The Standard Oil Co.

National Labor Relations Board - Board Decisions

Nov 27, 1950

92 N.L.R.B. 227 (N.L.R.B. 1950)

I
In the Matter of THE STANDARD OIL COMPANY (AN OHIO CORPORA-
TION ) and OIL WORKERS INTERNATIONAL UNION ( CIO) and LocM
No. 346, OIL WORKERS INTERNATIONAL UNION (CIO)
Case No. 8-CA 32. Decided November 27, 1950
DECISION AND ORDER
On August 29, 1950, Tritil Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, 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 copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and the Respondent filed exceptions to the Intermediate Report and
supporting briefs. The Respondent's request for oral argument is
denied inasmuch as the record and briefs, in our opinion, adequately
reflect the issues and the positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications :
The Trial Examiner found, and we agree, that the Respondent, on
and after January 1, 1950, refused to bargain collectively with Local
No. 346, Oil Workers International Union (CIO), herein called the
Union, as the representative of the employees involved herein, with
respect to the Respondent's SOHIO Plan for Employee Group Life
and Total Permanent Disability Insurance, in violation of Section 8
(a) (1) and (5) of the Act. The Respondent contends that, under
the terms of the "non-discrimination" clause of the 1948 agreement,2
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three-member panel
[Members Houston, Murdock, and Styles]. -.
2 This "non -discrimination " clause reads as follows :
The company shall not discriminate against employees covered by this agreement with
regard to participation in benefits or bonuses provided for employees of the Standard
Oil Company ( Ohio).
92 NLRB No. 63.
227
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
the Union waived its right to bargain with respect to amendments to
the group insurance plan for the duration of the agreement. As we
had occasion to observe, however, in Tide Water Associated Oil Coin-
pany,3 "We are reluctant to deprive employees of any of the rights
guaranteed them by the Act in the absence of a Blear and unmistakable
showing of a waiver of such rights." We fail to perceive, either in the
specific language of the "non-discrimination" clause, or in any reason-
able construction thereof, "a clear and unmistakable showing" that the
Union agreed to waive the right to bargain collectively concerning the
group insurance plan for the duration of the agreement.'
The Respondent further contends that in no event should its con-
duct be found violative of the Act because the Union failed to use the
grievance and arbitration procedure set forth in the contract in con-
nection with the refusal to bargain about the group insurance plan.
The Board, however, is the proper forum for adjudicating the issue
of waiver of statutory bargaining rights, which is involved in this
proceeding.' We therefore find no merit in the Respondent's con-
tentions.
Accordingly, we find that the Respondent's unilateral action in
amending the group insurance plan on January 1, 1950, and thus alter-
ing existing wages and conditions of employment without consulting
the Union, and in declining to bargain about these amendments on
January 16, 1950, constituted a refusal to bargain within the meaning
of Section 8 (a) (1) and (5) of the Act. .
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Standard Oil
'Company (An Ohio Corporation), Toledo, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from :
(a) Refusing to bargain collectively with Local No. 346, Oil Work-
ers International Union (CIO), as the exclusive representative of
.all process or production employees and maintenance employees at
its Toledo, Ohio, refinery, including utility clerks, boiler shop clerks,
clerks in the engineering department, warehouse clerks, and laboratory
personnel, but excluding clerical employees (other than those in-
' 85 NLRB 1096. See also Inland Steel Company , 77 NLRB 1, enfd . 170 F. 2d 247 (C. A.
7), cert. denied 336 U. S. 960.
In our view of the issue presented herein , we deem it unnecessary to pass upon the
Trial Examiner ' s interpretations of the "non -discrimination" clause.
5 General Motors Corporation , 81 NLRB 779, enf'd 179 F. 2d 221 (C. A. 2).
J
THE STANDARD OIL COMPANY 228-1
eluded above), graduate technical engineers and chemists, and all
other professional employees, guards, and supervisors as defined in
the Act;
(b) Making any unilateral changes in its SOHIO Plan for Em-
ployee Group Life and Total Permanent Disability Insurance affect-
ing the employees in the aforesaid appropriate unit without prior
'consultatio.n with Local No. 346, Oil Workers International Union
,(CIO).
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with respect to its SOHIO
Plan for Employee Group Life and Total Permanent Disability
Insurance, with Local No. 346, Oil Workers International Union
,(CIO), as the exclusive representative of all employees in the afore-
said appropriate unit and, if an understanding is reached, embody
such understanding in a signed agreement if requested by Local No.
346, Oil Workers International Union (CIO) ;
(b) Consult with Local No. 346, Oil Workers International Union
,(CIO), prior to taking any action which would affect the employees
in the. aforesaid appropriate unit with respect to the terms and pro-
visions of its SOHIO Plan" for Employee Group Life and Total Per-
manent Disability Insurance;
(c) Post at its refinery at Toledo, Ohio, copies of the notice attached
hereto, marked Appendix A.6 Copies of said notice, to be furnished
by the Regional Director for the Eighth Region, shall, after being
duly signed by the Respondent's representative, be posted by the Re-
spondent upon receipt thereof and maintained by it for a period of
sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any-other material ;
(d) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
AND IT IS FURTfER ORDERED that the complaint, insofar as it alleges
that the Respondent violated Section 8 (a) (1) and (5) of the Act by
refusingto bargain collectively with Oil Workers International Union
(CIO), be, and it hereby is, dismissed.
0In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order," the words "A Decree of
the United States Court of Appeals Enforcing."
228-2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with LOCAL No. 346,
OIL WORKERS INTERNATIONAL UNION (CIO), as the exclusive
representative of all the employees in the bargaining unit de-
scribed herein, with respect to our SOHIO Plan for Employee
Group Life and Total Permanent Disability Insurance.
WE WILL NOT in the future make any unilateral changes in our
SOHIO Plan for Employee Group Life and Total Permanent
Disability Insurance affecting any employees in the bargaining
unit described herein without prior consultation with the above-
named union. "
The bargaining unit consists of the following group of em-
ployees at this Company's Toledo, Ohio, refinery :
All process or production employees and maintenance em=
ployees, including utility clerks, boiler shop clerks, clerks in
the engineering department, warehouse clerks, and labora=
tory personnel, but excluding clerical employees (other than
those included above), graduate technical engineers, and
chemists, and all other professional employees, guards, and
supervisors as defined in the National Labor Relations Act.
THE STANDARD OIL COMPANY
(An Ohio Corporation)
Employer.
Dated ---------------- By -------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Philip Fusco, for the General Counsel.
Messrs. James R. Tritschler and T. G. Shirreffs, of Cleveland, Ohio, for the
Respondent.
Mr. William V. Flower, of Sylvania, Ohio, for the International and the Local.
STATEMENT OF THE CASE
Upon a charge filed February 3, 1950, by Oil Workers International Union
(CIO) and Local No. 346, Oil Workers International Union (CIO), herein
called respectively the International and the Local and also sometimes collectively
referred to as the Unions, the General Counsel for the National Labor Relations
THE STANDARD OIL COMPANY 229
Board,' by the Regional Director for the Eighth' Region (Cleveland, Ohio),
issued a complaint dated May 16, 1950, alleging that The Standard Oil Company
(An Ohio Corporation), herein called the Respondent, had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Labor Management
Relations Act, 1947; herein referred to as the Act. Copies of the complaint,
the charge, and notices of hearing and postponement of hearing were duly served
upon the Respondent, the International, and the Local.
With respect to the unfair labor practices, the complaint alleges in substance:
(1) That, at all times since the year 1943, the Unions have been the representa-
tives for the purposes of collective bargaining of a majority of the Respondent's
employees in a specifically described appropriate bargaining unit at the Respond-
ent's Toledo Refinery and, within the meaning of Section 9 (a) of the Act, have
been and are now the exclusive representatives of all the employees in this unit
for the purposes of collective bargaining; and (2) that on or about October 27,
1949, and at all times thereafter, the Respondent, in violation of Section 8 (a)
(1) and (5) of the Act, has refused to bargain with the Unions concerning
proposed changes in, and amendments to, an existing Group Life and Disability
Insurance flan affecting the employees in this bargaining unit, although re-
quested so to do by the Unions, but, instead, unilaterally effected such changes
and amendments and has at all times since refused to bargain with the Unions
concerning these matters.
The Respondent, in its answer as amended.at the hearing, admits certain al-
legations of the complaint but denies its commission of the unfair labor practices
charged in the complaint. In addition, the Respondent admits in its answer as
amended, that the Local has been and is the exclusive bargaining representative
of the employes in the appropriate bargaining unit described in the complaint,
but it denies that.the International is also a joint exclusive bargaining repre-
sentative of these employees. It also asserts, in substance: (1) That, by the
provisions of a contract executed with the Respondent on October 11, 1948, the
Local relinquished its right to bargain with the Respondent concerning the
changes in the Respondent's Group Life and Disability Insurance Plan; (2) that
the Respondent's obligation to bargain with the Local on this matter, therefore,
depends upon an interpretation of these contractual provisions; (3) that the
Local was required by other provisions of the contract to submit this question
of interpretation for decision by specified grievance and arbitration procedures,
but that it has failed to do so; and (4) that the Respondent was therefore
justified, under its proper interpretation of the provisions of the contract, in
making the changes in the Group Life and Disability Insurance Plan to which
the complaint refers.
Pursuant to notice, a hearing was held in Toledo, Ohio, on June 6, 7, and 8, 1950,
before the undersigned Trial Examiner duly designated by the Chief Trial Ex-
aminer. The General Counsel, the Respondent, and the ,Unions participated in
the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the issues.
At the conclusion of the General Counsel's case, the undersigned denied a
notion by the Respondent to dismiss the complaint on the ground that the
evidence failed to sustain the allegations of the complaint. At the conclusion of
' The General Counsel and the staff attorney appearing for him at the hearing are herein
referred to as the General Counsel ; the National Labor Relations Board is referred to as
the Board.
2 61 Stat. 136.
230 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
the hearing, the Respondent renewed this motion and the undersigned reserved
decision. The motion is now disposed of in accordance with the considerations,
hereinafter set forth.
Counsel for the parties waived oral argument at the conclusion of the hearing.:
Since that time, the undersigned has received briefs from the General Counsel-
and from the Respondent.
Upon the entire record in the case and from his observation of the witnesses,.
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation, is engaged in the refining, sale, and distri-
bution of petroleum products at plants in the"State of Ohio. In the course of its.
business operations, it causes a substantial percentage of its raw materials of
a. total value of several million dollars yearly, to be purchased, delivered, and.
transported in interstate commerce from States of the United States other than.
Ohio to its various plants in Ohio, and causes a substantial percentage of its
finished products of an annual total value of several million dollars to be sold,
delivered, and transported in interstate commerce to and through States of the.
United States other than Ohio, from its various plants in Ohio. The; plant in-
volved in this proceeding is the Toledo Refinery at Toledo, Ohio, which annually
produces refined products of a value in excess of $1,000,000 and other products
of a value of aproximately $500,000. Approximately 50 percent of the raw
materials used in the latter products is shipped to the Toledo plant from points.
outside the State of Ohio.
The Respondent admits, and the undersigned finds, that in the operation of
its Toledo Refinery, it is engaged in commerce within the meaning of Section.
2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Oil Workers International Union (CIO) and its Local 346 are labor organiza-
tions within the meaning of Section 2 (5) of the Act. Under the provisions of
the constitution of the International and the bylaws of the Local, members of
the Local are also members of the International.
III. THE UNFAIR LABOR PRACTICES
A. Background: the Plan and the Respondent's contracts with the Unions
Since November 1, 1928 '(at which time none of its employees were represented"
by a labor organization), the Respondent has provided group life insurance for-
all its employees, including those in its Toledo refinery and its four other re-
fineries, its field employees, its pipeline employees, its can factory employees,.
and its sales department employees. The basic insurance contracts have been.
made annually by the Respondent with the Equitable Life Assurance Society
of the United States, and thus have been subject to an annual adjustment or
revision of premium rates as well as other terms.
Consistent with the terms and coverage of these general contracts, the Re-
spondent has made the insurance available to the individual employees at theft
option and has contributed approximately 30 percent of the premiums under-
what it calls the "SOI-IIO Plan for Employee Group Life and Total Permanent
Disability Insurance," which will be referred to as the Plan. In its printed
statements advising its employees of the details of the Plan and its subsequent
amendments, however, the Respondent has consistently reserved "the right to.
THE STANDARD OIL COMPANY 231
modify any of the conditions pertaining to the plan or to discontinue the plan at
any time by giving at least sixty days' notice." Since 1928, the Respondent has
amended the Plan five times, in each case without first securing, or attempting
to secure, the agreement of the employees or their representatives.
The cumulative effect of the first three amendments (which were made ii
1929, 1931, and 1942) was generally to liberalize and extend the insurance. Thus,,
the coverage in the original Plan of employees only for the period of their em-
ployment and under policies ranging from $1,000 to $3,000 according to length
of service, was extended until the Plan as amended in 1942 had an increased
range of $1,250 to $1.3,250 according to salary, and also permitted the Respond--
ent's pensioners or annuitants to retain their full insurance at retirement with
continuing premium contributions from the Respondent.
This was the general coverage of the Plan, when, on April 3, 1943, the Board,
after an employee election, certified the Local as the exclusive bargaining repre-
sentative of the Respondent's employees in an appropriate bargaining unit con-.
sisting of all the process or production employees and maintenance employees:
at the Toledo Refinery, including utility clerks, the boiler shop clerk, clerks in
the engineering department, and warehouse clerks, but excluding clerical em-
ployees (other than those included above), supervisory employees, graduate
technical engineers and chemists, guards, and watchmen.
On July 29, 1943, and on February 18, 1946, the Respondent and the Local
executed successive contracts covering these employees, with a representative
of the International also participating in the negotiations and signing the con-
tracts. References to the Plan were contained in the following provisions which
appeared in both contracts:
Article VI (A), Benefits, Section 1.-This agreement shall in no wise,
affect the status of regular employees covered by this agreement with re-.
spect to benefits derived or to be derived from any group insurance, sick
insurance, purchasing plan, or pension fund.
Article VII, Miscellaneous, Section 1, Voluntary benefits or bonuses-
Nothing in this agreement shall abrogate or impair the rights of employees.
to obtain benefits or bonuses that may be arranged by the Company.
