American Oil Co.

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Oil Company and Research and Engineering Professional Employees Association. Case 13-CA-7292. April 18,1967 DECISION AND ORDER On June 6, 1966, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, find that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending 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, and the Respondent filed a brief in support of the Trial Examiner's Decision. The Board has reviewed the rulings of the Trial Examininer 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 exceptions and the briefs, and the entire record in the case, 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 adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN H. EADIE, Trial Examiner: This proceeding was held before me in Chicago, Illinois, on April 19, 1966, on the complaint of the General Counsel and the answer of American Oil Company, herein called the Respondent.' The issues litigated were whether the Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. At the conclusion of the General Counsel's case the Respondent moved to dismiss the complaint. Ruling on the motion was reserved by me. The Respondent then without adducing further evidence rested its case. The motion to dismiss is disposed of as hereinafter indicated. After the conclusion of the hearing the General Counsel and the Respondent filed briefs with me. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Maryland corporation. It maintains, a plant and refinery at Whiting, Indiana, at which it is ' Charges were filed by Research and Engineering Professional Employees Association , herein called the Association, on engaged in the manufacture and sale of petroleum and petroleum products. During 1965 the Respondent manufactured and sold petroleum and petroleum products valued in excess of $10 million, which were shipped from its Whiting plant and refinery to States of the United States other than the State of Indiana. The complaint alleges, the answer admits, and I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent concedes, and I find, that the Association is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Association, certified by the Board, has represented the Respondent's professional employees since March 1, 1944; and the Respondent has recognized and bargained with it since that time. The last collective- bargaining agreement between the parties was executed in 1963. Article VII of the contract provided: The Company shall make paycheck deductions monthly from the salary of any employee for the amount of the employee's membership dues to the Association, upon written authorization signed by said employee. Dues so collected by the Company shall be paid to the Treasurer of the Association within ten (10) days following the deduction. An employee may revoke the authorization to deduct Association dues at any time by individual written notification to the Company. Article XVII of the contract provided that if written notice of termination were given at least 75 days before the termination, April 30, 1964, "the entire Agreement shall terminate on the termination date...." The above agreement was terminated by notice from the Association to the Respondent, dated February 10, 1964. This notice requested negotiations for a new agreement. Starting on February 12, 1964, the parties met to negotiate a new agreement. Prior to this there had been meetings between the Respondent and the Association concerning the designation by Respondent of certain employees as supervisors. Agreement was reached on salary and other economic matters on October 20, 1964; but, because of the dispute as to the scope of the bargaining unit, negotiations on a complete agreement were postponed until the National Labor Relations Board issued its ruling in Case 13-RC-2035. There had been no discussion of dues checkoff during the negotiations prior to October 20, 1964. At the meeting held on October 20, Grace Marsh, negotiator for the Association, wanted to continue negotiations until agreement was reached so that the employees would be protected. John Strange, who represented the Respondent at the meeting, assured the Association "need not worry about having a contract because working conditions ... could not be changed unilaterally under the law." On October 21, 1964, the Respondent sent the Association the following letter: This is to confirm our understanding that our- remaining negotiations are to be postponed until the December 29, 1965, and February 16, 1966 The complaint issued on February 18, 1966. 164 NLRB No. 11 AMERICAN OIL COMPANY National Labor Relations Board issues its ruling in Case No. 13-R-2035. As we have discussed, the Company will place into effect the economic improvements contained in the Memoranda of Agreements dated October 20, 1964, even though collective bargaining is not yet concluded and there is not a complete agreement on all items included in your proposal dated February 21, 1964, and any other open items. If this letter does not correctly record our understanding, please let us know. The Respondent sent a letter, dated July 6, 1965, to the Association as follows: Effective July 15, 1965, the Company intends to discontinue dues checkoff as set forth in Article VII, Section 1 of our expired collective bargaining agreement. The Company is prepared to meet and discuss this matter if you desire. Dues checkoff has been continued on a month to month basis without a contract while the parties were awaiting the National Labor Relations Board decision in Case No. 13-R-2035. At no time did the parties contemplate that so much time would elapse before receiving the NLRB decision. The Company does not want to render any monetary assistance or support to your union by means of dues checkoff. For this reason, subject to our offer to meet, dues checkoff is being discontinued. On the same date the Respondent sent the following letter to its "R & D Professional Staff": As you are probably aware, REPEA terminated its contract with the company at the end of April 1964, and there has not been a contract since then. In such noncontract situations the company is legally expected not to make unilateral changes in conditions of employment, and the company has not done so. In addition, we have continued to provide REPEA with salary data and other information on represented employees and to deduct REPEA dues from employees' paychecks. The company has been concerned that these actions-particularly the continuation of dues deductions-may be taken as indication that the company favors REPEA. Actually this is not so-REPEA is a recognized