Cities Service Refining Corp.

CITIES SERVICE REFINING CORPORATION 797 We find, accordingly , that all production and maintenance employees at the Employer ' s operations in California and Arizona, excluding office and clerical employees and all 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. 5. All parties stipulated that any election or elections con- ducted pursuant to this decision should be held at or near the peak of the season. Accordingly, we shall direct that the election be held at or about the peak of the 1953 season, on a date to be determined by the Regional Director , among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of the issuance of notice of election by the Regional Director. As stated above, the employees of one location, situated at Santa Maria, California , voted in a Board electionlate in 1952, following which the Regional Director certified the CIO as their bargaining representative. Ordinarily, we would not poll these employees at this time. We have found, however, that now, due in large measure to the substantial interchange of employees among the various locations ( including interchange between Santa Maria and elsewhere ), and the seasonal shifting of employees from one location to another, only an employer- wide unit is appropriate. As we have foundthat these employees are appropriately part of the employerwide unit and as the election hereinafter directed is not in the unit or subdivision in which the October 4, 1952, election was held, they are not precluded by Section 9 (c) (3) of the Act4 from participating .in the election herein ordered .' In these circumstances, we shall not exclude Santa Maria from the unit , and if any em- ployees are stationed at that location when the election is held, they may cast ballots. [Text of Direction of Election omitted from publication.] 4Section 9 (c) (3) provides that "No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held." 'Robertson Brothers Department Store, Inc., 95 NLRB 271. CITIES SERVICE REFINING CORPORATION and OFFICE EM- PLOYEES' INTERNATIONAL UNION, LOCAL 87, AFL. Case No. 15-CA-502. June 29, 1953 DECISION AND ORDER On May 20, 1953, Trial Examiner Arthur Leff issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not violated Section 8 (a) (1) or (3) of the Act, as alleged in the complaint, and recommending 105 NLRB No. 124. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the complaint be dismissed , as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report, and supporting briefs. i 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 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 except as modified below. We agree with the Trial Examiner that the Respondent did not violate Section 8 (a) (1) or (3) of the Act by paying employees not represented by any union for time not worked during a strike and picketing by temployees represented by the IAM, and denying similar payment for time not worked during the strike and picketing to employees in a separate unit repre- sented by the charging Union, the OEIU. However, in reaching this conclusion, we, unlike the Trial Examiner, rely solely on the fact, disclosed by the record, that the employees represented by the OEIU, unlike the unorganized employees, were absent from work in breach of a no-strike clause in the OEIU's contracts with the Respondent, and that the Respondent relied on this contract in determining not to pay those in the OEIU unit. Accordingly, we find that there was no unlawful disparate treatment and we shall dismiss the complaint." [The Board dismissed the complaint.] 1The Respondent's exceptions were limited to certain subsidiary findings and conclusions of the Trial Examiner. We have not considered the merits of these exceptions as they do not affect our decision herein, dismissing the complaint upon an independent ground. Hence, for the purposes of this decision, we assume, without deciding, that they have no merit. 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 case to a three-member panel [Mem- bers Murdock, Styles, and Peterson] 3Article XVI of the contract reads, in pertinent part, as follows: "During the period of this Agreement the Union agrees that there shall be no strikes or stoppages of work. "Wagner Electric Corporation, 105 NLRB 1 Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed by Office Employees' International Union, Local 87, AFL, herein called the OEIU, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued his complaint, dated January 6, 1953, against the Respondent, Cities Service Refining Corporation, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent illegally discriminated against some 112 employees, members of a bargaining unit represented by the OEIU, by failing and refusing to pay them full wages for the period of time covered by a strike conducted by employees represented in an established bargaining CITIES SERVICE REFINING CORPORATION 799 unit by the International Association of Machinists, although it paid full wages for that period to employees who were not in an appropriate bargaining unit represented by any labor organization, regardless of whether or not such nonunit employees performed any work for the Respondent during the strike period The Respondent in its verified answer, while denying the commission of unfair labor practices, admits subptantially the factual allegations of the complaint, without conceding, however, the inferences claimed to arise therefrom. The Respondent's answer, by way of affirmative defense, alleges that the Union's charge, preceded by its demand for payment of the wages referred to in the complaint, constituted a violation of Section 8 (b) (6) of the complaint Pursuant to notice, a hearing was held at Lake Charles, Louisiana, between March 16 and 18, 1953, before Arthur Leff, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the OEIU by an official representative. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties During the course of the hearing, the General Counsel moved to strike from the Respondent's answer the allegation relating to the claimed violation by OEIU of Section 8 (b) (6) of the Act The motion was granted At the close of the hearing a motion was granted to conform the pleadings to the proof with regard to minor variances i Opportunity was afforded all parties to argue orally upon the record, and to file briefs and proposed findings and conclusions. After the hearing briefs were filed by the General Counsel and the Respondent A joint motion was also filed by the General Counsel and the Respondent to correct the official transcript in certain respects that were stipulated to The motion is granted Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT Cities Service Refining Corporation, a Delaware corporation engaged in the business of refining crude petroleum into various products, operates a refinery at Lake Charles, Louisiana, and, adjacent to the refinery, also operates a butadiene plant, as agent and lessee of the Reconstruction Finance Corporation--Office of Rubber Reserve At its Lake Charles facilities the Respondent annually purchases raw materials having a value in excess of $2,000,000, of which in excess of 50 percent is shipped to Lake Charles, Louisiana, from and through States of the United States other than the State of Louisiana From its Lake Charles facilities, the Respondent annually sells and distributes petroleum products of a value in excess of $ 10,000,000, of which more than 50 percent is shipped from Lake Charles, Louisiana, to and through States of the United States other than the State of Louisiana The Respondent concedes that it is engaged in commerce within the meaning of the Act IL THE LABOR ORGANIZATION INVOLVED Office Employees' International Union, Local 87, AFL, is a labor organization admitting to membership employees of the Respondent Ill. THE UNFAIR LABOR PRACTICES A. Background 1 Employee groupings, represented and