Article XII, Leave of Absence.- . . . The group insurance and other
benefits accruing to said employees [on leave of absence for Union duty]
during such absence will be kept in full force during his absence, prow-.
vided said employee pays his share of the premium.
By its terms, the contract of February 18, 1946, was terminable on or after-
1 year from its date by 30 days' notice in writing given by either party to the
other. The Respondent, the Local, and the International began negotiating for
a new contract on or about February 18, 1947, and thereafter executed several
successive extensions and modifications of the 1946 contract, finally extending
it, as modified, to and including February 18, 1948.
On January 30, 1948, by letter of that date, the Local notified W. K. Bergen,
the Respondent's Toledo plant manager, of its intention to terminate the 1946,
contract and suggested that in negotiating the "common items" of a new agree-
Inent, including "Benefits," the representatives of the employees in all the
Respondent's refineries and its pipeline department might meet at one time with
the Respondent. By letter to the Local dated February 9, 1948, Bergen acknowl-
edged receipt of the termination notice and made an appointment for the Local's
representatives and the representatives of the employees of the other refineries
to meet with Vice-President McConnell of the Respondent in Cleveland on
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 19, 1948, so that the Local might explain to McConnell its proposal for
multiunit bargaining on the "common items." At this meeting, McConnell told
the union representatives that bargaining would have to be on a unit, rather than
a multiunit, basis. On February 26, 1948, pending the outcome of their nego-
tiations for the Toledo Refinery unit, the Local, the International, and the
Respondent executed a further "indeterminate extension" of the 1946 contract.
In February or March 1948, the Local and the International submitted to the
Respondent a proposed form of new contract for the Toledo Refinery unit.
With reference to the Plan, the proposal included verbatim the provisions of
Article VI (A), Section 1, and Article XII of the 1943 and 1946 contracts. In
addition, it proposed: (1) a new provision requiring the Respondent to pay the
full premiums for annuitants and employees on leave of absence; and (2) the
following provision in substitution for Article VII, Section 4, of the 1943 and
1946 contracts:
Article II, Section 4, Discrimination.-The company shall not discrimi-
nate against employees covered by this agreement with regard to partici-
pation in benefits and bonuses provided for employees of the Standard Oil
Co. (Ohio) and its wholly owned subsidiaries.
On or about March 15, 1948, Franklin Black, industrial relations assistant at
the Toledo Refinery, told J. L. Crane, the Local's bargaining committee chairman,
that the Respondent would "tentatively" accept this last "non-discrimination"
provision. He objected, however, to the proposal that the Respondent pay the
full premium for employees on leave and annuitants, because (1) it would be
unfair to other employees thus to benefit employees who took extended leaves
for personal reasons; and (2) the burden of paying all of the annuitants' pre-
miums would be too great.
The subject was again discussed by the negotiators in September or early
October 1948, toward the end of a strike begun in July by the Toledo Refinery
employees in support of their representatives' bargaining demands. At that
time, the Local and the International modified their request for full payment of
premiums by eliminating annuitants and limiting the request to "employees on
occupational leaves of absence." The Respondent, through Thomas G. Shir-
reffs, its manager of labor relations, rejected this modified proposal, stating to
Committee Chairman Crane that the best that the Respondent could do would
be to agree not to discriminate against the Toledo employees ; i.. e., to put it
in Shirreffs' language : "We would give them whatever we gave to all employees
of the company generally and guarantee it through a `non-discrimination
clause.' "
Industrial Relations Assistant Black, who was present at this meeting,
testified that Crane made a "comment . . . to the effect that the SOHIO In-
surance Plan provided that the Company had the right to modify or discontinue
the plan on 60 days' notice, and that this non-discrimination clause would still
permit the company to change the plan or discontinue it, if they wished to,"
and that Shirreffs replied, "That was exactly right." Shirreffs testified, "I be-
lieve that it was Mr. Crane at this point who brought out the fact that by ac-
cepting the Company's proposal of a non-discrimination clause in lieu of their
dropping all the demands on group insurance, the Company would have the
right to modify or terminate or change the group life insurance plan at any
time. I told the union committee including Mr. Crane, that was absolutely
right, but, however, that any change would necessarily have to apply to all
THE STANDARD OIL COMPANY 233
employees of the Company, it would apply on.a like basis to the employees of
the Toledo refinery."
Crane, however, testified that, although he may have said, "The SOHIO Group
Insurance Plan provided that the Company had the right to modify the plan on
60 days' notice," he did not state, or assent to the proposition, that "if the non-
discrimination clause were inserted in the contract, the Company would still
have the right to change, modify, or terminate the contract at will." In his
testimony, Crane summarized the situation in which he and his fellow union
negotiators found themselves, as follows : "The way I remember it, the Union
made a last desperate effort to negotiate there, and it finally got to the point
where the Company negotiators started walking out the door. We called them
back in and said, `Well, what is the best that we can get?' And they gave it to us."
Upon consideration of this testimony, the undersigned credits Crane's testi-
mony, and finds that the Unions did not orally agree that their acceptance of the
"non-discrimination" clause constituted a recognition of the Respondent's right
to continue its unilateral control over the Plan. The language of the resulting
contract, so far as it bears upon the Plan, must therefore furnish the answer to
this question.
As executed by the Respondent, the Local, and the International on October 11,
1948, the contract provided for a term of 2 years and contained the following
references to the Plan:
Article II, Section 3 (b), Non-discrimination.-The company shall not dis-
criminate against employees covered by this agreement with regard to partic-
ipation in benefits or bonuses provided for employees of the Standard Oil
Company (Ohio).
Article VI (A) Benefits, Section 1.-This agreement shall in no wise affect
the status of regular employees covered by this agreement with respect to
benefits derived or to be derived from any group insurance, sick insurance,
purchasing plan, or pension fund.
Article XII, Leave of Absence.- . . The group insurance and other bene-
fits accruing to said employees [on leave of absence for Union duty] during
such absence will be kept in full force during his absence, provided said
employee pays his share of the premium.
Article VIII of the 1948 contract contained various provisions relating to bar-
gaining during the contract, and procedures for the handling of grievances and
complaints with an ultimate option of binding arbitration. Section 1 of this
Article provided for the election by the employees of a 15-man Workmen's Com-
mittee, no more than 9 of whom were at any time to serve as a bargaining com-
mittee and no more than 6 of. whom were to serve at any time as a grievance
committee. Section 3 provided for regular monthly grievance meetings "for the
discussion of any grievances or complaints" between the Workmen's Committee
and the Respondent's plant manager, and for such additional meetings as might
be necessary. And Section 5 provided a 3-step grievance procedure "for the pur-
pose of adjusting complaints or grievances." The first step involved the foreman ;
the second, the plant manager ; and the third, the "Home Office Management."
Subsection (e) of Section 5 further provided that upon failure to reach adjust-
ment in the steps of the grievance procedures, "the dispute may be submitted to
arbitration provided the complaint or grievance is an alleged violation of the
provisions of this agreement or an interpretation of it or a supplement to it."
929979-51-vol. 92-17
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In such event (this subsection stated), "the arbitration award shall be final and
binding on both parties."
B. The Respondent's 1950 amendments of the Plan
In the middle of 1949, after several years' study of the past and prospective
operation of the Plan, the Respondent concluded that the cost of. its continuing
the existing coverage of annuitants would become prohibitive? On October 27,
1949, without previous consultation with its employees or their representatives,
the Respondent presented and. explained to the Local's Workmen's Committee
several amendments to the Plan which it said would become effective on January
1,. 1950.
The amendments 'limited to $500 the amount of insurance which,any employee
hired after December 31, 1949, might retain upon his eventual retirement. They
also reduced the amounts of insurance which might thereafter be retained
during retirement by existing annuitants and by future annuitants who had been
hired before December 31, 1949, first, by an initial "adjustment" of the amount
of insurance which each of these men would have been permitted to retain under
the superseded provisions of the Plan,` and then, by further annual reductions
of the initial amount for each of the next 20 years, until a continuing minimum
of $500 should be reached. In connection with this last series of reductions, the
amendment provided that, in the cases of annuitants who had retired before
July 1, 1949, the Respondent would make direct, periodic "benefit" payments to
them, equal to each annual reduction of their insurance.
At the Respondent's meeting with the Workmen's Committee on October 27,
the Committee asked some questions and told the Respondent that it would
notify the employees of the amendments. Neither at this meeting nor at the
Respondent's regular meeting with the Workmen's Committee in November did
the Committee express any objections to the amendments. In a letter dated -
December 2, 1949, however, P. A. Shugar, chairman of the Committee, informed
I. L. Peterson, then manager of the Toledo Refinery, that they objected to the
amendments and wanted to discuss the matter further with the Respondent.
Manager Peterson told Shugar on December 13, 1949, that he was."anxious"
to meet with the Workmen's Committee as Shugar had requested, but Shugar
replied that the Committee might not be prepared to present. its position before
the new committee members were elected on January 1, 1950.
On the following day, December 14, 1949, Peterson sent Shugar a letter offering
to fix a meeting date when Shugar was ready. In another letter sent to Shugar
on December 30, 1949, Peterson reiterated his willingness to meet with the Com-
mittee and reminded Shugar that the amendments to the Plan were to become
effective on January 1, 1950.
8 The Respondent was advised by actuaries and insurance companies that the swelling
of the older -aged group of annuitants would not only greatly increase the number of
persons covered by the Plan, but would, at the same time , substantially increase the median
premium rate payable to the insurance company for all the members of the Plan. The
Respondent estimated that, as a result , its current annual contribution of $100,000 to the
Plan would be increased to $800,000 in 20 years.