labor union which is in no way sponsored or maintained by the company. To avoid any possible misunderstanding on this point, the company has notified REPEA of its intention to discontinue dues checkoff, effective July 15. The company recognizes that any group of employees is free to decide whether it will be represented by a union, without any interference by the company. When a group has chosen to have a union, the company respects this decision and bargains with the union in good faith. It is the company's view, however, that unionism is inconsistent with the professional aspirations of engineers and scientists. The fact that over 95% of the nation's engineers and scientists have chosen not to be represented by unions attests to the point that this view is widely held among professional men. We know that most of you hold your own personal convictions regarding the justification for union representation. We hope you also understand the company's position and the fact that we are simply trying to make our actions entirely consistent with our beliefs. At the Association's request, the parties met on July 14. 37 On that date and thereafter they bargained not only on the Respondent's proposed discontinuance of dues checkoff, but also generally on a new collective- bargaining agreement. At a meeting held on July 29 the Respondent and the Association each presented its proposed contract. There were various differences in the proposals, one of which was that the Association's proposal included checkoff and the Respondent's did not. During the year of 1965, there were about 25 meetings between the Respondent and the Association. The meetings were held "at least every two weeks, sometimes as often as twice a day." The parties bargained on dues checkoff and other proposals. At a meeting in August and in later meetings , when the Association asked the Respondent if it had reconsidered its position on checkoff, the Respondent answered that it did not want dues checkoff included in a new contract as this would be "doing a favor for the Union" and it did not want "to do anything to aid the Union." On September 13, 1965, the Respondent distributed a letter to its "R & D Professional Supervisors." This letter states in part: It is the Company's view that unionism is incompatible with the professional aspirations of engineers and scientists . A dues checkoff, we believe, is inconsistent with this view. At a meeting held on September 14, the Association proposed that it would bear the cost to Respondent of checking off dues if the cost was reasonable. The Respondent took this proposal "under advisement." At a meeting held on September 23 the Respondent answered that the cost of dues checkoff was not an issue, and that it did not want dues checkoff in the new agreement. At a later meeting the Association proposed that dues be checked off on an annual or a semiannual basis so as not to inconvenience the Respondent, or to have "a letter of agreement outside the working agreement" which would provide for dues checkoff. The Respondent rejected both proposals. On October 19, 1965, the Respondent distributed the following letters to its "R & D Professional Staff": Last Monday, October 11, the Company offered a 4-1/2% general increase to REPEA. This increase would be effective the first day of the pay period in which it was accepted. (In this case , acceptance means acceptance by the union negotiating committee with a recommendation that the membership ratify the agreement. Ratification by the membership could occur after expiration of the pay period.) As you know, REPEA cancelled its contract early in 1964. Therefore, a part of the Company's offer is signing of suitable new agreements. REPEA is insistent that the new working agreement contain a provision that the Company will make pay-check deductions of REPEA dues. Unlike other unions, REPEA represents professional employees. The Company intends to deal with the union representing its employees as required by law. However, as you all know, the Company believes that unionism and professionalism are incompatible. Therefore the Company's position is that it should not take any action which could be construed as an act in favor of unionism for its professional employees. Thus it is our position that the contract should not include a provision for pay-check deductions of union dues since that is a service for the convenience of the union which the law does not require. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company met with REPEA fifteen times during the period July 14-October 15 to discuss the check-off and other wage and contract items. The most recent meeting lasted until midnight , Friday, October 15. At that meeting the union failed to accept the Company's offer. This means that the general increase will not be effective October 1 . If the union accepts by October 31 , the increase will be effective October 16 , and I hope that this will be the case. Each pay period that is passed by the union means a loss of over $6,000 in salary increases for the people its represents. At meetings held during October and November the Association proposed that it collect its own dues "on company time"; that the issue of checkoff be submitted to arbitration ; and that the dues be paid to "professional societies" or used for "paying expenses to outside-of-town technical meetings annually." The Respondent refused to agree to any of these proposals. A meeting between the parties was held on or about October 28 . Concerning this meeting, Robert Lyons testified credibly as follows: We asked the Company if [we] took a poll of our members on the question of whether or not they would accept a contract which did not include dues checkoff would be accepted . We asked the Company if we did this, would it make any difference. As I recall , their answer was, "Well , it might. It would depend on the poll." We said , "Well, may we recess and reconvene in the afternoon." . we took a poll, and the results were something like, as I recall , 115 not to accept the contract without dues checkoff and 75 would. The meeting time for reconvening had been established when we broke up, and we reconvened at a time like 3:30 and we presented the results of our poll and asked again-"Now, you see, these results. Will you give us dues checkoff?" Their answer was a little vague at first to the extent that we were told how about the people that didn't vote, and we said most of the ones that didn 't vote in this poll weren't members and the Company asked us why didn't we consider their wishes, and , of course, the answer was obvious . If they wanted to join the Association , they were entitled to a voice in it and we'd be glad to have them join . If they didn't want them to join, we really felt they were not entitled to a vote in it, and, consequently, their wishes were irrelevant. Now, the upshot of the meeting was that they would not include dues checkoff in a contract. The Association made oral and written proposals to accept economic benefits, such as an "extra holiday," as a substitute for a checkoff clause. The Respondent refused to agree to such proposals . On one occasion Robert Steel, the Respondent's representative , stated that the Association could not trade "something for something" it did not have , as "the dues checkoff was going" and did not "exist anymore." By November 30, 1965, each side had made various concessions and had reached agreement on all issues, with the only exception being checkoff. However, the Respondent agreed to settle economic matters and to put the negotiated wage increases into effect while leaving other contract matters, including the issue of checkoff, open. On December 10 the parties executed a "Memorandum of Agreement" on salaries , and a letter of understanding on general contract matters. The salary agreement provided , among other things, for a 2-1/2 percent increase effective November 16, 1965. The Respondent and the Association held bargaining sessions after December 10. The last session was in March. At these meetings they bargained on checkoff and other issues raised by the Association, such as life insurance and pension plans. The Respondent's position on checkoff did not change. CONCLUSIONS The General Counsel contends that the evidence establishes violations of Section 8(a)(5) of the Act in that the Respondent unilaterally discontinued checkoff of dues and thereafter refused to bargain in good faith with the Association concerning reinstitution of dues checkoff as a provision of a new agreement . I disagree. The evidence shows that on July 6, 1965, the Respondent gave the Association notice of its intention to discontinue checkoff of dues effective July 15. In the notice the Respondent offered to meet and discuss the matter. The evidence further shows that the Association accepted the Respondent 's offer, and that starting on July 14 the parties met and bargained on this and other issues. As pointed out in the Respondent 's brief, "the record is notably silent as to the content and outcome of that bargaining on the proposed discontinuance of checkoff (as opposed to the issue of whether a new contract should contain a checkoff provision), or as to when and under what circumstances in relation to that bargaining the Respondent in fact ceased to check off dues following its offer to bargain . In short , there is no showing whatever that the Respondent did not discharge whatever bargaining obligations were imposed on it by the Act as a condition precedent to unilateral action ." Further, there is nothing in the record to show that the Respondent discontinued checkoff under circumstances which either directly evidenced bad faith or from which a necessary inference of bad faith may be derived. The undisputed facts are in accord with the Board's requirements with respect to contemplated changes in conditions of employment.2 Accordingly, I find that the General Counsel failed to sustain the burden of proof as to this allegation of the complaint. With respect to the alleged unilateral discontinuance of checkoff, both the General Counsel and the Respondent cite in their briefs Bethlehem Steel Company, 136 NLRB 1500 , and Standard Oil Company of California, Western Operations , Inc., 144 NLRB 520. The General Counsel argues that under these cases the Respondent did not have the right to unilaterally discontinue checkoff since "the dues checkoff provision herein considered is in no way tied to the term of the Agreement." The Respondent argues otherwise . In view of the above finding, I find it unnecessary to resolve this issue of law. However, under the facts in this case , I do agree with the Respondent's argument in the matter. 2 Town & Country Manufacturing Company, 136 NLRB 1022, Fibreboard Paper Products Corporation, 138 NLRB 550 AMERICAN OIL COMPANY 39 This leaves the question of whether the Respondent failed and refused to bargain in good faith concerning the matter of dues checkoff on and after July 14, 1965. The Respondent made known to its employees its view that it did not favor "unionism" for "engineers and scientists." This expression of policy directly related to the question of dues checkoff. On a number of occasions the Respondent stated that it would not grant checkoff because it did not want to render any assistance to the Association. This is the only evidence in the case that might tend to support the General Counsel's claim of bad-faith bargaining. The Respondent had a right to make known its view to its employees. In its letter of July 6, 1965, it made clear that it wanted to remove any erroneous impression of its employees that the Association was "sponsored and maintained" or favored by the Respondent. The Respondent stated that ,to avoid any possible misunderstanding on this point" it intended to discontinue checkoff. However, it further stated, in substance, that it respected the employees' right to choose the Association as their bargaining representative, and that it intended to bargain with the Association "in good faith." The above provides the Respondent's motive for its later position on checkoff, and is consistent with its statements at bargaining sessions to the effect that it would not agree to checkoff because it did not want to aid the Association. This was a legitimate reason for its stand; and I find nothing in the record to justify an inference that the Respondent's position on checkoff was taken solely for the purpose of frustrating agreement with the Union. The evidence discloses that the Respondent met and bargained with the Association whenever requested and made concessions to the Association, apparently in an attempt to reach that agreement. In fact, the only issue standing in the way of a contract by November 30, 1965, was a checkoff provision. Even then the Respondent agreed to put the negotiated salary increases into effect retroactively without insisting on complete agreement on a contract. From this it does not appear that the Respondent was acting in derogation of the Association's status as the colllective-bargaining representative of the employees. From all of the evidence I conclude and find that the General Counsel also failed to sustain the burden of providing this allegation of the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety.