this matter , he contact me with reference to such meeting ... .
Wolf wrote a long letter to Musser on August 6, 1961. He dealt with the company
offer to produce records at the arbitration proceeding and said that this was "a nega-
tion of the concept that the grievance procedure before arbitration is a vital part
of the collective bargaining obligation." The letter said that if the Company per-
sisted in its position it would be necessary to file unfair labor practice charges. It
was stated that the Company had "never given us a clear-cut answer or refusal to
furnish the material requested . . . . Accordingly you are again requested to make
available all plant and personnel records for the past ten years which show continuous
service and absences during which an employee is not in receipt of wages for em-
ployees in the bargaining unit . If you keep specific records on vacation allowances,
we also request access to these records for the same period We are interested
in past practice on vacation allowances." Wolf denied that the Union had the
necessary information. He referred to the fact that D'Alessandro in his letter to
Jenkins on September 20, 1961, had stated, in justification of what the Company had
done on vacation deductions after the 1961 strike, "that the historical applications
and interpretations herein set forth are fully consistent with the requirements of
Section 6 and at the same time are reasonable and fair . Wolf stated that it
was these very historical applications and interpretations that the Union was seeking.
He said that "my information in this regard is completely at variance with Mr.
D'Alessandro 's statement . But there is no need to have a disputed issue of fact on
this since the records will show exactly what has been done in the past in regard
to vacation penalties . This is the crux of the matter ...."
Musser, on August 21, 1962, replied to the above letter from Wolf. Musser re-
ferred again to the Company's belief that the Union had wished to expedite arbitra-
tion but said that with Wolf's advent the matter had come to a halt, a result that
could have been avoided if Wolf had submitted his request to the arbitrator in the
arbitration proceeding . It was also stated:
We have emphasized that your request involves the contract interpretation
question to be decided by the Impartial Arbitrator, i.e., Union's interpretation
as against the Company 's interpretation, and, accordingly, therefore , we decline
your request to now make available to the Union in advance of the hearing
extensive records and data which we do not regard as necessary to a determina-
tion of the cases.
The Union filed the instant charge on September 26, 1962. Wolf had written to
Musser on September 21 explaining that the Company's stand had necessitated the
absence of a clear affirmative provision in the Master Agreement contrary to the foregoing
there does not appear to be any basis whatever , in the present agreement between the
parties upon which the contention of the Union can possibly be sustained."
The Quinlan award was handed down in 1960 by Arbitrator Quinlan. It dealt with the
subject of vacation scheduling . Here again , although not pinpointed by Musser , he evi-
dently believed that the following language was pertinent : "The fact that the previous
vacation scheduling policy existed for twenty-five years prior to the 1960 change makes
understandable the Union ' s feeling that they had a vested right or interest in such policy.
However, arbitrators have almost unanimously held (and this arbitrator believes cor-
rectly ) that where a past practice which originated solely through the exercise by man-
agement of a proper managerial prerogative , that this could not be properly construed as
vesting a right in the employees thereby, and that management has the same discretionary
right to change the practice which it had in establishing it."
SINCLAIR REFINING COMPANY 741
filing of charges and "also left us with no alternative other than to proceed to
arbitration since it is obvious that the Union and/or its representatives cannot
function intelligently in the absence of the needed data."
On October 9, 1962, Wolf wrote to Loucks advising him that he was filing with
Loucks a motion for the production of certain records and/or copying. The enclosed
motion requested an order from the arbitrator requiring the Company to produce
and to permit the Union to inspect or copy "all accounting and personnel records
which show continuous service, absences with and without pay and all records
specifically vacation pay, allowances and penalties or reductions for the years of
1961 12 through and including 1962, for all employees within the Refining Company
bargaining unit" as defined in the contract. It was also moved that production of
the records be ordered for at least 2 weeks before the arbitration hearing in order
to afford the Union a reasonable time to inspect or copy. In the letter to Loucks,
accompanying the motion, Wolf had said that if the records were not produced prior
to the hearing the Union would renew its motion at the hearing together with a
request for 2 weeks' continuance in order to inspect and copy the records.13
The Union's motion for production of records was argued by Wolf and Musser
before Loucks on November 16 in Philadelphia. Wolf, of course, argued for the
motion and Musser against. Loucks did not rule directly on the motion nor did
he issue an order. After hearing the arguments, Loucks indicated that he believed
that the Union's request "for records, rather comprehensive in their coverage for
all those installations, going back some ten years" would have to be dropped.
