American Oil Co.

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL give Hartford Edwards, Mack Johnson, and Jesse James Brown, backpay for any wages lost as a result of their discharges in May 1964, and, to the extent, if any, that we have not already done so, we will offer Jesse James Brown his former job. LIBERTY SCRAP MATERIALS, INC., ABSORBENT SANITARY WIPER COMPANY, AND AMERICAN BARREL & COOPERAGE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Jesse James Brown if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room- 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381- 2200, if they have any questions concerning this notice or compliance with its, provisions. American Oil Company and Office Employees Association. Cases Nos. 1.3-CA-6545 and 13-CA-6560. May 7, 1965 DECISION AND ORDER On November 13, 19645 Trial Examiner C. W. Whittemore issued his Decision in the above cases, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommend- ing that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed cross-exceptions and an answering brief in support of the Trial Examiner's Decision and the cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the General Counsel's exceptions, the Respond- ent's cross-exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed. 152 NLRB No. 49. AMERICAN OIL COMPANY 493 CHAIRMAN MCCULLOCH, concurring : The dispute between the parties as to the number of representatives who might allowably appear for the Union at the first and second steps of the grievance procedure involved basically an honest difference over contract interpretation. The record clearly demonstrates Respond- ent's willingness to negotiate concerning the grievances involved. For that reason, and as there is no substantial basis for finding in the cir- cumstances present here that the Respondent's position on the proce- dural issue was urged in bad faith or in an attempt to change existing grievance handling practices, I would dismiss the complaint on the ground that no violation of Section 8(a) (5) has been established. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed by the above-named labor organization on July 8 and July 15, 1964, the General Counsel of the National Labor Relations Board on August 14, 1964, issued an order consolidating the cases , a consolidated complaint , and a notice of hearing Thereafter the above -named Respondent filed an answer. The com- plaint alleges and the answer denies that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended . Pursuant to notice, a hearing was held in Chicago, Illinois, on October 12, 1964, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues , to argue orally, and to file briefs . Briefs have been received from General Counsel and the Respondent. Disposition of the Respondent's motion to dismiss the complaint, upon which ruling was reserved at the hearing , is made by the following findings , conclusions, and recommendations. Upon the record thus made, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT American Oil Company is a Maryland corporation, maintaining a plant and refinery at Whiting, Indiana, and is engaged in the manufacture and sale of petroleum and petroleum products. During the year preceding issuance of the complaint , the Respondent manufactured and sold petroleum and petroleum products , valued at more than $50,000 which were shipped from its Whiting plant to States other than Indiana. The complaint alleges, the answer admits , and it is here found that the Respondent is engaged in commerce within the meaning of the Act. H. THE CHARGING UNION Office Employees Association is a labor organization admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES - A. Setting and single issue The simple setting in which the single issue in this case arose was at one of many hundreds of grievance meetings held during many years between the Respondent and the Union Neither the nature nor the disposition of the grievance itself is involved. Only the interpretation of certain provisions, of an existing contract is in issue. The dispute stemmed directly from the company spokesman 's objection to, the number of union representatives who appeared at a grievance meeting on July'7, 1964. It is General Counsel's contention that by imposing a limitation upon the number of indi- viduals appearing at a grievance or bargaining meeting, the Respondent has violated Section 8 (a) (5) of the Act. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Summary of relevant facts So far as the record shows there has existed continuously for a decade precisely the sort of effective collective-bargaining relationship between the Respondent and the Charging Union which the Act, in Section I, envisions and encourages. Contracts have been negotiated and administered down through the years. There is not the slightest evidence that at any time during the long period has the Respondent refused or declined to bargain in good faith. On July 7, 1964, Union Secretary Ventimiglia and three other union officials came to the office of Office Manager Johnson. The secretary asked Johnson for his answer concerning a "second stage" grievance, involving a single employee, Gabor. Johnson said he did not want to discuss the matter with so many present, and that he was not used to having second-stage meetings with more than two union represent- atives. Ventimiglia thereupon produced a copy of the then-existing contract and contended that a certain section of an article permitted the presence at this meeting of five representatives.' The office manager took the position that the paragraph cited by the secretary did not apply to grievance meetings, such as the one admittedly called by the Union. The parties argued their respective interpretation of the contract at some length, neither yielding, although there is no evidence or claim that the company spokesman declined to discuss the dispute. Finally, according to the secretary's own testimony, he told Johnson, "I want you to realize that you may regret this move. You realize, of course, we won't stop here." The union representatives then started out. As they were leaving, also according to the union spokesman's testimony, the office manager said, "I am not refusing to bargain; I am just refusing to bargain with this number." The union secretary then telephoned to Stevenson, assistant superintendent of industrial relations. The latter, after stating that he had talked with Johnson, asked "Why don't you guys be reasonable?" Ventimiglia stated his position again. Finally, the superintendent said he would look into the matter further and call back. Later he did so, affirmed Johnson's interpretation