Chevron Oil Co.

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chevron Oil Company and Local 825, 825(A), 825(B), 825(C) International Union of Operating Engineers, AFL-CIO. Cases 22-CA-2737 and 22-CA-2922 November 30, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On May 26, 1967, Trial Examiner Max Rosen- berg issued his Decision in the above-entitled con- solidated proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, as set forth- in the attached Trial Ex- aminer's Decision. However, for the reasons stated below, the Trial Examiner did not recommend that a positive remedial order be issued to cure these violations. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal of these allegations. Thereafter, the Respondent and the General Counsel filed ex- ceptions to the Trial Examiner's Decision and sup- porting briefs. I The Respondent also filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner as amplified and hereinafter modified. 1. The Trial Examiner found that the Respond- ent violated Section 8(a)(5) by refusing to fulfill its agreement to arbitrate a "pegging" grievance. The Respondent excepts and points out that the Board has held that a refusal to arbitrate a grievance is not per se a violation of Section 8(a)(5); e.g. Hortex Manufacturing Company, 147 NLRB 1151, enfd. 343 F.2d 329 (C.A.D.C.). However, the Respond- ent here did not merely refuse to arbitrate a grievance. By refusing to fulfill its agreement for the specific, but erroneous, reason that it was relieved of its obligation to bargain because of the pendency of the Independent's representation petition, the Respondent, in effect, withdrew recognition from the Union as the certified, statutory representative of its employees before Respondent was legally en- titled to do so. Therefore, we agree with the Trial Examiner that Respondent violated Section 8(a)(5) by such conduct. 2. The Trial Examiner found that the Respond- ent violated Section 8(a)(5) by dealing directly with employees in the unit about a temporary transfer without prior consultation with their duly designated bargaining representative. We agree. It is clear that such transfer affected wages and terms and conditions of employment about which the Union had the right to be consulted. The fact that the transfer was to be voluntary rather than manda- tory is not controlling, since the Respondent uni- laterally arrogated to itself the decision as to which employees would be permitted to elect whether or not they desired to transfer. The determination of how the selection was to be made - whether on the basis of seniority, merit, or some other criteria - Was a matter of legitimate concern to the employees and their statutory representative, and therefore one about which the statutory representative should have been consulted. Accordingly, we agree that the Respondent violated Section 8(a)(5) by dealing directly with the employees about the transfer and without prior consultation with the Union and by refusing to negotiate with the Union about the transfer. 3. Although the Trial Examiner found that Respondent violated Section 8(a)(5) of the Act by certain conduct, he did not recommend the issuance of a remedial order, finding that no useful purpose would be served thereby. Prior to the filing of the charges in this case, the Independent Oil Workers, Local 394 (Independent), filed a petition in Case 22-RC-3355 seeking an election among the em- ployees in the unit of Respondent's employees here involved, then represented by the Union. The Re- gional Director dismissed the petition because of the pendency of the unfair labor practice charges. The Petitioner appealed this dismissal to the Board. The Board reinstated the petition and ordered a hearing on the ground that the policies of the Act would best be effectuated by deciding the question of representation since the unfair labor practices al- leged, occurring 6 to 11 months earlier, were "technical in nature" and were no impediment to an election.2 After a hearing on the petition, the Board directed an election which was held on April 27, 1967. The tally of ballots showed that of 343 valid ballots cast, 239 were for the Independent, 98 were for the Union, and 6 were against the participating labor organizations. At the time the Trial Examiner issued his Decision, the Union had filed objections 1 As the record, exceptions, and briefs in our opinion adequately present the issues and positions of the parties, the Respondent's request for oral argument is hereby denied. 2 Chevron Oil Company, Case 22-RC-3355 (not published in NLRB volumes). 168 NLRB No. 84 CHEVRON OIL COMPANY which were pending before the Regional Director. On June 6, 1967, subsequent to the Trial Ex- aminer's Decision, the Regional Director overruled all of the Union's objections and certified the Inde- pendent as the bargaining representative of the unit of Respondent's employees involved in this proceeding. The Union did not file a request for review with the Board. The General Counsel excepts to the Trial Ex- aminer's refusal to .issue a remedial order and con- tends that since Respondent violated the Act, "the intervening fortuitous event of a change in the bar- gaining agent is not material." The General Counsel contends further that "as the rights of the em- ployees have been violated, any collective-bargain- ing representative chosen by the employees in the unit is entitled to a remedy which would protect it from similar future violations." We agree with the General Counsel that the poli- cies of the Act will best be effectuated if we issue an Order against Respondent to "cease and desist" from violating Section 8(a)(5) of the Act, and affir- matively direct Respondent to bargain collectively with the statutory representative of its employees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Chevron Oil Company, Newark, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Withdrawing recognition from any certified representative of its employees except as provided by law. (b) Bargaining directly with employees in a represented bargaining unit concerning changes in their working conditions without consulting the statutory representative of such employees. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Bargain collectively with the statutory representative of its employees. (b) Post at its plant in Newark, New Jersey, co- pies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Re- gional Director for Region 22, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 22, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 575 IT IS FURTHER ORDERED that that portion of the complaint as to which no violation has been found be, and it hereby is, dismissed. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT withdraw recognition from any certified representative of our employees except as provided by law. WE WILL NOT bargain directly with our em- ployees concerning changes in their working conditions without consulting their statutory representative. WE WILL bargain collectively with the statu- tory representative of our employees. CHEVRON OIL COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 614 National Newark Building, 744 Broad Street, Newark, New Jersey 07012, Telephone 645-3088. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAx ROSENBERG, Trial Examiner: With all parties represented, this case came on to be heard before me in Newark, New Jersey, on December 5 and 6, 1966, on complaint of the General Counsel of the National Labor Relations Board and answer of Chevron Oil Company, herein called the Respondent.' The issues raised by the pleadings are whether Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter. The parties waived oral argument at the conclusion of the ' The complaint, which issued on November 10, 1966, is based upon charges filed and served on April 26 and October 24, 1966, respectively. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing. Briefs have been received from the General Counsel and the Respondent,2 which have been duly con- sidered. Upon the entire record made in this proceeding and my observation of the witnesses, including their demeanor while testifying on the stand, I hereby make the follow- ing: FINDINGS OF FACT AND CONCLUSIONS 1. THE RESPONDENT'S BUSINESS Respondent, a California corporation, maintains an of- fice and place of business in Perth Amboy, New Jersey, where it is engaged in the refining, selling, and distributing of petroleum products. During the annual period material to this proceeding, and in the course of its business opera- tions, Respondent caused to be manufactured, sold, and distributed at said Perth Amboy refinery, products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from the State of New Jersey directly to other States of the United States. The com- plaint alleges, the answer admits, and I find that Respond- ent is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 825, 825(A), 825(B), 825(C), International Union of Operating Engineers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Contentions The General Counsel contends that Respondent vio- lated Section 8(a)(5) and (1) of the Act by systematically interrogating nine employees at its Perth Amboy refinery to determine whether disciplinary action should be im- posed upon them without acceding to their request that a representative of the Union, their duly designated bar- gaining agent, be present during said interrogations; by suspending seven of the aforementioned employees without pay, based upon their statements obtained in the course of the interrogations; by declining to honor the terms of a collective-bargaining agreement between Respondent and the Union through its refusal to process a grievance concerning the pegging of seniority; and, by circumventing and undermining the Union through bar- gaining directly with certain employees at the refinery concerning their temporary assignments away from that installation. The Respondent denies the commission of any unfair labor practices. B. The Evidence For 20 years, the Union has represented Respondent's hourly rated employees at its Perth Amboy refinery.3 The latest contract between the parties, which was executed on October 1, 1965, remained in effect until September 30, 1966.4 Among other provisions, this agreement con- tained various grievance clauses which set forth the procedures to be followed whenever a dispute arose, beginning with the first step of consultation between the aggrieved employee, the union steward, and the foreman involved, and culminating in arbitration. At approximately 7:15 a.m. on Friday, April 1, 1966,5 John Sabo, a foreman in the plant maintenance depart- ment, observed employees Salvatore Carluccio, Raymond Donnelly, Charles German, Joseph Hickey, Frank Nudge, Frank Sabine, Alexander Seamanik, and Charles Stek depart their work stations. Sabo confronted the group and directed that they remain at their jobs until 7:30 a.m., their normal quitting time, or else he would write out a rule-infraction notice regarding their conduct. The men disregarded the foreman's order, in consequence of which Sabo "wrote them up" and his report in this re- gard was transmitted through channels until it reached the 2 The Charging Party filed a letter with me setting forth its legal position in this matter. 