4 only those who had worked regularly for the Respondent for 31 or more years before
-December 31, 1949, were initially to retain the full amounts of insurance which they had,
or might have, on their retirement dates. For each year less than 31 years of service as
computed on December 31, 1949, the initial or "adjusted" insurance of each of the others
was to be reduced by 3 percent of their retirement-date insurance , subject to a minimum
of $500.
THE STANDARD OIL COMPANY 235
The meeting was finally held on January 16, 1950, by which time Shugar had
been succeeded by Kane as chairman of the Workmen's Committee! Industrial
Relations Assistant Black again explained the substance of the amendments to
the Plan, referring to the fact that they were necessitated by the originally
unanticipated high cost of continuing full coverage for annuitants. The Com-
mittee objected to the Respondent's having made the changes in the Plan without.
consulting the Unions ; expressed its desire and willingness to negotiate ; and
asked whether the Respondent regarded the matter as being "negotiable."
Manager 'Peterson and Black said that the Respondent considered the group.
insurance a "negotiable" subject and reminded the Committee that, in the course-
of reaching agreement on the 1948 contract with the Unions, the Respondent
had discussed their proposal that the Respondent pay the full premiums of-
annuitants and employees on leave, and that, although the Respondent had re-
jected this proposal, it had agreed to the insertion of the "non-discrimination"
clause as the best it could do. Peterson and Black then said that since the
Respondent had thus negotiated with the Unions on the Plan in reaching agree-
ment on the 1948 contract, "the Plan is not open again for negotiations until this
fall when the agreement expires."' Peterson and Black also told the Committee
that, under the "non-discrimination" clause of the 1948 contract, the Respondent
"was obligated to put the [amendments] into effect for the employees in this
bargaining unit on January 1st., otherwise we could be held in violation of The
contract." In summary, Manager Peterson, according to his testimony, told the
Committee that "the Company's position is that this meeting does not constitute
negotiations."
C. Conclusions
1. The appropriate unit and the representation of the employees therein
The complaint alleges, the Respondent admits in its answer, and the under-
signed finds, that at all times since its certification by the Board in 1943, the
Local has been and is the exclusive bargaining representative of all the Respond-
ent's employees in a unit appropriate for the purposes of collective bargaining,
consisting of all the process or production employees and maintenance employees
at the Toledo Refinery including utility clerks, boiler shop clerks, clerks in the
engineering department, warehouse clerks, and laboratory personnel, but ex-
cluding clerical employees (other than those included above), graduate technical
engineers and chemists, and all other professional employees, guards, and
supervisors as defined in the Act.
The General Counsel also contends, and the Respondent denies, that the
International and the Local have been, and are, jointly the exclusive bargaining
representatives of the employees in this unit. The General Counsel bases this
contention upon the facts that the members of the Local are also members of
the International, and that the International together with the Local negotiated
and then, as a party, also executed the various extensions of the 1946 contract
and the presently existing 1948 contract. The undersigned, however, believes
these arguments of the General Counsel to be without merit.
6 There are no substantial contradictions in the testimony concerning this meeting. The
findings are therefore based upon a composite of the consistent evidence given by Manager
Peterson , Assistant Black, and Committeeman Philpott.
6 Peterson , in his testimony on cross-examination , agreed that this quotation, taken
from the Respondent 's minutes of the meeting , correctly set forth the Respondent's answer
to the Committee's request that the Respondent negotiate concerning the 1950 amendments
to the Plan.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
Under Section 9 (a) of the Act, a labor organization attains status as
exclusive bargaining representative of employees in an appropriate bargaining
unit only by virtue of selection or designation by the employees. The Local
clearly acquired this status because a majority of the employees !voted for it as
their bargaining representative, in the election upon the basis of which the
Board certified it as exclusive bargaining representative in 1943. In this elec-
tion, the International was not presented to the employees as a possible joint
bargaining representative with the Local, as it might have been.? Therefore,
the votes cast specifically for the Local could not be regarded as designations
of the International as well as the Local.
Contrary to the General Counsel's argument, there is nothing in the record
to indicate that the employees have since then widened their original designa-
tion of the Local to include the International as well. Certainly, the mere
acceptance by the Respondent of the International as joint bargaining repre-
sentative with the Local by contracting with both of them in 1947 and 1948
does not constitute, or evidence, a designation of the International by the
employees. Nor, under the circumstances of the present case, does the fact that
the members of the Local employed in the unit are also members of the Interna-
tional indicate that since the 1943 election they have decided that they want
to be represented by the International as well as the Local. For in 1943 they
were also members of the International by reason of their membership in the
Local and yet in the election they chose only the Local as their bargaining
representative.