unrepresented The Respondent employs approximately 2,300 employees at its refinery and butadiene plants which occupy tracts of land adjacent to each other and which are integrated to such a degree as to function virtually as one For payroll and other administrative purposes the Respondent divides its employees into the following categories i At that time also, leave was granted to the parties to file after the close of the hearing an additional stipulation of fact to be filed as Respondent's Exhibit No 14. The Trial Examiner was later advised in writing by the General Counsel that the stipulation would not be forth- coming as the parties had been unable to agree upon the facts to be stipulated 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Lake Charles Metal Trades Council bargaining unit (approximately 1,500 hourly paid employees)- In this category are all nonsupervisory production and maintenance employees, other than machinists, who form an appropriate collective-bargaining unit that has been represented since about 1944 by Lake Charles Metal Trades Council and its affiliated AFL craft unions (b) International Association of Machinists bargaining unit (115 hourly paid employees)- This is a separate appropriate collective-bargaining unit that has been represented for many years by the International Association of Machinists, AFL, herein called the LA.M. (c) Clerical bargaining unit represented by office Workers International Union, AFL, the charging Union (113 salaried employees): This bargaining unit established by Board decision (70 NLRB 1051) is composed generally of all nonsupervisory office employees, excluding employees who perform confidential duties in the field of labor relations or who act as secretaries to executives who exercise managerial functions in that field (d) The so-called clerical nonbargaining group (113 salaried employees): The classification given by the Respondent to this grouping is a misnomer Actually it is a "catch-all" group, covering a number of occupational groups. It includes those office clerical employees, 26 in number, who by reason of their confidential duties were excluded from the clerical bargaining unit But it also includes such diverse classifications as plant guards (40), firemen (25), safety inspectors (15), and nurses (17). None of the employees in this broad category are represented for the purposes of collective bargaining, and, so far as appears, no efforts have been made to organize them (e) Cafeteria group (15 hourly paid employees). This grouping consists of the cafeteria employees who are unrepresented by a labor organization. There is no evidence that any effort has ever been made to organize them (f) Nonclerical, nonbargaining group (approximately 180 salaried employees ): This category is made up of the Respondent's technical employees. It consists in part of professionally trained employees who hold engineering degrees and in part of employees who, while not holding degrees, have had technical experience and training. Many of the nonprofessionals in this category were graduated to their present positions from the ranks of the production unit The employees in this category are not represented by any labor organization . The record reflects that the OEIU has made efforts to organize technical employees, at least those in the engineering department, but has never succeeded in obtaining a majority. It also reflects, however, that the OEIU was engaged in no special activity in that direction during the course of the I.A.M.'s strike, referred to below. About a month after the conclusion of that strike, the OEIU advised the Respondent in writing of its interest in representing employees in the engineering department Ed Freeman , the Respondent' s labor relations director , testified that that was his first notice, official or otherwise , of organizational efforts among the technical employees However, Louis D Mann, the Respondent's president, conceded while testifying that he had heard rumors to that effect for about 4 or 5 years before the written advice was received from the OEIU on June 12, 1952, but had paid little attention to them There is no evidence, and no claim, that the Respondent ' s management officials ever expressed any opposition to organization of their technical employees It appears that shortly after its notice of June 12, 1952, to the Company the OEIU discontinued, or at least suspended, its efforts to organize technical employees (g) Exempt supervisory group (265 employees) This category is composed of those em- ployees who are exempt from the operations of the Fair Labor Standards Act 2. The OEIU contract At the times here relevant the employees in the OEIU unit were covered by a collective- bargaining agreement for a term which had begun on May 15, 1951, and was to continue until July 1, 1953. With regard to the present controversy , it is important only to note the following: (a) The contract prohibits the OEIU from engaging in strikes or work stoppages during its term, except under certain conditions not pertinent to this proceeding. (b) Although the employees in this unit are salaried , the contract provides that payment for time worked ,.will be calculated on the basis of the hourly equivalent of their salary, adjusted to the nearest half cent." The contract makes a number of specific provisions for payment for time not worked--such as for emergency call-in pay, and for absences caused by jury duty, death in the family, and emergency service with the National Guard. Nothing is stated in the CITIES SERVICE REFINING CORPORATION 801 contract, however, concerning payment for time not worked caused by involuntary absences attributable to picketing activities or strikes by other unions. 2 B. The I. A. M. strike; the position of the other unions during the course of the strike In early May 1952 each of the bargaining agents- -the Metal Trades Council, the L.A.M., and the OEIU--was engaged in separate bargaining negotiations with the Respondent The Council and the OEIU--though both under contrast for terms extending into the following year--were negotiating cost-of-living increases pursuant to limited reopening clauses provided for that purpose The I. A. M. contract had already expired, and it was conducting general negotiations for a new one. On Sunday, May 4, 1952, at approximately 11 p. m., the I.A.M. struck, following a breakdown of its contract negotiations with the Respondent The strike lasted until the evening of the following Friday, May 9, 1952, when it was ended with the execution of a contract. 3 While the strike was in progress, the I.A.M. picketed the entrances to the Respondent's plants. Though there is evidence that, at shift-change times at least, a substantial number of the strikers congregated in the area where picketing was being conducted, it does not appear that anyone who chose to enter the plants was ever physically prevented from doing so. Those employees who crossed the picket line were stopped and urged not to, but if they persisted they were allowed to pass without molestation, except perhaps to be made the object of appellations such as "scab." The picketing and the strike were unaccompanied by any violence or threats of violence During the 5 days of the strike, the Respondent continued the operation of its plants on an emergency basis. The plants were operated in the main by the night shift that was on duty when the picket lines were established, supplemented to a minor degree by certain more or less key employees who responded to emergency calls issued to them during the night that picketing began. Arrangements were made to feed and bed the night-shift employees so that they might operate the plant facilities around the clock without leaving the plant. Most of the employees on the night shift, as well as those who responded to emergency calls during the first 10 hours of the strike, remained in the plant for the duration of the