3 The parties stipulated that all hourly rated employees at Respondent's Perth Amboy refinery, excluding plant superintendents, supervisors, any person having authority to recommend hiring or firing , experimental and laboratory staff, clerical and professional employees, equipment inspec- tors, draftsmen, and guards, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4 The original complaint in this proceeding contained allegations that Respondent generally refused to bargain with the Union after September 30, 1966, concerning a new labor agreement. At the outset of this hearing on December 5, 1966, the General Counsel moved to delete these allega- tions on the ground that a real question concerning representation had arisen concerning the Union's representative status following expiration of the contract. In support of this motion, the General Counsel related that, on July 18, 1966, a labor organization styled as Independent Oil Workers, Local 394, herein called the Independent, filed a petition in Case 22-RC-3355 with the Board's Regional Office seeking an election among the employees in the unit represented by the Union. Because of the pendency of unfair labor practice charges lodged with the Board on April 26, 1966 (Cases 22-CA-2737 and 22-CA-2922), alleging that Respond- ent unlawfully refused to bargain with the Union by denying its agent the right to be present during a factfinding meeting between Respondent and certain employees which was held to determine whether they should be disciplined, the Regional Director dismissed the petition . Thereafter, the Independent appealed the dismissal to the Board . In its appeal , the Inde- pendent asserted that its petition was supported by a vast majority of the employees in the unit and that the bulk of the union shop stewards had de- fected to its side. On December 1, 1966, 4 days before the hearing in this proceeding, the Board acted favorably on the appeal and directed that a hearing be held to determine whether a question concerning representa- tion existed inasmuch as the outstanding unfair labor practice charges in- volved issues which were merely "technical in nature." Rounding out the chronology, a hearing on the petition was held and an election was con- ducted on April 27, 1967. The tally of ballots shows that there were 343 valid votes cast, of which 239 were for the Independent, 98 were for the Union, and 6 were against collective representation. There were no chal- lenged ballots Thereafter, the Union filed objections to the election which are currently pending Over the Union's objection, I granted the aforementioned motion by the General Counsel because, under established Board policy, the pendency of a real question concerning representation raised by the Independent's petition suspended the Respondent's statutory obligation to bargain with the Union after September 30 over a new collective-bargaining agreement until that question was resolved See Durahte Co, Inc., 132 NLRB 425, 427 The Union thereafter appealed my ruling to the Board and, on December 14, 1966, that tribunal denied the Union's request for special permission to appeal, with leave to press the objection to my ruling follow- ing issuance of the Trial Examiner's Decision in this case. In light of the Board's Decision of March 29, 1967, finding that a real question concern- ing representation existed following expiration of the contract between Respondent and the Union which warranted a representation hearing, and the subsequent direction of an election, I perceive no persuasive reason for altering my previous ruling. Unless otherwise indicated, all dates fall in 1966 CHEVRON OIL COMPANY 577 hands of William Jones, Respondent's superintendent of maintenance and construction. The following day, April 2, Sabo again observed Stek, Carluccio, German, Hickey, and John Wilson leave their work area at 7:15 a.m. and once more he warned them not to do so. When the men repeated their disregard for Sabo's instructions, the latter dispatched another rule-infraction report to Jones. Upon receipt of these reports, Jones spoke to his superior, Minor Fahrmann, Respondent's manager of maintenance and construction, concerning this matter and it was agreed that a disciplinary problem existed which required further investigation.6 Jones then con- tacted Armand Salerno, assistant manager in charge of labor relations at the plant, and it was decided that in- dividual factfinding meetings should be conducted with each of the employees involved. Jones testified that, based upon Sabo's version of the events, he and Fahr- mann reached a tentative decision on April 2 to mete out some form of punishment to the nine employees for in- subordination. Salerno testimonially explained Respondent's custo- mary procedures regarding the preliminary investigation of reported rule infractions at the plant, which Sabo and Jones followed, and his testimony stands uncontradicted on this record.7 According to Salerno, these procedures are set in motion once a foreman becomes aware that an employee under his supervision has engaged in conduct which offends plant rules. The foreman then prepares a memorandum setting forth the facts surrounding the in- cident and discusses the episode with his immediate su- perior. If the misconduct is deemed to be sufficiently seri- ous, the matter is ultimately referred to the manager of the department or division involved. The manager will normally convene a meeting of his staff and review the data as reported by the foreman. Occasionally, an addi- tional investigation may be conducted among manage- ment personnel. If an assessment of these facts convinces the reviewing body that a prima facie case of misconduct has been made out, a tentative determination regarding punishment is made. Thereafter,- a factfinding session is held at which the employee whose conduct is under scru- tiny will be invited to present his side of the story so that the management representatives may make a fair ap- praisal of all the evidence to