Union Sulphur and Oil Corp.

National Labor Relations Board - Board Decisions

Jul 24, 1953

106 N.L.R.B. 384 (N.L.R.B. 1953)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become or remain members of the above-named union or
any other labor organization.
MONARCH FOUNDRY COMPANY.
Employer.
Dated ................ By.............................................................................. ...............
(Representative) (Title)
This notice must remain posted for 60 days from date hereof, and must not be altered,
defaced, or covered by any other material.
UNION SULPHUR AND OIL CORPORATION and LOCAL NO.
407, INTERNATIONAL UNION OF OPERATING ENGINEERS,
AFL, Petitioner. Case No. 15 -RC-560. July 24, 1953
SECOND SUPPLEMENTAL DECISION AND ORDER
Pursuant to a Supplemental Decision and Direction of Elec-
tion issued on May 7, 1952,1 an election was held under the
supervision of the Regional Director on June 2, 3, 4, and 5,
1952. A tally of ballots was served upon the parties which
showed that of approximately 395 eligible voters, 167 cast
their ballots for, and 215 against, the Petitioner. The Petitioner
filed timely objections to the election. The Regional Director
investigated these objections, and on September 17, 1952,
issued his report and recommendations, to which the Employer
filed timely exceptions.
On January 12, 1953, the Board having fully considered the
Petitioner's objections, the Regional Director's report, and the
Employer's exceptions, and having determined that substantial
and material issues of fact had been raised, ordered that a
hearing be held, and provided that the hearing officer des-
ignated for the purpose of conducting such hearing should
prepare and cause to be served upon the parties a report con-
taining resolutions of the credibility of witnesses, findings of
facts , and recommendations to the Board as to the disposition
of the objections. On February 26, 1953, such hearing was
held before Andrew P. Carter, hearing officer. Both parties
were represented and participated in the hearing. On March
27, 1953, the hearing officer issued and served upon the parties
i Union Sulphur and Oil Corporation, 99 NLRB 19. The original decision in this proceeding
was issued on January 31, 1952, dismissing the petition on the ground of the inappropriateness
of the unit requested, thePetitionerhavingsoughtto represent the Employer's Louisiana oper-
ations' employees only, excluding its Texas operations' employees. Union Sulphur and Oil
Corporation, 97 NLRB No. 236 (not reported in printed volumes of Board decisions)
On March 14, 1952, the Petitioner filed a new petition seeking to include the employees of
both the Employer's Louisiana and Texas operations, but withdrew this petition on April 28,
1952, at which time it moved the Board to reconsider its original petition on the basis of its
amended unit request. The Board granted this motion, and issued its Supplemental Decision
and Direction of Election mentioned in the text.
106 NLRB No 75.
UNION SULPHUR AND OIL CORPORATION 385
his report containing findings of fact and recommendations to
the Board . The Employer thereafter filed exceptions to the
hearing officer ' s report and recommendations.
The Board ' has reviewed the rulings made by the hearing
officer at the hearing and finds that no prejudicial error was
committed. These rulings are hereby affirmed. The Board has
considered the hearing officer's report, findings of fact, and
recommendations , and the Employer ' s exceptions . Upon the
entire record in this case the Board finds:
Less than 2 weeks before the election the Employer mailed
to its employees 2 notices announcing that it had made applica-
tion to the Wage Stabilization Board for approval of a sub-
stantial number of employee benefits .3 The hearing officer
found that, although the Employer had had a practice of
announcing wage increases , insurance plans , and other im-
provements in working conditions by written notice to its
employees , such notices had customarily not been made until
the benefits were to take effect. He concluded that the an-
nouncements of May 22 and 26 were departures from that
practice , and that , both because of this timing and because
they disclosed an unusually great showering of benefits on the
employees within a short space of time immediately preceding
the election , they constituted a restraint upon the employees'
freedom of choice which was essential to a fair election. He
therefore recommended that the election be set aside.
The Employer excepts to these findings , asserting , in sub-
stance, that: (1) The notices did not constitute a departure from
its past practices , because it also had a custom of making
verbal announcements to its employees of increases and other
benefits which were under consideration or for which applica-
tion had been made to the Wage Stabilization Board for approval;
and (2 ) all the benefits mentioned in the May 22 and May 26
announcements were not promulgated in the crucial period of
2 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[Members Houston, Murdock, and Peter-
son].