Musser had stated that substantially all the company records were not available
for a period of more than 5 years back. Loucks gave some indication that he
thought records going back about 3 years would be sufficient. Loucks then sug-
gested that the Union proceed to show what it alleged constituted a past practice
of the Company regarding deductions and that the Union do this with such evidence
as was available to it. Loucks stated that he realized that the Union did not have
records of this past practice such as the Company had in its possession and therefore
the evidence from the Union was not expected to be all embracing for each refinery.
In reply to a query by Wolf, Loucks, with the concurrence of Musser, said that if
a local representative of the Union testified that he had spoken to employees at a
particular refinery regarding instances of Company past practice and the representa-
tive testified at the arbitration hearing as to what he had thus ascertained regarding
past practice, the testimony would not be excluded as hearsay. Loucks also stated
that if, after the Union had put in its evidence of asserted past practice as best it
could, he, Loucks, felt that the evidence created a presumption that there was a past
practice of the nature claimed by the Union, he would then feel that it was incumbent
upon the Company, in order to rebut the presumption, to come forward with rather
comprehensive data. In view of the fact that the Company had certain records in
its control and possession, Loucks indicated that he believed that the burden of
rebuttal could not be sustained by the Company with the same type of catch-as-
catch-can evidence as the Union might have been allowed to develop.
The arbitration hearing was thereafter held in Kansas City in two sessions,
January 31, February 2, and March 9 through 12, 1963. The Union introduced
testimony of employee union representatives from the various refineries. They cited
specific instances in the past where employees, who had sustained vacation penalties,
had been permitted to work the time reduced and had not been obliged to take
their full vacation time without pay including the part of the vacation time that
they had lost by penalty.
The Company presented, through witnesses, a tabulation purporting to show all
vacation deductions made under article IX, section 6, since 1956. The tabulation
was based on company records and it showed whether the deduction had been made
in vacation allowance or wages. The witnesses testified regarding their respective
roles in preparing the tabulation and the original records on which the information
was based were offered to Wolf for cross-examination. Generally speaking, Wolf's
position in the course of the hearing was that records should be made available to
the Union and to him earlier than at the end of the Company's direct examination
12 This was a typographical error and the year intended was 1951.
13 During the course of letterwriting between Wolf and Musser and Rentfro , previously
described , dating from April 11, 1962, each writer had sent a copy of his letter to Loucks,
who was thus presumably not unfamiliar with the situation that existed.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of witnesses. His position is further illustrated, as is that of the arbitrator and the
Company, from the following excerpt from the transcript of the hearing:
[There had been a colloquy about some records relevant to a company
witness' testimony]
Mr. WOLF: Now when I say the records, I mean all the records. I don't
mean a few records fished out of all of it. We would like to take a look at all
of them.
Mr. Loucxs: I think we will have to meet this point when we come to it.
Mr. Musser, I think, is taking the position that he ought to be permitted to
offer what he wants to first and then as always it will be the privilege of the
Union to make a motion for something more.
There was an instance where the parties agreed at the hearing that two union
representatives could examine records of the Houston refinery in advance of cross-
examination but the agreement also provided that the aforesaid representatives would
not communicate with Wolf until 30 minutes before Respondent's witness was to
take the stand. This agreement was carried out. Apparently the Company produced
no records relating to vacation penalties assessed against employees as a result of
layoffs although the Union's testimony had dealt in part with such situations. As far
as appears, the Company's position was that layoff matters came under article IX,
section 5, of the contract and were not germane to section 6 matters that were
involved in the arbitration.14 Notwithstanding its expressions of position on various
aspects of the evidence at the hearing before Loucks, the Union did not request
additional records from the Company although advised by Loucks of its right to do
so and it did not renew the motion for records, previously made to Loucks before
the hearing.
3. Analysis and conclusions
Since the facts have been set forth in detail heretofore, it is unnecessary, at this
point, to repeat them with the same amplification. The evidence of the events up
to and including March 23, 1962, persuades me that there is no conduct of the Re-
spondent in that period that is violative of the Act. Without commenting on the
merits of Respondent's position regarding vacation deductions, I am of the opinion
that Respondent fully performed its obligations both under the Act and under the
grievance machinery of the contract. Respondent explained its position, not only in
writing at the various steps of the grievance procedure, but also met with union rep-
resentatives on several occasions to discuss the vacation deduction policy. Basically,
Respondent's position was that under article IX, section 6, of the contract it had
the option to deduct either vacation time or wages where deductions were called for
by the contract. Various employee grievants and the Union disagreed with this
position of the Respondent.
The Marcus Hook grievance had been processed through the grievance procedure
to and including the last step. The two partisan arbitrators, representing the Union
and the Company, respectively, had agreed that their positions could not be rec-
onciled and that the matter would have to be resolved by a third party. They there-
fore had taken the contractual steps to place the entire matter before an impartial
arbitrator. The latter, Loucks, was designated "to hear and decide the matter in
dispute." Steps were taken to fix a time and place of hearing. The hearing did not
come to immediate fruition because the Union was considering the Company's sug-
gestion for consolidation of the other grievances on the same subject. Another
reason for delay was that the union arbitrator in the Marcus Hook case, who
would represent the Union in the hearing before the arbitrator, was a rank-and-
file employe. The various delegates in the Union's nationwide council were concerned
that the aforesaid union arbitrator from Marcus Hook was less than the best man to
represent the Union in the arbitration hearing. This deficiency was remedied by
substituting Attorney Wolf as the union arbitrator in place of the Marcus Hook
arbitrator and by deciding that all the grievances would be consolidated with the
Marcus Hook case, with Wolf thus becoming the union representative in the con-
solidated hearing before Arbitrator Loucks.
"Section 5 reads:
Any employee laid off through reduction of forces or for any reason beyond his
control and reemployed within one (1) year shall be considered a regular employee
in regard to vacation rights but shall forfeit one-twelfth 012th) of his vacation pay
for each month lost during the year. No employee shall be forced to take his vacation
due to ashutdown.
See section 6 previously set forth in this report
SINCLAIR REFINING COMPANY 743
The evidence warrants the conclusion that when the other grievances were
consolidated with the Marcus Hook case the consolidated proceeding was at the
stage, previously described, of the Marcus Hook case. The consolidated case was
at the stage of arranging a time of hearing with the appointed arbitrator, Loucks,
and with Wolf as the union arbitrator who would, with Musser and Loucks, work
out the details of time of hearing and who would, as an advocate, represent the
Union at the hearing. The March 23, 1962, telegram of Schafer to D'Alessandro, as
well as other evidence, fully bears out the aforesaid observations. Schafer's tele-
gram states that the Union is agreeable to consolidation and to have the consolidated
case heard before Loucks and "each party will plead its own case and conten-
tions," with Wolf representing the Union. Schafer suggested that Musser contact
Wolf "so they may work out final arrangements with Mr. Loucks."
As previously indicated, the evidence persuades me that over a period of 7 months
the parties had evaluated their positions; they had bargained, discussed, and explained
their positions to each other and they had been unable to resolve their differences.
Their basic point of disagreement was over the Respondent's position that by the
terms of the contract it had the option to do what it had done regarding vacation
wage deductions and the Union's disagreement with this position. Both parties
were in full agreement that they had, in effect, exhausted all avenues of their con-
tractual grievance procedure and that the matter should be resolved by an impartial
arbitrator. The latter was selected and details for the hearing were under discussion.
Quite apart from various legal views as to the relationship of the Board and the Act
to contractual grievance and arbitration provisions and proceedings, there is a
persuasive practical and equitable logic for concluding that parties, who have con-
tractually provided for arbitration and who have in a particular case followed the
procedures of the contract and have in the same case approved and agreed on arbitra-
tion as the means of resolving their disagreement, should proceed to do this very thing.
A corollary or an inherent part of this line of thought is, that having arrived at the
arbitration stage, the parties should refer to the arbitrator problems of procedure
and evidence that then arise and that these matters are the concern of the arbitrator
and no one else.
The instant case is one where the demand for records was made for the first time on
April 11, 1961, well after the grievance had reached the posture I have previously
described, i e , after exhaustion of the grievance procedure and after the decision
to arbitrate and the selection of the arbitrator 15
Approaching the matter from a slightly different angle we can consider various
views about the relationship of Section 8(a) (5) of the Act and the obligations of the
parties thereunder. Conceding that the obligation to bargain is a continuing process,
one line of thought is that when the parties have agreed contractually on a grievance
procedure with binding arbitration, the bargaining obligation has been channelized
into the grievance and arbitration procedure and the bargaining obligation is fulfilled
by the functioning of the grievance arbitration procedure Since the parties have
agreed that the arbitrator's decision shall be final and since he must decide about the
sufficiency of the evidence necessary for a fair decision, questions of the necessity.
relevancy, and materiality of evidence are for the arbitrator and by the nature of
the arbitration process and the inherent power stemming from the arbitrator's au-
thority to render a binding decision. he has the Hower necessary to his function.