determine whether discipli- nary action is in order. When the employee reports to the meeting, he is advised that he may stand mute but is in- formed that, if he does so, Respondent will take the facts as reported by his foreman at face value and proceed on the basis of them. The employee is also told that, because the purpose of the meeting is essentially to gather basic information and because management representatives at a factfinding session are not authorized to dole out punishment, the presence of a union representative is un- necessary at this juncture and none is permitted to attend. In the event the employee produces evidence which satisfactorily explains his asserted derelictions, the matter is dropped. However, if no countervailing con- siderations are advanced by the employee, the manage- ment committee, following the factfinding meeting, as- sembles to decide upon what disciplinary action should be taken. When a decision to discipline has been reached, Respondent schedules a disciplinary meeting at which the affected employee and his union representative are in- vited to appear. It is Salerno's undisputed testimony that "At a disciplinary meeting the facts again are presented to the group present. Once more everyone present has the opportunity to comment, to amend, alter, modify or what- ever, including of course the union steward." If the em- ployee or his union agent advances persuasive reasons to forestall disciplinary action, the investigation is placed at rest and this has occurred on several occasions in the past. On the other hand, if, after full and complete discus- sion, the employee or his union representative fails to convince the management committee that discipline is un- warranted, punishment is then meted out. In the event the employee or the Union is dissatisfied with Respondent's decision, either may grieve under the grievance procedures contained in the contract between the parties. Following receipt of Sabo's rule-infraction reports, Jones conducted factfinding meetings on Monday, April 4. The employees involved were individually called into Jones' office and informed that the sole purpose for the interview was to consider all the circumstances relating to their alleged misconduct the preceding week. Jones testified that he informed each employee that no discipline would be exacted at the interview and hence the employee was not entitled to have a union agent present." However, Jones assured the men that, if and when disciplinary action was to be taken , a union representative could be at their side. After the interviews were concluded, Jones consulted with Sabo, Fahrmann, and others in the personnel department. As a result of these consultations, it was agreed that the charges against Hickey and Donnelly should be dropped because they of- fered a satisfactory explanation to rebut Sabo's com- plaints. With respect to the remaining seven employees, Jones and his colleagues decided that the employees had offered no evidence in mitigation of their reported offen- ses, and that they should be suspended for 3 days without pay. Whereupon, it was determined that Jones should hold a disciplinary meeting on the afternoon of April 4. ,,The nine employees normally worked on the day shift which ter- minated at 4 p in., and it was the practice of the foreman on that shift to permit the employees to leave the job at 3 45 p.m. in order to cleanse themselves in the washroom. However, Sabo did not follow this practice on the "temporary shift" to which he and the nine employees were as- signed The men, with the exception of Hickey and Donnelly, decided to walk off the Job 15 minutes early, in defiance of Sabo's orders, to bring the issue to a head 7 It is undisputed and I find that Respondent 's established policy of conducting a preliminary investigation of asserted employee misconduct is not proscribed by any terms embodied in the contractual grievance clause, and has never been challenged by the Union 8 Employees Frank Nudge and Charles German testified (and by stipu- lation of the parties, the remaining seven employees would have testified if called to the stand) that, when they were summoned into Jones' office for a factfinding meeting on April 4 and were told of the purpose for their presence, they requested that a union representative be called to assist them, a request which Jones declined to fulfill because no disciplinary ac- tion was contemplated at this meeting In his testimony, Jones denied that he had received such a request from the men, but admitted that he would have refused it if made In light of Jones' testimony that he advised the employees that they were not entitled to have a union representative present at this meeting , it appears more probable that this statement was made in response to a plea for union representation by the employees. In any event, it would have been futile for the men to demand the presence of a union agent in view of Jones' assertion that the former would have been barred from the meeting because of its preliminary, factfinding character. Accordingly, I find that the employees were denied union representation at the factfinding meeting 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Present at this meeting were the seven employees in- volved and Steven Kosmyna, the Union's chief shop steward in the maintenance department, together with Jones, Sabo, and a representative from Respondent's per- sonnel department. When the meeting commenced, Jones explained to Kosmyna and the employees the purpose for the gathering and, after reviewing the events which trans- pired on April 1 and 2, stated that his major concern revolved around the disregard for a foreman's order rather than their early departure from work. Jones went on to state that the