$ In one of these notices dated May 22, 1952, the Employer announced that: (1) In an amended
petition before the Wage Stabilization Board it was seeking a shift differential of 6 cents and
12 cents per hour (the petition before the amendment had sought 4 cents and 6 cents per hour);
and (2) it was filing a petition with the Wage Stabilization Board to include additional group-
insurance benefits with a formal sickness plan.
In the other of these notices, dated May 26, 1952, the Employer announced changes and
additions to its company- sponsored insurance plans consisting of (1) increases in the amounts
of life insurance, accidental death, and dismemberment provisions; (2) increases in amounts
of hospitalization benefits; (3) increase in amount of the surgical benefit; (4) provision for
employees medical expenses; (5) extension of the revised hospitalization and surgical benefits
to include eligible dependents; (6) provision for in-hospital medical expenses for dependents;
and (7) replacement of existing nonaccident sickness and medical insurance with a formal
sickness and accident plan paid for entirely by the Company. As to the insurance features of
the plan, the Employer announced that it would pay a substantial portion of the premiums
involved and the cost of administration and accounting. The notice further stated that "the
actual effective date of these improvements will be based upon Wage Stabilization Board
written approval," and that "in the case of the insurance plan, enrollment of at least 75
percent of the eligible employees and dependents participating is required "
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 weeks before the election , in that the shift differential had
been announced to the employees in April of 19524 and its
change to an increased amount was simply in keeping with a
change in the oil industry generally , which occurred when the
Wage Stabilization Board's approval of the increased differ-
ential was disclosed in a recent decision.
As to ( 1), there is undisputed evidence in the record that
the Employer had in the past made announcements to its
employees of benefits before they were to take effect.' As to
(2), however , we do not believe that the record supports the
Employer ' s assertion that its amended application seeking
increased shift differentials was merely in accord with a
general change in the amount of shift differentials in the oil
industry . The Wage Stabilization Board's decision in a case,
allowing 6- and 12-cent per hour shift differentials was issued
on May 14 , 1952.6 Most of the major oil companies in the
area had been paying a 4 - and 6-cent per hour shift differ-
ential for a substantial period of time. 7 The Petitioner concedes
that after the Wage Stabilization Board's approval of an in-
crease in the differential to 6- and 12 - cent per hour , this in-
creased differential rapidly became the pattern in the industry,
and practically all the major companies operating the area
adopted such increased differentials during the months of May
and June 1952.6
4The date appears as 1951 in the Employer 's exceptions . It is apparent , however, that the
date referred to is that given above, as that is the date of issue of a company paper " The Imp
Print," containing a review of employee benefits that the Employer had granted, which
mentioned the application to the Wage Stabilization Board for shift differentials.
5 This evidence , however , though uncontradicted , is not highly persuasive . It consists
merely of generalized testimony by witnesses for the Employer that employee meetings
were held at which the Employer learned of employee requests or suggestions and advised
them of management decisions . Although the employees involved in this case are scattered
throughout the Employer 's southwest Louisiana and southeast Texas , operations , no specific
testimony was given as to where and when such meetings were held. Exhibits offered in
evidence to support testimony by the Employer's chief of personnel that he "called or at-
tended" such meetings (Company's Exhibits Nos. 16, 17, and 18) do not in fact appear to
relate to meetings of employees, but on the other hand clearly are notices issued by the
Employer 's executives to the chief of personnel , inviting him to attend management meet-
ings. The chief of personnel further testified , however , that at supervisors ' meetings, the
supervisors were instructed to inform the employees in the field of the Employer ' s plans.
6As given in the record, this was the case of Farmers Union Central Exchange, Billings,
Montana, and Local 443, Oil Workers International Union, CIO.
7 The various oil companies mentioned in the record include the Gulf, Shell. Texas, Phillips,
Lion , Sinclair , Cities Service, Magnolia , Stanolind , and Sun oil companies . In the spring of
1952, the Employer made a survey of some of these companies and found that Magnolia,
Shell, Gulf, Humble, Stanolind, and Sun were paying 4- and 6-cent shift differentials. The
Employer's witnesses stated that it was as a result of this survey that the Employer made
its original application to the Wage Stabilization Board for approval to pay the 4- and 6-cent
differential.