This view would of course reject the Board or the courts as either monitors or
auxiliaries of the grievance arbitration process
Another line of thought, stressing the preeminence of the Act over any private
arrangement or contract and emphasizing the continuing obligation to bargain.
would have the Board and the courts pass upon and insure the same conduct by the
parties in a grievance arbitration context as in situations where such a grievance
arbitration contract did not exist The Board would, in effect. monitor the grievance
arbitration process and would pass upon the conduct of the parties therein, including
the necessity, materiality, and relevance of evidence, and leave to the arbitrator the
function of rendering a decision on the record thus monitored by the Board.
16 What parties have done is a fact. The fact of what the parties did prior to April 11,
1961, is one thing and Is not altered by another fact namely that they could thereafter
presumably do a number of other things. Nor is the fact of what the parties had done in
7 months, Including March 23, 1961, altered by another fact, the substitution of Wolf as
union arbitrator or representative. If, today, Attorney X was substituted for Wolf as
union attorney, It would not alter the facts in the case or place him In any position ex-
cept in the shoes of Wolf as to past events, although his views or approach or interpreta-
tions might differ as to present or future action.
7 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another approach would hold that the parties must bargain in their direct dealings
with each other during the grievance processing stage and the Board will apply its
statutory standards to their conduct. But when the two parties have exhausted the
grievance procedure stage, where they are the sole participants, and the matter has
come to the arbitration stage, the Board will leave the parties to their chosen forum,
the arbitrator. On such matters as demands for data or records at the grievance stage,
the Board will decide whether the material is relevant and necessary and required
and whether or not nonproduction of such records warrants a conclusion that there
has been a violation of Section 8(a) (5) of the Act. Or, perhaps, the Board can pass
on relevance and necessity in a less definitive manner and state that the records or
data sought are reasonably or arguably relevant or are not clearly irrelevant. Thus,
on matters of Federal or State jurisdiction the Supreme Court has adopted such a
test of reasonable arguability.16
Coming back to the evidence in the instant case, we find that the first requests
by the Union for records occurred on April 11, 1962, and thereafter. Wolf and
Rentfro in such requests spoke of the need to have the records in order to evaluate
the grievance, i.e., to decide whether the grievance issue in the consolidated case
was or was not, in the Union's opinion and from the Union's standpoint, valid or
supportable or whether it should be "settled or withdrawn."
I assume that a grievance can be settled or withdrawn at any stage and I also as-
sume that, whenever a party receives additional information bearing on a matter in
issue, it evaluates the information and evaluates its position in the light thereof. But
I am not persuaded that the Union and the Company had not thoroughly evaluated
their positions well before April 11, 1961. I am also of the opinion that the grievance
was not at the stage where, after appeal to the director of industrial relations, the
parties then appointed a union arbitrator and a company arbitrator, respectively,
and the two arbitrators were to meet and discuss the grievance and, then, if they
could not agree on a settlement of the grievance, they were to take steps to secure
an impartial arbitrator. These steps had been taken and the arbitrator had been
selected to hear and decide the issue. It is unnecessary to decide, I believe, whether,
in view of all the circumstances and viewed realistically, the requests for records
were more in the nature of a discovery attempt in preparation for the arbitration
hearing rather than a request for data for bargaining purposes. I assume that Wolf,
who personally entered the picture after the Union and the Company had decided
upon arbitration, in good faith believed that he needed the records and that they
would be helpful and that he would use them in his client's interest in discussions
with the Company and/or at the hearing.
But if we now posit the entire situation in a manner more favorable to the Gen-
eral Counsel and the Union and assume that it is too rigid an application to say
that the merits of the Union's requests for records should be affected by the time
of the requests or by past events, we have the following considerations: 17
The Company's basic position was that under the terms of article IX, section 6,
of the contract, it, in its discretion, had the option to deduct wages or time in effec-
tuating vacation penalties; that past practice was irrelevant since, as it believed, its
interpretation of the contract was correct. Moreover, according to the Company,
past practice, as the Union knew, was consistent with the Company's 1961 action,
and, in any event, the Company would abide by the arbitrator's rulings as to evidence
19 "We need not and should not now consider whether the petitioner's activity in this
case was federally protected or prohibited, or any of the theories suggested abovei or on
some different basis. It is sufficient for present purposes to find, as we do, that it is
reasonably `arguable' that the matter comes within the Board's jurisdiction " Local 100
of the United Association of Journeymen and Apprentices v. H. N. Borden, 373 U.S 690.