employees' complaint about the lack of washup time could have been resolved under the con- tractual grievance procedure rather than by spontane- ously walking off the job, and he remarked that Respond- ent viewed their action as a serious breach of discipline which warranted the penalty of suspension for 3 days without pay.9 At this juncture, Kosmyna advanced vari- ous objections to the proposed suspensions, complaining that the punishment was too severe and that he had not been previously consulted concerning the alleged insub- ordination. However, Kosmyna did not argue with the factual considerations underlying the suspensions. He then turned to the seven employees and remarked, "All right, if Jones says to take three days off, take three days off." It is undisputed and I find that, at no time following the disciplinary meeting on April 4, did the Union press the matter of the suspensions under any of the grievance steps provided therefor in the contract between the parties. The General Counsel takes the position that an em- ployer violates Section 8(a)(5) of the Act when he fails to consult with the duly designated bargaining agent of his employees during the course of a preliminary investiga- tion to ascertain whether an employee has engaged in conduct in contravention of plant rules which justifies the invocation of disciplinary measures affecting job tenure. He further contends that it is a violation of Section 8(a)(1) for an employer to deprive employees of the advice and counsel of a union representative whenever the possibility of disciplinary action may be visited upon them. Translating these theses into their applicability to the instant proceeding, the General Counsel argues that the employees here involved possessed the right to union representation at the April 4 factfinding meetings because an "inchoate" grievance was in the making. By this, he maintains that the lack of union presence at these meetings offended the statute, although he makes no claim that the Respondent's deportment at the sub- sequent disciplinary meeting or thereafter possessed any taint of illegality. He therefore prays that Respondent be enjoined from engaging in such asserted misconduct in the future, and that it be required to reimburse the seven affected employees for any loss of pay they may have suf- fered as a result of their suspensions. To be sure, Section 7 of the Act guarantees to em- ployees the right to be represented by their collective-bar- gaining representative in all areas pertaining to their terms and conditions of employment, and the penalty of suspension from work for alleged insubordination most assuredly is encompassed within those terms and condi- tions. Moreover, Sections 9(a) and 8(a)(5) obligate an em- ployer to deal with a duly designated labor organization concerning all matters which affect the employment tenure of the represented employees. But this is not to say that a bargaining agent must be privy to management councils, or that represented employees must be shielded by that agent from company inquiries, on each and every occasion when management embarks upon an investiga- tion to ascertain whether plant discipline has been breached. 10 In the instant case, Respondent had receivedi7` a report from Foreman Sabo that nine employees had walked off the job 15 minutes early on April 1 and 2 in defiance of his orders to remain until the end of their work shift. Rather than rely solely upon Sabo's version of the facts surrounding the incidents, Respondent took the eminently fair and reasonable step of hearing both sides of the issue by interviewing the employees prior to arriv- ing at a decision as to whether disciplinary action was warranted, and, if discipline was in order, to so advise the employee and his collective representative of that deci- sion. In light of my findings heretofore made that Jones, Respondent's superintendent of maintenance and con- struction, lacked authority to discipline the employees at the factfinding meetings on April 4, 1 fail to perceive how the exclusion of Union Steward Kosmyna from those meetings intruded upon the rights of the employees or af- fected the Union's representative status. If my un- derstanding of the law is correct, a grievance in the statu- tory sense does not arise unless and until a management decision has been formulated to affect adversely an em- ployee's wages, hours, or other terms and conditions of employment, and the decision is on the brink of imple- mentation. I am hard pressed to understand how, as the General Counsel suggests, Respondent evaded any statu- tory obligation by refusing to entertain the presence of a union representative during the discussion of an alleged rule infraction when no definite adverse action has as yet been decided upon by Respondent. i i I am fortified in this conclusion by a further considera- tion of what transpired at the factfinding meetings and the ensuing disciplinary meeting on April 4. As a result of the interviews at the former meetings, the insubordination charges against Hickey and Donnelly were dropped upon presentation of evidence that they did not prematurely leave their jobs in disregard of Sabo's instructions. The remaining seven employees were unable to produce evidence to excuse their charged and admitted acts of in- subordination. Following the factfinding sessions, N While the General Counsel approached this issue with guarded detachment, it seems clear on the basis of the testimony of his own wit- nesses that the seven employees deliberately and insubordinately ignored Sabo's instructions to fulfill their workday commitments before they proceeded to the washroom. In this connection, I would note that the General Counsel neither alleges nor suggests that Respondent singled out these employees