strike. Except for those housed in the plant, scarcely any employees reported for work on schedule during the strike week, though some reported intermittently A more detailed analysis of the work records for the week of the various employee groups, represented and unrepresented, is reserved for a later section of this report When the LA.M. strike began, the Respondent called upon the Metal Trades Council to fulfill its contract obligations by seeing to it that its members reported for work across the picket line A public statement was issued by the Council's business manager advising all members that the Council and its affiliated locals had a valid and binding contract with the Respondent, that the officers intended "to use every recourse at their command to see that the obligations involved in the bargaining agreement are carried out to the letter", and that they were therefore calling on the membership "to assist in seeing that these honorable aims are fulfilled " This statement had little effect upon those members of the Council's unit who 2 Although the Respondent has no declared policy in that regard, the record discloses a prior instance of such payment, at least to certain employees including the officeworkers, long before the OEIU unit was organized. That had occurred in 1944, when tenants of a neighboring housing project, protesting an increase in rents and wrongly attributing responsi- bility to the Respondent which in fact had no proprietory interest in the project, had thrown a picket line about the Respondent's plant. Following the conclusion of the 1944 picketing, the Respondent paid its officeworkers their regular salaries even though they did not come to work across the picket line. The record does not show whether or not the Respondent then similarly paid its production employees who, unlike its officeworkers, were already organized in a bargaining unit and represented by a labor organization. 3During the week of the strike, the Respondent and the Council also concluded an agree- ment on the cost- of- living wages increase they were negotiating. While no agreement with the OEIU on that issue was reached until later, it was generally understood that an agree- ment between them would soon be forthcoming, for the OEIU usually went along with the wage- increase pattern settled upon between the Council and the Respondent 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were not already in the plant when the strike began The record shows that, while there was some seepage through the picket line by production and maintenance employees during the week of the strike, the total number that passed through during the entire week did not exceed about 50, an inconsequential number considering the size of the unit The Respondent made no similar appeal to the OEIU for fulfillment of its contract ob- ligations, and refrained also while the strike was in progress from soliciting individual members of the OEIU unit to come to work across the picket line. Unlike the Council, the OEIU issued no public statement of its position with regard to the I.A.M. strike It appears, however, that OEIU Business Manager Spears received numerous inquiries from members on that subject. Spears uniformly responded by reading to the employees a prepared state- ment, which followed a like statement he had received from the Council-affiliated Operating Engineers' Union business agent. The statement was as follows A legal economic strike has been called in the Cities Service Refinery at Lake Charles, Louisiana, by the International Association of Machinists, A. F. of L. Local Union No 87 Office Employees International Union has a valid contract in existence with the Cities Service Company covering the plant office employees. TheOffice Employees International Umon, Local No 87, have not, do not, and shall not advise or instruct any member to refuse to cross the picket line If an individual member believes his or her health and safety is in danger should they cross the picket line then the individual must make their own decision as to whether or not to cross the picket line During the strike week , the OEIU held a meeting to discuss the latest wage offer the Respondent had made in the pending negotiations . At that meeting, Spears read to the mem- bership the quoted statement. There was considerable discussion at the meeting as to whether the members' job security would be endangered by their failure to report for work across the picket line Spears expressed the opinion that the Respondent would not discharge em- ployees who failed to cross the picket line out of fear of violence C. Conduct of employees during strike Attached hereto as Appendix A is a table summarizing the attendance records during the strike of the employees in the various categories outlined above, other than those in the production and supervisory groups.4 It will be observed that over 85 percent of the employees in the OEIU unit refrained from reporting at all during the week of the strikes In the clerical nonbargaining (" catch-all") group, those who reported were mainly firemen, plant guards, safety inspectors , and nurses. Of the 24 in this group who did not report at all , about 22 were clerical employees who had been excluded from the OEIU unit because of their confidential capacity . In the nonclerical, nonbargaining (technical) group, most of the employees also refrained from coming to work during the strike. As had been noted, the technical group is made up of professionally trained personnel and of employees who do not hold professional degrees Most of those in this group who reported were professionals The General Counsel introduced considerable evidence as to the reasons that motivated employees to refrain from crossing the picket line This evidence apparently had two ob- jectives . The first was to offset an allegation in the Respondent ' s answer that seems to suggest, though it does not say so directly , that unit employees who did not report for work did so of their own volition , while nonunit employees who did not report were doing so pursuant to instructions of the Respondent to hold themselves in readiness subject to call. The second was to show generally that there was no substantial difference between the conduct of unit employees and that of nonumt employees who failed to report during the strike. 4As has already been noted, only a scattering of the production employees in the Council's unit who were not already in the plant when the strike began crossed the Machinists' picket line. The record reflects that a few of the supervisory personnel refrained from crossing the picket line at the beginning of the strike, but that all were at work by the end of the week. 5Not all members of the unit were members of the Union Among those who stayed out were some employees who were not union members It appears that at least some of those who were in the plant when the strike began, as well as the three (all telephone operators) who were called in before the day shift was scheduled to report and who stayed for the duration, were union members. There is no evidence that any union members thereafter crossed the picket line, although there is evidence that some nonmembers reported intermittently. CITIES SERVICE REFINING CORPORATION 803 The evidence establishes that among the nonunit employees, there were some, specifically about 50 or more technical employees in the general engineering department, who on the opening day of the strike were advised by a department supervisor, Stokes, that they need riot come to work across the picket line but should hold themselves in readiness to report upon call But the same evidence also shows that among those forming part of the group addressed by Stokes when such advice was given were a number of OEIU unit employees who worked in the engineering department. There is also uncontradicted evidence establishing that some other office employees