To the same effect, Local 207, International Association of Brvige, Structural and
Ornamental Iron Workers Union v. Jacob Perko, 373 U S. 701. Cf N L R B v. Yawman
& Erbe Manufacturing Co , 187 F 2d 947 (C A. 2), to the effect that in contract negotia-
tions a union is entitled to data unless "it plainly appears irrelevant." It is it further
step to conclude that failure to produce arguably relevant material or material that is
not clearly irrelevant constitutes a violation of Section 8(a) (5) of the Act. N.I. R.B. v.
Truitt Mfg. Co., 351 U.S 149; N.L.R.B v. F. W. Woolworth Co., 352 US 938; N L R B
v. American National Insurance Co, 343 U.S. 395; NLRB. v Insurance Agents' Inter-
national Union, AFL-CIO (Prudential Insurance Co ), 361 U S 477.
17 Although, in its responses to the requests for records the Company repeatedly said
that it was of the opinion or believed that the Union had previously evaluated the griev-
ance and had determined on prompt arbitration, the Company also gave additional reasons
why it considered the records irrelevant and unnecessary.
6
SINCLAIR REFINING COMPANY 745
sought by the Union. The Union asserted that "it is our position that neither the
contract language nor many years of past practice supports the Company's unilateral
determination in this case ." 18 But the Union said that it wanted the complete
records in order to evaluate them and possibly to reach agreement with the Com-
pany or withdraw or settle the grievance.
As I understand the existing law, a violation of Section 8(a) (5) of the Act may
be found where, in the, circumstances of the case, it is found that a refusal to produce
relevant and necessary data is evidence from which it may be concluded that there
has been a refusal to bargain in good faith.19 The General Counsel and the Union
argue that such a finding should be made in this case. All parties were at great
pains to impress upon me at the hearing that I should not pass upon the merits of
the grievance in dispute and that the merits were not before me. The General Coun-
sel and the Union have vigorously argued that the data sought by the Union was
relevant and necessary to the grievance issue. Thus, in his brief, the General Coun-
sel asserts that the grievance "challenged the Company's application of Article IX
of the National Agreement" and "the relevancy and necessity of the information
sought by the Union cannot be seriously questioned" because it would enable the
Union "to intelligently process and evaluate the grievance . . " 20 If the Com-
pany's interpretation of the contract, namely, that article IX, section 6, ". . an
employee's vacation allowance or wages shall be reduced one-twelfth (1/12th) for
each twenty-two (22) work days of absence," means that the Company has the
option to reduce vacation allowance or wages, is correct, the relevancy and ne-
cessity of records showing instances of how the option had been exercised in the
past is at least open to question. Apparently because of their position (and the
Company's) that the merits of the grievance were not before the Trial Examiner,
the General Counsel and the Union have not told me exactly how they interpret
the contract. I know that the Union did not agree with the Company's interpretation
and I believe that their position, at least in part, was and is that the employee and
not the Company had the option of taking either a lesser number of days in vacation
with pay or of taking his full vacation number of days but without pay for some of
the vacation thus taken; or their position was and is that the contract is ambiguous 21
Relevancy and necessity of records of past practice is thus dependent upon a number
of considerations.
Although in the Hercules Motor Corporation case 22 the company took the position
that the union was not entitled to certain data and access, on the ground that the
purpose of the grievance and the data and access was to protest the fairness of the
rate set by respondent whereas the union's right under the contract was to question
only whether the rate was fixed in accordance with past practice, the basic issue, as
stated by the Board, was that "the Union's grievance involved a dispute concerning
interpretation of the contract provisions . .. In the instant case, also, the griev-
ance involved a dispute concerning interpretation of the contract provisions. As
in Hercules "the contract provides machinery devised by the parties themselves
for settling such dispute." In my opinion, the rationale of the Hercules case is
applicable to the instant case and "it would not effectuate the policies of the Act for us
to intervene in the case " The rationale is not applicable to situations where informa-
tion is relevant to a union's task in negotiating a contract or where the union bargain-
ing agent and the employer do not have a grievance arbitration procedure in their
contract; but, where the grievance involves a dispute concerning interpretation of the
contract, I am unable to see why a statement of the employer (who can say what he
wants to), that a grievance is or is not cognizable as a grievance under the contract,
should affect the basic conclusion that the interpretation of the contract as to whether
18 Rentfro's letter of May 24, 1962, supra; Wolf said substantially the same thing in his
letters.
19 N L R.B. v. Truitt Mfg. Co., 351 U S. 149; NLRB. v. F W. Woolworth Co., 352
U.S. 938.
20 Rentfro, in his May 24, 1962, letter stated, " . . among other things, the Union is
challenging the method used by the Company and the interpretation placed by the Com-
pany in applying Section 6 of Article IX of the Master Agreement "
21 It is probable that the Union is also taking the position that article IX, section 6, does
not apply to strike situations (".. . the Union had reason to believe that the Company
was infringing upon employees' contractual rights by considering absences due to strike
in reducing vacations . . . ." General Counsel's brief, p. 7.). Apparently, prior to 1961,
there had been a strike in 1952. Both parties appear to have known what the Company
did regarding vacations in the immediate poststrike period in 1952, with the Company, in
1962, arguing that 'the past had nothing to do with its right under the contract to exercise
its option.
22136 NLRB 1648
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the dispute is a "grievance" or whether one or the other interpretation of the contract,
regarding the grievance, is correct, should be left to the arbitrator under the "ma-
chinery devised by the parties themselves for settling such a dispute."
There is no question in my mind that in the instant case the competency and fair-
ness of the arbitrator should be presumed. The circumstances would be exceptional
where such a presumption would not exist. Competency and fairness include the
conducting of a fair and complete hearing with all relevant and necessary evidence.
The power to make a binding nonappealable decision on the merits of a grievance
inherently includes the power to secure relevant evidence and to draw inferences or to
make presumptions according to the circumstances that occur.
The purpose of the Act, I believe, is to bring about free collective bargaining.
The prohibitions of the Act and the representation machinery provided therein are all
designed to bring about good-faith bargaining between an employer and the union
representing the employees. The desideratum is that through this bargaining the
parties will reach an agreement, a contract. The next rung to be hoped for is that
they will abide by the terms of the contract. Since men of good faith can have
honest differences and men of bad faith can have dishonest differences, there is only
one more rung that free collective bargaining can attain. That rung is a grievance
arbitration provision in the contract, providing that the terminal point of disputes will
be an impartial arbitrator, selected by the parties or by machinery which they have
approved, and vesting in the arbitrator binding decisional authority.
There should be no underestimation of what the parties have ceded to the arbitrator
when they place an arbitration clause in their contract. The Union has in most such
instances relinquished its right to strike and has vested decisional power in a third
party. The Employer has subjected its power to the decision of a third party, who will
accord as much attention to what the Union presents as to the Employer's position
and, who may render a decision against the Employer or otherwise, according to
standards of fairness and equity.
If it be said that the Board does not wish to impede or frustrate the grievance and
arbitration procedure aforementioned but desires to facilitate it and to serve as a
good right arm or auxiliary thereto, I believe that this is accomplished by not interven-
ing in the circumstances presented by the instant case. Nor do I believe that such a
result will mean that an unconscionable employer can arbitrate a union to death.
It is highly unlikely that such an employer will, in the first place, agree to having an
arbitration provision because of factors mentioned above regarding the significance
of an arbitration clause. Further, by forcing arbitration and by not bargaining in
good faith initially, the Employer (or the Union) might risk obtaining a result much
worse from his standpoint than would be the case if the parties composed their dispute
by reasonable compromise. The ability to secure intervention by the Board is a
fertile avenue for delaying arbitration since all the steps of Trial Examiner, Board,
and courts are a concomitant of such intervention. This is equally true whether the
intervention is sought in good faith (and I do not doubt the good faith in the instant
case) or bad faith as a tactic of delay or for some other tactical reason. Denial
of intervention does not cast the parties into exterior darkness or deny them a forum.
