Humble Oil & Refining Co.

1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is not and on this record cannot be sufficiently definite to be applied or enforced; for this reason, and because it maintains the division of work which has spawned the dispute, it will prolong rather than set- tle the dispute. In following Goodfellow without regard to the record, the Board has acceded to the demand that the Board abdicate to the arbitrator the judicial role which the statute commands it to play in making jurisdictional awards. From this action I am compelled to dissent. Humble Oil & Refining Company and Local 866, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner, and Esso Seamen's Association, Intervenor. Case 22-IBC-29411. Julq,16, 1966 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to the provisions of a Stipulation for Certification upon Consent Election, approved July 15, 1965, an election by secret ballot was conducted at various times and places during the period August 2 to November 19, 1965, under the direction and supervision of the Regional Director for Region 22, in the unit which was stipulated to be appropriate, to determine whether or not the employees therein desired to be represented by the Petitioner or the Intervenor for pur- poses of collective bargaining. Thereafter, the parties were furnished with a tally of ballots showing that 698 of approximately 750 eligible voters cast ballots, of which 201 were for the Petitioner, 463 were for the Intervenor, 33 were against the participating labor organizations, and 1 ballot was challenged. The challenged ballot was insufficient to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. After an investigation, the Regional Director issued his report on objections on February 9, 1966, in which he recommended that the objections be overruled in their entirety. Petitioner then filed timely exceptions to the Regional Director's report and the Employer filed a brief in support of the report. 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 this case to a three-member panel [Members Fanning, Brown, and Zagoria]. Upon the entire.record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 160 NLRB No. 62. HUMBLE OIL & REFINING -CO.- 1089 2. The Petitioner and the Intervenor are labor organizations claim- ing to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of the employees of the Employer within the meaning of Sections 9(c)(1) and2 ( 6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 ( b) of the Act : All unlicensed personnel employed in the deck, steward, and engine room departments of the Employer's American Flag oceangoing ves- sels in active service but excluding seamen employed as steward or licensed officer for 30 days or more during each of the calendar years 1964 and 1965, all professional employees , stewards, licensed officers, watchmen, guards, and supervisors as defined in the Act. - 5. The Board has considered the Regional Director's report, the ex- ceptions thereto, and the brief submitted in support thereof, and finds merit in certain of the exceptions for the reasons discussed below. For a number of years the Intervenor has been the certified bargain- ing representative of the employees in the unit . In 1960, it entered into a collective-bargaining agreement with the Employer which has been extended from time to time by amendment to the original contract. In May 1965 , the parties to the contract entered into an amendment, ef- fective August 31, 1965, which extended the provisions of the original contract; as amended, for a period of 3 years and which, among other things, instituted a' new retirement plan for unit employees under which eligible employees were to receive -an annuity of $2 per month for each completed year of service with the Employer prior to, Janu- ary 1, 1966 . - The eligibility provision of the retirement plan reads as follows : - Eligibility : Employees of the Company who are represented by the Esso Seamen 's Association when retiring from the service of the Company. The plan also provides that in order to be eligible employees must have at least 15 years 'of credited service with the Employer. The Employer publicized the eligibility provisions of the new retire- ment plan referred to as the "Sea Service Allowance," in the June 3, 1965, edition of its newspaper, the Esso Fleet News , in the following terms : To be eligible for the Sea Service Allowance, you must have an- nuitant status (15 or more years of credited service) when you retire and be represented by the Esso Seamen's Association. [Emphasis supplied.] 257-551-67-vol. 16 0-7 0 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 11, 19651 the Petitioner filed an unfair labor practice charge alleging that the adoption of the retirement plan violated Section 8(a) (1) and (2) of the Act. On June 30, 1965, the Petitioner with- drew its charge and filed its petition for an election among unit eln- ployees. Although it appears that during the ensuing election campaign, the Employer gave considerable publicity to the new retire- ment plan, the Regional Director's investigation has not revealed any further mention of the provision conditioning eligibility on the con- tinued representation of employees by the Intervenor. The Regional Director recommended that this objection to the elec- tion be overruled because the Petitioner, knowing of the disputed pro- vision of the retirement plan, proceeded to an election and thereby waived any objection it might have had to this provision. We cannot adopt his recommendation for the reasons set forth in The Great Atlantic ct Pacific Tea Co.' We find it necessary, therefore, to consider whether the existence of a retirement plan such as this, which condi- tions benefits on the continued representation of employees by an in- cumbent union, is a ground for setting aside the election. The Board has held that an employer who maintains a pension plan whose benefits are conditioned on the unrepresented status of employ- ees violates Section 8 (a) (1) of the Act.' Here the Employer maintains a pension plan whose benefits are conditioned on the continued repre- sentation of employees by the incumbent Union.3 It is clear that the employees in the unit could reasonably believe that if they selected the Petitioner as their bargaining representative or if they voted against representation by any labor organization, they would not be entitled to retirement benefits under the Sea Service Allowance. That this in- terfered with their exercise of a free choice as to whether to be repre- sented by a collective-bargaining representative, and if so, by whom, requires no further elaboration. Accordingly, we shall set aside the election and shall direct the hold- ing of a second election.' [The Board set aside the election conducted herein at various times and places during the period August 2 to November 19, 1965.] [Text of Direction of Election omitted from publication.] 1101 NLRB 1118. As we recently stated in Bernet Foam Products Co., Inc, 146 NLRB 1277, "a party would not be estopped from filing objections to an election , even though it knew of the activity on which the objections are based prior to the election and neither filed charges nor otherwise protested ." Id. at p. 1282 , footnote 5 Cf. Excelsior Underwear Co., 156 NLRB 1236. 2 Melville Confections, Inc, 142 NLRB 1334 , enfd. 327 F 2d 689 (C A. 7), cert. denied 377 U.S. 933 ; Toffenetti Restaurant Co , Inc , 136 NLRB 1156, 1173, enfd. 311 F.2d 219 (C.A. 2), cert. denied 372 U.S. 977 ; Firestone Synthetic Fibers Company , 157 NLRB 1014; Channel Master Corp., 148 NLRB 1343 Compare Rangaire Corporation, 157 NLRB 682. a Compare The Richard W. Kaase Company, 141 NLRB 245, 271. In view of the fact that we have sustained the objections of the Petitioner relating to the maintenance of the disputed provision of the Sea Service Allowance , we find it un- necessary to pass on Petitioner 's other objections.