of the contract and past practice, and declared that the paragraph the secretary rested his argument upon did not refer to, grievance meetings at the second stage but only to special meetings. Ventimiglia, according to his own testimony, then threatened to bring "unfair labor charges." About a week later three union representatives, including Ventimiglia, met with Accounting Coordinator Dugger and Assistant Supervisor of Labor Relations Bates. One of the union representatives started to bring up the subject of some grievance, but Dugger interrupted and said that while he was sorry he could not discuss the matter with more than two representatives, as had been the practice. Ventimiglia countered by urging that they get "on with our business," and added "[If] you fellows don't like our bringing in more than two men-grieve-the grievance arbitration machinery is likewise open to the company as well as the Union." The company representatives asked "Why don't you grieve?" Ventimiglia rejoined, also according to his own testimony, "Well, why don't you grieve? ... we feel that you violated the statute, and more importantly in this instance, the union is the moving party." The secretary, then, according to his testimony "threatened an unfair labor charge, and' I withdrew a form and brandished ...." A company representative suggested that he fill it out elsewhere and on his own time. "We got nowhere," the secretary testified, "we arose and left." The grievance itself was not discussed. Ventimiglia had already filed a charge on July 8, the day after the first meeting- On July 16 be signed another one. I fail to find anything in the record to indicate what the nature of the grievance, if any, may have been that the Union wanted to take up at the second meeting. It is clear, however, that the Gabor grievance, the subject of the first meeting, has been disposed of, or is in the process of disposal. 'The item the secretary cited (3d par. sec. 7, art. III-bargaining procedure) reads "For all meetings with the Management other than the regular monthly agenda meetings, representatives of the Union who are employees of the Company, not to exceed five (5) shall not be subjected to loss of time or pay for such time as they spend during their working hours conferring with Management; except that for twelve ( 12) meetings during the Contract year, not to exceed six (6 ) such representatives shall not be sub- jected to loss of time or pay for such time as they spend during their working hours conferring with Management." AMERICAN OIL COMPANY 495 The current contract contains provisions for the submitting of "questions of appli- cation, interpretation or alleged violation of this Agreement, arbitration awards or written side agreements" to the customary arbitration machinery, including an arbi- trator selected from a panel designated by the American Arbitration Association, with the arbitrator's decision to be final and binding upon the parties. Neither party, however, has submitted the present question of interpretation of the contract to arbitration proceedings. The charges on this matter were processed and a complaint issued. C. Conclusions In my opinion the facts of this case present a most trivial issue. So far I can per- ceive the rights of no employee have been infringed upon, no one has suffered loss of pay, job, or dignity. There has been no refusal to bargain about any collective- bargaining subject, even as to the number of union representatives who may be present at grievance meetings at certain levels. The Employer has made no effort to impose its own selection of the employees' bargaining representatives, but only has disagreed as to the number of such representatives at certain stages. This is a matter, I believe, which more appropriately should have been, and should now be, submitted to the very arbitration machinery which the parties themselves have set up over this long period of amicable relationship. Unless the Board is prepared to extend its field of labor relations to the limitless area of domestic disputes, and to delegate to "Dear Abby" and Norman Vincent Peale the interpretation of provisions of the Act, it would appear sound judgment to leave this minor matter to disposition by the very procedure which they, through collective bargaining, have agreed upon. Indeed, no serious unwillingness of either party is manifested in the record to have the dispute arbitrated. More sophomoric than serious was the badminton-like exchange of mutual challenges: "Why don't you grieve?", as described by Venti- miglia. It was a sort of Alphonse-Gaston routine, with each party insisting that the other had the honor and privilege of starting the family arbitration machine. At the bystander's usual risk of incurring the ingratitude of both marital disputants, it is suggested that pride of each participant may be preserved, and honor and face maintained, if they jointly file grievance and let an arbitrator settle their quarrel. In any event, I am convinced, conclude, and find that the issue here comes well within any reasonable definition of the de mmtmis doctrine. However, since I know of no Board precedent for so specific a conclusion, I rest my ultimate recommenda- tion upon the Board's holding in Crown Zellerbach Corporation, 95 NLRB 753: In view of this background of peaceful and what appears to be a wholly salutary employer-employee relationship, we are reluctant to issue a remedial collective bargaining order . . Particularly is this so since the parties have failed to utilize the contractual procedures established for bargaining concerning the interpretation and administration of their contract, and where there is appar- ently no serious obstacle to an amicable settlement of the issue through bargain- ing within the framework provided in that contract. For the reasons set forth in the above-quoted decision, it will be recommended that the complaint be dismissed, without attempting here: (1) to interpret the contract between the parties, or (2) to conclude whether or not under other circumstances the Respondent should be held to have violated Section 8(a)(5) of the Act. RECOMMENDED ORDER Upon the above findings of fact, and upon the entire record in the case, I recom- mend that the complaint be dismissed in its entirety. 2 So far as I am aware , the Board has not wholly abandoned the clear , simple, and well-expressed position quoted above, although in recent decisions there appears to have developed some divergence of thought by individual members, notably in Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410, Dubo Manufacturing Corporation, 142 NLRB 431; and Thor Power Tool Company, 148 NLRB 1379