in the OEIU unit were informed by their immediate supervisors while the strike was in progress that they need not continue coming to the plant each day, but could remain at home until told to report .6 At the hearing, the Respondent made no effort to defend a distinction between nonreporting unit and nonunit employees on the basis of instructions issued to them. On the contrary, the Respondent sought to develop through its principal witnesses that its supervisors were unauthorized to instruct employees not to report during the strike, whether such employees were in or out of the bargaining units While not disputing that such instructions may have been given in some instances by supervisory officials, the Respondent attributed this to the general administrative confusion and chaos prevailing during the opening days of the strike. As for the bulk of employees (outside the production unit) who received no instructions, one way or the other, about coming to work, the General Counsel maintains that OEIU and nonunit employees who failed to report across the picket line were alike influenced by a single consideration- -fear of violence. On the other hand, the Respondent at the hearing took the position that while it should be assumed that such was the reason for the absence of nonunit employees, in the case of unit employees who were also union members it must be assumed that they did not cross because they chose as a matter of principle to respect the union picket line To support his position, the General Counsel called many witnesses, members of the OEIU unit, who testified that although they came to the plant ready and willing to go to work, they did not enter because of fear of picket-line violence. Ihave considerable hesitancy in accepting their testimony at face value as a predicate for a finding that the expressed fear was the only or even the controlling basis for their failure to cross the picket line, particularly since the strike does not appear to have been accompanied by any actual violence or threats of violence. Testimony of this kind, involving subjective reasons influencing action, declared after the event and for the purposes of litigation, provide at best an undependable guide to the deter- mination of true motive And especially is this so in a situation such as this where an employee's decision is likely to be affected by numerous subtle and complex pressures. Other testimony developed through cross-examination of some of the witnesses supports this view. It reflects that, apart from the possibility of violence, different individuals in varying degrees were also influenced in their decision by other factors-- among them, the traditional reluctance of trade-union members to cross picket lines, the fear of condem- nation by fellow workers and possible reprisal from their own union, a desire to conform their conduct to the pattern of others in their group, avoidance of unpleasantness through name-calling or the like, etc All this was summed up by one employee, Bible, who testified, "You think of a lot of things before you cross." For somewhat similar reasons, I am reluctant to accept as too broad and unwarranted a generalization, the assumption that all the nonunion members who stayed out were induced to do so entirely by fear of physical violence or picket-line unpleasantness if assumptions are to be indulged in, I think it just as reasonable to assume that they, too, stayed out for a complex of reasons, which, while they might not have involved such considerations as fear of union condemnation or reprisal, corresponded in other respects to those which influenced union members Although all this may have loomed as an important issue at the hearing, it is now no longer so The Respondent in its brief has made the following concession which comports with my own view of the record: Aside from the fact that we are inclined to view with skepticism the rather monotonous parroting by all the union witnesses of a pat phrase to the effect that they were simply afraid of getting their heads bashed in and the rather singular statement that a picket 6It is to be observed, however, that this advice was given after the employees in question had already disclosed by their conduct their unwillingness to cross the picket line The testimony of at least some of the witnesses testifying on this point reveals that they would have refrained from crossing the picket line in any event. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD line meant nothing to them , we are prepared to ease the burden on the Trial Examiner and on ourselves by conceding that General Counsel has established the point that among those employees who did not cross the picket line to work during the strike, there was virtually no difference between the respective conduct of those in the bargaining unit and those not in such unit. D. The payment to nonunit employees for time lost during the strike During the strike there was considerable speculation and concern among employees, particularly those who had been led to understand they need not report , as to whether they would be paid for time lost. The Company , however , refrained from any commitment in that regard There is evidence showing that on the second day of the strike 2 employees, 1 a technical employee and the other a confidential employee, both outside the bargaining units, constituted themselves into a sort of self-appointed committee to go through the picket line to confer with management officials about the situation They conferred with a group of management officials headed by Chief Refinery Engineer Sicks. In substance they were told that work was available for them if they wanted to go through the picket line; that they were not, however, being ordered to go through, and that they would be paid if they went through the line and worked, but not otherwise. On the question of payment, however, Sicks later qualified his remarks by indicating that there was some possibility that arrangements might be made to pay at least certain employees for time lost as a result of the strike, but this would depend largely upon the duration of the strike. At the conclusion of the strike it was decided at a meeting of higher management officials that certain groups of employees would be paid for time lost during the strike. The basis on which the Respondent claims this decision was made is discussed in a separate section below. Following the end of the strike, the Respondent paid its employees who were not in a represented bargaining unit on this basis Those employees who worked for the duration of the strike were paid for time actually worked Those who did not work at all, or who worked less than 40 hours that week, were paid their regular salaries or wages for a full 40-hour week. I On the other hand, none of the employees in any of the bargaining unit categories were paid for the strike week, except those employees who actually worked, and they were paid for the exact time they worked, but no more. The employees in the units represented by the Metal Trades Council and the OEIU were, however, granted the privilege of receiving full payment for the strike week at their regular rates of pay if they notified the Respondent of their election to count that week as part of their regular vacation. The decision not to pay employees in the Council and OEIU units was announced to them through a notice which merely announced the decision that had been made as to them, and stated nothing else. The pay decision with regard to others was apparently announced at meetings of employees called by management during the week following the strike At the meeting in the engineering department, which was also attended by OEIU employees in that department, Chief Refinery Engineer Sicks delivered a brief address to the employees in which he expressed his ap- preciation to those who had worked during the strike, assured those who had not that