for disciplinary action in order,to inhibit the exercise of their rights under Section 7 of the Act. 10 The General Counsel's brief is singularly devoid of any Board or court support for his contrary assertion. In this connection, I take passing note of an Administrative Decision of the General Counsel in Case SR-2382, dated December 7, 1962, 1962 CCH NLRB ¶11,991 In that decision, the facts disclosed that the employer's supervisor refused to allow a union steward to be present at an interview to determine whether an employee had actually been absent from work due to illness, as the em- ployee claimed. In refusing to issue a complaint, the General Counsel ruled that, "since the meeting between the supervisor and the employee had occurred before any disciplinary action hrl been taken and hence be- fore a grievance had arisen, insufficient basis existed for a finding that the company had violated the Act in refusing to permit the union steward to attend." " See fn. 10, supra CHEVRON OIL COMPANY Respondent then decided that the circumstances war- ranted that the seven errant employees be disciplined by suspension from work without pay for 3 days. Thereafter, a disciplinary meeting was conducted and the seven, as well as Union Steward Kosmyna, met with representa- tives of Respondent. During this meeting, Jones again un- folded the charges filed against the employees, discussed the facts uncovered during the preceding investigation, and announced that he had decided to suspend the men. Kosmyna registered his objections, advanced alterna- tives, and argued his constituents' cause. As this record stands, neither Kosmyna nor the employees were foreclosed in any manner from offering new evidence in mitigation of their acknowledged offenses, nor from rear- guing the old. In short, I find that, under Respondent's established procedures for the conduct of disciplinary meetings, both the Union and the employees were al- lowed and received a de novo hearing on the charges at the disciplinary session before their suspension was im- posed. Respondent was under no statutory or contractual duty to conduct preliminary factfinding meetings with the em- ployees prior to the imposition of discipline for the infrac- tion of plant rules. Nor was it prohibited from doing so either by law or contract. This was a reasonable accom- modation afforded to employees at the Perth Amboy refinery, which was not extended to other plants in the area,12 and which was patently designed to avoid the possible invocation of the time-consuming grievance procedures set forth in the contract. Indeed, if Respond- ent had eliminated the factfinding step and had relied solely on Sabo's word concerning the admitted insubor- dination of the seven employees, it would not have been summoned to this bar to account for its actions under the General Counsel's theory of the case, because it had discharged its obligation of union consultation and presence at the disciplinary meeting. In sum, the General Counsel would damn Respondent for doing too much rather than too little. After a careful review of the entire record and the contentions of the parties on this issue, I am convinced and conclude that Respondent did not vio- late Section 8(a)(5) or (1) of the Act by declining to permit a union representative to be present at the factfinding meetings while Respondent's officials were investigating supervisory reports of insubordination by nine employees in the unit which the Union represented. I also conclude that the seven employees who were suspended for their admitted insubordination by leaving their jobs in defiance of instructions from their foreman are not entitled to backpay during the period of their suspensions. Ac- cordingly, I shall dismiss the complaint insofar as it al- leges that Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act by the foregoing conduct. Sometime prior to May 9, a grievance was filed by the Union over Respondent's refusal to peg the classification 12 It is uncontroverted and I find that preliminary factfinding meetings were not utilized at other refineries in the area and that disciplinary action against offending employees was first proposed to them and their bargain- ing representative at a disciplinary meeting. 13 "Pegging" connotes the freezing of an employee's job within his work classification. When pegged, an employer may not transfer an employee to another job. 14 Respondent advances the argument that it had merely "offered" to arbitrate rather than "agreed" to do so, and that it was therefore legally privileged to refuse to participate in any arbitration proceeding . It seems 579 of Gerard Haynes, an employee in the bargaining unit. 13 It is undisputed and I find that, on May 9, after the parties had failed satisfactorily to dispose of the dispute, the Union demanded that Respondent arbitrate the grievance pursuant to the procedures outlined in the con- tract between Respondent and the Union. On June 20, the parties agreed upon the issue to be arbitrated and the selection of an arbitrator. On July 5, the parties con- curred in an arrangement to conduct the arbitration hear- ing during mid-August. While the negotiations concerning Haynes' grievance were under consideration, and as heretofore chronicled, a representation petition was filed in Case 22-RC-3355 by the Independent on July 18, seeking an election among the employees represented by the Union. Motivated by this petition and by knowledge acquired prior to its filing of the Independent's organiza- tional drive among the employees, the Respondent dispatched a letter to the Union on August 11 which recited: Under the National Labor Relations Board's "Midwest Piping doctrine," an employer must remain strictly neutral when a real question of representation ... has