The undersigned therefore concludes that the record does not support the Gen
eriil Counsel's contention that the International is, or was at any material time,
the exclusive bargaining representative of the Respondent's Toledo Refinery
employees. He will therefore recommend a dismissal of the complaint so far
as it alleges, as an unfair labor practice, any refusal on the part of the Respond-
ent to bargain with the International.
2. The Respondent's refusal to bargain with the Local
It is well settled, as the Respondent conceded at its meeting with the Local
on January 16, 1950, and now also concedes in the present proceeding, that Sec-
tions 7 and 8 (a) (5) of the Act require employers to bargain collectively with
the statutory representatives of their employees concerning group insurance
plans .8 The question presented by the facts which have already been found in
the present case, therefore, is whether the Respondent was justified in unilater-
ally effecting the 1950 amendments of the Plan in the face of the Local's objec-
tions, and in refusing to bargain with the Local concerning this matter on Jan-
uary 16, 1950, because, as it then =told the Local, the 1948 contract suspended the
Local's right to bargain on the Plan until the contract expired on October
11, 1950.
In support of this position, counsel for the Respondent contends in his brief
that under the "unambiguous" language of the "non-discrimination" clause of
the 1948 contract, the Local waived its right to bargain concerning the Plan or
7 Contrary to the argument made by the Respondent in its brief , several labor organiza-
tions may qualify as the joint exclusive bargaining representatives in a single bargaining
unit. Welding Shipyards, Inc., 81 NLRB 936, 944; General Motors Corporation, 67
NLRB 233, 235; National Carbide Corporation , 67 NLRB 757, 760; W.. F. Hall Printing
Company, 63 NLRB 532, 535; Fairmont Creamery Company, 61 NLRB 1311, 1313.
8 W. W. Cross & Co., Inc. v. N. L. R. B., 174 F. 2d 875 (C. A. 1). See also Inland Steel,
77 NLRB 1, enfd. in Inland Steel Company V. N . L. R. B., 170 F. 2d 247 (C. A. 7), cert.
den., 336 U. S . 960; Tide Water Associated Oil Company , 85 NLRB 1096.
THE STANDARD OIL COMPANY 237
any changes therein by the Respondent during the period of the contract, because,
through the Local's acceptance of this clause, "the respondent's insurance plan
was adopted, including the provision for modification of the plan by the respond-
ent upon proper notice." (Emphasis supplied.)" The undersigned, however, is
of the opinion, in agreement with the General Counsel, that the "non-discrim-
ination" clause is clearly not susceptible to the interpretation thus urged by the
Respondent.
It will be recalled that the "non=discrimination" clause was couched in the
following language :
The company shall not discriminate against employees covered by this agree-
ment with regard to participation in benefits or bonuses provided for
employees of the Standard Oil Company (Ohio).
This language is indeed clear, as the Respondent states, but in its clarity, it
is entirely incompatible with the interpretation urged by the Respondent. In
its prohibition of discrimination by the Respondent "against employees covered
by this agreement," the clause on its face did no more than bind the Respondent
to accord the Toledo employees insurance benefits at least equal to the benefits
received by employees in other bargaining units. It did not provide, as the
Respondent argues in its brief, "that the employees covered by the [Toledo]
agreement shall receive the same benefits as are given to the Respondent's other
employees." (Emphasis supplied.) Nor did it by implication bind the Respond-
ent to make the same changes in the Plan with respect to the Toledo employees
whenever unfavorable changes were made with respect to employees in other
bargaining units. Nor did it express an assent by the Local to a continuance
of the terms of the Respondent's existing Plan including the Respondent's reser-
vation of a right unilaterally to modify or withdraw benefits so long as it took
the same action with respect to the employees in its other bargaining units. On
the contrary, the "non-discrimination" clause clearly left the Toledo employees
and their representatives free to exercise their. right under the Act to bargain
collectively with the Respondent, for or against any changes in the Plan, and
in addition conferred upon them the right to insist upon receiving from the
Respondent any favorable changes in the Plan which the Respondent might give
to employees in other units.
The undersigned therefore rejects the Respondent's arguments that, by enter-
ing the 1948 contract, the Local waived its right to bargain concerning the Plan
until the expiration of the contract and the Respondent was therefore justified
in unilaterally effecting its 1950 amendments and refusing to bargain with the
Local about them on January 16, 1950.