the Respondent held nothing against them, since it recognized that fear of violence might have deterred them, and indicated his regret at not having been able sooner to answer their questions as to whether they would be paid for time lost during the strike In a question- and-answer period that followed, Sicks, in response to a question concerning the Respondent's policy, stated that he could not say whether the technical employees would be paid under similar circumstances in the future, as he did not know how long a future strike might last. One of the OEIU unit employees who was present then asked Sicks why the Respondent had paid its technical employees but not its bargaining unit employees, when both had been in the position of risking bodily injury if they came to work through the picket line Sicks replied that the Company had no means of knowing each person's reason for not crossing the picket line, that the bargaining unit employees were not paid because they had a contract which the Company considered they had not fulfilled, that, therefore, since they had not worked they would not be paid, but that the Company had no contract with the engineers 7 Included among those so paid were all employees in categories (d), (e), (f), and (g), as well as a women porter (who did not report for work) who is not included in any of the seven categories that have been listed. CITIES SERVICE REFINING CORPORATION 805 Apart from Sicks' statement reported above, the only record evidence of any explanation given by a supervisory employee to an employee with regard to the distinction made between unit and nonunit employees is to be found in the testimony of Susie Aiken, an OEIU employee. Aiken testified that she was told by her section head, Granberry, when she inquired of him as to the reason for the distinction made between the process engineers and office workers in her department, that the Company had a right to take care of its people and the Union would take care of those it represented. E. The OEIU grievance The OEIU never requested the Respondent to negotiate with it on the question of whether employees in its unit should be paid for time lost during the strike. On that point, Business Manager Spears testified, "We didn't feel we should negotiate it." Instead, taking the position that OEIU unit members were entitled to such payment as a matter of right, the OEIU elected to pursue its claim under the formal grievance procedures established by its contract with the Respondent. B The Respondent, however, took the position at each stage of the grievance procedure that the matter was not properly cognizable as a grievance under the specific-terms of the contract, and refused to recognize it as such. This was not merely a technical position, for to have recognized the matter as a proper grievance would have required the Respondent to submit it to arbitration at the last step, if settlement was not earlier reached. At the penultimate stage of the grievance procedure, the Respondent, after again asserting its consistent position that the matter was not a proper subject for formal grievance under the contract, indicated that it was, nevertheless, willing to "honor a proper request on [the OEIU] part for a conference to discuss this particular dispute." No such conference was ever requested by the OEIU. The OEIU had earlier filed its unfair labor practice charge in this proceeding. According to Spears, he did not seek a conference with the Respondent because the matter was now already before the Board for investigation. F. Respondent's explanation at the hearing for the disparate treatment It appears from the record that the pay decision was made by Louis D. Mann, the Respond- ent's president, after consultation with various members of higher management, including Willard E. Bennett of the labor relations department. Mann and Bennett were the only representatives of the Respondent who testified directly on that subject. Mann testified in substance as follows: Consideration of payment to employees for time lost during the strike was precipitated by a fear on the Respondent's part that if it did not make such payment it might antagonize certain employees particularly in the technical group, who, because of the tight manpower situation, were hard to replace, and thus risk the loss of their services. In deciding who should be paid and who should not, the employees were considered not as individuals, but in terms of the payroll groups in which the Respondent divides its employees. A number of factors were taken into account, but the one to which Mann gave most weight was the factor of replaceability. Mann considered the Respondent's technical employees difficult to replace. He considered certain employees in the confidential group, such as private secretaries to higher management officials, also difficult to replace. While agreeing that'others in that group might not have been, he nevertheless viewed the confidential employees, as a class, to be "a very special kind of people to us." The cafeteria group, he conceded, was not difficult to replace, but most of them had reported for work anyway. Moreover, replaceability was not the only factor taken into account. The factor of cost was considered important; the Company felt it had to pay some, but it could not afford to pay all. Legal factors were also discussed. Mann could not recall just what they were, except that he faintly remembered that there was some talk as to what the Company's rights and obligations were from a legal standpoint as to employees in the bargaining units. Also taken into account were contract considerations. Though Mann did not view the Metal Trades Council and the OEIU as formally on strike, he nevertheless personally believed that em- ployees in these units who had not reported for work had failed to live up to the no-strike 8 Under the contract, grievances are processed in writing after the original complaint by an employee to his supervisor, in the following stages: (1) Submission in writing to the general superintendent; (2) an appeal in writing to the president and general manager 10 days after adverse decision by the superintendent; (3) subrrussion 30 days later to a committee of 2, 1 selected by the Union and 1 by the Company; and (4) arbitration. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligations of the contracts. He also gave weight to the fact that the OEIU contract while specifying certain types of absences for which payment would be made, did not include among them absences caused by strike or picket-line activity. Bennett testified substantially as follows: The question of payment first arose as a result of a great deal of insistence by technical department heads that the Company would have to do something about paying its technical employees who were in short supply and difficult to replace. The decision to pay the technical employees was reached primarily for that reason. And that led to a consideration of other payroll categories . Apart from the bargain- ing unit categories , there were only two--the "catch-all" category and the cafeteria group. In the "catch-all" category all but 24 employees had reported , and the 24 were made up almost entirely of confidential employees . In the cafeteria group, there were only two who had failed to report. It was Bennett's advice that the Company could pay the "catch-all" employees "from an industrial relations point of view .".9 In arriving at the ultimate decision to pay the small number of employees in this group who had not reported, the Company took into account not only the small sum that would be involved, but also that the Company had no reason to assume that the failure of these employees to report had a basis other than fear of picket-line involvement. As for the cafeteria employees, Bennett's testimony was not entirely consistent. At one point, he testified that "not much consideration" was given this category, except that the Company had latitude of movement "from an industrial relations point of view." Elsewhere, however, Bennett testified that he was unable to recall any specific discussion concerning this group, and that the payment of the two employees in it who had not worked, as well as to a maid outside any of the payroll groups, was the result of an oversight. io The next group considered--Bennett's testimony continued--was the OEIU unit. Up to this point, the payments decided upon, from a cost point of view, had amounted to "peanuts." But consideration of the OEIU unit led at once to consideration of the Metal Trades Council group, and payment to the latter would have involved a very substantial sum which the Company was unprepared to disburse Bennett's advice was that the OEIU and Metal Trades Council unit payroll groups were distinguishable from the unorganized groups, in that it could reasonably be assumed that the employees covered by union contracts, considered as groups, had failed to report for work because they were honoring the picket lines, an as- sumption that could not be made in relation to the employees in the nonbargaining groups. Bennett advised the Company's management, moreover, that the Company did not have the same latitude of movement with regard to the OEIU unit as it had with unrepresented employees for, under the law, benefits beyond the OEIU contract terms could not be granted unilaterally but would require negotiation. From a cost point of view, payment to the OEIU unit alone, without like payment to the Metal Trades Council, would not have provided an unsurmountable obstacle, but it was feared, according to Bennett, that if the Company itself proposed nego- tiations for such payment with the OEIU, it would open the door to demands for like nego- tiations with the representatives of the production and maintenance employees, and this the Respondent was anxious to avoid. G. Evaluation of the Respondent ' s reasons for the disparate treatment To what extent are the Respondent 's explanations for the disparity in treatment to be credited? Of the various factors on which the Respondent claims it relied in reaching its decision to pay some employees but not all, the one to which Mann , at least, stated he gave greatest weight was the desirability of paying certain groups of employees who were difficult to replace. I am satisfied on all the evidence that the Respondent's decision to consider the pay question in the first instance was prompted largely by a desire to avoid the risk of dis- 9Bennett did not explain while testifying exactly what he meant by this However, other portions of his testimony indicate that his reference was to the Company's right to make that determination on a unilateral basis ioBennett explained that in drafting the pay order on the basis of the fragmentary decisions made, it occurred to him that the easiest way of expressing it was to state that those in the bargaining units should be paid according to their contracts, and others who had not worked, or who had worked part of the week, on the basis of a 40-hour week In his search for an easy formula, according to Bennett, he forgot completely about the two cafeteria employees and the maid, CITIES SERVICE REFINING CORPORATION 807 satisfaction and possible loss of services of at least the professional employees in the technical group for whose services, because they were in short supply, there was considerable market competition. I am not satisfied, however, that the Respondent's eventual decision to pay all its unrepresented employees who did not report for work can reasonably be accounted for on that basis. The technical group itself was made up not only of professionals but also of a substantial number of nonprofessionals--draftsman, laboratory technicians, and the like. The record discloses that there was no particular problem with regard to the procurement and retention of nonprofessionals. These employees might be deemed difficult to replace only in terms of their acquired experience and training in the plant, not in terms of the manpower situation. But even if that consideration, coupled with the fact that the nonprofessionals were lumped in a common payroll group with the professionals and with them considered as a unit, may account for the disparity between the payment to the technical group and nonpayment to the bargaining clerical group, the factor or replaceability still fails to explain the distinction drawn between the other unrepresented employees and the bargaining clericals. The testimony of the Respondent's own witnesses establishes that, considered as groups, there were substantially no differences in skill, training, or labor market availability between clerical employees inside and those outside the OEIIJ unit. Moreover, it is conceded that the two cafeteria employees and the maid, who also were paid though they did not work, were readily replaceable. As for the other factors assigned, I find the testimony of the Respondent's witnesses credible as to some, but not as to others. Thus, I do not believe Bennett's testimony, un- supported by Mann and partially contradicted by Bennett himself, that the two cafeteria employees and the maid were paid by error. Bennett's testimony that consideration was given to the Respondent's inability to take unilateral action with regard to employees in the bargaining units impressed me as a rationalization to justify the pay line already drawn and not one that actually influenced the drawing of it. I have no reason to doubt that, in weighing whether to extend the pay line beyond the technical employees, the Company may have taken into account that its confidential employees, particularly the private secretaries, were to the Company a "special kind of people" in terms of trust, deserving special consideration for that reason. As for the factor of cost, I also have no reason to doubt that the Respondent took this into consideration, and that it was influenced, at least partially, by the small amount involved in extending the payment area past the technical group to the relatively small number of remaining unrepresented employees. However, I do not believe that a major reason for excluding the OEIU unit from among the employees paid was a fear on the Re- spondent's part that it might thereby become involved in complications with other unions. Bennett's testimony on that point was not convincing and impressed me as an afterthought. Moreover it is inconsistent with additional reasons which the Respondent's witnesses stated, and which I believe, were taken into account in the eventual determination. These additional reasons were that the represented employees, unlike the unrepresented, were covered by collective-bargaining agreements which made no provision for payment under such circum- stances; that Mann felt the represented employees had not complied with their contract obligations by failing to report for work during the I.A.M. strike; and that it was assumed that the organized employees, as a group, were voluntarily honoring the picket line and were thus unavailable for work in any event during the week of the I.A.M. strike. It is to be noted that, apart from the factor of representation as such, a factor which the Respondent denies was the motivating cause of its decision, the last mentioned considerations are the only ones advanced by the Respondent that would serve to explain why the pay line was drawn precisely at the border between the represented and unrepresented employees. As bearing in the accuracy of my conclusion that the Respondent was in fact influenced by these considerations, it is to be noted that Chief Refinery Engineer Sicks, a high management official, shortly after the pay decision was made and before thecharge in this case was filed, explained the decision on almost precisely these grounds when responding to a query of an employee. H. Analysis and