been raised. Thus an employer is precluded from bargaining with either of the two unions; to bargain with either would constitute un- lawful assistance to that union. Under the National Labor Relations Act, arbitra- tion is a form of collective bargaining. For Chevron to arbitrate with [the Union], therefore, would con- stitute unlawful assistance to it and would result in Chevron's committing an unfair labor practice. Thus, Chevron must decline to arbitrate the "pegging" grievance with [the Union] until the question of representation has been resolved by the National Labor Relations Board. On August 26, Respondent reiterated its stand and no hearing on Haynes' grievance has been held. The General Counsel contends that Respondent's abrogation of its agreement to arbitrate the grievance was violative of Section 8(a)(5) of the Act because it con- stituted a rejection of the representative status of the Union, a status to which the Union was entitled under Section 9(a) until the expiration of the existing collective- bargaining contract on September 30.14 For its part, Respondent argues that it was under no obligation to ar- bitrate with the Union during the pendency of a real question concerning representation raised by the Inde- pendent's petition because arbitration constitutes "collec- tive bargaining" and because dealing with the Union on this issue would violate the legal mandate of "neutrality" with respect to the competing unions.15 In Duralite Co., Inc-16 the Board held that an em- ployer is obligated to recognize and bargain with the col- lective-bargaining representative of his employees over the administration of an existing labor agreement during the entire term of that contract, despite the fact that a clear on this record that, by its response of July 5 to an earlier letter from the Union, Respondent bound itself by agreement to arbitrate the matter 15 In this connection, Respondent takes the dichotomous position that it was perfectly amendable to bargain with the Union after the petition was filed by its willingness to "process grievances , post notices, etc.," but would not engage in arbitration . I find it difficult to understand how Respondent can contend that the former conduct was privileged while the latter was proscribed because, in either event, Respondent of necessity would be engaging in collective bargaining with the Union 16132 NLRB 425. 336-845 a - 70 - 38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation petition has been filed by a rival union. The reason for this ruling seems clear. Stability in labor relations, a prime objective of the legislation which con- trols this proceeding, is enhanced by the fulfillment of compacts hammered out in good faith at the bargaining ta- ble. Employees are not only entitled to the fruits of their "bargain," but are also entitled to the assistance of their collective agent in securing the flow of those benefits as long as the instrument which provides them is viable. Were it otherwise, an employer could, with impunity, withhold these benefits at his pleasure or whim any time a rival labor organization utilizes the processes of the Board to seek an election which, until conducted, is neither dispositive of the incumbent's lack of representa- tive support among the employees nor probative of the rival's supremacy. Industrial peace can hardly find a predicate in this circumstance. Accordingly, following the teachings of Duralite, I conclude that Respondent vio- lated Section 8(a)(5) by refusing to fulfill its agreement with the Union to arbitrate the grievance of Haynes over "pegging," thereby rejecting the representative status of the Union to which it was entitled during the term of the existing collective-bargaining contract.17 It is uncontroverted and I find that, in late July or early August, Minor Fahrmann, Respondent's manager of maintenance and construction, was informed that certain skilled mechanics were needed to perform temporary work at an affiliated, unrepresented refinery in Pascagou- la, Mississippi. Whereupon, Fahrmann selected the names of approximately 30 men in the bargaining unit whom he considered competent and held a meeting with them on August 18. At the meeting, he advised the em- ployees of the need for their skills at the Mississippi in- stallation, and explained in detail that, if they voluntarily chose to work at this location, their wages and other terms and conditions of employment would be governed by those which prevailed in Pascagoula, which differed considerably from those which obtained in Perth Amboy.18 Some of the men inquired about the availability of "smoke breaks" and other working conditions at the southern refinery, and Fahrmann replied that he was una- ble to alter any of the terms of employment at that loca- tion. He then informed the employees that they would be carried on the Pascagoula payroll for the 2-week period from October 2 to 16, and that their decision must be made by August 22. Twenty-six employees volunteered for the assignment as a result of Fahrmann's solicita- tion.19 It is undenied on this record that no union repre- sentative attended or was invited to attend the meetings, and none was consulted about the job transfer. On August 19, after learning of the proposed shift of men from the Perth Amboy unit to Mississippi, Union General President George Haluska telephoned Fahr- 17 Of course, Respondent was not required and could refuse to bargain with the Union over a new agreement during the pendency of the In- dependent's petition See Duralite Co supra at 427 18 For example , the prevailing wage rate in Pascagoula was 19 cents per hour less than they presently were receiving at Perth Amboy. 