8 The Employer ' s exceptions are based upon the premise that initially in seeking approval
for payment of shift differentials , and later in increasing the amount of differentials that
it sought , it was merely endeavoring to keep abreast of what other companies were doing
in the area. The Employer's operations have expanded substantially in the last several
years, and its vice president testified that it considers itself as competing generally with
the major oil companies. The Employer itself elicited testimony, however, in cross-exam-
UNION SULPHUR AND OIL CORPORATION 387
However, the record discloses that, among the companies
which ultimately adopted the increased differentials , very few
actually had taken this action during the interval between May
14, the date of the Wage Stabilization Board's approval of 6-
and 12-cent shift differentials , and May 22 , the date of the
Employer's announcement of its application to pay such dif-
ferentials to its employees . The record discloses that 1 or
2 companies did in fact indicate their agreement to the in-
creased differentials almost immediately after the Wage
Stabilization Board's decision announcing its approval. How-
ever, others of the major companies did not come to an agree-
ment with the representatives of their employees until a
period of weeks or even months after the May 14 decision.9 It
thus appears that a pattern of granting 6- and 12-cent shift
differentials had not in fact become manifest throughout the
industry at a date as early as May 22, 1952 . Accordingly, we
find that the Employer ' s announcement of an application for
increased differentials , made to the employees on that date,
was not made in the course of the Employer ' s practice of ad-
justing its employment conditions to meet those of its com-
petitors in the area, but rather constituted a promise of benefit
calculated to interfere with the freedom of choice of its
employees in the election.
Moreover , as to both the notices of May 22 and May 26, 1952,
the record reveals no other instances in which the Employer
announced so many benefits to be showered upon its employees
within so short a period of time . The Employer ' s assertion
is uncontradicted that the improvements and benefits an-
nounced in the May 26 notice had been under consideration
for some substantial period of time. However , the announce-
ments were not of benefit plans which had ripened to the stage
where they could become effective immediately , but of the
Employer's decision to seek Government approval to grant
them to the employees . Upon the whole record, we conclude
that it was more than mere coincidence that the Employer
chose to announce decisions to such approval for so many
benefits simultaneously and within the space of 2 weeks
before the election . For this additional reason , therefore, we
find that the May 26 notice , as well as that of May 22, con-
stituted interference by the Employer with the employees'
ination of the Petitioner 's representative, disclosing that most of the major companies
mentioned are many times larger than the Employer, and that a number of the smaller
companies about the size of the Employer did not pay any shift differentials , even in the
spring of 1952.
9The Employer contended at the hearing that even though some negotiations ( in settlement
of a strike then current among the employees of several companies ) continued for a long
period of time , the issue of shift differentials had become settled " in a matter of days"
and was no longer in dispute We do not credit this assertion , but rather credit the testimony
of the Petitioner's representative that even though it became known that the Wage Stabili-
zation Board would approve the increased differentials , the unions nevertheless were com-
pelled to continue to negotiate with the various companies to persuade them to agree to
grant these differentials to their employees.
322615 0 - 54 - 26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
free choice in the election. We shall set the election
aside. to
ORDER
IT IS HEREBY ORDERED that the election of June 2, 3, 4,
and 5, 1952, among the Employer's employees, be, and it hereby
is, set aside.
IT IS FURTHER ORDERED that this proceeding be re-
manded to the Regional Director for the Region in which this
case was heard, for the purpose of conducting a new election at
such time as he deems the circumstances permita free choice
as to collective -bargaining representation.
ioSpengler-Loomis Mfg. Co., 95 NLRB 243; Le Roi Company, 101 NLRB 55; Beaver
Machine & Tool Co., Inc., 101 NLRB 1782. The Employer also claims that the Petitioner
waived its right to object to the notices of May 22 and 26, 1952, because it knew of them
before the election and yet participated in it without raising any question as to these notices.
It relies largely on Denton Sleeping Garment Mills, Inc., 93 NLRB 329. As noted by the
hearing officer, however, this case has since been overruled by the Board on this particular
point in The Great Atlantic & Pacific Tea Company, 101 NLRB 1118. The hearing officer's
finding that there is no merit in this contention is affirmed.
MR. JOHN, INC. and MILLINERY BLOCKERS UNION, LOCAL
42, UNITED HATTERS, CAP AND MILLINERY WORKERS,
INTERNATIONAL UNION, AFL, Petitioner. Case No.
2-RC-5765. July 24, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Leonard J.
Lurie, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.1
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 [Members Houston, Styles, and
Peterson] .
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
'On June 15, 1953, the Employer filed with the Board a motion to strike testhpony admitted
by the hearing officer at the hearing relating to statements made by the Employer's general
manager at the informal conference. In view of our determination in paragraph 3, we do not
pass on this motion.
106 NLRB No. 71.