It refers them to the "machinery devised by the parties themselves" for settling their
dispute. The grievance arbitration procedure is the collective bargaining agreed upon
by the parties 23
23 United Steelworkers of America v Warrior & Gulf Navigation Co , 363 U.S. 574, 578,
550, 581, 582
The present federal policy is to promote industrial stabilization through the col-
lective bargaining agreement [Footnote omitted.] . . . A major factor in achieving
industrial peace is the inclusion of a provision for arbitration of grievances in the
collective bargaining agreement.4
: s * s s n :
A collective bargaining agreement is an effort to erect a system of industrial self-
government . . . The processing of disputes through the grievance machinery is
actually a vehicle by which meaning and content are given to the collective bargaining
agreement
Apart from matters that the parties specifically exclude, all of the questions on
which the parties disagree must therefore come within tht scope of the grievance
and arbitration provisions of the collective agreement
' Complete effectuation of the federal policy is achieved when the agreement con-
tains both an arbitration provision for all unresolved grievances and an absolute
prohibition of strikes . . . [both factors are present in the instant case].
Notwithstanding duties assigned to the courts under Section 301 of the Act, a statutory
duty, doubts in particular situations should be resolved in the direction of leaving all
SINCLAIR REFINING COMPANY 747
It is recommended that the complaint be dismissed because I do not believe that it
would effectuate the policies of the Act for the Board to intervene in this case. It is
also my opinion , without passing on the merits of the dispute and the contentions
made concerning contract interpretation , that there has not been a violation of Section
8(a)(1) and (5) of the Act. Respondent sought to channel the bargaining process
"within the framework agreed upon by the parties in their agreement" and stated that
it would abide by the rulings of the arbitrator regarding production of evidence. As
far as this record shows, Respondent has abided by this statement and the arbitration
record was made under the aegis of the arbitrator and his rulings.
The conclusions reached in the instant case have been arrived at notwithstanding
my belief that in such cases the disagreement of the parties should not be about facts
that are contained in available records but about the significance or the interpretation
to be placed on such facts. The facts should be available to both parties. It is highly
desirable, I believe, in developing industrial self-government by unions and employers
that facts be made available to the parties without the intervention of an arbitrator.
This can be done without waiving arguments of the relevancy or materiality of such
facts. However, when situations arise, as here, where the parties cannot agree, it
is my opinion, on the facts of this case, that the arbitrator should resolve the issues.
Upon the basis of the foregoing findings of fact and conclusionary findings, and
upon the entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and has been at material times, an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce within the meaning of the
Act.
2. The Union is, and has been at all times material , a labor organization within
the meaning of Section 2(5) of the Act.
3. The record does not establish that Respondent has engaged in the unfair
labor practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusionary findings, and
conclusions of law , and upon the entire record , it is recommended that the Board
enter an order dismissing the complaint.
matters to the decision of the arbitrator in order "to be consistent with congressional
policy in favor of settlement of disputes by the parties through the machinery of
11arbitration. . . .
I do not undertake to pass judgment on what the record reveals about the instant arbi-
tration proceeding . Whether I agree or disagree with the arbitrator 's rulings or whether
I would have made the same or different rulings is not important but I have considered all
the evidence in the instant record, including testimony and other evidence regarding the
arbitration hearing , in reaching my decision . Since the General Counsel has commented
upon various rulings and other aspects of the arbitration hearing, I will make the limited
comment that , in my opinion , on the whole, a fair and adequate record appears to have
been made before the arbitrator , by both parties , for a decision on the merits of the
grievance to emerge . The record may not have been made In the exact manner that each
party would have desired but it was made
When parties to a contract agree upon a grievance arbitration clause, they understand,
I believe, that the final step, the hearing before the arbitrator, while part of the collective-
bargaining package upon which they have agreed , is different from the earlier stages of the
procedure The hearing is, in effect , adversary in nature and is not the same as sitting
around a table bargaining about some condition of employment or some act of the em-
ployer. If we prescind from situations where no grievance has been filed or where the
stage is prior to the filing of a grievance , we can consider the situation where a grievance
has been filed . Assume that no evaluation of the grievance is possible or has been made
and the union requires certain relevant data. The union does not wish to proceed to
arbitrate on the merits of the grievance in order to secure the data required. The
parties, however, cannot agree on the relevance of the data . If such situations are com-
mon or important enough, there appears to be no reason why the parties cannot negotiate
into their contract grievance arbitration clauses, a provision for invoking the services of
an arbitrator at a preliminary stage to decide disputes of this nature . After such pre-
liminary decision by an arbitrator , the parties could then decide whether or not to proceed
to arbitrate on the merits of the grievance.