11 Respondent obtained the services of 20 employees at this meeting on August 18 Another meeting was conducted thereafter and, after making similar representations to the assembled employees, an additional six volunteered for the new assignment. 20 See fn 16, supra. 21 See N L.R B v. Katz, Williamsburg Steel Products Co., 369 U S 736. 22 SeeJ I. Case Company v. N.L.R.B., 321 U.S 332. mann to inquire whether the transfer was actually being contemplated, and received an affirmative reply. On Au- gust 21, Haluska again telephoned Fahrmann in search of additional information concerning the move, and requested that a meeting be scheduled so that the Union could bargain over the proposed transfer and the con- comitant change in wages and working conditions. While Fahrmann refused to acquiesce in Haluska's request for a formal meeting, he proceeded to furnish the desired in- formation over the telephone. Respondent seemingly does not quarrel with the General Counsel's assertion that the former bargained directly with the employees in obtaining their transfer to Mississippi. Rather, Respondent defends against this charged misconduct on the grounds that it was not obligated to deal with the Union because of the pendency of the Independent's petition and that no change in work- ing conditions occurred as a result of the assignment. With respect to the latter contention, the record is clear that the employees who elected to transfer to Pascagoula suffered a reduction in pay amounting to 19 cents per hour, as well as the potential loss of smoking and other privileges. I find that these changes most certainly af- fected their terms and conditions of employment and I conclude that Respondent has offered no meritorious defense to the charges in this regard. With respect to the former contention, I have heretofore concluded, based upon the Duralite case '20 that Respondent was under a duty to bargain with the Union during the entire term of the contract between the parties regarding wages, hours, and other conditions of employment. The transfer of em- ployees out of the bargaining unit, and the consequent reduction in their wages and other changes in working conditions, most certainly constituted mandatory sub- jects of bargaining under the Act 21 over which Respond- ent' could not bargain directly with its employees in disregard of the collective agent.22 Accordingly, I con- clude that Respondent, by dealing directly with its em- ployees concerning changes in their working conditions, without prior consultation with their duly designated bar- gaining representative, thereby violated Section 8(a)(5) of the Act.23 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 23 Respondent further defends its conduct on the ground that it was not required to bargain with the Union over the transfer because the Union represented only the Perth Amboy and not the Pascagoula employees, and because the reassignment was solicited on a voluntary basis With respect to the former defense, it should be noted that the gravamen of the complaint is that Respondent violated its duty of consultation with the Union concerning the unit of employees at Perth Amboy which it represented, not the unrepresented employees at Pascagoula. With regard to the latter, the alleged offense is not that Respondent permitted the unit employees to remain in status quo, but that it circumvented the Union in offering an assignment outside of the Union to the employees even though the employees were free to reject the offer I therefore find no merit in these additional defenses CHEVRON OIL COMPANY 581 V. THE REMEDY I have heretofore found that Respondent violated Sec- tion 8(a)(5) of the Act by refusing to bargain with the Union concerning the arbitration of Gerard Haynes' grievance under the collective -bargaining agreement then in effect between the parties. I have also found that Respondent violated that section by dealing directly with unit employees concerning changes in their wages , hours, and other conditions of employment in derogation of their duly designated bargaining agent. Under normal circum- stances, a remedial order to correct these statutory trans- gressions would be warranted. However, as indicated heretofore, the Union was unsuccessful in the election conducted on April 27, and the Independent emerged victorious by a substantial margin as set forth in the offi- cial tally of ballots. While the Union has filed timely ob- jections to that election , and the election might con- ceivably be overturned by the Board, it seems to me that no useful remedial purpose would be served at this time to recommend that Respondent bargain with the Union concerning Haynes' grievance or bargain with it over the temporary reassignment of unit employees to other instal- lations. Accordingly , I shall make no positive remedial recommendations to the Board concerning these viola- tions at this time. However, in the event the election al- ready conducted is overturned and a second election is held, and in the further event that the Union is successful in the latter election, the Board may see fit, under its con- tinuing powers to monitor and perfect remedial measures in cases pending before it, to fashion an appropriate remedy at some future date. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By refusing to bargain with the Union through declining to arbitrate the grievance of Gerard Haynes, and by dealing directly with employees in the unit con- cerning changes in their working conditions without con- sulting the Union, occurring at a time when the Union was the duly designated bargaining representative of the employees involved, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(5) by refusing to per- mit a union representative to be present at factfinding meetings with employees to determine whether discipli- nary action should be taken against them.