The Respondent also contends , however, that Article VIII of the 1948 contract
required the Local to resort to the grievance procedures fora determination of
the disputed meaning of the "non-discrimination" clause. Upon this base it
The Respondent does not conrtend in its brief that, for the term of the 1948 contract,
the Local waived its right to bargain concerning amendments of the Plan by the Respondent
either ( 1) by abandoning its 1948 attempt to procure a contractual amendment of some
of the terms of the Plan, or (2) by accepting the language of Article VI (A), Section 1 of
the 1948 contract which, as has been noted , provided that the contract should "in no
wise affect the status of regular employees with respect to benefits derived or to be derived
from any insurance . . . plan . ... " In any eveht, neither of these arguments would be
sound. For rejection of the first , see N. L. R. B. v. J. H. Allison & Company, 165 F. 2d
766, 768 ( C. A. 6), cert. den., 335 U. S. 814, rehearing denied, 335 U. S. 905. As to the
second, see Tide Water Associated Oil Company , 85 NLRB 1096, 1098, in which the Board
held that a similarly worded contractual provision was not a waiver of bargaining rights.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argues that , since the Local did not invoke the grievance procedures , the Re-
spondent-was under no obligation to bargain . The undersigned finds no merit
in this argument.
Section 10 (a) of the Act entrusts to the Board the power to prevent unfair
labor practices and provides that "This power shall not be affected by any other
means of adjustment that has or may be established by agreement , law or other-
wise...." (Emphasis supplied .) In performing its duty under this grant of
power, the Board is obviously required to consider and determine all material
elements of the cases presented to it , including , certainly , any question as to
whether there has been an effectual contractual waiver of any of the rights of
employees which are protected by the Act. It cannot , therefore , conscientiously
permit the parties, or either of them, to insist upon a decision of this last type
of question by some other method which may be provided by their contract. The
decision of whether there has been an effectual contractual waiver or narrowing
of rights guaranteed by the Act is one which the Board must make upon its own
view of the facts and statutory policy. Applying this fundamental principle in
the present case, the undersigned believes that the Local was under no obliga-
tion to submit to the grievance procedures the question of whether , by accepting
the "non-discrimination" clause, it had effectually waived or limited its right to
bargain concerning the Plan, but that, on the contrary , it was entitled to a de-
cision of the question by the Board , subject only to a review by the proper courts.
The two decisions cited by the Respondent in its brief are not inconsistent
with these basic principles nor their application in the present case. In the
Consolidated Aircraft case , 10 the Board merely refused to resolve the conflicting
interpretations which the employer and the union placed upon the provisions
of their contract relating to premium pay, because the union did not submit the
matter for arbitration under the contract . And in the Timken Roller Bearing
case;' the Sixth Circuit Court of Appeals , after deciding that the employer's
subcontracting of work clearly was within the management -prerogative clause
of the contract in that case , concluded that the dispute with the union over that
matter was one which the employer properly insisted upon handling through the
grievance procedures rather than by general bargaining , and that in so insisting,
he had not refused to bargain . Thus, under neither of these decisions were the
parties required to submit to the grievance processes the question of whether the
contract resulted in a suspension of any of the basic rights of employees guaran-
teed under the Act.
In summary , the undersigned finds and concludes : ( 1) that, in spite of the
provisions of Article VIII of the 1948 contract , the Local was not required to
submit to the grievance procedures the question of whether , by accepting the
"non-discrimination" clause of the 1948 contract , it had waived its right to bargain
concerning the Plan , but that, on the contrary , it was entitled to a decision of
this question by the Board ; ( 2) that the 1948 contract clearly did not constitute
such a waiver of bargaining rights; and (3) that the Respondent , by unilaterally
effecting its 1950 amendments of the Plan on January 1, 1950, in spite of the
Local 's objection , and by refusing to bargain on the amendments on January 16,
1950 , refused to bargain collectively with the Local as the exclusive bargaining
representative of its Toledo employees, in violation of Section 8 (a) (1) and (5)
of the Act.
10 47 NLRB 694.
ss Timken Roller Bearing Co . V. N. L. R. B., 161 F. 2d 949 (C. A. 6).
THE, STANDARD OIL COMPANY 239
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor prac-
tices with the Local, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It will be recommended, however, that the complaint be dismissed so far as it
alleges that the Respondent, in violation of Section 8 (a) (1) and (5) of the Act,
has refused to bargain collectively with the International.
Upon the basis of the above findings of fact and upon the entire record in this
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Oil Workers International Union (CIO) and Local No. 346, Oil Workers
International Union (CIO) are labor organizations within the meaning of Section
2 (5) of the Act.
2. All the Respondent's process or production employees and maintenance em-
ployees at its Toledo Refinery, including utility clerks, boiler shop clerks, clerks
in the engineering department, warehouse clerks, and laboratory personnel, but
excluding clerical employees (other than those included above), graduate tech-
nical engineers and chemists, and all other professional employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the Act.
3. Local No. 346, Oil Workers International Union (CIO) is now, and during
all times material herein has been, the exclusive representative of all the employ-
ees in the aforesaid appropriate unit for the purpose of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on January 1, 1950, and at all times thereafter to bargain col-
lectively with Local No. 346, Oil Workers International Union (CIO) as the
exclusive representative of its employees in the aforesaid appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not violated Section 8 (a) (1) and (5) of the Act by
refusing to bargain with Oil Workers International Union (CIO).
[Recommended Order omitted from publication ih this volume.]