conclusions 1. The issues The General Counsel does not contend that the OEIU unit employees were deprived of benefits which normally would have been their due but for their selection of a bargaining agent. His claim of illegal discrimination is founded entirely upon the fact that the Re- spondent chose to pay employees outside the bargaining units for time lost during the I.A.M. strike, while withholding such payment from employees in the OEIU bargaining unit. He 291555 0 - 54 - 52 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD submits that the only distinguishing factor between those paid and those not paid was that of union representation, or the want of it, and from that he would have it concluded that the disparate treatment constituted illegal discrimination within the meaning of Section 8 (a) (3). The Respondent, on the other hand, while conceding as it must that the pay line coincided with the representation line, disputes that the factor of union representation , as such, was the controlling basis for its pay decision . It contends that its decision was controlled by other considerations which were not in themselves unlawful within the meaning of Section 8 (a) (3). Additionally , the Respondent argues that the General Counsel has failed in a vital element of his proof--a showing that the disparity had as its purpose the discouragement of mem- bership in a labor organization . With that the General Counsel takes issue, contending that once having established discrimination in fact explainable only on the basis of union repre- sentation or the lack of it, it was unnecessary for him to go further to show antiunion mo- tivation. But, he says , even if such a showing is necessary , he has established it. 2. Applicable principles It is to be observed , to begin with, that we do not have here a situation, such as in Gaynor News, 11 where employees in a common class are disparately treated on the basis of their union membership or nonmembership . For the Act does not privilege an employer under any circumstances to accord disparate economic benefits to his employees on that precise basis. And for him to do so, is for him to engage in a per se violation of the Act. In this case the line of disparity was between bargaining unit inclusion and exclusion. Distinctions drawn along such lines are not per se illegal. The very fact that the Act allows groups of employees of a single employer to be represented in separate bargaining units , or some to be represented and others not, itself indicates that disparate treatment among different groups along unit lines may be allowable. Just as an employer prima facie is privileged to grant benefits to employees in a bargaining unit without granting them to employees outside the unit, so, too, is he prima facie privileged to grant benefits to his nonunit employees without simultaneously offering them to those in the unit. It is only when the grant to the one, and not to the other, is motivated by a purpose unlawful under the Act, that the privilege is lost and the disparity becomes illegally discriminatory, u But, absent an unlawful purpose , a violation of Section 8 (a) (3) may not be concluded from such disparity, standing alone. See Shell Oil Company, 77 NLRB 1306, 1309. is That is not to say, of course , that a specific showing of ulterior motive to discourage or encourage union membership is necessary in all such disparity cases before a violation of Section 8 (a) (3) may be found . If the primary facts necessary to show illegal discrimination are uncontested or appear unequivocal on the record--for example , if it appears that the situation giving rise to the payment of a benefit was in all respects identical as to unit and nonunit employees alike; that, apart from the factor of representation , as such, there were no distinguishing factors which normally would have led the employer to pay one but not the other; and that nonunit employees were granted the benefit denied to the unit employees , solely for the reason that the latter had selected a bargaining representative , and for no other--then unlawful purpose may be inferred without a specific showing of ulterior antiunion motivation. But where the primary facts necessary to show illegal discrimination are contested or equivocal, the employer's motive becomes a critical ancillary issue as a guide to ascertaining the real basis for the disparity--whether for an unlawful reason or for one not reached by the Act--for "motive is a persuasive interpreter of equivocal conduct." 14 In this case, not only is the reason for the Respondent's conduct contested , but the conduct itself is equivocal. On the one hand, the line of disparity is such as to support the General Counsel's contention that it was so drawn solely because the employees in the bargaining units "Gaynor News Company, Inc., 93 NLRB 299, enfd. 197 F. 2d 719 (C. A. 2), cert. pendg. after argument (S. Ct. No. 371) 12 An analogy is to be found in the principle governing the grant of a wage increase during an organizational campaign Such a grant is not illegal in itself, but it becomes illegal if it is made for the purpose of causing employees to accept or reject a bargaining representative. See Hudson Hosiery Co., 72 NLRB 1434, 1437. is Sullivan Dry Dock & Repair Corporation, 67 NLRB 627, cited by the General Counsel, is not, I think, authority to the contrary. The finding of discrimination in that case was based not only on disparity , but on a finding that after organization, and because of it, employees had been denied a benefit which theretofore had been an integral part of their wage structure. 14 Texas & N. 0 R. Co v. Brotherhood of Ry. Clerks, 281 U. S. 548, 549. CITIES SERVICE REFINING CORPORATION 809 had selected union representation. On the other hand, the Respondent, denying that it was actuated by that reason, has offered testimony toexplam the disparity on what it asserts to be a lawful basis. While some of the reasons advanced by the Respondent, although in themselves lawful, such as the consideration given to the factor of irreplaceability, do not fully account for the disparity at the precise line of cleavage, others do. These, to recapitulate, are that the unit employees, unlike the nonunit employees, were covered by a contract which made no provision for payment under such circumstances; that the unit employees were thought not to have fulfilled the obligations of their contract; and that it was assumed in the case of the unit employees, though not the unrepresented ones, that they were honoring the picket line voluntarily. To distinguish among employees on the basis of contract differences or obliga- tions, if that in fact is the real basis for the distinction, is not a form of discrimination proscribed by the Act. Nor is it, to distinguish between employees in the payment of wages for time lost on the basis of whether their absence from work during strike activity was be- lieved to be on a voluntary or involuntary basis. Cf. General Electric Company, 80 NLRB 510. It is true, of course, that the contract consideration and the assumption of picket-line honor are intimately associated with the fact of representation, for the contract was a normal con- sequence of representation, and the assumption would not have been made but for the fact of representation. But that does not mean it must therefore be concluded that the bargaining unit employees were discriminated against for the unlawful reason that they had union representa- tion. It rather places in sharper focus the need of turning to other guides to help decide whether the Respondent was basically motivated to withhold payment from unit employees because they had selected a bargaining agent, or whether its action was in fact controlled by the other reasons, which, while offshoots of representation, were nevertheless themselves not unlawful. The presence or absence of antiunion motivation is, I thmk, critical to the resolution of that issue--and it is to a consideration of that aspect of the case that we there- fore now turn. 3. Motivation The General Counsel concedes that the Respondent's labor relations history at the plants in question has been a good one. Of the approximately 2,300 employees in the plants , all but about 285 of those eligible for bargaining units are represented by labor organizations , and have been for some years. By and large the Respondent's relations with the various representatives of its employees have been harmonious; the I.A.M. strike, arising over an economic dispute over contract terms and lasting less than a week, having been the only strike in the history of the plants . No prior unfair labor practice complaint has ever been issued against the Respondent. There is no evidence that the Respondent ever expressed opposition to unionization of its employees, let alone that it ever engaged in conduct aimed at interfering with employee rights under the Act, unless the matter complained of in this proceeding be regarded as such. The Respondent's good past record is not, of course, proof of its present innocence. But it is a factor deserving of weight in evaluating the tendency of the Respondent to engage in activity motivated by an antiunion purpose. Unless some good reason appears for it, it is not lightly to be presumed that the Respondent who for many years has respected its employees' statu- tory rights would suddenly reverse its course. The General Counsel would supply a reason by pointing to the organizational campaign which, according to OEIU Business Manager Spears, the OEIU was conducting among the Respondent's technical employees. The Respondent, on the other hand, denies that it had knowledge of any such campaign. In its brief it asserts that there was no real campaign, and suggests that the OEIU letter to the Respondent- -sent after the filing of the charge in this case--in which the OEIU expressed an interest in representing the Respondent's technical employees, was per- petrated as a "hoax" to lay a foundation for a showing of antiunion motivation in this pro- ceeding. Not only on the basis of Spears' testimony, but also on the basis of Mann's admission that he had heard rumors of organizationalefforts among technical employees for some years, I am persuaded, and find, that theOEIUwas engaged in organizational activity among the tech- nical employees, and that the Respondent was not ignorant of this. But a finding of union activity and employer knowledge, standing alone, is not enough on which to predicate an in- ference that the disparate action taken was designed to counteract the organizing campaign. In- deed, the Respondent's past history, the absence of any evidence of expressed opposition by the Respondent to that campaign, the lack of evidence of any significant relationship between the timing of the payment and the state of the campaign, and the fact that the record per- suasively establishes that the Respondent was inspired in the first instance to consider pay- ment to the technical employees because of the manpower situation relating to them, are all 8 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in my opinion factors militating against any such inference. Moreover, if the Respondent's purpose had been to "crack down on unions " and take advantage of the strike situation to dis - courage organization , I do not think it would have mitigated in part the effectiveness of its plan by permitting unit employees who had lost time to credit such time against their vacations. Apart from the organizational campaign among technical employees , the only aspects of this case to which the General Counsel points to support an affirmative finding of antiunion motivation are (a ) certain alleged inconsistencies in the Respondent 's explanations by which it sought to account on a legitimate basis for the disparity in treatment, and (b) the remark made by Section Head Granberry to employee Susie Aiken, reported above. In my opinion, such inconsistencies as appear in the Respondent 's explanations , whatever else they may show, do not in the circumstances of this case show antiunion motivation . The isolated remark of Granberry, a relatively minor foreman , made to Aikens in response to her query, that the Company had a right to take care of its people and the Union would take care of those it represented , is in itself too equivocal to prove anything. It is as much open to a construction that Gransberry was in effect saying that the Union was in a position to bargain about the subject while the others had to depend on unilateral action of the Respondent, as it is to any other. Certain aspects of the disparity may impress me as unfair , such as the Respondent's failure- -possibly because its top management officials who made the decision may not have been aware of it at the time--to consider that certain OEIU unit employees along with others were led to believe by supervisory employees that they need not report during the strike until called, and but for that might conceivably have come to work. But unfairness alone is not the equivalent of illegality . Inthatconnection , an additional factor influencing my delibera- tions, though not controlling it, may be mentioned . That is the failure of the OEIU, though it was in a position to do so, i5toseekto have its claim negotiated outside the formal grievance procedure , even after the Respondent expressly indicated its willingness to entertain such negotiations. 16 Had the OEIU sought direct negotiations, instead of insisting that the matter was one to be handled under the grievance procedure with eventual arbitration, it might well have resulted in a resolution of inequities . At the very least, the Respondent's true position would have been clarified and might have provided a better background for testing its motive. But on the record, as it stands , I must conclude that the General Counsel has failed to establish that the disparity in treatment was motivated by an unlawful purpose. 4. Conclusion Upon the record as a whole, and particularly in view of the General Counsel 's failure to sustain by a preponderance of evidence that the disparity between the unit and nonunit em- ployees was prompted by an unlawful purpose , I conclude and find that the General Counsel has not supported the allegations of his complaint that the Respondent illegally discriminated against employees in the bargaining unit represented by the OEIU by failing and refusing to pay them for time not worked during the period of the I .A.M. strike. I shall therefore recom- mend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Office Employees' International Union, Local 87, AFL, is a labor organization within the meaning of Section 2 (6) and (7) of the Act. 2. The Respondent, Cities Service Refining Corporation, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. [Recommendations omitted from publication.] 15 The existing contract would not have precluded such negotiations. See N L R B. v Jacobs Mfg. Co , 196 F. 2d 680. 16 Contrary to Spears' assertion, the filing of the unfair labor practices charge did not pre- clude bargaining thereafter Atlanta Broadcasting Company, 90 NLRB 137. SCHEDULE A Group OEIU bargaining unit Clerical non- bargaining (catch-all) group Cafeteria nonbargain- ing group Nonclerical nonbargain- ing (tech- nical) group Total No. in plant at time of strike & stayed for duration Entered In plant at during first time or reported 10 hours & during first 10 stayed for hours & stayed duration for duration Reported intermittently Reported during week of on strike schedule On Did not vacation report at all 113 2 3 0 6 2 3 97 113° 13 54 13 5 0 4 24 15 0 13 0 0 0 0 2 176 6 11 15 15 0 3 126 This group is broken down as follows 25 firemen 40 plant guards 15 safety inspectors 7 nurses 26 clerical employed in personnel department and as secretaries to officials 00 I- r